Refugees and the right to migrate

Refuge. Migration and reception policies in many countries are not in line with frameworks established by different international conventions.

In a Europe where the xenophobic discourse of the far right appears to be gathering more strength, cities can be a key element in defining migration policies which are far removed from narratives of fear and based around the inclusion and welcome of migrants and refugees. Here we look at the current situation of refuges from the point of view of human rights.

The number of people forced to leave their homes has not stopped going up. Data from the International Organisation for Migration (IOM) show that in 2018 there were 271 million migrants in the world (more than 3.4% of the global population). According to the report on global trends by the UN High Commissioner for Refugees (UNHCR), 70.8 million of these people were displaced, fleeing persecution, conflicts, generalised violence and human rights violations.

These are record figures for forced displacement, the highest since the end of World War II. They mean that every day, 37,000 people have to leave their homes because their lives are in danger. They look for countries and cities where they can start building a future again, where they can safely and freely be themselves.

According to the UNHCR, in 2018 there were 70.8 million forcibly displaced people in the world

These data help describe the global context for the phenomenon of migration, which is not new, yet in a globalised world becomes more complex and changing.

From a legal point of view, the right to migrate is recognised by different international legal texts:

— Universal Declaration of Human Rights Article 13 states: “Everyone has the right to leave any country, including his own, and to return to his country.”
—International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, of 1990, one of the main treaties on human rights signed in recent decades within the framework of the UN. It’s important to note that this regulation leaves it for states to decide the entry conditions for their country and the requisites for migrants to be there and regularise their situation.
— Specifically relating to refuge, we should also note that the right to asylum is established in article 14 of the Universal Declaration of Human Rights.

Previous definitions of migrants

The causes which lead people to migrate are very diverse. Some people are looking for new work and education opportunities in another place; others have to leave their homes out of fear of torture or other human rights violations. They may not feel safe in their country of origin or feel targeted on the grounds of ethnicity, religion, sexuality or political opinions, or perhaps they want to be reunited with family members living in another country. There are children, women and men fleeing violence, war, hunger, extreme poverty, or fleeing because of their sexual orientation, gender identity or the consequences of climate change and other natural disasters.

When we talk about migration and refuge there are various terms, which are sometimes confused with each other. Terms such as refugee, asylum seeker, internally displaced person or stateless person have slightly different meanings.

The term refugee refers to somebody who has left their country through a well-founded fear and who cannot or does not want to request protection from their country to be able to return there. As this report refers to these people, we’ll look at the term in more detail in the next section.

An asylum seeker is not yet a refugee but has presented a request to be granted asylum and to be recognised as such. While the state hosting them studies their case to determine if they are a refugee or not, they are asylum seekers.

There are also internally displaced people, who haven’t crossed any borders but have had to flee their homes as the result of armed conflict (or to avoid the effects of it), or due to generalised violence, human rights violations, natural or human disasters.

The terms refugee, asylum seeker, internally displaced person and stateless person refer to different situations for forcibly displaced people in the world

The situations suffered by internally displaced people are similar to those of refugees and consequently they could request asylum if they were in a country other than their country of origin. There are currently around 40 million people in this situation around the world, with conflicts such as the one in Colombia (which has been going on for over 50 years) resulting in millions of people being internally displaced. Colombia is also an example of how part of the population still can’t go home, despite the peace agreements of 2016. We should also bear in mind wars like the one in Syria, which, apart from refugees, has caused nearly three million internally displaced people.

Finally, stateless people are those who have no nationality because they are not considered nationals of any state. This is an invisible category which occurs when a person has never had a nationality or has lost theirs and not acquired any other. The situation can leave people in legal limbo and represents a major obstacle in accessing basic rights such as health, education, political participation etc. It is estimated that there are currently 10 million stateless people in the world.

What is a refugee and what international protection do they get?

