DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

HUMAN RIGHTS LAW

FINDING THE LINKS BETWEEN REFUGEES,

PERSONS ELIGIBLE FOR SUBSIDIARY
PROTECTION, ASYLUM SEEKERS AND ECONOMIC
MIGRANTS

SUBMITTED TO: SUBMITTED BY:

Dr. Abdullah Nasir Abhijat Singh
Assistant Professor Section B
Dr. RMLNLU Enroll. No- 170101002
ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic and highly important topic. This topic
instantly drew my attention and attracted me to research on it.

So, I hope I have tried my level best to bring in new ideas and thoughts regarding the
basics of this topic. Not to forget the deep sense of regard and gratitude to my faculty
adviser, Dr. Abdullah Nasir. Last but not the least; I thank all my friends and all others
who have helped me in making this project a success.
Introduction
International refugee law is designed only to provide a back-up source of protection to
seriously at-risk persons. Its purpose is not to displace the primary rule that individuals should
look to their state of nationality for protection, but simply to provide a safety net in the event a
1
state fails to meet its basic protective responsibilities. As observed by the Supreme Court of
Canada, “[t]he international community was meant to be a forum of second resort for the
persecuted, a ‘surrogate,’ approachable upon the failure of local protection. The
rationale upon which international refugee law rests is not simply the need to give shelter
to those persecuted by the state, but . . . to provide refuge to those whose home state
2
cannot or does not afford them protection from persecution.”
It follows logically that persons who face even egregious risks, but who can secure
meaningful protection from their own government, are not eligible for Convention refugee
status. Thus, courts in most countries have sensibly required asylum seekers to exhaust
reasonable domestic protection possibilities before asserting their entitlement to refugee
status. Where, for example, the risk of persecution stems from actions of a local authority
or non-state entity (such as a paramilitary group, or vigilante gang) that can and will be
effectively suppressed by the national government, there is no genuine risk of persecution,
and hence no need for surrogate international protection.

Even though refugee law has always been understood as surrogate protection, state practice
traditionally assumed that proof of a sufficiently serious risk in one part of the home country
was all that was required. That is, an individual qualified for refugee status if there was a
“well-founded fear of being persecuted for reasons of race, religion, nationality,
3
membership of a particular social group or political opinion . . .” in the town or
region of origin. Until the mid-1980s, there was no practice of routinely denying asylum
on the grounds that protection against an acknowledged risk could be secured in another
part of the applicant’s state of origin.

To some extent, the traditional failure to explore the possibility of internal protection simply
reflected both the predisposition of predominantly Western asylum states to respond
generously (for political and ideological reasons) to the then-dominant stream of refugees
from Communism arriving at their borders. With the arrival during the 1980s of increasing
numbers of refugees from countries that were politically, racially, and culturally “different”
from Western asylum countries, the historical openness of the developed world to refugee
flows was displaced by a new commitment to exploit legal and other means to avoid the legal
duty to admit refugees. The so-called “internal flight” doctrine emerged from this context. As
formulated by the United Nations High Commissioner for Refugees (UNHCR) in its
Handbook on Procedures and Criteria for Determining Refugee Status,

The fear of being persecuted need not always extend to the whole territory of the
refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances
involving civil war conditions, persecution of a specific ethnic or national

1 “[T]he existence and the authority of the State are conceived and justified on the grounds that it is the
means by which members of the national community are protected from aggression, whether at the hands of
fellow citizens, or from forces external to the State”: Esshak Dankha, Conseil d’Etat of France Decision
No. 42.074 (May 27, 1983, unofficial translation).
2 Attorney-General of Canada v. Ward, 103 D.L.R. (4th) 1, 38-39 (1993).
3
3Convention relating to the Status of Refugees, 189 UNTS 2545, Art. 1(A)(2).
group may occur in only one part of the country. In such situations, a person will not
be excluded from refugee status merely because he could have sought refuge in
another part of the same country, if under all the circumstances it would not have
been reasonable to expect him to do so.
While framed by UNHCR as a constraint on the right of states to deny recognition of refugee
status, the result in practice of the Handbook’s rule was to legitimate the refusal of refugee
status to persons adjudged able to seek refuge within their own country. For example, Sikh
activists clearly at risk in the Punjab have been denied refugee status and returned to other
regions of India, Tamils to southern Sri Lanka, and Turkish Kurds to Istanbul.

