International Journal of Refugee Law - recent issues

Letter to the Editor

2008-07-09

The UNHCR's Guidelines on Human Trafficking

Piotrowicz, R. — 2008-07-09

In April 2006 the UNHCR published Guidelines on the application of the Refugees Convention to people who have been trafficked. While there is little doubt that trafficked people are subjected to serious violations of their basic rights and interests, the applicability of the Convention is problematic because they do not fit easily into any of the categories recognised by the Convention as giving rise to an entitlement to refugee status. The Guidelines adopt the definition of trafficking contained in the Palermo Protocol to the UN Convention on Transnational Organised Crime 2000. The various elements of the refugee definition are then analysed for their relevance to trafficking. The Guidelines show that the Refugees Convention may be applicable, but in limited cases, particularly through the possibility of victims of trafficking being members of a particular social group.

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Zieck, M. — 2008-07-09

Over 25 per cent of present day refugees enjoy asylum in Pakistan, most of them having been there for more than a quarter of a century. Pakistan is not, however, a party to either the 1951 Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. The legal status of the Afghan refugees it hosts is therefore not a foregone conclusion, even though they were considered to be refugees on a prima facie basis during the first two decades of their exile in Pakistan. This article identifies the legal status of the Afghan refugees on the basis of a series of agreements Pakistan concluded with UNHCR and also occasionally with Afghanistan. By virtue of the last of the series of agreements, Afghan refugees can return to Afghanistan under a UNHCR-assisted voluntary repatriation programme until December 2009. In view of the fact that all Afghans have been granted leave to stay in Pakistan until the same date, many are expected to stay in Pakistan rather than return with the assistance of UNHCR. Unlike the preceding agreements, the last one does not address the fate of those who will still be in Pakistan upon completion of the voluntary repatriation programme. It seems therefore imperative to identify the legal status and corresponding entitlements of the Afghan refugees. It is argued that the prima facie recognition of refugee status can be sustained on the basis of the agreements referred to. In addition it is argued that the current ‘profiling’ exercise of UNHCR, even while presumably beneficial for the most vulnerable refugees, is irreconcilable with the status and entitlements of the Afghan refugees, and the same holds true with respect to the usual practice of ‘screening’ those refugees who have opted not to return under a voluntary repatriation programme. An alternative that would be reconcilable is a collective cessation of refugee status if and when the situation in the country of origin so warrants, provided individual refugees may contest this.

Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing

Francis, A. — 2008-07-09

Extraterritorial processing schemes are designed to prevent and deter access to statutory and judicial safeguards in the country responsible for the interception and transfer of asylum seekers to a third country. In line with this objective, they incorporate interdiction, transfer and processing practices and standards that are deliberately isolated from the national legal and institutional protections within either the intercepting state or the third country where processing occurs. Australia's recent disbandment of its extraterritorial processing centres in third countries highlights the fact that extraterritorial processing schemes have proven unworkable as a matter of international law, as they negate the national safeguards fundamental to the satisfaction of a state's protection obligations.

Case of Saadi v. Italy

Chamber, G. — 2008-07-09

'States Should Not Impose Penalties on Arriving Asylum-Seekers'

Hammarberg, T. — 2008-07-09

Book Review

Yarwood, L. — 2008-07-09

EU Refugee Qualification Directive: a Brave New World?

Storey, H. — 2008-07-01

This article aims to map some of the major implications for asylum–related law in Europe of the Refugee Qualification Directive, which twenty-four EU Member States were required to implement by 10 October 2006. It seeks to build on important studies of the Directive completed by, among others, Hemme Battjes, in his book European Asylum Law and International Law, Nijhoff 2006, and Jane McAdam, in her book Complementary Protection in International Refugee Law, OUP 2007, albeit it takes a different view of some key questions.

