Pub Date : 2023-12-21DOI: 10.1163/15718166-12340164
Denise Venturi
Sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) are often considered among the main personal characteristics which are likely to give rise to special procedural and reception needs, often resulting in labelling lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ+) asylum-seekers and refugees as “vulnerable”. However, SOGIESC issues should not be analysed in isolation, as there are various factors that can impact on one’s experience in the country of origin and throughout the asylum procedure. This paper shows the added value of mobilizing intersectionality in the assessment of SOGIESC asylum claims. By analysing soft law instruments, legislation and case law and taking Italy as a case study, this paper shows that intersectionality can be a useful analytical tool that can support a better understanding of how LGBTIQ+ asylum-seekers experience their “vulnerabilities”, as well as sustain State practices that address their protection needs in the asylum domain.
{"title":"Beyond the Rainbow? An Intersectional Analysis of the Vulnerabilities faced by LGBTIQ+ Asylum-Seekers","authors":"Denise Venturi","doi":"10.1163/15718166-12340164","DOIUrl":"https://doi.org/10.1163/15718166-12340164","url":null,"abstract":"<p>Sexual orientation, gender identity, gender expression and sex characteristics (<span style=\"font-variant: small-caps;\">SOGIESC</span>) are often considered among the main personal characteristics which are likely to give rise to special procedural and reception needs, often resulting in labelling lesbian, gay, bisexual, trans, intersex and queer (<span style=\"font-variant: small-caps;\">LGBTIQ</span>+) asylum-seekers and refugees as “vulnerable”. However, <span style=\"font-variant: small-caps;\">SOGIESC</span> issues should not be analysed in isolation, as there are various factors that can impact on one’s experience in the country of origin and throughout the asylum procedure. This paper shows the added value of mobilizing intersectionality in the assessment of <span style=\"font-variant: small-caps;\">SOGIESC</span> asylum claims. By analysing soft law instruments, legislation and case law and taking Italy as a case study, this paper shows that intersectionality can be a useful analytical tool that can support a better understanding of how <span style=\"font-variant: small-caps;\">LGBTIQ</span>+ asylum-seekers experience their “vulnerabilities”, as well as sustain State practices that address their protection needs in the asylum domain.</p>","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139027593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-21DOI: 10.1163/15718166-12340163
Alice Sinon, Julie Lejeune
In the asylum processes, medical documents are frequently used to establish a need for international protection. These include medico-legal reports written under the Istanbul Protocol. Their objective is to prove past persecution (e.g. torture) and/or specific vulnerability/ies, which should be taken into account in the procedure as well as in the assessment of the protection needs.
Firstly, the applicable international and EU legal framework and existing ECtHR case law are briefly analysed. Secondly, a study of Belgian asylum authorities and Courts’ practices, based on the analysis of individual cases, and on interviews carried out with victims of torture, shows that the weight given by asylum authorities to these documents varies. There is a lack of consistency in the practice in particular regarding their probative value. The article analyses in detail trends in the case-law and the reasonings put forward. Lastly, the article discusses how medical documents, by identifying and documenting vulnerabilities, can contribute to the consideration of all vulnerabilities from an intersectional perspective.
