Denying Refugee Protection to LGBTQ and Marginalized Persons: A Retrospective Look at State Protection in Canadian Refugee Law

2017 ◽  
Vol 29 (2) ◽  
pp. 290-316
Author(s):  
Jamie Chai Yun Liew
Keyword(s):  
Refugee Protection ◽  
Refugee Law ◽  
State Protection

Part V The Scope of Refugee Protection, Ch.40 Women in Refugee Jurisprudence

2021 ◽  
Author(s):  
Dauvergne Catherine
Keyword(s):  
Social Group ◽  
The State ◽  
Refugee Protection ◽  
Refugee Law ◽  
Recent Scholarship ◽  
Significant Tendency ◽  
Refugee Claimants ◽  
Group A ◽  
State Protection

This chapter investigates the state of refugee law jurisprudence about women. It begins by surveying recent scholarship in this area, highlighting two points: first, that the production of scholarship about women as refugee claimants has slowed; and secondly, that the issues being researched and written about are generally the same as those on offer since the 1990s. Stagnated progress is not to say that decisions about women have not become central to refugee law jurisprudence. Women have indeed moved from the margins to the centre of refugee law. The chapter then analyses elements of the refugee definition in turn, considering how each applies to women. These elements include well-founded fear, being persecuted, reasons for being persecuted, nexus, and exclusion. This structure is a useful rubric for summarizing trends, and isideal for demonstrating that because every element of the refugee definition must be satisfied in order for a claim to be successful, there is a significant tendency for problems to slip from one definitional element to another as the jurisprudence advances. In other words, once it becomes settled law that women can fit in the category of membership in a particular social group, a series of contestations then emerge in another area such as nexus or State protection. This tendency for slippage has driven forward much jurisprudential growth.

scholarly journals [BOOK REVIEW] Refugees, Regionalism, and Responsibility

2019 ◽  
Vol 06 (03) ◽  
pp. 638-642
Author(s):  
Jenica Alva
Keyword(s):  
International Law ◽  
International Politics ◽  
Law School ◽  
Simple Manner ◽  
Refugee Protection ◽  
Refugee Law ◽  
Innovative Idea ◽  
Durable Solutions

Penelope Mathew is a Professor of International Law and a Dean in Griffith Law School, Australia. She is a profound researcher in refugee law topics. She is admired for her innovative idea to promote regionalism as a tool for governments to leverage better protection for refugees. Studying an underexplored topic, Mathew is able to synthesize the complexity of regionalism in a simple manner to be understood easily by readers. The book is divided into two parts. The first part consists of three sub-parts: (1) regionalism position in international politics and refugee law; (2) philosophical and ethical reasons of states’ responsibility in the case of refugees; and (3) steps and actions for states to share responsibility in handling refugees. The second part looks at the regional arrangements for the protection of refugees in some detail, whether they have resulted in better refugee protection and durable solutions.

scholarly journals Alternative Fact? More Democratic States Are More Likely to Provide Refugee Protection

2017 ◽  
Author(s):  
Benjamin Perryman
Keyword(s):  
Country Of Origin ◽  
Federal Court ◽  
The United States ◽  
Protective Mechanisms ◽  
Refugee Protection ◽  
Determination Process ◽  
Individualized Approach ◽  
Refugee Claimant ◽  
Court Of Appeal ◽  
State Protection

Democracy is explicitly engaged in two aspects of the Canadian refugee determination process: state protection findings and Designated Country of Origin determinations. Democracy is also implicitly engaged in the selection of countries as so-called “safe countries.” This article reviews the literature on measuring the level of democracy in a given state, and the empirical evidence linking this level to a state’s willingness and ability to provide adequate protection to its citizens. The article argues that the Federal Court of Appeal was misguided in taking judicial notice of a correlation between the level of democracy in a given state and its ability to provide state protection. The article also reviews and questions the use of “democratic governance” as a factor in Immigration, Refugees and Citizenship Canada’s Designated Country of Origin regime, as well as the implicit use of democracy in designating the United States as a “safe” country under the Safe Third Country Agreement. The article contends that the time has come to reconsider how democracy measurements are used in Canada’s refugee determination process, and advocates for an individualized approach to state protection determinations: one that eschews the alternative fact presumption of a connection between democracy and protection, and instead focuses on the protective mechanisms available to a refugee claimant based on their unique circumstances.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

