The body as a source of legal identity: The (mis)use of biometrics and non-refoulement
The principle of non-refoulement determines that countries cannot return a person to a territory where their life or freedom would be threatened. The (mis)use of the body as the only or main source of legal identity may contribute to stances of (mis)identification of nationality, ethnic group belonging or place of origin, as well as illegal surveillance, stigmatisation, and replication of biases, which may lead to the undue return of the person to a place where their life or freedom are at risk.
Approximately 79 million people were forcibly displaced by persecution, conflict, violence and human rights violations by the end of 2019. Among them, 26 million people are refugees. According to the 1951 Convention on the Status of Refugees, a refugee is a ‘person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’, is outside his or her country of nationality or habitual residence and is unable, or owing to such fear, unwilling to avail himself or herself of the protection of that country. The definition has been expanded regionally, notably in Africa and Latin America, taking into account not only individual persecution, but also allowing for recognition of refugee status due to gross and generalised violations of human rights.
The majority of migrants travel, live and work safely and regularly worldwide. Nevertheless, there are many factors that can lead people on the move to choose to do so irregularly, such as the implementation of stricter border control and asylum policies. Forced migration and irregular movement share an ambivalent interplay and the nexus between forced migration and irregular migration presents considerable challenges.
Registration and documentation of refugees have key roles in facilitating access to assistance and protection. However, many refugees do not possess a legal identity due to the fact that documents have been left behind, lost or destroyed during flight or because they come from conflict-affected areas and thus, have never been registered. Forced migrants may enter another country with false or fraudulent documentation due to being unable or unwilling to obtain documents in their country of origin.
The irregularity of the entry shall not impose penalties on refugees provided they have a plausible explanation for the absence or destruction of the documentation or for possession of false documents. The use of technology has been increasingly used in border settings, often in support of forced migrants.
Biometrics is the measurement of human characteristics through technology. Biometric technologies are accepted as legitimate forms of identification in humanitarian settings with the potential to solve problems usually associated with the mobility of forced migrants – such as lost documentation and multiple registrations of the same person by different organisations – or to combat fraud, irregularities and streamline assistance and protection. Biometrics has been credited with considerably improving the quality and accuracy of registration processes in migration management.
In the context of forced migration, most notably refugee movements, the United Nations High Commission for Refugees (UNHCR) expanded the use of biometrics across its operations and held 7.2 million biometric records by 2018. By the end of 2020, biometric technology was used by UNHCR in at least 75 countries. The Global Compact on Refugees encourages the contribution of resources and expertise by UNHCR in conjunction with states and other stakeholders to strengthen national capacity for individual registration and documentation including support for digitalisation, biometrics and other relevant technology.
However, digital identification systems such as biometrics are a ‘double-edged sword’ creating power asymmetries and vulnerabilities within dynamics of inclusion and exclusion. Biometric technology refers to biological or physiological characteristics – such as fingerprints, facial structures, iris or retinal patterns and DNA – used for the automatic recognition, or to the automated process of recognising individuals on the basis of such characteristics. Biometrics factor in biological or physiological characteristics in order to determine and establish the legal identity of a person. This is especially relevant to refugees who, due to a well-founded fear of persecution, may cross borders using documentation with altered information to avoid persecution or to avoid the disclosure of the intention to flee, seeking international protection.
The United Nations defines ‘legal identity’ for operational purposes as the basic characteristics of an individual’s identity, such as name, sex, place and date of birth, conferred through registration and the issuance of a certificate by an authorised civil registration authority. Legal identity is commonly established by documentation papers and is socially construed, as it registers biological or physiological characteristics but also factual information, such as date and place of birth, and legal status such as nationality, statelessness, regular residency, etc.
The exclusive use of the human body as a source of legal identity in border areas and the use of biometric information in lieu of other types of identification may lead to a decision by border authorities to impose the penalty of return to a country where a person’s life is at risk. Discrepancies between biometrics and paper documentation may lead authorities to (mis)interpret and/or discredit a claim to international protection, thus, hindering the commitment of states to ensure due process at international borders and to ensure that all migrants are treated in accordance with International Human Rights Law and International Refugee Law, including the principle of non-refoulement.
Melissa Martins Casagrande
Melissa Martins Casagrande is a lawyer and independent consultant in the fields of Human Rights, Migration and Refugee Law. Member of the Global Academic Research Network (G.A.I.N.) of the Global Compact on Refugees. She holds a Bachelors’ degree in Law and a Masters’ degree in Public Law from Universidade Federal do Paraná (UFPR) in Brazil, and she is a Doctor of Civil Law degree from McGill University in Canada. She is currently a Postdoctoral Fellow and member of the Grupo de Pesquisa Biotec – Direito, biotecnologia e sociedade at Universidade Federal do Paraná (UFPR), and a member of the Grupo de Pesquisa Direitos Humanos e Vulnerabilidades of the Universidade Católica de Santos.
Derek Assenço Creuz
Derek Assenço Creuz is a researcher in the fields of Human Rights, Migration and Refugee Law. He holds a Bachelor’s degree in Law from Universidade Positivo (UP) in Brazil. He is also a member of the Grupo de Pesquisa Direitos Humanos e Vulnerabilidades of the Universidade Católica de Santos.