The criminal justice and the refugee/human rights systems operate within different procedural and substantive frameworks. However, analysis of the European Court of Human Rights’ case law reveals a significant parallel between the two, namely judges’ acceptance of ‘rape myths’ in making their decisions. Criminal justice scholarship has defined rape myths as stereotyped and false beliefs about rape (including about victims and perpetrators). This article translates the concept to the refugee/human rights context and extends it to other forms of sexual or gender-based violence (SGBV) as well. It identifies four specific SGBV myths in the court’s non-refoulement case law: non-reporting of SGBV in the country of origin equals non-exhaustion of local remedies or protection (institutional scope: section 4.1); the existence of a private (male) support network suffices to protect an applicant from SGBV (interpersonal scope: section 4.2); resourceful applicants do not need protection against SGBV (personal scope: section 4.3); and any vagueness, incompleteness, or inconsistency in SGBV disclosures indicates a false or exaggerated story (narrative scope: section 4.4). These types of reasoning not only lack evidence-based grounds, but also demonstrate a striking lack of understanding of the nature of SGBV and the protection needs of its survivors/victims. In theory, SGBV has been recognized as a form of ill-treatment deserving protection from refoulement. In practice, however, access to this protection is hindered by a tendency to use SGBV myths in (credibility) assessments of applicants who fear ill-treatment on the basis of SGBV. While the exact meaning of gender-sensitive non-refoulement assessments remains undefined, it cannot entail the practices of SGBV myth acceptance uncovered in this article.
{"title":"Rape Myths in the European Court of Human Rights’ Non-Refoulement Case Law on Sexual and Gender-Based Violence","authors":"Lore Roels","doi":"10.1093/ijrl/eead029","DOIUrl":"https://doi.org/10.1093/ijrl/eead029","url":null,"abstract":"The criminal justice and the refugee/human rights systems operate within different procedural and substantive frameworks. However, analysis of the European Court of Human Rights’ case law reveals a significant parallel between the two, namely judges’ acceptance of ‘rape myths’ in making their decisions. Criminal justice scholarship has defined rape myths as stereotyped and false beliefs about rape (including about victims and perpetrators). This article translates the concept to the refugee/human rights context and extends it to other forms of sexual or gender-based violence (SGBV) as well. It identifies four specific SGBV myths in the court’s non-refoulement case law: non-reporting of SGBV in the country of origin equals non-exhaustion of local remedies or protection (institutional scope: section 4.1); the existence of a private (male) support network suffices to protect an applicant from SGBV (interpersonal scope: section 4.2); resourceful applicants do not need protection against SGBV (personal scope: section 4.3); and any vagueness, incompleteness, or inconsistency in SGBV disclosures indicates a false or exaggerated story (narrative scope: section 4.4). These types of reasoning not only lack evidence-based grounds, but also demonstrate a striking lack of understanding of the nature of SGBV and the protection needs of its survivors/victims. In theory, SGBV has been recognized as a form of ill-treatment deserving protection from refoulement. In practice, however, access to this protection is hindered by a tendency to use SGBV myths in (credibility) assessments of applicants who fear ill-treatment on the basis of SGBV. While the exact meaning of gender-sensitive non-refoulement assessments remains undefined, it cannot entail the practices of SGBV myth acceptance uncovered in this article.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"19 3","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138510104","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}
As a non-signatory to the 1951 Refugee Convention and its 1967 Protocol, Saudi Arabia is often portrayed as a State that refuses engagement with the global legal norms and supporting institutions focused on the protection of refugees. This article contends that this is not the case, and closely examines Saudi Arabia’s relationship with the international refugee regime by asking what was Saudi Arabia’s role in the drafting of the main refugee protection instruments, and what is its approach – past and present – to acceding to the 1951 Convention? How does Saudi Arabia engage with the United Nations High Commissioner for Refugees (UNHCR) – on the global plane but also through UNHCR’s activities in the country? Drawing on hitherto unresearched material from the UNHCR archives pertaining to the years 1962–94, as well as interviews with key government and UNHCR actors, this article argues that Saudi Arabia engages substantively with the international refugee regime. It discusses how Saudi Arabia participated in the drafting processes of the main refugee protection instruments and shows that accession to the 1951 Convention appears to have been seriously considered at certain junctures. The article also explores Saudi Arabia’s relationship with UNHCR. In addition to focusing on Saudi Arabia’s role in the UNHCR Executive Committee, it looks more closely at UNHCR’s activities in the country, identifying three phases of UNHCR involvement – establishment (1987–97), expansion (1998–2005), and consolidation (2005–). It finds that UNHCR’s approach to Saudi Arabia is characterized by pragmatism rather than by principle, and that Saudi Arabia has been able to influence the way UNHCR implements its mandate in the country, as well as beyond. Importantly, Saudi Arabia is a gatekeeper for UNHCR operations in the Gulf region and in Muslim-majority countries more generally. Similarly, UNHCR is an important vessel for Saudi Arabian humanitarianism.
