Exploring the Boundaries of Refugee Law : Current Protection Challenges [1 ed.] 9789004265585, 9789004265578

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Exploring the Boundaries of Refugee Law

International Refugee Law Series Editor-in-Chief David James Cantor Editorial Board Deborah Anker Bhupinder Chimni Geoff Gilbert Guy S. Goodwin-Gill Liliana Jubilut Susan Kneebone Hélène Lambert Bonaventure Rutinwa Volker Türk

VOLUME 3

The titles published in this series are listed at brill.com/irls

Exploring the Boundaries of Refugee Law Current Protection Challenges Edited by

Jean-Pierre Gauci Mariagiulia Giuffré Evangelia (Lilian) Tsourdi

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Exploring the boundaries of refugee law : current protection challenges / edited by Jean-Pierre Gauci, Mariagiulia Giuffré, Evangelia (Lilian) Tsourdi.   pages cm. -- (International refugee law series ; volume 3)  Includes index.  “The book builds on a conference organized in December 2012 by the doctoral affiliates network of the refugee law initiative at the University of London.”  ISBN 978-90-04-26557-8 (hardback : alk. paper) -- ISBN 978-90-04-26558-5 (e-book)  1. Refugees--Legal status, laws, etc.--Congresses. I. Gauci, Jean-Pierre, editor. II. Giuffré, Mariagiulia, editor. III. Tsourdi, Evangelia, editor.  K3230.R45E97 2015  342.08’3--dc23 2014048008

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 2213-3836 isbn 978-90-04-26557-8 (hardback) isbn 978-90-04-26558-5 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Introduction 1 Jean-Pierre Gauci, Mariagiulia Giuffré and Evangelia (Lilian) Tsourdi Current Challenges in Refugee Law 9 Guy S. Goodwin-Gill

Part 1 Accessing Protection: Law and Policy The European Court of Human Rights and Internal Relocation: An Unduly Harsh Standard? 31 Jessica Schultz Access to Protection: Negotiating Rights and Diplomatic Assurances under Memoranda of Understanding 50 Mariagiulia Giuffré Lessons in Exclusion: Interdiction and Extraterritorial Processing of Asylum Seekers in the United States and Australia 90 Daniel Ghezelbash A Liberal Paradigm Shift?: A Critical Appraisal of Recent Trends in Latin American Asylum Legislation 118 Luisa Feline Freier

Part 2 Scope of Protection: The 1951 Refugee Convention and Beyond The Evolving System of Refugees’ Protection in Latin America 149 Stefania Barichello Why Trafficked Persons Need Asylum 172 Jean-Pierre Gauci Revisiting Temporary Protection as a Protection Option to Respond to Mass Influx Situations 197 Meltem Ineli-Ciger Humanitarian Asylum for Forced Migrants: The Case of Haitians’ Arrival in Brazil 218 Andrea Pacheco Pacífico and Érika Pires Ramos

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Qualifying for International Protection in the eu: New Understandings of the 1951 Convention and Beyond 240 Evangelia (Lilian) Tsourdi

Part 3 Content of Protection: Rights of Refugees and Asylum Seekers Unmerited Restrictions on Access to Justice for Asylum Seekers 275 Emma Borland Out-of-Country Voting: The Predicament of the Recognised Refugee 298 Reuven (Ruvi) Ziegler Australia’s Refugee and Humanitarian Family Reunion Programme – A Comparative Study with the European Union 323 Emily Darling Index 347

Introduction Jean-Pierre Gauci, Mariagiulia Giuffré and Evangelia (Lilian) Tsourdi Today numerous crises and conflicts have forced more people from their homes worldwide than at any time in 20 years.1 The unhcr estimates that by the end of 2013, 51.2 million individuals were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, or other human rights violations.2 Some 16.7 million persons were refugees: 11.7 million under unhcr’s mandate and 5.0 million Palestinian refugees registered by unrwa.3 The civil war in Syria alone has displaced internally an estimated 6.45 million within Syria and has exiled as refugees more than 2.9 million beyond Syria’s borders, the great majority of them hosted by neighbouring countries.4 Armed conflict and wide-scale human rights violations have also been the cause of displacement of large numbers of individuals in other areas of the world such as the Democratic Republic of Congo, the Central African Republic, Mali, the border area between South Sudan and Sudan.5 Against this backdrop of ever-increasing protection challenges this collective volume explores the ‘boundaries’ of refugee law. This inquiry takes a double form: on the one hand, through their contributions, authors seek to ascertain the scope of the legal provisions by highlighting new trends in State practice and analysing the jurisprudence of international human rights bodies as well as national and international Courts. On the other hand, they seek to mark the boundaries of refugee law as ‘legal frontiers’ and to explore new approaches and new frameworks that are necessary in order to address the emerging protection challenges. The contributions in this collective volume are drawn primarily from among a new generation of researchers in the field of refugee law. The book builds on a conference organized in December 2012 by the Doctoral Affiliates Network of the Refugee Law Initiative at the University of London and which brought together early career scholars from several universities and countries to discuss current challenges and issues in refugee law and broader issues of global 1 Statement by António Guterres, United Nations High Commissioner for Refugees, eu Stakeholders Conference: “An open and safe Europe – what next?” 29 January 2014. 2 unhcr, unhcr Global Trends 2013, 2014, at p. 2. 3 Ibid. 4 Nigel Fisher, ‘The Inheritance of Loss’, 47 fmr, 2014, 4, at p. 4. 5 unhcr, unhcr Global Trends 2013, 2014, at p. 5.

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displacement. This edited volume actively contributes to the academic debate around these developments. Its primary aim is to stimulate conversations by raising issues from ongoing cutting-edge research on a series of legal and quasilegal issues, which frame the academic and policy discourse in the field of forced migration at the national, regional, and international level. Despite its wider interest and appeal, professional scholarship in international refugee law is relatively circumscribed. This edited volume therefore stands out as the first edited collection to present original contributions on a broad range of contemporary issues from early-career scholars. It encompasses a broad range of views from various continents developing new lines of thinking on the relationship between the State and the refugee (broadly defined) encountered either within or beyond borders. This book aims to strengthen the legal framework of protection, from core refugee rights to complementary forms of protection. It combines the study of law, policy and practice, since contributions not only analyse the legal texts, but also consider the implementation and implications of the law. The volume is international in scope, dealing not only with the universal but also the regional regimes of refugee protection. Whilst it is oriented principally towards the field of refugee law, many of the contributions work at the margins of this field and also address its overlap and compatibility with other fields of study, such as refugee law, international human rights law, and other streams of international law. In the introductory chapter, Professor Guy Goodwin-Gill highlights the dangers that emanate from seeing refugee protection as a ‘surrogate’ for national protection. He notes that the ‘surrogacy approach’ diverts attention away from the individual asylum seeker, accords less weight to his or her personal circumstances and situation in context, and more weight to externalities which are then perceived to bear on the generality of risk of harm, rather than on the specific risk to the individual. He then elaborates on three ‘current protection challenges’ which exemplify the pitfalls of this approach and namely: security cases, the process and reasoning adopted in determining claims to refugee status, including identification of the State responsible for examining an application; and third, the design and implementation of programmes of interception, ‘interdiction’, and return. He concludes that ‘receiving and protecting refugees in accordance with international law certainly imposes costs, but compliance is not an existential threat, given the existing (but obviously improvable) normative and institutional environment’. The first area of research, access to protection, is understood both as ‘physical’ access of individuals to the territory but also metaphorically in contributions which adopt a socio-legal approach and assess whether the policy

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frameworks in different regions of the world are moving towards ‘restric­ tiveness’, ‘securitization’ or a liberal paradigm shift, where the term ‘liberal’ is understood as favourable to individual rights and freedoms. The notion of ‘protection’ has undergone notable interpretative changes over time, swinging from a pure diplomatic assistance to more procedural and material aid in the light of the new refugee situations’ challenges.6 This concept has thus ‘evolved from a surrogate for consular and diplomatic protection of refugees who can no longer enjoy such protection by their country of origin into a broader concept that includes protection not only of rights provided for by the 1951 Convention and the 1967 Protocol but also of refugees’ human rights in general’.7 Asylum being a migration related matter, States tend to connect it with the fight against irregular immigration, thus often myopically adopting asylum measures driven by strict border control considerations. These papers take on this tension and put them into a broader academic debate that speaks both to legal scholars and policy makers. Jessica Schultz recognizes that the European Court of Human Rights (ecthr) has become an important safety net against deportation to countries of origin for persons who do not meet the criteria for international protection in the host country. Nevertheless, in cases of internal relocation, its narrow focus on Article 3 of the echr precludes consideration of other relevant harms in the place of internal displacement. Therefore, she concludes that the Court’s restrictive approach to the threshold ‘safety’ requirement, and its uneven application of its own criteria, also make it an unreliable source of guidance for decision-makers at the national level in Europe. Mariagiulia Giuffré reviews the case law of international human rights bodies on the use of diplomatic assurances to facilitate the transfer of unauthorized/ unwanted aliens, including asylum seekers, to third countries. She explains to what extent access to protection – here understood as the combination of nonrefoulement as well as access to asylum procedures and effective remedies – can be hampered by the use of diplomatic assurances. She argues that States should refrain from relying on assurances – whether framed or not within standardized MoUs – with countries that persist in the use of torture. Indeed, even with new sophisticated monitoring procedures and enforcement mechanisms, there will always be limits in detecting torture and eliminating the personal risk for the deportee.

6 See, G.S. Goodwin Gill and J. McAdam, The Refugee in International Law (oup, 2007). 7 E. Feller, Address to the XXVIII Round Table on Current Problems of International Humanitarian Law (unhcr, 2004).

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Daniel Ghezelbash compares the practice of interdiction and extraterritorial processing of asylum seekers in the United States and Australia. He argues  that Australia’s Pacific Solution and more recent interdiction and extraterritorial activities were modelled on similar activities carried out by the United States in the Caribbean. The chapter concludes with some ­comments as to the implications of such ‘lesson-drawing’. It is argued that lesson-drawing in this context can lead to misinformed transfers and a ‘race to the bottom’ as nations compete to introduce increasingly punitive deterrent measures. The last paper of Part I deals with regional developments in refugee law and the specific experiences of Latin America. The international refugee protection regime is in constant mutation as it is enriched or constrained by regional developments. Thus, through a study based on a weighted scheme of legislative good practices UNHCR identified in the region, Luisa Feline Freier offers an in-depth comparison of the two most liberal legislations in Latin America, the laws of Argentina and Mexico, with one of the lowest scoring legislations, Peru. The purpose of this chapter is twofold. First, it traces the liberalization of Latin American asylum legislation and second, it explores the range of this liberalization, which was brought about by the recent adoption or reform of internal norms on refugee matters. The second area of interest is the scope of protection. A first strand of contributions explores the ‘legal frontiers’ of refugee protection. They test the merits of complementary forms of protection such as temporary protection for persons fleeing indiscriminate violence who do not fulfil the refugee definition or temporary protection for those fleeing humanitarian disasters or seek to ascertain the relevance of the refugee protection regime for trafficked persons. A second strand of contributions explores the exact scope of legal provisions and insights that are brought through state practice and jurisprudence in the content of legal concepts such as the internal protection alternative, actors of protection or membership of a particular social group. Stefania Barichello studies the evolving system of Latin American asylum law and policy and how it relates with the international refugee protection regime. Effectively confronting the problem of internally displaced persons in the region as well as addressing the increasing numbers of refugees based in the urban cores of Latin America are factors that have also shaped decisively the Latin American protection framework. The study critically remarks on the dynamic character of this regional protection system and lessons that can be drawn for the international protection framework. In his contribution, Jean-Pierre Gauci assesses the relevance of asylum as a channel for the long-term protection of trafficked persons within a context of

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counter-trafficking instruments claiming to perform this function. The paper reviews the literature and applies an analytical framework in assessing the protection potential of current international and regional anti-trafficking instruments. It also highlights how asylum offers a viable alternative channel of protection by overcoming some of the protection gaps allowed by the trafficking instruments. However, asylum also has a number of negative dimensions, implying that protection for trafficked persons through the asylum channel is not an automatic problem-free process. Meltem Ineli-Ciger revisits the concept of temporary protection as a flexible framework, which can be introduced for the protection of different groups that seek refuge such as victims of armed conflict, violence or systematic human rights violations. In order to provide a better understanding of the concept temporary protection, the chapter addresses the main criticisms to this notion and its practice. Finally, it explains why temporary protection is a viable option to protect persons fleeing armed conflict in mass influx situations. Through their research Andrea Pacheco Pacífico and Érika Pires Ramos explore the case of Haitians who have forcibly migrated as a consequence of environmental pressure and human rights abuses and have been unable to be recognised as refugees or regular migrants in Brazil. Through the analysis of the Haitians’ case, their contribution aims to showcase the negative consequences for human rights protection of the absence of legal status for this category of migrants and the importance to strengthen the international regime of forced migration by making states responsible for their protection through integrating two essential perspectives, the humanitarian and environmental one. Finally, Evangelia (Lilian) Tsourdi critically examines aspects of the criteria for qualification for international protection under the amended eu legal framework on asylum. The research specifically highlights and comments on the content of the following legal concepts: the notion of persecution, the reasons for persecution and actors of protection, and the internal protection alternative. The study concludes that the eu framework has the potential to both develop and potentially undermine the international protection regime. It breaks new ground on some aspects, such as the protection of lgbti applicants and provides a new approach in defining persecution, while at other points, such as the definition of non-state actors of protection, it goes against the obligations of Member States under the 1951 Refugee Convention and further human rights norms. The third area of research is the content of refugee status and the level of human rights protection afforded to either recognised or ‘candidate’ refugees. Contributions focus on a diverse set of rights such as the right to family

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reunification, the right to legal assistance and voting rights. Here authors explore the ‘boundaries’ between refugee law and human rights law and how and to what extent these fields of law can complement and enrich each other. Emma Borland engages with the implications of the restrictions in legal aid in the United Kingdom, arguing that effective legal assistance is crucial, especially in an adversarial system such as that applied by the United Kingdom appeal procedures. She discusses the human and financial consequences of a dual policy of restricting legal aid at the appellate stage and hastening the issuing of initial decisions. The chapter also discusses initiatives undertaken by non-governmental bodies in Wales in order to overcome the burdens imposed by these policies. The chapter revolves around the premise that legal aid is a necessary entitlement if one is to have effective access to protection, especially in a context where status determination is increasingly becoming a legally and procedurally minefield. Ruvi Ziegler than touches upon a right often ignored in studies and discussions around forced displacement. His chapter compares the voting realities of voluntary migrants, conflict displaced persons and recognised refugees. The chapter highlights how the strength of the normative claim of recognised refugees to access outside country voting processes is met with a political (and legal) reality in which their disenfranchisement is highly likely. Thus, recognised refugees are harmed in a manner that repudiates their claim to political membership. They are both effectively and symbolically, territorially and extraterritorially, shunned from the political community of their state of origin. Their unique vulnerability is heightened by the fact that the length of their stay in the state of asylum is indefinite, and their repatriation is thus neither imminent nor necessarily forthcoming. Their political predicament, the chapter concludes, characterises recognised refugees as a special category of noncitizen residents. The following chapter discusses the right to family reunification, a right often discussed and considered critical to integration but to which many externally displaced persons do not have realistic access. In her contribution, Emily Darling provides an overview of the right to family unity and family reunification as it emanates from international law. It then discusses the implementation of this right in the Australian context, drawing comparisons with the European context in highlighting how recent and ongoing developments in Australia’s refugee policy and a return to offshore processing of many asylum-seekers have resulted in further restrictions on family reunion applications, most notably for unauthorised maritime arrivals (asylum seekers arriving by boat). The chapter outlines the relevant international standards, examines how these may have been breached in the Australian context, and

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makes recommendations for reform to the Australian refugee family reunion programme, which provide additional protections to preserve the family unity of refugees. What emerges from the various contributions to this volume is the recognition of the responsibility of States to ensure that refugees and persons fearing serious harm receive access to protection and are not returned to face lifethreatening situations or inhuman and degrading treatment. In addition, the analysis reveals developments at national level, attesting to ad-hoc protection efforts of further categories of persons, such as those fleeing natural disasters or extreme poverty. Some of the chapters adopt a comparative approach, by highlighting how changes in the immigration policy of one country impact the immigration policy of others. Indeed, States appear to be observing (and learning from) the policies of comparator countries insofar as they compete to deter irregular migrants. To an extent, this competitive approach aimed to deterring migrants from entering the national territories also creates a vicious cycle which leads to a ‘race to the bottom’ approach through a continuous enhancement of restrictive policies, such as those adopted by the us and Australia.8 By contrast, Latin American countries have experienced a liberal shift in the development of asylum legislation in the past 60 years. This also stimulates and opens the way to further research on cross-country variation and reforms on norms on refugee matters in other continents. The added value of each contribution consists in enhancing knowledge on refugee- related issues in various geographical contexts and jurisdictions, emphasizing the role national, regional, and supranational courts play in the protection of the rights of people seeking protection for various reasons. The contributions cover a wide range of protection-related situations: trafficked persons, refugees removed to their country of origin through internal relocation procedures, aliens who face deportation because they are considered a threat to the public security of the host State, migrants intercepted at sea, persons who have forcibly migrated as a consequence of environmental pressure, victims of armed conflict, violence or systematic human rights violation. Within this broad scope ratione personae, the rights of ‘candidate’ and recognized refugees and other protected persons are explored. Such rights include the right to family reunification, the right to legal assistance and the right to vote. Contributions in this volume analyse their specificities, content and limitations and comment on what they mean in practice. 8 See, e.g., Ghezelbash’ paper.

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To conclude, the chapters of this book tease out a number of situations in which we ascertain the necessity to translate the protection required by international law into meaningful developments and reforms in the areas of, inter alia, securitization, access to asylum procedures, exclusion, interception, external controls, or the scope and content of refugee protection. Lawyers and policy-makers are thus called to address current protection challenges by recognising their duties in the continuous exploration of the boundaries of the rarefied field of refugee law.

Current Challenges in Refugee Law* Guy S. Goodwin-Gill** Introduction ‘Current challenges in refugee law’ are well-covered in the various contributions to this volume, whether they emerge in regional developments and reforms, in securitisation, access to asylum procedures, exclusion, interception, external controls, or the scope of refugee protection. To these, one might add that the big questions are also still worth looking at, including Why protect? Why protect ‘refugees’? Where should refugees be protected, how, and by whom? The international agenda is full, too, whether in relation to the role of law in bringing statelessness to an end, or in protecting the stateless on the move; protracted refugee situations, and law’s role again in reducing their number or improving protection and the quality of life; preventing the necessity of flight (not very fashionable today); co-operation between States as a legal principle or dynamic institution; the accountability of international organizations, not excluding unhcr, whether in determining status, ‘governing’ camps and settlements, promoting or implementing solutions; the legal and political responsibility for internally displaced persons (especially for those among them who may desperately need the option of international flight); the treatment of children in flight and the applicable law, due regard being paid to the best interests of the child; the relation of human rights law to international refugee law and to international humanitarian law; and the very notion of asylum and the right to seek asylum in this modern, mobile world. With so many challenges ahead, this paper settles for a narrower focus, and aims to tease out a limited number of situations in which we see most clearly the urgent necessity to translate the protection required by international law into meaningful domestic institutions, to see the applicable rules and principles incorporated by appropriate legislation, effectively implemented in ­decision-making and upheld in the judgments of courts and tribunals.

* Revised text of a presentation given at the Post-Graduate Workshop on Refugee Law, Refugee Law Initiative, Doctoral Affiliates Network, Senate House, University of London, 5 December 2012. ** Senior Research Fellow, All Souls College, Professor of International Refugee Law, University of Oxford, Oxford.

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There is necessarily a tension here between the ‘inherent’ jurisdiction of every State to ‘manage’ migration; and the ‘inherent’ obligation of every State to fulfil its treaty obligations in good faith, and to respect, promote and protect human rights. That tension produces discord. Rules and principles are open to challenge, either generally or in the facts of particular cases. The powerful principle of non-refoulement is contested in spurious legal argument, or through often secret agreements, assurances, and memoranda of understanding. Practice here is leaking into the still ongoing debate over internal relocation, while the quality of local protection is once again being integrated, not so subtly, into arguments about the well-foundedness of fear or the risk, or serious risk, of treatment contrary to Article 3 of the European Convention. Certainly, there are difficulties inherent in a system of ‘universal’ human rights, the protection of which is divided up among territorial units of widely differing capacities, resources, and capabilities, not to mention divergent views on the world; and international lawyers must always beware of theories built on the sands of academic speculation and far removed from the acid test of State practice, let alone the lived lives of people on the move. But looking at the movement of people between States, it is not difficult to make out the expanding extent to which rules and principles of international law increasingly circumscribe States’ freedom of action. What appeared once on the perimeter, an element perhaps in building an abuse of rights argument, now is in the foreground. It is no longer permissible to deny protection through the use of racial stereotypes; to detain arbitrarily and indefinitely those who may be stateless or not ‘returnable’ to any other place; to disregard risk, or to displace responsibility onto the shoulders of others, whether it be a country of transit, a partner State in a regional organization, a paid client State, or the country of origin. This paper focuses precisely on notions of risk, considered from two perspectives: first, from that of risk to the State; and second, from circumstances where the existence of risk of harm to the human rights of individuals presently outside their own country triggers obligation and responsibility. The context, however, is one ‘peculiarly susceptible to the tyranny of phrases’, to use James Brierly’s felicitous language, for this is an area of interests which ‘engage the emotions and the prejudices’ of people at large, including decision-makers, policy-makers, and commentators, too.1 Brierly was thinking of situations where issues demanding unprejudiced consideration seek shelter, ‘under a mischievous phrase, whether it be sovereignty, or independence, 1 Brierly, J.L., ‘Matters of Domestic Jurisdiction’ (1925) 6 British Yearbook of International Law 8–19, 8.

