“People around the world are trying to move for lots of different reasons. We have this system of protection that dates back to 1951 that almost all countries pay lip service to, and yet that system of protection, even if it worked well and protected the people it defines as refugees – which it doesn't – is leaving out lots of other people who also need protection. For no good reason that I can see.”
Dr Kieran Oberman, Associate Professor in the Department of Philosophy, Logic and Scientific Method at LSE, is explaining why his new paper, Enough Spurious Distinctions: refugees are just people in need, argues for a rethink of global refugee policy, including a new approach to what a refugee is.
Why can’t an economic migrant be a refugee?
Refugee and asylum policy is a contentious political issue. Part of the contention concerns how exactly we define “refugee”. The 1951 UN Refugee Convention Relating to the Status of Refugees defines a refugee as someone who has fled their country because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Dr Oberman argues that the Convention’s definition is too narrow and, as a result, many who are in reality, as much in need as those that meet the Convention definition become classified as economic migrants, despite there often being little moral difference between the two groups – someone fleeing starvation is no less in need than someone fleeing violence, they are just escaping different circumstances. Because they don’t fit within the tight Convention definition, they become vulnerable to the claim that they are ‘bogus’ or fraudulently seeking help.
“Someone can fall outside the Convention definition and yet have an equally strong claim to refuge,” explains Dr Oberman.
“The general principle should be this: in choosing a refugee definition we want to ensure that no one’s claim to refuge is denied for some arbitrary reason. No one should be refused refuge simply because of how we have historically chosen to use a particular word.”
Furthermore, because of this legal rigidity over who meets the criteria for support, even those who work for refugee rights are reinforcing this artificial divide over who is a “legitimate” refugee and who is not.
Dr Oberman explains: “Because the rights of what I call Convention-definition refugees are also under threat, a common tactic of those who are trying to remove those rights is to claim, ‘well, these people aren't real refugees, they’re just economic migrants’. And so to push against this, those who are defending refugee rights will insist on that distinction and say, ‘no, the people coming across the border from X nation are not economic migrants, they’re genuine Convention-definition refugees’.
“One key point, which is largely missing from that public debate, is that the people who are trying to remove rights for refugees have it correct in one respect, which is that often there is no morally important difference between Convention-definition refugees and other people. But the right response to that is not to insist that there is some really important moral difference. The right response is to say, 'yes, we should accept that people migrate for all kinds of reasons, and not just the incredibly narrow ones set out in the UN Convention’.”
A needs-based definition of a refugee
As an example of how the Convention currently falls short, Dr Oberman highlights the fact that refugees currently have to be the intended target of the danger they are fleeing, even though violence, as with other threats to life, is often indiscriminate. “As a result, people who are in the crossfire of a war or gang violence will have a hard time arguing that they’re being persecuted because they’re not the intended target,” he explains.
“Similarly with people fleeing a natural disaster. And the largest group, which is people who are just fleeing terrible poverty, who might not have enough to eat or their children might lack basic medicines.”
Because the Convention is only concerned with protecting people from persecution, it does not make “need” the central focus of concern. To counter this, Dr Oberman proposes a new definition: “Refugees are just people in need of refuge”. By “refuge", he means, "a place where people can have their rights protected and their basic needs secured, so security, subsistence and liberty”. If someone has a claim to refuge on the basis that they’re in need, no further condition is required to classify them as a refugee, he argues.
This definition, Dr Oberman stresses, does not mean asylum becomes a free-for-all: "I’m not talking about war criminals, for example. Fleeing legitimate incarceration does not make you a refugee.” To guard against this would simply require careful wording – defining “refuge” in terms of protection from “undue threats”, for example, would protect against such abuse of the system. “A criminal escaping punishment would ordinarily be described as ‘evading justice’, rather than being ‘in need of refuge’,” he explains.
Protecting immigration and refugee rights
Dr Oberman accepts that we are currently a long way from his ideal scenario of adopting a fully needs-based approach when assessing refugee claims. “There’s a question of what we should do in principle. And there's a question of what the best strategy is. What I think in principle, is that we should have an amended Refugee Convention that expands out the definition of a refugee and provides much more protection and visas so that people can migrate to places of safety without having to employ smugglers and with all the danger that entails.
“But that idea is just so, so far off. Right now, the battle is just to keep the few protections that Convention-definition refugees have, and probably this is what those working in the field need to focus on for now.”
Encouraging a more positive political discourse around immigration and refugee rights may appear difficult in the current climate, but this should not put us off having these conversations. Part of his role, Dr Oberman believes, is to ask the questions that others may not be able to ask.
“Calling for a massive expansion of asylum at a time when the limited rights that people have is under pressure is probably a really bad strategy. Having said that, the fact that there are a lot of people in need who are currently left out of the Convention definition, and a lot of really good reasons for people to migrate, doesn't get expressed enough. And so it falls on people, maybe academics like me, to express some of these points.
"If there are people who are drowning and they're trying to get onto the shore, no decent, non-pathological person is going to push them back into the sea to drown. And yet that's what we're effectively doing when we're preventing people from migrating who are moving for these very good reasons. While not everyone should be throwing their weight behind this, this is a discussion we should be having and hopefully getting these ideas out more widely will help create change, perhaps not immediately, but in the longer-term.”
Dr Kieran Oberman was speaking to Jess Winterstein, Deputy Head of Media Relations at LSE.
Pic credit: iStock/Joel Carillet
Enough Spurious Distinctions: refugees are just people in need by Dr Kieran Oberman was published in “Law and Philosophy”.
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