{"title":"Saudi Arabia and the International Refugee Regime","authors":"Maja Janmyr, Charlotte Lysa","doi":"10.1093/ijrl/eead027","DOIUrl":"https://doi.org/10.1093/ijrl/eead027","url":null,"abstract":"As a non-signatory to the 1951 Refugee Convention and its 1967 Protocol, Saudi Arabia is often portrayed as a State that refuses engagement with the global legal norms and supporting institutions focused on the protection of refugees. This article contends that this is not the case, and closely examines Saudi Arabia’s relationship with the international refugee regime by asking what was Saudi Arabia’s role in the drafting of the main refugee protection instruments, and what is its approach – past and present – to acceding to the 1951 Convention? How does Saudi Arabia engage with the United Nations High Commissioner for Refugees (UNHCR) – on the global plane but also through UNHCR’s activities in the country? Drawing on hitherto unresearched material from the UNHCR archives pertaining to the years 1962–94, as well as interviews with key government and UNHCR actors, this article argues that Saudi Arabia engages substantively with the international refugee regime. It discusses how Saudi Arabia participated in the drafting processes of the main refugee protection instruments and shows that accession to the 1951 Convention appears to have been seriously considered at certain junctures. The article also explores Saudi Arabia’s relationship with UNHCR. In addition to focusing on Saudi Arabia’s role in the UNHCR Executive Committee, it looks more closely at UNHCR’s activities in the country, identifying three phases of UNHCR involvement – establishment (1987–97), expansion (1998–2005), and consolidation (2005–). It finds that UNHCR’s approach to Saudi Arabia is characterized by pragmatism rather than by principle, and that Saudi Arabia has been able to influence the way UNHCR implements its mandate in the country, as well as beyond. Importantly, Saudi Arabia is a gatekeeper for UNHCR operations in the Gulf region and in Muslim-majority countries more generally. Similarly, UNHCR is an important vessel for Saudi Arabian humanitarianism.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"10 8","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138510083","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}
Abstract Special procedural guarantees for vulnerable asylum seekers are a core part of refugee status determination standards. These safeguards are neither afforded, nor properly adjudicated in Greek asylum procedures, however. Drawing on recent case law, this article argues that Greek appeal bodies (the Appeals Committees) routinely rule that vulnerability is irrelevant to refugee status determination or that no procedural harm is sustained from the inappropriate channelling of vulnerable people into truncated procedures, in dereliction of European Union (EU) standards and domestic jurisprudence. Systemic non-compliance with the duty to grant special procedural safeguards is a policy choice, yet the European Commission, the institution responsible for EU law enforcement, refrains from enforcing these standards in Greece. The Commission’s enforcement deficit vis-à-vis the Greek asylum system is underpinned by its Task Force for Migration Management’s prioritization of ending overcrowding and speeding up decision making over procedural standards, as well as an uneasy balancing act between operational support and monitoring.
{"title":"Adjudication of Procedural Safeguards for Vulnerable Asylum Seekers in Greece: Case Law and Systemic Non-Compliance","authors":"Minos Mouzourakis","doi":"10.1093/ijrl/eead024","DOIUrl":"https://doi.org/10.1093/ijrl/eead024","url":null,"abstract":"Abstract Special procedural guarantees for vulnerable asylum seekers are a core part of refugee status determination standards. These safeguards are neither afforded, nor properly adjudicated in Greek asylum procedures, however. Drawing on recent case law, this article argues that Greek appeal bodies (the Appeals Committees) routinely rule that vulnerability is irrelevant to refugee status determination or that no procedural harm is sustained from the inappropriate channelling of vulnerable people into truncated procedures, in dereliction of European Union (EU) standards and domestic jurisprudence. Systemic non-compliance with the duty to grant special procedural safeguards is a policy choice, yet the European Commission, the institution responsible for EU law enforcement, refrains from enforcing these standards in Greece. The Commission’s enforcement deficit vis-à-vis the Greek asylum system is underpinned by its Task Force for Migration Management’s prioritization of ending overcrowding and speeding up decision making over procedural standards, as well as an uneasy balancing act between operational support and monitoring.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135569864","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}
Abstract This article explores the problems linked with the determination of nationality and the condition of statelessness in a complex setting characterized by undocumented migration, such as the transit zone around the Strait of Gibraltar, between North Africa and the southern borders of Spain. The States immediately concerned are Morocco and Spain, although the situation affects many other neighbouring States in North Africa. The study suggests that without a precise mechanism to separate regimes between ordinary migrants and migrants who need international protection, such States fail to fulfil their international obligations regarding stateless persons and other undocumented migrants.