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or domestic jurisdiction, or whatever the next catchword may be, and claim the right to exist on its own merits’.2 If that is a problem with words which enjoy at least a measure of international consensus or agreement, how much greater it will be when glosses are overlaid on agreed text. I have argued elsewhere against that version of refugee protection which sees it as a ‘surrogate’ for national protection. While this might be a perfectly innocuous description of the international refugee protection regime as a whole (the international community steps in to provide what the national State will not or cannot), its effects become pernicious once surrogacy is somehow imagined as part of ‘being a refugee’, as opposed to simply a statement about practical consequences. I argue this position, not only because it introduces an irrelevant consideration not found in the text of the treaty, but principally because the ‘surrogacy approach’ diverts attention away from the individual asylum seeker, accords less weight to his or her personal circumstances and situation in context, and more weight to externalities, which are then perceived to bear on the generality of risk of harm, rather than on the specific risk to the individual. This approach can be seen in a number of cases including, for example, ma (Ethiopia) v. Secretary of State for the Home Department.3 Here, the central issue was whether the applicant faced a real risk of persecution on return.4 Nationality was one issue in dispute, but the Court was clearly of the view that the appellant, an Ethiopian of Eritrean ethnic origin, would not in fact risk persecution in Ethiopia; in effect, she was seeking to turn herself into a refugee by not seeking the protection of her embassy and applying for the documents which would enable her to return. Under the influence of the gloss of ‘surrogacy’, however, the Court ventured a number of views obiter which, putting the evidential cart before the definitional horse, reflect misapprehension, both of the term ‘refugee’ and of the process of refugee determination. Thus, notwithstanding the centrality of a well-founded fear of persecution to the definition of a refugee, Lord Justice Elias referred to, ‘…the well-established principle that, before an applicant can claim the protection of a surrogate state, he or she must first take all reasonable steps to secure protection from the home state…’5 Lord Justice Burnton 2 Ibid., 18. 3 ma (Ethiopia) v. Secretary of State for the Home Department [2009] ewca Civ 289. 4 This is clear from the judgment of Lord Justice Elias, who accepted ‘that the Tribunal should have dealt with the question of Ethiopia’s attitude to return as part of its assessment whether there was a real risk of persecution’: Ibid., §43. 5 Ibid., §52.

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added that ‘…refugee status is not a matter of choice. A person cannot be entitled to refugee status solely because he or she refuses to make an application to her embassy, or refuses or fails to take reasonable steps to obtain recognition of her nationality’.6 Neither Elias L.J.’s incidental recognition that there ‘may be cases where it would be unreasonable…’ to require a refugee applicant to approach their embassy,7 nor Burnton L.J.’s use of the words ‘solely’ and ‘reasonable’, disguise the fact that, if applied generally, their approach would invert the norm and place impractical and often impossible hurdles in the way of the asylum seeker.8 That same tendency, unfortunately, is apparent in three other scenarios, examined briefly below. These are, first, the approach to security cases; second, the process and reasoning adopted in determining claims to refugee status, including identification of the State responsible for examining an application; and third, the design and implementation of programmes of interception, ‘interdiction’, and return. 1

The Security Challenge

In the United Kingdom, perhaps the notorious ‘security’ case is that of Othman, also known as Abu Qatada. In the 1990s, he was recognized as a refugee and granted asylum, but for many years the Government attempted to return him to his country of origin, Jordan, where he faced retrial for allegedly conspiring to cause explosions on western and Israeli targets in 1998 and 1999. Knowing the risk of torture in Jordan, the uk made a special effort to obtain assurances from the authorities sufficient to reduce that threshold of risk. These were

6 Ibid., §83. 7 Ibid., §50. 8 In the simplest of terms, the well-founded fear of persecution is the primary consideration, from which unwillingness or inability to avail oneself of the protection of one’s country follows, not the other way around. Although ma (Ethiopia) did not involve the ‘other nationality’ exception in Article 1A of the 1951 Convention, in kk and Ors (Nationality: North Korea) Korea cg [2011] ukut 92, the Tribunal gave particular weight to the dicta from ma (Ethiopia) in a case which engaged precisely the question whether those born in North Korea were also citizens of South Korea. Upholding this decision in Secretary of State for the Home Department v sp (North Korea) & Ors [2012] ewca Civ. 114, the Court of Appeal referred to ma as a ‘leading authority’ (§25), although clearly the reasoning in sp (North Korea) is based, not on any duty to seek out national protection, but on the evidence concerning acknowledgement of the appellants’ claims to nationality: §28; see also §§23, 37.

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good enough to satisfy the House of Lords9 and, up to a point, the European Court of Human Rights.10 In November 2012, however, the Special Immigration Appeals Commission ruled against removal to Jordan on the ground that the appellant continued to face the risk of an unfair trial, because of the likely use against him of evidence obtained by torture.11 The Home Secretary’s appeal against this judgment was heard and dismissed in March 2013,12 and leave to appeal to the uk Supreme Court was refused the following month. When the 1951 Convention relating to the Status of Refugees (csr51) was drafted, States began with a couple of simple principles – that those leaving their country for reasons of persecution ‘are entitled to special protection on account of their position’13 (a point underlined with special emphasis recently by the European Court of Human Rights in m.s.s. v. Belgium and Greece);14 and that refugees should be assured, ‘the widest possible exercise of…fundamental rights and freedoms’, without discrimination.15 The drafters were not naive. They did not want those guilty of war crimes, crimes against humanity, serious non-political crimes, or acts contrary to the purposes and principles of the United Nations to be recognized as refugees; so in Article 1F of the Convention, they excluded them out of the definition. They did think, though, that the minor criminal should still be protected, that the refugee who ‘went bad’ should be treated like a citizen delinquent, that only in the most extreme cases would a refugee ever be expelled or returned to persecution, and that no provision was required on the ‘cancellation’ of refugee status by reason of actual or alleged criminal conduct.16 9 10 11 12 13 14 15 16

rb (Algeria) v Secretary of State for the Home Department [2009] ukhl 10. Othman (Abu Qatada) v. The United Kingdom (Appl. no. 8139/09), Fourth Section, 17 January 2012. Mohammed Othman v Secretary of State for the Home Department [2012] uksiac 15/2005-2 (12 November 2012) Omar Othman aka Abu Qatada v Secretary of State for the Home Department [2013] ewca Civ 277. csr51, Final Act, Recommendation D. m.s.s. v. Belgium and Greece (Appl. no. 30696/09), 21 January 2011, §§216, 232–233, 251. csr51, Preamble and Article 3. A proposal to include an article permitting ‘cancellation’ of refugee status was debated and rejected at the 1951 Conference of Plenipotentiaries. For the amendment proposed by France, see Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Draft Convention relating to the Status of Refugees. France: Amendment to Article 2, un doc. A/CONF.2/18 (3 July 1951); and for the debate, see Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Records, un doc. A/CONF.2/SR.4, 8–12 (19 November 1951); A/CONF.2/SR.16, 4–17 (23 November 1951), A/CONF.2/SR.24, 4–5, 19 (27 November 1951); A/CONF.2/SR.29, 22–23 (28 November 1951).

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When it came to specifics, the special protection due to their position ensured that the refugee – the foreign national unable to secure protection from their own State – enjoyed certain positive entitlements. Thus, refugees are to be exempt from ‘exceptional measures’ taken against foreign nationals by reason of their nationality.17 In time of war or grave and exceptional circumstances, only measures ‘necessary…in the interests of national security’ may be taken or continued against a refugee;18 and ‘necessary’ in law is a term of art, not a matter of unfettered discretion.19 Above all, refugees are to enjoy a legal status,20 and to benefit also from those social and social welfare rights which will contribute to their finding a solution to the tragedy of their own displacement.21 It is status that links the refugee to the full body of Convention protection: protection against penalties for illegal entry or presence;22 protection against expulsion save on the most serious grounds; and due process protection in expulsion proceedings, save where compelling reasons of national security otherwise require.23 Moreover, the refugee is protected against refoulement, against return to persecution, except in very limited circumstances where there are reasonable grounds to believe that he or she is a danger to security or, following conviction for a particularly serious crime, a danger to the community.24 So important is this basic principle that its effect is necessarily felt even before status is recognized, in order that those in search of refuge shall have an opportunity to make their claim, and to show why they should be protected. Times have changed, of course. In 1951, the security of the individual was just beginning to emerge within the body of principles set forth in the recently proclaimed Universal Declaration of Human Rights. Since then, our understanding of ‘human security’ has evolved with our understanding of 17

Article 8. See Davy, U., ‘Article 8 (Exemption from Exceptional Measures/Dispense de Mesures Exceptionelles)’, in Zimmermann, A., ed., The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 755. 18 Article 9. See Davy, U., ‘Article 9 (Provisional Measures/Mesures Provisoires)’, in Zimmermann, A., ed., The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 781. 19 See generally the excellent analysis in Sloan, R.D., ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of International Law 447. 20 1951 Convention Relating to the Status of Refugees, Articles 12–16. 21 Ibid., Articles 17–24. 22 Ibid., Article 31. 23 Ibid., Article 32. 24 Ibid., Article 33(2).

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human rights at large, and of the responsibilities of States and of the demands which may rightly be made of governments; now, even the refugee liable to refoulement on security grounds may claim protection against return to the risk of persecution or torture. Some will argue that the Othman case shows that human rights are obstructing government in its responsibility to protect the State and the people; others, that the obsession with removal in certain corners of government and the media poses a yet greater danger to the people, whether citizen or noncitizen. In 1951, ‘national security’ was conceived in traditional terms and as limited to a existential threat to the sovereignty and integrity of the State in a largely military sense. But as the notion of State security also has broadened, so has the notion of threat, at least in the thinking of many governments. More than that, threat itself – with its implied concreteness of character – has been overtaken by the language of risk – a shift ‘from the actual to the possible…’.25 And risk assessment itself is become an art, commonly premised on statistical analysis of trends, profiling, assumptions; commonly removed, therefore, from the individual and his or her circumstances, and commonly distanced from regular standards of review. The question is, ‘Who decides, when risk is the issue?’ Do we have in place the appropriate institutions, norms and standards to regulate the process of risk assessment, and thereupon to review outcomes for conformity to the rule of law? Or have we passed some sort of threshold, in which rights are themselves at risk in the subjectivity of fear? Recent instances of obstruction and obfuscation confirm that we have challenges still before us. In security matters, we may indeed have to be forward-looking, and what is in the past may not be enough. When we decide that someone is a refugee, that they have a well-founded fear of persecution, we look to the future and think about risk, about what might happen if this man or woman were sent back to their country of origin. We do not look for proof on balance of probabilities, but for serious reasons which give us the confidence to believe that this person may indeed be at risk. Here, where we are offering protection, a certain fuzziness at the edges of our reasoning is acceptable, whereas in the case of denial of protection, more in the way of ‘anxious scrutiny’ is called for, given the resources available to the State, contrasted with the individual in flight.

25

Kessler, O., ‘Is Risk changing the Politics of Legal Argumentation?’ (2008) 21 Leiden Journal of International Law 863, 864; see also Lazarus, L. & Goold, B.J., ‘Introduction: Security and Human Rights’, in Goold, B.J. & Lazarus, L., eds., Security and Human Rights, Oxford: Hart Publishing, 2007, 10–12.

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Where ‘risk’ is the criterion for denial or deprivation of rights, the rule of law requires due account to be taken of the fact that the refugee’s international status entitles him or her to protection. That is and ought to be the point of departure, and there may be challenges ahead in working that other powerful human rights principle – non-discrimination – into policy, law and practical outcomes. It does not mean that the refugee is privileged, for the refugee’s circumstances are not like those of everyone else.26 That space of difference is regulated by international law, becoming a pointer to the better protection of the human rights of us all. It emphasizes, with particular focus, that in decisions affecting refugees and asylum seekers having a security dimension, the nature of the particular threat must be demonstrated, and the proportionality of the response established.27 Evidently, these are principles which can be universalized. If, as seems likely, refugees and asylum seekers and all of us will have to learn to live with executive claims to security exceptions, then we need to be very clear on the principles which ought to govern the content of legislation, the conduct of decision-makers, and the scope for review. The status of the refugee, and the refugee’s entitlement to protection, provides a useful starting point precisely because of the legal exceptions to sovereign discretion which it demands. It is the protected status of the refugee which requires close review of security exceptions, of claims to deny or limit rights on the basis merely of suspicion or risk, or of claims to disregard or not to hear requests for protection. 2

The Place of Risk in the Determination of Refugee Status

A number of recent judgments by the European Court of Human Rights have had something to say about the standard of proof, about sources of evidence, and also about the assessment of risk when seen from the perspective of the 26

27

Dauvergne, C., Making People Illegal: What Globalization Means for Migration and Law, Cambridge: Cambridge University Press, 2008, 61. It may be necessary to speak to the limits of the right of the State to act ‘differentially’ when operating at its borders, or beyond them, and when treating non-citizens on the move as ‘others’ to whom something less than equal treatment is said to be due. See the rejection by the Court of Justice of the European Union of a discrimination-based argument against the separate and different treatment of Palestinians under Article 1D of the 1951 Convention: El Kott and Others v Bevándorlási és Állampolgársági Hivatal, Case C-364/11, cjeu, Grand Chamber, 19 December 2012, §§78−80. Warbrick, C., ‘The European Response to Terrorism in an Age of Human Rights’ (2004) 15 European Journal of International Law 989, 1004.

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refugee in search of protection. The challenge here is to move this jurisprudence into the procedural context of refugee status determination. In m.s.s. v. Belgium and Greece, the fact that the general situation concerning the treatment of asylum seekers in Greece was known to the Belgium authorities meant that the applicant should not be expected to bear the entire burden of proof.28 In Hirsi v. Italy, the Court confirmed that it is not always necessary to show evidence of an individualised threat of treatment contrary to Article 3, and that information in reports from independent sources may suffice to make it ‘sufficiently real and probable’ that the general situation in a particular country entails risks sufficient to require non-return.29 This position was reiterated in the Court’s 3 July 2012 decision in the case of Rustamov v. Russia, where it specifically noted that, …requesting an applicant to produce “indisputable” evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.30 Here, there are elements of a strict liability regime, once facts and risk have been determined or proven to the requisite degree.31 The question remain, what must the asylum seeker actually prove? How do you show a well-founded fear of persecution, or a real risk of treatment contrary to Article 3 of the European Convention? The decision-making process is ultimately ‘predictive’, in that it will try to focus on what might happen, sometime in the future, in a variety of necessarily unknown or little understood circumstances. But the word ‘predict’ is potentially misleading, so far as it may suggest confidence in a particular outcome. The job of the decision-maker is to make a judgement of a different order – to decide whether the asylum seeker should receive or be accorded international protection, a process which integrates (ideally) a decent level of knowledge and appreciation of conditions in countries of origin, an understanding (never complete, of course) of the reasons why people leave in search of refuge and/or a chance in life (and the need for one does not

28 m.s.s. v. Belgium and Greece (Appl. no. 30696/09), 21 January 2011, §352. 29 Hirsi v. Italy (Appl. no. 27765/09), 23 February 2012, §§118, 123, 136. 30 Rustamov v. Russia (Appl. no. 11299/10), First Section, 3 July 2012. 31 Cf. Hirsi v. Italy, above note 27, §156 – Italian officials ‘knew or ought to have known’ that those returned to Libya did not benefit from safeguards against arbitrary return to their country of origin.

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necessarily exclude the other); and a certain ability to see the individual in social and political context, so far as the evidence allows. The bottom line again is risk, seen now from a different angle, where making a coherent assessment demands that the preliminary steps be taken efficiently and effectively, though always in a context where abstract words rarely capture precisely what needs to be proved. Whether someone is recognized as a refugee increasingly turns on whether we believe his or her story, considered against what we believe to be the situation in the country of origin. ‘Objective knowledge’, or the best that can be obtained in the circumstances, can stem from a range of authoritative sources, but here too judgements must be made: Is the source reliable, can the picture it paints be trusted, are the events it recounts corroborated, has the source proven accurate in the past, has it ever been challenged or qualified? The European Court of Human Rights takes an approach not so very different from that suggested in Article 3 of the 1984 un Convention against Torture, stressing the importance of having regard to reports of systematic violation of human rights, of systematic torture, of the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights – the sort of evidence, in short, that may well be sufficient to establish the existence of risk.32 Again, this is not a purely abstract exercise, but one which has the individual at its centre: Who is this person in their own land and, given the available information about the country of prospective return, would he or she likely face an unacceptable risk of persecution or other serious harm? In its 2010 decision in Baysakov v. Ukraine, for example, the Court expressly cited reports on the human rights situation in Kazakhstan obtained from the un Committee against Torture, Human Rights Watch and Amnesty International; these referred to torture, ill-treatment of detainees, routine beatings and the use of force against criminal suspects to obtain confessions: The Court does not doubt the credibility and reliability of the…information and the respondent Government failed to adduce any evidence or arguments capable of rebutting the assertions made in the reports.33

32

33

See the many references to such reports on the treatment of refugees and asylum seekers in m.s.s. v. Belgium and Greece, Appl. no. 30696/09, Grand Chamber, 21 January 2011 (§§160, 314, 348–349), as well as reports on the risks faced by the applicant and others similarly situated in their country of origin (§§196−203, 295–296). Baysakov v. Ukraine, Appl. no. 54131/08, Fifth Section, 18 February 2010, §§49−50.

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In Rustamov v. Russia in July 2012, the Court found that the domestic authorities, ‘did not pay requisite attention to the evidence concerning the human rights situation’ in the country requesting extradition, and that in consequence there was a ‘lack of thorough and balanced examination of the general human rights situation…[and] failure to give meaningful consideration to the applicant’s personal circumstances’.34 The Court referred also to ‘recent reports’ citing the continuing persecution by Uzbek authorities of certain groups, and to credible allegations of torture and deaths in custody. In its view, this was evidence ‘showing a persistent pattern of persecution’, and no ‘concrete elements’ had been produced to show any improvement in the situation.35 In m.s.s. v. Belgium and Greece, the Court reiterated that the irreversible nature of the damage potentially resulting from a violation of Article 3 of the European Convention imperatively requires close, independent and rigorous scrutiny, as well as promptness and suspended enforcement, if the protection obligation is to be effective. It criticised the practice in certain review procedures of ‘increasing the burden of proof to such an extent as to hinder the examination on the merits of the alleged risk…’36 Much the same can be said of review and appeal processes generally, particularly when considered against a background of inadequate first instance

34

35

36

Rustamov v. Russia (Appl. no. 11299/10), First Section, 3 July 2012, §§119, 121. On the relevance of individual assessment and personal circumstances in the law and practice of the European Union, see further below, note 49 and accompanying text. Ibid., §127; and see at §128 : ‘…where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the protection of Article 3 enters into play when the applicant establishes, where necessary on the basis of the information contained in recent reports from independent international human rights protection associations or governmental sources, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned. The Court considers that this reasoning applies in the present case, where the applicant is accused of membership of a group in respect of which reliable sources confirm a continuing pattern of ill-treatment on the part of the authorities, as has been stated above. Although in such circumstances the Court will normally not insist that the applicant show the existence of further special distinguishing features…it considers it nonetheless important to point out that the applicant repeatedly submitted to the competent Russian authorities that he had already been subjected to persecution and ill-treatment at the hands of the Uzbek law-enforcement authorities in connection with his presumed membership of ht’. m.s.s. v. Belgium and Greece, above note 1, §293, 389. This does not mean that the effectiveness of a remedy under article 13 requires a favourable outcome for the claimant, but that the lack of any prospect of obtaining adequate redress does raise an issue.

