Monday, June 20, 2011

Celebrating World Refugee Day & 60 years of the Refugee Convention


On Monday this week, Professor James Hathaway of the University of Michigan Law School gave an engaging and lively talk ‘Saving international refugee law’, hosted by the Irish Refugee Council and School of Law, Trinity College. The timing of the talk was particularly apt as this year marks the 60th anniversary of the UN Convention relating to the Status of Refugees.

Professor Hathaway set about challenging governments and advocates to move beyond some of the common misconceptions regarding refugee law and protection. He started with misconceptions around the place a so-called ‘real’ refugee seeks protection. The Refugee Convention, he argued, does not say that a ‘genuine’ refugee is obliged to seek asylum in the first place he lands. Decision makers on claims for refugee status often claim this when rejecting applications. Rather family and language ties should be accepted as good cause for claiming refugee status in a particular country and it should be the risks on return that must be at the core of the assessment of the claim. He asked, if we were forced to flee tomorrow, would we not try and go where we had some sort of connection? Professor Hathaway also rounded on the trend in developed countries towards criminalizing refugees who by necessity, break national immigration laws in order to access protection.

Professor Hathaway further tackled the issue of how long States are required to offer protection to refugees. He succinctly argued that there is no provision in the Refugee Convention that entitles refugees to a permanent right to reside in their country of asylum. In fact, Professor Hathaway said that to suggest refugees should have a permanent right to reside under the Refugee Convention is to confuse the issues: rights of residence are conferred under a State’s immigration system. The Refugee Convention requires protection or residence for the duration of risk, he argued.

What Professor Hathaway highlighted which was of particular interest in light of the recent Zambrano decision, are the sometimes overlapping rights that refugees may avail of: a refugee may enjoy the protection of the Refugee Convention, but may also accrue family rights that are protected by domestic provisions such as our Constitution and other law including the European Convention on Human Rights and EU Treaty Rights provisions. It may be under these other provisions that the refugee enjoys rights to permanent or long-term residence but this right does not stem from the Refugee Convention itself.

Professor Hathaway repeatedly critiqued the rhetoric of governments in the developed world, who argue for greater responsibility sharing with developing countries which host approximately 80% of the worlds’ refugees. He observed that this appears only to be rhetoric at present and there is no practical framework or mechanism that formalises such responsibility sharing at present.

Finally, in response to a question from Áine Ní Chonaill of Immigration Control Platform who advocated that Ireland should withdraw from the Refugee Convention, Professor Hathaway stated that remaining a signatory to the Refugee Convention is an ethical, moral decision on behalf of the State but more importantly it is a pragmatic choice. The Refugee Convention offers a framework and a controlling mechanism for processing requests for protection that do not fit within existing immigration systems.

In closing, Professor Hathaway reiterated that he believes the Refugee Convention is a brilliant document that provides protection to some 12 million individuals across the world, more than any other human rights treaty or law. Good reason to celebrate. Happy 60th birthday!

Brophy Solicitors

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