Part 2 deals with the impact of the Directive on the application and interpretation of the 1951 Refugee Convention and its 1967 Protocol. It is argued that, even read simply as a set of provisions giving interpretive guidelines on the application of the Refugee Convention, it affects many things concerned with refugee eligibility, since these provisions cover key elements of the refugee definition.

Part 3 deals with the impact of the Directive on the asylum-related human rights jurisdiction that currently prevails in Europe in one form or another.1 It is argued that the effect of the Directive is and must be to render Article 3 ECHR protection – or its domestic equivalent – a largely residual category, save in exclusion cases.

Part 4 addresses to what extent, if at all, the Directive contains mandatory provisions and how, post-implementation, these can be integrated into the national law of Member States. It is argued that, considered in purely textual terms, the key definitional and interpretive provisions of the Directive are mostly in mandatory form. Further, that whilst, by virtue of being a minimum standards directive, the Directive allows Member States to introduce or retain more favourable standards (A3), the same article stipulates that such standards must be compatible with the Directive. That proviso is of some importance given that the Directive’s preamble (at R7) identifies as one objective the avoidance of secondary movements. In relation to articles of the Directive which specify in mandatory terms how elements of the refugee definition are to be applied, Member States cannot be free to introduce or retain differing standards.

Parts 5 and 6 analyse suggested differences, first, between the Directive’s refugee definition and the Refugee Convention (it is argued that the only potential difference of real significance concerns the Directive’s rendering of the Article 1F exclusion clauses of the Refugee Convention) and, secondly, between the Directive’s subsidiary protection definition and Article 3 ECHR. The extent of symmetry between the new subsidiary protection criteria and ECHR protection under Article 3 is explored, in particular, arguing that, whilst there are three respects in which subsidiary protection criteria are narrower (relating to personal scope; the existence of cessation and exclusion clauses; and limited application to ‘health cases’), there may be limited respects in which it may be broader in scope than Article 3 ECHR.

Part 7 examines patterns of implementation in the light of early evidence to hand from, for example, the November 2007 UNHCR survey of five Member States. The UK is considered as a further example, that of a member state where, despite it being seen as unnecessary to make any substantial changes, the implementing measures have required important changes in method of approach and in conceptual language.

Critical Spaces in the Canadian Refugee Determination System: 1989-2002

Crepeau, F., Nakache, D. — 2008-07-01

This paper draws its conclusions from a multidisciplinary study of the refugee determination process in Canada, the aim of which was to examine the strengths and weaknesses of the system and to explore means of improving it through an in-depth analysis of the diversity of attitudes and perceptions of different actors involved in the process. The basic hypothesis is that the legitimacy of the action of the Immigration and Refugee Board (hereafter IRB) is challenged because of a series of disagreements on the way it operates. Using interviews with former Board members, as well as with other professional actors of the system (lawyers, NGO workers, interpreters, health professionals), we try to understand better the parameters of the problems facing the IRB on three sets of issues: the appointment and renewal of Board members; the relationships between Board members within the IRB; the evaluation of the evidence by Board members. All issues relate mainly to the principles of independence and impartiality of the IRB, as an expert administrative tribunal. In particular, using the idea of ‘critical space’ as a conceptual framework, this study tries to ascertain more precisely how critical spaces within the IRB were being used in order to foster a common culture of independence and impartiality within the institution, or not. This study covers the period 1989-2002: it signals reforms accomplished since and suggests more means for improvement.

