Are Issues of Immigration and Refugee Status, Questions Concerning Human Rights - Essay Example

Are Issues of ‘immigration’ and ‘refugee status’, questions concerning human rights or just the basic rights of citizenship? The concepts of immigrants (or immigration), refugees (or refugee status), human rights and citizenship rights (or basic citizenship rights) are considered in this essay, each capable of a variety of interpretations. It is essential to understand of each of these concepts clearly before attempting to analyse their interrelationship. ‘Immigration’ and ‘refugee status’ are considered from the point of view of ‘rights’. A comparison of the nature of rights of ‘immigrants and refugees’, rights associated with ‘immigration’ by itself and with ‘refugee status’ by itself are the three possible ways of studying the issue. Immigration: Immigration is the unidirectional inward movement of individuals into a population or population area, departure from ones native land to settle in another, or “entrance of a person (an alien) into a new country for the purpose of establishing permanent residence”. 1 Reasons for immigration are most often economic, though religious and political factors may also be present. Reasons such as unbearable economic conditions and poor future prospects in the home country are called “push factors”.2 Immigration for education, retirement migration to countries with lower living costs and migration for reasons of health are examples of ‘pull factor’ immigration. Immigration due to persecution, abuse, ethnic cleansing and war risks are examples of push factor immigration. Some immigration takes place for personal reasons, such as for being with family or loved ones. Very wealthy persons move to countries with liberal tax structures. Highly skilled persons or those with exceptional talent are often invited to immigrate. Refugees: A refugee is defined as “One who flees in search of refuge, as in times of war, political oppression or religious persecution”. 3 The definition of refugee now includes persons fearing persecution for ethnic or religious reasons, nationality, group membership or political opinion, and persons who have fled from their homes to other places in their own countries. Refugees are displaced persons, but not all are included in the definition of "refugee" under international law, such as internally displaced people. Refugee status is determined on the basis of interpretation of persecution and the grounds for determining status. Persecution has meanings that are liable to different interpretations. Grounds for determination of refugee status depend on the grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion. 4 Human rights: Human rights are ‘The basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law” 5 “Human rights have been classified in terms of three “generations” of human rights. The first generation of civil and political rights includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social and cultural rights includes the right to work and the right to an education. The third generation of solidarity rights includes the collective rights to political self-determination and economic development”. 6 Human rights help to protect people everywhere from political, legal and social abuses. The right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity are some examples of human rights.7 The statements of human rights are addressed to governments, requiring compliance and enforcement on their part. The Universal Declaration of Human Rights (1948)8 lists more than two dozen specific human rights that countries are expected to respect and protect. They consist of several families of rights: security rights, due process rights, liberty rights, political rights, equality rights, social (or "welfare") rights. Human rights deal with how people should be treated by governments and institutions. They are not moral norms applying to interpersonal conduct. According to Thomas Pogge, "to engage human rights, conduct must be in some sense official".9 Human rights apply to all countries and all people. The duties and responsibilities of ensuring human rights are obligations of the government of the country in which the person is located. Human rights are also believed to have deeper roots and that people are born with rights that are innate or inherent. Human rights are believed to be specific and problem-oriented 10 Citizenship: Citizenship is defined as the “Relationship between an individual and a state in which the individual owes allegiance to the state and in turn is entitled to its protection. In general, full political rights, including the right to vote and to hold public office, are predicated on citizenship. Citizenship entails obligations, usually including allegiance, payment of taxes, and military service. Citizenship may normally be gained by birth within a certain territory, descent from a parent who is a citizen, marriage to a citizen, or naturalization”. 