Refugee Law and Durability of Protection: Temporary Residence and Cessation of Status
... Temporary protection policies are nothing new in the practice of refugee law. While the primary legal instrument, the 1951 Refugee Convention, has traditionally been interpreted to provide longer-term protection (O'Sullivan, 2019a), states also grant complementary forms of protection to refugees who may not meet convention criteria but face a risk of serious harm if returned to their countries of origin (McAdam, 2007). The subsidiary protection status regulated by the EU Qualification Directive is one example. ...
... The Refugee Convention permits cessation of refugee status under certain conditions, including when the refugee '… can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality' or, if the person is stateless, the country of previous residence (Articles 1C(5) and (6)). Thus, while states may cease refugee status under certain conditions, they have rarely done so in individual cases (O'Sullivan, 2019a). With the exceptions of Germany and Australia, states have typically granted refugees permanent residence either immediately or at least predictably within a relatively short time (ECRE, 2016). ...
... The Refugee Convention permits cessation of refugee status under certain conditions, including when the refugee '… can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality' or, if the person is stateless, the country of previous residence (Articles 1C (5) and (6)). Thus, while states may cease refugee status under certain conditions, they have rarely done so in individual cases (O'Sullivan, 2019a). With the exceptions of Germany and Australia, states have typically granted refugees permanent residence either immediately or at least predictably within a relatively short time (ECRE, 2016). ...
This edited volume approaches waiting both as a social phenomenon that proliferates in irregularised forms of migration and as an analytical perspective on migration processes and practices.
Waiting as an analytical perspective offers new insights into the complex and shifting nature of processes of bordering, belonging, state power, exclusion and inclusion, and social relations in irregular migration. The chapters in this book address legal, bureaucratic, ethical, gendered, and affective dimensions of time and migration. A key concern is to develop more theoretically robust approaches to waiting in migration as constituted in and through multiple and relational temporalities. The chapters highlight how waiting is configured in specific legal, material, and socio-cultural situations, as well as how migrants encounter, incorporate, and resist temporal structures.
This collection includes ethnographic and other empirically based material, as well as theorizing that cross-cut disciplinary boundaries. It will be relevant to scholars from anthropology and sociology, and others interested in temporalities, migration, borders, and power.
The Open Access version of this book, available at http://www.tandfebooks.com , has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.
... The Refugee Convention permits cessation of refugee status under certain conditions, including when the refugee '… can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality' or, if the person is stateless, the country of previous residence (Articles 1C (5) and (6)). Thus, while states may cease refugee status under certain conditions, they have rarely done so in individual cases (O'Sullivan, 2019a). With the exceptions of Germany and Australia, states have typically granted refugees permanent residence either immediately or at least predictably within a relatively short time (ECRE, 2016). ...
... The Refugee Convention permits cessation of refugee status under certain conditions, including when the refugee '… can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality' or, if the person is stateless, the country of previous residence (Articles 1C (5) and (6)). Thus, while states may cease refugee status under certain conditions, they have rarely done so in individual cases (O'Sullivan, 2019a). With the exceptions of Germany and Australia, states have typically granted refugees permanent residence either immediately or at least predictably within a relatively short time (ECRE, 2016). ...
Neoliberal transformations in the field of asylum in Germany have, since 2016, placed an emphasis on labour market participation as the primary way through which refugees can establish long-term residence claims. Yet, while new arrivals are increasingly expected to rapidly integrate into this market, they are often armed with differential and precarious legal statuses which overwhelmingly determine the spheres of economic activity refugees can enter. This is especially true for the ever increasing number of rejected asylum seekers who are temporarily “tolerated”, for whom the only path to residence requires that they display their value as economic subjects to the German state. Based on ethnographic fieldwork conducted in Berlin between 2017 and 2020, I argue that, armed with little other than their cultural identities and networks, many refugees heavily relied on co-ethnic relationships to facilitate their participation in the labour market. The result is a displacement of the management of new diversity to ethnic economies, a move that disavows the marginalising consequences of the neoliberal transformations refugees are subject to. By masking a relationship between recently arrived migrants and the German economy and society as a relationship between migrants themselves, I argue that these practices work as alibis of exclusion.
This paper engages with the violent conditions deriving from neoliberal trends in European migration and asylum governance. We explore how continuous precarity, in conjunction with an integration imperative, affects the lives of recently arrived Afghan refugees in Germany and Switzerland. Drawing on critical engagements with the politics of integration and theories of violence, we argue that, in both European countries, Afghans are increasingly forced to earn their right to remain on the basis of labour-market performance instead of obtaining humanitarian protection. Based on qualitative interview data, we show that persons with a precarious legal status are urged to fulfil neoliberal integration requirements to avoid being deported to their country of citizenship. Employing the “continuum of violence” as an analytical entry point, we specify how the interplay and consequences of structural and cultural violence manifest in the way those affected navigate precarious living conditions and uncertain futures in receiving countries.
This paper reports on a comparative study of temporary protection (TP) mechanisms in Australia and selected European jurisdictions. Specifically, it analyzes policy developments and trends in the use of TP mechanisms in Denmark, Germany, and Australia through a systematic examination of the evolution of "substitute protection" mechanisms; their implications for "effective protection" and their impacts on key stakeholders. The policy analyses are augmented by interviews and survey questionnaires with key NGO service providers in the three target jurisdic-tions. The paper argues that the traditional link between Refugee Convention protection and national territorial jurisdiction and responsibility is being undermined by extraterritorial processing and offshoring arrangements. Résumé Cet article rapporte une étude comparative des mécanismes de la protection temporaire des réfugiés en Australie et dans certains pays européens. Plus précisément, on y ana-lyse l'évolution des politiques et les tendances du recours à la protection temporaire au Danemark, en Allemagne et en Australie par le biais d'un examen systématique de l'évolution des mécanismes de la « protection de rem-placement », de leurs conséquences pour la « protection effective » et de leurs impacts sur les principales parties prenantes. L'analyse des politiques est complétée par des questionnaires d'enquête et des entretiens avec les princi-paux prestataires de services non gouvernementaux dans les trois pays à l'étude. On propose que le lien tradition-nel entre la protection accordée par la Convention sur les réfugiés, la responsabilité et la compétence territoriale est mis à mal par le traitement extraterritorial des réfugiés et les modalités de leur délocalisation.
