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The Refugee Convention was not written with the persecution of lesbian, gay, bisexual, transgender, queer or questioning, and intersex (LGBTQI) people in mind. This article shows the dilemmas this creates for LGBTQI asylum seekers and their advocates when establishing the case for protection. It uses the United Kingdom (UK) experience as an example and brings the literature on this topic up to date with reference to recent cases with implications for LGBTQI applicants. While there has been a welcome shift to recognize that LGBTQI persecution is a legitimate basis for asylum, contradictions and tensions between United Nations High Commissioner for Refugees, European, and UK guidelines and instruments, as well as between UK policy and practice, have resulted in a lack of consistency and fairness in the treatment of LGBTQI asylum seekers. The article identifies three specific areas of concern and goes on to show what happens when they converge, using a case that exemplifies some of the problems - AR (AP), against a decision of the Upper Tribunal (Immigration and Asylum Chamber) [2017] CSIH 52. It concludes by suggesting a shift in the focus of questioning, from the identity of the asylum seeker to the persecution in the country of origin, as a possible basis for fairer treatment of LGBTQI asylum claims. © The Author(s) (2018). Published by Oxford University Press. All rights reserved.
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In Europe asylum seekers are confronted with migration-filtering techniques when beginning their rights claiming procedures, during the decision-making process of their asylum claims, and finally across the procedural constraints imposed on them. In this article, I want to look at asylum through a focus on newly recognised refugee protection categories: sexual orientation and gender identity (SOGI). In so doing, I concentrate on the ordinary, yet effective, manifestations of the filtering devices inherent in the politics of asylum by examining the elusiveness of current migration control practices. I aim to elaborate on the discrepancy between the widening of refugee protection, through the inclusion of gender identity and sexual orientation as grounds of asylum, and the increasingly restrictive practices that define the refugee granting process in France and the UK. The analytical considerations in the article emerge from interviewing and conducting ethnography over a three-year period between London, Paris and Marseille with gender and sexual minority refugees, immigration lawyers and refugee support workers and volunteers. The article seeks to sociologically investigate the claim of ‘asylum as filtering device’ within two western European national settings.
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Migration is already a significant global phenomenon, and it is likely to become more so. According to a recent World Bank report, there are two hundred million international migrants. The study reports that “migration pressures” will continue “for the foreseeable future.” It will take “decades” to close income gaps between developed and developing countries; in 2015, the ratio between the average income of the high-income countries and that of the low-income countries stood at 70:1. A “well-documented demographic divergence” will add further pressure: “Population aging will produce large labor-market imbalances and fiscal pressures in high-income countries as the tax base narrows and the cost of caring for the old surges.” This increase in demand will complement an increase in supply. “If current fertility and national employment rates remain as they are in the developing world,” the Bank reports, by 2050 “nearly 900 million [will be] in search of work.” Climate change and disasters will have a more modest impact on the international level, although “increased drought and desertification, rising sea levels, repeated crop failures, and more intense and frequent storms are likely to increase internal migration.” And these numbers—measuring persons outside their home country for more than a year—do not include hundreds of millions of persons who cross international borders for shorter periods of time: tourists, students, temporary workers, business persons, asylum-seekers.
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Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.
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Examining the seminal judgment of the European Court of Justice (the ‘ECJ’) in the Ruiz Zambrano case (C‑34/09, EU:C:2011:124) and its progeny, this article is to illustrate the fact that in hard cases of constitutional importance the ECJ follows an incremental approach. This means, in essence, that the ECJ does not take ‘long jumps’ when expounding the rationale underpinning the solution given to novel questions of constitutional importance. On the contrary, the persuasiveness of its argumentative discourse is built up progressively, i.e., ‘stone-by-stone’.
