International Journal of Refugee Law - current issue

The Psychology of Seeking Protection

Herlihy, J., Turner, S. W. — 2009-05-21

Claims for asylum entail many complex psychological interactions. The claimant presents his or her claim, interviews are conducted, appeals heard and decisions made. In other areas of law, civil or criminal law, for example, there is a wealth of studies exploring the interface with psychology and examining the processes at work in legal proceedings. However, to date, very little of this has been applied to refugee law. This article reviews areas of the psychological literature which have models or knowledge to offer that may be pertinent to the proceedings of refugee law. The review is tentative, in that cross-disciplinary research is needed to establish the extent to which these areas of psychology do apply. Studies similar to those seen in other areas of psychology and law are necessary to establish the degree to which similar conclusions may be drawn, and the degree to which there are distinct psychological issues at work in the process of refugee status decision making.

Exclusion Under Article 1F(a) of the 1951 Convention in Canada

Simeon, J. C. — 2009-05-21

Following the traumatic events in the United States on 11 September 2001 and the immediate heightened security response by the international community and states, many human rights and refugee advocates, analysts and commentators noted that the new security measures introduced by states would limit human rights and severely constrain refugees' access to asylum. There was also widespread concern that Article 1F(a), the exclusion clauses, of the 1951 Convention Relating to the Status of Refugees, which apply to those suspected, for serious reasons, of committing crimes against peace, war crimes or crimes against humanity, would be applied and interpreted liberally to limit further the number of refugees. This article examines this proposition in relation to Canada by examining a number of Article 1F(a) cases decided by the Immigration and Refugee Board of Canada (IRB) and the Federal Court (Canada) since 9/11. Non-random samples of refugee law cases were drawn from the IRB's Reflex publication and from the Federal Court's (Canada) website. From the twenty-six IRB refugee decisions and the twenty-three Federal Court (Canada) appeal judgments analyzed, it was found that there were no discernable differences in the manner that Article 1F(a) cases were being decided by either the IRB or the Federal Court (Canada) after 9/11. Cases involving Article 1F(a) remain amongst the most difficult and complex for refugee law decision makers and appeal judges to decide, not only because they require the application and interpretation of international humanitarian and criminal law, but because they also involve the refugee claimant's or appellant's alleged complicity in these heinous international crimes.

The Emperor's New Safe Country Concepts: A UK Perspective on Sacrificing Fairness on the Altar of Efficiency

John-Hopkins, M. — 2009-05-21

The adoption and implementation of Council Directive 2005/85/EC1 (the ‘Procedures Directive’), marks the end of the legislative stage of a nascent Common European Asylum System (CEAS) by establishing minimum standards on ‘fair and efficient asylum procedures in the Member States’. These minimum standards broadly relate to matters such as access to procedures, the right to remain pending decisions, examination requirements, the right to legal assistance, the right to an effective remedy and the application of the ‘safe country’ concepts. The Procedures Directive sets out harmonized criteria for the application of the safe third country and the safe country of origin concepts. Nevertheless, various provisions of UK law and the Procedures Directive itself indicate gaps in harmonization. This state of affairs creates the potential for diverse safe country designations, undermines the rights due to refugees in similar circumstances and could, therefore, result in the failure to uphold properly the principle of non-refoulement. In particular, by rendering a range of minimum standards ‘subject to certain exceptions’,2 the application of the safe country concepts within the Procedures Directive can be seen as an integral part of the drive towards more efficient asylum procedures within EU Member States. For example, the administrative regime created by the UK's ‘New Asylum Model’ (NAM) allows procedural safeguards to be lowered at the front end of the process before a substantive examination of safe country applications has taken place; applicants from countries the UK considers to be safe third countries or safe countries of origin are allocated to ‘fast track’ procedures reducing the amount of time available to prepare and present a case; in some cases, applications can be declared inadmissible without any substantive examination. This article focuses on the harmonized criteria relating to these two concepts and their inclusion within the UK asylum system, before exploring whether, and if so, to what extent, the application of such criteria reduces the level of procedural and concomitant substantive protection available to asylum seekers.

Border Controls at Sea: Requirements under International Human Rights and Refugee Law

Fischer-Lescano, A., Lohr, T., Tohidipur, T. — 2009-05-21

In 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union was established. The Agency supports member states in coordinating their border controls. Border controls at sea have, therefore, received increasing attention. Coordinated by FRONTEX, member states carry out border controls not only in their territorial waters, but also on the High Seas and within the territorial waters of third countries.

One must assume that at least some of the people on board intercepted vessels are persons in need of international protection. However, some European governments have argued that the principle of non-refoulement does not apply exterritorially. This article will challenge this approach. First, it argues that the principle of non-refoulement, as laid down in the UN Convention Relating to the Status of Refugees, the European Convention on Human Rights and other international treaties relating to refugee and immigration law does apply beyond the territory of the signatory states. Secondly, it argues why non-refoulement, as a principle of refugee and fundamental rights legislation within European primary and secondary law, does apply beyond the territory of the contracting states. Thirdly, regarding the treatment of protection seekers and migrants at sea, it examines the obligations of border guard authorities to act under maritime, human rights and refugee law and when there is a legal failure to act. Finally, the article examines whether EU secondary law, as well as Border Control Practice, are consistent with these obligations.

Meki Elgafaji, Noor Elgafaji v. Staatssecretaris van Justitie

2009-05-21

IH (Appellant) v. The Secretary Of State for the Home Department (Respondent)

2009-05-21

Making People Illegal: What Globalization Means for Migration and Law

Krieg, S. H. — 2009-05-21

Forced Migration, Human Rights and Security

Yarwood, L. — 2009-05-21

New Regionalism and Asylum Seekers: Challenges Ahead

Mikolajczyk, B. — 2009-05-21

The Refugee in International Society

Odello, M. — 2009-05-21