Legally Excluded,Structurally Persecuted: Rethinking Asylum Beyond the Refugee–Economic Migrant Divide

Abstract

Executive Summary

This article argues that the long-standing binary between “refugees” and “economic migrants” is doctrinally outdated and normatively indefensible in light of contemporary displacement realities. While the 1951 Refugee Convention recognizes persecution only as targeted political or identity-based harm, millions of people today are compelled to migrate by forms of extreme deprivation produced by discriminatory governance, systemic state neglect, and global economic structures. The article develops the concept of structural persecution to describe situations in which socio-economic harm is attributable to identifiable state actions, omissions, or broader systems of power, and demonstrates how such circumstances can fall within the meaning of persecution under existing Convention grounds. It proposes an interpretive framework that enables refugee law to respond coherently to modern displacement dynamics without altering the Convention definition, while also grounding protection within a broader framework of global justice.

Key Findings:

The refugee/economic migrant divide is a legal fiction that obscures the political and structural drivers of poverty-induced displacement. Extreme deprivation is often the result of identifiable policies, governance failures, or transnational economic arrangements, not neutral misfortune.

Current refugee doctrine privileges individualized, intentional harm, making it poorly equipped to recognize coercion embedded in structural systems, such as state abdication of essential services, discriminatory development policies, or state complicity in environmental degradation.

Human rights law already recognizes severe socio-economic deprivation as a violation of core rights, including life, dignity, subsistence, and non-discrimination. The artificial separation between refugee law and human rights law produces an incoherent protection regime.

Structural persecution is compatible with the Refugee Convention when understood as persecution arising from systemic deprivation linked to a Convention ground. It can be analyzed through established concepts such as constructive persecution, cumulative harm, and discriminatory impact.

Regional frameworks in Africa and Latin America already acknowledge that displacement stems from complex crises involving economic collapse, governance failure, and environmental harm. These instruments offer models for more context-reflective protection in international law.

Global inequities and historical patterns of extraction shape contemporary mobility, creating obligations of responsibility-sharing for states whose policies contribute to structural drivers of displacement.

Policy Recommendations:

Integrate structural persecution into refugee status determination by adopting doctrinal tests that assess serious harm, structural causation, disproportionate impact linked to Convention grounds, and lack of state protection.

Issue UNHCR and national-level guidance explicitly recognizing that systemic deprivation, when attributable to identifiable actors or policies, may constitute persecution under the 1951 Convention.

Expand complementary protection frameworks to cover individuals fleeing survival-threatening conditions where structural harm does not neatly align with Convention grounds.

Develop responsibility-sharing mechanisms, including financial, resettlement, and technical commitments, based on states’ contributions to global economic, environmental, and security structures that generate displacement.

Reform global migration governance frameworks, including implementation of the Global Compacts, to better protect individuals in “vulnerable situations” whose displacement arises from structural forces.

Strengthen regional protection systems and support Global South innovations, such as those reflected in the Cartagena Declaration and Kampala Convention, to ensure that structural drivers of displacement are recognized as legitimate grounds for protection.

Align humanitarian, development, and protection programming with the understanding that displacement is often rooted in systemic inequalities, requiring holistic responses that address both immediate needs and underlying structural conditions.