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Over the past several years, there has been an increase in critiques of the European Court of Human Rights, most notably and surprisingly amongst its founding members, like The Netherlands. These critiques are often understood as a crisis of legitimacy. In order to assess whether this is the case, the definition and operationalisation of legitimacy is crucial. This article evaluates the critiques in the Netherlands, using a subjective understanding of legitimacy based upon works by Sharpf and Schmidt, who emphasise input, throughput and output legitimacy, but also that of the demos concerned. The latter dimension is often overlooked in other studies. The critiques of the European Court of Human Rights in the Netherlands are discussed on the basis of archival research, literature review, interviews and survey research. On the basis of the exploratory findings for the Netherlands, the article concludes that, in taking a subjective approach to legitimacy that covers all its dimensions, including support for the European demos, into account, the crisis of legitimacy could be deeper than most scholars estimate. Both the theoretical approach and the empirical insights from the Netherlands are considered of relevance to wider research on the legitimacy of the international human rights regime.
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This article explores the trope of the 'legal black hole' to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the 'war on terror', but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct 'legacies' of legal black holes: the counterterrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a conceptual typology of instances where persons are rendered rightless. While the two former types are characterized by de facto rightlessness due to a violation of international law, the latter exposes a seldom acknowledged, yet crucial, characteristic of international law; the age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de jure rightless is ultimately suggested as a broader research agenda for scholars of international law. The position of such individuals destitute of nationality may be compared to vessels on the Open Sea not sailing under any flag of a state, which likewise do not enjoy any protection whatever. © The Author(s), 2018. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved.
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Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realisation of Convention rights. As such it states a particular ordering of political and legal power between a central authority in the system of rights protection (the Court) and its member units (State legislatures and courts).The Protocol ‘s origins are to be found in the Brighton Declaration (2012) The following discussion takes as its frame of reference Article 10 jurisprudence of the Court as it touches upon political expression. The first section of materials sets the overall context for Protocol 15 by reference to the Brighton Declaration and the background concerns of certain Council of Europe States as well as the draft Copenhagen Declaration (2018). Then attention is devoted to the questions of democratic principle that are engaged by Protocol 15. Does greater deference to national decision-making threaten open channels of political participation? The final part of the discussion looks to the ‘post Brighton/Protocol 15 pre-entry’ period. The new argument that is made here suggests that a selective retreat away from substantive supranational review towards systemic supranational review in political expression cases may be occurring. Newer and transitional democracies remain subject to fairly strict levels of supranational scrutiny whilst their more established counterparts possessing well-established mechanisms of internal independent rights review look to be the main beneficiaries. Whilst such an emerging pattern may make intuitive sense, the discussion below questions whether it is in fact entirely problem free.
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In the debate surrounding the reform of the Dublin system, the idea of distributing protection seekers among the Member States on the basis of pre-determined quotas is gaining support. This article examines the proposals currently under consideration, and offers a critical appraisal in light of the experiences garnered under the Dublin system and the 2015 relocation schemes. It advances the argument that, in pursuing fair sharing among the Member States, such proposals risk replicating the failings of the Dublin system. It also advances the broader thesis that sharing large numbers of persons among states, without their consent, is dubious from a legal perspective and practically unfeasible, and that pursuing this option ultimately precludes any hope of establishing a fair, efficient and sustainable Common European Asylum System (CEAS).
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One of the most controversial issues concerning sexuality-based asylum claims in recent years has been "discretion" reasoning-the notion that a claimant can avoid persecution by behaving "discreetly." Though often challenged, such reasoning has remained resilient in the English-speaking common law jurisdictions, upon which research has mainly focused to date. This article broadens the debate by undertaking a detailed exploration of "discretion" reasoning in sexuality-based asylum claims in Germany and France, two of the major European civil law jurisdictions. In the first part, the article demonstrates that in very different forms "discretion" logics have traditionally also affected sexuality-based asylum claims in each of these jurisdictions. The second part of the article explores the effects that the Europeanization of asylum and the rejections of the "discretion" requirement by the UK Supreme Court in 2010 and the Court of Justice of the European Union in 2012 and 2013 have had on established French and German jurisprudence. The analysis reveals that rather than ending "discretion" reasoning in Germany and France, these developments have transformed it, such that it persists in a different shape. Much like in the common law jurisdictions, with all of its problematic implications, "discretion" reasoning remains deeply entrenched and resistant in German and French decision-making practice concerning sexuality-based asylum claims.