{"title":"The Use of Medico-Legal Reports in Asylum Processes in Belgium","authors":"Alice Sinon, Julie Lejeune","doi":"10.1163/15718166-12340163","DOIUrl":"https://doi.org/10.1163/15718166-12340163","url":null,"abstract":"<p>In the asylum processes, medical documents are frequently used to establish a need for international protection. These include medico-legal reports written under the Istanbul Protocol. Their objective is to prove past persecution (e.g. torture) and/or specific vulnerability/ies, which should be taken into account in the procedure as well as in the assessment of the protection needs.</p><p>Firstly, the applicable international and EU legal framework and existing ECtHR case law are briefly analysed. Secondly, a study of Belgian asylum authorities and Courts’ practices, based on the analysis of individual cases, and on interviews carried out with victims of torture, shows that the weight given by asylum authorities to these documents varies. There is a lack of consistency in the practice in particular regarding their probative value. The article analyses in detail trends in the case-law and the reasonings put forward. Lastly, the article discusses how medical documents, by identifying and documenting vulnerabilities, can contribute to the consideration of all vulnerabilities from an intersectional perspective.</p>","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139027482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores how “other vulnerabilities” can be examined through an intersectional perspective. “Other vulnerabilities” are the ones either established in the current policy and legal framework at the international and national level or, in addition, those that have been identified throughout the VULNER research path, besides age, gender and human trafficking. These “other vulnerabilities” have been classified along three dimensions: personal, situational and administrative vulnerabilities. Against this backdrop, the present work claims how the notion of intersectionality should be used as a heuristic tool through which examine and better understand vulnerabilities. Since that intersecting vulnerabilities are the rule and not the exception, intersectionality is crucial in order to ensure a more comprehensive and tailored identification and assessment of vulnerability. Through an intersectional approach, vulnerability is not read and interpret along a presence/absence perspective, but as a condition composed of multiple layers that are susceptible to change in time and space.
{"title":"Examining Asylum Seekers’ “Other Vulnerabilities”: Intersectionality in Context","authors":"Christine Flamand, Francesca Raimondo, Sylvie Saroléa","doi":"10.1163/15718166-12340165","DOIUrl":"https://doi.org/10.1163/15718166-12340165","url":null,"abstract":"<p>This article explores how “other vulnerabilities” can be examined through an intersectional perspective. “Other vulnerabilities” are the ones either established in the current policy and legal framework at the international and national level or, in addition, those that have been identified throughout the <span style=\"font-variant: small-caps;\">VULNER</span> research path, besides age, gender and human trafficking. These “other vulnerabilities” have been classified along three dimensions: <em>personal, situational</em> and <em>administrative</em> vulnerabilities. Against this backdrop, the present work claims how the notion of intersectionality should be used as a heuristic tool through which examine and better understand vulnerabilities. Since that intersecting vulnerabilities are the rule and not the exception, intersectionality is crucial in order to ensure a more comprehensive and tailored identification and assessment of vulnerability. Through an intersectional approach, vulnerability is not read and interpret along a presence/absence perspective, but as a condition composed of multiple layers that are susceptible to change in time and space.</p>","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139027880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340155
Giulia Raimondo
The systematic lack of accountability for migrant rights violations occurring in the context of migration control and other deterrence measures has been contested in theory and practice. While the scholarship has explored various accountability venues above and beyond international refugee law and within specialised regimes, new litigation strategies have accountability across multiple judicial and quasi-judicial fora at national and international levels. Against the background of this multilevel litigation strategy, international criminal law has emerged as a new site for accountability for violence against migrants at the borders of Europe. Starting from the Libyan case study, this article will examine the potential of international criminal law in the struggle for accountability for migrant rights violations. It will discuss whether and how qualifying migrant rights violations as crimes against humanity can illuminate certain aspects of violence against migrants at the borders of Europe while concretely challenging and addressing contemporary contactless forms of migration deterrence.
{"title":"Invisible Crimes: Accountability for Crimes against Migrants in Libya","authors":"Giulia Raimondo","doi":"10.1163/15718166-12340155","DOIUrl":"https://doi.org/10.1163/15718166-12340155","url":null,"abstract":"\u0000The systematic lack of accountability for migrant rights violations occurring in the context of migration control and other deterrence measures has been contested in theory and practice. While the scholarship has explored various accountability venues above and beyond international refugee law and within specialised regimes, new litigation strategies have accountability across multiple judicial and quasi-judicial fora at national and international levels. Against the background of this multilevel litigation strategy, international criminal law has emerged as a new site for accountability for violence against migrants at the borders of Europe. Starting from the Libyan case study, this article will examine the potential of international criminal law in the struggle for accountability for migrant rights violations. It will discuss whether and how qualifying migrant rights violations as crimes against humanity can illuminate certain aspects of violence against migrants at the borders of Europe while concretely challenging and addressing contemporary contactless forms of migration deterrence.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44541377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340154
Stamatis Melissourgos, A. Leerkes, Mark Klaassen
We analyse the family reunification troubles of a largely overlooked category of unaccompanied minors in Europe. The unaccompanied “followers” migrate in the footsteps of primary or secondary kin, or get separated from accompanying kin during their irregular journey, and then, typically after arriving in the European Union, seek family reunification with family members living in another EU Member State. Using extensive desk research, legal analysis, and semi-structured interviews, we document a considerable ‘family reunification gap’: followers arriving in Greece often see the realisation of their reunification aspirations prevented, or much delayed, because they lack clear family reunification rights or have difficulty accessing their rights, while the – tempting – path to continued irregular family reunification is similarly full of obstacles. We also show how the interplay of legislation, implementation practices, and opportunities for irregular reunification results in family reunification hierarchy, in which the best interests of the child are unequally fulfilled.