This article focuses on a key aspect of the EC Qualification Directive, namely, the grounds of eligibility for subsidiary protection. These grounds rest on a test for the risk of ‘serious harm’ were the applicant to be returned to his or her country of origin. If a genuine risk of harm is found, then the applicant would qualify for protection. Article 15 of the Directive defines ‘serious harm’ in terms of (a) the death penalty, (b) torture or degrading treatment, and (c) ‘serious and individual threat’ to a person arising from a situation of armed conflict. This article examines how English and French judicial authorities have applied the third paragraph (that is, Article 15(c) of the Qualification Directive) in recent asylum cases. In such cases, English and French judicial authorities have had to assess (1) the severity of the armed conflict and (2) the individual risk to asylum seekers. Such assessments must be informed by an understanding of the changing character of armed conflict, which has increased the threat to civilians, and by the human security paradigm, which offers a new way of conceptualising the threats to individuals in and from conflict.
In April 2004, the Council of the European Union adopted a Directive on minimum standards for the qualification of foreigners as refugees and the content of the protection granted. This article discusses the likely impact of this Directive on the jurisprudence of the United Kingdom relating to asylum. It recognises that some provisions in the Directive could be used by the member states as a way of lowering their existing standards. It also finds that in some places the Qualification Directive provides less in terms of protection than the Convention Relating to the Status of Refugees (or the European Convention on Human Rights) itself. This leads us to examine the relationship between EU law and international law, in particular in cases where the lowering of standard by a member state entails the violation of an international treaty, and the European Court of Justice is required to examine the legality of the Directive (and of national implementation measures) in light of international law. What is the relationship between the Qualification Directive and international law? Are the national courts and the European Court of Justice obliged to apply the Convention Relating to the Status of Refugees in cases of conflict between it and the Qualification Directive? This article answers these questions by drawing comparison with the relationship between EU law and the GATT/WTO law. It finds that the doctrine of direct effect is going to be central to the relationship between the Qualification Directive and the Convention Relating to the Status of Refugees. It concludes by considering the function of the Convention Relating to the Status of Refugees following the entry into force of the Qualification Directive.
This article explores one aspect of the controversies that have surrounded asylum seekers and refugees in Australia: the conflict between the executive government and the courts over who should have the final say in status determinations and protection issues generally. This author argues that a combination of history, culture and geography has resulted in an extraordinary intimacy of political involvement in the business of immigration control - setting the groundwork for remarkable clashes with the judiciary. The article sketches the development of Australia's jurisprudence on refugees, exploring the impact that public controversy and direct political pressure might have had on the formation of the law. The author notes that Australia's refugee jurisprudence is recent; it is generally conservative, textual and domestic in its focus. At the same time, the author argues that the jurisprudence represents a good example of 'globalisation' in public international law as Australian courts have both come to consider the refugee jurisprudence of other countries and have themselves contributed to international jurisprudence on refugees.
The impact of violence and conflict on refugee status determination and international protection is a key developing field. Given the contemporary dynamics of armed conflict, how to interpret and apply the refugee definitions at global and regional levels is increasingly relevant to governmental policy-makers, decision-makers, legal practitioners, academics and students. This book will provide a comprehensive analysis of the global and regional refugee instruments as they apply to claimants in flight from situations of armed violence and conflict, exploring their interrelationship and how they are interpreted and applied (or should be applied). As part of a broader United Nations High Commissioner for Refugees project to develop guidelines on the interpretation and application of international refugee law instruments to claimants fleeing armed conflict and other situations of violence, it includes contributions from leading scholars and practitioners in this field as well as emerging authors with specific expertise.
The status of the refugee in international law, and of everyone entitled to protection, has always been precarious, not least in times of heightened and heated debate. People have always moved in search of safety, and they always will. This completely revised and updated edition casts new light on the refugee definition, the meaning of persecution, the role of gender and sexual orientation, the types of harm, and the protection due to refugees. The book reviews the fundamental principle of non-refoulement as a restraint on the conduct of States, even as States themselves seek new ways to prevent refugees and asylum seekers arriving. The book analyses related principles of protection—non-discrimination, due process, rescue at sea, and solutions—in light of what States, UNHCR, and treaty-monitoring bodies actually do, rather than merely deductively. It closely examines relevant treaty standards, and the role of UNHCR in providing protection, contributing to the development of international refugee law, and promoting solutions. New chapters bring into focus evolving protection demands in relation to nationality, statelessness, and displacement in the context of disasters and climate change. The book factors in the challenges posed by the movement of people across land and sea in search of refuge, and their interception, reception, and later treatment. The overall aim remains the same as in previous editions: to provide a sound basis for protection in international law, taking full account of State and community interests and recognizing the need to bridge gaps in the regime which now has 100 years of law and practice behind it.
This fully updated and revised 3 rd edition of Preliminary References to the European Court of Justice provides a meticulous and yet easily accessible examination of all aspects of the preliminary reference procedure. A reference for a preliminary ruling is a request from a national court of an EU Member State to the European Court of Justice to give an authoritative interpretation on an EU act or a decision on the validity of such an act. Preliminary rulings have played a pivotal role in the development of the European Union. The European Union’s preliminary reference procedure has been copied by several other international organisations – including not least the European Economic Area (EEA) and the EFTA Court. Since the second edition, the European Court of Justice has rendered a considerable number of rulings which have led to important changes to the book. This is particularly reflected in the treatment of the Court’s acte clair doctrine, of preliminary references from administrative appeal boards and arbitration tribunals and of preliminary references regarding international agreements. And it is reflected in the interaction between the preliminary reference procedure and the European Convention on Human Rights as well as in a more general revision of the text bringing it up to date by taking into account new case law and new legal writings. With backgrounds as both practitioners and academics the two authors have produced a book that caters for the needs of both practitioners and academics.