In some cases, there may indeed be true protection options available inside the asylum
seeker’s country of origin. Particularly because most refugees today flee internal conflict
rather than monolithic aggressor states, real safety and security may be plausible today in
ways not imagined during the height of the Cold War. Yet the often radically disparate ways
in which the duty to seek internal protection has been conceived and implemented by states
suggested the need for a clear statement of the legal foundation for this limitation on access to
refugee status, as well as for a relatively precise formulation of operational safeguards.
Refugee
Etymologically speaking, the word refugee is linked to the Latin word refugium, meaning
refuge or to flee back, from re- “back” and fugere “to flee”. As for the word asylum, this was
originally derived from the Greek word a, meaning “not”, and sulon, “right of pillage”. By
putting these two words together, the Greek referred to a place where pillage was forbidden.

In antiquity, this was understood as protecting, un-harming or helping those who sought refuge
to escape from danger. For early societies, the idea of protecting refugees and offering them
sanctuary was seen as an essential condition of well-being, like Philip Marfleet remarks: “the
obligation to protect certain displaced people, fugitives and those abandoned by communities of
origin has often been seen as a social priority and has been closely associated with the well-being
4
of the wider society” . Sanctuary or refuge evolved into becoming a place of protection and
those fugitives who claimed sanctuary enjoyed immunity from punishment, violence or
persecution. Consequently, medieval churches were converted into sanctuariums, “shrines”, or
sacred places, for those in need. Prakash Sinha in Asylum and International Law carefully
observes: “the basis of asylum was found in the sovereignty of the city or state, instead of
5
the religious sanctity of the places of refuge” . In her view, sovereign States offered refuge to
people who by any reason, were persecuted by their own State. Therefore, the territorial asylum
6
could be traced back to the 1648 Treaty of Westphalia which recognized the sovereignty of
States within their territories.
In the modern history, two types of refugees can be distinguished: religious and political
refugees, who fled their homes due to religious and political persecution, and war refugees,
who sought refuge to escape wars.
The two world wars urged the need to lay down a coherent definition for refugees, in order to
provide these people with the necessary protection. After replacing the League of Nations and
being handed over its responsibilities, the United Nations began developing a set of juridical
documents in various fields of international law, including the protection of refugees. The
protection of refugees under international law, culminated with the 1951 Refugee Convention
relating to the status of refugees, which also outlines the definition of a refugee in its Article 1A,
paragraph 2. According to the 1951 Refugee Convention a refugee is any person who
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear is unwilling to avail himself of the
protection of that country, or who, not having a nationality and being

4 Philip Marfleet, “Refugees and History: why we must address the past”, in Refugee Survey Quarterly,
vol.26, issue
3, 2007, p.138.
5 Prakash Sinha, Asylum and international law, Martinus Nijhoff Publishers, The Hague, 1971, p.14.
6 The concept of sovereignty was laid down by the Treaty of Westphalia, which put an end to the European
Thirty Years War of religion, and created a new European order in which all States were governed by a sovereign,
who was assigned with independent powers within the territory of its country.
outside the country of his former habitual residence as a result of such events, is unable or,
7
owing to such fear, is unwilling to return to it” .
This definition is applicable to those having a nationality, as well as to those without a
nationality. Being shaped in the aftermath of the Second World War, “as a result of events
8
occurring before 1 January 1951” , the Convention was first intended to protect the European
refugees fleeing the atrocities of the war. But due to the rapid emergence of new refugee
situations, many people could not satisfy the required criteria to receive protection under the
Convention. Therefore, its application would be expanded to all the refugees around the world,
by the 1967 Protocol relating to the status of refugees that “shall be applied by the States
9
Parties hereto without any geographic limitation” .
Considering the annotations made by the 1967 Protocol to the Article 1A (2) of the 1951
Refugee Convention, the definition of the term refugee, outlined in this article, has to be fully
discussed.

Interpretation of Article 1A (2) of the 1951 Refugee Convention, defining the term refugee

Theoretical interpretation of terms: As a whole, the purpose of this definition is to set out
guidelines for determining refugee status. What should be clarified from the beginning is that
whenever an asylum application is introduced, it should be examined on an individual basis,
meaning that the asylum States should analyze the background situation of each applicant in the
view of the current definition.
The definition of the term “refugee” set out in the 1951 Refugee Convention can be broken
down, as follows:
a) a person outside his country of origin or residence
b) for what reason may a person find himself outside his country of origin or residence: due
to a well- founded fear of persecution
c) what types of persecution: for reasons of race, religion, nationality, membership of a
particular social group or political opinion
d) thus, owing to such fear he is unable or unwilling to return
1. A person outside his country of origin or residence
A person may become a refugee, outside the country of nationality or habitual residence in two
situations: either he abandoned his home because he himself suffered a well-founded fear of
persecution, or he was already outside his country, as a student, traveler etc. when an event
happened that made him fear persecution, torture or inhumane treatment, if he were to return to
10
his home country . In the second situation, that person is qualified as a refugee sur place.

