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This chapter examines the loss and denial of refugee status and its benefits. Most international instruments not only define refugees, but also provide for the termination or denial of refugee status and the withdrawal of protection. The International Refugee Organization (IRO) Constitution, for example, described the circumstances in which refugees and the displaced would ‘cease to be the concern’ of the organization, and excluded various others, including ‘war criminals, quislings and traitors’, and ‘ordinary criminals extraditable by treaty’. Article 14 of the Universal Declaration of Human Rights prohibits invocation of the right to seek asylum ‘in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. These categories have been expanded in other instruments and in State practice so that, in general, refugee status may be lost or denied because of voluntary acts of the individual; a change of circumstances; where protection is accorded by other States or international agencies; and in the case of criminals or other ‘undeserving’ cases.

This chapter evaluates the principle of non-refoulement. In the context of immigration control in continental Europe, refoulement is a term of art covering, in particular, summary reconduction to the frontier of those discovered to have entered illegally and summary refusal of admission of those without valid papers. Refoulement is thus to be distinguished from expulsion or deportation, the more formal process whereby a lawfully resident alien may be required to leave a State, or be forcibly removed. The principle of non-refoulement prescribes, broadly, that no refugee should be returned to any country where he or she is likely to face persecution, torture, or other serious ill-treatment. The chapter examines the sources of the principle; the question of ‘risk’; the personal scope of the principle, including its application to certain categories of asylum seekers; exceptions to the principle; and its operation in the context of extradition and expulsion.

This chapter studies nationality, statelessness, and protection. Domestic law determines the content of nationality, and historically only those elements of nationality bearing on the relations between States were considered of relevance to international law. Questions of nationality, therefore, are in principle within the reserved domain of domestic jurisdiction, even if that leaves many questions open. At one time, it was easier to envisage that the realm of the domestic might not be co-extensive with the realm of the international—that a State’s nationals for the purposes of international law, might yet be divided ‘back home’ into those who did, and those who did not, enjoy the full benefits of civil status. In a post-modern age sensible of human rights, such distinctions, though not unknown, are difficult to justify. If the domestic conception of citizenship did not encompass a sense of protection by the State, including admission or re-admission, then it failed as an instance of nationality in the sense of international law. The chapter then reflects on statelessness in international law and practice. It looks at the elimination and prevention of statelessness and the protection of stateless refugees.

This chapter describes how the main treaties governing the status and treatment of refugees have attracted wide, if not universal acceptance, although they do not in fact either comprehend every refugee known to the world, or, in many cases, offer any but the most basic guarantees. Indeed, both the 1951 Convention and the 1967 Protocol are widely accepted. For those found to qualify, the benefits for which they call are often improved upon in actual practice, and supplemented substantially or filled out by the provisions of regional and related instruments. The Convention and the Protocol represent a point of departure in considering the appropriate standard of treatment of refugees, often exceeded, but still at base proclaiming the fundamental principles of protection, without which no refugee can hope to attain a satisfactory and lasting solution to his or her plight. The chapter examines the provisions of these and related agreements, with a view to determining the appropriate convention standards of treatment applicable to refugees and asylum seekers, whether lawfully or unlawfully in the territory of contracting States.

This chapter focuses on the concept of asylum. The meaning of the word ‘asylum’ tends to be assumed by those who use it, but its content is rarely explained. The Universal Declaration of Human Rights refers to ‘asylum from persecution’, the UN General Assembly urges the grant of asylum and observance of the principle of asylum, and many States’ constitutions and laws offer the promise of asylum, yet nowhere is this act of States defined. A distinction may be made between the clear, discretionary, sovereign right of States to grant asylum without it being considered a hostile act, which other States are bound to respect; and the individual right to asylum, which thus far has only been explicitly recognized in some regional human rights instruments and national constitutions, but not in any treaty applying universally. While individuals may not be able to claim a right to be granted asylum, States have a duty under international law not to obstruct the individual’s right to seek asylum. This includes the obligation to provide access to an asylum procedure (refugee status determination), which necessarily calls into question the legality of non-arrival and non-admission policies increasingly employed by States as tools of migration control.

This chapter explores the development of the principle of non-refoulement beyond the Refugee Convention. In broad terms, this can be described as ‘complementary protection’ because the non-refoulement obligation derives from sources that are complementary to the Refugee Convention. However, though not a term of art, ‘complementary protection’ commonly implies the grant of a domestic legal status as well. Under general international law, the principle of non-refoulement is wider than its expression in article 33 of the 1951 Refugee Convention. While States have always recognized, to varying degrees, the protection needs of people falling outside the ‘refugee’ definition in article 1A(2) of the Convention, it is only in the last 25 years or so that they have begun to articulate such protection as an international legal obligation, rather than as a matter left to the discretion and humanitarian goodwill of national governments.