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Goodwin-Gill

decision-making. Credibility determinations, in particular, raise important questions about the adequacy of traditional conceptions of judicial review and appeal when dealing with the assessment of risk.37 The error of law approach to review, that is, a concentration on form rather than substance, heightens the risk of injustice and violation of international obligations, while the case for ‘deference’ demands re-examination. It is, or may be, premised on certain assumptions, for example, that a court should be slow to interfere with the findings of a specialist or skilled tribunal familiar with the requirements of due process. The record suggests that a more rigorous approach is required in relation to the standards of administrative decision-making, especially where fundamental rights are engaged. In many jurisdictions, factual judgments are becoming disengaged from the evidence actually adduced; a culture of disbelief is being fostered, particularly by legislative intervention in some cases;38 the permissible range of inferences is tending to extend beyond control; the error of law standard, traditionally considered, offers little or no protection against refoulement, while equally contributing little to good decision-making; and overall and once again, a wedge is being driven between the individual asylum seeker and the coherent and effective assessment of risk. These concerns negatively affect national process for the determination of claims to protection, but the risks are accentuated still further when States and regional entities engage in the extra-territorial interception and return of refugees, asylum seekers and ‘irregular’ migrants. 3

Risk in Interception

The background to the judgments of the European Court of Human Rights in m.s.s. v. Belgium and Greece39 and Hirsi v. Italy40 is well-known now, as is that 37 See Goodwin-Gill, G.S., ‘The Law Applicable to the Determination of Claims to International Protection’, paper presented to the Conference on ‘The Role of “Credibility” in International Protection Claims’, organized by the Irish Refugee Council, Dublin, 9 November 2012: . 38 See, for example, jt (Cameroon) v Secretary of State for the Home Department [2008] ewca Civ 878, in which the Court of Appeal ‘read down’ section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 so as to accord with constitutional principles. 39 m.s.s. v. Belgium and Greece (Appl. no. 30696/09), 21 January 2011. 40 Hirsi v. Italy (Appl. no. 27765/09), 23 February 2012.

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of the Court of Justice of the European Union in n.s. v. Secretary of State for the Home Department.41 The judgments themselves help to identify a number of key challenges going to the nature of liability, and the international responsibility of States for actions in violation of their obligations. For reasons of space, the review below necessarily leaves aside for now a number of other highly relevant issues, such as the scope of ‘jurisdiction’, or the meaning of ‘control’, or the responsibility of States for regionally-constructed agencies and operations such as Frontex, the functional divisibility of human rights treaties, and the potential for individual liability.42 Instead, and bearing in mind the present concern with risk in its various guises, just two critical issues emerging from this recent jurisprudence will be highlighted and flagged as bases for future challenges. m.s.s. involved Belgium’s return of asylum seekers to Greece, a fellow eu Member State, under the Dublin Regulation, but in the knowledge that refugees and asylum seekers were likely to face, among other problems, inhuman and degrading treatment. Hirsi involved returns by Italy to Libya, a State which was not party to the 1951 Convention/1967 Protocol,43 and which was the subject of many credible reports of migrants and asylum seekers being subject to harsh treatment and summary expulsion, likely including refoulement. In each case, knowledge was a key factor which effectively determined the appropriate course of action. n.s. was also a ‘Dublin return’ case which engaged knowledge, but with rather a different result. 41 42

43

n.s. v. Secretary of State for the Home Department, Joined Cases C-411/10 and C-493/10, cjeu, Grand Chamber, 21 December 2011. See Goodwin-Gill, G.S., ‘The Extra-Territorial Reach of Human Rights Obligations: A Brief Perspective on the Link to Jurisdiction’, in Laurence Boisson de Chazournes & Marcelo G. Kohen, eds., International Law and the Quest for Its Implementation/Le droit international et la quête de sa mise en oeuvre: Liber Amicorum Vera Gowlland-Debbas (Leiden: Brill, 2010); Goodwin-Gill, G.S., ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-refoulement’ (2011) 23 International Journal of Refugee Law 443; Moreno Lax, V., ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of eu Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174; Moreno Lax, V., ‘Dismantling the Dublin System: m.s.s. v. Belgium and Greece’ (2012) 14 European Journal of Migration and Law 1, Moreno Lax, V., ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12 Human Rights Law Review 574. For more extended treatment of key issues, see Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy, Oxford: Oxford University Press, 2011. Libya is, however, a party to the 1969 oau Convention on the Specific Aspects of Refugee Problems in Africa.

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Goodwin-Gill

Article 3 of the European Convention appears at first blush to impose a regime of strict liability which is contingent on certain factual findings, rather than one of absolute liability, in the sense of that liability which follows, simply and straightforwardly, from the State’s engagement in a particularly dangerous or perilous activity and harm results. In a strict liability regime, once the facts and the risk of prohibited treatment have been determined or proven to the requisite degree, there are no exceptions; but substantial evidential hurdles may need to be overcome. The door to absolute liability, however, may not be closed. The import of the judgment in Hirsi, and perhaps also that in Al-Saadoon,44 is that State operations in presumptively perilous or hazardous situations impose a special duty of care, a form of absolute liability in which the obligation not to harm (in this context, not to violate a human right) is effectively translated into a positive obligation to protect. This has major implications for the formulation and implementation of programmes to ‘manage migration’, including by way of interception and return. The framework of international law and obligation to which the Court referred in m.s.s. implies more than the passive avoidance of direct harm, and demands an active protection role – one in which responsible States are obliged to ensure that those over whom they exercise jurisdiction and control are effectively protected as a consequence. The next question, though, is whether the judgment of the Court of Justice of the European Union in n.s. v. Secretary of State for the Home Department has introduced a wrinkle in the fabric of international protection. Lord Justice Sedley, giving the judgment of the Court of Appeal in em (Eritrea)45 on 17 October 2012 seems certainly to have thought so. I am not so sure, however, but I am seriously concerned by what appears to be yet another wedge driven between the individual asylum seeker and the risk of harm or prohibited treatment to which he or she may be exposed. Both n.s. and em (Eritrea) involved Dublin Regulation ‘returns’, in the one case to Greece, in the other, to Italy. In n.s., the Court of Justice had the benefit of the Strasbourg Court’s ruling in m.s.s. and its treatment of the evidence relating to conditions in Greece, and n.s. was directly binding on the Court of Appeal when it came to consider em (Eritrea). The question was whether an eu 44 45

Al-Saadoon and Mufdhi v. United Kingdom (Appl. no. 61498/08), Fourth Section, Merits, 2 March 2010. em (Eritrea) v. Secretary of State for the Home Department [2012] ewca Civ 1336. See also the High Court Judgments of Parker J. [2012] ewhc 1799 (Admin) and [2011] ewhc 3012 (Admin).

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Member State, when considering a Dublin transfer, is ‘required to presume conclusively that the other [eu Member] state’s arrangements are compliant with its international obligations, or is it obliged to examine whether transfer would bring a risk of violation either of Charter rights or of the eu’s minimum standards’.46 The Court of Appeal read n.s. as recognizing that there was indeed a presumption of compliance, but that it was rebuttable. However, in the words of Lord Justice Sedley, ‘Rebuttal…required proof…’ that the transferring state was aware of ‘systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers…’, which amounted to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment…’.47 Now it is certainly correct that the Court of Justice in n.s. used the language of ‘systemic deficiency’, but it did not state or clearly imply that this was intended as the necessary standard of proof. It is even less clear that, when distinguishing systemic deficiency from ‘operational problems’, even if these created ‘a substantial risk that asylum seekers may…be treated in a manner incompatible with the fundamental rights’,48 it was intending to impose for all purposes a higher standard of proof on the path to protection, so that systemic deficiency is now necessary, rather than an assessment of the individual, or indeed the group, in actual context. It is difficult to reconcile such a reading, either with the views generally of the European Court of Human Rights on Article 3 protection, or with the specific jurisprudence of both that Court and the Court of Justice on the protection due to the individual at risk, whether under the Convention or the eu Charter of Fundamental Rights.49 Articles 18 and 19 of the Charter set out the governing principles relating to asylum and non-refoulement, while the eu 46 47 48 49

em (Eritrea) v. Secretary of State for the Home Department [2012] ewca Civ 1336, §44. Ibid., §45. Ibid., §46. For example, in Abdulla & Others v Germany, Cases C-175-08, C-176/08, C-178-08 & C-179-08, Grand Chamber, 2 March 2010, dealing with cessation of refugee status, the Court said: ‘In order to arrive at the conclusion that the refugee’s fear of being persecuted is no longer well founded, the competent authorities, by reference to Article 7(2) of the Directive, must verify, having regard to the refugee’s individual situation, that the actor or actors of protection of the third country in question have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status’: §70 (emphasis added; see also §§76, 89, 101). Similarly, in Y and C, Joined Cases C-71/11 and

24

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Qualification Directive (Recast) defines the criteria of entitlement (Articles 5–10) and emphasizes in particular that the ‘assessment of an application for international protection is to be carried out on an individual basis’. This means that account must be taken, not only of all the relevant facts relating to the country of origin, but also of ‘the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm’.50 In n.s., the Court of Justice noted that the Common European Asylum System is based on the assumption, ‘that all participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the echr, and that the Member States have confidence in each other in that regard’.51 The principle of ‘mutual confidence’ is central to the European Union. As described by the Court, it is analogous to the general principle that States shall fulfil their international obligations in good faith;52 in the words of the International Court of Justice in the Nuclear Tests cases, One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in

C-99/11,Grand Chamber, 5 September 2012, the Court emphasised with respect to Article 4(3) of the Qualification Directive, that ‘the competent authorities carry out an assessment of an application for international protection on an individual basis, they are required to take account of all the acts to which the applicant has been, or risks being, exposed, in order to determine whether, in the light of the applicant’s personal  circumstances, those acts may be regarded as constituting persecution…’: §68; see also §76. 50 Qualification Directive (Recast), Article 4(3)(c). The 2005 eu Procedures Directive underlines, among others, the obligation of Member States to ‘ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf’: Article 6(2); and that applications are examined and decisions taken individually, objectively and impartially: Article 8(2). 51 n.s. v. Secretary of State for the Home Department, Joined Cases C-411/10 and C-493/10, cjeu, Grand Chamber, 21 December 2011, §78. 52 See un Charter, Article 2(2); 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations: unga res. 2625 (XXV), 24 October 1970.

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particular in an age when this co-operation in many fields is becoming increasingly essential.53 In n.s., the Court of Justice adds in a ‘regional’ dimension, in pursuit of certain common objectives,54 and this localised framework system of obligations is assumed to be operationally effective and consistent with international law. In theory, much of this is unexceptional and even as the advantage of two oversight jurisdictions, one competent to monitor compliance with European Union law; and the other to review the compatibility of State conduct with the underlying obligations in the European Convention on Human Rights. The assumption at the point of departure is thus compliance by all Member States, even if the reality is that operational problems may result in treatment of asylum seekers which is incompatible with fundamental rights.55 With regard to this eventuality, the Court of Justice then makes what appears to be a rather striking observation: …it cannot be concluded…that any infringement of a fundamental right by the Member State responsible [for determining an application for protection] will affect the obligations of the other Member States to comply with the provisions of [the Dublin Regulation]…56 This would seem to mean that the ‘infringement’ of a fundamental right in one part of the Union is effectively of no concern (not juridically relevant) to other Member States and that, within the context of the Dublin Regulation, they can carry on with transfers regardless of any risk of violation. Such a reading tends to offend common sense, no less than the object and purpose of the eu Charter of Fundamental Rights which stresses the necessity of strengthening protection. The Court’s slightly qualified reference to ‘any infringement’ leaves many questions unanswered, while its introductory language – ‘it cannot be concluded’ – has an a priori flavour to it, and seems unsupported by any legal reasoning. The justification draws more or less directly on the initial premises, with the Court linking the ‘slightest infringement’ of the Directives to the ‘assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the asylum 53 54 55 56

Nuclear Tests Cases (1974) icj Reports 253, 267; quoted in Shaw, M., International Law, 6th edn., Cambridge: Cambridge University Press, 2008, 103−105. n.s., above note 51, §79. Ibid., §§80, 81. Ibid., §82.

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application’.57 In the view of the Court, to allow ‘any infringement of the individual provisions’ of the Reception, Qualification and Procedures Directives to frustrate transfer would be to add yet more criteria to those in the Dublin Regulation.58 Nevertheless, the Court has to recognize that the evidence will often have persuasive force when it bears upon the protection of fundamental rights: By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman and degrading treatment, within the meaning of Article 4 of the Charter, the transfer would be incompatible with that provision.59 The language of the Court of Justice echoes that of Strasbourg – ‘substantial grounds…for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country’60 – but the example it employs must surely be illustrative, not exclusively determinative of the evidential standard to be applied to those factual situations potentially capable of resulting in prohibited outcomes, such as inhuman and degrading treatment. The factual situation in n.s., as described in the observations of various parties to the Court, was indeed one of systemic flaws.61 The Court of Justice itself referred specifically to m.s.s. v. Belgium and Greece, and the paragraphs which it cites are those in which the Strasbourg Court frames its conclusions very much in terms of the risks faced by the individual applicant.62 By then, the European Court of Human Rights had already heard the views of the Government of the Netherlands, which argued that ‘possible deficiencies in the Greek asylum system’ did not necessarily mean that legal protection was

57

Ibid., §84. Here, the context of ‘infringement’ is the Directives, not the Charter: ‘…it would not be compatible with the aims of the [Dublin Regulation] were the slightest infringement of [the Directives] to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible’. 58 Ibid., §85. 59 Ibid., §86. Article 4 of the Charter states simply: ‘No one shall be subject to torture or to inhuman or degrading treatment or punishment’. 60 See m.s.s. v. Belgium and Greece (Appl. no. 30696/09), 21 January 2011, §365. 61 n.s., above note 51, §§87−90. 62 At §88 of n.s., the Court of Justice refers, among others, to paragraphs 358, 360 and 367 of the judgment of the European Court of Human Rights in m.s.s. v. Belgium and Greece.

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illusory, or that Member States should refrain from transfers; it was a ‘community’ responsibility to bring ‘the Greek system into line with Community standards’.63 It had also heard similar policy-based arguments from the United Kingdom, which urged that the responsibility of transferring States, ‘could be engaged only in wholly exceptional circumstances’.64 A critically important factor in m.s.s., as the Strasbourg Court emphasized, was that the general situation in Greece was known to the Belgian authorities, and that therefore the applicant should not be expected to bear the entire burden of proof.65 Although it referred at large to the Greek ‘system’, the Court (as opposed to the parties in various reports and submissions) did not at any time use the language of ‘systemic flaws’, save in one respect when it mentioned situations in which, …the Court may find it useful to indicate to the respondent State the type of measures that might be taken in order to put an end to the – often systemic – situation that gave rise to the finding of a violation.66 It then proceeded to distinguish ‘individual measures required for the execution of the present judgment in respect of the applicant, without prejudice to the general measures required to prevent other similar violations in the future…’67 The Court’s findings of violations by Greece thus focused specifically on ‘the shortcomings in the asylum procedure as applied to the applicant…’68 The fact that these violations resulted from ‘systemic flaws’ might assist evidentially, but the underlying principle of protection remains the same: Are there substantial grounds for believing that the individual concerned faces a real risk of treatment contrary to the Convention? ‘Systemic flaws’ are but one way to establish risk, and Lord Justice Sedley’s conclusion that, ‘Short of [systemic deficiency], even powerful evidence of individual risk is of no avail…’69 is not required by the judgment of the Court of Justice, and 63

64 65 66

67 68 69

m.s.s. v. Belgium and Greece, above note 60, §330. The Greek Government had also argued that, ‘whatever deficiencies there might be in the asylum procedure, they had not affected the applicant’s particular situation’: §303. Ibid., §331. Ibid., §352. Ibid., §399. For good measure, the Court referred also to the Belgian Aliens Office, which ‘systematically applied the Dublin Regulation…without so much as considering the possibility of making an exception’: §352, emphasis added. Ibid., §400. Ibid., §§401, 402. em (Eritrea) v. Secretary of State for the Home Department [2012] ewca Civ 1336, §62.

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cannot stand in the face of the established jurisprudence of the European Court of Human Rights.70 Conclusion Although as advocates for refugees we will return time and again to the 1951 Convention and the 1967 Protocol, to non-refoulement and the duty of every State to fulfil its international legal obligations in good faith, there are game changes about. Some may have positive effects, others negative. Human rights, for example, have changed the particular conception of the State in the classical law of nations, as Robert Sloan astutely notes in a recent article on the defence of necessity. He cautions, rightly in my view, against the very danger of allowing balancing arguments to excuse derogations from fundamental human rights, such as non-refoulement or return to the risk of torture.71 Receiving and protecting refugees in accordance with international law certainly imposes costs, but compliance is not an existential threat, given the existing (but obviously improvable) normative and institutional environment. m.s.s. and Hirsi do invite us to consider where and how the costs should fall. It is manifestly not the case that the costs of protection should be borne exclusively by so-called frontline States riddled with systemic inefficiencies, or lacking the capacity in fact to provide protection, or historically disinclined to abide by international obligation. But even though these circumstances produce serious functional obstacles to compliance, they do not change the law, or preclude wrongfulness in the case of actual non-compliance. That there is an institutional or community responsibility to ensure that asylum seekers are not subject to inhuman or degrading treatment provides one further avenue of redress, and one which awaits effective development. The challenge for the lawyer and the law today is precisely to bring policymakers, legislators and administrators to the recognition of their duties. 70

71

In February 2014, the uk Supreme Court overruled the Court of Appeal and applied the ‘critical text’ articulated in Soering v United Kingdom (1989) 11 ehrr 539; this requires an assessment of the risk to the individual and that evidence may well displace any presumption of compliance: R (EM (Eritrea)) v Secretary of State for the Home Department [2014] uksc 12, paras. 40–4, 58–64. Sloan, R.D., ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of International Law 447.

part 1 Accessing Protection: Law and Policy

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The European Court of Human Rights and Internal Relocation: An Unduly Harsh Standard? Jessica Schultz1 1 Introduction The possibility of returning an asylum applicant to a safe place within his or her country of origin is an integral part of refugee status determination in many State parties to the 1951 Convention on the Status of Refugees (Refugee Convention).2 The ‘internal relocation’ test is also commonly used in applications for complementary protection and challenges to the deportation of refused refugee claimants.3 In the latter case, the European Court of Human Rights (the Court) serves, de facto, as a regional appeals body.4 The Court also provides a supplementary safety net for persons who do not meet the criteria for international protection in the host country but nonetheless face serious harm in their country of origin. Although the Court is not authorized under its mandate to review State compliance with the Refugee Convention, its approach to ‘internal relocation’ reflects the interpenetration of refugee law in regional human rights jurisprudence. Because, however, the Court’s deference to refugee law is limited, its practice further obfuscates the criteria for the ‘internal relocation’ in national asylum systems.5 In cases involving the expulsion of a foreign national by a contracting State, the Court’s primary concern is to secure that the applicant can avoid a risk of

1 PhD Candidate, University of Bergen Faculty of Law. I am indebted to Lilian Tsourdi and Terje Einarsen for their comments on an earlier draft. 2 Convention Relating to the Status of Refugees, Geneva (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 137, supplemented by the Protocol Relating to the Status of  Refugees, New York (adopted 31 January 1967, entered into force 4 October 1967) 606 unts 267. 3 In some jurisdictions, the concept of ‘internal relocation’ is referred to as the ‘internal flight alternative’ or ‘internal protection alternative’. The Court uses ‘internal relocation’ and ‘internal flight alternative’ interchangeably, usually depending on the terminology applied by the State party concerned. 4 Jean-François Durieux, Salah Sheekh is a Refugee: New Insights into Primary and Subsidiary Forms of Protection (2008) Refugee Studies Centre Working Paper No. 49, 8. 5 The law is stated as of September 2013.

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torture, inhuman or degrading treatment or punishment contrary to Article 3 of the European Convention on Human Rights (echr) 6 in the place of return.7 As it stated in its seminal decision Salah Sheekh v The Netherlands, ‘Article 3 does not, as such preclude Contracting States from placing reliance on the existence of an internal flight alternative in their assessment of an individual’s claim that a return to his or her country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision’.8 However, importantly, certain conditions apply: ‘the person to be expelled must be able to travel to the area concerned, to gain admittance and be able to settle there, failing which an issue under Article 3 [echr] may arise, the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill- treatment’.9 I argue that the Court, despite clarifying critical guarantees against internal refoulement in Salah Sheekh, reinforces an unduly restrictive set of criteria for the internal relocation assessment in claims to refugee status and complementary protection in Europe. First, the Court’s narrow Article 3 focus excludes other risks related to threshold safety requirement in the place of relocation. Second, the Court’s approach encourages a tendency at the national level to conflate the ‘reasonableness’ prong of the internal relocation test under refugee law with the risk of internal refoulement. A third concern is that the three conditions established by the Court – the applicant must be able to safely travel to, enter, and settle in the proposed area – are not always applied rigorously by the Court itself in its highly influential decisions addressing general issues of risk in major refugee source countries. Therefore, in considering claims from countries like Somalia, Iraq, and Afghanistan, decision-makers influenced by the Court’s findings on internal relocation in ‘leading’ cases risk entrenching both a flawed analytic framework and a flawed application to the specific factual situation in their own jurisprudence. 6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (echr). 7 For early decisions of the European Commission for Human Rights involving the question of internal relocation, see Gaetan de Moffarts, ‘Refugee Status and the “Internal Flight Alternative”’ in Refugee and Asylum Law: Assessing the Scope for Judicial Protection: International Association of Refugee Law Judges, Second Conference, Nijmegen, January 9–11, 1997 (Nederlands Centrum Buitenlanders 1997) 126 fn. 22. Also see Chahal v The United Kingdom, App no 22414/93 (echr, 15 November 1996); Hilal v The United Kingdom, App no 45276/99 (echr, 6 March 2001). 8 Salah Sheekh v The Netherlands, App no 1948/04 (echr, 11 January 2007) [141]. 9 Ibid., Emphasis added.

