International Journal of Refugee Law - recent issues

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

'The Ring of Truth': A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations

Millbank, J. — 2009-02-13

Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of ‘fast-track’ processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group (PSG) ground decisions made on the basis of sexual orientation over the past fifteen years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to found recommendations for structural and institutional change aimed at improving more generally the credibility assessment process in refugee determinations.

From Theory to Practice: National and Regional Application of the Guiding Principles

Carr, S. — 2009-02-13

The 1951 Refugee Convention affords protection for those who cross a border, but there is no specific legally binding instrument for internally displaced persons (IDPs). As of December 2007, there were an estimated 26 million IDPs in the world. The 1998 Guiding Principles are, in and of themselves, soft law, and they emphasise that the primary responsibility and duty to provide protection and humanitarian assistance to IDPs lies with the state in whose jurisdiction they are found. The Guiding Principles are an excellent tool for the development of national policies and laws on internal displacement. Nevertheless, without effective implementation and an independent judiciary, as well as dissemination and awareness, these national laws remain pieces of paper that only give the impression that measures have been taken. If individuals are not provided with effective mechanisms to access their rights, and if governments do not develop systems to review their effectiveness, then we are little better off than before the national policies were developed. This article will consider the cases of Colombia, Turkey and Angola to determine the scope of the laws, their concurrence with international principles, as well as their practical effectiveness for those displaced.

Subsidiarity and 'Arguability': the European Court of Human Rights' Case Law on Judicial Review in Asylum Cases

Spijkerboer, T. — 2009-02-13

The European Court of Human Rights’ case law on judicial review in asylum cases is not entirely consistent. However, it can be interpreted as consistent if two presumptions are accepted. First, that, as the Court's role should be subsidiary to that of domestic courts, domestic judicial review should at least be of the same quality and substance as the European Court of Human Rights’ review. Secondly, that the Court distinguishes between arguable and non-arguable cases not just in the context of Article 13 ECHR and of the admissibility of applications, but that this distinction is central to its entire case law about the asylum procedure. This analysis results in a coherent doctrine on deadlines for submitting evidence, the burden of proof, the intensity of judicial review, and suspensive effect. If the Court understands its case law in this way, it can prevent it from becoming, in some respects, a court of first instance.

Protection Where? - or When?: First asylum, deflection policies and the significance of time

Durieux, J.-F. — 2009-02-13

Asylum and Immigration Tribunal: AM & AM (armed conflict: ristk categories) Somalia CG [2008] UKAIT 00091

2009-02-13

Judicial Criteria for Assessing Country of Origin Information (COI): A Checklist: Paper for 7th Biennial IARLJ World Conference, Mexico City, 6-9 November 2006 COI-CG Working Party

2009-02-13

Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom

Thomas, R. — 2008-11-28

National refugee and asylum determination procedures are often criticised for producing inconsistent decisions. This article examines the establishment and operation of a new and innovative technique that has been developed in the United Kingdom (UK) by the Asylum and Immigration Tribunal (AIT) to promote consistency in asylum decision making: the country guidance (CG) concept. Since 2004, the Tribunal has regularly produced ‘country guidance determinations’ that seek to provide authoritative guidance on recurring ‘country issues’ commonly encountered in individual asylum claims and that need to be taken into account by asylum decision makers. In order to examine the country guidance system, this article considers its following aspects: the function of country guidance in the context of the asylum decision task; the management and oversight of the country guidance system by the Tribunal; the range of country information upon which the Tribunal relies; the techniques utilised by the Tribunal to issue country guidance; the legal status of such decisions; and the expertise in country conditions that the task of issuing country guidance presupposes. Finally, the article offers an assessment of the strengths and weaknesses of the country guidance system. It will be shown that country guidance both occupies a distinctive place in the UK's asylum determination process and performs an important role in ensuring consistency; at the same time, care is required to ensure that the guidance provided is authoritative and that it is applied appropriately.