Rwanda and the United Nations High Commissioner for Refugees (UNHCR) contend that the genocidal violence and harsh repression that forced thousands of Rwandans to flee their country between 1959 and 1998 have ended, making Rwanda safe for return. The UNHCR-invoked cessation clause came into effect in 2013 as part of renewed attempts to bring refugees 'home' from neighbouring countries, despite reports of increasing Statesanctioned persecution in Rwanda and beyond. Although UNHCR has commended the government for its efforts to repatriate Rwandan nationals, critics argue that this process of bringing refugees 'home' includes forced repatriation and denationalization. Refugees who do not return to Rwanda risk the consequences of de facto statelessness (the inability to enjoy the benefits associated with legal nationality) outside their country of origin, while political dissidents abroad face de jure statelessness (lack of legal nationality in any country) as punishment for criticizing President Paul Kagame and the Rwandan Patriotic Front ruling political party. This article argues that human rights protection - including protecting the 'right to a nationality' and preventing statelessness - must be of central concern. It is imperative that the international community presses for the development of genuine respect for human rights and democracy in Rwanda, and also considers the complexities of refugee repatriation in the context of Rwandan identity- and nation-building. © The Author (2017). Published by Oxford University Press. All rights reserved.
This article examines the impact of US refugee policy – with respect to the designation of temporary protected status versus
refugee/asylee status – on Liberians’ integration in the United States and participation in transnational activities. While
temporary protected status is granted on humanitarian grounds and offers legal protection similar to refugee or asylee status,
it does not provide access to services that promote integration. The emphasis on security and legal protection, rather than
political integration and citizenship, reflects a larger trend in US immigration and reception policy away from the promotion
of political belonging among immigrants. Data from the Liberian case indicate that policies to which Liberians were subjected
between 1980 and 2010 impacted Liberians’ civic participation in two important ways. The policy of awarding refugee/asylee
status to some Liberians while leaving others to languish with temporary protected status has exacerbated old ethnic divisions
among Liberians and created new divisions. Temporary protected status has also prevented Liberians from obtaining higher education,
which is a key mechanism through which Liberians seek to participate more fully as citizens in both the US and in Liberia.
Data were collected through documentary and archival research and 40 semi-structured interviews with Liberians in New York
City and Minneapolis-St Paul.
This book presents the first comprehensive analysis of the human rights of refugees as set by the UN Refugee Convention. In an era where States are increasingly challenging the logic of simply assimilating refugees to their own citizens, questions are now being raised about whether refugees should be allowed to enjoy freedom of movement, to work, to access public welfare programs, or to be reunited with family members. Doubts have been expressed about the propriety of exempting refugees from visa and other immigration rules, and whether there is a duty to admit refugees at all. Hathaway links the standards of the UN Refugee Convention to key norms of international human rights law, and applies his analysis to the world's most difficult protection challenges. This is a critical resource for advocates, judges, and policymakers. It will also be a pioneering scholarly work for graduate students of international and human rights law.
A range of emerging refugee claims is beginning to challenge the boundaries of the Refugee Convention regime and question traditional distinctions between 'economic migrants' and 'political refugees'. This book, first published in 2007, identifies the conceptual and analytical challenges presented by claims based on socio-economic deprivation, and undertakes an assessment of the extent to which these challenges may be overcome by a creative interpretation of the Refugee Convention, consistent with correct principles of international treaty interpretation. The central argument is that, notwithstanding the dichotomy between 'economic migrants' and 'political refugees', the Refugee Convention is capable of accommodating a more complex analysis which recognizes that many claims based on socio-economic deprivation are indeed properly considered within the purview of the Refugee Convention. This, the first book to consider these issues, will be of great interest to refugee law scholars, advocates, decision-makers and non-governmental organizations.
In managing the growing number of refugees arriving in the industrialised world, beginning at the end of the 1970s, States have devised increasingly restrictive policies. The objectives of these measures have been to restrict access to the territory or, at least, to asylum procedures. Thus, while international co-operation in the refugee field traditionally focused on protection and assistance, the last two decades have been characterised by the emergence of transnational policies aimed at containing refugee flows, primarily on the European continent. The convoluted refugee routes - often described as 'secondary' or 'irregular' movements of refugees between countries of origin and their final destination - have been among States' major preoccupations. To combat what they often perceive to be proof of the fraudulent or manifestly unfounded nature of asylum claims, European States have passed legislation or agreed on international instruments designed to allocate and even evade responsibility for the examination of asylum applications. Even bolder solutions have been advocated more recently, such as the outsourcing of asylum procedures through regional or offshore schemes. This book presents a critical legal analysis of the mechanisms and arrangements devised by States to tackle secondary movements of refugees, and offers innovative solutions to the protection crisis afflicting the global refugee regime. After providing a breakdown of the various legal tools used by States to combat secondary refugee movements, it argues that, while the legality of these various arrangements is in doubt, the most appropriate way to address these protection failures is to strengthen and develop adequate international accountability mechanisms.
The threats to human rights posed by non-state actors are of increasing concern. Multinational corporations, armed oppositions groups, and the activities of international organizations such as the United Nations, NATO, and the European Union are increasingly examined with recourse to a human rights lens. This book presents an approach to human rights that goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors and addresses some of the ways in which they can be held legally accountable in various jurisdictions. The political debate concerning the appropriateness of expanding human rights scrutiny to non-state actors is discussed and dissected. For some extending human rights into these spheres trivializes them and allows abusive governments to distract us from ongoing violations. For others such an extension is essential if human rights are properly to address the current concerns of women and workers. The main focus of the book, however, is on the legal obligations of non-state actors. The book discusses how developments in the fields of international responsibility and international criminal law have implications for building a framework for the human rights obligations of non-state actors in international law. In turn these international developments have drawn on the changing ways in which human rights are implemented in national law. A selection of national jurisdictions, including the United States, Canada, South Africa, and the United Kingdom is examined with regard to the application of human rights law to non-state actors.