World War II caused millions of European people to flee to America and eastern European countries. The international community reacted, and in 1950 the UNHCR was created with the goal of offering these people support. The organisation initially had a mandate of just three years, but seventy years on it continues to be the leading organisation in terms of protection for refugees.

The UNHCR is tasked with interpreting and getting others to comply with the main legal text on the protection of refugees: the Geneva Convention, of 1951, and its Protocol of 1967. A refugee is considered as a 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”.

The principle underpinning this convention is that of non-return, affirming that a refugee does not have to be returned to a country where they face serious threats to their life or their freedom.

Points worth noting in relation to this concept are:

— The refugee is outside their country of origin. Thus, a person who has not left their country of nationality cannot be regarded as a refugee.
— The fear must be well-founded. In other words, based on a person’s subjective feeling of fear, but also on elements of the political and social context of the country of origin which make that fear possible. It’s crucial to have reliable information about the situation of a refugee’s country of origin and at the same time to be able to attribute veracity to the account of persecution given by that person.
— The concept of persecution implies a serious violation of basic human rights and a threat against the life or freedom of a person on the grounds of race, religion, nationality or membership of a specific social group of because of their political opinions.

The reasons people suffer persecution are not just political. Other reasons include: race (a term currently associated with ethnic minorities, and which we can find related examples of in the persistence of slavery in Mauritania or with people from Mali going through Libya in the direction of Europe), religion (such as the persecution suffered by Christians in Egypt or the Rohingyas in Myanmar), nationality (for instance people fleeing the regions of Abkhazia and South Ossetia in Georgia), and membership of a specific social group. The latter will be dealt with in more detail later, in the part of the report on gender persecution.

At present more than half the world’s refugees are young children

Displaced people include collectives with specific protection needs: young children and the elderly. At present more than half the world’s refugees are young children. Many of them spend the whole of their childhood away from home, in some cases separated from their families. Some of them will also have witnessed or experienced violence. In exile they’re exposed to the risk of abuse, abandonment, violence, exploitation, traffic and military recruitment.

We need to ensure that unaccompanied minors and those separated from their families get support and have access to services that allow them to be reunited with their family, for new-born babies to be registered at birth and for children with disabilities to get support.

Another particularly vulnerable group is the elderly. When displaced, this collective may have urgent needs due to their lack of mobility, problems with their vision or chronic illnesses such as arthritis and rheumatism. This can mean they have difficulty accessing support services and consequently it is particularly important to ensure their safety and dignity.

Women are also refugees: gender persecution

The Global Burden of Armed Violence (GBAV) index of 2014 shows that between 2007 and 2012, some 60,000 women were murdered around the world. The reality is that women are particularly affected by poverty, violence and even commodification. In many places in the world women are persecuted merely for being such. This is what we call gender persecution.

Gender persecution also describes violations of basic human rights linked to the role ascribed to somebody because of their sexual or gender identity. A report in 2016 by the International Lesbian and Gay Association (ILGA) on discrimination against sexual minorities states that in 72 countries in the world there are regulations which prohibit homosexual relations, which are punishable by death in 13 of them.

That persecution particularly affects women because of the inequality of the system and the discrimination they have historically suffered. In terms of refuge, the UNHCR estimates that at present around half of the refugee population, internally displaced and stateless people are women.

Some cases of discrimination which could be considered persecution, potentially resulting in international protection as a result, are: femicide, persecution for refusing to adopt regulations, repressive social values or customs (discrimination relating to suffrage rights, rape within marriage, polygamy etc.), sexual violence in situations of conflict, female genital mutilation, forced marriage, human trafficking for sexual exploitation and persecution on the grounds of sexual and gender identity.

In relation to refugees and the journey from their country of origin to their destination, the UNHCR affirms that women and children (particularly those travelling with young children, babies, while pregnant, minors and women on their own) face additional risks as women, such as extorsion and exploitation, rape, sexual assault, survival sex to pay intermediaries, early or forced marriage and human trafficking.

