“Aylan, you did not deserve to drown in the coldness of water and the coldness of human indifference.
“You were not a Migrant. You were not a Refugee. You were a 3 yr old little boy wanting to play safely, away from the threats of violence and war.
“In Heaven, you will be nursed by those who held you, by those who kissed you and by those who risked everything in the hope of you reaching the shores safely.
Rest In Peace Aylan Kurdi.
May God forgive us for failing you”
An anonymous tribute to Aylan Kurdi,
printed in the Sydney Morning Herald.
Last week, something occurred that shook both the people and the governments of Europe and stunned them into action. That something was a picture. Not just any picture mind you: It was the picture of a tiny three year old boy lying face down on a beach in Turkey, the life extinguished from his fragile little body. That boy was Aylan Kurdi and the picture of how his life ended has sent ripples through the corridors of power in and in the hearts and minds of ordinary people.
It achieved what countless reports of suffering and dying migrants could not achieve: We all read and watched reports of the 71 migrants suffocating to death in a truck in Austria or the 1,750 people who have drowned in the Mediterranean since January but most of us did nothing. Aylan’s picture moved the general population of this continent if not the world, from apathy to activity.
Whilst the media debates the moral issues surrounding the biggest migrant crisis since the Second World War, as legal professionals, we must focus on how domestic and international law can assist these desperate people. It is a harsh reality that law and morality, although able to co-exist, often seem to conflict with each other but it is equally true that the power of our collective moral conscience can often force change faster than the law by itself and therefore, should never be overlooked.
Although countries have been taking in refugees for centuries, Immigration law as we know it today was developed largely following the mass migration crisis following the Second World War (WWII). By examining domestic and international law pertaining to migrants and refugees, we can begin to understand the how the law of humanity works in a humanitarian crisis:
The Difference Between Migrants and Refugees, and Why It Matters
A key cause of confusion when discussing the crisis revolves around how the individuals caught up in the situation are described. Are they migrants or refugees? How do we differentiate between them? Should we even do so? It is an important question to ask, as the rules pertaining to economic migrants are different to those applying to refugees.
Migrants are individuals who have chosen to leave their country of origin in search of a better life in another country. There are no dangerous conditions preventing them returning to their home country if their new life does not work out.
Refugees, on the other hand, are fleeing war, death and persecution. They have been forced from their homeland and cannot return without putting their lives in danger.
The problem arises because not everyone defines migrants in the way I have detailed above. For example the Organisation for Economic Co-operation and Development describes an “international migrant” as someone who has been outside his country of birth or nationality for at least two years. This definition could cover a Wall Street banker now residing in London, or a Syrian who has fled the violence of ISIS in his home country.
The problem with the word ‘migrant’ (the dominant term used by the UK media) is it has, for many years, been subject to negative connotations. Recently, this has gotten worse, with even the British Prime Minister, David Cameron unhelpfully likening the desperate refugees to a “swarm” of migrants.
As the debate over labels rages on, in this article, I shall refer to the terms ‘refugee’ and ‘migrant’ interchangeably.
The governing international convention on refugee law is the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) and its 1967 Optional Protocol relating to the Status of Refugees (1967 Optional Protocol). The other main piece of legislation controlling how States handle refugees is the Universal Declaration of Human Rights, adopted in 1948.
The 1951 Refugee Conventions Definition of Refugee
A definition of ‘refugee’ can be found under Article 1 (A)2 of the 1951 Refugee Convention, which states the term shall be applied to any person with 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 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.”
Just to add further confusion, the term “asylum seekers” refers to persons, who have applied for asylum, but whose refugee status has not yet been determined.
The Right to Non-Refoulment
No member state is permitted to send refugees back to the country they are fleeing from (the non-refoulment principle). This is codified under Article 33 of the 1951 Refugee Convention, several international human rights treaties and is considered to be customary international law, which means all states are bound by the principle.
The Right to Free Movement
Article 26 of the 1951 Refugee Convention states:
“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.”
This is one of the most frequently breached rights of refugees, especially by countries experiencing poverty or lack of sufficient resources to house and offer employment to an influx of refugees. In these types of situation, refugee ‘camps’ are often established, and refugees are denied the right to leave them in order to seek employment or alternative living arrangements.
This situation was highlighted recently in extraordinary scenes in Hungary, where refugees were tricked into boarding a train they thought was bound for Germany and instead herded towards a refugee camp. The ensuing stand-off produced harrowing images that were eerily similar to disturbing images of WWII, scenes we never thought we would see again.
The Right to Liberty
The right to liberty and freedom from detention is a highly contentious topic as it is a matter for each sovereign state to decide how it manages refugees. Some countries, including Greece and Australia have laws in place that allow them to detain asylum seekers in centres.
Often these detention centres are criticised for poor hygiene and shocking conditions. For example, a recent Parliamentary inquiry into the conditions at the Australian detention centre on Nauru has highlighted allegations of widespread rape and abuse of women and children. Is such a place safe? I don’t think any of us would risk sending our loved ones to such a place.
All European Union member states must abide by the rules and procedures set out in the EU’s Common European Asylum System (CEAS) legislation. CEAS obliges EU member states to take responsibility for determining asylum applications, maintain facilities for asylum seekers and use common procedures to define, process and protect refugees. All EU member states are bound by CEAS.
Under the Dublin Regulation (Regulation No. 604/2013) (sometimes referred to as the Dublin III Regulations and previously known as Dublin II Regulations), the first country that an asylum seeker enters is responsible for processing their asylum application. This country becomes known as the asylum seeker’s EU country of origin. The Dublin Regulations state that a migrant who has entered a European state illegally (that is, without being processed as soon as they enter Europe) should be sent back to their EU country of origin.
However, due to the incredible strain being felt in Italy, Greece and Hungary (the countries which migrants tend to enter first when coming into the EU), both Germany and the Czech Republic have sensibly chosen to suspend the Dublin Regulations for Syrian refugees for the time being.
The UK’s Pledge to Take in More Migrants
EU states can come to the aid of a member state in a migration emergency, under a treaty clause called Article 78(3) of The Functioning of the European Union, which says:
“In the event of one or more member states being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the member state(s) concerned. It shall act after consulting the European Parliament.”
Up until last week, David Cameron had relied on the UK’s ability to opt-out of this clause and had refused to commit to increase the number of migrants this country will accept. However, following the publication of the photo of Aylan Kurdi’s tiny corpse and the subsequent uproar in the media and amongst the public, the Prime Minister has now agreed to take in an extra 4,000 refugees.
Little Aylan Kurdi will never grow up to be a man. Who knows what he might have achieved had he lived? But one thing is certain. This three year old boy has managed to change the world. In life, he was just another faceless statistic. In death, he has opened our hearts to an ongoing tragedy of humanity that can no longer be ignored:
We can use the law not just to protect ourselves but to protect one another. Universal concepts of kindness and humanity can drive us to ensure that the law helps us to help ourselves and if we get it right, there will be no more Aylans washing up on the holiday beaches of Europe or anywhere else.
RIP sweet child.
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