{"title":"Stuck in Greece? Unaccompanied Minors’ Stratified Access to Family Reunification on the Way to Other EU Member States","authors":"Stamatis Melissourgos, A. Leerkes, Mark Klaassen","doi":"10.1163/15718166-12340154","DOIUrl":"https://doi.org/10.1163/15718166-12340154","url":null,"abstract":"\u0000We analyse the family reunification troubles of a largely overlooked category of unaccompanied minors in Europe. The unaccompanied “followers” migrate in the footsteps of primary or secondary kin, or get separated from accompanying kin during their irregular journey, and then, typically after arriving in the European Union, seek family reunification with family members living in another EU Member State. Using extensive desk research, legal analysis, and semi-structured interviews, we document a considerable ‘family reunification gap’: followers arriving in Greece often see the realisation of their reunification aspirations prevented, or much delayed, because they lack clear family reunification rights or have difficulty accessing their rights, while the – tempting – path to continued irregular family reunification is similarly full of obstacles. We also show how the interplay of legislation, implementation practices, and opportunities for irregular reunification results in family reunification hierarchy, in which the best interests of the child are unequally fulfilled.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46816292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340158
Monika Plozza
{"title":"The Human Right to Citizenship – Situating the Right to Citizenship within International and Regional Human Rights Law, written by Barbara von Rütte","authors":"Monika Plozza","doi":"10.1163/15718166-12340158","DOIUrl":"https://doi.org/10.1163/15718166-12340158","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49528027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340156
Irina Mützelburg
This article contributes to the understanding of why international organisations’ attempts to transfer policies frequently fail or lead to only partial practical change in the target states. It sheds light on legislative resistance by analysing how Ukrainian lawmakers reacted to attempts to impose international asylum norms on them. Instead of overtly opposing the import of international norms, Ukrainian lawmakers resisted in a subtle way, frequently by making the implementation of the adopted norms impossible. As international normative texts contain vague formulations of certain norms, lawmakers benefited from a certain leeway when translating these norms into domestic law. They also adopted laws in a shallow way, integrating a particular norm into a very prominent law, often in a vague way, but failing to adapt other laws necessary for implementation. Finally, lawmakers delayed adoption or implementation, only making good on their commitment many years later when the pressure from international actors or incentives became too strong.
{"title":"Resisting International Norm Transfer While Seeking International Recognition – Ukrainian Asylum Lawmaking","authors":"Irina Mützelburg","doi":"10.1163/15718166-12340156","DOIUrl":"https://doi.org/10.1163/15718166-12340156","url":null,"abstract":"\u0000This article contributes to the understanding of why international organisations’ attempts to transfer policies frequently fail or lead to only partial practical change in the target states. It sheds light on legislative resistance by analysing how Ukrainian lawmakers reacted to attempts to impose international asylum norms on them. Instead of overtly opposing the import of international norms, Ukrainian lawmakers resisted in a subtle way, frequently by making the implementation of the adopted norms impossible. As international normative texts contain vague formulations of certain norms, lawmakers benefited from a certain leeway when translating these norms into domestic law. They also adopted laws in a shallow way, integrating a particular norm into a very prominent law, often in a vague way, but failing to adapt other laws necessary for implementation. Finally, lawmakers delayed adoption or implementation, only making good on their commitment many years later when the pressure from international actors or incentives became too strong.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43149463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340153
J. Wessels
With the legislative proposals presented as the New Pact on Migration and Asylum on 23 September 2020, the European Commission sought to overcome the political impasse in reform efforts of the Common European Asylum System. A key element of this legislative package is the broader use of border procedures. The rationale is that by ‘keeping’ certain asylum seekers at the borders or in transit zones, return policies would become more effective. This paper undertakes a legal assessment of the proposed border procedures in light of legal obligations arising from the Human Rights to liberty and freedom movement. It argues that the qualification of asylum seekers’ entry as unauthorised seemingly pushes into a gap in human rights law, allowing for detention and area-based restrictions. However, a reconstruction of the applicable human rights standards shows that the blanket use of such measures is in fact unlawful, such that the proposal will have to be amended in that regard.
