Refugee-based Reasons in Refugee Resettlement – The Case of LGBTIQ+

1 Refugee-based Reasons in Refugee Resettlement – The Case of LGBTIQ+

In recent years, it has become increasingly common to argue that the interests of refugees themselves should be taken into account in refugee resettlement (see, e.g. Betts 2013; Fine 2019; Gibney 2015; Jones and Teytelboym 2017; Owen 2018; Parekh 2017). The argument for taking refugees’ interests into account can be formulated in a number of ways. According to instrumentalist views, refugees’ interests in resettling in a particular country can be seen as supportive of some further goal or interest, such as successful integration or efficient refugee distribution. Apart from, or in addition to, instrumentalist views, the interests of refugees can also be seen as valuable in themselves, based on human dignity or respect for refugees’ own agency, for example.

What it means to ‘take refugees’ interests into account’ can also be understood differently. On the one hand, refugees’ interests can be understood according to some objective criteria that define refugees’ interests in relation to a particular good or set of goods, for example, security, stability, employment, family life, etc. Taking refugees’ interests into account would then mean assessing the refugees’ prospects of success, where success is measured by the extent to which refugees are able to attain these goods, or to lead meaningful, good lives in their host society. Different kinds of matching schemes – whether cultural, linguistic or skills based – can also be seen as promoting the interests of refugees in this sense of the term, although in most cases, the rationale behind such schemes is based on the interests of receiving states rather than refugees themselves.

Alternatively, or in addition to the above, taking refugees’ interests into account can be understood in terms of giving refugees a say in where they themselves would want to be resettled. This can be understood separately from the previous criteria. Giving refugees a degree of choice with respect to their destination country may cater for refugees’ interests in terms of providing for their agency, while simultaneously not catering for their interests in terms of enhancing their prospects of success. This may be the case for example when a refugee’s interest to be settled in country N is based on misinformation or false beliefs.

Regardless of which view of refugees’ interest – objectively or subjectively defined – one adopts, taking refugees’ interests into account can be viewed as a refugee-based reason^[1] in refugee resettlement. It is refugee-based by virtue of adopting the perspective of refugees, contra the perspective of states or the international community, for example. In an important sense, it is also refugee-dependent, that is not all refugees have the same interests in resettling in the same destination country.

My focus, in this paper, is the following: If the interests of refugees themselves should be taken into account in refugee resettlement,^[2] how should these interests be understood, and which types of interests should, normatively speaking, refugee resettlement be primarily concerned with? The answers to these questions will also have important implications for the ways in which different groups of refugees are resettled among the potential refugee receiving countries – or so I argue.

I proceed as follows: In part 2, I discuss some of the commonly held positions on what is owed to refugees, in order to identify potential candidates for the kinds of interests that refugees may have, such as ‘interest in safety’ or ‘interest in a good life’. In part 3, I elaborate on Matthew Gibney’s (2015) argument for more stringent duties of states towards refugees, based on the refugees’ interests in leading good lives. In part 4, I develop my own position, which emphasizes refugees’ interests in ‘not being subjected to injustice’, which, I argue, should, by default, take precedence over the more general category of interest in ‘a good life’ in refugee resettlement. The normative salience of this category, ‘not being subjected to injustice’, is illustrated with a specific case of LGBTIQ+ refugees and a partial, but important, discrepancy between those states that provide safety (asylum) to refugees who are LGBTIQ+ and those that are also willing and able to protect LGBTIQ+ persons against a variety of other non-asylum-grounding injustices. In part 5, I defend my position against some objections, before in part 6, presenting my conclusion.

2 What Is Owed to Refugees?

In debates on the ethics of refugee resettlement, two broad positions on what is owed to refugees have emerged. On the one hand, there are those who argue that refugees are owed safety (refuge/asylum),^[3] and that anything beyond that is supererogatory. On the other hand, there are those who argue that refugees are owed something more than mere safety, for example, conditions of a good life or opportunities to thrive and flourish.

While the view that refugees are owed at least safety is relatively uncontested,^[4] the interpretation of what this view entails is not. According to a narrower, and less demanding, formulation, refugees are owed protection against the kinds of persecution they are fleeing from, that is, from those grounds that made them refugees in the first place. This interpretation of somewhat minimal duties towards refugees can be seen to draw upon international law and the UN Refugee Convention that defines a refugee as ‘a person outside their country who has a well-founded fear of persecution owing to their race, nationality, religion, political opinion, or membership of a particular social group’ (UN General Assembly 1951, Art 1). The principle of non-refoulement prohibits states from sending refugees back to countries where they would face persecution, thus creating a duty for states (and the international community as a whole) to protect refugees against the kinds of persecution they are fleeing from.

