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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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}
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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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}
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