Cessation is a process that removes refugee status. If cessation occurs too soon, it risks the lives of individuals sent back
to their countries of origin. If cessation happens too slowly or not at all, states may become more reluctant to accept refugees
in the first place. The most recent experiment in cessation is underway – and well behind schedule. Two deadlines recommended
by the United Nations High Commissioner for Refugees for the cessation of refugee status of Rwandans have come and gone, yet
some 100,000 Rwandan refugees remain in countries of asylum. This article hypothesizes that the delay to implementation of
Rwandan cessation by many African states is driven by regional political concerns with irregular migration. Unilateral cessation
may cause undesirable irregular migration, which poses a challenge for a region composed of states with varying levels of
support for cessation and at various stages of implementation. Cessation is a state prerogative but may only work effectively
as an act of regional consensus. Meanwhile, Rwandan refugees are faced with indefinite uncertainty about their legal status.
Most Rwandan refugees have not experienced premature cessation, but delayed cessation. If coordinated implementation of cessation
does not occur, the outstanding Rwandan refugee population will dwindle slowly over time, primarily because individuals opt
for voluntary return or host states increase local integration. As delays mount in implementation and enforcement of the ceased
circumstances clauses, one must conclude that the UNHCR advisory deadlines for cessation were premature, or that cessation
has not proved as effective as the 1951 Refugee Convention intended – or both.
The governance of the refugee regime requires conceptual clarity. An essential part of that regime is the conduct of refugee status determination. One form of refugee status determination is widely conducted but is poorly understood and often misconstrued. It is known as prima facie refugee status determination, a term which commentators from academia, practice, and United Nations High Commissioner for Refugees often conflate with terms such as temporary protection, group determination, and mass influx. This article explores literature on the practice of prima facie refugee status determination to identify its unifying features, and to distinguish its boundaries. It finds that the practice of prima facie refugee status determination is largely consistent despite not being codified in international law. This coherence demonstrates the clear, albeit informal, governance role it plays in the refugee regime. Prima facie refugee status determination is an expedited form of individual refugee status determination. It is used when States lack capacity to conduct refugee status determination that includes regard for exclusion and non-inclusion from Convention protection. The result is a unique legal status that allows for repatriation and local integration, but not resettlement. Unlike temporary protection, prima facie refugee status determination is not of a pre-determined duration. However, it is linked with one of two conceptions of mass influx. The article concludes that prima facie refugee status determination should be governed more predictably. It recommends recourse to a numerical formula by which United Nations High Commissioner for Refugees could decide to use or lobby for prima facie refugee status determination.
This contribution is meant as a counterpoint to a recent RSQ article by Hugo Storey on the inter-penetration of international humanitarian law (IHL) and refugee law. In lieu of Storey's pivotal concept of armed conflict, this analysis is articulated around a discussion of discriminate and indiscriminate violence, informed by the basic distinction under international law between refugee protection and other forms of extra-territorial protection. 'Victims of armed conflict' who find themselves outside their countries of nationality qualify for extra-territorial protection, not as a homogeneous category, but on a number of distinct and different grounds, which respect a logic that cannot be reduced to a simple IHL paradigm. In particular, to take IHL as a starting point for the assessment of refugee claims under the 1951 Convention obscures the fact that persecution - the central concept in refugee law - often occurs in the midst of, and at times by means of, armed violence. While 'matters of armed conflict' would be expected to assume greater prominence in the application of complementary (regional) refugee criteria, such as those found in the 1969 OAU Convention or the 1984 Cartagena Declaration, the IHL reading of these additional grounds has failed to explore the causal link between the conduct of belligerents and displacement or flight. As for the significance of armed conflict and other IHL-looking concepts in Article 15© of the EU Qualification Directive, it is marred by the convoluted language of this compromise provision, which has not been remedied by the interpretive acrobatics of the European Court of Justice. In the final analysis, the most relevant question is the following: what rights and/or interests, threatened by armed violence, are protected by Article 15©, that are not covered by Article 1 A(2) of the 1951 Refugee Convention? Recent research into the causes and character of armed conflict and the effects on civilians' survival strategies points to the continuing inability of existing legal definitions to answer the above question in ways that meet the needs of today's refugees. The article suggests a few avenues to confront this practical 'war-flaw', including a reflection on the non-refoulement potential of customary rules of IHL.
This article comments on the ruling of the CJEU in Abdulla, on the interpretation of the cessation clauses of the Qualification Directive (QD) concerning the change of circumstances. Part 2 considers the referral, constituted of three questions. Part 3 comments on the decision, after two remarks on its context: the use of article 1C(5) of the 1951 Convention by EU Member States, and the very uneven way the QD has been transposed by them, as shown by the Commission's report.The first question was on the meaning and scope of article 11.1(e) QD. The Court held that the 'change of circumstances' mentioned in article 11.2 QD must be interpreted by reference to article 7.2 on the definition and content of protection. It insisted on the scope and nature of the verification and assessment of facts and of circumstances by domestic authorities. The significant and non-temporary nature of such a change implies that there are no well-founded fears of acts of persecution amounting to some serious violation of basic human rights within the meaning of article 9.1 QD on acts of persecution. Hence a link between the cessation due to a change of circumstances and the definitions of protection and of persecution by the QD.On the second question, concerning actors of protection (article 7.1(b) QD), the Court held that they may comprise international organisations controlling the state or a substantial part of its territory, including by means of a multinational force in that territory.The third question related to the standard of proof. The Court held that during cessation proceedings a refugee does not normally have the same opportunities to assess the risk to which he would be exposed in his country of origin as does an applicant who has recently left it. The standard, however, does not vary. On the relaxation of the burden of proof under article 4.4 QD, the Court held that this provision may apply when there are earlier acts or threats of persecution connected with the reasons for persecution examined.It belongs now to domestic authorities and courts to apply this well-reasoned decision. © The Author (2011). Published by Oxford University Press. All rights reserved.
