Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

64 | PRACTITIONERS GUIDE No. 6
A limited number of rights under the Convention are accorded to refugees
who are lawfully present on the State’s territory, albeit not necessarily
“resident” or with a durable status, such as might be the case for
students or visitors. These are the right to self-employment (Article 18)
and the right to freedom of movement (Article 26), which are enjoyed
on an equal basis with foreign nationals; and expulsion procedural
rights (Article 32), which apply to the refugee.
The majority of rights recognised by the Convention are applicable
to refugees who are “lawfully staying” in the State of refugee, or, in
the French version, “résident(s) régulièrement”. This implies a situation
of stable and durable residence. These rights are the right to
travel documents (Article 27), which is a right specific for refugees;
and the right to equal treatment as nationals for the right to public
relief and assistance (Article 23) and labour and social security rights
(Article 24). Furthermore, the following rights are to be enjoyed on an
equal basis with foreign nationals: the right of association, which is
limited to non-political and non-profit making associations and trade
unions (Article 15); the right to engage in wage-earning employment
(Article 17) and in liberal professions (Article 19); and the right to housing
(Article 21).
The right to access to courts (Article 16) and artistic and industrial
property rights (Article 14) have a peculiar dimension as they must be
respected by all Contracting States to the Geneva Refugee Convention.
Their enjoyment must therefore be guaranteed on an equal footing with
nationals by the country of “habitual residence”, while all other States
must respect them in the same way as they would do with nationals
of the country of “habitual residence” of the refugee. The definition
of the term “habitual residence” is not clear. It has been interpreted
as signifying “more than a stay of short duration, but was apparently
not intended necessarily to imply permanent residence or domicile”. 89
However, the fact that it has been used residually only in these articles
suggests that it does not require “lawful” presence onto the territory.
However, it will be difficult to demonstrate “habitual residence” without
lawful presence.
c) When a refugee is not a refugee: cessation and exclusion
clauses
International refugee law provides for conditions and situations under
which a person ceases to be recognised as a refugee or because of
which it is forbidden to recognise someone as a refugee. These are
called respectively “cessation” and “exclusion” clauses.
89 Goodwin-Gil, The Refugee in International Law, op. cit., fn. 60, p. 310.