7 Article 1 A (2) of the Convention relating to the Status of Refugees, United Nations, Treaty Series, vol.189,
p.152.
8 Ibid, p.152.
9 Article 1 (3) of the Protocol relating to the Status of Refugees, United Nations, Treaty Series, vol.606, p.270.
10 UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, p.9,
available at < [Link] >
It should be noted, from the beginning, that “country of origin”, means according to the
definition, “country of nationality”, while “country of residence” means “country of former
habitual residence”, referring to people without a nationality.
The last part of the definition, or “who, not having a nationality and being outside the
country of his former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it”, refers to aliens or stateless persons or to people with no
nationality, meaning that the persecution takes place in the country of his habitual residence
instead of the country of his nationality.

2. For what reason may a person find himself outside his country of origin or
residence: “due to a well- founded fear of persecution”
The first thing an applicant should do in order to receive refugee status is to prove he has a
good reason for fleeing his home. This reason is stated in the definition in the form of a
“well-founded fear of being persecuted”.
Thus, the well-founded fear is made up of two parts well-founded and fear, one objective
and one subjective, as outlined by the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status. In order for a person to seek refugee status, it must
subjectively perceive the threat of persecution to be real (thus inducing “fear”). However,
due to the fact that different people perceive fear in different ways, the threat of
11
persecution must also be real from an objective point of view (“well-founded”)

Even if persecution has not yet been defined in legal terms, it might be understood as the
act of abusing, ill- treating or harassing a person especially because of race, religion,
nationality, political views etc. The reason why the drafters of the 1951 Convention did
not define this term may be found in the on-going development and emergence of new
types of persecution and to avoid excluding any, they “intended that all future types of
12
persecution should be encompassed by the term” . Nevertheless, the interpretation of
13
persecution may be extended to Article 33 of the 1951 Refugee Convention .
3. What types of persecution: for reasons of race, religion, nationality, membership
of a particular social group or political opinion

A person may experience a well-founded fear of being persecuted for various reasons, of
which the Convention enumerates: race, religion, nationality, membership of a particular
group or political opinion, also known as the Convention grounds. If a person does not fear

11 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, p.9, available at
<[Link] >
12 UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, p.5.
13 Article 33 of the Convention relating to the Status of Refugee, p.176.
persecution for one of these reasons, he might not fall under the refugee definition and
might not receive refugee status.

4. Thus, owing to such fear he is unable or unwilling to return

In any of these cases, this person has become unable or unwilling to avail himself of state
protection and does not want to return. The terms unable and unwilling have to be
discussed separately. A person can be unable to avail himself of state protection, because
his country of residence is not able to provide him with the protection he needs to return
and puts him under serious threat. This “implies circumstances that are beyond the will
14
of the person concerned” , like a war, conflict or revolution. As for unwilling, this has
been clarified by the Convention itself, linking it with owing to such fear, more precisely to
the well-founded fear of persecution that makes a person “refuse to accept the protection of
15
the Government of the country of their nationality” .
Use in practice

The reference to the well-founded fear of persecution can be found in various judgements
like Immigration and Naturalization Service v. Cardoza-Fonseca (1978, US Supreme
Court) or R v. Secretary of State for the Home Department, Ex parte Sivakumaran
and
Conjoined Appeals (UN High Commissioner for Refugees Intervening) (1988, UK
16
House of Lords) .
In Cardoza-Fonseca case, the American Immigration and Naturalization Service refused to
grant asylum to a Nicaraguan woman, for the reason that she could not demonstrate a clear
probability of persecution if she were to be deported to her home country. Even if she resided
illegally in the United States, the respondent tried to apply for asylum and withhold deportation
owing to a well-founded fear of persecution related to the political activities of her brother in
Nicaragua. Judging the situation, the US Supreme Court arrived to the conclusion that “the
well-founded fear standard which governs asylum proceeding is different, and in fact
more generous, that the clear probability standard which governs withholding of
17
deportation proceedings” . According to the US Supreme Court there should be made a
clear distinction between the well-founded fear of persecution, the ground for granting asylum
and the clear probability of persecution, the ground for withholding deportation. In this case,
the Nicaraguan woman applied for both asylum and withholding

14 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refugee, p.16.
15 Ibid.
16 UNHCR, Compilation of Case Law on Refugee Protection in International Law, available at
< [Link] >
17 United States Supreme Court, Immigration and Naturalization Service v. Cardoza-Fonseca,
available at < [Link] >
deportation on the same basis, a well-founded fear of persecution, without taking into
account the fact that the two claims were different and demanded different motivations.

