Open%20borders%20The%20case%20against%20immigration%20controls%20-%20Teresa%20Hayter

72 Open Borders
or sending back refugees to places where they face persecution; article 33
states that ‘No Contracting State shall expel or return a refugee ... to the
frontiers of territories where his life or freedom would be threatened.’ In other
respects its provisions are quite subjective, especially in relation to the
definition of a ‘well founded fear of persecution’, and leave much flexibility
to governments to interpret them so as to admit or exclude particular
individuals and groups of people according to the priorities of state policy.
Refugees are increasingly expected, against the spirit of the conventions and
the guidelines of the UNHCR, to provide ‘proof’ that their fear of persecution
is well founded.
The convention itself provides a narrow definition of refugees, which has
excluded people who badly need asylum. People whose persecution is not by
governments and their agencies are, according to some governments’ interpretations
of the convention, including the French and German, excluded.
People who are not themselves politically active, but have been caught up in
generalised conflicts and wars, are usually not recognised as refugees within
the definitions of the convention. Women who have, for example, been raped
by soldiers or police have had difficulty in having their claims recognised,
even though the UNHCR suggested in 1985 that states should grant refugee
status to women persecuted as a ‘particular social group’. Some lawyers have
succeeded in arguing the cases of refugees under the European Convention
on Human Rights, which was incorporated into British law in the Human
Rights Act of 1998 and is due to become operative in Britain in October
2000. In addition, the 1966 International Covenant on Civil and Political
Rights and the 1984 UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment have been used to protect
refugees. It has also been argued that refugee status should be determined
on the basis of violations of the UN Universal Declaration of Human Rights,
which includes prohibitions against torture and cruel, inhuman or
degrading treatment or punishment and against arbitrary arrest, detention
or imprisonment without independent judicial process, and states that
‘Everyone has the right to seek and enjoy in other countries asylum from
persecution.’
People who are not recognised as refugees under the terms of the Geneva
Convention may nevertheless be allowed to stay for temporary periods for
various ‘humanitarian’ reasons. In Britain they can be given ‘Exceptional
Leave to Remain’, for a limited but renewable period, but without the right
to be joined by their families or to travel abroad; in Germany they may be
given temporary residence permits.
Some refugees are forced to travel from country to country without their
claims being determined; the phenomenon has become so common that they
are known as ‘refugees in orbit’, or even as RIOs. The Dublin Convention,
signed by European Union member states in 1990, stipulates that asylum
applications should normally be determined in the first EU state in which an
applicant arrives. This means for example that, even if refugees have friends