Is the perceived dichotomy between an ‘economic migrant’ and a ‘refugee’ really valid?

Economic migration can be forced, not only voluntary. Severe economic deprivation mostly is imposed politically, not by natural conditions outside the political community. The distribution of severe poverty then is a result of discrimination. Discrimination is also the real grounds of persecution. Persecution or a well-founded fear of it is the basis for recognizing Refugee Status. From even this simple explanation of connected causes and effects, it can be seen that the dichotomy between “economic migrant” and “refugee” is not really solid.

‘Forced economic migration’ should be defined as:

When a person has suffered OR has good reason to fear suffering such severe economic deprivation that it amounts to a violation of the right to life, or to enslavement, or to cruel, inhumane or degrading treatment, or the state of severe economic deprivation gave them strong reason to fear serious violence, AND that severe deprivation or fear of deprivation is causally connected to the government (or the regime in control) in their country acting in violation of Arts. 1.1-2 of the CESCR 1969 (whether their State is a party to the convention or not), EITHER out of discrimination for the five reasons for persecution as in the 1951 Refugee Convention OR just out of corruption or for any other reason, then they should be granted Subsidiary Protection.

This is not yet explicit in statute law, but arguably is explicit enough in case law. I’m arguing that it should be made explicit by amending legislation, although current political trends are heading the opposite way.

‘Poverty’ is defined as “a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.” (U.N. Doc. E/C.12/2001/10, Poverty and the International Covenant on Economic, Social and Cultural Rights, 4 May 2001, § 8)

‘Severe poverty’ is poverty to the extent that the real effects on the person are equivalently severe as would be considered “serious harm” (Qualification Directive, Article 15) if the effects were acutely and directly inflicted on them by violence. E.g. living in such poverty that it seriously affects a person’s health, to the degree that if equivalent harm was done to them by acute means a court would find a violation of ECHR 3 or CFR 4.

Secondly, severe poverty is in reality causally linked to a wide range of violations of fundamental and civil and political rights, including torture, which are within current legislation explicitly grounds for granting asylum:

“ States have a duty not only to refrain from such acts themselves, but also to prevent and suppress human rights violations between private individuals as well as to provide redress to victims of abuse perpetrated by non-state actors. Acting otherwise would be a breach of article 1 of the CAT: the occurrence of such violations would imply acquiescence by the State in the meaning of article 1.”

Severe poverty can amount to a violation of ECHR Article 3, protection from cruel inhumane or degrading treatment or punishment.

49. From the point of view of Article 3 of the Convention, we can and should raise questions as to the suitability of this provision as a basis for a State duty towards persons in difficulty. It would be unthinkable not to consider that extreme poverty “humiliates the individual in his own eyes and in the eyes of others” and “is such as to arouse feelings of fear, anguish and inferiority”. As P.-H. Imbert put it: “Is it really so ridiculous to think that if corporal punishment in schools is considered to be degrading, the same should apply to the situation of someone who ‘lives’ in a slum?”76.
50. That said, the absolute nature of the prohibition contained in Article 3 — it means that the situations coming within the ambit of that provision are not normally justified on any grounds, including budgetary grounds 77 — calls, almost as a matter of necessity, for a certain degree of restraint in applying it in practice, in other words, for a raising of the threshold of human suffering beyond which Article 3 will be held to apply.
52. Lastly, another consequence of the economic crisis which the Court has dealt with in the context of Article 3 is the increasing influx of migrants and asylum seekers. Thus, in the M.S.S. v. Belgium and Greece judgment of 21 January 2011, in which an asylum seeker, because of the authorities’ inaction, had found himself living on the streets for several months with no resources or access to sanitary facilities and without any means of providing for his essential needs, the Court found that the applicant had been the victim of humiliating treatment showing a lack of respect for his dignity and that the situation had aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. The Court considered that such living conditions, combined with the prolonged uncertainty in which he had remained and the total lack of any prospects of his situation improving, had attained the level of severity required to fall within the scope of Article 3 of the Convention 83.

http://www.ejtn.eu/Documents/Administrative%20Law%202015/5)%20ECtHR%20for%20Judicial%20Trainers/ECHR,%20economic%20crisis%20and%20poverty%20(paper).pdf

Particularly relevant to CoE States Parties commissioning Libya or Niger or Chad or Mali to detain asylum seekers and migrants long-term to stop them from leaving and prevent them approaching EU frontiers in order to preclude them from applying for asylum:

“Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world”

States’ obligations to ensure their citizens’ economic, social and cultural rights are realized as much as possible and without discrimination

“1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
“He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live.[…] such living conditions […] have attained the level of severity required to fall within the scope of Article 3 of the Convention.” — MSS v Belgium and Greece paragraphs 254 and 2632

ECRE summarises judge Pinto de Albuquerque‘s dissenting opinion in ECtHR, Grand Chamber, S. J. v Belgium, Merits (struck out), 19.03.2015, Application no. 70055/10, concluding:

“Moreover, it contradicts the central tenant of Article 3, espoused in Soering v UK, that removal is prevented where there is uncertainty about the possibility of ill-treatment in the receiving State and that the burden of proof is on this State to demonstrate that an Article 2 or 3 violation will not occur. N v UK instead reverses the burden on to the applicant to prove that he/she will face ill-treatment or death. Concluding his Opinion Judge Pinto de Albuquerque questions “how many N.s have been sent to death all over Europe since the judgment and how many more will have to endure the same fate until the “conscience of Europe” wakes up to this brutal reality and decides to change course.”

In the judge’s own words:

“the Court agreed to her removal from the Contracting State in spite of her poor state of health and the doubts about the possibility of her obtaining the appropriate health care in the receiving State. Unsurprisingly, N. died shortly after her removal to Uganda.”
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