The Provision of Social Security Rights for Refugees in the Declaration of Human Rights - Research Paper Example

 The citizenship status of an individual generally determines the rights he is entitled to within the legal system he functions in. A person who is located in the country of which he is a citizen would enjoy the full measure of the civil rights granted under his country’s laws. On the other hand, if he were in another country, then his rights are limited to those accorded non-citizens in that particular legal system. There are instances, however, when international conventions or agreements to which the state is a signatory would grant to non-citizens certain rights or privileges normally reserved for citizens of the host state. Signatory-states are compelled to observe the provisions expressed in such conventions or treaties, with the understanding that its own citizens shall be granted the same rights and privileges by its co-signatory states. One such situation where rights of non-citizens are protected by international convention is the entitlement of refugees to social security in the host country where they have sought refuge. While obvious merits are attributed to this measure, there are likewise drawbacks which this study intends to point out. The bases in international and domestic law shall first be examined in order to define the extent of these rights and entitlements, and incidences in case law pointed out to discuss particulars in the application of the law. Finally, an academic article will be discussed that highlights specific problems related to the refugee situation, thereby putting the theory of refugee rights into real-world context. The legal basis of refugee rights to social security The right of refugees to be entitled to social security in their host country is enshrined in the Convention relating to the Status of Refugees. The Convention was adopted on 28 July 1951 by the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. It entered into force on 22 April 1954. The salient provisions are contained in Article 24, entitled Labour legislation and social security. The important provisions of the article follows, which shall be discussed in greater detail later in this discussion. Article 24: Labour legislation and social security 1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: a. Remuneration and other such benefits awarded by labour legislation b. “Social security (legal provision in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency covered by a social security scheme), subject to the following limitations: i. There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition; ii. National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the awards of a normal pension.” [This portion discussed in detail below.] 2. “The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.” 3. “The Contracting States shall extend to refugees the benefits of agreements concluded between them, at present and in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions that apply to nationals of the State”; 4. “The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-contracting States.” 1 In the application of these provisions, refugees are to be accorded “most favoured nation” (MFN) treatment with respect to employment, and treatment accorded to aliens in general with regards to housing and education other than elementary education. 2 Equal treatment with nationals or “national treatment” is applied with respect to elementary education, public relief, and social security.3 It must be taken into account, however, that with the exception to the right to public education, the abovementioned rights are limited to refugees that are “lawfully staying” in the contracting State. “Lawful residence” as distinguished from “simple presence” or ‘lawful presence” necessitates that proof be adduced by the refugee that his stay is much more than mere “lawful presence”. The two are different, because while “lawful presence” may admit of temporary sojourn in the State within the parameters authorized by law, “lawful residence” may be presumed in the face of “evidence of permanent, indefinite, unrestricted or other residence status, recognition as a refugee, issue of a travel document, grant of a re-entry visa” 4. Such presumption, while strong, is not conclusive. There are other international laws that grant special rights to particular classes of individuals. One of theses is the UN Convention on the Rights of the Child (CRC), Special rights of child refugees, applicable for those under 18. Article 22 of this law mandates that states who are parties to the Convention shall take the measures appropriate in order to ensure that a child who is a already a refugee, or who is in the process of acquiring or seeking to acquire refugee status, receives “appropriate protection and humanitarian assistance in the enjoyment of the applicable rights set forth in the Convention, and in other international human rights or humanitarian instruments” of which the state is a signatory. These rights accrue to the child whether or not the child is accompanied or unaccompanied by parent or guardian. The child is also accorded rights to social security under Article 26 of the Convention5. Article 26 states: 1. State parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law; 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.6 In the European Union, the European Parliament had recently endorsed the Residence rights for refugees and people under international protection, dated 14 December 2010. Under this legislation, refugees and other beneficiaries of international protection shall be entitled to acquire long-term resident status in the EU, under new rules agreed by the MEPs and the EU Council of Ministers. This piece of legislation constitutes an important amendment of Council Directive 2003/109/EC. This directive which is currently in force governs the status of third-country nationals who are long-term residents, refugees, and beneficiaries of subsidiary protection. Such individuals are not currently entitled to acquire long-term resident status; however, the amended