According to a broader formulation, refugees are not only owed protection against the types of persecution they are fleeing from, but also against other human rights violations, stemming from different sources, such as war and famine. Two issues need to be kept separate here. First, contrary to the definition of the UN Refugee Convention, both existing international practices, as well as a substantive number of scholars (see, e.g. Betts 2013; Carens 2013; Gibney 2004, 2015; Miller 2016; Owen 2018; Shacknove 1985; in defence of the persecution requirement, see Cherem 2015; Lister 2013), have adopted a more inclusive notion of a refugee as a person fleeing from severe human rights violations, largely independent of the source of such violations. Given this expansion of the notion of a refugee, the above narrower formulation of safety can be expanded to include protection, not only against persecution, but also against other severe human rights violations that refugees are fleeing from. Hereafter, when I talk of refugees being owed safety (refuge/asylum), I refer to this expanded, yet narrow understanding of safety from the types of persecution and/or human rights violations that cause refugees to flee in the first place.

Second, however, not all human rights violations are such that they would be seen as grounding asylum, nor do existing systems of refugee protection necessarily guarantee protection against such violations – even if safety, in the narrower sense, could be provided. The situation in many refugee camps, as well as refugee routes and temporary reception centres, may well be such that they provide refugees with safety in the narrower sense of the term, that is protection against persecution or the kinds of severe human rights violations that refugees are fleeing from, but not in the wider sense of protection against a number of other human rights violations. Notably, as agreed by the UNHCR and the international community more generally, the plight of refugees in refugee camps is far from acceptable, thus pointing towards the latter, and more demanding, interpretation of what is owed to refugees (see also Parekh 2017, 2020). Refugees are not only owed safety in terms of protection from those sources that make them refugees in the first place, but also protection against other types of human rights infringements – even if these would not be such as to ground asylum on their own. This point will come to play an important role in my argument later on, regarding refugees’ interests in ‘not being subjected to injustice’.

For my purposes here, it is important to note that both the narrower and broader formulation of what is owed to refugees in terms of safety can also be formulated in terms of the interests of refugees themselves. No doubt, refugees have an interest in being protected against the types of persecution or severe human rights violations that they are fleeing, and they also have an interest in their other basic rights being protected. But neither of these is typically what people have in mind when they say that the interests of refugees themselves should be taken into account in refugee resettlement. Rather, what they have in mind is that refugees have interests in something that goes beyond safety or basic rights protection, and that it is these interests – for example, in living fulfilling lives – that should play a part in refugee resettlement. These views align with the more substantive accounts of what is owed to refugees, to which I will now turn.

3 Refugees’ Interests in a Good Life

According to Matthew Gibney (2015), a fair distribution of refugees among potential refugee receiving states should be based on the integrative capacities of these states.^[5] Such distributive justice among states, according to Gibney, must however be balanced against the legitimate interests of refugees to be settled in particular countries and the duties of states to ensure that refugees are settled in places where they are likely to flourish. For Gibney, the question of what is owed to refugees cannot be answered without answering the question of what is owed to refugees qua refugees, and the answer to that question will inevitably impact any possible scheme through which refugees are resettled.

Gibney gives two independent arguments for why the distribution of refugees among potential refugee receiving countries should take refugees’ interests into account, where the relevant type of interest also goes beyond the previously discussed interests in safety: the argument from analogy, and the argument from the nature of the harm that resettlement is aiming to compensate. According to Gibney, the roles of the international refugee regime can be viewed as analogous in relevant respects to the roles of child protection services in any given state. While in cases of domestic violence or abuse, the most immediate duty of these services is to bring the child to safety, in the long term, it is the broader interests of the child that come to play a decisive role. Once the child is out of the immediate danger of violence or abuse, it becomes the duty of the protection services to find suitable long term placement for the child – and in this task, it is not only the safety of the child that should matter, but also the prospects of the child to flourish. Analogously, Gibney argues, the most immediate duty of the international community is to provide refugees safety, but once this duty has been discharged, additional duties follow. That is, in the long term, it is also the duty of the international community to see that refugees are settled in places where they are likely to flourish (Gibney 2015: 459).