The invocation of Clause 1C(5) of the Refugee Convention 1951, the ceased circumstances cessation clause, is a site of negotiation between the legal principles that underpin the international refugee protection regime and the practical constraints of international politics. On 13 May 2010, a Tripartite Commission, composed of the governments of Uganda and Rwanda and UNHCR, issued a joint communiqué announcing that, on 31 December 2011, the Government of Uganda will apply the cessation clause to its Rwandan caseload. This article contends that the practice of cessation as it is unfolding in the Uganda-Rwanda context does not satisfy the substantive and procedural legal requirements of the ceased circumstances cessation clause, as elaborated by UNHCR's Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees. Rather, cessation is being utilized prematurely as a tool to end a protracted refugee situation, in a way that risks further undermining the integrity of the refugee protection system. In particular, Uganda's creation of a situation of 'constructive cessation' demonstrates the challenges in reconciling the individualized evaluation of persecution with the invocation of cessation for a group; the principles of non-refoulement with the surrogate character of the international protection system; and ongoing protection objectives with the search for durable solutions. © The Author (2012). Published by Oxford University Press. All rights reserved.
Résumé
Directeur pour la protection à l'Office du Haut Commissaire des Nations Unies pour les réfugiés, l'auteur brosse un large tableau des activités dévolues au HCR, que résume la notion de « protection » des réfugiés. Après avoir brièvement rappelé l'histoire de la protection internationale des réfugiés, elle examine la question de savoir si la Convention de 1951 relative au statut des réfugiés est toujours à la hauteur pour résoudre les problèmes liés aux migrations de masse qui caractérisent notre époque. Mêime si la Convention de 1951 n'est pas idéale, elle reste le seul traité international reconnu par la quasi-totalité des États pour légitimer le régime de protection des réfugiés. Afin de renforcer cette protection, le HCR a récemment engagé une vaste consultation des États, des organisations non gouvernementales et des réfugiés eux-mêmes pour mieux définir les problèmes et y trouver des solutions dans le contexte actuel. L'auteur est convaincu que cette consultation renforcera la détermination de la communauté internationale à mieux protéger les réfugiés.
On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an 'Arrangement' for the transfer of asylum seekers. Its stated aim was to deter asylum seekers from travelling by boat to Australia by providing that the next 800 asylum seekers to arrive unlawfully would be transferred to Malaysia in exchange for the resettlement of 4,000 UNHCR-approved refugees living there. The success of the Arrangement relied on Malaysia being perceived as an inhospitable host country for asylum seekers, with the Australian Government emphasising that it provided the best form of deterrence. A successful challenge to the High Court of Australia found that the Arrangement was unlawful under the Migration Act 1958 (Cth). This article examines the background to the Arrangement and the implications of the High Court’s decision for the future development of Australian refugee law and policy. In particular, it analyses the international law dimensions of the judgment relating to the reception, processing and protection of asylum seekers and refugees.
The passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) in September 2011 has brought significant and welcome changes to the Migration Act 1958 (Cth) (‘Migration Act’). By implementing a system of ‘complementary protection’ in domestic law, it gives effect to Australia’s international human rights law obligations not to return people to places where they face a real risk of arbitrary deprivation of life, the death penalty, or cruel, inhuman or degrading treatment or punishment. However, the legislation makes the Australian system of complementary protection far more complicated, convoluted and introverted than it needs to be. This is because it conflates tests drawn from international and comparative law, formulates them in a manner that risks marginalising an extensive international jurisprudence on which Australian decision-makers could (and ought to) draw, and in turn risks isolating Australian decision-making at a time when greater harmonisation is being sought.
In Chapter 1 I introduce the question of enquiry, the relation between Community and international law on asylum. Further, I sketch the content of the Refugee Convention, other relevant international law, the historical background of current Community asylum law (i.e. the asylum acquis from before 2000), and discuss the rules of interpretation that apply to international and to Community law.
In Chapter 2 I first discuss which consequences the transfer of powers on asylum to the Community may have for the legal obligations of the Member States under international law. Then, I address the question whether and if so, how or in how far the Community is bound to observe international law on asylum. International law may work within the Community legal order in three ways. First, as international customary law, second, as sources for “general principles of Community law” and third, through reference in Article 63 of the Treaty on European Community (TEC). Finally, I discuss the legal meaning of the Charter of Fundamental Rights and the content of Charter provisions that may be relevant for asylum.
In Chapter 3 I discuss the Treaty basis for Community legislation on asylum. I analyse the objectives of asylum law as defined by Article 61 TEC, the material, personal and territorial scope of the sub-paragraphs of Article 63 TEC and the concept of harmonisation, in particular minimum harmonisation. It turns out that most Community law on asylum sets “minimum standards”. The Member States must comply with these standards, but they are free to adopt domestic law that sets standards that are more favourable for the asylum seeker or refugee. Finally, I discuss the legal basis for asylum legislation in the Constitution for Europe.
In Chapter 4 I introduce the concept of the “common European asylum system”, and describe how the various Directives and Regulations on asylum relate to each other. For example, Directive 2004/83 (the Qualification Directive) does not define its scope of application; in fact, the scope defined in the Draft Directive on Procedures applies. I further describe and analyse some common aspects of the various pieces of Community legislation on asylum, such as objectives, personal scope and so on.
