The South Asian region remains an epicentre of forced migration. Women comprise about half the region’s refugee population, and many are traumatized by sexual and gender-based violence (SGBV) experienced in their countries of origin and during flight. The 1951 Refugee Convention is not well ratified in the region and few States have developed domestic asylum laws, relying instead on ad hoc policies, core rule of law principles, and constitutional provisions to facilitate refugees’ access to essential legal protections. Many refugees in South Asia do not have a clear legal status, which can exacerbate rights violations, including SGBV. Over the years, through judicial activism, courts have developed a layered refugee law jurisprudence relying on criminal justice principles, executive orders, corresponding laws, and key international human rights treaties. These efforts have been complemented by the evolution of several formal and informal systems at the grassroots level, such as community-based dispute resolution mechanisms and State-run legal aid services, which have allowed refugee women and girls to access justice systems and seek redress. This article examines the legal strategies adopted by courts in Bangladesh, Pakistan, and India to uphold the rights of refugee women and girls and to protect survivors of SGBV, in particular.
{"title":"Constitutionalizing Protection for Refugee Women and Girls in South Asia","authors":"Roshni Shanker","doi":"10.1093/ijrl/eeae019","DOIUrl":"https://doi.org/10.1093/ijrl/eeae019","url":null,"abstract":"The South Asian region remains an epicentre of forced migration. Women comprise about half the region’s refugee population, and many are traumatized by sexual and gender-based violence (SGBV) experienced in their countries of origin and during flight. The 1951 Refugee Convention is not well ratified in the region and few States have developed domestic asylum laws, relying instead on ad hoc policies, core rule of law principles, and constitutional provisions to facilitate refugees’ access to essential legal protections. Many refugees in South Asia do not have a clear legal status, which can exacerbate rights violations, including SGBV. Over the years, through judicial activism, courts have developed a layered refugee law jurisprudence relying on criminal justice principles, executive orders, corresponding laws, and key international human rights treaties. These efforts have been complemented by the evolution of several formal and informal systems at the grassroots level, such as community-based dispute resolution mechanisms and State-run legal aid services, which have allowed refugee women and girls to access justice systems and seek redress. This article examines the legal strategies adopted by courts in Bangladesh, Pakistan, and India to uphold the rights of refugee women and girls and to protect survivors of SGBV, in particular.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"46 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141610355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Financial crimes were recently recognized by the Conseil d’État, France’s supreme administrative court, as ‘serious non-political crimes’ for the purposes of exclusion under article 1F(b) of the Refugee Convention. Such an extension of the scope of article 1F(b) raises questions regarding the seriousness threshold of article 1F(b) and its link to bodily harm. A first approach would be to establish the indirect relationship between financial crimes and bodily harm. Another approach would be to discard the concept of bodily harm as being pivotal in understanding the scope of the exclusion clauses. This second solution would have crucial implications for the theoretical underpinnings of the exclusion clauses of article 1F of the Refugee Convention, namely on the concept of unworthiness. In this regard, the recognition of financial crimes as rendering an asylum seeker unworthy of protection highlights the link between exclusion and moral and societal concerns.