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The Internal Relocation Concept in Refugee Law

There is no reference in the Refugee Convention to internal relocation. The concept gained traction in State practice during the 1980s against the backdrop of changing refugee flows.10 Although the relocation analysis is neither a ‘stand-alone principle’ of refugee law nor an ‘independent test’ in the determination of refugee status,11 decision-makers have linked it to the conditions set out in Article 1A(2) of the Refugee Convention: [A refugee is someone who] owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (my italics). If a person has a domestic protection alternative then, according to one interpretation, his or her fear of persecution may not be ‘well-founded’ as required by the refugee definition.12 Another approach separates the inquiry into two discrete parts: first, is there a well-founded fear of persecution in one area? If 10

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As Hathaway and Foster explain, as a result of the increasing numbers of refugees from countries that were politically, racially, and culturally different from Western asylum countries, the historical openness of the developed world to refugee flows was replaced by a new commitment to exploit legal and other means to avoid the legal duty to admit refugees. James Hathaway and Michelle Foster, ‘Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination’ in Erika Feller, Volker Türk, and Frances Nicholson (eds), unhcr’s Global Consultations on International Protection (Cambridge University Press 2003) 359–360. Other restrictive measures that took root during same period include carrier sanctions, visa entry requirements, safe third country policies, detention, restricted access to the labor market, and fast-track asylum procedures. See, generally, Agnès Hurwitz, The Collective Responsibility of States to Protect Refugees (oup 2009); Matthew Gibney, The Ethics and Politics of Asylum (Cambridge University Press 2004). unhcr, Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2003), para 2. According to the us immigration regulations, for example, an applicant ‘does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality…if under all the circumstances it would be reasonable to expect the applicant to do so’. 8 Code of Federal Regulations [2003] s 208.13 (2)(C)(ii)). Also see Januzi (FC) (Appellant) v Secretary of State for the Home Department and Others [2006] ukhl 5 [2006] 2 ac 426; Szatv v Minister of Immigration and Justice [2007] hca 40.

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this is established, the next question is whether the State is able and willing to provide protection elsewhere.13 In either case, the absence of national protection is a condition for recognition of refugee status. If such protection can be secured somewhere in the country of origin, the reasoning goes, the need for a surrogate remedy may not arise. As Black CJ of the Federal Court of Australia explained in Randhawa v. Minister for Immigration, Local Government and Ethnic Affairs: The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.14 According to unhcr’s 2003 Guidelines on the ‘Internal Flight or Relocation Alternative’, decision-makers should consider a) whether the proposed area is safely, legally and practically accessible; b) whether it is ‘safe’ to stay, meaning there is no risk of persecution or other serious harm; and c) whether the claimant may reasonably be expected to settle there.15 Serious harms in this context include threats to life, liberty, safety or health, and exposure to severe discrimination.16 Furthermore ‘if the conditions…are such that the claimant may be compelled to go back to the original area of persecution, or indeed to another part of the country where persecution or other forms of serious harm may be a possibility’ the relocation area is considered ‘unsafe’.17 With respect to reasonableness, the question according to unhcr is whether the claimant, in the context of the country concerned, can lead a ­relatively normal life without undue hardship.18 Personal circumstances, experience of past persecution, security, respect for human rights and the possibility of economic survival are all relevant factors.19 13 14 15 16 17 18 19

New Zealand Refugee Status Appeals Authority, No. 71684/99 [2000] inlr 165. Randhawa v Minister for Immigration Local Government and Ethnic Affairs [1994] 124 alr 265 [140]–[141]. See n 11. Ibid., para 20. Ibid., para 21. Ibid., para 7. Ibid., para 24.

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Within the Common European Asylum System, Article 8(1) of the recast Qualification Directive (2011) on ‘internal protection’, States may determine …that an applicant is not in need of international protection if in a part of the country of origin, he or she: (a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or (b) has access to protection against persecution or serious harm as defined in Article 7; and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.20 Although this last clause reflects the requirements of accessibility and durability set out in Salah Sheekh, it importantly also includes a reference to ‘reasonableness’.21 The internal relocation test under the Qualification Directive is the same regardless of the legal basis for international protection. In other words, in order to disqualify an applicant from refugee status (Article 13) or complementary protection (Article 15) on the grounds of an internal relocation alternative, the alternative must be accessible, safe and reasonable. In practice, States have taken highly divergent approaches to the ‘reasonableness’ requirement, particularly with regard to levels of human rights ­protection in the proposed haven.22 According to German jurisprudence, for example, historically only non-persecutory threats that were equivalent to the

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Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [Qualification Directive]. Emphasis added. The term ‘reasonableness’, included in Article 8 of the original Qualification Directive [2004], was removed by the European Commission in the redraft proposal. In the end, it was reinserted at the urging of unhcr and refugee advocacy groups. unhcr, ‘unhcr comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (com(2009) 551, 21 October 2009)’. Hathaway and Foster (n 10) 386; Ninette Kelley, ‘Internal Flight/Relocation/Protection Alternative: Is it Reasonable?’ (2002) 14 ijrl 1, 4.

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harms faced in the home area could be considered ‘unreasonable’.23 Other States assess the likelihood of finding work, housing, and health care. Confu­ sion remains even within jurisdictions. In Norway, two recent decisions of the same appeals court have endorsed contradictory legal parameters for the reasonableness test.24 Although the Court of Justice of the European Union (cjeu) has yet to issue a ruling on Article 8 of the Qualification Directive, it is clear from the legislative history that the phrase ‘reasonably settle’ is distinct from the threshold requirement of effective protection from persecution or serious harm.25 3

Internal Relocation in the Jurisprudence of the European Court of Human Rights

How compatible is the Court’s jurisprudence with the internal relocation requirements elaborated in eu refugee law? A review of practice illustrates a dynamic relationship between the Court and eu developments, particularly following the adoption of the original Qualification Directive in 2004. However, although State parties to the Refugee Convention have, as noted above, tried to anchor the internal relocation analysis in the language of Article 1A(2), the Strasbourg Court has not explicitly articulated its conceptual approach to the issue. It has simply observed that internal relocation raises the same concerns as any act of removal, including transfers to ‘safe third countries’.26 In Salah Sheekh, it explained: ‘indirect removal of an alien to an intermediary country 23 24 25 26

Federal Constitutional Court, 2 B v. R 403/84 1501/84, ezar 203 No. 5. Borgarting Lagmannsrett nos 10-142363ASD-BORG/01 and LB-2011-64941. unhcr Redraft Proposal Comments (n 21). The ‘safe third country’ concept may be described as ‘a procedural mechanism for shuttling asylum seekers to other States said to have primary responsibility for them, thereby avoiding the necessity to make a decision on the merits because another country is deemed to imagined to be secure’. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed (oup 2007) 392. The Court has considered numerous cases challenging an applicant’s removal to a third country pursuant to the Dublin II Regulation (Council Regulation (ec) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national). Eg mss v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011); Mohammed Hussein v. the Netherlands and Italy App no 27725/10 (ECtHR, 2 April 2013). The successor Dublin III Regulation is now in force as of July 2013.

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does not affect the responsibility of the expelling Contracting State to ensure that he or she is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention…(The Court) sees no reason to hold differently where the expulsion is, as in the present case, not to an intermediary country but to a particular region in the country of origin’.27 Thus, for the Court, the analysis for an internal and external protection alternative is the same. In two early relocation cases, the Court found that State agents in the country of origin were either unable or unwilling to provide adequate protection against the harms perpetrated by regional authorities. Chahal v. the United Kingdom (1996) and Hilal v. the United Kingdom (2001) both involved political activists associated with separatist causes (in India and Tanzania, respectively), who feared harm at the hands of the regional police.28 In Chahal, the uk government argued that even if the applicant, a Sikh activist, risked treatment contrary to Article 3 in Punjab, he could safely relocate elsewhere in India. The Court, however, disagreed, noting that ‘elements in the Punjab police were accustomed to act without regard to the human rights of suspected Sikh militants and were fully capable of pursuing their targets into areas of India far away from Punjab’.29 In Hilal v. the uk (2001), the government similarly alleged that the applicant (an opposition party member in Zanzibar) was not of interest to mainland authorities, and therefore could relocate in Tanzania. The Court again ruled in the applicant’s favour, considering that a ‘long-term, endemic situation of human rights problems’ persisted on the mainland, and that it ‘was not persuaded therefore that the internal flight option offers a reliable guarantee against the risk of ill-treatment’.30 In Salah Sheekh v the Netherlands, the Court essentially clarified that protection from Article 3 harm must be practical and effective. This case involved a young Somali man born in 1986 in Mogadishu. As a young child, Salah moved with his family to a village to escape fighting in the capital.31 Salah’s family was a member of the minority Ashraf clan and suffered constant harassment from the majority Abgal clan in their new home. Over time, intimidation and extortion escalated into more serious abuses. Salah’s father and brother were

27 28 29 30 31

Salah Sheekh v The Netherlands (n 8)[141]. Chahal v The United Kingdom (n 7); Hilal v The United Kingdom (n 7). Chahal v The United Kingdom (n 7) [100]. Hilal v The United Kingdom (n 7) [67]–[68]. Salah Sheekh (n 8) [6].

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eventually killed, and his sister raped multiple times, by the local Abgal militia.32 Salah himself was beaten up badly on several occasions. With his mother and uncle’s support, he managed to escape in 2003 to the Netherlands. There, his first asylum claim and then the appeal were refused in part because he could relocate internally to the ‘relatively safe’ areas of Puntland, Somaliland, the south of Mudug and the islands off the southern coast of the country. The Court held that internal relocation would not mitigate the risk established elsewhere in Somalia because there was no guarantee that the applicant would be allowed to enter and settle in either of the proposed areas of relocation.33 Essentially, these criteria rendered the controversial provision 8(3) of the 2004 Qualification Directive, which had enabled application of the internal relocation concept ‘notwithstanding technical obstacles’, illegal.34 It is worth noting two other aspects of this decision. First, the choice of the word ‘settle’ (as opposed, for example, to ‘stay’ – the language used in the 2004 Qualification Directive) suggests that the applicant should be able to establish him or herself on a non-temporary basis. And second, the Court draws attention to the possibility of indirect refoulement – the danger that the ­applicant would end up in the area where risk of treatment contrary to Article 3 has already been established. Taken together, these requirements for a meaningful and durable refuge echo the doctrine of ‘effective protection’ established in Article 7(2) of the Qualification Directive, to which Article 8 on  internal protection refers. This provision states, inter alia, that ‘protection  against persecution or serious harm must be effective and of a non-­ temporary nature’.35 3.1 An Unduly Restrictive Approach to the ‘Safety’ Analysis? Despite establishing a welcome reference point for the internal relocation analysis, the Salah Sheekh decision was far from groundbreaking compared to the Court’s previous practice. The question addressed was still, fundamentally, whether the applicant enjoys an adequate guarantee against the threat of Article 3 harm. While the Court’s concern with safe and legal access reflects part of unhcr’s guidance on internal relocation, its focus on Article 3 32 33 34

35

Ibid., [9]–[13]. Ibid., [143]–[144]. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (2004 Qualification Directive). Qualification Directive (n 20).

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guarantees diverts attention from other harms that may render the area either ‘unsafe’ or ‘unreasonable’. 3.1.1 The Article 3 Channel To start with the threshold ‘safety’ assessment: which threats outside the scope of Article 3 might render the proposed area too insecure for resettlement? To answer this question it is useful to consider Article 3’s key position in the Court’s non-refoulement jurisprudence. The relevance of Article 3 to extradition, expulsion, or deportation cases was confirmed in the case of Soering v the United Kingdom in 1989.36 In Soering, the Court noted that ‘the common heritage of political traditions, ideals, freedom and rule of law’ referred to in the Convention’s preamble, may be undermined if someone is returned from a contracting State to face torture or inhuman or degrading treatment in another country.37 Protection from Article 3 harm, then, constitutes a core value of the European human rights system. State responsibility is incurred from the foreseeable consequences of a removal decision that exposes an individual to a ‘real risk’ of ill-treatment. While Soering involved the extradition of a German national to face the death penalty in the us, the Court in Cruz Varas clarified that the same principle applies to the expulsion of a foreign national from a State party to the echr.38 While other articles of the echr may be raised in an asylum case, the absolute terms of Article 3 make it a useful hook for applicants who are excluded from refugee status or face deportation resulting from an immigration or criminal law violation. Under Article 3, unlike other sources of refugee protection, the behaviour of the applicant is immaterial, as is the source of the risk.39 36 37 38 39

Soering v the United Kingdom, App no 14038/88 (ECtHR, 7 July 1989). Ibid., [88]. Cruz Varas and others v Sweden App no 15576/89 (ECtHR, 20 March 1991) [70]. According to the ‘exclusion clauses’ of the Refugee Convention, the provisions of the Convention do not apply to anyone with respect to whom ‘there are serious reasons for considering’ that he or she has committed a crime against peace, a war crime, a crime against humanity, a non-political crime outside the country of refuge prior to admission as a refugee, or are guilty of acts ‘contrary to the purposes and principles of the United Nations’. Refugee Convention (n 2) Article 1(F). Article 17 of the Qualification Directive repeats these provisions and also excludes anyone who ‘constitutes a danger to the community or to the security of the Member State in which he or she is present’. Qualification Directive (n 20). When it comes to the actor of persecution, in contrast to Article 3 cat, Article 3 echr does not specify State culpability. The Convention against Torture requires that the ‘pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. The

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Because the protection of Article 3 is non-derogable, the State may not balance this protection against other policy interests, or suspend it in times of emergency.40 The Court itself has channelled expulsion cases through Article 3 even when other articles have been raised in the applicant’s complaint. When applicants have invoked Article 2 (the right to life) together with Article 3, for example, the Court generally finds it unnecessary to review the Article 2 claim separately from Article 3.41 Even the incipient case law on generalized violence (Sufi and Elmi), suggests that the possibility of bodily harm only engages Article 3. The Court’s jurisprudence suggests that qualified echr rights (Articles 8–11) may give rise to a non-refoulement obligation only on an exceptional basis. These provisions provide for a balancing of State and individual interests, and while immigration control is not explicitly mentioned (with the exception of Article 5(1)(f)) as a legitimate State interest in the treaty, it has been recognized as ‘the medium through which other legitimate aims are promoted’.42 The uk

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 unts 85 art 1(1). That said, the Committee against Torture has clarified that State responsibility is engaged when it has grounds to believe that acts of torture are being committed by non-State or private actors, and it fails to exercise due diligence to prevent, investigate, prosecute and punish these acts. Committee against Torture [2007] General Comment 2, Implementation of Article 2 by States Parties, un Doc CAT/C/GC/2/CRP 1/Rev 4, para 18. Article 8(2) echr, for example, which has also been successfully invoked to challenge expulsion orders, provides that an interference may be justified if carried out “in accordance with the law” and “is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. echr [6] art 8(2). However, as Battje explains, the distinction between absolute and qualified rights does not hold up in practice, as Article 3 echr is also clearly subject to balancing by the Court. Hemme Battjes, “In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 echr Reassessed” (2009) 22 Leiden Journal of International Law 583. Nuala Mole and Catherine Meredith, Asylum and the European Convention on Human Rights (Council of Europe Publishing 2010) 89. Eg NA v The United Kingdom App no 25904/70 (ECtHR, 17 July 2008); H. and B. v The United Kingdom, App nos 70073/10 and 44539/11 (ECtHR, 9 April 2013). However, in Dehwari, the Court suggested a distinct space for Article 2 ‘in circumstances in which the expelling State knowingly puts the person concerned [at] such high risk of losing his life as for the outcome to be a near-certainty’. This case failed on the facts. Dehwari v The Netherlands App no 37014/97 (ECtHR, 29 October 1998) [61]. Nicholas Blake and Raza Husain, Immigration, Asylum and Human Rights (oup 2003) 190. Article 5(1)f echr provides that a person may be deprived of liberty in accordance with a

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House of Lords in Ullah observed that, for the Court, it is ‘necessary to establish at least a real risk of a flagrant violation of the very essence of the right’ before provisions other than Article 3 may be engaged.43 Given that serious breaches of other rights may usually be expressed as inhuman or degrading treatment, there is a ‘reassuring simplicity in tying echr protection needs to Article 3’.44 A narrow focus and high threshold also serve the Court’s own interests in judicial economy and optimal State compliance with its judgments. 3.1.1.1 Critiques of the Article 3 Channel The privileged position of Article 3 as the gateway to relief from removal can be criticized on several grounds. Battjes has noted that the ‘difference between so-called absolute prohibitions and other ones is quite relative’.45 He points out that Article 3 prohibition of expulsion does implicitly allow for balancing and exceptions: the Court considers, in fact, whether the interference with human dignity or physical integrity serves a legitimate aim, and whether the scope of the treatment or punishment is proportionate to that aim. On the other hand, certain aspects of other rights, for example Article 9 (freedom of religion) are framed in equally ‘absolute’ terms as Article 3. It is only the public manifestation of religion or belief that may be limited under the second ­paragraph of Article 9. Neither are the severity or irreparability of the treatment satisfying explanatory factors. There is no logical reason for considering that degrading treatment, for example, is inherently more damaging than the intentional deprivation of life.46 The suppression of Article 2 claims is especially puzzling since the Court has emphasized in removal cases the ‘irreparable nature’ of procedure established by law if, among other reasons, the arrest or detention is undertaken to “prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. echr [6] art 5(1)f. 43 Regina v Special Adjudicator ex parte Ullah (fc) [2004] ukhl 26 [50]. In Mamatkulov and Askarov v Turkey, the partly dissenting opinion of Judges Sir Nicolas Bratza, Bonello and Hedigan observed with respect to Article 6 that “what the word ‘flagrant’ is intended to convey is a breach…which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.” App nos. 46827/99 and 46951/99 (ECtHR, 4 February 2005) [14]. 44 Jane McAdam, Complementary Protection in International Refugee Law (Oxford 2007) 145. 45 Hemme Battjes, ‘The Soering Threshold: Why Only Fundamental Values Prohibit Refoulement in echr Case Law’ (2009) 11 European Journal of Migration and Law 211. 46 Gregor Noll, Negotiating Asylum: The eu Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff Publishers 2000) 459.

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damage where there is a risk of treatment contrary to Article 3 echr.47 On the other hand, inhuman and degrading treatment is not always irreparable. The assessment of irreparability will, as Noll observes, often rely on ‘medical, psychological, or otherwise technical’ facts, rather than purely legal arguments.48 Although they may be important factors, especially when considered together, neither the ‘absolute character’ of Article 3, nor the seriousness or irreparability of Article 3 harm justify such a dominant position as the gatekeeper for international protection. Conceptually, a State’s positive obligation to protect against third party harms applies to any right, if the consequences of a breach are serious enough and predictable.49 Indeed, the original version of the 2004 Qualification Directive recognized in paragraph 15(b) that serious and unjustified harm triggering a need for protection could consist of a ‘violation of a human right, sufficiently severe to engage the member State’s international obligation’.50 Even in the echr context, the Court has recognized that the rights to moral integrity,51 a fair trial,52 and family life53 can operate as independent grounds for relief from removal. A broad analysis of ‘safety’ is especially important in the internal relocation context, where the concern centers on chain refoulement within the country of  origin. Physical insecurity, the inability to practice one’s religion freely, 47

Ibid., 464–467; for an example of the overlaps between Articles 2 and 3 see Jabari v Turkey, App no 40035/98 (ECtHR, 11 July 2000). 48 Noll, Negotiating Asylum (n 46) 466. 49 As Noll explains, “(t)the basic assumption…is that states are responsible for violations of human rights or humanitarian law by other actors to the extent their own action or omissions contribute to such violations…” Gregor Noll, ‘Fixed Definitions or Framework Legislation? The Delimitation of Subsidiary Protection Ratione Personae’ (2002) unhcr New Issues in Refugee Research Working Paper No. 55, 3. The more probable and serious the harm, the stronger the protection claim of the presumed victim. Noll, Negotiating Asylum (n 46) 470. 50 Commission of the European Communities Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection com (2001) 510 final (12 September 2001). According to the Proposal’s ‘Explanatory Memorandum’, member States should ‘consider whether the return of an applicant to his or her country of origin or habitual origin would result in serious unjustified harm on the basis of a violation of a human rights and whether they have an extraterritorial obligation to protect in this context’. ibid., 26. 51 See, for example, Bensaid v The United Kingdom App no 15225/89 (ECtHR, 31 January 1995); Beldjoudi v France App 12083/86 (ECtHR, 12 November 1990). 52 Othman (Abu Qatada) v The United Kingdom App no 8139/09 (ECtHR, 17 January 2012). 53 A.W. Khan v The United Kingdom App no 47486/06 (ECtHR, 12 January 2010).