The Refusal to Bear Arms as Grounds for Refugee Protection in the Canadian Jurisprudence

Jones, M. — 2008-07-01

The evasion of compulsory military service is an issue raised very frequently in claims for refugee protection. In Canada, the determination of these claims follows the decision of the Federal Court of Appeal in Zolfagharkhani. Unfortunately, this decision is flawed in several respects and has led to notable deficiencies in the jurisprudence. Rather than continuing to reply upon the ad hoc approach of Zolfagharkhani, the article suggests that the jurisprudence should be re-organized and understood in terms of a more comprehensive analytical framework. Such a framework would be based upon a distinction between claims based upon the characteristics inherent in military service and those based upon ancillary features of military service. In the former category, three subcategories of claims based upon inherent features of compulsory military service: prohibited forms of compulsory military service, prohibited conscriptors, and prohibited subjects of compulsory military service. In the first subcategory are refugee claimants fearing conscription into possibly illegal conflicts. In the second subcategory are non-state conscriptors and extra-legal state conscriptors. In the third subcategory are refugee claimants who may not be conscripted due to some aspect of their identity, including children, various other possible categories and so-called conscientious objectors. In the latter category, individuals fearing an ancillary aspect of compulsory military service may also ground a claim, including due to discriminatory mistreatment before, during and after their military service.

The Relevance of the Work of the International Criminal Court to Refugee Status Determinations

Smith, M. — 2008-07-01

This article considers the work of the International Criminal Court (ICC) and its overlaps with refugee law and practice. It focuses on ICC complementarity determinations. These involve the organs of the ICC considering whether a state is willing and able to prosecute individuals accused of international crimes. The article draws attention to the fact that such determinations provide information on the extent to which state legal systems are functional and non-discriminatory, and thus able to ensure that those who violate human rights are brought to justice. Such information, it is suggested, can and should be drawn upon in deciding whether there is a real chance that an applicant for refugee status will be able to receive the protection of their state through its justice system. The paper draws on this overlap between the work of the ICC and refugee law and practice to support its concluding recommendation that refugee practitioners should see, and take advantage of, the overlap between the work of the ICC and refugee status inquiries. It is suggested that this will help to ensure that persons deserving international protection get it. It will at the same time bring us another step closer to the development of a fully integrated system for the protection and promotion of human rights.

The Secretary of State for the Home Department (Appellant AH): AH (Sudan) and others (FC) (Respondents)

2008-07-01

The Secretary of State for the Home Department re AA [2005] UKIAT 00104 Appellant AA (Palestine): [2005]UKIAT00104 Respondents

Ouseley, J. — 2008-07-01

Remarks by Ms Erika Feller, Assistant UN High Commissioner for Refugees, Public Hearing on the Future Common European Asylum System: 7 November 2007, Brussels

2008-07-01

Complementary Protection in International Refugee Law

Storey, H. — 2008-07-01

EU Justice and Home Affairs Law

Warbrick, C. — 2008-07-01

Understanding Global Slavery: A Reader

Allain, J. — 2008-07-01

The Position of Aliens in Relation to the European Convention on Human Rights

Yarwood, L. — 2008-07-01

International Refugee Law and Socio-Economic Rights

Odello, M. — 2008-07-01

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Byrne, R. — 2008-02-27

Although credibility determinations rest at the core of refugee protection, international refugee law has failed to develop a body of evidentiary principles that is tailored to the unique dimensions of the testimony of those seeking asylum. This article examines recent developments in assessing oral testimony in international criminal law. International criminal law judges, like national asylum adjudicators, must transcend geographic, linguistic, cultural, educational and psychological barriers in order to assess the credibility of testimony. As a result, these new international courts have developed a body of principles of international evidence law for assessing the testimony of alleged victims of, and witnesses to, human rights abuses. Current social science research on the asylum procedures in several jurisdictions reveals that asylum decision makers often fail to adapt the determination process to account for the realities of refugees presenting their cases in legal fora, directing proceedings with a ‘presumptive skepticism’ of claims. It is argued that the nuanced and rigourous model for the assessment of the testimonial evidence of alleged victims and witnesses of human rights abuses in war crimes trials introduces effective international norms for the assessment of credibility in asylum proceedings.

