Challenging established categories and exploring intersections

Abstract

Although freedom of movement and the right to seek asylum are rights conferred to all persons under the Universal Declaration of Human Rights and other international covenants, it is commonly accepted that today’s nation states may, in the exercise of sovereign powers, regulate and control entry and exit across their borders. However, states are also obligated to respect the principle of non-refoulement, the cornerstone of the international legal framework, enshrined in the 1951 Convention Relating to the Status of Refugees, which forbids states from returning refugees and asylum seekers to territories where their lives and/or freedom would be threatened. As such, a primary concern of many states, particularly so-called ‘destination’ countries (such as those in Europe, or North America) is to separate ‘genuine’ or ‘bona fide’ refugees from other migrants, economic migrants in particular. In the context of today’s mass displacement from countries such as Syria, Iraq and Afghanistan (to name but a few), where the bulk of those displaced first seek protection in neighbouring countries that may or may not be signatories to the 1951 Convention, and where the UNHCR acts as a ‘gatekeeper’, my contribution will aim to examine some of the common notions in migration discourse, as well as the policies and criteria that are used to determine who is a refugee and who gets ‘resettled’ (i. e. access to a third country in Europe, North America or Australia). I argue that some of the limitations and protection gaps in this current framework, particularly when it comes to the seeking of ‘durable solutions’, may indeed contribute to the phenomenon of ‘irregular migration’.