(Part 2)

Migration in Shariah and International Law

Part 1 | Part 2

In the first part of this article, the focus was a bit more on refugees in line with the context and theme discussed thereof. But in this second part, the focus will be broader, encompassing migrants and refugees.

Migrant or refugee?

It’s particularly important to point out that refugees, though having their own separate legal context and protection status in international law, are within the general framework of international migration. This framework conceptually refers to the movement of persons away from their places of habitual residence, crossing an international border to a country of which they are regarded as foreigners.

So, in this sense, we see that at times, refugees are referred to as migrants based on the fact that they both hold common factors, despite many points of divergence in international law of migration and seeking asylum.

Refugee or asylum seeker?

It is also important to clarify that misconceptions and misunderstanding often surround some terms and concepts relating to the movement of people from one country to another, such as the terms “refugee” and “asylum seeker”, what’s the difference?

In international law

According to international law, an asylum seeker is a person who seeks to be a refugee but his status has not yet been finally decided. He is normally a person seeking legal protection accorded to refugees. Thus, he tenders an application for that, but the country he applies to has not yet finalized that status.

By this, pending that ‘final decision”, he remains an asylum seeker. This is different from a person whose status has been decided. Thus, he’s entitled to the legal protection laid down and stipulated by international law, specifically, the 1951 Convention on Refugee Status (and its protocols).

So, according to international law, we can simply say that not every asylum seeker will ultimately be a refugee, but every legally recognized refugee is originally an asylum seeker. 

In Islamic law

International migration and seeking asylum are a bit synonymous. This is because Islamic law considers both of them as sharing a common purpose, which is seeking refuge and fleeing persecution, injustice, poverty, sickness…etc. 

On this, Professor Ahmed Abul Wafa’[1] states that many words in Arabic are used for one particular meaning and purpose.  An example of this is the phrase “haqul-malja” (right of asylum) which also shares the same meaning with words like “al-hijrah” (migration), as referenced in this Quranic verse: 

{And those who, before them, had settled in the homeland (Madinah) and had accepted faith. They love those who emigrated to them and find no hesitation in their hearts in helping them. They give them priority over themselves, even if they themselves are needy.} (Al-Hashr 59:9)

As we can see in the above Quranic verse, the Arabic phrase “hajar ilahim” (meaning also “fled to them”, fled to Madinah, running away from persecution in Makkah) also embodies the same meaning of “seeking asylum” as elaborated in international law, giving a sense that these terms are synonymous.

But that does not negate the fact that there are differences, unique characteristics, and variations between these concepts, including how they are juristically conceptualized in Islamic law.

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