In the R v. Secretary of State for the Home Department case, the House of Lords established
how the expression well-founded fear of persecution had to be interpreted : “there had to be
demonstrated a reasonable degree of likelihood that he would be so persecuted, and in deciding
whether the applicant had made out his claim that his fear of persecution was well founded the
Secretary of State could take into account facts and circumstances known to him or established
to his satisfaction but possible unknown to the applicant in order to determine whether the
18
applicant’s fear was objectively justified” . This meant that there had to be a real risk of
persecution in the home country that could determine a person to fear returning there and apply
for asylum. What is more, when examining an asylum application, the Asylum State has to verify
if the applicant’s fear was objectively justified.

A relevant case law on the acts of persecution is Korablina v. Immigration and Naturalization
Service (1998, US Court of Appeals of the 9th Circuit), which describes the situation of a
Jewish Ukrainian woman who suffered continuous acts of religious discrimination in her country
of nationality. What is to be judged here is whether the discrimination she endured can amount to
persecution. The Court arrives to the conclusion that “persecution may be found by
cumulative, specific instances of violence and harassment toward an individual and her
family members not only by the government, but also by a group the government declines
19
to control” . In this case, the Court recognizes that Korablina does have a well-founded fear of
future persecution due to the continuous discrimination she suffered in the past.

Another pertinent case on the liaison between discrimination and persecution is A and Another
v.
Minister for Immigration and Ethnic Affairs and Another (1997, Australia High Court),
unfolding the case of a Chinese couple with one child, who applied for asylum in Australia on the
grounds of being members of a social group and could suffer persecution and forced sterilization if
they were to be returned to the People’s Republic of China. When discussing the meaning of
“membership of a particular social group”, the case deals with the interpretation of the refugee
definition, taken as a whole: “when the definition of refugee is read as a whole, it is plain that it
is directed to the protection of individuals who have been or who are likely to be the victims of
international discrimination of a particular kind. The discrimination must constitute a form of
persecution, and it must be discrimination that occurs because the person concerned has a
particular race, religion, nationality, political opinion or membership of a particular social
20
group” . This extension of the Refugee Convention associates discrimination with

18 United Kingdom House of Lords, R v. Secretary of State for the Home Department, Ex parte Sivakumaran
and Conjoined Appeals (UN High Commissioner for Refugees Intervening), available at <[Link]
bin/texis/vtx/refworld/rwmain?docid=3ae6b67f40 >
19 United States Court of Appeals for the Ninth Circuit, Korablina v. Immigration and Naturalization Service,
available at < [Link] >
20 Australia High Court, A and Another v. Minister for Immigration and Ethnic Affairs and Another, 24
February 1997, available at: <[Link] >
persecution, in the sense that both rely on common grounds such as race, religion, nationality,
political opinion or membership of a particular social group.

The reference to the state protection is made in a 1993 case law judged by the Supreme Court of
Canada, Canada (Attorney General) v. Ward. What is revealed in this case is that if a state fails to
protect its citizens, they might suffer a well-founded fear of persecution and seek the protection of
other countries: “if the claimant’s fear has been established, is entitled to presume that
persecution will be likely and that the fear is well-founded if there is an absence of state
21
protection” .
As we have seen until now, the refugee definition has been in continuous change and
development, caused by the emergence of new refugee situations. Besides the 1951 Refugee
Convention, the jurisprudence, together with national evaluations, has played an important role
in interpreting the definition of refugee in various refugee plights.

Regional definitions based on the 1951 Refugee Convention

Following the well-known definition of a refugee, found in the 1951 Refugee Convention,
different countries have chosen to formulate their own definitions in accordance with their needs
in terms of refugee protection. Some countries, like the United States adapted their previous
definitions to that of the United Nations, while others, which did not sign the 1951 Refugee
22
Convention , had to develop their own legal instruments for refugee protection.
For example, the United States, in the 1980 Refugee Act accommodated the definition of
“refugee” to the Convention, emphasizing on the fact that a person, who participated in the
23
persecution of another person, cannot be entitled to refugee status . In the Refugee Convention,
this could have been written at paragraph c of Article 1(F), in the following form: “The
provisions of this Convention shall not apply to any person with respect to whom there are
serious reasons for considering that […] he has been guilty of acts contrary to the purposes
24
and principles of the United Nations” , including the persecution of another person among
these acts.

In the Immigration and Refugee Protection Act, Canada resumes the Convention definition of a
refugee and then extends it to persons in need of protection, who could be subject: “to a danger,
believed on substantial grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture, or to a risk to their life or to a risk of cruel and unusual

21
Canada Supreme Court, Canada (Attorney General) v. Ward, available at
<[Link] >
22 There are 147 states parties to one or both the 1951 Convention relating to the Status of Refugees and the
1967 Protocol. The signatory states have to comply with the dispositions of these documents, while non -signatory
states should act in accordance with other humanitarian instruments.
23 Maurice A. Roberts, “The US and Refugees: the Refugee Act of 1980”, in A Journal of Opinion, vol.12,
no.1/2,
African Refugees and Human Rights, Spring-Summer, 1982, pp.4-6
24 Article 1 F (c) of the Convention relating to the Status of Refugees.
 25
treatment or punishment” if they were to be returned to their country of nationality or former
residence. According to this act, Canada becomes a safe heaven, not only for refugees, but also
for persons being subjected to torture or inhumane treatment, internationally protected by the
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.

