Jordan has long been one of the main host countries for refugees in the Middle East. It is a land of a unique condensation of forced migratory movements; nowhere else has experienced such a high density of mobility in a small space. Most forced migrants have been forced to seek refuge in Jordan because of armed conflicts in neighbouring countries such as Palestine, Syria, and Iraq. Jordan has also seen increasing flows recently from more distant countries such as Yemen and Libya. However, Jordan does not grant refugee status to asylum seekers. Instead, they are usually received as ‘guests’ awaiting resettlement elsewhere or to be returned to their home countries once it is deemed safe to do so. As a result, the consecutive crises of forced migration have been transformed into a protracted refugee situation.
This raises many legal concerns in regard to forced migrants’ protection in Jordan. On the one hand, national legislation regulating the situation and the status of refugees and asylum seekers is virtually non-existent. On the other hand, within the framework of International Refugee Law (IRL), Jordan has not – and most likely will not – ratify the 1951 Geneva Convention relating to the status of refugees or its Protocol. This means that Jordan is not under any obligation to implement its provisions. To respect IRL, Jordan should refrain from violating the principle of non-refoulement, as this is a ius cogens principle – a principle that binds States regardless of conventions ratified or signed. Jordan, therefore, is not under the obligation to grant asylum to any asylum seeker, but rather not to return these forced migrants back to the dangerous place where they fled from.
Given the socio-economic challenges and security concerns related to the resulting protracted refugee situation, it is understandably difficult for Jordan to undertake the responsibility of admitting and protecting these forced migrants alone. Thus, the United Nations High Commissioner for Refugees (UNHCR) offers its assistance. UNHCR has been operating in Jordan since 1991. The Memorandum of Understanding of 1998, amended in 2014, allows asylum seekers to remain in Jordan pending refugee status determination, which is conducted by UNHCR. The government then grants applicants a renewable residence permit of up to six months during which a durable solution must be found.
However, Jordan’s compliance with IRL is not the only reason behind the country’s generosity towards forced migrants. The consecutive governments did not view the admission of forced migrants as granting asylum, but rather as a mere gesture of hospitality as part of the Arab hospitality ideology. Hence, the use of the term ‘guests’ instead of migrants or refugees. The borders remain open, and forced migrants can enter on a temporary visa issued at the border for the neighbouring nationals as ‘guests’, like any other foreigner. They are then allowed to stay for a limited period of time until UNHCR reviews their requests for asylum.
Historically, Arabs have long been known for their hospitality towards refugees and their disposition to protect them. This sort of sanctuary was called ‘intervention’ (dikhalah) or ‘succor’ (najda). The socially and religiously based duties to the guest, the stranger, and the person in need across the region are the alternative to the western notion of granting asylum. The principle of ‘generosity towards the guest’ (ekaram eldayf) is based on commonly acknowledged virtues amongs Arabs: ‘granting safe haven as a neighbour’ (manh eljewar) and ‘being a gracious neighbour’ (hosn eljewar). This practice of giving protection to persecuted people was widely practised in the Middle East region even before the arrival of Islam.
The Islamic model adopted the same approach by recognising the granting of protection to Muslims and non-Muslims alike, according to the general principle providing that all human beings are equal because they are all sons of Adam. The Muslim world has developed its own conception of the protection due to a non-Muslim, by the sovereign or any member of the Muslim community in an official or unofficial capacity, for a limited, renewable time. This is done within the framework of a contract known as ‘security’ (aman), during which the ‘the asylum seeker’ (mustamen) can either leave this protection or settle there as ‘the protected’ (dhimmi). Therefore, the return or the refoulement of mustamen is prohibited under Islamic law. Muslims who seek asylum are offered a different form of protection which is called ‘shelter’ (iwaa). It is considered a migration without the need to seek asylum, a simple form of resettlement. Thus, the right to asylum is therefore an obligation for authorities, whereas expulsion from the territory is prohibited.
It is safe to say that Jordan has generously maintained this tradition of accommodating asylum seekers out of respect for these old customs as well as in compliance with IRL. However, this generosity towards these ‘guests’ has its limits from a legal perspective. Labelling them as ‘guests’ deprives them of the protection and the rights allotted to them when recognised as refugees in accordance with IRL, especially in prima facie cases (when refugee status recognition is based on apparent and objective circumstances). However, given the current situation, Jordan may continue to shift this responsibility to the care of UNHCR, but at some point, it is crucial to develop a transitional plan to fully embrace International Refugee Law.
Dr Ghofran Hilal is an assistant professor in the Department of Public Law at the University of Jordan. She is a licensed lawyer in both Civil and Sharia Courts in Jordan. She has been an Echenberg fellow at the Centre for Human Rights and Legal Pluralism of McGill University and a member of the Young Arab Policy Analysts Network of the Chatham House (YAANI). Email: Gofran97@yahoo.com