{"title":"Financial Crimes as ‘Serious Non-Political Crimes’: Consequences for the Concepts of Seriousness and Unworthiness in Exclusion Law","authors":"Juliette Guiot","doi":"10.1093/ijrl/eeae014","DOIUrl":"https://doi.org/10.1093/ijrl/eeae014","url":null,"abstract":"Financial crimes were recently recognized by the Conseil d’État, France’s supreme administrative court, as ‘serious non-political crimes’ for the purposes of exclusion under article 1F(b) of the Refugee Convention. Such an extension of the scope of article 1F(b) raises questions regarding the seriousness threshold of article 1F(b) and its link to bodily harm. A first approach would be to establish the indirect relationship between financial crimes and bodily harm. Another approach would be to discard the concept of bodily harm as being pivotal in understanding the scope of the exclusion clauses. This second solution would have crucial implications for the theoretical underpinnings of the exclusion clauses of article 1F of the Refugee Convention, namely on the concept of unworthiness. In this regard, the recognition of financial crimes as rendering an asylum seeker unworthy of protection highlights the link between exclusion and moral and societal concerns.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"69 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140934247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Refugee externalization arrangements are increasingly common in refugee-receiving global North States. Such arrangements have broad-ranging and significant human rights implications, especially (but not only) for refugee women and LGBTQI refugees who may be at increased risk of gender- or sexuality-based harm. This is particularly the case where refugees are placed in situations of risk or harm as a result of a ‘sending’ State’s extraterritorial regime, or where domestic laws in receiving States outlaw certain practices such as pregnancy termination or same-sex sexual activity. There has been limited scholarly analysis of the gendered impacts of externalization policies, and States rarely take into account the gendered implications of externalization when implementing these policies. This article examines the possibilities and limits of international human rights law to protect refugees at risk of gender- and sexuality-based harms through a focus on States’ positive due diligence obligations. While there is limited jurisprudence on the scope of such obligations in the context of refugee externalization, the article emphasizes that due diligence human rights obligations require sending States to adopt effective measures to protect people from unlawful discrimination and from cruel, inhuman or degrading treatment. Due diligence obligations also offer a vital accountability mechanism for violations in extraterritorial settings through their potential preventative, remedial, and visibility functions. Using the case study of Australia’s extraterritorial asylum regime in the Pacific, the article argues that such obligations encompass identifying and addressing foreseeable risks of gender- and sexuality-based harm, both prior to forcibly transferring refugees abroad and on an ongoing basis. Further, it argues that the gender- and sexuality-based human rights impacts of Australia’s externalization regime have immediate and urgent relevance as other States consider or implement similar policies.
{"title":"The Gender- and Sexuality-Based Harms of Refugee Externalization: A Role for Human Rights Due Diligence","authors":"Anna Talbot, Anthea Vogl, Sara Dehm","doi":"10.1093/ijrl/eeae010","DOIUrl":"https://doi.org/10.1093/ijrl/eeae010","url":null,"abstract":"Refugee externalization arrangements are increasingly common in refugee-receiving global North States. Such arrangements have broad-ranging and significant human rights implications, especially (but not only) for refugee women and LGBTQI refugees who may be at increased risk of gender- or sexuality-based harm. This is particularly the case where refugees are placed in situations of risk or harm as a result of a ‘sending’ State’s extraterritorial regime, or where domestic laws in receiving States outlaw certain practices such as pregnancy termination or same-sex sexual activity. There has been limited scholarly analysis of the gendered impacts of externalization policies, and States rarely take into account the gendered implications of externalization when implementing these policies. This article examines the possibilities and limits of international human rights law to protect refugees at risk of gender- and sexuality-based harms through a focus on States’ positive due diligence obligations. While there is limited jurisprudence on the scope of such obligations in the context of refugee externalization, the article emphasizes that due diligence human rights obligations require sending States to adopt effective measures to protect people from unlawful discrimination and from cruel, inhuman or degrading treatment. Due diligence obligations also offer a vital accountability mechanism for violations in extraterritorial settings through their potential preventative, remedial, and visibility functions. Using the case study of Australia’s extraterritorial asylum regime in the Pacific, the article argues that such obligations encompass identifying and addressing foreseeable risks of gender- and sexuality-based harm, both prior to forcibly transferring refugees abroad and on an ongoing basis. Further, it argues that the gender- and sexuality-based human rights impacts of Australia’s externalization regime have immediate and urgent relevance as other States consider or implement similar policies.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"16 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140811614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the jurisprudence on domestic violence in international refugee and human rights law. It identifies and offers an original response to shortcomings in both bodies of law. Drawing on the work of Michelle Madden Dempsey, its focus is on domestic violence in its ‘strong’ sense: violence that sustains or perpetuates patriarchy. Decisions on women’s claims for international protection from domestic violence have generated strands of case law which contradict each other, as well as the Refugee Convention’s object and purpose. Decision makers have delineated overly restrictive social groups and ignored, identified, or imputed a range of political opinions. A disproportionate focus on ‘private’ motives has also obscured the nexus between persecution and the Convention ground(s). Similarly, issues left unresolved by the European Court of Human Rights have resulted in the European Convention on Human Rights’ prohibition of discrimination being applied inconsistently, and recently, not at all, in cases involving domestic violence. These deficiencies are traced to a lack of conceptual and legal clarity as to the nature of domestic violence. A response is offered that understands such violence as political and discriminatory. The article concludes by arguing that victims of domestic violence, properly understood, have experienced unlawful discrimination and are members of the ‘simple’ particular social group of ‘women’. It also answers calls within the literature for gender-sensitive approaches to the political opinion ground, offering an analysis that recognizes women’s resistance to violence, including in cases where commitments to gender equality are not expressed. Overall, the article contributes an improved understanding of domestic violence that could be relied on to ground principled decision making on discrimination, persecution, and the Convention grounds.