11 Citizenship is not just a question of rights alone and duties or obligations are an integral part of the concept of citizenship. The right to vote is one the defining rights of a citizen in democracies. Citizenship also confers a right to obtain an identity card or passport, and not just a travel document. Other citizenship rights include rights of language, equality, legal access, mobility, freedom of religion, expression, assembly and association. Citizenship also involves responsibilities such as an obligation to respect the rights and freedoms of others, to obey the country’s laws, to participate in the democratic process, allegiance, payment of taxes, and military service. Many citizenship rights are considered inalienable, even independent of the government. In democracies, governments exist to serve the people; not the other way around. The people are citizens, not subjects. The state protects the rights of citizens and in return, the citizens give the state their loyalty. Immigrants and Refugees: The noticeable characteristic of voluntary immigration is that the immigrants are looking ahead to the future rather than at the past. Refugees however usually long to return to their native country if and when conditions become conducive, and are therefore usually looking back, rather than forward. Despite an element of uncertainty, especially among the poor and unskilled immigrants, in general they possess a positive attitude and are willing, even eager to adapt to changed environments. This positive attitude is usually lacking among refugees. Immigrants usually face resistance from the local population in a phenomenon known as ‘nativism’. They are seen as threats to jobs and local culture and as undeservedly sharing local infrastructure and facilities.12 Refugees on the other hand are seen as less of a threat. In some societies, immigrants have actually swamped the locals, inviting sharply divisive reactions. Immigration is usually governed by internal laws of the host country, and international laws have only a limited role to play unlike in the case of refugees who are protected by international law. Internal laws in general treat invited immigrants with comparative leniency. The unskilled and poor immigrant particularly those of a different racial or ethnic background, are viewed as necessary burdens of the host country’s colonial past, or as beneficiaries of self righteous tolerance of a necessary evil. This kind of discriminatory treatment is usually not found in the matter of refugees, probably because they are often part of a mass exodus, while immigration usually takes place as individuals or in small groups. Individual refugees are called asylum seekers and they have to individually prove that their fear of persecution is well-founded. They usually have to go through a legal procedure specified by the host country before being granted refugee status. However, during a mass exodus, individual screening may not be possible and status may be determined for the group itself. Though the right to seek asylum is recognized in international law, nations are not obliged to provide it. Such persons may be offered temporary protection when a sudden mass influx of people takes place, without any guarantee of permanent asylum. Immigrants cannot claim any such right and are entirely at the mercy of the host country. Three possible solutions are considered concerning the future of refugees: Voluntary repatriation, in which the refugees return to their home country because the cause of exodus has ceased to exist Local integration, in which the host country allows them to stay on and assimilate themselves into the local population Resettlement in another country if repatriation is not feasible and local integration is not allowed. For immigrants, the only alternatives are either being granted permission to stay on or being sent back to where they came from, but one of the fundamental principles in international refugee law is the prohibition of the forced return of refugees. In this respect, refugees fare better than immigrants do and there is a real danger that failed immigration may invite negative reactions from the host country when they are forcibly repatriated. Most refugees undergo prolonged periods of uncertainty without being able to find a durable solution. They undergo deprivation of their rights to move and work or avail of educational and recreational facilities. Refugee status ceases to apply when the migrant is resettled or returns. Some countries even detain asylum seekers upon arrival, till their fate is decided. The United Nations Convention Relating to the Status of Refugees enumerates certain rights that refugees are eligible to, once recognised as refugees. Rights usually focus on a freedom, protection, status, or benefit for the right-holders13 . They include the right to be granted identity papers and travel documents for travel outside the country, and the same rights as nationals in respect of the exercise of religion, religious education, access to courts, legal assistance, elementary education, public relief and assistance, social security, protection of intellectual property, literary, artistic and scientific work and equal treatment in tax matters. In most other matters, their rights are limited to the extent available to foreigners or aliens in the same or similar circumstances. 