directive intends to remove this distinction. The new rules give refugees the same rights as other third-country nationals with long-term resident status. This would include free movement within the EU and the right to take up residence in a Member State other than that in which they are recognized. Conditionally, they may also be entitled to equal treatment with citizens in the EU Member State in which they have taken residence, in a wide range of economic and social areas, among which are education, access to the labour market, and social security benefits. The new rules also strengthen safeguards against “refoulement” or expulsion. The Directive mandates compliance within two years; however, UK, Ireland and Denmark have opted out of the application of this directive.7 There are many examples of domestic law that embody the spirit of the UN Convention. For instance, in the United States, the US Social Security Administration had published new entitlement for Supplemental Security Income (SSI) for Noncitizens. Under this measure, the benefit of supplemental security income is afforded to non-citizens living in the US who are classified under certain categories. Some refugees, depending on their qualifications, are eligible for SSI payments but this benefit is limited to a maximum of seven years depending on the individual’s particular non-citizen status.8 UK case law on social security rights of refugees The treatment of case law in this essay, as well as the succeeding literature review, intends to highlight the issues that arise out of a clash between domestic law and the Convention granting refugees social security rights. For brevity, the case law shall focus on the rationale for the provision of social security entitlements to non-citizens protected by law. Bearing in mind that social security is a basic human right of every member of society9, the question remains as to what qualifies a person as a member of society, and to what extent Article 24 (1) (b) (i) and (ii) is to be implemented. One of the earliest pronouncements about the extension of the benefits of social security to non-citizens was articulated in the opinion of Lord Ellenborough C.J in Reg v Inhabitants of Eastbourne (1803) 4 East 103, 107: “As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving.”10 In Secretary of State for the Home Department v Q, Case No: C2/2003/0378/A/B Neutral Citation Number [2003] EWCA Civ 364, dated 18th March 2003, the issue concerned the efficacy of section 55 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) that had come into force on 8 January 2003. Prior to January 8, any person seeking asylum without the means to secure accommodation or support himself financially would tend to apply for state support, through assistance from the Secretary of State who alone had to power to do so. However, Section 55 of the 2002 Act provided that the Secretary of State may no longer provide or arrange for the provision of support for persons claiming asylum, in the instances that he (the Secretary of State) “is not satisfied that the claim was made as soon as reasonably practicable after the person’s arrival in the United Kingdom” The legislative history of this case is as follows: In 1986, the Social Security allowed for those with minimal or no income, including asylum seekers, to claim income support while awaiting the determination of their claims to asylum. In 1993, the Asylum and Immigration Appeals Act first provided express statutory protection for asylum seekers, which included protection against refoulement for the duration of the processing of their claims. In 1996, new regulations were introduced that purportedly reduced entitlement to income support to asylum seekers on “in-country” applicants for asylum (i.e., those who claimed asylum upon entry into the U.K. However, in R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, the Court of Appeal held that the 1996 regulations were ultra vires because they rendered nugatory the rights conferred by the Asylum and Immigration Appeals Act of 1993. The opinion by Simon Brown LJ was instructional in this regard: “After all, the Act of 1993 confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some life so destitute to my mind no civilised nation can tolerate it.” Comparing the provisions of the Act of 1993 with Article 24 of the UN Convention of 1951, Simon Brown LJ acquiesced that Article 24 did not create any obligation to provide for social benefits for asylum seekers until they are officially recognized as refugees. However, he observed: “But that is not to say that up to that point, their fundamental needs can properly be ignored. I do not accept they can. Rather, I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. If and when that status is recognised, refugees become entitled under Article 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims.” In 1996, section 11 of the Asylum and Immigration Act expressly conferred the power to make Regulations that refused entitlement to income support for asylum seekers who did not claim asylum at the point of entry. This is not iron clad, however, as the Appellate Court, in its ruling in R v Westminster City Council ex parte M (1997) 1 CCLR 85, held that asylum seekers were still entitle to relief under section 21 (1) (a) of the National Assistance Act of 1948. Section 21 (1) (a) provided that local authorities are empowered to provide residential accommodation for persons “who by reason of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them.” The foregoing case law in all instances complied with Article 24, and further developed the rationale for the extension of social security to refugees not yet accorded asylum, because Article 24 allows for the right to be given only to refugees already accorded asylum, not before. Ultimately, while legislation withdrew the rights it earlier accorded this group of people, it still left another law open through which this group could find relief. This may be seen as an attempt by legislators to reduce the burden on society by reducing the entitlements to non-citizens not protected by the Convention, though the fundamental