National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within the UNHCR Guidelines on International Protection

Extraterritorial migration control represents a fundamental challenge to refugees’ ability to access asylum. The right to seek asylum, pivotal to the international protection of refugees, almost always requires that an asylum seeker reach a State’s territory to access protection. This chapter charts the emergence and evolution of different forms of extraterritorial migration control over the past three decades which render this access to protection increasingly dangerous and elusive. Equally, the chapter shows that international refugee law has not remained static in this period. From dynamic developments in the interpretation of key tenets of refugee law to the wider turn to international human rights law and litigation, refugee lawyers have consistently challenged restrictive developments in State practice. However, legal responses to extraterritorial migration control cannot stop here. This chapter sketches out a topographical approach to accountability, cutting across different legal regimes, different levels of national, transnational, regional, and international law, and different jurisdictions in both the Global North and the Global South, to confront the challenges thrown up by contemporary extraterritorial migration control and deterrence.

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12. Claims for international protection

10.1093/he/9780198848936.003.0012 ◽

2021 ◽

pp. 435-495

Author(s):

Gina Clayton ◽

Georgina Firth ◽

Caroline Sawyer ◽

Rowena Moffatt

Keyword(s):

Case Law ◽

Causal Link ◽

Parallel Process ◽

Refugee Status ◽

International Protection ◽

Refugee Law ◽

Legal Context ◽

The Status ◽

Gender Based ◽

The Uk

This chapter examines the requirements for refugee status, according to Article 1A of the UN Convention Relating to the Status of Refugees 1951 and the Refugee Qualification Directive EC 2004/83, referred to as the Qualification Directive. This includes case law on the main concepts in refugee law: well-founded fear, persecution, Convention reason, causal link, and internal relocation. There is a focus on the particular problems in gender-based claims. The chapter considers protection for victims of trafficking, who may go through a parallel process to the asylum system. The chapter begins with the legal context of refugee claims in the UK, and then follows the structure of Article 1A of the Refugee Convention.

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THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES AND THE SOURCES OF INTERNATIONAL REFUGEE LAW

International and Comparative Law Quarterly ◽

10.1017/s002058931900054x ◽

2020 ◽

Vol 69 (1) ◽

pp. 1-41

Author(s):

Guy S. Goodwin-Gill

Keyword(s):

International Law ◽

International Protection ◽

Customary International Law ◽

Grass Roots ◽

Refugee Law ◽

High Commissioner ◽

Operational Activities ◽

International Refugee Law ◽

High Degree ◽

The Impact

AbstractThe role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

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The Substance of Solidarity: What the Response to the COVID-19 Pandemic Says About the Global Refugee Regime

10.32920/ryerson.14636520 ◽

2021 ◽

Author(s):

Magdalena Perzyna

Keyword(s):

United States ◽

Asylum Seekers ◽

The United States ◽

Global Compact ◽

International Protection ◽

Western Nation ◽

Refugee Law ◽

Nation States ◽

Global North ◽

International Refugee Law

The European migrant crisis of 2015 brought to light the urgent need for solidarity and responsibility-sharing in dealing with large influxes of people fleeing war, conflict and persecution. This spirit was captured in two subsequent international agreements: the Global Compact on Refugees (GCR) (2018) and the Global Compact for Safe and Orderly Migration (GCM) (2018). In the midst of a very different kind of crisis - the global COVID-19 pandemic - the need for solidarity and responsibility-sharing is all the more imperative as COVID-19 has become a 'risk multiplier' for asylum seekers, compounding existing drivers. By examining how Western nation states in the global North have responded to asylum seekers during the pandemic against the backdrop of existing international refugee law, practice, and policy, this essay seeks to evaluate the normative potential of the GCR and the GCM for the entrenchment of the principle of solidarity. Employing the theoretical framework of governmentality, it argues that despite the rhetoric of responsibility-sharing, the reactions of Western nation states reflect an existing trend toward exclusionary impulses, with countries reflexively reverting to patterns of state-centric, insular protectionism. Taking these issues into consideration, the essay goes on to focus on Canada's response to the COVID-19 pandemic in light of its proximity to and relationship with the United States to illustrate how biopower is being deployed to exclude in line with neoliberal rationalities, even in a country that is usually heralded as a beacon of humanitarianism. The essay concludes with a guarded diagnosis that warns of the potential for an international protection crisis should civil society fail to challenge prevailing biopolitics. Keywords: COVID-19, Asylum Seekers, Refugees, Solidarity, Responsibility-sharing, Governmentality, Biopower, Neoliberal, Canada, United States

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Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change

Refugee Survey Quarterly ◽

10.1093/rsq/hdw018 ◽

2016 ◽

Vol 35 (4) ◽

pp. 26-57 ◽

Cited By ~ 2

Author(s):

Matthew Scott

Keyword(s):

Climate Change ◽

New Zealand ◽

Case Law ◽

Refugee Status ◽

Social Phenomena ◽

Refugee Law ◽

The Social ◽

International Refugee Law ◽

Critical Aspects ◽

Social Paradigm

This article argues that, as individuals are already applying for refugee status in the context of disasters and climate change, a robust understanding of why disasters happen and how different groups are affected, combined with a principled methodology for determining such claims, are critical aspects of the anxious scrutiny that each claim should receive. The limitations of the “hazards” paradigm, which is shown to be dominant in international refugee law, are highlighted. Adopting the “social” paradigm developed within the field of disaster risk reduction, the argument is advanced that an understanding of disasters as social phenomena within which existing patterns of discrimination contribute to differential impacts, provides a sharper lens with which to consider eligibility for refugee status. The article argues that recent case-law from the New Zealand Immigration and Protection Tribunal reflects an awareness of the social paradigm, and the methodology for determining such claims is described and largely endorsed. It concludes by identifying sources of country of origin information that can help to address some of the evidentiary challenges claimants may face, and argues that the risk assessment under refugee law is more generous than the “immediacy” requirement identified by the New Zealand Immigration and Protection Tribunal in relation to complementary protection claims.