Women and children face additional risks during their flight

On their journey, as they wait at a border at night or at badly lit train stations, refugee women and children may suffer sexual abuse. In 2015 there were cases of Syrian and Iranian women suffering physical and economic exploitation, rape and humiliation during the time they were fleeing their country.

More specifically, according to different contextual research conducted by Amnesty International, women travelling from Turkey to Greece and through the Balkans suffered insecurity or felt threatened, particularly in transit zones and camps in Hungary, Croatia and Greece. Women migrating in Morocco tell of similar situations: many stretches are completed on foot, over long days where their lives are at risk.

Where do refugees come from and where are they going?

According to UNHCR data from 2018, five countries account for some 67% of refugees: Syria (6.7 million), Afghanistan (2.7 million), South Sudan (2.3 million), Myanmar (1.1 million) and Somalia (0.9 million).

Many of these people travel in combined flows of refugees, where migrants and refugees converge and share the same routes, tackling similar challenges and risking their lives on dangerous journeys. Two examples are:

— The so-called Balkans route, used by refugees and migrants from Afghanistan, Iraq and Syria heading for Austria, Turkey, the Balkans or Germany and during which they may face arbitrary detentions, mistreatment by security forces, abuse, exploitation by smugglers, summary deportations and even death.
Central America, where thousands of people trying to cross Mexico are kidnapped, raped or killed, as this is one of the most dangerous journeys in the world. On the way people may suffer abuse from migration officials, police officers, military personnel, human traffickers and criminal gangs. They may also suffer serious injuries when boarding the train known as La Bestia, which they use to get from southern Mexico to the north.

Many people try to reach Europe by sea via Greece, Italy and Spain, countries which constitute and authentic ‘southern border’. The main human rights organisations denounce illegal deportations (prohibited by international agreements and by internal legislation in many countries) by national authorities, the lack of legal and safe means of crossing, the lack of humanitarian visas and the need for a decent resettlement programme. The lack of legal and safe routes means people use dangerous routes, which sometimes prove deadly: 519 people have lost their lives in the Mediterranean so far this year, making it the most dangerous route on the planet.

Spain has so far only taken in 2,792 people of the 17,000 plus it pledged to receive

Governments have often ignored the mechanisms for sharing the reception of refugees, designed by the European Commission and known as relocation and resettlement quotas. They have also overlooked their legal obligations and humanitarian duties and, in contrast, made human traffickers responsible for sending thousands of people to their deaths.

Spain has so far only taken in 2,792 people of the 17,000 plus it pledged to receive. In this respect, a real concern is the current criminalisation of people and organisations standing up for refugees’ human rights. A significant example is the code of conduct for Mediterranean operations approved by the Italian government in August 2017, which questions the role of NGOs operating in the region. Another example are fines imposed on humanitarian boats reaching the coast carrying refugees.

Host countries and reception

Most refugees don’t reach European coasts but end up in countries bordering the conflict they are fleeing. This is a fact, and yet the media uses headlines which talk about alarming numbers of refugees trying to reach the EU (‘Climate change below the latest wave of refugees in Europe’, ‘Immigration climbs up the list of problems for Spaniards’, ‘The refugee crisis reopens the gap between East and West’) and offer an alarming vision of the phenomenon of migration.

It’s common to hear discourse on ‘waves’ of refugees trying to reach our coasts, the ‘invasion’ of migrants and the insurmountable gap between East and West. These narratives offer a stereotyped image of refugees and label them as poor, often criminals, yet the figures offer a very different story, which doesn’t reflect the wave of migration towards Europe.

In 2018, four out of five refugees lived in countries bordering the conflict they were fleeing. The countries actually taking in the majority of the world’s refugees were: firstly, and for the fifth year in a row, Turkey (3.7 million); secondly, Pakistan (1.4 million), and thirdly, Uganda (1.2 million). The European country hosting the highest number of refugees is actually fifth on the list (Germany, with 1.1 million).

