In May, Erika Feller, Assistant High Commissioner for Protection at the Office of the High Commissioner for Refugees (UNHCR), addressed the UN Security Council’s Counter-Terrorism Committee to discuss the increasing criminalization of asylum seekers and the impact that fears of terrorism have had on refugee protection.

Ms. Feller’s address to the Committee, available here, should be required reading for those members of the Canadian government, media and public who would try to justify derogation from core principles of humanitarian protection in the name of countering terrorism. An excerpt (long-ish, because we really can’t put it any better than she did):

The refugee problem is, very centrally, an issue of rights – of rights which have been violated and of rights, as set out in international law, which are to be respected. A refugee, classically defined, is someone who is persecuted, denied security of person or freedom from discrimination on account of race or ethnicity, or is unable to exercise fundamental human rights like freedom of expression, association, political opinion or belief. A refugee is someone who is unable to continue to live in safety where he or she is, due to the dangers of war, generalized violence or serious civil disturbance, whether this is targeted or indiscriminate. Fleeing and seeking asylum is the only realistic option for these people and their families. This may seem self evident, but it is not so to everyone. It is an increasing fight to prevent refugees being mischaracterised as illegal immigrants, common criminals or, worse, potential terrorists in the minds of peoples and governments.

Refugees have been fleeing persecution and violence for centuries. What has altered dramatically over recent times, however, is the environment in which they are fleeing. From a perspective indelibly marked by the attacks of 11 September 2001, a prevailing belief is that irregular or unregulated asylum movements carry with them terror exported, transnational crime proliferating, national borders abused with impunity and host community ways of life under serious threat. These concerns have been magnified by a number of other high profile events, from the Bali bombings [in October 2002] or the Madrid train explosions [in March 2004] to the attacks on the London public transport system [in July 2005] or the Mumbai attacks. With increasing frequency, links have been made in the public mind between international terrorism and asylum systems. The belief that the latter may be used as channels by terrorists persists, even though, for example, none of the 11 September hijackers or the Bali, Madrid, London or Mumbai bombers was a refugee or an asylum seeker.

Another prevailing belief, which also does not stand up to detailed analysis, is that global criminal and terrorist networks are intensively involved in the smuggling of asylum seekers. In fact, there is very little evidence to support such an assertion. Most human smuggling seems to be undertaken by relatively localized networks that may be linked to each other but which are not global in their reach or using smuggling of asylum seekers to export terror or to raise funds for terrorist activities. If these are more perception than reality, perception is nevertheless important. The result has been increasingly restrictive, control-oriented and indiscriminate migration policies. We see rejections at the border, denial of admission into asylum procedures, harsh detention policies as a deterrent, and extradition or expulsion without minimum procedural guarantees or judicial review, often in breach of the principle of nonrefoulement. UNHCR is concerned about restrictive approaches to applying refugee protection principles, and a lowering threshold when it comes to exceptions to the principle of non-refoulement. Such practices and developments risk tilting the balance away from core protection principles in ways which are not consistent with international refugee law.

There is a need for a better balance to be struck between protecting national security and combating terrorism on the one hand, and international refugee protection principles on the other. Finding this balance remains a challenge. Here the legal framework is not really the problem. Sixty years ago the drafters of the 1951 Convention were acutely aware of States’ national security concerns, as well as the need to ensure that the refugee protection regime would not provide a cover for fugitives from justice. Accordingly, specific provisions in the 1951 Convention [Article 1(F)] provide a system of checks and balances which in effect demand the identification of persons engaged in terrorist activities, which foresee their exclusion from refugee status and which do not shield them against either criminal prosecution or expulsion. Article 2 of the 1951 Convention stipulates that refugees are bound to abide by the laws of their host country. They are not immune from prosecution for any crimes committed on its territory. Moreover, Article 32 permits the expulsion of a refugee on grounds of national security or public order. In exceptional circumstances, Article 33(2) even permits the return to the country of origin of a refugee who poses a serious danger to the security of the host country or to its community.

In spite of all this, the tendency persists to view asylum systems as porous processes enabling terrorists and individuals who are security threats to access countries undetected. This is also exaggerated. In fact, asylum processes are among the most closely regulated entry channels and therefore among the channels those wishing to enter a country without attracting undue attention would be less likely to choose. Asylum seekers are routinely finger-printed, checked on security databases, detained and monitored upon release, making them among the most closely scrutinized migrants.

In short, properly functioning asylum systems assist States to comply with their obligations to deny a “safe haven” to persons responsible for terrorist acts, and to ensure that refugee status is not granted to asylum-seekers who were involved in such acts, as required under Security Council resolutions 1373 (2001) and 1624 (2005).

Put another way, compliance with international refugee law can well serve States’ security and law enforcement concerns.

Erika Feller’s Speech