Part II Sources, Ch.12 International Humanitarian Law and Refugee Protection

2021 ◽  
Author(s):  
Ziegler Reuven
Keyword(s):  
Frame Of Reference ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
Scope Of Application ◽  
International Refugee Law

The chapter considers the interrelations between international humanitarian law and international refugee law. It seeks to illustrate that, in displacement contexts, interactions between international humanitarian law and (global and regional) refugee protection regimes, which continue to apply during conflict, are rather challenging given that, whereas international humanitarian law shares international refugee law’s concern for vulnerable individuals, its frame of reference (unlike that of international refugee law) is minimization of harm. Given that the regimes have evolved at different times and with their own specific sources, institutions, and ethos, the chapter appraises how ‘regime interaction’ would (or should) work. It then assesses the scope of application of international humanitarian law norms, looking at the significance of international humanitarian law classification, including who classifies conflicts. The chapter concludes by exploring international humanitarian law displacement-related norms and the extent to which international refugee law interpretations affect them.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.8 The Intersection of International Refugee Law and International Statelessness Law

2021 ◽  
Author(s):  
van Waas Laura
Keyword(s):  
First Century ◽  
Forced Displacement ◽  
Refugee Protection ◽  
Refugee Law ◽  
Durable Solutions ◽  
Twenty First Century ◽  
International Refugee Law ◽  
The Relationship ◽  
Insight Into ◽  
Stateless Person

This chapter focuses on the intersection of international refugee law and international statelessness law. While refugee law, policy, doctrine, and research evolved, it was not until after the turn of the twenty-first century that international statelessness law started to draw much attention and to begin to emerge as a field of its own. As global interest in statelessness grows, the interaction between statelessness and forced displacement has also come back under the spotlight. Thus, the chapter provides an insight into the relationship between statelessness and forced displacement. It starts by unpacking how statelessness can manifest itself as a cause or consequence of displacement, as well as how statelessness can be a complicating factor for refugee protection and durable solutions. The chapter then offers a brief overview of key norms relating to the protection of stateless persons and the prevention and resolution of statelessness, setting out the contours of international statelessness law. It also looks at the implications of the statelessness–displacement nexus by exploring the conceptual and practical questions that arise when a refugee is also stateless, and when a stateless person is also a refugee.

Part VI Refugee Rights and Realities, Ch.56 The Digital Transformation of Refugee Governance

2021 ◽  
Author(s):  
Sandvik Kristin Bergtora
Keyword(s):  
New Technology ◽  
Digital Transformation ◽  
Legal Rights ◽  
Refugee Status ◽  
Solution Processed ◽  
Protection Policy ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Data Subject

This chapter evaluates four selected issues arising from the digital transformation of refugee protection, in order to explore how this transformation shapes and challenges refugee law. It focuses on the following domains: UNHCR’s 2015 Data Protection Policy, a concept (legal identity), a platform (databases), and legal-bureaucratic processes (refugee status determination and resettlement procedures). Digital transformation generates new risks, in part because it is premised on a duty of refugee visibility. The chapter argues that international refugee law, conceptually and in practice, appears to be moving towards an idea of ‘algorithmic protection’. First, digitization and the integration of new technology create risks and harms that can compromise existing legal rights and procedural guarantees but also threaten the integrity of refugee protection in new ways. Secondly, algorithmic protection is a useful concept because the digital transformation of refugee protection means that the duty of visibility and acquiescence to become a data subject has become a requirement for being registered as a refugee, receiving aid (eg biometric banking), and having one’s claim for a durable solution processed.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.7 Refugees as Migrants

