Multiple Nationality and Refugees

The following blog post summarizes Professor Jon Bauer’s Multiple Nationality and Refugees (47 Vand. J. Transnat’l L. 905 (2014)). Read the full article here.

Asylum seekers with more than one nationality—“multiple nationals”—often find themselves barred from asylum in the countries where they have the best chance of starting a new life. Most nations’ refugee protection laws are based on the definition of “refugee” provided by the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. This definition expressly excludes persons with more than one nationality from obtaining asylum, unless the individual has a well-founded fear of persecution in all their countries of nationality. Under this approach, the asylum claims of multiple nationals must be denied even when they have no real ties to their country of second nationality and have compelling reasons for seeking asylum elsewhere. The results can be startling: in one case, a Jewish citizen of Azerbaijan who fled religious persecution and sought refuge in Canada, where her daughter lived, was denied asylum on the ground that, as a Jew, she had a right to citizenship in Israel—a country where she had never lived and in which she had no relatives or friends.

The United States omitted the Convention’s exclusionary language regarding multiple nationals from the 1980 Refugee Act. Initially, this omission was understood to mean that the United States would offer asylum to multiple nationals, as long as they had not “firmly resettled” in a second country of nationality before arriving in the United States. However, in recent years this view has been abandoned by the immigration agencies, which have read the Act as if it included the Convention’s exclusionary wording. The Board of Immigration Appeals has justified its restrictive reading of the law by reasoning that the core purpose of asylum is “to protect [refugees] with nowhere else to turn,” not provide a “broader choice of safe homelands.”

Professor Bauer argues against the prevailing view. He proposes that multiple nationals should be allowed a degree of self-determination regarding where they seek asylum so that they may relocate where they have the best chance of rebuilding the social and political community ties they lost in fleeing their home. With regard to U.S. law, Professor Bauer argues that the immigration agencies have misread the statute, the language of which clearly indicates that multiple nationals facing persecution in any one country of their nationality are “refugees” eligible for asylum. This reading is supported not only by the text of the statute but also by the Refugee Act’s legislative history and historical context. Congress meant to continue longstanding U.S. policies that had allowed multiple nationals to enter as refugees as long as they had not actually resettled in another country before arriving in the United States. In omitting the Convention’s exclusionary language, the Refugee Act’s drafters were particularly concerned with ensuring that groups that might have been excluded under the Convention definition—especially Soviet Jews but also those fleeing Northern Ireland—would be able to come to the United States as refugees.

Additionally, Professor Bauer proposes a broader approach to multiple nationals’ asylum claims in other countries that have followed the Convention’s restrictive stance. The core purpose of refugee protection is not only to ensure safety from persecution but also to restore to the persecuted a measure of self-determination and the ability to rebuild their lives. Widely-accepted international principles that have evolved to govern analogous situations, such as where a person could avoid persecution by moving to a different part of their home country, add support for asylum claims not being rejected unless, under all the circumstances, expecting the individual to relocate elsewhere is reasonable. This logic should be extended to asylum applicants with multiple nationalities. Professor Bauer describes steps that the UN High Commissioner for Refugees could take to encourage states to broaden refugee eligibility for multiple nationals and considers the potential role that interpretation of the EU’s asylum directives may play.