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During the first phase of the ceas, the cjeu considered that asylum-seekers had only limited opportunities to appeal against decisions to transfer them to other European countries based on the Dublin system. This interpretation was contrary to the right to an effective remedy enshrined in the European Convention on Human Rights and recognised as a principle of eu Law. With the second phase of the ceas, the cjeu ruled on two judgements in June 2016 (Ghezelbash and Karim) in which asylum-seekers benefited from the right to an effective remedy against Dublin transfer decisions. The scope of the judicial review was not limited to cases where there was a risk of being subjected to inhuman treatment as a result of 'systemic deficiencies' in the procedures and reception conditions in the receiving country. This article argues that this shift in the jurisprudence of the cjeu restores asylum-seekers' status as subjects of eu Law.
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This article debates a paradox in politics, law and social practice: Whereas human rights has become an effective strategy for framing grievances, the increasing appropriation of rights-talk to frame any and all grievances is undermining attempts to successfully address systemic social problems. I argue that issues such as poverty should be framed as social justice rather than human rights. In an attempt to further develop a sociology of human rights, I explore how framing a grievance as a human right shapes the way people understand both the problem and the solution, and the limits to framing social problems as rights violations. Canadians, in particular, typify a broader global experience of increasingly asserting rights-claims in everyday life, from the environment to bullying at school.
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The nationalistic, xenophobic, misogynistic, and explicitly anti-human rights agenda of many populist political leaders requires human rights proponents to rethink many longstanding assumptions. There is a need to re-evaluate strategies and broaden outreach, while reaffirming the basic principles on which the human rights movement is founded. Amongst the challenges are the need to achieve more effective synergies between international and local human rights movements and to embrace and assert economic and social rights as human rights rather than as welfare or development objectives. It will be crucial to engage with issues of resources and redistribution, including budgets, tax policy, and fiscal policies. There is a need for collaboration with a broader range of actors, to be more persuasive and less didactic, and to be prepared to break with some of the old certainties. Academics should pay attention to the unintended consequences of their scholarship, and everyone in the human rights movement needs to reflect on the contributions each can make. © The Author 2017. Published by Oxford University Press. All rights reserved.
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Why is there so much friction between EU citizens moving in the European Union and state authorities regarding the third country national family members of those citizens? What are the fears of state authorities and what are the objectives of mobile EU citizens regarding their family members? This article examines these questions from an interrogation of the case law of the Court of Justice of the European Union. It investigates the sources of disaccord or inadequate articulation between what EU citizens want and what state authorities seek to control.
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This article examines how and why the Court of Justice examines and cites the case law of the ECtHR after the entry into force of the Charter of Fundamental Rights in 2009. The Court's practice will be sketched on the basis of 20 interviews with judges, référendaires and Advocates General at the Court of Justice. It will be shown that the Court of Justice has examined and cited the Strasbourg case law less frequently and extensively. Several reasons will be given for this, primarily on the basis of the observations of the interviewees as to their readiness to cite the Strasbourg case law. This includes a growing awareness that both courts are different as well as strategic reasons related to the wish to develop an autonomous interpretation of the Charter.
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Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.
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This paper focuses on the burden of proof that queer asylum seekers encounter in Norway and how they tackle it. It is argued that queer asylum seekers translate their sexuality, sometimes strategically, to become readable in the Norwegian context. The act of translation appears to take the form of a ‘rainbow splash’ over the lives of the informants. The recurrence of similar narratives painted with similar colours contributes to a monolithic portrayal of sexualised and racialised asylum seekers, as they are unable to incorporate their own vocabularies during the act of translation. As a result, queer informants contribute to the (re)production of new norms about what it means to be a genuine queer person in need of protection. Therefore, genuineness remains an unattainable ideal for individuals seeking to negotiate their sexuality before, during and after the asylum seeking process.