India is one of the few liberal democracies that is not a party to the 1951 UN Refugee
Convention and its 1967 Protocol, nor does it have a domestic refugee law. Instead, India has
chosen to deal with refugees at political and administrative level. It has therefore only ad hoc
mechanisms in place to deal with status and problems. The legal status of refugees is therefore,
to begin with, no different from those of ordinary aliens whose presence is regulated essentially
by the Foreigners Act of 1946.

Since Indian law does not define who is a refugee, the government can brand all refugees and
asylum seekers under the umbrella “illegal migrant” term. India’s lack of a formal legal
framework, domestically and internationally, has allowed it to follow an ad hoc policy regarding
refugees.

B.S. Chimni, a renowned academic and legal expert on Indian refugee law and international law,
has termed the arbitrary Indian asylum policy one of “strategic ambiguity”. For instance, while
Tibetan refugees were allowed to form an exile government in India, the Tamilians that came in
during the Sri Lankan civil war were put in strict, heavily monitored camps and India is presently
in the process of deporting thousands of Rohingya Muslims originally from Myanmar.

At the European level, the Council of the European Union adopted, in 1996, a joint position on
the basis of Article K.3 of the Treaty of Maastricht/Treaty on European Union on the
harmonized application of the definition of the term “refugee” under the 1951 Refugee
Convention. The aim of this document was to ensure that Member States process an asylum
application in compliance with Article 1A (2) of the 1951 Refugee Convention and with its
26
interpretation found in UNHCR’s documents.
All EU Member States are also parties to both the 1951 Refugee Convention and the 1967
Protocol. Article 78 of the Consolidated Versions of the Treaty on the Functioning of the
European Union, emphasizes on the creation of a common European policy on asylum in
accordance with these two documents: “the Union shall develop a common policy on asylum,
subsidiary protection and temporary protection with a view to offering appropriate status
to any third-country national requiring international protection and ensuring compliance
with the principle of non-refoulement. This policy must be in accordance with the Geneva
Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of

25 Article 97 (1), a,b of the Immigration and Refugee Protection Act (2001, c.27).
26
Harmonised application of the definition of the term “refugee” under the Geneva Convention, available at
< [Link] >
 27
refugees, and other relevant treaties” . This means that when examining a refugee
application, the Member States act in accordance with the Convention definition. What the
European Union adds to the 1951 Refugee Convention is the notion of subsidiary and temporary
protection, another way of offering protection to those who do not qualify as refugees on the
basis of the refugee definition set out in the Geneva Convention.

In other regions of the world, such as Africa or Latin America, other key documents govern the
refugee definition, like the Convention Governing the Specific Aspects of Refugee Problems in
Africa or the Cartagena Declaration on Refugees in Latin America. Article 1 of the African
Convention defines the term refugee, following the 1951 Refugee Convention provisions, but
also adds, that “the term refugee shall apply to every person who, owing to external
aggression, occupation, foreign domination or events seriously disturbing public order in
either part or the whole of his country of origin or nationality, is compelled to leave his
place of habitual residence in order to seek refuge in another place outside his country of
28
origin or nationality” . This refers to refugees from violence who may suffer from conflict,
occupation, external aggression or other acts and leave their countries due to such sufferings.
What is more, the African Union Convention does not apply to claimants who have committed
29
crimes against humanity . This disposition is similar to Article 1 (F), paragraph a of the 1951
Refugee Convention, stating that: “The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for considering that he has
committed a crime against peace, a war crime, or a crime against humanity, as defined in
30
the international instruments drawn up to make provision in respect of such crimes” .
The Cartagena Declaration on Refugees reiterates the UN refugee definition, but also
considers it necessary to enlarge the concept of a refugee to “persons who have fled their
country because their lives, safety or freedom have been threatened by generalized
violence, foreign aggression, internal conflicts, massive violation of human rights or other
31
circumstances which have seriously disturbed public order” . It also extends the term
persecution to life threats, generalized violence, foreign aggression, internal conflicts, public
order disturbances or massive violation of human rights.