The countries taking in the majority of the world’s refugees are Turkey, Pakistan and Uganda. The European country hosting the most is Germany.

These figures are a contrast with the 637,895 people who requested international protection in EU countries in 2018, a relatively low number bearing in mind there are 28 countries in the EU and if we compare it with the figure of over three million refugees taken in by Turkey for instance.

Situation in the Spanish state and legal circuits

According to the 2019 report by the Spanish Refugee Aid Commission (CEAR), some 31,120 people requested international protection in Spain in 2017, compared to 54,065 in 2018, the highest number of applications ever made. Of these applicants, 43% were women and 57% were men. The three main countries of origin were Venezuela, Colombia and Syria.

What happens when a person requests asylum in Spain? Two parallel processes begin:

The application procedure and the decision on whether the person is granted international protection. The body responsible for this process is the Ministry of the Interior.
In the interview, the person requesting asylum explains why they fled their country of origin and, more importantly, why they can’t go back there.
The person in question must bring all the information they can about their country of origin to back up the account of their persecution and fears.
Once the documentation and the interview have been analysed, the Ministry of the Interior decides if the applicant is to be granted protection and whether they can be considered a refugee.
At a European level, where a common asylum policy applies, the so-called Dublin system is an agreement whereby EU member states establish which country has to process an asylum request according to the access circumstances of member countries. Normally this is the country via which the person entered the EU. The agreement was signed in 1990 and ratified by the Spanish state in 1995.

— Once in Spain, the reception and inclusion process begins. The body responsible for this is the Ministry of Employment and Social Security.
The ministry has a reception programme for asylum seekers and refugees unable to cover their own needs.
This programme lasts a year and a half and consists of three stages: reception, integration and autonomy. Temporary support is provided to cover refugees’ basic needs, such as language courses, housing benefit (temporary payment of rent, deposit, utilities and upkeep) and to foster labour integration (grants, occupational training, enrolment fees, nursery school costs and transport).

Role of local governments and the civil society in reception

More recently, some local governments and the civil society have become key players in the reception of refugees. We should bear in mind that refugees and international protection seekers with no resources can get onto the state support programme. Yet many are excluded, for various reasons.

— For having been returned to Spain through the application of the Dublin system, set out in the previous section.
— Because they belong to a specific social group, who for health reasons or sexual orientation it is advised that they are not accommodated in collective hostels, or because their link with the city has led them to renounce the destination assigned to them by the state programme.

Cities and municipal authorities do not have the power to decide if a person is a refugee or not, as this decision lies with states. Yet they do have an important role to play in terms of reception, as they are the administrations in closest contact with refugees and those which take them in and help them integrate. The year 2015 was something of a turning point in this area, and since then the ‘refuge cities’ network (in Barcelona’s case the ‘Barcelona, Refuge City’ programme) has been calling for a greater role for cities in taking in refugees.

Like other municipalities, Barcelona has been involved in the process to take in refugees and asylum seekers from day one: the city integrates them into its neighbourhoods and their everyday social and cultural life, providing support for young children in city schools and users of public health services and social services. Support is also provided later, when they need to find work and gain their own autonomy, with long-term integration measures if circumstances still prevent them from returning to their country of origin.

For people excluded by the special care programme, Barcelona has its own Nausica programme, which offers temporary housing and specialists support for individuals and families formerly requesting or benefitting from international protection but now vulnerable or socially excluded and unable to access the state programme.

All this insertion work would not be possible without the collaboration of various entities in the city. These include the Catalan Refugee Aid Commission, Catalan Red Cross, Accem and Bayt al-Thaqafa, which have been working for years to integrate migrants and refugees and fighting for their rights. They also carry out promotional work on the right to asylum and denounce the violation of this right and the vulnerability suffered by refugees.

Content prepared by the Human Rights Resource Centre