As an additional argument for taking refugees’ interests in something more than mere safety into account, Gibney asks us to think of the international refugee regime as a system that aims to compensate for the harms that result from fleeing. Notably, the harms of fleeing are not only associated with lack of safety, or lack of protection of one’s basic rights, but also with the deprivation of one’s social world. That is, by having to flee, refugees are deprived of their communities, social relations, wants and aspirations – the whole framework within which they have made their lives meaningful. In order to compensate for such harm, Gibney argues, it is not enough that refugees are provided with safety, but that they are also given the opportunity to rebuild their social world in a meaningful way. As the rebuilding of one’s social world may be easier for some refugees in some contexts, and others in other, it becomes the duty of the international community to locate refugees in ways that increase their prospects of success (Gibney 2015: 459–460). Translated into the language of interests used in this paper, the distribution of refugees among potential refugee receiving countries should take the refugees’ interests in leading meaningful lives into account, and – given the refugee-dependency of such interests – to resettle refugees in countries where they are most likely to flourish.

Notably, according to Gibney, what is owed to refugees is clearly something more than mere safety from persecution or basic rights protection. Refugees have an interest in leading good lives and the task of the international community, in distributing refugees among potential refugee receiving countries, should take this into account. This view, it should be made clear, need not deny that the primary and the most immanent duty of the international community is to provide refugees with safety (refuge/asylum), but that, once this duty has been discharged, additional duties follow. I will call this view the ‘interest in a good life’ view, as the duties of states and the international community in resettlement are seen as affected by the acknowledgement of the refugees’ interests in leading good lives: in thriving, flourishing, living autonomous lives, building meaningful social worlds, etc.

In what follows, my intention is not to deny Gibney’s claim that refugees’ interests in leading good lives are relevant for refugee resettlement. However, I aim to show that, in addition to the two commonly discussed categories of interest – ‘interest in safety’ and ‘interest in a good life’ – there is an important, and often overlooked, category of ‘interest in not being subjected to injustice’ that should play an important role in our discussions. Furthermore, I argue that this category of interest should, by default, take precedence over the refugees’ more general interests in ‘a good life’ in refugee resettlement. I will first show why the fact that refugees’ interests are refugee-dependent excludes an understanding of the relevant kinds of interests as interests in safety (from persecution or the kinds of human rights violations that refugees are fleeing from). After that, I will demonstrate the normative salience of this category – ‘interest in not being subjected to injustice’ – with a case of refugees who are LGBTIQ+.

4 Refugee Dependency and Refugees’ Interests in Not Being Subjected to Injustice

Not all refugees may have the same interests in settling in the same refugee receiving countries. For example, French speaking refugees may have strong interests in resettling in France or Canada, while refugees with other language skills may wish to settle in other areas more suited to their language competences. The refugee dependency of the types of interests that refugee resettlement should take into account is apparent regardless of whether the interests of refugees are objectively or subjectively defined. The prospects of a French speaking refugee prospering in France or Canada, for example, may be (objectively speaking) higher than in some other countries, and the subjective wishes of the refugee may also be to settle in these countries, while the objective prospects and subjective wishes of other refugees may be directed elsewhere.^[6]

The acknowledgement of the refugee dependency of refugees’ interests has important consequences for the ways in which the types of interests, relevant in refugee resettlement, are understood. As noted in part 2, we can also think of refugees’ interests in terms of safety (protection against persecution or severe human rights violations), but this is hardly what the promoters of refugees’ interests in refugee resettlement have in mind. This is so, as a person’s interest in safety can be seen as a fundamental human interest that grounds a right, and the refugees’ right to safety (refuge/asylum) operates at the very basis of the whole refugee regime. The potential refugee receiving countries are seen as such precisely because they are able to provide refugees with safety (refuge/asylum) – and taking refugees’ interests in safety into account would thus only mean resettling refugees to countries that can provide them with refuge/asylum, but have little impact in differentiating between these countries. Given our view of the relevant interests of refugees as refugee-dependent,^[7] these interests must be viewed as referring to something other than mere interests in safety, for example, to interest in a good life.

While there is much to be said for the idea of taking refugees’ interests in leading good lives into account in refugee resettlement, what I wish to argue in the rest of this paper is that this category of interest in ‘a good life’ fails to capture something important about the different kinds of interests that refugees have (beyond their interests in safety), as well as about the relative strength of these interests in refugee resettlement. Instead of categorizing refugees’ interests in terms of the common categories of ‘safety’ and ‘a good life’, I argue that there is an important intermediate category of interest in ‘not being subjected to injustice’ that should, by default, take precedence over the more general interest in leading good lives in refugee resettlement. In order to demonstrate this, let us look at a series of examples involving four types of countries (P, S1, S2, S3) and two groups of refugees (R1, R-lgbtiq+), and an assessment of the ways in which the different interests of these refugees may (or may not) be fulfilled in the said countries.