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infringements with one’s private life, or other factors, could compel the applicant to return home. 3.1.2 Other Rights Relevant to the Safety Assessment Two examples illustrate the limitations of Article 3 as the blanket provision for serious harms. The first relates to economic and social rights issues. In the extraterritorial context, the Court has generally required evidence of exceptionally compelling circumstances to engage the responsibility of member States under Article 3.54 In N v. the United Kingdom, for example, the Court denied relief to an hiv-positive applicant from Uganda, whose lifespan would likely be shortened as a result of removal. In Salah Sheekh, the Court reiterated this restrictive tone, noting that humanitarian ‘considerations do not necessarily have a bearing, and certainly not a decisive one, on the question whether the person concerned would face a real risk of ill-treatment within the meaning of Article 3 of the Convention in those areas’.55 In M.S.S. v. Belgium and Greece and Sufi and Elmi, however, the Court distinguished N, where the threat emanated from Uganda’s lack of capacity to provide adequate treatment, from situations where the State was somehow complicit (through its actions or omissions) in the alleged harms.56 In Sufi and Elmi, the Court found that a real risk of ill-treatment existed in the camps for internally displaced persons in southern Somalia on account of the poor humanitarian conditions for which the warring parties were primarily responsible. In particular, the Court focused on shortage of food, overcrowded shelters, lack of sanitation, and the high prevalence of sexual violence and other criminal activity.57 The impact of the Court’s jurisprudence has been, as described below, to reinforce the idea that only cumulative economic and social harms equivalent to Article 3 are relevant to the internal relocation analysis in domestic asylum 54

55 56 57

N v The United Kingdom App No 26565/05 (ECtHR, 27 May 2008). In contrast, the Court found that return of an applicant suffering from aids to his imminent death without any access to basic support in St. Kitts did engage Article 3. D v The United Kingdom App No 30240/96 (2 May 1997). Salah Sheekh v The Netherlands (n 8) [141]. M.S.S. v Belgium and Greece (n 26); Sufi and Elmi v The United Kingdom App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011). Ibid., [284]–[286]. In contrast, see Case of S.H.H. v The United Kingdom, App no 60367/10 (ECtHR, 29 January 2013). In this decision, the Court found that the return of a disabled man from Nangarhar province in Afghanistan to Kabul did not engage Article 3 on account of the humanitarian situation he was likely to face, in part because the risk of socio- and economic harms did not emanate from the intentional acts or omissions of the Afghan authorities.

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decisions. From the State perspective, however, a more principled starting point would be to assess whether any individual right it has a duty to protect would be denied upon the applicant’s return. Parties to the International Covenant on Economic and Social Rights are immediately obliged to ensure access to rights non-discriminatory basis.58 Expulsion to a place where the authorities deny existing services to specific groups, then, may give rise to an independent obligation of non-refoulement. Serious discrimination in the provision of basic shelter, education or health care – which is a common experience for internally displaced persons – would render the relocation area ‘unsafe’, not just ‘unreasonable’. The second pitfall is that by only considering guarantees against the risk of treatment in violation of Article 3, the Court excludes other rights that may be relevant to the safety analysis. Protection of mental health, an aspect of the right to privacy (Article 8), is an obvious example. Individuals who have already suffered inhuman or degrading treatment, of course, are at particular risk of lingering psychological consequences. Being returned to an area without any social or family support could exacerbate any future risk without, necessarily, reaching the threshold of ‘inhuman or degrading treatment’. McAdam also points out that Article 8 could apply ‘where extreme subjective fear does not match the actual risk of harm, but nonetheless constitutes real fear in the applicant’s mind’.59 Finally, it is worth noting other gaps between the Court’s mandate (which is bound to the echr) and ‘serious harms’ that disqualify the area as unsafe according to unhcr’s interpretation of the Refugee Convention and the Qualification Directive requirements. These include exposure to insecurity and conflict and, related to this, a compromised system of criminal justice. In the Qualification Directive, for example, the internal relocation and cessation provisions share a single concept of ‘protection’, which must be ‘effective and of a non-temporary nature. Such protection is generally provided when the actors [of protection]…take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection’.60 From this perspective, rule of law indicators inform not only the quality of protection (would the applicant have access to justice?) but also the stability of protection provided. 58

Committee on Economic, Social and Cultural Rights, ‘General Comment 3: The Nature of States Parties’ Obligations’ (1990) un Doc E/1991/23 annex III (1991). 59 McAdam, Complementary Protection (n 44) 160. 60 Qualification Directive (n 20) Article 7.

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3.2 Beyond Safety: Assessing the ‘Reasonableness’ of Internal Relocation In addition to reinforcing an overly narrow approach to the serious harm assessment, the Strasbourg jurisprudence also encourages a conflation in State practice of Article 3 harms with the additional ‘reasonableness’ analysis required in most jurisdictions.61 This risk is compounded by the increasing prominence of ‘leading’ cases in the Court’s practice.62 By leading cases here I mean those that clarify the proper interpretation and application of Article 3 to questions of generalized risk in a particular country of origin or transfer.63 Examples involving internal relocation include Salah Sheekh v. the Netherlands (the Ashraf clan in Somalia);64 NA. v. the uk (Tamils in Sri Lanka),65 N. v. Sweden (single women from Afghanistan);66 M.S.S. v. Belgium and Greece (asylum claimants in Greece);67 and H. and B. v. the uk (interpreters in Afghanistan).68 Recently, the Court has more explicitly suggested that it might accommodate a kind of reasonableness analysis within the framework of Article 3. In N.A.N.S. v. Sweden, for example, it observed: Internal relocation inevitably involves certain hardship. Various sources have attested that people who return to the Kurdistan Region may face difficulties, for instance, in finding proper jobs and housing there, not the least if they do not speak Kurdish. Nevertheless, the evidence before the Court suggests that there are jobs available and that settlers have access to health care as well as financial and other support from the unhcr and local authorities. In any event, there is no indication that the general living conditions in the kri for a Christian settler would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor is there a real risk of his or her ending up in the other parts of Iraq.69 61

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63 64 65 66 67 68 69

For example, while the Court clarified in Salah Sheekh that the risk of Article 3 harm may be mitigated only if the applicant can settle in the site of relocation, Article 8 of the 2011 Qualification Directive includes the requirement that the applicant can reasonably settle there. For more on the concept of ‘leading’ asylum cases, see Ledi Bianku, ‘Roundtable Discussion with the iarlj, the cjeu and the ECtHR on Leading Asylum Cases’ (2013) 25 ijrl 382–393. Hugo Storey, ‘Briefing Note for Participants’ (2013) 25 ijrl 329. Salah Sheekh v The Netherlands (n 8). NA. v The United Kingdom App no 25904/07 (ECtHR, 17 July 2008). N. v Sweden App no 23505/09 (ECtHR, 20 July 2010). M.S.S. v Belgium and Greece (n 26). H. and B. v The United Kingdom App nos 70073/10 and 44539/11 (ECtHR, 9 April 2013). N.A.N.S. v Sweden App no 68411/10 (ECtHR, 27 June 2013) [38]. Emphasis added.

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However, because the term ‘unreasonable’ seems to qualify Article 3 treatment, these kinds of references are particularly unhelpful to decision-makers at the national level who already struggle to distinguish the two. For example, in the uk House of Lords decision AH (Sudan) and Others, Baroness Hale observed that the Asylum and Immigration Tribunal (ait), when considering the conditions awaiting the applicants in the squatter camps of Khartoum, repeatedly referred to a ‘real risk of serious harm or of ill-treatment contrary to article 3 or of unduly harsh conditions’ as if these phrases referred to the same concept.70 And indeed, when the ait considered whether internal relocation was ‘unduly harsh’, it concluded in the negative, since the health facilities, while dismal, did not deprive the people who lived there of ‘the most basic of human rights that are universally recognised – the right to life, and the right not to be subjected to cruel or inhuman treatment’.71 She noted that in Januzi, Lord Bingham confirmed that a fundamental human rights protection was a prerequisite for relocation but not the only consideration for the reasonableness assessment.72 In that decision, Lord Bingham cited with approval the 2003 unhcr Guidelines, which state: If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.73 Even if a distinctive Article 3 approach develops to accommodate less severe human rights harms in the case of internal relocation, it would still be an unworkable proxy for the reasonableness requirement in refugee law. Protection from ‘inhuman and degrading treatment’ – even generously defined – is not the only factor relevant to the applicant’s ability to achieve a normal life in the context of the country concerned. Opportunities to pursue a livelihood, the impact of relocation on children, and the possibility to reunite with family are also important considerations.74 70 71 72 73 74

The Secretary of State for the Home Department (Appellant AH) v AH (Sudan) and others (FC) v (Respondents) House of Lords [2007] ukhl 49, [200] 1 AC 678 [24]. Ibid., [25]. Ibid., [22]. unhcr Guidelines (n 11), para 29. Emphasis added. For example, in an early relocation case, the English High Court of Justice granted asylum to a trade unionist from Ghana despite the possibility of safely relocating elsewhere, because it would force him to be separated from his wife. R v Immigration Appeal Tribunal (iat), ex parte Jonah [1985] Imm AR 7 (qb).

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In addition, the Court’s return analysis, with its focus on future risk, does not accommodate the fact that – under refugee law – particularly egregious acts of past persecution may defeat the reasonableness of return. The Refugee Convention insists on the individual applicant – not the State – as the subject of the protection analysis. Rather than refer to the State’s ability and willingness to protect, Article 1A(2) provides that a refugee may be able but unwilling, ‘owing to the fear’, to secure State protection. Considering the plain language of Article 1A(2) and the symmetry between the internal relocation and cessation analyses, the ‘compelling reasons’ exceptions to cessation set out in Articles 1C(5) and (6) could arguably apply to any situation in which the possibility of domestic protection is proposed as a substitute for asylum abroad.75 Among other situations these are ‘intended to cover cases where refugees, or their family members, have suffered atrocious forms of persecution’.76 In Grahl-Madsen’s words, such persons may have developed a ‘distrust of the country itself and a disinclination to be associated with it as its national’.77 The ‘reasonableness’ analysis thus involves an individualized assessment of both subjective and objective factors. In terms of the subjective factors, refugee law recognizes that previous trauma may be relevant even if it does not affect future risks of harm. With regard to the objective ones, the achievement of a normal life in the area of return – in accordance with unhcr guidance – implies not only the absence of Article 3 ill-treatment (however defined) but also a certain level of affirmative human rights protection. Therefore, even if the Court adopts a more explicit version of the reasonableness analysis under Article 3, it still will not capture the requirements of the Refugee Convention or the Qualification Directive. 3.3 Problems of Application A final way in which the Court’s jurisprudence reflects or reinforces a flawed approach to internal relocation in European States’ practice is through the problematic application of the Court’s own standards in its decisions. Despite repeating the Salah Sheekh requirements in cases involving internal relocation, at times the Court fails in practice to ensure that the place of ‘refuge’ is 75

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On the symmetries between the ifa and Cessation Clause, see Maria O Ś ullivan, ‘Territorial Protection: Cessation of Refugee Status and Internal Flight Alternative Compared’ in S Juss (ed), Ashgate Research Companion to Migration Law, Theory and Policy (Ashgate 2013). unhcr, (2003) ‘Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstance Clauses”)’, para 20. Atle Grahl-Madsen, The Status of Refugees in International Law Vol 1 (AW Sijthoff 1966) 410.

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safely accessible and offers a degree of stability (i.e. there is no risk of internal refoulement). Judge Power-Forde noted in her dissenting opinion in M.Y.H. and Others v. Sweden that the guarantees required by Salah Sheekh regarding travel to, admittance and settlement in the proposed area of return impose a high burden of proof on the sending State. ‘Positive indications’ alone are inadequate.78 In Salah Sheekh, the technical possibility of ‘return’ to the relatively safe territories of Somaliland or Puntland did not mean that the applicant would be enabled to stay in either place. Furthermore, the Court noted, in the absence of any post-return monitoring, the State could not verify that the applicant was even admitted.79 However, in M.Y.H. and Others v. Sweden, the Court did not demand the same due diligence on the part of the contracting State. In that case, as PowerForde notes, the Court completely failed to consider transit risks along insecure roads to Kurdistan.80 It also dismissed reports documenting the unpredictable practice of border guards, which raised a real, if small, possibility that the Christian Iraqi applicants could be refused entry. In D.N.M v. Sweden, involving an Iraqi man who fled an honor-related conflict, the Court simply observed that he could ‘find a place to settle’ outside his home region.81 Without identifying where this area might be, of course, it was impossible to ensure that the criteria set out in Salah Sheekh were fulfilled. At the domestic level, it is likely that decision-makers will refer to these cases in support of a finding that internal relocation is safe and accessible for certain categories of applicants from Iraq.82 The Court’s acceptance of non-State actors of protection is also at odds with its concern with the risk of internal refoulement. In Sufi and Elmi, which also involved return to Somalia, the fact that the ‘safe’ area was controlled by armed

78 79 80 81 82

M.Y.H. and Others v Sweden App no 50859/10 (ECtHR, 27 July 2013). Dissenting opinion of Judge Power-Forde joined by Judge Zupančič, 33. Salah Sheekh (n 8) [143]. M.Y.H. and Others v Sweden (n 78). D.N.M. v Sweden, App no 28379/11 (ECtHR, 27 June 2013). In Norway, for example, select ECtHR decisions are included as legal sources on the website of the Immigration Directorate with a note concerning the category of cases for which they are relevant. One admissibility decision, Omeredo v Austria, was deemed useful for assessing the possibility of internal flight for single females from Nigeria. udi Regelverk, online at . Here, though, the Court again took a few shortcuts and accepted, after only a cursory review of the applicant’s work experience and education, the State’s assertion that the she could find some (unspecified) place to settle. Omeredo v Austria, App no 8969/10 (ECtHR, 20 September 2011).

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groups with a tenuous hold over the territory did not disqualify it on durability grounds.83 4 Conclusion The Strasbourg Court’s relocation jurisprudence can be justified, in some cases, for the removal context in which it operates. The sending State may, for example, be attempting to deport an individual who is excluded from refugee status or complementary protection under international law because they pose a threat to national security or have committed violent felonies. In these cases, effective protection from Article 3 harms is arguably the relevant legal standard for return anywhere in the country of origin. In other cases, though, the Court is considering, essentially, a defensive claim for international protection. Although the Court has obliged itself to interpret the echr ‘in harmony with the general principles of international law’, its internal relocation decisions reflect only a partial incorporation of refugee standards combined with a strong reaffirmation of Article 3’s central role in any return analysis.84 As such, they do not model the legal requirements for internal relocation under either the Refugee Convention or the Qualification Directive. One obvious point of divergence relates to the distinct reasonableness requirement imposed by these instruments. However, as this paper illustrates, the Court’s restrictive approach to ‘safety’ and uneven application of its own criteria also make it an unreliable source of guidance for decision-makers tasked with analyzing the compatibility of return with international and regional human rights obligations. 83

Sufi and Elmi (n 56). Rather, for persons with close family connections in parts of southern or central Somalia, the transit risks associated with Al-Shabaab checkpoints, and the risk of human rights violations within Al-Shabaab areas, were the main factors precluding relocation. [272]–[277]. 84 See, inter alia, S.H.H. v. The United Kingdom, App no 60367/10 (ECtHR, 29 January 2013) [94]; Neulinger and Shuruk v. Switzerland App no 41615/07 (ECtHR, 6 July 2010) [131]–[132].

Access to Protection: Negotiating Rights and Diplomatic Assurances under Memoranda of Understanding Mariagiulia Giuffré* 1 Introduction Over the last decade, Western States have repatriated a notable number of individuals, considered threats to the public safety of the host country, after receiving diplomatic assurances by the country of origin on the treatment of the returnees.1 The idiosyncratic response of the uk to terrorism has resulted in the negotiation with third countries of Memoranda of Understanding (MoUs), written accords that enumerate a long list of assurances dictating standards of fair and humane treatment to be afforded to the returnees. MoUs stand, therefore, as framework agreements reflecting a mutual understanding on respect of human rights in every case of removal. Some terminological clarifications are needed to avoid overlaps among concepts that are very similar and often interchangeably used in the literature. Diplomatic Assurances can take a variety of forms. In the context of the transfer of a person from one State to another, this shorthand term refers to an undertaking by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law.2 Diplomatic Assurances are generally exchanged between the sending and the readmitting States in the field of extradition or migration control, and may include, inter alia, MoUs, Exchanges of Letters, Notes Verbales, or AidesMémoire. Assurances are usually issued by the Embassy or the Ministry of Foreign Affairs of the requested State and addressed to the requesting country * I wish to thank Jean-Pierre Gauci, Elspeth Guild, and Violeta Moreno-Lax for their comments on earlier drafts of this paper. Remaining errors are only mine. 1 See, Section 2 for an extensive review of State practice, including case law of national and international human rights bodies. 2 unhcr, ‘Note on Diplomatic Assurances and International Refugee Protection’ (Geneva, August 2006) 2.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_005

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in charge of sending the individual back to her country of origin. In extradition cases, further guarantees are also issued by judicial bodies. Diplomatic assurances are herein considered as the overarching category within which MoUs and individualized diplomatic assurances form subcategories. MoUs are blanket agreements on the treatment of the deportees signed with some countries before an emergency arises. Individualized diplomatic assurances, instead, are case by case accords negotiated either independently, in relation to a certain person to be removed, or under a MoU with regard to specific individuals after an emergency arises. In the following sections, the terms assurances and individualized assurances are at times used interchangeably. After the September 11th attacks, MoUs have been used to frame migration control as a national security objective, thus stressing the commitment of governments to protect their citizens’ safety from foreigners often suspected of exploiting the Convention Relating to the Status of Refugees (Geneva Convention) to obtain residence abroad.3 Article 33(2) of the Geneva Convention states that the benefits of non-refoulement may not […] be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. This exemption has been often applied to persons suspected of involvement in terrorist activities and excluded from the protection of the Geneva Convention under Article 1(f).4 Being unqualified for refugee status, but sheltered from

3 See, Elspeth Guild, Security and Migration in the 21st Century (Polity Press 2009). 4 Burgeoning literature has been produced on exclusion from refugee status. See, inter alia, T. Straub ‘The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law’ (2012) ijrl 24(4) 892; Jennifer Bond, ‘Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and “Guilty” Asylum Seekers’ (2012) ijrl 24(1) 37; Satvinder Singh Juss, ‘Complicity, Exclusion, and the “Unworthy” in Refugee Law’ (2012) rsq 31(3) 1; Satvinder Singh Juss ‘Terrorism and the ; of Refugee Status in the uk’ (2012) Journal of Conflict and Security Law 17(3) 465; James C Simeon, ‘Complicity and Culpability and the Exclusion of Terrorists From Convention Refugee Status Post-9/11’ (2010) rsq 29(4) 104; Elspeth Guild and Madeline Garlick, ‘Refugee Protection, Counter-Terrorism, and Exclusion in the European Union’ (2010) rsq 29(4) 63; Geoff Gilbert, ‘Exclusion and Evidentiary Assessment’ in Gregor Noll, Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff 2005).