Embracing the 'Responsibility to Protect': A Repertoire of Measures Including Asylum for Potential Victims

Barbour, B., Gorlick, B. — 2008-11-28

At the 2005 World Summit, the United Nations General Assembly unambiguously recognized a collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. Each state has the responsibility to protect their population from these four egregious crimes and the international community, through the United Nations, also has the responsibility to protect these same populations. The recognition of a positive obligation inherent in the concept of sovereignty represents a substantial leap forward in international law. The implications of this ‘Responsibility to Protect’ (‘R2P’) remain controversial and the future of the concept remains uncertain. This article addresses the potential operational substance and application of R2P on the ground. This article does not address the distinct issue of criteria for humanitarian intervention. Distinction between these two concepts is critical to an understanding of the potential impact of R2P. There are a number of measures short of military intervention that are less controversial and are directly implicated by the recognition of a collective R2P. The debate surrounding the limits of, and criteria for, military intervention in the affairs of a sovereign state to prevent mass atrocities in the context of R2P can and should continue. Meanwhile incidents of genocide, war crimes, ethnic cleansing, and crimes against humanity can be greatly diminished by operational application of R2P through domestic and international humanitarian actors who can provide early warning, risk analysis, technical assistance and capacity building, as well as international protection through facilitating asylum and other measures designed to prevent victimization. There may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms. A related concern is for states to take effective measures to ensure the protection of internally displaced persons who are often victim to R2P-related crimes. This article seeks to identify some of the preventive, responsive and rehabilitative measures that are implicated by R2P with a focus on diplomatic, humanitarian, and other peaceful means.

Risk Theory and 'Subjective Fear': The Role of Risk Perception, Assessment, and Management in Refugee Status Determinations

Evans Cameron, H. — 2008-11-28

Adjudicators deciding refugee claims often assume that people in danger will take prompt and effective steps to save themselves and will never willingly put themselves at risk. They rely on three articles of faith handed down by generations of judges: those who fear for their lives in their homelands will not delay in leaving; they will ask for protection immediately in the first safe country that they reach; and they will never return for any reason. These assumptions are not based on any evidence, and yet evidence is close at hand. For decades, psychologists, sociologists, anthropologists, economists and historians have studied how human beings perceive and respond to danger. This article reviews this research and concludes that before adjudicators could even potentially infer from these types of actions that a claimant was not afraid, or is lying, they must consider the psychological and cultural factors influencing the claimant's risk perception, assessment, and management. It concludes that even when all these factors are taken into account, the well-documented variance in human response to danger makes ‘subjective fear’ judgments fundamentally unsound.

Withdrawing Protection Under Article 1C(5) of the 1951 Convention: Lessons From Australia

O'Sullivan, M. — 2008-11-28

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 Policy of Direct Provision in Ireland: A Violation of Asylum Seekers' Right to an Adequate Standard of Housing

Breen, C. — 2008-11-28

This article considers Ireland's policy of Direct Provision, which curtails severely the social welfare entitlements of asylum seekers. This article sets out the rights of asylum seekers in Ireland and explains the policy of Direct Provision. It analyses the right to adequate housing as provided for within the United Nations and the European legal frameworks. It acknowledges that such rights are subject to some limitations but argues that Ireland's policy of Direct Provision violates asylum seekers’ rights to an adequate standard of living, with particular focus on the right to adequate housing and the interrelated rights to food and health. It further argues that such limitations are discriminatory and that they undermine the fundamental principles of equality and human dignity. The article concludes that a correct interpretation of international and domestic law suggests that Ireland must abolish the policy of Direct Provision and revert to according social welfare entitlements on the basis of need rather than nationality.

Case of N. v. The United Kingdom: European Court of Human Rights, Grand Chamber

2008-11-28

M. Mohammad ASSFOUR v. Republique Francaise: La Cour nationale du droit d'asile au nom du peuple francais

2008-11-28

UNHCR Documents

2008-11-28

The Queen (Al-Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another (United Nations High Commissioner for Refugees intervening)

Goodwin-Gill, G. S. — 2008-11-28

'Responsibility to Protect': United Nations Torino Retreat 2008

2008-11-28