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

Pirjola, J. — 2008-02-27

The principle of non-refoulement contains a paradox. While states have committed to respecting the principle by joining the 1951 Refugee Convention and key human rights conventions, its content is not established in international law. In other words, states have committed to a principle the content of which is indeterminate. Since no common definition exists, in practice, national and international bodies have extensive powers of discretion to give content to the terms ‘persecution’, ‘torture’, ‘degrading’ or ‘cruel’ treatment. The purpose of this article is to explore non-refoulement as an open and ambiguous concept. Acknowledgement of the indeterminacy is important, as open concepts never remain such in practice but are always issued with content or interpreted. This approach calls for a further question: how do interpretations come about and what kind of factors influence them? The conclusion of the article is that different national and international actors promote their own ‘correct’ interpretations of this keystone of refugee protection.

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

Naumik, A. T. — 2008-02-27

US refugee law reflects an ever-increasing conception that the application of international standards would constitute an unacceptable risk to national security. CSR Article 31(2)’s requirement that refugees ‘shall not’ be detained unless ‘necessary’ appears among the chief casualties of such suspicions. US jurisprudence remains strikingly devoid of reference to Article 31, and 2003’s Matter of D-J- is a prime example. D-J- was an administrative decision in which the US Attorney General held that national security required all US asylum seekers who successfully arrive via boat must be subject to mandatory detention throughout the course of removal proceedings. Despite US accession to the Protocol, Article 31(2) was not mentioned.

This article explores what might have happened to D-J- if the Refugee Convention had indeed been applied to his case. Utilizing the international methodology for treaty interpretation, it applies Article 31(2) to various aspects of the Attorney General's decision. Part 2 argues that under the Supreme Court's Charming Betsy rule, statutory discretion to detain must be interpreted consistently with US international obligations. Part 3 concludes that Article 31(2) of the Refugee Convention grants asylum seekers a right to release whenever their detention is not ‘necessary’. Part 4 proposes a three-part ‘pyramid’ approach to explain the elemental phases of the decision to detain an asylum seeker and examines necessity at each stage. Finally, Part 5 discusses Article 31(2)’s implications regarding evidence and proportion. The premise throughout is that, had it been applied, the Refugee Convention could have protected the interests of both D-J- and ‘national security’.

Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol

Davies, S. E. — 2008-02-27

The 1967 Protocol Relating to the Status of Refugees has been described as an unnecessary addendum to the 1951 Convention Relating to the Status of Refugees. However, if the 1967 Protocol was superfluous, why did the United Nations High Commissioner for Refugees in the early 1960s insist on its development? This article seeks to establish that the 1967 Protocol was originally intended to encompass the broader concerns of African and Asian states concerning refugee populations in their region. However, the political influence upon the development of international refugee law radically altered the UNHCR's endeavour to make the 1951 Convention universally accessible.

Starting a Movement of Refugee Legal Aid Organizations in the South

Harrell-Bond, B. — 2008-02-27

This paper reviews the access to legal representation in the Global South and should be read with the Nairobi Code and the SRLAN Charter.

The Nairobi Code: Model Rules of Ethics in Refugee Cases

Promulgated at, SOUTHERN REFUGEE LEGAL AID CONFERENCE (SRLAC) — 2008-02-27

Southern Refugee Legal Advocacy Network (SRLAN)

Concluded at Southern Refugee Legal Aid Conference — 2008-02-27

The Secretary of State for the Home Department (Appellant AH) v. AH (Sudan) and others (FC) (Respondents) House of Lords

2008-02-27

Judicial Division of the Council of State of the Netherlands, October 12th 2007

2008-02-27

Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union

Banach-Gutierrez, J. — 2008-02-27

Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings

Krieg, S. H. — 2008-02-27

International Migration Law: Developing Paradigms and Key Challenges

McAdam, J. — 2008-02-27

Unaccompanied Minors: Rights and Protection

Odello, M. — 2008-02-27

The Uprooted: Improving Humanitarian Responses to Forced Migration

Short, H. — 2008-02-27

Freedom of Religion, Minorities, and the Law

Souto, E. — 2008-02-27