{"title":"Resisting Domestic Violence","authors":"Catherine Briddick","doi":"10.1093/ijrl/eead032","DOIUrl":"https://doi.org/10.1093/ijrl/eead032","url":null,"abstract":"This article analyses the jurisprudence on domestic violence in international refugee and human rights law. It identifies and offers an original response to shortcomings in both bodies of law. Drawing on the work of Michelle Madden Dempsey, its focus is on domestic violence in its ‘strong’ sense: violence that sustains or perpetuates patriarchy. Decisions on women’s claims for international protection from domestic violence have generated strands of case law which contradict each other, as well as the Refugee Convention’s object and purpose. Decision makers have delineated overly restrictive social groups and ignored, identified, or imputed a range of political opinions. A disproportionate focus on ‘private’ motives has also obscured the nexus between persecution and the Convention ground(s). Similarly, issues left unresolved by the European Court of Human Rights have resulted in the European Convention on Human Rights’ prohibition of discrimination being applied inconsistently, and recently, not at all, in cases involving domestic violence. These deficiencies are traced to a lack of conceptual and legal clarity as to the nature of domestic violence. A response is offered that understands such violence as political and discriminatory. The article concludes by arguing that victims of domestic violence, properly understood, have experienced unlawful discrimination and are members of the ‘simple’ particular social group of ‘women’. It also answers calls within the literature for gender-sensitive approaches to the political opinion ground, offering an analysis that recognizes women’s resistance to violence, including in cases where commitments to gender equality are not expressed. Overall, the article contributes an improved understanding of domestic violence that could be relied on to ground principled decision making on discrimination, persecution, and the Convention grounds.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"57 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140597566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union (EU) has historically been a proactive player in advancing equality between women and men, and fighting gender-based discrimination. The past two decades have also seen the EU becoming a major actor in asylum law, with several EU secondary law instruments and a large amount of case law in EU Member States relating to the application of the 1951 Refugee Convention. Yet, these two areas of EU legislation – gender equality and asylum – have yet to become consistently connected. Similarly, judgments of the Court of Justice of the European Union addressing gender-related elements of asylum cases are scarce. Could the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) help bridge the gap? The Istanbul Convention identifies gender-based violence as an extreme form of discrimination and contains a whole chapter dedicated to women in the context of migration. This article sheds light on the yet-to-be-realized potential of the Istanbul Convention to amplify the protective power of the Refugee Convention in the EU. While at present neither the Common European Asylum System, nor its new iteration in the New Pact on Migration and Asylum, fully meets the standards of the Istanbul Convention, it may be expected that the EU’s accession to the treaty will further encourage a gender-sensitive approach in EU asylum law. The Istanbul Convention may well be a game changer for the protection of female asylum seekers, and possibly also for asylum seekers with other gender identities.
