REFUGEES OR MIGRANTS?

The situation in Venezuela is already known by all. The breakdown of the democratic order, the economic crisis, and the coercion of freedoms have forced millions of Venezuelan citizens to leave their land, their homes, their families, their habitat, and migrate to different continents, being the closest States the ones that have received our Latin American brothers by thousands and we continue to do so.

Peru is one of those countries. It is estimated that nowadays more than 800,000 Venezuelan citizens have entered into our territory, thanks to the “open door” policy implemented by the State at first. However, as a result of the initial requirement to present a valid passport and not simply an identity card, as occurred in the previous year, the income was considerably reduced in recent months. It is not that they do not reach our borders, they arrive and by thousands, but today they cannot enter the country without current and valid documentation, and many are waiting at the borders to be received as refugees.

LET'S CLARIFY CONCEPTS

Who is considered a refugee?

A refugee is any person, man, woman, or child who, due to well-founded fears of being persecuted for reasons of race, religion, nationality, belonging to a particular social group or political opinions, is outside his/her country of origin and cannot or, because of such fears, do not want to be protected by that country. It is also every person who flees from his country because his/her life, security or freedom have been threatened by widespread violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances that have seriously disturbed the order internal, therefore, is forced to move from its place of origin to another country. (ACNUR, 2016)

Refugees are people who need this status granted by a country other than their own because their lives are endangered in their places of origin. If they are returned to their homeland, they are at serious risk, including dying.

Who is considered a migrant?

According to the United Nations High Commissioner for Refugees, migrants are the ones who leaves their place of origin with the hope of finding a better economic situation, better work, better education and better opportunities in another place, among other reasons that are inherent to the global displacement of highly specialized professionals and technicians and their families who travel to different places in and for the development and execution of their work when they are assigned and displaced by their multinational companies or similar to different places in the world, among many other different figures of the global mobility. Yet, they could return to their country, if they decided or at the end of his period of assignment, without any direct risk to their lives or physical integrity and without any impairment.

We believe it is important to clarify this difference as it is commonly confused, and it is essential to be clear and punctual on this issue, as the refugee status imports many international connotations of security, protection and safeguard against the vulnerability of the State in which they find themselves and their evident lack of protection, situation that does not happen with the status of a migrant. In this context, it is necessary to clarify that migrants are governed by the domestic laws of each country in relation to the subject.

Each State has regulated the related to this assumption in terms of the mechanisms and requirements that must be complied in order to be considered a legal migrant and, therefore, be able to enter the territory with a valid and legal authorization.

On the other hand, Refuge figure not only operates with national laws (we specify that in our case Law No. 27891 is the one that applies, which rules the Refuge granted by the Peruvian State) but also is recognized and detailed in different international treaties that define and protect it; from the Convention on the Status of Refugees of 1951, and its 1967 Protocol, the OAU Convention -special for Africa and its refugees- of 1969, the Declaration of Refugees of Cartagena for Latin America, of 1984, among the Most important, as well as the continued protection and surveillance of UNHCR (UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES) that acts in any case of a well-founded request for refuge and/or mass displacements.

According to Law N° 27891, in essence and related to this case, a person will have the quality of Refugee when is in the situation of facing founded fears of being persecuted, for the reasons previously exposed.

From what is indicated by our legal regulations, and in accordance with what is established in the international standards ratified by our country, it is more than valid to ask ourselves:

Is it possible to grant the Refugee category to all Venezuelan citizens who arrive in our country given that there are now more than 100,000 requests for refuge by these citizens and only about 400 cases have been resolved since the beginning of 2018?

We believe that not necessarily. Not only because the majority who came to our country entered as a migrant, but because their situation, conditions and circumstances were not those of the refugees. Yes, our Venezuelan brothers have escaped from an economic, political and social situation more than difficult in their place of origin and leave that territory in search of better opportunities, although in most cases they are not being persecuted, nor have their lives been endangered -once again, in most cases-. In short, if this is the case, they could return to their territory without a specific and direct threat that affects them, that is, they do not conform or coexist, the assumptions inherent in the status of REFUGEE, in accordance with existing regulations.

However, and in spite of the foregoing, it is necessary to point out that we cannot conclude that there is no case of Venezuelans that is plausible and deserving of receiving the status of Refugee, in fact, there are, but do not represent the majority and its declaration of Refugee will occur, if applicable, after thoroughly analyzing and investigating the evidence provided by each of the applicants, case by case, as we certainly believe it should be done, in order to collaborate with the humanitarian aid that must be provided.

AOV ABOGADOS

February 2019

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