Framing Refugee Protection in the New World Disorder

A number of jurisdictions have fastened onto a solution that appears to reconcile respect for refugee law with the determination of states to rid themselves quickly of potentially violent asylum seekers. Courts in these states have been persuaded that a person who has committed or facilitated acts of violence may lawfully be denied a refugee status hearing under a clause of the Refugee Convention that authorizes the automatic exclusion of persons whom the government reasonably believes are international or extraditable criminals. Refugee law so interpreted is reconcilable with even fairly blunt measures for the exclusion of violent asylum seekers. In our view, this approach is doctrinally unsound and rife with critical risks for genuine refugees. The Refugee Convention as originally conceived fairly meets the legitimate needs of both refugees and the communities that receive them. Refugee law does not ignore the security interests of asylum countries, but refuses to allow those interests to run roughshod over the equally urgent need of persons at risk of persecution to secure entry to a place of safety. Two parts of the Refugee Convention are relevant. The mechanism now increasingly invoked to justify bars on the entry of asylum seekers associated with acts of violence is Article 1(F). This clause requires governments to deny refugee status to any person reasonably regarded as either an international criminal or a fugitive from domestic criminal justice, the person\u27s fear of persecution notwithstanding. As elaborated below, this mechanism for peremptory exclusion is predicated on the satisfaction of an external and clearly defined standard of international or extraditable criminality. Only persons who meet this standard are deemed inherently unworthy of Convention refugee status and thus subject to exclusion without full consideration of the merits of their refugee claim. The rationale for Article 1(F) is not the protection of asylum-state safety and security interests (although it may sometimes be an ancillary result of peremptory exclusion). Concerns about threats to the safety and security of an asylum state should be factored into the protection decision, instead, through an exception to the duty of states not to expose a refugee to the risk of return to persecution, the duty of non-refoulement. Article 33(2) of the Convention authorizes a government to refuse to protect a refugee whose presence threatens its most basic interests. A receiving state may even return a dangerous refugee to face the risk of persecution in his or her state of origin, but only if the risk to national security or communal safety is established on the basis of a more demanding standard of proof.[...] While insisting on precision in the interpretation of international refugee law, our point is emphatically not that states should open their doors to persons whose engagement in or advocacy of violence threatens the safety of the host-state community. But neither should governments disregard the balanced approach to those concerns, which they have enacted into international law. The Refugee Convention is a supple instrument, capable of meeting the challenges of the new world disorder. For both principled and pragmatic reasons, this Article emphasizes the importance of not confusing international criminals\u27 and legal fugitives\u27 exclusion from refugee status with measured efforts to defend the safety and security of communities that receive refugees. Both are important goals, but they are not the same goal