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The Substance of Solidarity: What the Response to the COVID-19 Pandemic Says About the Global Refugee Regime

10.32920/ryerson.14636520.v1 ◽

2021 ◽

Author(s):

Magdalena Perzyna

Keyword(s):

United States ◽

Asylum Seekers ◽

The United States ◽

Global Compact ◽

International Protection ◽

Western Nation ◽

Refugee Law ◽

Nation States ◽

Global North ◽

International Refugee Law

The European migrant crisis of 2015 brought to light the urgent need for solidarity and responsibility-sharing in dealing with large influxes of people fleeing war, conflict and persecution. This spirit was captured in two subsequent international agreements: the Global Compact on Refugees (GCR) (2018) and the Global Compact for Safe and Orderly Migration (GCM) (2018). In the midst of a very different kind of crisis - the global COVID-19 pandemic - the need for solidarity and responsibility-sharing is all the more imperative as COVID-19 has become a 'risk multiplier' for asylum seekers, compounding existing drivers. By examining how Western nation states in the global North have responded to asylum seekers during the pandemic against the backdrop of existing international refugee law, practice, and policy, this essay seeks to evaluate the normative potential of the GCR and the GCM for the entrenchment of the principle of solidarity. Employing the theoretical framework of governmentality, it argues that despite the rhetoric of responsibility-sharing, the reactions of Western nation states reflect an existing trend toward exclusionary impulses, with countries reflexively reverting to patterns of state-centric, insular protectionism. Taking these issues into consideration, the essay goes on to focus on Canada's response to the COVID-19 pandemic in light of its proximity to and relationship with the United States to illustrate how biopower is being deployed to exclude in line with neoliberal rationalities, even in a country that is usually heralded as a beacon of humanitarianism. The essay concludes with a guarded diagnosis that warns of the potential for an international protection crisis should civil society fail to challenge prevailing biopolitics. Keywords: COVID-19, Asylum Seekers, Refugees, Solidarity, Responsibility-sharing, Governmentality, Biopower, Neoliberal, Canada, United States

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12. Claims for international protection

Immigration & Asylum Law ◽

10.1093/he/9780198815211.003.0012 ◽

2018 ◽

Author(s):

Gina Clayton ◽

Georgina Firth ◽

Caroline Sawyer ◽

Rowena Moffatt ◽

Helena Wray

Keyword(s):

Case Law ◽

Causal Link ◽

Parallel Process ◽

Refugee Status ◽

International Protection ◽

Refugee Law ◽

System P ◽

The Status ◽

The Law ◽

Gender Based

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirements for refugee status, according to Article 1A of the UN Convention Relating to the Status of Refugees 1951 and the Refugee Qualification Directive EC 2004/83, referred to as the Qualification Directive. This includes case law on the main concepts in refugee law: well-founded fear, persecution, Convention reason, causal link, and internal relocation. There is a focus on the particular problems in gender-based claims. The chapter considers protection for victims of trafficking, who may go through a parallel process to the asylum system.

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Regionalising International Refugee Law in the European Union: Democratic Revision or Revisionist Democracy?

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v38i2.5522 ◽

2007 ◽

Vol 38 (2) ◽

pp. 255

Author(s):

Jane McAdam

Keyword(s):

International Law ◽

Forced Migration ◽

International Standards ◽

The European Union ◽

Systematic Analysis ◽

International Protection ◽

Refugee Law ◽

Large Numbers ◽

International Refugee Law ◽

The Eu

This paper questions whether the process of harmonisation of the European Union’s asylum laws has strengthened the region’s commitment to international law and international standards, or has instead diluted them in order to accommodate regional (and domestic "democratic") concerns about forced migration. Harmonisation has taken place in a political environment that is suspicious of asylum seekers, that seeks restrictive entrance policies and that is wary of large numbers of refugees. This paper argues that such factors have heavily influenced the scope of the common asylum laws – who is eligible for protection – and the rights to which beneficiaries are entitled – what that protection actually is. It looks in particular at the confinement of protection to "third country nationals", a restriction which contravenes the 1951 Refugee Convention and denies international protection to groups within the EU such as the Roma, whose discrimination is welldocumented and has historically led to many being recognised as refugees. Furthermore, the paper considers that the EU citizen’s right to free movement is not synonymous with a right to residence, and is especially complicated for nationals of the 12 new accession States. It argues that harmonisation has occurred at the expense of a comprehensive and systematic analysis of international law, responding instead to "democratic" political compromise and pragmatism.

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International Protection System of The New Turkish Law: A Conceptual Analysis

BORDER CROSSING ◽

10.33182/bc.v8i2si.656 ◽

2018 ◽

Vol 8 (2SI) ◽

pp. 583-598

Author(s):

Süheyla Balkar Bozkurt

Keyword(s):

Conceptual Analysis ◽

Fundamental Concept ◽

Protection System ◽

International Protection ◽

Refugee Law ◽

Major Reform ◽

International Refugee Law ◽

First Time

International protection is the fundamental concept of international refugee law. Turkey has adopted in April 2013 a new Law No. 6458 on Foreigners and International Protection (LFIP) which is effective as of April 11, 2014. The major reform brought by the LFIP is, undoubtedly, the introduction of the international protection concept in Turkish law for the first time. This article aims to focus on the different statuses under which international protection will be provided according to the LFIP and to evaluate this new law vis-à-vis the international protection system in general.

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