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We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.
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Frontex and the EU Member States have been criticised for not carrying out sea surveillance operations coordinated by the Agency in full compliance with human rights obligations. While Frontex and the Member States are clearly obliged to respect human rights when carrying out maritime surveillance operations within their territorial waters and contiguous zone, the question is much more complex on the high seas and especially in the territorial waters of a third country. Therefore, the most problematic question in Frontex operations is the extraterritorial application of human rights obligations of the EU and its Member States. The aim of this paper is to determine to what extent Regulation 656/2014 has introduced a clear regulation of the interception and rescue operations coordinated by Frontex while at the same time fully respecting fundamental rights and, in particular, the principle of non-refoulement.
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In a unanimous judgment in the case Hirsi Jamaa v. Italy , the Grand Chamber of the European Court of Human Rights (Court) held that Italy’s “push back” operations interdicting intending migrants and refugees at sea and returning them to Libya amounted to a violation of the prohibition of torture and other inhuman or degrading treatment under Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR or Convention), the prohibition of collective expulsions under Article 4 of Protocol 4 to the Convention, and the right to an effective remedy under Article 13 of the Convention. Hirsi Jamaa is the Court’s first judgment on the interception of migrants at sea and it addresses issues concerning the 1982 United Nations Convention on the Law of the Sea and the 1979 International Convention on Maritime Search and Rescue, as well as the 1951 Convention Relating to the Status of Refugees.
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This article proposes a shift of perspective concerning the implementation of European Court of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years. Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage, the judgment itself and the post-judgment stage, the authors analyse the means by which the ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the long-term future of the European Convention on Human Rights system, namely full and timely judgment compliance.
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On 21 January 2011, the Grand Chamber of the European Court of Human Rights delivered its Judgment in M.S.S. v. Belgium and Greece in which it held that the applicant, an Afghan national, had suffered a violation of his rights by virtue of his return to Greece by Belgian authorities acting on the strength of the Dublin II Regulation. This is the first Judgment that the Court has delivered on the Dublin II Regulation and it comes at a time of effective stalemate within the Council of the European Union regarding its amendment. This article seeks to highlight the significance of this Judgment insofar as relates to the application of the Dublin Regulation and the Court’s role in safeguarding the supremacy of the fundamental rights of asylum-seekers even in the face of grave difficulties in managing mass influxes of asylum-seekers on the part of the Member States forming the external borders of the European Union. In doing so, the Court has asserted the fact that the premise upon which the Dublin Regulation is based is no longer tenable and has highlighted the ever-increasing need for a true European Union-wide spirit of solidarity on the part of all Member States.
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This article explores the practice of third-party interventions by human rights non-governmental organisations (NGOs) before the European Court of Human Rights (ECtHR). Although permitted for over two decades, this practice has not been exhaustively documented. The approach adopted in this research has been to carefully review the Court's database and to collect the amicus curiae briefs themselves, ranging from 1986 to 2013. This approach enables an accurate depiction of the amicus curiae activity before the Court in terms of figures. First, this research confirms the numerical increase of amicus participation. A little more than 140 human rights NGOs have been identified as third-party interveners before the Court: in addition to the traditional UK-based charities and large transnational human rights organisations, the Court is more and more confronted with the presence of smaller and more specialized groups, as well as, recently, conservative groups. Finally, the results challenge the assumption that the presence of human rights NGOs acting as amici increases the likelihood that the Court finds a violation. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
Article
This article investigates the reliability of the peer review of human rights judgments by the Committee of Ministers of the Council of Europe. It argues that, even if composed of politically motivated actors, the Committee is not to be dismissed too cursorily as a deficient and unreliable system of compliance monitoring. Evidence shows that formal and informal institutional constraints, in particular the presence of a strong Secretariat, constrain the propensity to bargain amongst Council of Europe diplomats acting as peers when monitoring the implementation of judgments of the European Court of Human Rights. Our finding runs contrary to the proposition that Europe constitutes a special case of cultural convergence around respect for international human rights law. The article further argues that hybrid models of compliance monitoring which combine political as well as judicial and technocratic elements may be more effective in facilitating human rights compliance than direct international court orders or expert recommendations.