{"title":"Statelessness and Nationality Matters in the context of Migration between Northern Africa and Spain","authors":"Michel Remi Njiki","doi":"10.1093/ijrl/eead023","DOIUrl":"https://doi.org/10.1093/ijrl/eead023","url":null,"abstract":"Abstract This article explores the problems linked with the determination of nationality and the condition of statelessness in a complex setting characterized by undocumented migration, such as the transit zone around the Strait of Gibraltar, between North Africa and the southern borders of Spain. The States immediately concerned are Morocco and Spain, although the situation affects many other neighbouring States in North Africa. The study suggests that without a precise mechanism to separate regimes between ordinary migrants and migrants who need international protection, such States fail to fulfil their international obligations regarding stateless persons and other undocumented migrants.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135617944","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 mixed-methods study analyses a sample of 303 rejections of refugee claims by Canadian refugee status adjudicators. It explores the role that inferences about the claimant’s risk response play in supporting the adjudicators’ conclusions that the claimant is lying. In justifying their negative credibility conclusions, the adjudicators in almost two out of three decisions (63%) cited the claimant’s risk response. They often measured the claimant against a general idealized standard: in the face of an alleged danger, the claimant did not act like a ‘person at risk’. This approach brings to refugee law the confusion that characterizes the common law’s most famous fiction. Like the ‘reasonable man’, the ‘person at risk’ blurs the lines between descriptive analyses aimed at understanding how a person would have acted and normative analyses aimed at establishing how a person should have acted. Moreover, in deciding how a ‘person at risk’ would act, the adjudicators did not consider social scientific sources. For many decades, researchers have investigated how human beings respond to potentially deadly threats such as natural hazards, lethal illnesses, attacks, and assaults. The adjudicators’ reasoning, resting on common sense alone, often ran counter to key insights that emerge from this body of research. This study’s findings suggest that refugee systems must guard against the use of normative standards in drawing credibility inferences from a claimant’s risk response, and that they must do more to ensure that social scientific evidence informs these judgments. Evidence about human risk response should be on the record in every refugee hearing.
{"title":"Risk and the Reasonable Refugee: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections","authors":"Hilary Evans Cameron","doi":"10.1093/ijrl/eead022","DOIUrl":"https://doi.org/10.1093/ijrl/eead022","url":null,"abstract":"\u0000 This mixed-methods study analyses a sample of 303 rejections of refugee claims by Canadian refugee status adjudicators. It explores the role that inferences about the claimant’s risk response play in supporting the adjudicators’ conclusions that the claimant is lying. In justifying their negative credibility conclusions, the adjudicators in almost two out of three decisions (63%) cited the claimant’s risk response. They often measured the claimant against a general idealized standard: in the face of an alleged danger, the claimant did not act like a ‘person at risk’. This approach brings to refugee law the confusion that characterizes the common law’s most famous fiction. Like the ‘reasonable man’, the ‘person at risk’ blurs the lines between descriptive analyses aimed at understanding how a person would have acted and normative analyses aimed at establishing how a person should have acted. Moreover, in deciding how a ‘person at risk’ would act, the adjudicators did not consider social scientific sources. For many decades, researchers have investigated how human beings respond to potentially deadly threats such as natural hazards, lethal illnesses, attacks, and assaults. The adjudicators’ reasoning, resting on common sense alone, often ran counter to key insights that emerge from this body of research. This study’s findings suggest that refugee systems must guard against the use of normative standards in drawing credibility inferences from a claimant’s risk response, and that they must do more to ensure that social scientific evidence informs these judgments. Evidence about human risk response should be on the record in every refugee hearing.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41749170","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 particular difficulties that lesbian, gay, and bisexual refugees face when applying for asylum are in constant flux. As one issue is removed, another takes its place. This article provides a historical overview of these developments and shows how attempts to include lesbian, gay, and bisexual people and their experiences have transformed shame into an implicit legal requirement in certain countries, in particular, Sweden and the Netherlands. While the implementation of the Difference, Stigma, Shame, and Harm (DSSH) model aimed to promote open-ended conversations about the fluidity of sexual orientation, in the contexts examined in this study, it has arguably led to a set of legal requirements that emphasize suffering and internalized homophobia. Further, the article argues that, as developments in refugee law have centred the procedural focus on the credibility of the applicant and have formulated sexual orientation as a fixed identity, this identity has become a decisive requirement in the bureaucracy of border control. In addition, the understanding of this lesbian, gay, or bisexual refugee identity has, in turn, been influenced by colonial perceptions of homophobia and sexuality.