{"title":"Gender in European Union Asylum Law: The Istanbul Convention as a Game Changer?","authors":"Catherine Warin","doi":"10.1093/ijrl/eeae004","DOIUrl":"https://doi.org/10.1093/ijrl/eeae004","url":null,"abstract":"The European Union (EU) has historically been a proactive player in advancing equality between women and men, and fighting gender-based discrimination. The past two decades have also seen the EU becoming a major actor in asylum law, with several EU secondary law instruments and a large amount of case law in EU Member States relating to the application of the 1951 Refugee Convention. Yet, these two areas of EU legislation – gender equality and asylum – have yet to become consistently connected. Similarly, judgments of the Court of Justice of the European Union addressing gender-related elements of asylum cases are scarce. Could the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) help bridge the gap? The Istanbul Convention identifies gender-based violence as an extreme form of discrimination and contains a whole chapter dedicated to women in the context of migration. This article sheds light on the yet-to-be-realized potential of the Istanbul Convention to amplify the protective power of the Refugee Convention in the EU. While at present neither the Common European Asylum System, nor its new iteration in the New Pact on Migration and Asylum, fully meets the standards of the Istanbul Convention, it may be expected that the EU’s accession to the treaty will further encourage a gender-sensitive approach in EU asylum law. The Istanbul Convention may well be a game changer for the protection of female asylum seekers, and possibly also for asylum seekers with other gender identities.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"11 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140152492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jürgen Bast, Pauline Endres de Oliveira, Janna Wessels
This article argues that the Global Compact for Safe, Orderly and Regular Migration (GCM) is not only a breakthrough for a rights-based approach in international migration governance but also an asset to the international protection system. By way of example, three key issues of the European Union’s (EU) Common European Asylum System are discussed: access to protection, reception conditions, and detention. These examples illustrate that faithfully implementing the Migration Compact would require the EU and its Member States to make significant changes in their asylum policy. The parallel emergence of the Global Compact on Refugees (GCR) may suggest otherwise – namely, that the GCM is not relevant for refugees and other protection-seeking migrants. However, the legal construction that best serves the object and purpose of both documents is the assumption that the two Compacts have an overlapping scope of application. The GCM addresses specific protection needs of protection-seeking migrants who are not covered by the 1951 Refugee Convention, and it serves as an umbrella, strengthening the core human rights of migrants regardless of their status, including protection-seeking migrants. Hence, the GCM improves the international protection system as a whole and should be acknowledged as such.
{"title":"Enhancing the Rights of Protection-Seeking Migrants through the Global Compact for Migration: The Case of EU Asylum Policy","authors":"Jürgen Bast, Pauline Endres de Oliveira, Janna Wessels","doi":"10.1093/ijrl/eead007","DOIUrl":"https://doi.org/10.1093/ijrl/eead007","url":null,"abstract":"This article argues that the Global Compact for Safe, Orderly and Regular Migration (GCM) is not only a breakthrough for a rights-based approach in international migration governance but also an asset to the international protection system. By way of example, three key issues of the European Union’s (EU) Common European Asylum System are discussed: access to protection, reception conditions, and detention. These examples illustrate that faithfully implementing the Migration Compact would require the EU and its Member States to make significant changes in their asylum policy. The parallel emergence of the Global Compact on Refugees (GCR) may suggest otherwise – namely, that the GCM is not relevant for refugees and other protection-seeking migrants. However, the legal construction that best serves the object and purpose of both documents is the assumption that the two Compacts have an overlapping scope of application. The GCM addresses specific protection needs of protection-seeking migrants who are not covered by the 1951 Refugee Convention, and it serves as an umbrella, strengthening the core human rights of migrants regardless of their status, including protection-seeking migrants. Hence, the GCM improves the international protection system as a whole and should be acknowledged as such.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"171 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140099204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Academic literature and policy papers have suggested that the principle of non-refoulement can address the protection gap that exists for people displaced across international borders in the context of disasters and climate change. This article analyses whether non-refoulement under article 3 of the European Convention on Human Rights (ECHR) and subsidiary protection under article 15(b) of the European Union (EU) Qualification Directive could meet this expectation. It assesses their applicability to the cases of individuals who would face difficult living conditions due to the impacts of disasters upon return to their State of origin. This analysis lays the groundwork for a case study focusing on Austria, which as a Council of Europe and an EU Member State has obligations under the ECHR and the Qualification Directive. The case study discusses whether the principle of non-refoulement under article 3 ECHR and the eligibility criteria of subsidiary protection – as incorporated in Austrian law and as interpreted by Austrian courts – address the protection gap at the national level. To this end, the results of a qualitative analysis of 646 decisions on international protection decided by the Austrian appellate court are presented. The article concludes that the ‘livelihood’ approach used by the Austrian courts opens up the possibility of taking disasters and their impacts into account when conducting a real risk assessment under article 3 ECHR. However, the European Court of Human Rights’ suggestion of applying the ‘medical cases’ approach in cases relating to ‘naturally occurring phenomena’ is not adequate to address the protection gap. Against this backdrop, the article reflects on a possible way forward.