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removal under international human rights law because of the risk to undergo inhuman treatment in their country of origin,5 they end up to be trapped in a legal and ‘status’ limbo. In a climate in which migrants are perceived as external threats to national stability, the real danger is that States unduly emphasize uncertain and flexible national security interests to the detriment of the protection of individuals’ fundamental rights.6 The risks are even higher for refugees and asylum seekers. For example, adopting a migration law rather than a criminal law regime, an asylum seeker can be excluded from protection when there are ‘serious reasons for considering’ her as a terrorist.7 Contrarily, in criminal proceedings, the standard of proof is much higher than that one required by the Geneva Convention, as a final conviction for terrorism can be obtained only when the standard of proof is ‘beyond any reasonable doubt’.8 MoUs, as adopted in the uk, are flexible instruments to deal with such security sensitive deportations. Indeed, since only a ‘reasonable belief’ is sufficient,9 the threshold for removal required in migration proceedings is undoubtedly lower. 5 Pursuant to Article 3(1) of the cat, ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. The un Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR) have implicitly derived the prohibition of refoulement from the prohibition of torture enshrined in Article 7 and Article 3 of the relevant treaties, respectively. 6 Jens Vedsted-Hansen, ‘The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection’ (2010) 29(4) rsq 45, 59–62. 7 See, e.g., Article 1(f) of the Geneva Convention. In the eu context, see Article 12(2) of the recast Qualification Directive. 8 The definition of terrorism has proved particularly controversial, as testified by difficulties faced by the international community to formulate a universally agreed, legally binding qualification of this crime. Maintaining vague or excessively broad conceptions of terrorism raises rights-related concerns since States, to criminalize dissent, might discretionally label opposition groups or armed rebel forces as ‘terrorist organizations’. Since this issue falls beyond the ambit of this paper, for a detailed discussion on the definition of terrorism, it is possible to refer, inter alia, to: ud Acharya, ‘War on Terror or Terrors Wars: The Problem in Defining Terrorism, (2009) 37(4) Denver Journal of International Law and Policy, 653–679; Jean Marc Sorel, ‘Some Questions about the Definition of Terrorism and the Fight Against Its Financing’ (2003) 14(2) European Journal of International Law. It should be noted that, beside evidentiary issues, criminal proceedings traditionally offer more substantive and procedural guarantees, since they deal with a limitation of individuals’ fundamental rights. For an exhaustive assessment of the protection of fundamental rights in criminal justice, see Stefan Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005). 9 See, i.e., Terrorism Prevention and Investigation Measures Act 2011 last accessed 3 April 2013.

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Although diplomatic assurances have mainly been used in the field of extradition, their potential application is broader.10 They may be utilized also in the context of deportation/expulsion and ‘extraordinary rendition’ to undergo interrogation elsewhere.11 Unlike extradition, which requires formal acts of two States, expulsion or deportation occur on the basis of unilateral decisions of the sending State, in principle consistently with international human rights and refugee law.12 However, in many cases, ‘asylum, immigration, and extradition removal proceedings overlap’.13 For example, in a number of cases, persons whose extradition is requested by the country of origin are asylum seekers or individuals excluded from refugee status on grounds of terrorism. In these circumstances, the existence of diplomatic assurances is seen as part of the factual evidence in determining the non-refoulement test.14 It is to be clarified that the type of removal of primary interest in this paper is removal through immigration proceedings employed to remove unwanted and undocumented aliens. The use of bilateral diplomatic assurances raises numerous and diverse issues ranging from their legal status to their relationship with international 10

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Pursuant to Article 1 of the European Convention on Extradition, ‘The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order’. Often regulated through bilateral agreements, extradition can also be defined as ‘the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and to punish him, demands the surrender’. See, Terlindem v Adams, 184 us 270 (1902) 289. Expulsion concerns an ‘administrative or judicial act, which terminates the legality of a previous lawful residence’. See, com (2002) 175 final, Annex I ‘Proposed Definitions’. Deportation refers to ‘the act of a State in the exercise of its sovereignty in removing an alien from its territory to a certain place after refusal of admission or termination of permission to remain’. See, emn Glossary, ‘Deportation’. According to the ECtHR, the term ‘extraordinary rendition’ refers to ‘an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment’. See, El-Masri v Former Republic of Macedonia, No. 39630/69 (ECtHR 13 December 2012) (El-Masri) para 221. unhcr, Note on Diplomatic Assurances and International Refugee Protection (2006) 2. Martin Jones, ‘Lies, Damned Lies and Diplomatic Assurances: The Misuse of Diplomatic Assurances in Removal Proceedings’ (2006) 8 ejml 9, 11. Vassilis Pergantis, ‘Soft Law, Diplomatic Assurances and the Instrumentalisation of Normativity: Wither a Liberal Promise?’ (2009) 56 nilr 137, 148.

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human rights obligations and their reliability in eliminating the risk of illtreatment upon return. However, by conceptualizing diplomatic assurances as falling within the broader category of agreements linked to the readmission of unwanted/unauthorized foreigners from the territory of the host State to countries of origin or transit,15 this paper’s aim is to investigate whether their implementation can undermine core refugee rights. A number of Western countries, in primis the United States, Canada, the United Kingdom, Sweden, Austria, Germany, Italy, Spain, the Netherlands, and Russia have resorted to diplomatic assurances to transfer alleged terrorists to unsafe countries to undergo interrogations and trials.16 For the purpose of this paper, a receiving country is considered ‘unsafe’ when it does not offer adequate guarantees that the deportee – often a suspected terrorist or a person deemed not conducive to the public good – will be treated in accordance with the conditions set by the sending States, in particular with regard to the prohibition of torture and inhuman or degrading treatment or punishment and the right to a fair trial – as enshrined within the international human rights treaties ratified by the sending State. The uk has provided an unusual answer to the security dilemma by formalizing diplomatic assurances for deported individuals within stan­ dardized MoUs. These instruments include general clauses concerning the lawful treatment of deportees. At the same time, they also ‘[allow] the government to seek more specific personal assurances depending on individual circumstances’.17 The MoUs regarding expulsion signed by 15

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Jean-Pierre Cassarino, ‘Informalizing Readmission Agreements in the eu Neighbourhood’ (2007), The International Spectator 42. The other two types of bilateral arrangements encompassed in the ‘agreements linked to readmission’ category are standard readmission agreements and arrangements for technical and police cooperation aimed to push migrants and refugees back before their actual arrival at the border. For a survey of developments on the use of diplomatic assurances by European governments and domestic jurisprudence, see, Amnesty International (ai), Dangerous Deals: Diplomatic Assurances in Europe (Report 2010) 18. On the practice of the us and Canada, see, e.g., Aristoteles Constantinides, ‘Transjudicial Dialogue and Consistency in Human Rights Jurisprudence: a Case Study on Diplomatic Assurances against Torture’ in Ole Kristian Fauchald and André Nollkaemper (Eds.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Oxford, Hart, 2012) 289–291; Ashley Deeks, Promises not to Torture: Diplomatic Assurances in us Courts (American Society of International Law 2008); ‘State Department Legal Advisor Testifies regarding Diplomatic Assurance’, 102(4) ajil 882–884. Ninth Report of the Foreign Affairs Committee (House of Commons), 9 July 2008, para 65 accessed 22 June 2013.

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the uk with Ethiopia, Jordan, Lebanon, Libya are taken as illustrative examples.18 Whilst sometimes they reiterate international human rights commitments, other times they are more detailed by providing for specific post-return monitoring through prompt and regular visits from the representative of an independent body, who will conduct private interviews with the returned person.19 States retain, however, ample discretion in their implementation and acceptance. This paper asks if the implementation of diplomatic assurances – whether negotiated either independently or in the framework of MoUs – can undermine refugees’ access to protection. It is thus worth stressing that ‘access to protection’ is here understood as the combination of non-refoulement and an individual’s right to access asylum procedures and effective remedies before return. It does so through the lens of international refugee and human rights law. Although doctrine has long revolved around the debate on the legal status of diplomatic assurances under international law, in particular whether they are legally enforceable, space precludes an extended analysis on this issue. However, it is here worth noting that, in practice, States do not deem the legal status of diplomatic assurances – which is related to the existence of enforcement procedures – particularly relevant to the assessment of their reliability. Indeed, political motivations and friendly diplomatic relations play a greater role in the decision of States to cooperate for a safe removal.20 Whilst diplomatic assurances are generally negotiated to facilitate the transfer of individuals considered a threat to the public safety of the host 18 See, Memorandum of Understanding Concerning the Provision of Assurances in Respect of Persons Subject to Deportation, Ethiopia–uk, 12 December 2008 (Ethiopiauk mou); Memorandum of Understanding regulating the provision of undertakings in respect of specified persons prior to deportation, Jordan–uk, 10 August 2005 (Jordanuk mou); Memorandum of Understanding, Libya–uk, 18 October 2005 (Libya-uk mou); Memorandum of Understanding Concerning the Provision of Assurances in Respect of Persons Subject to Deportation, Lebanon–uk, 23 December 2005 (Lebanonuk mou). 19 See, uk-Jordan MoU, Application and Scope, para 4. Agreements concerning further details on the monitoring have also been added to the MoUs. 20 For a general and well-informed overview of the debate, see, Thomas Worster, ‘Between a Treaty and Not: a Case Study of the Legal Value of Diplomatic Assurances in Expulsion Cases’ (2012) 21(2) Minnesota Journal of International Law 253; Lena Skoglund, ‘Diplomatic Assurances against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments’ (2008) 77 njil 319; Gregor Noll, ‘Diplomatic Assurances and the Silence of Human Rights Law’ (2006) 7 mjil 10.

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country, they have also been used to remove asylum seekers whose claims had been rejected or who had been excluded from refugee status and complementary protection on national security grounds. As Section 3 illustrates, States have relied upon diplomatic assurances also to return asylum seekers whose claims had not been assessed yet. By capturing this anomaly of the system, this paper critically discusses it in view of highlighting the potential risks stemming from the extension of the use of diplomatic assurances also to people whose asylum applications have not been examined in their merits before removal. Finally, Section 4 summarizes the main findings and engages in a general critique of diplomatic assurances after an assessment of law (the content of the bilateral agreements at issue) and practice (the actual implementation of the agreements). It finds that the decision to return a person to unsafe countries, to deny access to effective remedies, to refuse asylum, or to exclude from refugee status and subsidiary protection are not taken on the basis of diplomatic assurances – whether formalized in MoUs or not. Nevertheless, their negotiation in individualized circumstances can influence, to a certain extent, these decisions, thereby hampering refugees’ access to protection. 2

Access to Protection: The Relationship between Refugee Rights and Diplomatic Assurances, in Principle and in Practice

This paper takes as units of analysis diplomatic assurances formalized within MoUs. As there is a dearth of jurisprudence of international human rights bodies involving the enforcement of MoUs, cases on the use of single diplomatic assurances under migration law proceedings are the focus of study. However, examples are also drawn from the numerous cases of diplomatic assurances exchanged in the framework of extradition. International courts have repeatedly underlined how diplomatic assurances alone are insufficient,21 and the government should conduct an independent risk-analysis to assess whether, at the practical level, the specific assurances delivered in an individual case alter the risk assessment. The next subsections combine a study of both law and implementation of the law. They examine whether the use of diplomatic assurances, in principle and in

21 See, Ben Khemais v Italy App no 246/07 (ECtHR, 24 February 2009), para 57; Toumi v Italy App no 25716/09 (ECtHR, 5 April 2011), para 51.

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practice, can hamper refugees’ access to protection, that it to say, non-refoulement, as well as access to fair asylum procedures, and effective remedies before removal. 2.1 Access to Asylum Procedures, in Principle Diplomatic assurances assume relevance for refugee status determination commissions, national courts, or international human rights bodies invested with the task of determining whether a particular asylum seeker is entitled to protection, and whether assurances eliminate the risk of prohibited treatment faced by an individual scheduled to be deported to her country of origin.22 Although diplomatic assurances do not affect the right to access asylum procedures, they can impact the eligibility to asylum. To put it more clearly, in principle they cannot be sought from the country of origin or the country of former habitual residence (in the case of stateless asylum seekers) of an asylum seeker whose application is in course of examination. However, assurances might be unilaterally given by the country of origin or former habitual residence when it has knowledge or suspicion that a national or a certain individual has sought asylum in another State. Additionally, a person may apply for asylum after the request for diplomatic assurances has been submitted in view of facilitating the return of a person whose presence is considered not conducive to the public good. What is important to stress is that, in all these different scenarios, the principle of confidentiality and the right to privacy categorically bar the host State from sharing information with the applicant’s home country pending a determination of the asylum claim in order to avoid that she or her family members are exposed to a risk of persecution, and that such information is used for purposes contrary to human rights law.23 In the same vein, the unhcr ‘Note on Procedural Standards for refugee status determination under the unhcr’s Mandate’ points out that every official who provides services to asylum seekers is ‘under a duty to ensure the confidentiality of information received from or 22 23

See, e.g., Committee against Torture, General Comment 1 on Article 3 of the Convention, un Doc A/53744, Annex IX, 52 (1998) para 7. Pursuant to Article 12 of the udhr and Article 17 of the iccpr, ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence […]’. Moreover, as the HRC recognizes in its General Comment 16, the principle of confidentiality requires that ‘effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process, and use it’. See, HRC, General Comment No. 16 on Article 17 of the iccpr (32nd session, 1988), para 10, HRI/GEN/1/Rev.1 at p. 23.

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about asylum seekers and refugees’.24 The fact that the applicants have made such a request should also be taken into consideration.25 Moreover, disclosure of information without the consent of the individual concerned shall be subjected to the approval of a Protection Staff member, and, in appropriate cases, the Department of International Protection (dip).26 Asylum seekers shall always know about their right to confidentiality and should be assured that the unhcr would not contact or share information with the country of origin about their condition or refugee status, unless they have expressly authorized the host country’s authorities to do so.27 At the eu level, the principle of confidentiality is explicitly recognized by Article 45(2)(b) of the Recast Procedures Directive,28 whereby Member States shall ensure that, in considering withdrawing the international protection status of a third country national in accordance with Article 14 of the Qualification Directive, some procedures shall be adhered to.29 For example, where information on an individual case is collected for the purposes of reconsidering international protection, a Member State shall guarantee that: […] It is not obtained from the actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a beneficiary of international protection whose status is under reconsideration, nor jeopardise the 24 25 26 27 28

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unhcr, Note on Procedural Standards for refugee status determination under the unhcr’s Mandate, 2–1. unhcr, ‘Asylum Processes (Fair and Efficient Asylum Procedures)’, Global Consultations on International Protection, EC/GC/01/12, 31 May 2001, para 50 (m). unhcr, Note on Procedural Standards for refugee status determination under the unhcr’s Mandate, 2–1. Ibid., See also, unhcr, Guidance Note on Extradition and International Refugee Protection (April 2008) 24. Article 45(1)(b) of the Recast Procedures Directive replaces Article 38(1)(d) of the 2005 Procedures Directive. See, Council Directive No. 2005/85/EC, [2005] on minimum standards on procedures in Member States for granting and withdrawing refugee status (Procedures Directive). On 12 June 2013, the European Parliament adopted the Recast Procedures Directive 8260/2/13 of 7 June 2013 on common procedures for granting and withdrawing international protection status (Recast Procedures Directive). Under Article 14 of the Qualification Directive, Member States shall revoke, end or refuse to renew the refugee status of a third-country national or a stateless person if, inter alia, he or she has ceased to be a refugee (Article 14(1); if after he or she has been granted refugee status, it is established by the Member State concerned that ‘he or she should have been or is excluded from being a refugee in accordance with Article 12’ (para 14(3)(a)).

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physical integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin. Therefore, a status-determination authority shall not confirm to the State of origin or other entities within the State that a certain individual is seeking protection or has already obtained asylum, even if the situation in the home country has changed. Such an obligation is valid also in those cases in which a person has been denied asylum.30 States shall abide by the confidentiality rule not only during the assessment of protection needs, but also during the examination of exclusion grounds. In this phase, it might be possible to share data about a particular asylum seeker for the sake of gathering intelligence information on an individual’s suspected terrorist activities. Although the exclusion procedure is not the core of this study, it is important to remember that ‘even in such situations, the existence of the asylum application should still remain confidential’.31 States cannot avail themselves of diplomatic assurances to deny access to asylum procedures, but can only rely on them as part of the factual elements  necessary for assessing the risk for the asylum seeker and the wellfoundedness of her fear of persecution if returned to her home country. Therefore, diplomatic assurances cannot give rise to a declaration of inadmissibility of an asylum claim or to restrictions of essential procedural safeguards, but can only be used to determine the eligibility criteria for the recognition of an individual as a refugee or as a person in need of complementary protection.32 If exchanged during the phase of assessment of her claim, assurances can involve violation of confidentiality and thus undermine the credibility of the entire process.33 The fact that the host country has received diplomatic assurances cannot constitute a basis for rejecting an asylum application – which should always be examined in its substance – but might, according to the circumstances, require a prioritization of the treatment of such claims.34 For example, applications 30 See, unhcr Submission, Inquiry into Asylum and Protection Visas for Consular Officials and the Deportation, Search and Discovery of Vivian Solon (2005), para 9 (unhcr Inquiry into Asylum and Protection Visas). 31 unhcr, Background Note on the Application of the Exclusion Clauses: Article IF of the 1951 Convention Relating to the Status of Refugees (4 September 2003) 540. 32 unhcr Note on Diplomatic Assurances, paras 41–42. 33 unhcr Inquiry into Asylum and Protection Visas, para 12. 34 unhcr Note on Diplomatic Assurances, para 46.

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concerning people suspected of terrorism or giving rise to possible considerations of exclusion under Article 1(f) of the Geneva Convention should not be considered as manifestly unfounded, but rather are better assessed on a priority basis by specialized exclusion units with designated Eligibility Officers operating within the institution in charge of asylum determination.35 As the unhcr emphasizes, diplomatic assurances cannot be limited only to eradicate a specific threat – such as the risk of torture – but must ‘effectively eliminate all reasonably possible manifestations of persecution in the individual case (emphasis added)’.36 The institution responsible for asylum determination shall ascertain, in other words, that the person in question would not be exposed to any other particular form of persecution beyond torture, for example, disproportionate punishment or discrimination. In conducting such an evaluation, the decision-making authority shall also verify that the entity issuing the assurance has effective control over the actions of those State or non-State actors the risk of persecution emanates from.37 An effective system of monitoring of the internal situation of the country at issue is, therefore, an essential requisite, although such a solution does not automatically provide the individual with mechanisms of enforcement against possible post-return violations of the assurances. Moreover, the evaluation of diplomatic assurances as a reliable criterion for eliminating the risk of persecution in the home country, and, therefore, denying asylum, shall be made in accordance also with international human rights law, which provides a wider protection, especially when the applicant falls within one of the exclusion clauses of the Geneva Convention.38 For instance, 35 36 37 38

Ibid.; see also, unhcr Note on the Application of the Exclusion Clauses, para 101. unhcr Note on Diplomatic Assurances, para 51. Ibid., paras 51–52. The exclusion provisions of the Refugee Convention are: the first paragraph of Article 1D whereby ‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commis­ sioner for Refugees protection or assistance’.; Article 1E which applies to ‘a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country’.; Article 1 F that applies to ‘any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations’.

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the ECtHR, the HRC, and the Committee against Torture have acknowledged the right of a person, prior to her removal, to have legal recourse to an independent reviewing body to challenge the transfer, and gauge the reliability of assurances obtained in response to allegations of torture.39 2.2 Access to Effective Remedies Asylum seekers, whose refugee status (or subsidiary protection) has been refused or who have been excluded from international protection on national security grounds, are entitled to an effective remedy, meant as the right both to appeal a negative decision within a reasonable time, and to remain in the territory awaiting the outcome of the appeal.40 In addition, independent judicial scrutiny of diplomatic assurances at national and international level may prevent an unlawful removal to torture. In general, the existence of diplomatic assurances is not one of the criteria relied upon by human rights bodies to find violations of the right to an effective remedy. For instance, in the Abu Qatada case,41 the ECtHR found that there was no violation of Article 13: the Court does not consider that there is any support in these cases (or elsewhere in its case law) for the applicant’s submission that there is an enhanced requirement for transparency and procedural fairness where assurances are being relied upon; as in all Article 3 cases, independent and rigorous scrutiny is what is required. Furthermore […] Article 13 of the Convention cannot be interpreted as placing an absolute bar on domestic courts receiving closed evidence, provided that the applicant’s interests are protected at all times before those courts.42 In the great majority of cases which are the object of the present review concerning deportation with assurances, the ECtHR has recorded no breach of 39 See, Agiza v Sweden, Communication No. 233/2003, un Doc. CAT/C/34/D/233/2003 (2005) para 13.7. 40 unhcr Executive Committee, Conclusion No 8, Determination of Refugee Status, CCVIII, 1977, paras 6–7. 41 Othman (Abu Qatada) v uk, App No 8139/09 (ECtHR,17 January 2012) (Abu Qatada). For an analysis of the Abu Qatada case, see, inter alia, C Michaelsen, ‘The Reinassance of Refoulment? The Othman (Abu Qatada) Decision of the European Court of Human Rights’ (2012) 61(3) International and Comparative Law Quarterly; M Giuffré. ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2(2) International Human Rights Law Review. 42 Ibid., para 219.