5 Some Objections

My proposal for giving precedence to the interests of refugees in ‘not being subjected to injustice’ over their more general interests in ‘leading good lives’ may be criticized from a number of directions. First, as a conceptual matter, it may be asked why I frame my discussion in terms of refugees’ ‘interests’ rather than their ‘rights’. The types of injustices that refugees who are LGBTIQ+ in non-LGBTIQ+ friendly, yet refugee receiving countries may be subjected to are largely akin to LGBTIQ+ rights violations, and LGBTIQ+ refugees arguably have a right, rather than a mere interest, to be protected against such violations. I agree that this may be the case, that refugees have a right to not be subjected to systematic discrimination, while they may not have a right to economic prosperity. However, I do not think that much, in my argument, hangs on this choice of terminology. Further, it should be noted that my focus, in this paper, is with those theories that argue that refugees’ interests should be taken into account and that, in some important sense, refugees may well also have a right for their more general interests in a good life to be considered. While I do not wish to say much on whether refugees really are owed consideration of such broader interests, what I wish to show, for those who hold such a view, is that there is also a third, and often overlooked, category of ‘interest in not being subjected to injustice’ that has some normative force in refugee resettlement. This category of ‘interest in not being subjected to injustice’ may, of course, intersect with the broader category of ‘interest in a good life’ (e.g. not being subjected to LGBTIQ+ based work discrimination may certainly have an effect also on one’s economic prospects and on one’s more general prospects to thrive and flourish), but this does not take away the normative relevance, and the potential primacy, of this category of interest. Contrary to the conventional categorization of interests in safety and interests in a good life (where one’s interests in safety certainly intersects with one’s interests in a good life), one’s interest in not being subjected to injustice is brought forth as an intermediate category of interest that may not have the same force (i.e. operate as grounds for asylum) as interest in safety, yet be more forceful than the general interest in a good life.

Second, some may wonder whether my position – given my usage of refugees who are LGBTIQ+ as an illustrative example of a more general principle – may be too broad and, when applied in practice, infeasible. After all, refugees who are LGBTIQ+ are not the only group that may be subject to such non-asylum-grounding injustices, but the same may also apply to a variety of other refugees, for example disabled persons, children, some religious and ethnic minorities, women, and – this is important – some more so in some refugee receiving countries than in others. A comprehensive system of refugee resettlement distribution that takes such interests seriously would thus need to take into account all of these vulnerable groups, the kinds of injustices they would be subjected to in any particular context, and to also make comparisons about the extent of the injustices. This, however, may turn out to be too complex a task and, at worst, turn refugee resettlement into a type of ‘injustice Olympics’,^[17] where different groups of refugees are set against one another, competing on their levels of vulnerability and subjection to injustice in order to be resettled in their preferred country of destination. However, while I acknowledge these worries, I do not think that they detract from the value of the general principle, or from its clear, practical implications for some particular cases. While many, perhaps even most, refugees may be subject to relevant kinds of injustices in different refugee-receiving countries, these injustices are not distributed equally among refugees, nor among countries. Thus, it remains true that, by default, a particular R-lgbtiq+ refugee whose basic rights would be violated in S2, should not be resettled in S2, while a particular refugee R1, whose basic rights are not violated in S2, could well be. This, as noted above, may even be the case irrespective of the economic prospects of the two refugees. This, I maintain, is perfectly compatible with the view that some other refugee, say, a refugee with a certain disability, should also not be resettled in S2 due to the kinds of rights violations inflicted on refugees with such disabilities there.^[18]

Which brings me to my third qualification relating to the potential counterintuitive implications of my proposal in cases where the injustices (rights violations) that the resettlement distribution is aiming to counter seem relatively minor in comparison to the economic prospects of some alternative distribution. For example, say that the rights violations against LGBTIQ+ persons in S2 are relatively minor. For instance, S2 does not recognize equal marriage, but has relatively well functioning protections against, for example, LGBTIQ+ discrimination in the workplace or other areas of life. Say further that, for whatever reasons, some LGBTIQ+ persons would have much higher prospects of economic success in S2, where some of their rights, such as the right to equal marriage, are violated, than in S3. Such comparisons between rights violations versus economic success can, of course, be both intrapersonal, as in the example above, and interpersonal: for example, R1 could be far better off economically in S3, while R-lgbtiq+ would only be slightly worse off rights-wise in S2. In these cases, some might argue, the far higher differences in economic prospects should outweigh the relatively minor differences in rights protections, making my claim about the principled precedence of ‘interests in not being subjected to injustice’ over more general ‘interests in a good life’ suspect.