{"title":"Gaps in Human Rights Law? Detention and Area-Based Restrictions in the Proposed Border Procedures in the EU","authors":"J. Wessels","doi":"10.1163/15718166-12340153","DOIUrl":"https://doi.org/10.1163/15718166-12340153","url":null,"abstract":"\u0000With the legislative proposals presented as the New Pact on Migration and Asylum on 23 September 2020, the European Commission sought to overcome the political impasse in reform efforts of the Common European Asylum System. A key element of this legislative package is the broader use of border procedures. The rationale is that by ‘keeping’ certain asylum seekers at the borders or in transit zones, return policies would become more effective. This paper undertakes a legal assessment of the proposed border procedures in light of legal obligations arising from the Human Rights to liberty and freedom movement. It argues that the qualification of asylum seekers’ entry as unauthorised seemingly pushes into a gap in human rights law, allowing for detention and area-based restrictions. However, a reconstruction of the applicable human rights standards shows that the blanket use of such measures is in fact unlawful, such that the proposal will have to be amended in that regard.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42592980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340152
Amanda Musco Eklund
The European Travel Information and Authorisation System (ETIAS) will profile visa- exempt third-country nationals using a screening rules algorithm to make automated predictive risk assessments. By using the screening rules algorithm as a case study, this article analyses if the ETIAS Regulation, and the legal safeguards it establishes for the decision-making process, comply with formal and substantive legality requirements as defined by the Venice Commission and the Court of Justice of the European Union. Three legality challenges are identified: [1] The regulatory design of ETIAS raises issues in relation to the foreseeability, clarity and accessibility of law, as well as insufficient limits to discretion. [2] The ETIAS screening rules algorithm represents a development towards a new form of arbitrariness through ‘algorithmic discretion’. [3] The safeguard of manual (human) processing in case of a ‘hit’ is not a panacea for the identified legality challenges.
{"title":"Rule of Law Challenges of ‘Algorithmic Discretion’ & Automation in EU Border Control","authors":"Amanda Musco Eklund","doi":"10.1163/15718166-12340152","DOIUrl":"https://doi.org/10.1163/15718166-12340152","url":null,"abstract":"\u0000The European Travel Information and Authorisation System (ETIAS) will profile visa- exempt third-country nationals using a screening rules algorithm to make automated predictive risk assessments. By using the screening rules algorithm as a case study, this article analyses if the ETIAS Regulation, and the legal safeguards it establishes for the decision-making process, comply with formal and substantive legality requirements as defined by the Venice Commission and the Court of Justice of the European Union. Three legality challenges are identified: [1] The regulatory design of ETIAS raises issues in relation to the foreseeability, clarity and accessibility of law, as well as insufficient limits to discretion. [2] The ETIAS screening rules algorithm represents a development towards a new form of arbitrariness through ‘algorithmic discretion’. [3] The safeguard of manual (human) processing in case of a ‘hit’ is not a panacea for the identified legality challenges.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47681482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-30DOI: 10.1163/15718166-12340157
Gianna Eckert
{"title":"Regularisations of Irregularly Staying Migrants in the EU: A Comparative Legal Analysis of Austria, Germany and Spain, written by Kevin Fredy Hinterberger","authors":"Gianna Eckert","doi":"10.1163/15718166-12340157","DOIUrl":"https://doi.org/10.1163/15718166-12340157","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42750007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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