In Chapter 5, I analyse the rules on qualification for refugee status, subsidiary protection status and temporary protection status, laid down in the Qualification Directive and the Temporary Protection Directive. I do not address each status separately, but discuss the elements of these definitions (such as standards of risk and proof, actors of protection and so on) in combination, and address in how far these rules are up to the standards set by the Refuge Convention and other relevant instruments of international law. It turns out that the Community legislation is in some aspects up to these international law standards (such as the rules on actors of persecution); that it does not address some other aspects (the standard of proof); and that for yet other topics, it suggests a standard that falls short of international law standards (such as the causal nexus between persecution act and persecution grounds). Finally, I analyse in what respects the requirements for qualification for the various statuses differ, in order to sort out in how far subsidiary protection has practical meaning next to refugee status.
In Chapter 6 I discuss asylum procedures I analyse in some detail rules of international law on both examination of asylum applications at first instance and on appeal procedures. In particular, I address the implications of Articles 33 of the Refugee Convention and 3 ECHR, as interpreted by the Strasbourg Court. Then I discuss the standards on asylum procedures laid down in the Procedures Directive – rules on organisation, procedural safeguards and grounds for refusal. It turns out that those safeguards are in some respects inadequate: the rules on access and on a personal interview do not sufficiently secure that the merits of each applicant’s claim are examined in accordance with international law standards. Further, the provisions on subsequent applications and on the safe country of origin exception set standards that, if applied, could lead to refoulement. Finally, I briefly address rules on withdrawal procedures in both international and Community law.
In Chapter 7 I address the several varieties of the ‘safe third country exception’ that occur in Community law on asylum: the rules on allocation of applicants within the European Union and the European Economic Area laid down in the Dublin Regulation, the Dublin Convention and related agreements, and the rules on allocation of applicants to safe non-Member States pursuant to the Procedures Directive. I discuss in some detail the implications of international law for all those third country arrangements: the safeguards that the third country should offer (should it perform determination of refugee status?), and the way Member States should examine whether the third country is safe or not (can they assume that another state is safe because it ratified the Refugee Convention, or should they examine in each individual case whether chain refoulement is imminent or not?). Community law rules on the first topic appear to be very much in accordance with international law, but the rules on the second topic show many flaws.
In Chapter 8 I address the secondary rights (claim to a residence permit, schooling, access to the labour market et cetera). First, I discuss the personal scope of the various benefits laid down in the Refugee Convention, that is, the question when is a refugee is “lawfully present” or “lawfully staying” as required by several Refugee Convention provisions. Further, I address the question whether formal determination of refugee status is required for entitlement to Convention benefits. It turns out, that such determination is required for some, but not all benefits. Subsequently, I discuss the case-law of the European Court of Human Rights on family unity (Article 8 ECHR) as far as relevant for persons in need of protection. Then I discuss the sets of secondary rights, including claims to family reunification, that are attached to each of the protection statuses established in Community law – refugee, subsidiary protection, temporary protection and applicant status. I compare them and analyse whether these sets are up to the standards set by the Refugee Convention and Article 8 ECHR.
In Chapter 9, I address the Community law concerning juridical supervision as far as relevant for asylum law. I address how domestic courts could give effect to Community law on asylum, and which rules appear to have direct effect. Further, the issue on what aspects of international asylum law the European Court of Justice is competent to rule. After discussing the implications of Article 68 TEC for preliminary questions on asylum law, I discuss the possibility of conflicting rulings by the European Court of Justice and domestic courts, and ways to solve such conflicts. Finally, the review by the European Court of Human Rights of Community legislation and Member State acts based on that legislation is discussed.
In Chapter 10, I summarise the main conclusions. I conclude that for the present, it is unlikely that Member States will face conflicts between their obligations under international law and those under Community law on asylum, because the latter states for the most part minimum standards. The present set of Community legislation adds to the safeguards set by international asylum law at least in two important respects. First, it entails a subjective right to asylum; second, it partially codifies the Strasbourg case-law on the prohibition on expulsion ex Article 3 ECHR and secures a set of secondary rights for persons within the scope of the latter prohibition. However, Community legislation on asylum states or suggests in many respects standards that fall short of those set by international law, and may hence cause downwards harmonisation.
Among essential elements of the refugee definition, the internal flight alternative has been a source of difficulties of interpretation and application. In the context of a legal framework of international protection its logic is irrefutable. But the text of the Convention does not spell it out; the treatment in UNHCR's Handbook is cursory and controversial; and it has gone by different names. Underlying these difficulties is a shared concern about the potential rigours of the test, its uncertain implications for asylum seekers; and the temptations it offers decision-makers intent upon quick-fix dispute resolution. This article examines developments in the IFA test in recent international jurisprudence. After a brief textual analysis, a number of key features of the test are examined: its name; the relevance of paragraph 91 of the Handbook ; the burden and standard of proof; its temporal and spatial dimensions; the proper formulation of its two prongs , one relating to safety of alternative place, the other relating to access; the role within the test of the criterion of reasonableness , especially in terms of its meaning and scope. Particular attention is given to the close interplay that this test entails between the concepts of well-founded fear of persecution and the concept of effective protection. Resolution of one of the main points of divergence in the international jurisprudence, that relating to the reasonableness test, is attempted in terms of the test's spatial parameters. It is further proposed that the time is ripe for more systematic application in terms of a structured human rights approach, an approach which needs applying even to the notion of undue hardship. Also covered is the emerging role of a parallel IFA test in the context of major international human rights treaties that guarantee extra-Convention protection. It is argued that the time is ripe for fuller guidelines on the test in accordance with a coherent framework of analysis. A need is identified for more IFA-specific data to aid better-quality decision-making.
This article examines the limits to harmonization at the level of the European Union through a case study of policy towards people who fled the war inBosnia and Herzegovina in the early 1990s.
Specific attention is paid to the development of the policy of granting“temporary protection” instead of full refugee status to Bosnian asylum-seekers, which stretched across all fifteen member states.