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Article 13, owing to the fact that the decision to expel an individual after rejection of her asylum claim or the application of an exclusion order had been reviewed by a domestic court of appeal. Therefore, the exchange of diplomatic assurances should not impair the right to an effective remedy as long as a person (including an asylum seeker who has either been rejected or excluded from refugee status/subsidiary protection) has been allowed both to challenge the expulsion decision and to remain in the territory waiting the outcome of the appeal.43 In those few cases where the ECtHR found violations of Article 13, responsibility was not attributed to the existence of diplomatic assurances per se, since deportees are always entitled to challenge their return decision. Breaches of rights were rather caused by lack of automatic suspensive effect of the appeal to set aside an expulsion order that could produce potentially irreversible effects for the removed individual.44 In lieu of a rigorous and effective scrutiny of the claim, an extreme urgent procedure can reduce the rights of the defence and the examination of the complaint to a minimum.45 2.3 Access to Fair Asylum Procedures and Effective Remedies, in Practice This Section intends to illustrate how seeking diplomatic assurances during the asylum determination process can contribute to a violation of the procedural safeguards of asylum mechanisms, such as the principle of confidentiality, thus affecting the final outcome of the proceedings.46 Although a detailed analysis of the procedural and substantive aspects of asylum determination is not at issue here, it is worth noting that diplomatic assurances have been progressively entering into the evidentiary assessment process. Many cases addressed by national courts have raised the criticism of human rights circles because of the fact that assurances against torture were sought prior to completion of asylum procedures, thus violating the principle of confidentiality.47 A review of practice is thus herein carried out. 43 44

45 46

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unhcr Conclusion no 8, paras 6–7. See, e.g., Chahal v uk (1997) 23 ehrr 413, paras 153–154; Soldatenko v. Ukraine, App no. 2440/07 (ECtHR, 23 October 2008) paras 82–83; Muminov v Russia, App no. 42502/06 (ECtHR, 11 December 2008) paras 102, 105; Abdulazhon Isakov v Russia App no 14049/08 (ECtHR, 8 July 2010) paras 136, 138–139. See, e.g., MSS v Belgium and Greece, paras 386–389. As explained by the unhcr, the basis of the right to confidentiality is the right to privacy enshrined in Article 12 of the udhr and Article 17 of the iccpr. See, unhcr Inquiry into asylum and protection visas. For a review of these cases, see, hrw, Commentary on State Replies cddh Questionnaire on Diplomatic Assurances (March 2006) accessed 22 June 2013.

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The first case examined in this Section concerns the expulsion of Mr Sihali from the uk to Algeria.48 In contesting the transfer of his client, the counsel of the applicant during the appeal before siac attacked the decision to seek and rely on diplomatic assurances. They were deemed, indeed, an integral part of the immigration decision to refuse asylum to Mr Sihali, as witnessed by the refusal letter of 16 January 2009, which makes express reference to the Note Verbale 08/08 between the uk and Algeria.49 Because assurances shall not be sought in the case of an ordinary asylum seeker who is not a national security suspect, ‘the Secretary of State has deviated from the publicly understood position he previously held, not to seek assurances in asylum cases in the absence of a threat to national security “or other major public interest.”’50 However, as the unhcr recognizes, even if ‘in exceptional circumstances, contact with the country of origin may be justified on national security grounds […] the existence of the asylum application should not be disclosed’.51 Between 2005 and 2006, the then Dutch Minister for Alien Affairs and Integration, Rita Verdonk came under pressure in parliament following a report by a current affairs programme (Netwerk) in June 2005.52 According to the programme, the Congolese secret service (dgm, which was also in charge of border control) had been given confidential information about its own nationals whose asylum applications in the Netherlands had failed. The fact that Minister Verdonk let Congolese authorities know that these people had applied for asylum exposed the returnees to the risk of persecution. A special commission (Commission Havermans), in charge of investigating the issue, confirmed in December 2005 that sufficient information likely to identify the persons as asylum seekers had been provided to the Congolese government.53 A string of other examples, drawn from international human rights case-law and circumscribed to the phase of access and assessment of protection claims, can be of additional illustrative guidance, as the following sub-sections will demonstrate. 48 Sihali v sshd, sc/38/2005. 49 Ibid. 50 Ibid. 51 unhcr, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1f of the 1951 Convention relating to the Status of Refugees (2003) 501. 52 I would like to thank Prof. Elspeth Guild and Dr Karina Franssen for bringing this case to my attention. 53 For more information on the ‘Congolese case’, see the following website: accessed 23 November 2012.

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2.3.1 The Committee against Torture and the HRC The destiny of Mr Agiza and Mr Alzery crossed when these two Egyptian nationals arrived in Sweden and applied for asylum. Mr Agiza alleged he was persecuted and tortured in Egypt on account of his activities in the Islamic movement. In 1999, when he fled to Iran, the Egyptian Superior Court Martial convicted him of terrorism in absentia. Fearing a possible readmission to Egypt, he abandoned Iran, and on 23 September 2001, during a transit stop through Stockholm, he applied for asylum together with his family. Similarly, Mr Alzery was subjected to harassment and arrest in Egypt for his involvement in an Islamic movement opposing the Egyptian government. After fleeing to Saudi Arabia and Syria, he eventually landed in Sweden in 1999. The Swedish Migration Board determined that Mr Agiza and Mr Alzery could have a well-founded fear of persecution if returned to Egypt. Nevertheless, the case was turned over to the government based upon secret evidence provided to the Migration Board by the Swedish Security Police according to which Mr Agiza had a leading role in the terroristic activities of an organization, while Mr Alzery represented a threat for the security of the nation. They were excluded from refugee protection and the enforcement of the return procedures was so swift that no possibility to challenge both exclusion and the expulsion decision was in fact available for the two asylum seekers. They were, therefore, deprived of their right to an effective remedy before removal, also on account of the fact that no possibility was given to an international court to assess the sufficiency of the diplomatic assurances obtained by Egyptian authorities. Although the decision of exclusion from refugee status regarding Mr Agiza and Mr Alzery was issued on 18 December 2001, the Swedish government entered into bilateral negotiations with the Egyptian government in early December by obtaining from it assurances of ‘full respect to their personal and human rights’.54 By seeking diplomatic assurances on the treatment of the two men while their asylum applications were still under way, Swedish authorities breached the principle of confidentiality whereby no information can be given to the government of the country of origin – the source of fear for the applicant. The assurances sought from the Egyptian government were, thus, deemed sufficiently credible to secure compliance with Sweden’s human rights obligations. In the cases of Mr Agiza and Mr Alzery, exclusion from refugee status, which resulted in refoulement, came about without a sufficiently reasoned determination of the asylum claim and without any information about the security 54

Alzery v Sweden, CCPR/C/88/D/1416/2005, HRC, 10 November 2006 paras 3–7.

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grounds leading to rejection. On the same day, the two men were repatriated to Egypt where they alleged to have undergone torture and inhuman treatment. Swedish, usa, and Egyptian security agents were all present at the Bromma airport during the apprehension of the two men, whose bodies were searched in a very intrusive way.55 Moreover, the Security Police file reports the following information: first, the date for the decision on the asylum application was settled for 18 December while the plane supplied by the American Central Intelligence Agency (cia) to expel the two men was booked for 19 December; second, these decisions were taken at the highest level in the Swedish Foreign Affairs Ministry after consultation with the Security Police and Migration Board.56 In 2003 and 2005, the Committee against Torture and the HRC found that Sweden had violated the cat and the iccpr for both subjecting the two applicants to inhuman and degrading treatment, and for transferring them to a country where they were allegedly mistreated.57 Moreover, Mr Agiza was deprived of his right to an effective remedy, since misleading information on the rejection of the asylum application was provided by Swedish authorities to his legal advisers. The reason for such a subtle manoeuvre was to prevent international human rights bodies, such as the Committee against Torture or the ECtHR from issuing a staying order before enforcement of the expulsion decision could take place.58 55

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Despite the cold of the Swedish winter, their clothes were cut off their bodies; they were handcuffed, chained to their feet, drugged per rectum with some form of tranquilliser, and placed in diapers. They were then dressed in overalls and escorted to the plane, blindfolded, hooded, and barefoot. See, Alzery v Sweden, para 3–11. Elspeth Guild, ‘Asymmetrical Sovereignty and the Refugee: Diplomatic Assurances and the Failure of Due Process. Agiza v Sweden and Alzery v Sweden’ in James C Simeon, Critical Issues in International Refugee Law. Strategies toward Interpretative Harmony (Cambridge University Press 2010) 137–138. Although their family members denounced clear signs of torture and the shocking state of the prisoners, the Swedish Ambassador in Egypt, who offered them visits time by time (not in private), reported that no evidence of torture was found. And when Mr Alzery complained about inhuman treatment in front of the diplomat and the Egyptian warden, the latter took notes and after a while Mr Alzery was transferred to another prison where he was seriously tortured. See, Alzery v Sweden (unhrc submission). The Parliamentary Ombudsman, A Review of the Enforcement by Security Police of a Government Decision to Expel two Egyptian Citizens, Adjudication Number 2169–2004, 22 March 2005, Section 2.4.2. The proceedings before the Committee against Torture and the HRC concluded with a compensation of sek 3 million to Mr Agiza and Mr Alzery and the establishment of an independent immigration court with power to review expulsion decisions, including security related deportations.

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According to the Committee against Torture, Article 3 of the cat implies the right to an effective, independent, and impartial review of the decision to expel or remove. The Committee found, therefore, that: The absence of any avenue of judicial or independent administrative review of the Government’s decision to expel the complainant does not meet the procedural obligation to provide for effective, independent and impartial review required by Article 3 of the Convention.59 Mr Agiza was not given sufficient time to file a complaint before a Swedish Court or an international body prior to removal. Therefore, the Committee held that there was an express breach of Article 22 to underline that all remedies (against the exclusion from refugee status and the expulsion decision) shall have been exhausted before removal. Likewise, the HRC has interpreted Article 2 of the iccpr as requiring State parties to provide administrative and judicial review of deportation orders to avoid violations of the principle of non-refoulement enshrined in Article 7 of the iccpr.60 Under Article 2(3) of the iccpr, Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) to ensure that the competent authorities shall enforce such remedies when granted. 2.3.2 The ECtHR In this analysis of State practice, the ECtHR offers a host of instructive cases. In Khaydarov v Russia, for example, the ECtHR held that, if the order to extradite the applicant to Tajikistan were to be enforced, there would be a violation of Article 3 of the Convention.61 The applicant was an ethnic Uzbek who fled Tajikistan to move to Russia where, on 17 June 2008, he applied for asylum claiming that the Tajik authorities had persecuted him on ground of his ethnic 59 60 61

Agiza v Sweden, para 13.8. Ibid., para 11.8. Khaydarov v Russia, para 164.

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origin. However, his asylum request was rejected, confirmed also by the appeal against the decision at first instance. In several occasions, on 4 and 26 February 2009 and on 12 March 2009, the Moscow City Court sent requests for information to the Russian and Tajik Ministries of Foreign Affairs concerning the applicant’s allegations of a risk of ill-treatment, and postponed a hearing on the appeal against the extradition order pending the examination of the asylum claim.62 As we can read in the text of the ECtHR’s decision, [o]n 24 March 2009 the Russian Ministry of Foreign Affairs informed the Moscow City Court that it had no information concerning any political motives for the applicant’s prosecution and noted that Tajikistan had ratified nearly every major international human-rights instrument, including the iccpr and the un Convention against Torture. Only two days after, the Moscow City Court upheld the judgment on appeal against the refusal of refugee status. On 10 April and on 26 May 2009, the Tajik Prosecutor General gave assurance that the applicant would not be persecuted on political or religious grounds, and that Tajikistan had ratified the main international human rights instruments. Called to re-examine the extradition order, the Moscow City Court upheld the previous judgement affirming that the applicant was a Tajikistani national with no refugee status and no prosecution for political or religious reasons.63 It also argued the assurances given by the Tajik Prosecutor General’s Office sufficed to exclude the risk of illtreatment in the applicant’s case. On 30 July 2009, the Supreme Court upheld the decision and the extradition order became final.64 Despite the fact that in cases of extradition, the requesting State is the home country of the individual in question, and it is privy to the person whereabouts, confidentiality should, however, be respected when commencing asylum proceedings. Despite the fact that information related to extradition may have a bearing on the eligibility of the person to asylum, the decision on asylum and the decision on the extradition request should always be conducted in parallel and constitute two separate procedures. Whether diplomatic assurances were one of the major elements the Russian deciding authority relied upon to determine the refusal of the asylum request is a matter of speculation. But what is certain is that diplomatic assurances were sought during the asylum determination process of Mr Khaydarov, thus 62 63 64

Ibid., paras 26, 28. Ibid., para 37. Ibid., paras 37–38.

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violating basic rules of fairness requiring that no information on the applicant is shared with the country of origin. The outcome of the extradition proceedings was affected accordingly. 2.4 Non-refoulement, in Principle In order to avoid refoulement, asylum seekers are entitled not to be expelled pending a final determination of their status.65 Under Article 33(1) of the Geneva Convention, States cannot transfer a person to a territory where she may face persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion, or where she may be onward removed to another State where there exists a risk of persecution for one of the five aforementioned reasons.66 The standard of scrutiny is slightly different from instrument to instrument. For example, according to the Committee against Torture, the complainant must prove that ‘there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture’.67 The HRC affirms, instead, that a person cannot be deported to a country where she might face a real risk of being subject to torture or cruel, inhuman and degrading treatment.68 ‘Substantial grounds’ shall exist that the risk of torture is a necessary and foreseeable consequence of the individual’s removal.69 When dealing with a case of expulsion/removal, the ECtHR has to decide if ‘there are substantial grounds for believing that the person in question, if expelled, would face a real risk of being subjected to torture or to inhuman and degrading treatment or punishment in the receiving country (emphasis added)’.70 On account of the difficulty expressed by Judge Zupancic, of proving

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67 68 69 70

The principle of non-refoulement must, therefore, be respected either with regard to persons whose refugee status has been granted by the unhcr, or by the asylum authorities of the host State, or, by the authorities of a country other than the State that wants to remove the person in question. According to the unhcr, the recognition of the refugee status should be binding for the State authorities dealing with extradition requests. Additionally, a country receiving an extradition request should always ensure that a decision on the transfer of a refugee is consistent with its obligations on non-refoulement under international human rights and refugee law. See, unhcr Guidance Note on Extradition, paras 52–53. Article 3 of the cat. HRC, General Comment No. 20, para 9. HRC, T. v. Australia, Comm 706/1996, 4 November 1997, paras. 8.1 and 8.2; arj v. Australia, Comm 692/1996, 28 July 1997, para 6.9. Soering v uk, Series A, no 161, App no 14038/88, para 88; Chahal v uk, para 74.

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‘a future event to any degree of probability because the law of evidence is a logical rather than a prophetic exercise’,71 no duty exists for the applicant to substantiate ‘beyond any reasonable doubt’ that she would suffer ill-treatment. If, in this context, diplomatic assurances have been provided, they could be relied upon only as factual elements for conducting such a determination on the safety of the receiving country in the individual case. If assurances cannot mitigate the risk of persecution and ill-treatment, the non-refoulement obligation must be fully adhered to by the host State. However, under Article 33(2) of the Geneva Convention, a person may be returned to her country of origin if an individualized finding is made that she constitutes a present or future serious threat to the security of, or to the community of, the host State as a consequence of her conviction of a crime of a particularly grave nature.72 In any case, refoulement must be necessary and proportionate, and must represent the last possible resort when the risk for the host country far outweighs the risk of harm for the returned person.73 Moreover, the decision to apply Article 33(2) shall always be taken on the basis of a set of procedural safeguards, such as the right to be heard and to appeal, as well as the right to be granted sufficient time to seek admission to another State, thus avoiding being sent back to the same country where persecution is feared.74 The protection afforded by human rights law is undoubtedly broader than that provided by refugee law, since non-refoulement applies to any persons whose life and liberty can be threatened in the receiving country, beyond the five grounds of persecution set in the Geneva Convention. Diplomatic assurances may thus be accepted only if they offset the risk to the returned person, and if the sending State, in all good faith, assumes that the element of trust sufficed to consider assurances as reliable instruments. In order to be effective, the authorities of the receiving country must be in the position to ensure de facto compliance with the assurance itself. For example, this criterion cannot 71 72

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Saadi v Italy, para 1 (Concurring Opinion Judge Zupancic). Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in Erika Feller, Volker Türk and Frances Nicholson (eds) Refugee Protection in International Law: unhcr’s Global Consultations on International Protection (Cambridge University Press 2003) paras 164–166; see also, the Commentary to Article 33 by Atle Grahl-Madsen, in unhcr (ed), Commentary on the Refugee Convention (Article 2–11, 13–37) (unhcr 1963, republished 1997) para 8. unhcr Note on Diplomatic Assurances, para 13; see also, unhcr, Factum of the Intervenor, unhcr, Suresh v the Minister of Citizenship and Immigration; the Attorney General of Canada, scc No 27790 (unhcr Suresh Factum) in 19(1) ijrl (2002) paras 74–84. Articles 33(2) and 33(3) list a set of safeguards. See also unhcr, Note on Diplomatic Assurances, para 14.

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be said to be satisfied if State authorities are not able to supervise the activity of the security forces of a prison where the deportee is kept in custody, and to ensure compliance with the given assurance.75 2.5 Non-refoulement, in Practice Diplomatic assurances are not explicitly mentioned in international human rights treaties. However, States regularly use them as a means to demonstrate compliance with their non-refoulement obligations, and as a consequence, relevant human rights treaty monitoring bodies rely on assurances in the preremoval risk assessment. MoUs and individualized diplomatic assurances do not provide the legal basis for the return of a person to her country of origin. Nonetheless, in numerous cases, national and (mostly) international courts have found that, despite assurances, a violation of the principle of nonrefoulement occurred or would occur upon removal to a third country. While the present review revolves around the case law of international human rights bodies, some domestic decisions regarding transfer by means of MoUs are also brought into the analysis. In the DD and AS v The Secretary of State for the Home Department,76 siac blocked the removal of two individuals from the uk to Libya by stating that, although assurances unlikely would be transgressed, the risk that they would be ill-treated was not ‘well-nigh unthinkable’.77 Detained under immigration powers, the appellants were considered a threat to the national security of the host State. While Mr DD was alleged to be a member of the Libyan Islamic Fighting Group engaging in terrorist activities,78 Mr AS claimed asylum ‘on the basis that he and his family had been persecuted and tortured by the Gaddafi regime because of their true Islamic views’.79 Formally, Libyan domestic law prohibited torture and subjected perpetrators to criminal sanctions. Nevertheless, torture was de facto practiced, as ngos documented only few months before the signature of the uk-Libya MoU.80 Therefore, in reviewing the case, siac noted that individual diplomatic assurances negotiated under the mou between Libya and the uk lacked efficacy in the Libyan context and, as such, could not be considered a reliable accord.81 75 See, Chahal v the uk, para 105. 76 DD and AS v sshd. 77 Ibid., para 371. 78 Ibid., para 4. 79 Ibid., para 6. 80 Braswell 2006, 21–22. 81 DD and AS, para 371.

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siac found flawed the argument that Libya would honour the assurances in the interest of preserving amicable political relations. Moreover, the possibility to leave a violation undetected as a consequence of weak monitoring mechanisms brought contingency to the view that ‘there [was] too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MoU to the uk’s attention’.82 In the Youssef v The Home Office case,83 the assurances were sought because of ‘evidence that detainees were routinely tortured by the Egyptian Security Service’.84 However, the British request for an assurance concerning prison visits was declined by the Egyptian government ‘on the ground that they would constitute interference in the scope of the Egyptian judicial system and an infringement of national sovereignty’.85 Mere suspicion of, or a conviction for a particular crime cannot as such justify exclusion from protection.86 The seriousness of the security threat must be individually assessed and be proportional to the risk for the person intended to be removed.87 2.5.1 The Committee against Torture and the HRC The decisive issue is not whether assurances have been given, but whether they can be used as an instrument to lower the risk the individual would face, at the material time of removal.88 International bodies have often found assurances inadequate in trimming down the personalized risk to a level where there is no real risk or ‘substantial grounds’, especially where no effective monitoring mechanism has been set out, when they have been phrased in a very indeterminate and inaccurate manner, or when their strength has been grounded only on the ratification of main international human rights instruments by the receiving country.89 At the same time, however, international human rights bodies have not banned outright the use of diplomatic assurances as a tool to enhance overall protection by either eliminating the risk of torture altogether or reducing such a risk below the threshold required to avoid refoulement. 82 83 84 85 86 87

Ibid., para 428. Youssef v The Home Office [2004] ewhc 1884 (Youssef). Ibid., para 6. Ibid., para 14. Lauterpacht and Bethlehem 2003, 118. Guy S Goodwin Gill and Jane McAdam, The Refugee in International Law, (3rd edn, Oxford University Press 2007) 239–241. 88 See, Chahal v uk, para 105; Saadi v Italy, para 148; Agiza v Sweden, para 13.4. 89 Schmid 2011, 226.