学术文献和政策文件认为，不驱回原则可以解决在灾害和气候变化背景下对跨国界流离失所者的保护缺口。本文分析了《欧洲人权公约》（European Convention on Human Rights, ECHR）第 3 条规定的不驱回原则和《欧盟资格指令》（European Union (EU) Qualification Directive）第 15(b)条规定的辅助保护是否能够满足这一期望。本报告评估了这些条款是否适用于返回原籍国后因灾害影响而面临困难生活条件的个人的情况。这一分析为以奥地利为重点的案例研究奠定了基础，奥地利作为欧洲委员会和欧盟成员国，有义务遵守《欧洲人权公约》和《资格指令》。案例研究讨论了《欧洲人权公约》第 3 条规定的不驱回原则和辅助保护的资格标准--已纳入奥地利法律并由奥地利法院解释--是否解决了国家层面的保护差距问题。为此，文章介绍了对奥地利上诉法院做出的 646 项国际保护裁决的定性分析结果。文章的结论是，奥地利法院采用的 "生计 "方法为根据《欧洲人权公约》第 3 条进行实际风险评估时考虑灾害及其影响提供了可能性。然而，欧洲人权法院提出的在与 "自然发生的现象 "有关的案件中采用 "医疗案例 "方法的建议不足以解决保护差距问题。在此背景下，本文思考了一条可能的前进之路。
{"title":"Cross-Border Disaster Displacement and Non-Refoulement under Article 3 of the ECHR: An Analysis of the European Union and Austria","authors":"Margit Ammer, Monika Mayrhofer","doi":"10.1093/ijrl/eead036","DOIUrl":"https://doi.org/10.1093/ijrl/eead036","url":null,"abstract":"\u0000 Academic literature and policy papers have suggested that the principle of non-refoulement can address the protection gap that exists for people displaced across international borders in the context of disasters and climate change. This article analyses whether non-refoulement under article 3 of the European Convention on Human Rights (ECHR) and subsidiary protection under article 15(b) of the European Union (EU) Qualification Directive could meet this expectation. It assesses their applicability to the cases of individuals who would face difficult living conditions due to the impacts of disasters upon return to their State of origin. This analysis lays the groundwork for a case study focusing on Austria, which as a Council of Europe and an EU Member State has obligations under the ECHR and the Qualification Directive. The case study discusses whether the principle of non-refoulement under article 3 ECHR and the eligibility criteria of subsidiary protection – as incorporated in Austrian law and as interpreted by Austrian courts – address the protection gap at the national level. To this end, the results of a qualitative analysis of 646 decisions on international protection decided by the Austrian appellate court are presented. The article concludes that the ‘livelihood’ approach used by the Austrian courts opens up the possibility of taking disasters and their impacts into account when conducting a real risk assessment under article 3 ECHR. However, the European Court of Human Rights’ suggestion of applying the ‘medical cases’ approach in cases relating to ‘naturally occurring phenomena’ is not adequate to address the protection gap. Against this backdrop, the article reflects on a possible way forward.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"12 20","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139380153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is longstanding acceptance that opposition to discrimination against women and/or non-conformity with prevailing gender norms may constitute a political opinion in refugee law. However, courts have not consistently taken an expansive view of political opinion in gender cases. In particular, notwithstanding the global prevalence of intimate partner violence (IPV), there is little jurisprudential and, crucially, academic clarity in relation to the political implications of non-conformity with social mores in the context of IPV. Despite this inhospitable environment, lawyers continue to argue this ground in IPV claims, particularly at jurisprudential crisis points, as occurred recently in the aftermath of a 2018 decision in the United States, overruling previous precedent granting refugee status based on membership in a particular social group. This article provides an overarching examination of the academic discussion on the desirability and practicability of applying the political opinion ground and the case law considering this ground to date. Using the jurisprudence of appeal tribunals in five common law jurisdictions, the article reveals commonalities in both successful and unsuccessful claims in this context. Notably, it identifies that ‘nexus’ to an opinion is a previously underappreciated barrier to applying the political opinion ground in IPV claims. These observations provide a crucial foundation for further reasoned consideration of the political opinion ground in IPV claims which may arise given this ground’s ongoing invocation at first instance and in lower-level administrative decision making.