principle (i.e. social security as a basic human right that affords dignity to the individual) is in theory compromised. By way of comparison, there is relatively recent legislation in the United States similar to the UK Act of 1993. The Social Security Income Extension for Elderly and Disabled Refugees Act was signed into law by President George W. Bush on 30 September 2008. The law entitles low-income elderly and disabled refugees, asylum seekers, and victims of trafficking to be eligible for Supplemental Security Income (SSI) benefits for a period of up to nine years. The entitlement is conditioned, however, on the application for citizenship by the individual during the period of eligibility.11 While the entitlement does not accord social security entitlement to asylum seekers, it does address the most basic need of the individuals in transition, which is subsistence. Social security is still reserved for the refugee already extended asylum in the U.S. Individual’s contributions as determinative of social security benefits Generally, the refugee is entitled to receive only the same access to social security as is enjoyed by citizens of the host country. However, this is qualified by clauses (i) and (ii) of Article 24 (1) (b) [quoted earlier], that are read in conjunction with Arts. 24 (3) and (4). The inclusion of these rules were in consideration of the general expectation of states that when an individual has contributed to the social security system of more than one country, a set of benefits accrue to the individual (e.g. old age or retirement benefit) that are cost-shared by the different governments under which entitlements to the individual have accrued. According to the International Labor Organization, “agreements were often concluded in order to enable workers who moved from one country to another to accumulate the insurance benefits earned in both countries. The two countries concerned would each agree to pay their share according to the time worked in their territory.”12 Ordinarily, therefore, if an individual had worked and contributed for 20 years in one country and then moved to another country and worked and contributed there for 10 years, then it is to be expected that the two countries would proportionally contribute to the cost of social security benefits of the individual. However, almost all refugees are unable to recover the benefits on their contributions in the state from which they came, because it is possible that partner states will not be willing to cost-share the social security provided by the asylum country. The rupture relationship between the refugee and his country of origin means that there is no guarantee that the country of origin would willingly contribute to the refugee’s social security benefit.13 Real world situation – the Afghan refugee situation The legal principles just discussed pertain to the principles of social justice and human rights that in theory is sound and well-founded. However, the practical considerations can present daunting problems for all, and particularly for the host country concerned, if the refugee situation extends to the long-term. The refugee suffers the hardship of displacement and uncertainty. Administratively and economically, the host country also finds itself in a situation which it could not opt out of but which strains its resources and capacities. Protracted situations are exemplified by the Afghan crisis, which severely taxed the host society as it did the refugees themselves. There was an initially warm and generous reception of Afghan refugees in the 1980s, but at the turn of the decade, the Afghan refugees increasingly received the brunt of the blame for the growing ills in Peshawar and other cities. The refugee situation was blamed for the decline in the Pakistani economy, as well as other social ills such as crime, drug abuse and prostitution. As international assistance dwindled due to donor fatigue, the Pakistani economic system felt the weight of having to provide the economic resources needed to support the Afghan refugees. In the labor market, Afghan workers became a controversial issue because the presence of a large, cheap labor pool kept wages down and pushed the lower level of Pakistanis out of work. Unemployment rose, and the increasingly tenuous situation pit refugees against citizens. Pakistani citizens and Afghan refugees became competitors for scarce resources, limited jobs, and social services, inflating rents as more refugees dispersed towards the cities, and generally crowding out the citizens. Because of this, resentment increased between Pakistanis and Afghans. 14 Conclusion The Afghan refugee case puts into stark contrast the need to comply with Article 24 and upholding the dignity of the refugees, and the need to preserve the economic health of the State which is compromised by a protracted, large-scale refugee problem. I agree with the soundness of the UN Convention that institutionalised the provision of social security rights for refugees, enshrined as this right is in the Declaration of Human Rights. There is a moral obligation to extend social security to refugees; however, as with most laws founded on higher principles, the application is beset with practical problems. For instance, there is the concern raised by the development in English case law, of balancing the refugees’ rights with the welfare of the State – even its survival, as in the case of Pakistan and the Afghan refugees. In fact, the rights of refugees embodied in Article 24 may exceed the rights of the citizens themselves, insofar as it is construed to guarantee social security for refugees even when part of their contributions were to their home country, and that the host state will now finance for their benefits when their former contributions did not accrue to it. Thus, while I agree with the law, I do not agree with the manner it is being implemented. Structures would have to be put in place by the international agencies and organizations so that part of the burden to the host state may be alleviated, and the dignity and quality of life of the refugees may be preserved. Endnotes Read More