However, I believe that my proposal is able to accommodate such cases, and different resettlement distribution, without abandoning the proposed basic principle. As I have stated, a refugee resettlement system that takes refugees’ interests in not being subjected to injustice seriously does not, by default, resettle R-lgbtiq+ to S2. This is due to the fact that the refugees’ interests in not being subjected to injustice are, by default, given more weight than their general interests in leading good lives. This principle, however, could be overridden for example by the subjective interests of R-lgbtiq+ in being resettled in S2, despite its rights violations. This qualification, I believe, is important in order to cater for refugees’ own agency, as well as for recognizing that one’s status and treatment as LGBTIQ+ may not always be the defining feature via which one’s interests are formed. Furthermore (and perhaps more controversially), in some cases, even the objectively defined circumstances of, for example, economic or societal success may counter the default position. While the details of how to balance between such general prospects for a good life versus relatively minor rights infringements remains beyond the scope of this article, some basic principles for guiding such calculations may be given. For example, it would seem clear to me that there needs to be some threshold for what counts as a relevant kind of injustice that justifies the default position argued for here. For example, it may be questioned whether the above mentioned lack of equal marriage rights, while all other LGBTIQ+ rights are respected, suffices to justify this default position. The ILGA annual reports on LGBTIQ+ laws around the world (ILGA 2020) as well as other human rights organizations, including local LGBTIQ+ associations, already provide useful tools for assessing the extent of LGBTIQ+ rights violations in different countries, thus also providing important data for our categorization of different countries as S3 and S2. After all, it may well be the case that no country – however LGBTIQ+ friendly – qualifies as a country where no LGBTIQ+ person would be subjected to any form of discrimination or disadvantage, although in some countries (S3) less so than in others (S2). While it thus remains an open question where to draw the line between the relatively minor rights infringements that the broader prospects of, for example, economic gain may override, and the more severe infringements upholding the default position argued for here, the lack of such an exact line need not distract from the general principle. Regardless of the exact details of implementation, I believe that any refugee resettlement distribution that aims to take refugees’ interests into account should, by default, give precedence to refugees’ interests in not being subject to injustice over the more general interests in leading good lives – although this default position can, for example in cases pertaining to refugees’ own agency, or in cases of substantively minor rights violations, be overridden.

6 Conclusion

In this paper, my focus has been on those theories of refugee resettlement that argue for refugees’ own interests to be taken into account when distributing refugees among the potential refugee receiving countries. My purpose has been both conceptual and normative. Conceptually, I have attempted to clarify the ways in which refugees’ own interests, typically, in ‘safety’ and in ‘a good life’, can be understood, and how an intermediate, and often overlooked, category of interest in ‘not being subjected to injustice’ has a vital role for understanding the different types of interests that refugees may have for resettling in different countries. Normatively, I have argued that refugees’ interest in ‘not being subjected to injustice’ should also play a prominent, and indeed primary, role in the discussions on refugee resettlement. By utilizing an example of refugees who are LGBTIQ+, and the kinds of non-asylum-grounding injustices that they are subjected to in a number of non-LGBTIQ+ friendly, yet refugee receiving states, I have argued that, by default, refugees likely to be faced with such injustices in certain countries (S2), should rather be settled in countries where such discrimination does not exist, or is, at least, substantively less widespread (S3). While this might not seem like a particularly radical conclusion, it may nevertheless have important implications for the ways in which refugees are resettled among potential refugee receiving countries. This is so, as I have also argued that, by default, refugees’ interests in ‘not being subjected to injustice’ should take precedence over their more general interests in leading good lives. Thus, the justice based considerations, such as LGBTIQ+ persons’ right not to be subjected to LGBTIQ+ based discrimination, should, by default, override a number of other considerations commonly viewed as important for the prospects of success for refugees in their resettlement countries, such as economic, linguistic or even family/country of origin community-based considerations. While my intention has not been to offer a clear blueprint or guidance as to how such prioritization of refugees’ interests in not being subjected to injustice, as opposed to more general interests in a good life, should be applied in practice, I nevertheless believe my present analysis to be useful for a number of discussions in refugee resettlement. Most notably, as I have tried to show, understanding refugees’ own interests via the common categorization of ‘safety’ and ‘a good life’, overlooks an important, and normatively salient category of interest in ‘not being subjected to injustice’. Taking this category seriously in discussions on refugee resettlement helps to show not only some of the complexities of different types of interests at stake, but also why, in some cases, considerations pertaining to refugees’ interests in leading good lives, including economic, linguistic and other aspects aiding integration, may be overridden by other refugees’ interests in not being subjected to injustice.