Article
The modern refugee regime, created in the aftermath of World War II, provides protection mainly to people who flee individualized persecution or generalized violence. Subsequent to its creation, a range of new drivers of external displacement-particularly related to the interaction of environmental change, livelihood collapse, and state fragility-have emerged that fall outside the framework of the regime. In order to examine institutional responses to these people, this article develops the concept of survival migration, which describes people who have left their country of origin because of an existential threat for which they have no domestic remedy. It examines six case studies of national and international institutional responses to survival migrants from Zimbabwe, Somalia, and the Democratic Republic of Congo (DRC), which fall outside the 1951 Refugee Convention. Based on a conceptual model of regime stretching, the article offers an explanation for variation in the extent to which the existing global regime has adapted to address survival migration in different national contexts.
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In 2011, the ECrtHR and the CJEU put an end to blind trust as basis for the 'Dublin mechanism' including criteria to determine the responsible Member State for an asylum application. In this contribution, we question whether these decisions, also taking into account the Opinion 2/13 of the CJEU on the accession of the EU to the ECHR, provide clear guidelines for national courts with regard to the rebuttal of proof when fundamental rights are at stake. An analysis of decisions of the highest administrative courts of five countries establish that generally these courts allow rebuttal of trust assessing transfer decisions and that with regard to the burden of proof of 'vulnerable persons', they apply stricter rules to the state. The differentiated approach with regard to the content of the burden of proof and the obligations for asylum seekers to provide information on 'systemic deficiencies' in the other Member State remains however problematic.
Article
In 2011, the European Court of Human Rights (ECtHR) in its judgment on the case of MSS v Belgium and Greece , and the Court of Justice of the European Union (CJEU) in its judgment on NS and ME , established an interpretation of the so-called sovereignty clause of Regulation 343/2003 (Dublin II) by which its activation became mandatory in certain cases of serious risk of human rights violations. As a result, a regulation that in principle contained a power for states became the guarantee that the system respected the protection of human rights. In its judgment on K v Bundesasylamt , the CJEU examined the humanitarian clause of the Regulation and reached the conclusion that, in cases of dependency, the principle of protection of the family unit ‘normally’ requires states to keep or gather together the members of a family. In other words, one of the sections of the article that established the humanitarian clause, and that could have appeared discretionary for states, became one of the criteria for the assignment of responsibility. In the new Regulation 604/2013 (Dublin III), the sovereignty clause and the humanitarian clause are included in an article dedicated to the ‘discretionary clauses’. This paper argues that the interpretation of the scope of discretion in the Dublin system is to a large extent dependent on the interpretations of these clauses by the ECtHR and the CJEU. To date, the judgments by these two courts lead to the conclusion that the protection of the principle of non-refoulement interpreted in the light of the prohibition of torture and inhuman or degrading treatment, and the principle of protection of the family unit, define this discretion to the extent that these clauses become the mechanisms ensuring that these rights are respected in the European system known as Dublin III for assigning responsibility for examining an asylum application.