It is argued that “temporary protection” emerged as a set of specific responses to the outbreak of war in the former Yugoslavia, involvingcompromises between states’ desires to restrict asylum on the one hand, but meet demand from public opinion and international organizations to offerprotection to refugees on the other.
Subsequent analyses have suggested that these compromises might providean effective way forward for harmonization of policy at a European level,and even a reformulated international system of refugee protection.
However, the authors question this view: they analyse the extent to which“temporary protection” for Bosnians was coordinated, and whether it actually provided the states and individuals with the benefits that have been suggested.
After brief discussion of the general losses refugees incur in connection with displacement, the paper examines empirically the structural and institutional factors that discourage refugees from taking initiatives to recoup their losses and to construct sustainable livelihoods in countries of asylum, as well as the conditions that perpetuate poverty, vulnerability, and marginalisation. The paper argues that in developing countries refugee status, regardless of duration, leads to the acquisition of neither nationality nor denizenship. Basic rights and sources of livelihoods are apportioned on the basis of nationality and not residence. Lack of belonging to a spatially bounded community or geo-political state entity is therefore the single most important factor that prevents formulation and implementation of long-term development programmes.
This article analyses the application of Article 1C(5) of the Refugee Convention in Australia. Article 1C(5) provides that
refugee status may cease to apply to a refugee where the circumstances giving rise to his or her refugee status have ceased
to exist (for instance, where there has been a relevant change in circumstances in the refugee's home country). This cessation
clause has rarely been applied to recognised refugees by states parties to the Convention. However, since 2003, Australian
refugee determination bodies have applied the clause to withdraw refugee status from those recognised refugees who hold temporary
protection visas. The Australian High Court considered the application of Article 1C(5) in a judgement handed down in November
2006. This article will examine how domestic protection interacts with international refugee status in the context of Article
1C(5). Although this article deals with the application of Article 1C(5) by Australia, it also has broader implications for
many other jurisdictions.
The wars of dissolution in the Former Yugoslavia from 1991 to 1995 created a refugee crisis on a scale unseen in Europe since the end of the Second World War. A chief aim of the aggressors in these wars of dissolution was to physically displace large numbers of people utilizing systematic terror campaings of murder, rape, torture, and other forms of intimidation - collectively known as ethnic cleansing. The goals of ethnic cleansing were to create ethnically pure territories within the former Republics, specifically those that previously confederated to form the Socialist Federal Republic of Yugoslavia (SFRJ), and to force the re-drawing of national boundaries to reflect the ethnic make-up of the newly devised majorities in these territories. This article addresses the problems inherent in the application of temporary protection to the large number of genuine 1951 Convention refugees from Bosnia and Herzegovina, and argues that refugees from Bosnia and Herzegovina who spent more than five years under temporary protection status in Europe and were in fact meeting criteria for the 1951 Convention status should be granted that refugee status and thus given the opportunity to remain in the countries where they have already integrated their lives and established intentional residence. It is further argued that by granting 1951 Convention status and later possibly applying the cessation clauses of the 1951 Convention Relevant to the Status of Refugees, would thereby better secure the ultimate goals of refugee protection. A timely and truly voluntary return to Bosnia and Herzegovina, through the application of the cessation clauses, would better serve the European States' ultimate idea that led to the introduction of the temporary protection regimes in respective states. In addtion, volunary return of citiznes of Bosnia and Herzegovina to their original homes will incorporate very important human element into the efforts for a lasting peace and stable future for the state.
This paper examines how the refugee protection obligations of European countries have been affected by increasing integration
and enlargement of the European Union. The creation of an EU area without internal border controls for the movement of persons
has had a profound effect on the way in which countries in the European area interpret their protection obligations. On the
one hand, there has been an attempt by EU Member States to justify an interpretation of protection obligations which permits
a pooling of responsibility for asylum seekers and refugees among a number of states (often to the detriment of their neighbours),
on the other, there has been an increasing judicialisation of protection duties at the supra-national level through the European
Court of Human Rights which has pushed in the direction of a ‘collectivisation’ of responsibility. An important tension is
evolving regarding the extent of protection obligations which is being played out on the body of the refugee: when is she
within the jurisdiction and when is she not?
Lack of national protection is one of the constituent elements of the refugee definition embodied in the 1951 Refugee Convention and in the Statute of UNHCR. To be recognized as a refugee under these instruments, a person who is outside their country of nationality must establish, among other matters, that he or she is unable or, owing to well-founded fear of being persecuted for any of the relevant reasons, unwilling to avail themselves of the protection of that country. The author argues that the meaning of this requirement is often misunderstood in current discussions on international refugee law. According to one view, the protection to which the refugee definition alludes is `internal protection`, that is, the protection that the State must provide within its territory to victims or potential victims of persecution. In the view of the author, this view is not supported by the drafting history of the refugee definition, and is not consistent with the wording of the relevant texts. On the contrary, the term `protection` in this context means `diplomatic protection`, that is, the protection accorded by States to their nationals abroad. The article further considers the circumstances and parameters within which the notion of `internal protection` is relevant to the determination of refugee claims.
The present paper argues the inclusion of powerful, international NSAs in the category of 'international legal persons.' The argument builds on the generally accepted idea that for the purpose of both the protection and the accountability of entities within the international legal system, these should have the enhanced status of legal 'subject' rather than 'object.' Behind this legal reality lies the normative reality of the international rule of law ideal: powerful entities that operate to some degree independently on the international plane should be controlled by law and held accountable for their actions. In other words: political or economic actors should be visible also in the international legal order. After these preliminary propositions, this chapter examines if and how the international legal personality (ILP) of NSAs may be constructed today. I distinguish three ways in which the ILP of NSAs is construed within the parameters of the conventional conception of ILP: a) ‘transnational ILP,’ b) ‘soft ILP,’ and c) ‘regular ILP.’ The chapter proceeds, however, to search for a new grounding of ILP theory. This search is supported by the general dissatisfaction with the formal conception of ILP, which draws on fiction theory. I will suggest to reconsider the ‘real personality’ theory or ‘realist’ theory of international legal personality. This paper aims to provoke debate on the possibility of a ‘new’ realist theory so that we may be better equipped when addressing questions of NSAs and international law. In doing so it also aims to build an argument against the popular conviction that the concept of ILP and its theory has flopped. It defends the view that ILP is relevant and useful in today’s international legal reality, provided that a new theoretical grounding is developed.