14 Immigrants however cannot claim any such rights. The actual practice of these provisions varies among countries and even between situations. Refugees are usually the unfortunate victims of unanticipated larger forces and events. Most refugee situations are involuntary, and rather than a positive, forward looking attitude, most refugees are primarily concerned with survival. These attitudes change only after any one of the three possible solutions to the issue is implemented. Usually, the host country’s governments decide on whether a person is a refugee or not, and to that extent immigrants and refugees are dependent on the host government to decide their fate. Refugees may be treated sympathetically if there are common emotional bonds due to race, ethnicity or religion. The treatment could be harsh if the host country has very restrictive immigration policies or is favorably inclined towards the cause of the refugee exodus. The treatment of refugees is governed by international laws that ensure them protection and minimum rights. The Office of the United Nations High Commissioner for Refugees (UNHCR) was established in 1950 and the United Nations adopted the Convention Relating to the Status of Refugees (the Refugee Convention) in 1951. It includes provisions for civil rights and protection against the expulsion of refugees except on grounds of national security or public order. Expulsion or return of the refugees is expressly forbidden where the life or freedom of the refugee will be threatened. Immigrants have no such protection. Refugees in general receive more sympathetic treatment than immigrants do, probably because they are seen as victims of circumstances beyond their control. They are also not seen as threats in the long run, since refugees usually prefer to return to their home countries when the situation permits such return. Human rights are therefore universal, while citizenship involves duties and responsibilities too. Further, while citizenship of a country confers an inalienable right of residence in that country, residence of immigrants is subject to conditions set by immigration law. Immigration and refugee status are distinct, one governed by internal laws and the other by international laws. International human rights law now prescribes norms for deciding refugee status, while immigration is governed by internal laws. 15 The only rights common to an immigrant and a refugee are human rights, and to that extent, issues of ‘immigration and refugee status’ are questions concerning human rights rather than just the basic rights of citizenship. However, there is some overlap, in that basic citizenship rights also involve human rights. Rights associated with immigration: Freedom of movement applies to movement within national borders, usually limited to citizens. International human rights laws do not provide for the right to enter another country. Citizens may not be prohibited from leaving their country, but entry of non-citizens is not a right under any international law or treaty. Thus, immigration is not a right under any international law or treaty. Immigration aims at permanent residence in the host country, unlike tourists and casual visitors. Immigrants therefore are under obligation to conform to the stipulations that the host country may impose, and they are often stricter than would be for its own natural citizens. In the case of illegal immigrants or immigration for reasons other than the apparent ones such as evasion of criminal justice, the issue of rights assumes a very low priority. In fact, immigrants falling under this category usually receive the barest consideration in the matter of rights. They are afforded the minimum human rights and the question of citizenship rights does not arise at all. The very legality of their mode of entry is under question. In any case, a right to entry will not assure an immigrant citizenship. To the extent that human rights are universal and applicable to all people, they are applicable to immigrants as well. Legal immigrants become eligible to claim all three generations of human rights, in succession. Beginning with the basic human rights to life and liberty, it extends to the second generation of rights and finally to the third generation of solidarity rights too. During this progression, issues of citizenship also arise and immigrants are expected to take on the obligations of citizenship simultaneously with acquiring citizenship rights. “Now at the beginning of the twenty-first century, …..though recognizing the need for immigration, …. states are demanding affirmation of belonging and loyalty, leading to greater emphasis on obligations in the practice of citizenship”. 16 However, the test of such loyalty may be less rigorous in the case of invited immigrants. In most cases, their commitment to obligations of citizenship rights is a precondition to getting citizenship rights. Immigrants are willing to make the necessary compromises to conform to the obligations of citizenship, which is the ultimate aim. Most immigration is voluntary and once within the host country, the “push factors” cease to exist and “pull factors” come to the fore. These make the immigrant more receptive to the idea of responsibilities and obligations in conjunction with rights. Immigration considered in isolation is therefore concerned with human rights in the early stages and moves on to the rights of citizenship, along with the obligations of citizenship. Thus, the human rights of an immigrant become that of any other citizen in course of time. The citizenship rights too progress from basic rights to full rights. The families of human rights merge with citizenship rights in course of time. As a consequence of the globalization of business, countries feel the need for specialist workers for limited durations of time. They are now classified under a new category of guest workers, who enjoy the full range of human rights, and some of the rights enjoyed by citizens, especially those guaranteeing justice and equality. Rights associated with refugees: Refugees are most often victims of persecution, actual or perceived. Their human rights are at risk, which causes them to be refugees. All