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This review article compares Thomas Gammeltoft-Hansen's analysis in Access to Asylum, with the outcomes of three recent landmark decisions of the European Court of Human Rights: Hirsi Jamaa, Al Skeini and Al Jedda. The central question of Gammeltoft-Hansen’s book is whether new practices of states in the field of immigration control—in particular extraterritorialization efforts such as push-back operations on the high seas or migration control in foreign territorial jurisdictions—have induced a progressive reaction in the relevant human rights courts. By examining its case law, this article demonstrates that the ECtHR is willing to use its interpretative tools to extend the human rights obligations beyond state territory if the involved state wishes to go that far. The ECtHR makes clear that it will counterbalance the circumvention of human rights and refugee rights obligations by providing a new interpretation to the concept of extraterritorial jurisdiction, which involves in particular a shift to a more functional reading of the effective control test.
Article
International refugee law, in particular the 1951 Convention on the Status of Refugees and its 1967 Protocol, has been accorded an exceptionally strong role in the framework for EU asylum policies. By virtue of EU primary law, it was established as a yardstick for secondary EU refugee law and its application by EU member states. As a consequence of this, the Court of Justice of the European Union (CJEU) has the power to interpret provisions of international refugee law. In fact, it has become the first international court actually interpreting the 1951 Convention and the 1967 Protocol. Expectations that this institutional setting would boost international refugee law through the strong framework of the EU were rising high after the establishment of the legal framework for EU refugee policies. More than twelve years after the adoption of the first asylum law instruments under EU law, and more than seven years after the first judgments were handed down, it is time for an assessment of how the Court has been dealing with the potential of applying and possibly shaping international refugee law.
Article
The CJEU decision NS and others has led to a debate on the meaning and consequences of ‘systemic deficiencies’ or ‘systemic flaws’ as a precondition for a transfer obstacle within the Dublin system. This contribution proposes a concept that avoids any inconsistency between the CJEU and the ECtHR: a systemic flaw within the receiving country is required for an arguable claim, and a real risk of an inhuman or degrading treatment in the individual case is sufficient.
Article
In de zaken X, Y en Z (C-199/12, C-200/12 en C- 201/12) oordeelde het Hof van Justitie op 7 november 2013 dat homoseksuelen een bijzondere sociale groep vormen, van homoseksuele asielzoekers niet kan worden verlangd dat zij discretie betrachten en dat de enkele strafbaarstelling van homoseksualiteit onvoldoende is om gegronde vrees voor vervolging aannemelijk te achten. Op 2 december 2014 beantwoordde het Hof van Justitie de vraag over de toets van de geloofwaardigheid van asielrelazen van homoseksuele asielzoekers in de zaken A, B en C (C-148/13, C-149/13 en C-150/13). Het Hof van Justitie heeft in deze uitspraak een beperkt aantal problematische onderzoeksmethodes ter vaststelling van de geloofwaardigheid van homoseksualiteit verboden. De vraag naar de rechtmatigheid van een aantal andere methodes blijft bestaan. Het Hof van Justitie laat deze toets aan de nationale rechter, en oordeelt dat bij deze toets de eerbiediging van artikel 1 EU Grondrechtenhandvest (menselijke waardigheid) richtinggevend is. HvJ 2 december 2014, gevoegde zaken C-148/13, C-149/13 en C-150/13, A, B en C, ECLI:EU:C:2014:2406 HvJ 7 november 2013, gevoegde zaken C-199/12, C-200/12 en C- 201/12, X, Y en Z, ECLI:EU:C:2013:720
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Abstract This article re-examines externalisation – direct migration control by Member States of the EU, within third states, i.e., States which are not members of the EU. The nature and extent of this control is considered. The instruments of externalisation examined are carrier sanctions and immigration liaison officers. State responsibility for these externalised migration controls is assessed. The jurisdiction of the ECtHR is the trigger for Member State responsibility. ECtHR jurisprudence has made it clear that it is the exercise of physical power and control over a person by the State, which is pivotal to deciding jurisdiction. Jurisdiction is engaged where the Court finds that physical power and control to have been ‘effective’. This threshold of ‘effective’ control which has emerged from the Court’s jurisprudence is a demanding hurdle. If State control is found to be ‘effective’, then the State is responsible for the full range of rights contained within the Convention. The question then stands whether or not the ECtHR can keep abreast with these controls which can lead to States evading jurisdiction and thus avoiding fundamental rights responsibilities. One possible interpretation of recent jurisprudence is that the ECtHR is moving toward a broader interpretation of