All these extensions of the 1951 Refugee Convention definition were due to the emergence of
refugee situations that needed special attention in different parts of the world. Therefore, the

27 Article 78 (1) of the Consolidated version of the Treaty on the Functioning of the European Union, O.J.
C83, vol. 53, 30 March 2010, pp.47-199.
28 Article 1 (2) of the Convention Governing the Specific Aspects of Refugee Problems in Africa
29 Not only the African Convention, but also the 1951 Refugee Convention excludes applicants who are
taking part in military operations. This means, that a soldier who is still exercising his activity, cannot apply for
refugee status. However, if he becomes a civilian or ends his military activity, he might fall under the 1951 Refugee
Convention provisions and become a refugee.
30
Article 1 F (a) of the Convention relating to the Status of Refugees.
31 Part 3, paragraph 3 of the Cartagena Declaration on Refugees
enlargement of the concept of refugee in the future, so as to comprise new refugee situations and
new types of refugees, like climate refugees for example, would be likely.

Asylum Seeker
Individuals, who seek international protection (refugee status or subsidiary protection status) are
called asylum seekers. For many countries, the distinction between a refugee and an asylum
seeker is still ambiguous. This is due to the lack of a clear definition of an asylum seeker in the
1951 Refugee Convention. For that reason, each country may set out the guidelines for granting
asylum to those in need of protection. However, an internationally accepted definition of an
asylum seeker may be found in various UNHCR documents, as asylum seekers are recognized as
persons of concern for UNHCR. According to UNHCR, “asylum seekers are individuals who
have sought international protection and whose claims for refugee status have not yet been
32
determined” . Thus, a refugee is initially an asylum seeker, as he originally applies for asylum
in the host country, but an asylum seeker is not necessarily a refugee at the beginning, but can
become one if he falls under the provisions of the 1951 Refugee Convention definition.
However, certain provisions of the 1951 Refugee Convention may also apply to asylum seekers,
like the principle of non-refoulement.

Just like UNHCR’s definition on asylum seekers, the European Union has developed a similar
view. In the 2003/9/EC Directive laying down minimum standards for the reception of asylum
seekers, the Council of the European Union defines an “applicant” or an “asylum seeker” as “a
third country national or stateless person who has made an application for asylum in
33
respect of which a final decision has not yet been taken” . This definition has been
unanimously accepted in the European Union and has been reproduced in all the European
directives on the topic of asylum.

In addition to these legal definitions, many authors identify the distinctions between the notions
of refugees, asylum seekers and economic migrant. Liza Schuster in the Use and abuse of
political asylum in Britain and Germany, considers that asylum seekers are the largest group that
comprises refugees, a much smaller sub-group, and the economic migrants, a much larger sub-
34
group than that of refugees .
In conclusion, an asylum seeker has been generally defined as a person who seeks asylum or shelter
in other country than his country of origin, for a series of reasons like persecution, aggressions,
conflicts, human rights abuses, threats to life etc., and who is waiting for his application to be
examined. After applying for asylum, this asylum seeker may become a refugee or an economic

32 UNHCR, 2009 Global Trends, p.23.

33 Article 2 (c) of the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards
for the reception of asylum seekers, O.J. L31, 6 February 2003, pp.18-25 (hereinafter Council Directive
2003/9/EC).
34 Liza Schuster, The use and abuse of political asylum in Britain and Germany, Frank Cass Publishers,
London, 2003, p.3.
migrant in the host country. However, sometimes, an asylum seeker may not meet the Refugee
Convention criteria and may not be entitled to refugee status, but may suffer persecution if he
were to be returned to his country of origin. In this case, he may be granted “de facto” legal
35
status to be able to enjoy the protection of the asylum country . This type of status was defined,
under European law, in the form of “subsidiary protection”.

Person eligible for subsidiary protection

After having his application examined, an asylum seeker may be entitled to refugee or subsidiary
protection status. A great number of asylum seekers, who do not qualify as refugees, fall under
the second category and become “persons eligible for subsidiary protection”. In international
law, this type of obligation to protect people who do not satisfy the 1951 Refugee Convention
definition, is known under the name of complementary protection. However, there is no
universally accepted definition of this concept.

For the Council of Europe, complementary protection is identified as de facto refugee status. In its
non-legally binding Recommendation 773 (1976), the Council of Europe defines the term "de facto
refugees" as "persons not recognized as refugees within the meaning of Article 1 of the
Convention relating to the Status of Refugees of 28 July 1951 as amended by the Protocol
of 31 January 1967 and who are unable or unwilling for political, racial, religious or other
36
valid reasons to return to their countries of origin" .
In Canada, in the Immigration and Refugee Protection Act, a person in need of
complementary protection is known as a person in need of protection, who cannot be returned to
his country of nationality or habitual residence if there is a risk of torture, cruel and unusual
37
treatment or punishment .
Other regional instruments, such as the African Union Convention or the Cartagena
Declaration on Refugees deem the principle of non-refoulement as humanitarian basis for
granting complementary protection to those who cannot be returned to their country of origin or
former residence.