{"title":"‘There should be equality in opinions’: Political Opinion in Intimate Partner Violence Claims","authors":"Adrienne Anderson","doi":"10.1093/ijrl/eead031","DOIUrl":"https://doi.org/10.1093/ijrl/eead031","url":null,"abstract":"There is longstanding acceptance that opposition to discrimination against women and/or non-conformity with prevailing gender norms may constitute a political opinion in refugee law. However, courts have not consistently taken an expansive view of political opinion in gender cases. In particular, notwithstanding the global prevalence of intimate partner violence (IPV), there is little jurisprudential and, crucially, academic clarity in relation to the political implications of non-conformity with social mores in the context of IPV. Despite this inhospitable environment, lawyers continue to argue this ground in IPV claims, particularly at jurisprudential crisis points, as occurred recently in the aftermath of a 2018 decision in the United States, overruling previous precedent granting refugee status based on membership in a particular social group. This article provides an overarching examination of the academic discussion on the desirability and practicability of applying the political opinion ground and the case law considering this ground to date. Using the jurisprudence of appeal tribunals in five common law jurisdictions, the article reveals commonalities in both successful and unsuccessful claims in this context. Notably, it identifies that ‘nexus’ to an opinion is a previously underappreciated barrier to applying the political opinion ground in IPV claims. These observations provide a crucial foundation for further reasoned consideration of the political opinion ground in IPV claims which may arise given this ground’s ongoing invocation at first instance and in lower-level administrative decision making.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"97 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139054569","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since its origins in the 1980s, the concept of safe third country (STC) has increasingly been used to deter and curb ‘irregular migrant’ arrivals. A burgeoning body of research has considered these measures throughout the world, particularly in the European Union (EU), Canada, Australia, and the United States. While much STC scholarship has been doctrinal in nature and has focused on the protection standards required in a third State, some of the literature has also examined more theoretical questions. Against this background, this article explores the consequences of the STC concept for refugees and their (in)ability to seek and enjoy asylum by drawing on critical border studies literature. The article first conceptualizes this concept with reference to theories of bordering, dissecting the STC concept as a bordering tool which constructs subjects as worthy and unworthy of protection, and decides where the latter are to be protected. It then explores how this concept has been operationalized within the EU’s Common European Asylum System and the implications of this phenomenon for refugees, using the Greek–Turkish context as a case study. The article particularly considers the developments after the EU–Türkiye Statement of 18 March 2016 and a joint ministerial decision of 8 June 2021 by which Greece formally designated Türkiye as a STC. It reveals that while these measures came in response to the so-called irregular arrivals at the Greek–Turkish border, thousands of refugees affected by these measures have been either removed from the Greek territory and returned to Türkiye without protection, or trapped in limbo in Greece because of their removal from the EU asylum system. The article demonstrates that the STC concept, which is increasingly used as a bordering practice, spatially and temporally prevents certain people from being recognized and treated as refugees in accordance with the Refugee Convention.
