Beyond Prejudice: Structural Xenophobic Discrimination Against Refugees

Abstract

Refugees across the world routinely face discrimination on account of their status as foreigners. This xenophobic discrimination is among the greatest contemporary challenges to the protection of refugees and asylum seekers globally. In the absence of a definition of xenophobic discrimination under international law, the United Nations Refugee Agency (UNHCR) has had to confront the difficult question: what constitutes wrongful discrimination against refugees? This Article analyzes its response, and at the same time begins the much-needed work in international legal scholarship of making sense of international law’s application to the problem of xenophobia.

This Article introduces the concept of structural xenophobic discrimination to capture how even facially neutral laws, practices and policies can have the cumulative effect of excluding refugees — on account of their status as foreigners — from enjoyment of rights to which they are formally entitled. This Article also provides concrete examples of structural xenophobic discrimination in operation, and the far-reaching impact it can have on refugees. It goes on to show how for the most part, UNHCR’s approach has been to focus on targeting individualized, explicit personal xenophobic prejudice, with little attention to the structural nature of much of the xenophobic discrimination that refugees face. Finally, this Article makes the argument that contrary to what UNHCR’s approach might suggest, the International Convention for the Elimination of Racial Discrimination provides a basis for combatting certain forms of structural xenophobic discrimination against refugees.

Keywords: Refugees, Xenophobia, Discrimination