jurisdiction. It is in this context that ‘externalised’ controls have come under renewed scrutiny. A prevailing opinion is that the ECtHR will be able to protect those asylum seekers who encounter externalised control. This article questions any such assumption. The author argues for an alternative reading of the jurisprudence of the ECtHR with regard to jurisdiction. The conclusion reached is that the hurdle of extraterritorial jurisdiction is so demanding that States avoid it despite exercising extensive control over migrants. It is asserted that despite this considerable control, examination by the ECtHR will result in a failure to satisfy the ‘effective’ control threshold. Responsibility can thus be avoided while extraterritorial control is retained. The control level held by the State is still capable of guaranteeing a denial of access to individuals in need of international protection. If jurisdiction is not engaged then this externalised migration control represents a divergence between State control and State responsibility. Taking the threshold for jurisdiction of the ECtHR as a starting point, the author suggests a distinction between externalisation on the one hand and the external dimension on the other. States, oftentimes with facilitation from the Union, pursue one of these two alternatives. Externalisation affords the State stronger and more direct control over the entry of the migrant into the territory of a Member State than the external dimension, where the control is indirect and weaker. This distinction allows for a refined understanding of externalisation and applies it to verifying Member State responsibility for externalised migration control.
Article
This article considers and reflects upon the ruling of the CJEU in Elgafaji relating to the scope of subsidiary protection under article 15(c) of the Qualification Directive1 following a referral of the Dutch Council of State. The latter asked the Court whether article 15(c) offered a supplementary protection in comparison with article 3 ECHR and, if so, what were the criteria for determining that subsidiary protection should be granted. A brief comment on the wording of the questions asked is followed by an analysis of the submissions of certain Member States and of the Commission. The Elgafaji ruling is then commented on in detail. This is an important ruling for the interpretation and implementation of article 15(c) by domestic courts. The Court affirmed the autonomy of EU law and held that EU provisions must be given an independent interpretation. It held that subsidiary protection and, in particular, article 15(c) should be given their full effect. It also held that ‘indiscriminate violence’ may extend to people irrespective of their personal circumstances. It underlined that collective factors play a significant role in the application of article 15(c). As to the burden of proof, the Court affirmed that the existence of a serious and individual threat to the life and person of an applicant to subsidiary protection is not subject to the condition that he adduces evidence that he is specifically targeted by reason of factors particular to his personal circumstances. Such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterizing the armed conflict reaches such a high level that a civilian returning to his country would face a real risk of subjection to the threat mentioned by article 15(c). The article also considers the post-Elgafaji case law of some Member States, such as Bulgaria, the Czech Republic, France, Germany and the UK.
Article
The concept of vulnerable groups is gaining momentum in the case law of the European Court of Human Rights. The Court has so far used it in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. Yet the appearance of the vulnerable-group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability as well as on the Court’s case law, this article offers a critical assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.
Article
The article discusses extraterritorial jurisdiction, migration control, and the Grand Chamber judgment of the European Court of Human Rights in the 2012 case Hirsi Jamaa and Others v. Italy. State sovereignty is addressed, along with an analysis of refoulement incidents involving European Union Member States. International obligations at sea are also examined in relation to refugees, asylum seekers, and human trafficking crimes. Keywords: Human trafficking
Article
The Hirsi judgment of the European Court of Human Rights stands out as a beacon for protecting the rights of migrants who attempt to cross the sea in search of a better life elsewhere only to be confronted with measures of interdiction. The European Court not only underscores the point that human rights do apply to migrants who are intercepted at sea, but also fleshes out the less straightforward issue of what human rights protection in the course of migrant interdiction should in practice amount to. This article comments on the judgment with a special focus on its wider implications: migrant interception and rescue operations at sea, direct and indirect refoulement under article 3 ECHR, and safe third country and readmission practices. It also reflects on the judgment’s consequences for European Union law.
