International Legislation Governing Forced Displacement

Original Editor - Naomi O'Reilly as part of the PREP Content Development Project

Top Contributors - Naomi O'Reilly, Kim Jackson, Jess Bell, Vidya Acharya, Kirenga Bamurange Liliane, Carin Hunter and Rishika Babburu  

Introduction

Legislations can have several purposes, they can regulate, they can sanction, restrict or authorise. In the field of refugee politics, legislations are made to clarify the responsibilities for each of the countries and to ensure legal rights.Protection of the rights of citizens are each individual states responsibility. Where this does not happen, and rule of law in a state breaks down, either because a government are unable or unwilling to provide protection of the rights of its citizens, then another country has a responsibility to step in to ensure these rights are respected, which is termed 'International Protection'. The international legal framework on which this protection is built, was developed in the aftermath of the Second World War in response to mass population movements, and the potential for destabilisation as a result.

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees, known as the Refugee Convention, is the main international instrument of refugee law. The Convention clearly spells out who a refugee is, and the kind of legal protection, assistance and social rights they should receive from the countries who have signed the document. It contains comprehensive provisions on the obligations and rights of refugees in areas as diverse as gainful employment, labour legislation, social security, public relief and education. The Convention also defines a refugee’s obligations to host governments and certain categories or people, such as war criminals, who do not qualify for refugee status.  

1967 Protocol relating to the Status of Refugees

The 1967 Protocol relating to the Status of Refugees is an international treaty, which should be read alongside the 1951 Convention relating to the Status of Refugees, known as the Refugee Convention. The 1951 Refugee Convention was drafted in the aftermath of World War II, and only applied to people who had been displaced as a result of events occurring before 1 January 1951 in Europe. New refugee situations arose following 1951, and these new refugees did not fall within the scope of the 1951 Refugee Convention, which led to the development of the 1967 Protocol. The 1967 Protocol aimed to provide equal status for all refugees, irrespective of their geographic location and dateline of 1 January 1951’.

Basically the 1967 Protocol removed the Refugee Convention’s geographical and temporal restrictions so that the Convention applied universally. This treaty ensures that the protections in the Refugee Convention, originally limited to post World War II Europe, are extended to all refugees.

Dublin Regulation

The Dublin regime was originally established by the Dublin Convention, which was signed in Dublin, Ireland on 15 June 1990, and first came into force on 1 September 1997. This was followed by the Dublin II Regulation, adopted in 2003, as an agreement between the European Union, Iceland, Norway and Lichtenstein that determines which Member State is responsible for the examination of an application for asylum, submitted by persons seeking international protection under the 1951 Geneva Refugee Convention and the European Union Qualification Directive, within the European Union. In essence the Dublin Regulation provides the legal basis and procedural rules for establishing the criteria and mechanisms for determining the state responsible for examining an application for international protection made in one of the participating states by a third country national or a stateless person, based on a range of criteria. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.

The objective of the Dublin Regulation is to ensure quick access to asylum procedures and the examination of an application on the merits by a single, clearly determined Member State. One of the aims of the Regulation is to ensure that an individual does not make multiple applications for asylum in several member states. Under the Dublin Regulation, families and relatives who are separated across different European countries can be reunited during their asylum claim. Unaccompanied children can apply to join a parent, legal guardian or sibling, aunt, uncle or grandparent who is living in Europe. Adults can apply to join their family members (spouse/partner or children) in another country if the family member is an asylum seeker or refugee, or has been granted subsidiary protection.

In recent years this arrangement has given some European countries a far larger responsibility for handling migrants and refugees than other countries, the result being that a large number of migrants and refugees are not getting the support and help that they are entitled to. A review in 2008 found that in the absence of harmonisation, “the Dublin system is unfair both to asylum seekers and to certain Member States”, exerting increased pressures on the external border regions of the EU and harshly disrupts the lives of those fleeing to Europe for protection. This led to further reform with adoption of the  Dublin III Regulation (No. 604/2013) in June 2013, replacing the Dublin II Regulation.

In September 2020, the European Union suggested a new European migration governance system to replace the Dublin Regulation, that will have common structures on asylum and return and it will have a new strong solidarity mechanism.

2016 New York Declaration for Refugees and Migrants

The United Nations General Assembly unanimously adopted the New York Declaration for Refugees and Migrants on September 19, 2016, which reaffirm the importance of the international refugee regime and contains a wide range of commitments by Member States to strengthen and enhance mechanisms to protect people on the move.

2018 Edinburgh Declaration

In May 2018, the 1st World congress on Migration, Ethnicity, Race and Health was held in Edinburgh where over 50 countries participated.  The congress resulted in The Edinburgh Declaration. Researchers and health care personnel made a declaration to integrate dialogue on issues related to migration, ethnicity, race, indigenous and Roma people.

Conclusion

There are legislative differences between countries on the process for asylum seekers and refugees, and as a health care professional you should be aware of the legislations in the country where you work. The Asylum Information Database (AIDA) is provides updated information on the legislations and situation within different countries.

Resources

References