international laws and treaties concerning refugees therefore focus on restoring human rights to refugees. Human rights are high-priority norms of "paramount importance" and their violation "a grave affront to justice" 17. Sometimes, they even fare better than immigrants do, such as in the right to obtain travel documents and the right not to be forcibly repatriated to their home country. Becoming a refugee is usually not voluntary. Permanent residence in the host country is only one among three possible solutions for settling the issue. A host society does not expect anything from a refugee, and a refugee is not under any obligation other than not being a cause of disorder. The question of citizenship does not therefore arise at all in the early stages. Citizenship rights come into play when the solution is local integration. The laws of the host country become relevant to a refugee only when local integration is considered. Resettlement in a third country, involves the same issues of citizenship in a different environment. However, refugees who are allowed to integrate enjoy special privileges due to reasons of being identified as victims, or because they enjoy emotional bonds based on race, ethnicity or religion. Such local integration takes place with far less difficulty than for an immigrant. In some situations, refugee status continues for long, often indefinitely, in isolation from the local population, when human rights continue to apply and citizenship rights are non existent. As long as a person continues as a refugee, human rights alone apply, and its extent, in terms of ‘generations’ and ‘families’ of human rights, depend entirely on the host country and its attitude to the particular group. They are usually limited to the basic rights alone, and access to the full range of human rights specified by international law is missing. “International human rights norms, far from being convenient to states are frequently considered a challenge to their sovereignty”18 However, the application of human rights to refugees depends on the extent of human rights practiced by the country in general. Since the list of human rights is being expanded continuously, it has been suggested that they should only such rights as are feasible in most of the world’s countries.19 The rights of refugee children are another area of ambiguity, with some holding that human rights cannot include childrens rights since young children cannot exercise their rights by invoking, claiming, or waiving.20 To conclude, immigrants and individual refugees or asylum seekers receive almost identical treatment. They enjoy human rights as practiced by the host country. Immigrants are not protected by any international laws and may even be repatriated forcibly. However, once accepted, they enjoy the full range of human rights, and further acquire citizenship rights and responsibilities in a phased manner. Refugees, especially if they are part of a mass exodus, cannot be repatriated forcibly and are eligible for a comprehensive range of human rights guaranteed by international law, though not for citizenship rights. If they integrate with the local community, they become “involuntary immigrants” usually receiving better consideration than other immigrants in the matter of citizenship rights. Bibliography: Works Cited 1. The Columbia Electronic Encyclopedia, Sixth Edition Copyright © 2003, Columbia University Press. 2. http://www.ac.wwu.edu/~patrick/geo201/chap3-99.htm 3. The American Heritage® Dictionary of the English Language, Fourth Edition Copyright, © 2004, 2000 by Houghton Mifflin Company 4. Al-Omari, Ghaith. The Legal Protection of Refugee Women: RPN 20, November 1995. (accessed December 24, 2006) 5. The American Heritage Dictionary of the English Language, 4th edition, published by Houghton Mifflin Company. 6. Britannica Concise Encyclopedia, published by Encyclopedia Britannica, Inc. 7. Cranston, M. 1973. What Are Human Rights? London: Bodley Head 8. http://www.un.org/Overview/rights.html 9. Pogge, T. 2000."The International Significance of Human rights," Journal of Ethics 4: 45-69 10. Dershowitz, A. 2004. Rights from Wrongs: A Secular Theory of the Origins of Rights. New York: Basic Books 11. Britannica Concise Encyclopedia. © 2006 Encyclopedia Britannica, Inc. 12. http://www.signonsandiego.com/uniontrib/20051017/news_lz1e17kerpen.html 13. Brandt, R. B. 1983. "The Concept of a Moral Right," Journal of Philosophy 80: 29-45 14. Home Page, HREA: (accessed December 24, 2006). 15. International Journal of Refugee Law Volume 11, Number 2 Pp. 251-289. 16. Citizenship, Migration and the Reassertion of National Identity. Eleonore Kofman – Middlesex University, School of Health and Social Sciences, Enfield, UK 17. Cranston, M. 1967. "Human Rights, Real and Supposed," in D. D. Raphael, ed. Political Theory and the Rights of Man. London: Macmillan 18. Steiner, H. and Alston, P. eds. 2000. International Human Rights in Context. Oxford: Oxford University Press 19. Nickel, J. 2006. Making Sense of Human Rights. Second edition. Oxford: Blackwell Publishing 20. Hart, H. 1955. "Are There Any Natural Rights?" Philosophical Review 64: 175-191 Works Referred To 21. Donnelly, J. 2003. Universal Human Rights in Theory and Practice. 2nd edn. Ithaca, New York and London: Cornell University Press 22. Nickel, J. 2000. "The Rights People Have," in Emily Baker and Michael Richardson 23. (eds.), Ethics Applied. Boston: Pearson Education. 24. Home Page, Plato Stanford: (accessed December 26, 2006). # Read More