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The concept of precedent is fundamental to domestic courts, especially in Anglo-American common law systems, where judges are bound to the court's past decisions. By contrast, precedent has no formal authority in international law. Legal scholars point to Article 59 of the International Court of Justice (ICJ) Statute in this respect, according to which international legal rulings are binding only on the parties in the dispute at hand, and have no bearing on matters outside of the case.
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L’arret rendu le 16 janvier 2014 par la Cour constitutionnelle de Belgique fait suite au recours en annulation que differentes ONG ont introduit contre certaines des dispositions encadrant l’examen des demandes d’asile de ressortissants de pays declares prealablement comme « surs », et particulierement, le mode de recours qui etait prevu pour contester les decisions de refus de protection internationale prises en premiere instance. La Cour Constitutionnelle integre non seulement les jugements emis par la Cour europeenne des droits de l’homme dans differents arrets rendus contre la Belgique ou elle juge que les juridictions administratives belges n’offrent pas un recours effectif au sens de l’article 13 de la Convention, mais va au-dela et accorde une dimension propre a l’article 47 de la Charte Europeenne des droits fondamentaux garantissant un caractere entier a la procedure d’asile.
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The article analyses the changes introduced to the Dublin system by the Dublin III Regulation concerning namely the provisions related to determining the Member State responsible for examining the application for protection, rules regarding procedural rights, the possibility to detain the person in order to secure transfer procedures and the “early warning mechanism”. It also assesses those rules from the point of view of fundamental rights.
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Professor Weiler confronts the most complex and multi-faceted, and indeed the deepest change in contemporary Europe-the evolving relationship between the European Community and its Member States. Without denying the importance of 1992, he argues that it was preceded by two deeper mutations in the structure of the European Community, mutations we must understand if we are to grasp fully the significance of 1992. Tracing the evolution of the Community's political structure from 1958 to the present, the Article concentrates on constitutional aspects of the Community, specifically relationships between the Community and Member States along the axes of political power and legal norms. Professor Weiler then confronts the evolving question of the division of competences between Community and Member State. Analyzing law's role in the Community in its living political matrix rather than as abstract ideal, Weiler follows the evolution of these center-periphery tensions and concludes with some observations on ideology, ethos and political culture in post-1992 Europe.
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Abstract Family reunification regulations in the EU are increasingly complex, and they vary for different groups of sponsors. This paper documents the existence of four parallel legal regimes for family reunification — national rules for citizens who do not move, EU rules for citizens who move within Europe, the Family Reunification Directive for third-country nationals in the EU, and since 2011, family reunification rights based on EU citizenship status. This paper asks how and why family reunification rules are being thus fragmented, and in particular why so-called ‘reverse discrimination’, where citizens are disadvantaged vis-à-vis non-citizens, is persisting and deepening. It draws on tools from political science, namely historical institutionalism and studies of policy transfer and Europeanization, to showcase the different logics that underlie these puzzling developments.
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The protection of irregular migrants' health-related rights brings to the fore the tensions that exist between human rights, citizenship and the sovereign state, and exposes the protection gaps in the international human rights regime. With this in mind, I consider the merits of a vulnerability analysis in international human rights law (IHRL). I posit that, detached from specific groups and reconceptualised as universal, vulnerability can be reclaimed as a foundation and tool of IHRL. I further contend that the deployment of a vulnerability analysis can alleviate the exclusionary dimension of IHRL and extend protections to irregular migrants. On this basis, I investigate the development of a vulnerability analysis in the case law of the European Court of Human Rights. I argue that, in contrast with the Court's vulnerable population approach, a vulnerability analysis can improve protection standards for irregular migrants in the field of health.