The European Union codifies complementary protection in the form of subsidiary protection. Thus, a
person eligible for subsidiary protection was defined in the Council Directive 2004/83/EC of 29
April 2004 on minimum standards for the qualification and status of third country nationals or
stateless persons as refugees or as persons who otherwise need international protection and the
content of the protection granted as follows: "a third country national or stateless person who
does not qualify as a refugee but in respect of whom substantial grounds

35 Eduardo Arboleda, Ian Hoy, “The Convention Refugee Definition in the West: Disharmony of
Interpretation and Application”, in Selina Goulbourne, Law and Migration, Edward Elgar Publishing, Cheltenham,
1998, p. 72.
36 Parliamentary Assembly of the Council of Europe, Recommendation 773 (1976) on the situation of
de facto refugees, 26 January 1976,
37 Article 97 of the Immigration and Refugee Protection Act (2001, c.27).
have been shown for believing that the person concerned, if returned to his or her country
of origin, or in the case of a stateless person, to his or her country of former habitual
residence, would face a real risk of suffering serious harm as defined in Article 15 and to
whom Article 17 (1) and (2) do not apply, and is unable, or owing to such risk, unwilling to
38
avail himself or herself of the protection of that country" .
According to Article 15, serious harm refers to: death penalty, execution, torture, inhuman or
39
degrading treatment, punishment, threat to life or violence in the event of an armed conflict .
This means that in the European Union, the notion of subsidiary protection is very generous and
applies to many categories of people, not only to those who may be subjected to torture. In the
above mentioned definition, the reference to Article 17 was made in order to exclude from the
subsidiary protection status those persons who have committed or participated in crimes against
peace or humanity, war crimes, have undertaken activities contrary to the principles of the
United Nation, constituted a danger to the community or the security of Member States of the
European Union or have committed any other crimes in the Member State responsible for
40
analyzing their asylum application .
In brief, subsidiary protection, complementary protection or de facto status have been developed
by countries to offer an alternative protection to various categories of people who were excluded
from the Refugee Convention definition, but who if returned, removed or expelled from the host
country, could suffer serious harm. Why couldn't they be removed? Hopefully for humanitarian
reasons, with respect to the principles formulated in the Universal Declaration of Human Rights
and other Human Rights instruments.

Economic migrant
The movement of people or migration have always been a distinguished trait of mankind. A
migrant was a person who moved from one place to another, usually having a good reason for
leaving. Hence, an economic migrant can be defined as a person who leaves his home for
economic purposes in order to achieve a high standard of living.

To enter a foreign country, these migrants normally need a visa. If they cross the border illegally
they are categorized as illegal immigrants and may risk being arrested or deported to their home
country.

38 Article 2 (e) of the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted, O.J. L304, 30 September 2004, pp. 12-23
(hereinafter Council Directive 2004/83/EC).
39 Article 15 of the Council Directive 2004/83/EC.
40 Article 17 of the Council Directive 2004/83/EC.
The main distinction between refugees, asylum seekers and economic migrants, is that refugees and
asylum seekers flee their homes for a “well-founded fear of persecution”, while economic migrants
do not normally suffer persecution, even enjoy the protection of their governments, but simply want
to escape poverty, improve their financial situation or seek a better life. However, sometimes, those
who flee famine and poverty may not be simply economic migrants, but also refugees from hunger, if
their economic reason is linked with a political reason, even persecution. This means that “they are
41
fleeing out of a state of necessity, not out of choice” . What is more,
“an economic migrant may, for example, become a refugee sur place, when there is an
armed conflict or violent change of regime in that person’s country of origin, or when the
government or other actors in that country begin to inflict human rights violations on the
42
community of which the migrant is a member” .
Wendi Adelson in Economic Migrants and Political Asylum Seekers in the United Kingdom,
distinguishes between people who migrate for economic reasons and become economic migrants,
and people who leave their homes for political reasons, categorized as political asylum seekers:
“the economic migrant is viewed as migrating out of personal preference and the potential for
economic gain, rather than out of necessity inspired by persecution or life-threatening
43
circumstance” .
There is no reference in the 1951 Refugee Convention to economic migrants. This may be due
to the fact that migration regulations and policies are often considered a state right, implying that
each country can decide on the amount of people to accept as migrants. But whether a country
chooses to accept, detain or deport a migrant, its responsibility is to judge the situation with full
respect for human rights.