This chapter provides an overview of the refugee in international law. The refugee in international law occupies a legal space characterized, on the one hand, by the principle of State sovereignty and the related principles of territorial supremacy and self-preservation and, on the other hand, by competing humanitarian principles deriving from general international law and from treaty. Refugee law nevertheless remains an incomplete legal regime of protection, imperfectly covering what ought to be a situation of exception. It goes some way to alleviate the plight of those affected by breaches of human rights standards or by the collapse of an existing social order in the wake of revolution, civil strife, aggression, or disaster; but it is incomplete so far as refugees and asylum seekers may still be denied even temporary protection, safe return to their homes, or compensation. The international legal status of the refugee necessarily imports certain legal consequences, the most important of which is the obligation of States to respect the principle of non-refoulement through time.

This chapter discusses the determination of refugee status. The legal consequences that flow from the formal definition of refugee status are necessarily predicated upon determination by some or other authority that the individual or group in question satisfies the relevant legal criteria. In principle, a person becomes a refugee at the moment when he or she satisfies the definition, so that determination of status is declaratory, rather than constitutive. However, while the question of whether an individual is a refugee may be a matter of fact, whether or not he or she is a refugee within the 1951 Convention, and benefits from refugee status, is a matter of law. Problems arise where States decline to determine refugee status, or where States and the Office of the United Nations High Commissioner for Refugees (UNHCR) reach different determinations.

This chapter explores the nature of movement occasioned by the impacts of disasters and climate change. There is scientific consensus that the effects of climate change are aggravating and amplifying many ‘natural’ environmental hazards. This, in turn, may threaten a range of human rights including the right to life, health, housing, culture, means of subsistence, and the right to be free from inhuman or degrading treatment. Moreover, disasters linked to sudden-onset natural hazards continue to trigger the largest number of new internal displacements annually. The chapter then considers the law as it pertains to internally displaced persons (IDPs), as well as the limits and capacity of the international and regional legal frameworks that may apply to those who were displaced across an international border (refugee law, human rights law, and the law on statelessness). While a number of international instruments now include language on climate change, disasters, and displacement, including the 2018 Global Compact for Safe, Orderly and Regular Migration, more is required to give full effect to these undertakings, both with regard to the capacity to anticipate displacement, and to determine what kind of ‘protection’ is called for, by whom, and where.

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

This chapter addresses international cooperation, protection, and solutions. ‘Protection’ is useful shorthand to describe the complex of obligations derived from general international law and from international refugee and human rights law. ‘Protection’ is often an end in itself, but it also has a goal beyond that moment, which is a durable solution in which refugees can live in safety and with dignity, not subject to arbitrary expulsion, discrimination, or alienation. ‘Solutions’, in turn, is the overarching objective of the international refugee regime itself, premised upon international cooperation to solve humanitarian problems, which is among the purposes and guiding principles of the United Nations. The chapter considers the rights background which undergirds the situation of the displaced, and then examines the three traditional durable solutions of voluntary repatriation, local integration, and resettlement, as well as labour mobility and other complementary pathways that may secure refugees admission to, and inclusion in, a State.

This chapter assesses international protection. The lack or denial of protection is a principal feature of refugee character, and it is for international law, in turn, to substitute its own protection for that which the country of origin cannot or will not provide. Non-refoulement is the foundation stone of international protection. The first intergovernmental arrangements on behalf of refugees were contemporaneous with the establishment of various international institutions charged with their implementation. The chapter then looks at the office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), and other organizations and agencies. It also considers the protection of groups of refugees who face particular vulnerabilities, including women refugees, child refugees, and refugees with disabilities. Each group is protected by one or more particular human rights treaties, which recognize their rights, and members of these groups are often subject to discrimination or otherwise marginalized.

This chapter details how, under general principles of international law, State responsibility may arise directly from the acts and omissions of government officials and agents, or indirectly where domestic legal and administrative systems fail to implement the observance of international standards. The fact that the harm caused by State action may be inflicted outside the territory of the actor, or in an area identified by municipal law as an international zone, in no way diminishes the responsibility of the State. While the principle of non-refoulement does not entail a right for refugees to be granted asylum in a particular State, it does require States to ensure that whatever course of action they adopt, refugees are not sent—either directly or indirectly—to a place where their lives or freedom would be in danger on account of one of the five Convention grounds, or contrary to the principle of non-refoulement under human rights law. In order to give effect to those obligations consistently with the general rule, ‘States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures’. The chapter then looks at the relationship between the principle of non-refoulement and flight by sea.

Full presentation of constructs and subconstructs. (DOCX 536 kb)

Medline search strategy. (DOCX 27 kb)

CFIR constructs represented within the different reviews. (DOCX 33 kb)

Consolidated Framework for Implementation Research construct descriptions. (DOCX 21 kb)

Full quality assessment results. (DOCX 83 kb)

Characteristics of included studies. (DOCX 69 kb)