2021 ◽  
Author(s):  
Atak Idil ◽  
Crépeau François
Keyword(s):  
Forced Migration ◽  
Institutional Framework ◽  
Freedom Of Movement ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Clear Line

This chapter details the long-standing debate on whether refugees should be portrayed as migrants. Several organizations, refugee advocates, and scholars argue for a clear line between ‘migrants’ and ‘refugees’, as a means of protecting the refugee regime. They point to the inherently distinct motivations driving refugee movements compared to other types of migration, as well as to the specific normative and institutional framework for refugee protection. The chapter argues that conceptualizing refugees as migrants does not undermine the specific normative and institutional framework for refugee protection. Rather, it further promotes refugees’ access to asylum and safety. The chapter then examines the literature on the refugee/migrant distinction, highlighting the increasingly overlapping and interconnected motivations and contexts driving forced migration. It looks at the mounting barriers refugees face to reach safety and explores the avenues to safeguarding and promoting access to asylum and refugee rights. The chapter also articulates the role that freedom of movement should play in protecting the rights of all migrants, including refugees.

Part II Sources, Ch.11 Moving Towards an Integrated Approach of Refugee Law and Human Rights Law

2021 ◽  
Author(s):  
Chetail Vincent
Keyword(s):  
Human Rights ◽  
International Law ◽  
Integrated Approach ◽  
Human Rights Law ◽  
Refugee Convention ◽  
Refugee Protection ◽  
Refugee Law ◽  
Gradual Process ◽  
New Perspective ◽  
Human Rights Based Approach

This chapter highlights the interface between human rights law and refugee law. The broader evolution of international law reflects the changing pattern of refugee protection as initially grounded in the Refugee Convention and subsequently informed by human rights treaties. As a result of a gradual process of pollination, human rights law has shaped, updated, and enlarged refugee law. While revamping the basic tenets of the Refugee Convention, it has become the normative frame of reference. Refugee law and human rights law are now so interdependent that they are bound to work in tandem. Their intermingling paves the way for a human rights-based approach to refugee protection. Instead of regarding the two branches of international law as silos, this new perspective offers a broader vision of refugee protection. This comprehensive design acknowledges that refugee law and human rights law complement and reinforce each other within one single continuum of protection.

Part V The Scope of Refugee Protection, Ch.38 The Internal Protection Alternative

2021 ◽  
Author(s):  
Ghráinne Bríd Ní
Keyword(s):  
Refugee Convention ◽  
Safe Place ◽  
Refugee Protection ◽  
Refugee Law ◽  
State Practice ◽  
Treaty Interpretation ◽  
Risk Of Exposure ◽  
The Individual ◽  
Risk Driving ◽  
The City

This chapter discusses the Internal Protection Alternative (IPA), which stems from the premise that if there is a safe place within an individual’s State of nationality or habitual residence where they can relocate, they are not a refugee. Examples of the application of the IPA could include relocating from the countryside to the city where an individual is less likely to be found by their persecutors; or relocating to an area where a clan, tribe, militia, or international organization could provide protection. As refugee law lacks an international mechanism capable of providing a common interpretation of the Refugee Convention, the IPA’s interpretation has primarily been left to Contracting States by means of domestic court decisions. Using the rules of treaty interpretation, it is nonetheless possible to distil a minimum binding standard of relevant IPA criteria from both State practice and the text of the Refugee Convention itself. These criteria are that (i) the proposed IPA must be accessible to the applicant, (ii) there is no risk of exposure to the original risk of persecution, and (iii) there must be no new risk of persecution or of refoulement in the proposed IPA, and the conditions there must not be so unreasonable as to risk driving the individual to a place where there is a risk of persecution.

Sign in / Sign up

Export Citation Format

Share Document