In a European perspective, there have been many debates on the harmonization of the immigration
policy. The legal basis in the field of EU migration policy is Article 79 of the Consolidated Version
of the Treaty on the Functioning of the European Union, stating, at paragraph 1, that:
“The Union shall develop a common immigration policy aimed at ensuring, at all stages, the
efficient management of migration flows, fair treatment of third-country nationals residing
legally in Member States, and the prevention of, and enhanced measures to combat, illegal
44
immigration and trafficking in human beings” . The measures that Member States have to adopt
towards the development of a common immigration policy relate to conditions of entry and residence
for third-country nationals residing legally in a Member State and to dispositions for those residing
illegally in a Member State in order to combat illegal immigration and trafficking

41 United Nations General Assembly, The right to food – note by the Secretary General, A/62/289, 22 August
2007, p.20, available at < [Link]
42 UNHCR, Refugee Protection and International Migration, 17 January 2007, p.5,
available at <[Link]
43 Wendi Adelson, “Economic Migrants and Political Asylum Seekers in the United Kingdom: crafting the
difference” in The Michigan Journal of Public Affairs, vol.1, summer 2004, p.1, available at
<[Link]
44 Article 79 (1) of the Consolidated version of the Treaty on the Functioning of the European Union.
in human beings. However, these measures do not constrain Member States to adopt their own
legislation on the admission of economic migrants, such as indicated by paragraph 5 of the
abovementioned article: “this article shall not affect the right of Member States to determine
volumes of admission of third-country nationals coming from third countries to their
45
territory in order to seek work, whether employed or self-employed” .
To sum up, economic migrants often abandon their homes for financial purposes and rely on the
host country for acceptance. Nonetheless, many developed countries view migration as a
negative phenomenon, even if it is universally accepted that economic migrants can contribute to
46
the prosperity of their destination countries .

45 Article 79 (5) of the Consolidated version of the Treaty on the Functioning of the European Union.
46
UNHCR, Refugee Protection and International Migration, p.7.
Conclusion: finding the link
between refugees, persons
eligible for subsidiary
protection, asylum seekers and
economic migrants
For the Asylum State it is often difficult to decide what protection to grant under certain
circumstances, mostly because of the ambiguity around these concepts. Since it’s not always
possible to distinguish between a refugee, a person eligible for subsidiary protection, an asylum
seeker and an economic migrant, we have to determine in what way they are connected.

Thus, a refugee was internationally defined by the 1951 Refugee Convention as a person
seeking refuge in a foreign country due to a well-founded fear of persecution. When arriving in
the host country, the procedure is to first apply for asylum and wait for the claim to be examined.
When applying for asylum this person becomes an asylum seeker. Once his asylum claim has
been accepted, he may be entitled to refugee status if he meets the criteria of the 1951 Refugee
Convention definition. If he does not meet the required criteria for refugee status, he may either
be returned to his home country if there is no serious harm he may face, or become a person
eligible for subsidiary protection. In order to qualify for subsidiary protection, the asylum seeker
must run the risk of suffering serious harm in his country of origin or former habitual residence.
Serious harm as defined by the Council Directive 2004/83/EC at Article 15 consists of:
death penalty or execution, torture or inhuman or degrading treatment or punishment or
threat to a civilian’s life or person by reason of indiscriminate violence in situations of
47
international orinternal armed conflict .
From the point of view of the Member State, when dealing with an asylum application, the
principle of non-refoulement applies from the beginning, because of its nature as fundamental
principle in international law. After examining the application, the Member State may entitle the
asylum seeker to three types of status: refugee status, subsidiary protection status (both known as
international protection, under EU law) and humanitarian status (a national protection offered to
migrants who do not qualify for refugee or subsidiary protection status, but who are allowed to
remain in the host country for humanitarian reasons).

When applying for asylum, the asylum seeker has to enjoy a minimal protection in the Member State,
protection that comes from its international obligations (e.g. the principle of non-refoulement).
According to the 1951 Refugee Convention, Member States have to define their asylum procedures
in full respect with Human Rights. Even the delaying of an asylum application,

47 Article 15 of the Council Directive 2004/83/EC

may be considered a form of protection, as the asylum seeker continues to stay and enjoy rights
in the country where he has applied for asylum.

While both a refugee and a person eligible for subsidiary protection are first asylum seekers and
then receive the legal refugee recognition, an economic migrant “uses asylum channels to
48
seek economic improvement” . As a result, a refugee, a person eligible for subsidiary
protection, an asylum seeker and an economic migrant are linked through the asylum channel
since they all apply for asylum to receive a certain status.

Although, these concepts can sometimes be misleading, there is no doubt that they are fully
interconnected. The great challenge for the Asylum State, however, is to establish a set of
conditions to filter the number of migrants crossing its borders through the asylum process.

48 Wendi Adelson, “Economic Migrants and Political Asylum Seekers in the United Kingdom:
crafting the difference”, p.1.