{"title":"A Requirement of Shame: On the Evolution of the Protection of LGB Refugees","authors":"Karin Åberg","doi":"10.1093/ijrl/eead008","DOIUrl":"https://doi.org/10.1093/ijrl/eead008","url":null,"abstract":"\u0000 The particular difficulties that lesbian, gay, and bisexual refugees face when applying for asylum are in constant flux. As one issue is removed, another takes its place. This article provides a historical overview of these developments and shows how attempts to include lesbian, gay, and bisexual people and their experiences have transformed shame into an implicit legal requirement in certain countries, in particular, Sweden and the Netherlands. While the implementation of the Difference, Stigma, Shame, and Harm (DSSH) model aimed to promote open-ended conversations about the fluidity of sexual orientation, in the contexts examined in this study, it has arguably led to a set of legal requirements that emphasize suffering and internalized homophobia. Further, the article argues that, as developments in refugee law have centred the procedural focus on the credibility of the applicant and have formulated sexual orientation as a fixed identity, this identity has become a decisive requirement in the bureaucracy of border control. In addition, the understanding of this lesbian, gay, or bisexual refugee identity has, in turn, been influenced by colonial perceptions of homophobia and sexuality.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44099298","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}
Human rights violations in the context of migration deals have received considerable attention, especially when it comes to more frequently explored human rights such as the principle of non-refoulement, the right to life, and the prohibition on torture. However, such deals also have a negative impact on the socio-economic rights of people on the move, who often live in dire conditions and lack access to education, health care, and work. This article therefore seeks to answer the following question: to what extent do European Union Member States have obligations under the International Covenant on Economic, Social and Cultural Rights towards people on the move contained in third countries as a result of migration deals? The analysis shows that EU Member States may have two types of obligations and examines their nature and scope. First, EU Member States have direct obligations when exercising extraterritorial jurisdiction. This is the case when they can take reasonable measures to avoid reasonably foreseeable human rights violations that result from migration deals. Secondly, they may also have global obligations within the framework of international assistance and cooperation. While the nature and scope of these obligations remain unclear, this article explores whether EU Member States have an obligation to provide international assistance and cooperation to third countries that host people on the move as a result of migration deals. It also examines whether EU Member States can comply with their obligations of international assistance and cooperation by cooperating with third countries on migration control. The article uses the examples of European migration deals with Turkey and Libya to illustrate the analysis.
{"title":"Migration Deals Seen through the Lens of the ICESCR","authors":"Annick Pijnenburg","doi":"10.1093/ijrl/eead010","DOIUrl":"https://doi.org/10.1093/ijrl/eead010","url":null,"abstract":"\u0000 Human rights violations in the context of migration deals have received considerable attention, especially when it comes to more frequently explored human rights such as the principle of non-refoulement, the right to life, and the prohibition on torture. However, such deals also have a negative impact on the socio-economic rights of people on the move, who often live in dire conditions and lack access to education, health care, and work. This article therefore seeks to answer the following question: to what extent do European Union Member States have obligations under the International Covenant on Economic, Social and Cultural Rights towards people on the move contained in third countries as a result of migration deals? The analysis shows that EU Member States may have two types of obligations and examines their nature and scope. First, EU Member States have direct obligations when exercising extraterritorial jurisdiction. This is the case when they can take reasonable measures to avoid reasonably foreseeable human rights violations that result from migration deals. Secondly, they may also have global obligations within the framework of international assistance and cooperation. While the nature and scope of these obligations remain unclear, this article explores whether EU Member States have an obligation to provide international assistance and cooperation to third countries that host people on the move as a result of migration deals. It also examines whether EU Member States can comply with their obligations of international assistance and cooperation by cooperating with third countries on migration control. The article uses the examples of European migration deals with Turkey and Libya to illustrate the analysis.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46223078","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}
{"title":"Statelessness Determination Procedures and the Right to Nationality: Nigeria in Comparative Perspective","authors":"O. Enigbokan","doi":"10.1093/ijrl/eead018","DOIUrl":"https://doi.org/10.1093/ijrl/eead018","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"302 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139371686","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}
{"title":"Administrative Law in Action: Immigration Administration","authors":"Helen Toner","doi":"10.1093/ijrl/eead017","DOIUrl":"https://doi.org/10.1093/ijrl/eead017","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":"76 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139371810","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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