{"title":"Unpacking the Safe Third Country Concept in the European Union: B/orders, Legal Spaces, and Asylum in the Shadow of Externalization","authors":"Berfin Nur Osso","doi":"10.1093/ijrl/eead028","DOIUrl":"https://doi.org/10.1093/ijrl/eead028","url":null,"abstract":"Since its origins in the 1980s, the concept of safe third country (STC) has increasingly been used to deter and curb ‘irregular migrant’ arrivals. A burgeoning body of research has considered these measures throughout the world, particularly in the European Union (EU), Canada, Australia, and the United States. While much STC scholarship has been doctrinal in nature and has focused on the protection standards required in a third State, some of the literature has also examined more theoretical questions. Against this background, this article explores the consequences of the STC concept for refugees and their (in)ability to seek and enjoy asylum by drawing on critical border studies literature. The article first conceptualizes this concept with reference to theories of bordering, dissecting the STC concept as a bordering tool which constructs subjects as worthy and unworthy of protection, and decides where the latter are to be protected. It then explores how this concept has been operationalized within the EU’s Common European Asylum System and the implications of this phenomenon for refugees, using the Greek–Turkish context as a case study. The article particularly considers the developments after the EU–Türkiye Statement of 18 March 2016 and a joint ministerial decision of 8 June 2021 by which Greece formally designated Türkiye as a STC. It reveals that while these measures came in response to the so-called irregular arrivals at the Greek–Turkish border, thousands of refugees affected by these measures have been either removed from the Greek territory and returned to Türkiye without protection, or trapped in limbo in Greece because of their removal from the EU asylum system. The article demonstrates that the STC concept, which is increasingly used as a bordering practice, spatially and temporally prevents certain people from being recognized and treated as refugees in accordance with the Refugee Convention.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"27 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138743159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Understanding the role of external actors is essential to understanding the United Kingdom’s (UK) securitization agenda in the field of asylum. Whilst the internal dynamics of securitization in migration and asylum and its links to the Brexit referendum have been extensively analysed, the externalization of asylum and its connection to the so-called ‘hostile environment’ policy have received less attention. This article addresses this gap, and focuses on how the Nationality and Borders Act 2022 and the UK–Rwanda Memorandum of Understanding for the relocation of asylum seekers advance the externalization of asylum post-Brexit. It examines how these reforms reinforce the securitization that characterizes the UK’s asylum and migration policy and evaluates how they exclude asylum seekers from access to basic human rights, in violation of the 1951 Refugee Convention and the European Convention on Human Rights.
{"title":"The Securitization of Asylum: A Review of UK Asylum Laws Post-Brexit","authors":"Cristina Saenz Perez","doi":"10.1093/ijrl/eead030","DOIUrl":"https://doi.org/10.1093/ijrl/eead030","url":null,"abstract":"Understanding the role of external actors is essential to understanding the United Kingdom’s (UK) securitization agenda in the field of asylum. Whilst the internal dynamics of securitization in migration and asylum and its links to the Brexit referendum have been extensively analysed, the externalization of asylum and its connection to the so-called ‘hostile environment’ policy have received less attention. This article addresses this gap, and focuses on how the Nationality and Borders Act 2022 and the UK–Rwanda Memorandum of Understanding for the relocation of asylum seekers advance the externalization of asylum post-Brexit. It examines how these reforms reinforce the securitization that characterizes the UK’s asylum and migration policy and evaluates how they exclude asylum seekers from access to basic human rights, in violation of the 1951 Refugee Convention and the European Convention on Human Rights.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"24 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138567578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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