This article argues that the use of the temporary safe haven visa mechanism, as presently structured, has already resulted in, and will continue to result in, diminished access to Australia's protection for those non-citizens entitled to protection under the Convention Relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and/or the International Covenant on Civil and Political Rights.
The premise that citizenship is necessarily a national enterprise finds much support in conventional political and legal thought. The view was perhaps most famously articulated in this century by Hannah Arendt, who wrote that a citizen "is by definition a citizen among citizens of a country among countries. His rights and duties must be defined and limited, not only by those of his fellow citizens, but also by the boundaries of a territory..." But is citizenship, in fact, inextricably bound up with the nation-state? The question of where citizenship can be said to "take place," and in particular, whether it can, and should, be said to exist beyond the boundaries of the national state, is beginning to surface in the recently revitalized debate over citizenship in political and social and legal theory. In the past few years, a handful of scholars and activists have announced the growing inadequacy of exclusively nation-centered conceptions of citizenship. Citizenship is becoming increasingly denationalized, they have argued, and new forms of citizenship that exceed the nation are developing to replace the old. They have coined phrases for these alternatives: "global citizenship," "transnational citizenship," "postnational citizenship." Despite the charges of various critics, I contend in this paper that such arguments are neither incoherent nor undesirable in principle--though some formulations are more convincing than others. Rather, it seems to me both sensible and worthwhile in at least some circumstances to talk about citizenship in ways that locate it beyond the boundaries of the nation-state. Doing so does not necessarily mean embracing a classical cosmopolitan creed; neither does it require a complete repudiation of national conceptions of citizenship. It means, rather, an acknowledgement of the increasingly transterritorial quality of political life, and a commitment to a vision of citizenship that is multiple and overlapping. Of course, determining whether conceiving of citizenship beyond the nation-state is coherent and/or worthwhile depends a great deal on our understandings of citizenship itself. As it happens, the meaning of citizenship has been, and remains, highly contested among scholars. The term has an extraordinarily broad range of uses; it is invoked to characterize modes of participation and governance, rights and duties, identities and commitments and statuses. I argue in this paper that the struggle over the concept of citizenship beyond the nation-state is, in this respect, ultimately a struggle over the meaning of citizenship tout court. This is a struggle that matters because citizenship is a core concept in our political and moral and legal vocabularies. And such concepts, we now know, are not merely descriptions of the social world; they are an integral part of its fabric. There is a great deal at stake, therefore, in the way we use the term citizenship. The apparently oxymoronic notions of trans/postnational/global citizenship challenge conventional presumptions that the nation-state is the sole actual and legitimate site of citizenship.
In this article I employ the resources of political theory to examine and provide an answer to the question of how liberal democracies should respond to the claims of refugees to enter and reside in their territory. I begin by considering questions of value: I argue that a convincing ethical ideal must strive to balance the competing claims of citizens and refugees. Moving to issues of agency, I show that any standard must also accommodate itself to the difficulties of predicting the consequences of entrance, the responsibilities states currently accept, and the way that politics constrains the efforts of states to assist refugees. I conclude by proposing the principle of humanitarianism as a way of reconciling the demands of value with those of agency. I argue that adherence to this principle would improve the refugee policies of liberal democratic states.
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are the two primary international legal instruments that states use to process asylum seekers' claim to refugee status. However, in Southeast Asia only two states have acceded to these instruments. This is seemingly paradoxical for a region that has been host to a large number of asylum seekers who, as a result, are forced to live as 'illegal migrants'. This book examines the region's continued rejection of international refugee law through extensive archival analysis and argues that this rejection was shaped by the region's response to its largest refugee crisis in the post-1945 era: the Indochinese refugee crisis from 1975 to 1996. The result is a seminal study into Southeast Asian's relationship with international refugee law and the impact that this has had on states surrounding the region, the UNHCR and the asylum seekers themselves. Yes Yes
Australia's refugee record has been brought into question. This article focuses on the most recent legislative amendments to the Temporary Protection Visa regime, spurred on by the diplomatic incident over the MV Tampa . This article finds, however, that the Tampa incident was just another example of the dwindling quality of asylum in Australia spanning more than a decade. It examines several important aspects of the refugee protection regime, including reduced periods of stay for refugees, systematic review of their status, no right to travel documents or to travel outside Australia and consequent denial of re‐entry rights, and no entitlement to family reunification, for refugees arriving in an unauthorised manner. Other legislative amendments are also reviewed, including removal of grounds for judicial review, and the excision of territory from the ambit of the Migration Act 1958 (Cth). The article concludes that some of Australia's legislative amendments are clearly in breach of international refugee law, while others are perilously close.
Since the Treaty of Westphalia in 1648 the refugee regime has evolved with our modern state system, reflecting changes in international law, politics, economics and ideology. Responding to a history of religious and political persecutions, a comprehensive refugee regime finally emerged under the League of Nations after World War I. This regime underwent dramatic change during World War II to create a permanent framework to cope with the refugee problem through the United Nations High Commissioner for Refugees and the UN Convention Relating to the Status of Refugees. The Cold War had an overwhelming influence on the norms and rules of this regime, and in the post‐Cold War era the regime has struggled to reflect and adapt to emerging global concerns — from internally displaced persons to gender and race distributional issues. As UNHCR is forced to reconsider its definitions, laws, and policies, the larger evolving regime must give way to a form of global governance in which the international authority of the UN body has more meaningful influence on the implementation of national law and policy.