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The Law of Return and the Right of Return

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The Law of Return and the Right of Return THE LAW OF RETURN AND THE RIGHT OF RETURN Howard Adelman* The Law of Non-Return Though this essay is focussed on the Law of Return and the Right of Return, both have to be set against the background of the right not to be returned and the law implementing that right for this is the reference point of all modern refugee law and rights. The principle of non-refoulement, the right not to be returned if a person can establish that he of she is a genuine con- vention refugee, applied to some Roma who had fled Hungary.1 At the same time, it has to be recognized that the Law of Return and the Right of Return are designed to confer a special benefit to a particular group based largely on their ethnicity. Laws concerning non-refoulement (and extradi- tion, as we shall see) are designed to provide protection to individuals under threat of persecution because of race, religion, nationality or politi- cal opinion. Non-refoulement provisions impose restrictions on actions. Laws and Rights of Return command preferential benefits be accorded to a specific group. While Hungary was receiving refugees (Kardos 1995), Roma or Gypsies were fleeing Hungary and claiming refugee status in other countries. Over the next two decades, Roma continued to seek better conditions in other countries by using the refugee asylum process. Gergely Baráth, a Member of the Committee on Human Rights and Minorities of the Budapest Municipal Assembly, rightly dubbed the condition of Roma in Hungary a crisis, for many of the Roma “lived in extreme poverty because of the segregation to which they are subjected in terms of employment” (Barath 1997) and occupied wretched housing in spite of government attempts to alleviate their horrific living conditions. Their dire situation * Howard Adelman is Professor Emeritus Philosophy York University, Canada. 1 Article 33 of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) establishes the principle of non-refoulement prohibiting the direct or indirect removal of refugees to a territory where they risk being persecuted “for reasons of race, religion, nationality, membership in a particular social group or political opinion”. That provision is implemented in many countries that are signatories to the 1951 Refugee Convention by being incorporated into domestic legislation as is the case in section 115 of the Canadian Immigration and Refugee Protection Act (IRPA). <UN> 292 howard adelman was exacerbated when free market principles were adopted in the early nineties. The changes effected by the switch to a market economy ended subsidies to tenants and allowed market forces to determine interest on housing loans. As a result, more of the “gypsies” were concentrated in ghettos. Further, only 28.7% of Gypsy males held a job in 1993 compared to 64% for the non-Gypsy male population. In a 2010 court case in Canada,2 the case of the appellant, Jószefne Németh, the Németh case backed by the Barreau du Québec, Québec Immigration Lawyers Association, and the Canadian Council for Refugees as interveners, came before the Supreme Court of Canada in an appeal from a ruling of the Court of Appeal for Québec that had upheld a ruling of the Minister of Justice3 who had ordered that the Némeths be surren- dered for extradition back to Hungary to stand trial for a fraud charge even though the Némeths and their children had been granted refugee status in Canada in 2002. The lawyers for the Minister argued that, in spite of their refugee status, the Némeths could be extradited because they had been charged in Hungary with a serious non-political crime and, further, failed to establish any continuing risk of persecution upon their return.4 The Supreme Court remitted the matter back to the Minister of Justice for reconsideration. The central issue was over scope of the principle of non-refoulement contained in Article 33 of the 1951 Convention Relating to the Status of Refugees which prohibits the removal of refugees to a territory where they 2 Németh v. Canada (Justice) 2010 SCC 56, File No.: 33016, 2010: January 13; 2010: November 25. See Lau (2010). 3 The Minister’s decision was upheld on review by the Quebec Court of Appeal: 2009 QCCA 99, 2009 CarswellQue 8504. 4 The Némeths were accused of selling a lease right to an apartment in Budapest for CAN$2700 in November 2000 when they allegedly did not hold that lease right. The status of the fraud charge and whether it was or was not a “serious” criminal charge, that is an offence punishable by a minimum term of ten years imprisonment, could be a factor in a refugee asylum claim but was not a core consideration in the request for extradition of a refugee in this case. As the Supreme Court found, the question of whether or not a serious crime had been committed “was never more than a peripheral issue in this case and the Minister did not base his decision on it.” [Németh 116] The failure of the Minister to address the appellants’ contention that, given the amount of the alleged deprivation, the offences alleged against them would not attract a punishment of 10 years in Canada, was a failure to undertake the requisite analysis and apply the test of “serious reasons for considering” where the test must be used with caution and not given undue weight. The judgement provided the key deciding factor that the fraud committed was not a serious crime, that is, one for which a penalty of ten years in prison was applicable for, under Canadian law, when a fraud is less than $5,000, the maximum term of imprisonment is 2 years. [Criminal Code, ss. 380 (1)(a) and (b).] <UN> <UN>.
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