Last month, we observed the disorderly and chaotic end to the War in Afghanistan, where a withdrawal of US-led NATO troops empowered a brutal regime transition by the Taliban. Plagued by unrest, fears of persecution, terrorism, and continued drought, many Afghans have attempted to flee the country as refugees since the takeover in August (10,000 are applying a day for exit visas in Kabul), and close to 560,000 have already been “displaced internally” so far this year. The forced migration of groups as new regimes come and go is nothing new, but the recent events in Afghanistan are unleashing another worldwide refugee crisis not seen since 2015. In this case, what rights are refugees afforded by international law, and how will this play out in the next few months?
The law as it stands
Under the post-war Refugee Convention [1951], the UN defined a refugee as someone who has fled their country due to “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Refugees have good coverage of rights under the Convention, where countries have a duty to grant asylum and offer rights to work, to study, to claim housing and social security support. When a refugee files a claim for asylum in another country, that is when they gain the status of “asylum-seeker”, because they have not yet been granted formal refugee recognition by that State yet, and the privileges that come with that recognition.
There is also the important principle of non-refoulment under the Convention, where both asylum seekers and refugees have the right to be protected from forced return to a country where they face imminent threat or harm in any way “whatsoever”, and where their life would be endangered from being deported back to their country of origin (with certain exceptions).
International law, therefore, does give relevant legal protection to refugees, and it does so because it has broad legal application when intersecting with other human rights laws. For example, in Chahal v. United Kingdom [1996], the European Court of Human Rights ruled where a Sikh man (Mr. Chahal) was pending deportation to India, and claimed he would face torture if he was to be forcibly sent there. The Court applied Article 3 of the European Convention on Human Rights (prohibition on torture) in order to rule in his favour to resist deportation, and thus bolster Mr Chahal’s legal rights because Article 3 was used to bolster the principle of non-refoulment.
The Convention has also been slowly incorporated into UK domestic law in certain cases: in G. v. G. [2021], the Supreme Court recently ruled in the case of a mother who fled South Africa because of her sexuality and took her child, “G” with her to the U.K. While the mother awaited the outcome of her asylum claim, the child’s father made a return order for “G” to be sent back to South Africa. The Court ruled in the mother’s favour, effectively ruling that an asylum seeker can not be removed from a country pending their asylum claim.
However, there is an obvious caveat: the success of refugees depends on the willingness of nation-states to take them in. The UN Refugee Agency found, for example, that in October 2020 (even before the Afghanistan crisis this year), only “54% of Afghan asylum claimants in Europe were granted international protection”.
What does this mean for Afghanistan?
Afghan refugees that can afford to escape will face a myriad of challenges, no matter what route they take out of Afghanistan. Although countries have a “duty” to take in refugees, the hangover from the 2015 Syrian migration crisis teaches us that anti-immigrant sentiment may be ferociously strong in countries that Afghans want to seek asylum in. For example, Turkey’s Erdogan has arrested refugees and protested that he doesn’t want his country to be a “warehouse” for refugees to then flee to Europe; Pakistan says it is struggling already at maximum capacity, and India is facing a dual dilemma with taking in Afghans as well as persecuted Muslims escaping nearby Myanmar.
Can international law still be best applied under these very real, contextual challenges? Europe remains divided on taking in refugees, but big players like Germany and the UK have committed to take in Afghans, with the latter pledging to grant 20,000 people “indefinite leave to remain” under its Afghan Citizens' Resettlement Scheme (ACRS). In this sense, nations need to persuade each other to take their fair share of refugees and live up to their obligations under the Refugee Convention. Going forward, the only addition I would want to see is for climate change and natural disasters to be covered as valid reasons for asylum under the Convention.
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