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In the Agiza v Sweden case, the Committee against Torture held that the deportation with assurances did not reduce the manifest risk of torture and ill-treatment, thus amounting to a violation of Article 3. Despite the assurances that the individual would not be ill-treated and would be granted a fair trial upon return, the Committee determined that: It was known, or should have been known, to the [Swedish] authorities […] that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons.90 Even without a finding on the treatment of Mr Agiza in his home country, where torture was widespread, the Committee against Torture argued that a violation of non-refoulement could be foreseen on account of his treatment on Swedish soil where also American and Egyptian authorities participated to the apprehension, intimate body search, and forced deportation of the applicant at Bromma airport. By the same token, the HRC held that the efforts placed by Sweden to obtain diplomatic assurances from Egypt should have warned the sending government of the risk of torture and inhuman or degrading treatment if Mr Alzery were returned there. Violation of Article 7 was indeed recorded. In Alzery and Agiza, the view of the Committee against Torture and the HRC that assurances were not sufficient to reduce the risk of torture upon removal,91 seemed to concede that international human rights treaty monitoring bodies would be prepared to accept assurances if differently modelled through supervision and enforcement mechanisms. For example, in the Pelit v Azerbaijan case concerning the issuance of diplomatic assurances by Turkey to Azerbaijan, the Committee against Torture argued that: While a certain degree of post-expulsion monitoring of the complaint’s situation took place, the State party has not supplied the assurances to the Committee in order for the Committee to perform its own independent assessment of their satisfactoriness or otherwise […] nor did the State party detail with sufficient specificity the monitoring undertaken and the steps taken to ensure that it both was, in fact and in the complainant’s perception, objective, impartial and sufficiently trustworthy.92

90 Agiza v Sweden, para 13.4. 91 Ibid.; Alzery v Sweden, paras 11.3–11.5. 92 Pelit v Azerbaijan, Comm No 281/2005 CAT/C38/D/281/2005, 5 June 2007, para 11.

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In my view, recalcitrant countries, which notoriously practice torture, especially in respect of detained suspected terrorists, cannot, in any manner whatsoever, be trusted as safe havens, even when detailed and apparently convincing diplomatic assurances are supplied. Another noteworthy case is Zhakhongir Maksudov and Adil Rakhimov, Yakub Tashbaev and Rasuldzhon Pirmatov v Kyrgyzstan concerning the extradition to Uzbekistan of four rejected refugees charged in absentia of terrorism. In the Committee’s view, the applicants’ extradition amounted, inter alia, to a violation of Article 7 of the Covenant. Indeed, [t]he procurement of assurances from the Uzbek General Prosecutor’s Office, which, moreover, contained no concrete mechanism for their enforcement, was insufficient to protect against such risk. The Committee reiterates that at the very minimum, the assurances procured should contain such a monitoring mechanism and be safeguarded by arrangements made outside the text of the assurances themselves which would provide for their effective implementation (emphasis added).93 The Committee noted that the assessment of the risk of refoulement prohibited by Article 7 of the iccpr should be conducted in the light of the information that was known or ought to have been known at the time of extradition, and ‘[did] not require proof of actual torture having subsequently occurred, although information as to subsequent events is relevant to the assessment of initial risk’.94 The existence of assurances is one of the elements relevant to the overall determination of the risk. Since public reports had widely described the inhuman treatment meted out to detainees, especially those held for political and security reasons, a real risk of torture could be envisaged. In Valetov v Kazakhstan, the HRC concluded that the decision of the Kazakh authorities to extradite the applicant to Kyrgyzstan amounted to a violation of Article 7 of the Covenant as the procurement of general assurances from the Prosecutor General of Kyrgyzstan could not be considered an effective mechanism protecting the author from the risk of torture. According to the Committee, such a failure was attributable to the absence of practical arrangements in the assurances and to a lack of sufficient efforts by Kyrgyzstan to ensure the implementation of the assurances.95 93 94 95

Zhakhongir Maksudov and Adil Rakhimov, Yakub Tashbaev and Rasuldzhon Pirmatov v Kyrgyzstan, CCPR/C/93/D/1461,1462,1476 & 1477/2006 (HRC, 31 July 2008) para 12.5. Ibid., para 12.4. Valetov v Kazakhstan Comm no 2104/2011 (HRC, 17 March 2014) para 14.6. In this case, the applicant did not apply for asylum, but tried to prove that he had already been heavily

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2.5.2 The ECtHR The ECtHR has always attached greatest importance to the human rights record of the receiving country in order to assess the safety of removals, especially when carried out in the framework of national security decisions. Although it has reviewed cases involving diplomatic assurances against torture and ill-treatment prior to 2008,96 in the well-known Saadi v Italy case, the Court laid out some key criteria for gauging reliability of diplomatic assurances on a case by case basis. The respondent government justified expulsion of Mr Saadi to Tunisia on the basis of diplomatic assurances according to which the requested State had given ‘an undertaking to apply in the present case the relevant Tunisian law […] which provided for severe punishment of acts of torture or ill-treatment and extensive visiting rights for a prisoner’s lawyer and family’.97 The Tunisian Ministry of Foreign Affairs provided the assurance in the form of a Note Verbale the day before the Grand Chamber hearing. The ECtHR pointed out that the individual ‘real risk’ of ill-treatment for the deportee could not be obliterated by such a generic note, which was limited to observing that Tunisian laws respected the rights of prisoners, and that Tunisia had acceded to the relevant international treaties and conventions.98 The Court held that if the decision to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention. It also insisted on the importance of looking beyond the oath of the receiving State and examining its actions and human rights track record. In this regard,



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tortured in Kyrgyzstan while in detention for an ordinary crime, and that extradition to Kyrgyzstan would lead again to his arrest and torture, which is systematically practiced by the authorities of the requesting State (para 3.1). See, e.g., Shamayev and Others v. Georgia and Russia App no 36378/02 (ECtHR, 12 April 2005) para 153. In this extradition case, the Court did not find violation of Article 3, and deemed acceptable to rely on assurances against torture and ill treatment from Russia; see also, Burga Ortiz v Germany App no 1101/04 (ECtHR, 16 October 2006) 9–10; Sanchez Munte v Germany App no 43346/05 (ECtHR, 16 October 2006) 7–8. In all these cases, the Court held that Germany did not violate Article 3 by extraditing the applicant. In their dissenting opinion to the Mamatkulov v Turkey decision, Judges Bratza, Bonello and Hedigan strongly criticized the decision of the Court for the weight given to the assurances. They also stressed that ‘the weight to be attached to assurances emanating from a receiving State must in every case depend on the situation prevailing in that State at the material time’. See, Mamatkulov v Turkey Apps nos 46827/99 and 46951/99 (ECtHR, 4 February 2005) 295, 303, 322 and para 10 of the dissenting opinion. Saadi v Italy, para 116. Ibid., para 147.

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[t]he existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of illtreatment where […] reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.99 The Court also added that the fact the that Tunisian authorities had given the diplomatic assurances requested by Italy, [w]ould have not absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatments prohibited by the Convention […]. The weight to be given to the assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.100 The ECtHR reached the same conclusion in the Ben Khemais v Italy case and affirmed that it is up to the Court to determine, on a case by case basis, whether it can be firmly established that diplomatic assurances provide effective protection against ill-treatment.101 Despite Tunisian authorities issued a Note Verbale more detailed than in Saadi, Mr Ben Khemais was not allowed to receive visits from Italian diplomatic authorities or the foreign lawyer representing him before the ECtHR.102 99

Ibid., In many other cases, the Court was not persuaded that the existence of assurances could guarantee effective protection against violations of Article 3 when there was a dismal human rights situation with systematic use of torture in the readmitting country, regardless of the formal ratification of human rights instruments. See, e.g., Khaydarov v. Russia, App no 21055/09 (ECtHR 20 May 2010) para 105, 111 and 115; Ismoilov v Russia, App no 2947/06, para 30 (ECtHR 24 April 2008) para 127; Soldatenko v Ukraine, App no 2440/07 (ECtHR 23 October 2008). 100 Saadi v Italy, paras 147–148. The Courts makes reference to the Chahal v uk case, para 105. 101 Ben Khemais v Italy, para 57. In many other cases, the Court asserts its competence in reviewing assurances. See, e.g., Ryabikin v Russia App no 8320/04 (ECtHR, 19 June 2008) para 119; Abdulazhon Isakov v Russia, para 111; Muminov v Russia, para 97. 102 Such a custodial condition de facto hindered the possibility for the detainee to access international human rights bodies and courts. The lack of enforcement mechanisms can also testify to the reluctance of the requesting and requested States to commit themselves to provide the deportee with an effective remedy against violations of his fundamental rights caused by the inhuman treatment inflicted by the authorities of the readmitting

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A crucial requirement for the effective implementation of diplomatic assurances rests on the capacity of the receiving State to exercise effective control over the whereabouts of the individual. Considering the way in which torture is secretly administered and the difficulty of obtaining information by the captive, national and international courts have at times halted extradition and deportation when they believed it to be highly unlikely that the government giving assurances, despite its good faith, was de facto able to enforce its undertakings. In the Chahal case, the ECtHR stated it was ‘not persuaded that the […] assurance would provide Mr Chahal with an adequate guarantee of safety’. This lack of confidence about the condition for removal was mainly due to the lack of sufficient control over the security forces of a certain prison.103 Instead, in Soering v uk, the key factor against extradition was the independence of the executive and the judiciary in the receiving State.104 Despite the friendly relations between the uk and the us, the Court, because of the independence of the judiciary, considered the assurances issued by the Federal Govern­ ment absolutely insignificant. Since Mr Soering was charged with an offence falling under the jurisdiction of the Commonwealth of Virginia, the Federal State was not competent to issue a binding diplomatic assurance. Additionally, even informing the judges of the wishes of the uk, at the stage of sentencing, could not prevent them from imposing the death penalty.105 Since Virginia courts could not bind themselves in advance to a certain result for a future decision, the risk of the death penalty being imposed could not be eliminated. Therefore, of essence is whether the government issuing the assurances is able to control the territory and any public official operating within its territory. Only if the responsible entity has the power to enforce the agreements and can be trusted in this role, can the assurances be used to assess the likelihood of a State’s compliance with a certain agreement. The diverse elements considered by the Court to assess the suitability of an assurance also demonstrate how the ratification of human rights instruments by the requested State

country. Reference to the lack of enforcement mechanisms as an element of inadequacy of diplomatic assurances was pointed out by the Committee against Torture in the Agiza v Sweden case, para 13.4. 103 For example, in the Chahal v uk case, the ECtHR recognized the lack of control by the Indian Federal Government over the Punjabi military forces. Chahal v uk, para 105. See also, the decision taken by a British Court in a case concerning extradition to Russia: The Government of the Russian Federation v Akhmed Zakaev, Bow Street Magistrates’ Court, Decision of Hon. T. Workman, 13 November 2003. 104 Soering v uk. 105 Ibid., para 97.

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or relevant domestic law is not sufficient to consider the receiving country safe for the individual in question. For instance, in the MSS v Belgium and Greece case concerning the intra-eu transfer of an asylum seeker under the Dublin system, the ECtHR establishes the refutability of the ‘presumption of safety’ and of the semi-automatic application of mutual trust: The Belgian government argued that in any event [the Belgian authorities] had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection where […] reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.106 After Saadi, the Court ruled on thirteen cases of individuals (generally alleged terrorists and suspects of criminal conspiracy linked to fundamentalist Islamist groups) who faced deportation or who had already been transferred by Italy to Tunisia under the auspices of diplomatic assurances. It determined in all but one case that removal of the applicants did or would violate Article 3.107 106 MSS v Belgium and Greece, para 353. See also, Violeta Moreno Lax, ‘Dismantling the Dublin System: MSS v Belgium and Greece’, (2012) 14 ejml, 29. 107 See, Toumi v Italy, para 85; Trabelsi v Italy App no 50163/08 (ECtHR, 13 April 2010) para 52; Sellem v Italy App no 12584/08 (ECtHR, 5 March 2009) para 43–44; Abdelhedi v Italy App no 2638/07 (ECtHR 24 March 2009) para 50–51; Ben Salah v Italy App no 38128/06 (ECtHR, 24 March 2009) paras 39–40; Bouyahia v Italy App no 46792/06 (ECtHR, 24 March 2009) paras 42–43; cbz v Italy App no 44006/06 (ECtHR, 24 March 2009) paras 43–44; Darraji v Italy App no 11549/05 (ECtHR, 24 March 2009) paras 66–67; O v Italy App no 37257/06 (ECtHR, 24 March 2009) paras 44–45; Soltana v Italy App no 37336/06 (ECtHR, 24 March 2009) paras 46–47; Hamraoui v Italy App no 16201/07 (ECtHR, 24 March 2009) paras 45–46; Ben Khemais v Italy, paras 61–65. In the Cherif case, the Court did not address the application of Article 3 as the applicant failed to provide a power of attorney document authorizing the named party to pursue the case. See, Cherif v Italy App no 1860/07 (ECtHR, 7 April 2009) paras 50–51. In Gasayev v Spain, the Court accepted assurances as sufficient to eliminate the risk of refoulement under Article 3 thanks to adequate detention conditions in Russia and monitoring by Spanish diplomatic personnel. See, Gasayev v Spain App no 48514/06 (ECtHR, 17 February 2009) Also in Bakoyev v Russia, the ECtHR held the applicant’s extradition to Uzbekistan – which had provided diplomatic assurances on

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The Court declared that no trust could be placed in a country with a dismal human rights record of monitoring and protection of detained against torture and mistreatment, especially when sources have reported unlawful practices resorted to or tolerated by the authorities of that State.108 In rejecting the reliability of the assurances provided by the requesting State, the Court added in Gayratbek Saliyev v Russia that: It has not been demonstrated before the Court that Kyrgyzstan’s commitment to guaranteeing access to the applicant by Russian diplomatic staff would lead to effective protection against proscribed ill-treatment in practical terms, as it has not been shown that the aforementioned staff would be in possession of the expertise required for effective follow-up of the Kyrgyz authorities’ compliance with their undertakings. Nor was there any guarantee that they would be able to speak to the applicant without witnesses. In addition, their potential involvement was not supported by any practical mechanism setting out, for instance, a procedure by which the applicant could lodge complaints with them or for their unfettered access to detention facilities.109 A further crucial hurdle the Court noticed was down to the existence of the same formulaic assurances within a standardized document indicating the

the fair treatment of the transferee – would not give rise to a violation of Article 3 of the Convention. See, Bakoyev v Russia App no 30225/11 (ECtHR, 5 February 2013). 108 Violations of Article 3 of the Convention have been found, for example, in the following cases: Koktysh v Ukraine App no 43707/07 (ECtHR, 10 December 2009) para 64; Klein v Russia App no 24268/08 (ECtHR, 1 April 2010); Mamadaliyev v Russia App no 5614/13 (ECtHR, 24 July 2014) paras 66–72; Kadirzhanov and Mamashev v Russia (ECtHR, 17 July 2014) paras 98–100; Akram Karimov v Russia App no 62892/12 (ECtHR, 28 May 2014) para 133–4; Gayratbek Saliyev v Russia App no 39093/13 (ECtHR, 17 April 2014) paras 67–8; Ismailov v Russia App no 20110/13 (ECtHR, 17 April 2014), paras 88–9; Izomkhon Dzhurayev and Others v Russia App no 1890/11 (ECtHR, 3 October 2013) paras 133–5; Sidikovy v Russia App 73455/11 (ECtHR, 20 June 2013) para 150. By contrast, in the Ahmad v uk case concerning extradition to the us, the Court argued that it ‘has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect of democracy, human rights and the rule of law’. It is here worth observing how the Court tended to minimize facts that could have contributed to compromise the us human rights record. See also, Ahmad v United Kingdom App no 24027/07 (ECtHR, 12 April 2012) para 179; Boumediene v Bosnia and Herzegovina App no 38703/06 (ECtHR, 18 December 2008); Al-Moayad v Germany App no 35865/03 (ECtHR, 20 February 2007). 109 Gayratbek Saliyev v Russia App no 39093/13 (ECtHR, 8 September 2014) para 66. See also, Nizomkhon Dzhurayev and Others v Russia App 31890/11 (ECtHR, 20 January 2014) para 133; Kadirzhanov and Mamashev v Russia Apps 42351/13 and 47823/13 (ECtHR, 17 July 2014) para 96.

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data of each single applicant, who had not yet been deported.110 Despite the fact that assurances for the two applicants who had already been removed were more specific, the Court found a violation of the principle of non-refoulement embodied in Article 3.111 Likewise, in Akram Karimov v Russia, the Court considered that the assurances given by the Uzbek authorities were couched in general terms and did not provide any evidence of the existence of enforcement and monitoring mechanisms.112 The Court found a violation of Article 3 also in El-Masri v fyrm, a recent case of extraordinary rendition.113 However, unlike the cases discussed above, no assurances against the risk of ill-treatment were sought before removal. The ECtHR found, therefore, the respondent State responsible for having transferred the applicant into the custody of the us authorities114 without ‘a legitimate request for his extradition or any other legal procedure recognized in international law for the transfer of a prisoner to foreign authorities […]. Furthermore, no arrest warrant had been shown to have existed at the time authorizing the delivery of the applicant into the hands of us agents’.115 The Court also maintained that Macedonian authorities: (i) had knowledge of the place where the applicant would be flown from the Skopje Airport; (ii) knew or ought to have known that there was a serious risk for the applicant to be exposed to treatment contrary to Article 3. Indeed, several reports, which were in the public domain before the actual transfer of Mr El-Masri, described the worrying condition of detention under the ‘rendition’ program and the violent interrogation methods used by the us authorities on person suspected of involvement in international terrorism.116 The salience of individualized and detailed assurances is reasserted with emphasis in the long-expected 2012 Abu Qatada v uk case, which represents a 110 See, Sellem v Italy , para 18 (assurances provided 3 January 2009); Cherif v Italy, para 26; Abdelhedi v Italy, para 17; Ben Salah v Italy, para 14; Bouyahia v Italy, para 16; cbz v Italy, para 17; Darraji v Italy, para 35; Soltana v Italy, para 205; Hamraoui v Italy, para 15; Ben Khemais v Italy, para 27. 111 For a comprehensive analysis of the jurisprudence of the ECtHR on diplomatic assurances, see, Alice Izumo, ‘Diplomatic Assurances against Torture and Ill-treatment: European Court of Human Rights Jurisprudence’ (2008) 42 Columbia Human Rights Law Review 233. 112 Akram Karimov v Russia App no 62892/12 (ECtHR, 28 May 2014) para 133. See also, Abdulkhakov v Russia App no 14743/11 (ECtHR, 2 October 2012) para 150. 113 El-Masri v Former Republic of Macedonia App no 39630/69 (ECtHR, 13 December 2012) (El-Masri v FROM). 114 Ibid., para 215. 115 Ibid., para 216. 116 Ibid., para 218.

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first opportunity for the Strasbourg judges to consider the uk’s practice of negotiation of MoUs for returning suspect terrorists to countries of origin. By contending that Abu Qatada could not be safely deported to Jordan, the ECtHR moved away from its previous jurisprudence and expanded the scope of nonrefoulement. It argued, indeed, that deportation with assurances would not be in violation of Article 3 of the Convention. Removal would rather result in a breach of Article 6 because of the real risk that evidence obtained through torture would be admitted at his retrial in Jordan, thus amounting to a ‘flagrant denial of justice’. Moreover, transgression of the right to counsel, the right against arbitrary arrest and detention, or to a fair trial may aggravate the risk of torture itself.117 In order to determine the quality of the assurances given and their reliability in light of the receiving State’s practice, the Court concluded that: (i) torture in Jordan remains ‘widespread and routine’; (ii) it continues to be practiced with impunity within a criminal justice system that ‘lacks many of the standard, internationally recognized safeguards to prevent torture and punish its perpetrators’; (iii) Jordan lacks a genuinely independent complaint mechanisms; (iv) it denies ‘prompt access to lawyers and independent medical examinations’.118 Nevertheless, by relying on the strong political relations between the uk and Jordan, the ECtHR reckoned diplomatic assurances negotiated in the framework of the 2005 MoU specific and comprehensive enough to remove any real risk of ill-treatment of Abu Qatada.119 It also added that the extent to which States fail to comply with international human rights obligations against torture is, at most, only one factor to be weighed in the assessment of diplomatic assurances’ reliability. States should not refrain from seeking assurances from countries that systematically violate human rights; otherwise ‘it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them’.120 Already in 1996, in the Chahal case, seven of the nineteen judges submitted a partly dissenting opinion upholding the position of the uk that in terrorism cases, where people are deported outside the territorial jurisdiction of the Council of Europe’s Member States, a balancing approach, between national security interests and the extent of the potential risk of the deportee in the State of destination, should be applied.121 117 118 119 120 121

Jones 2006, 33. Abu Qatada para 191. Ibid., para 194. Ibid., para 193. Chahal v uk, Joint Partly Dissenting Opinion, para 1. On the difficult interplay between, on the one hand, national security, and on the other hand, due process and the rule of law,

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Both the ECtHR and siac had to conclude that the Jordanian prosecutors refused to give an undertaking in advance that they would not use confessions obtained by torture. Consequently, the uk government did not receive minimum assurances on torture evidence, despite for more than 10 years Jordan had been under the pressure and spotlight of the international community. Considering, in addition, that transgression of the right to counsel, the right against arbitrary arrest and detention, and to a fair trial, more generally, may aggravate the risk of torture itself,122 I wonder how the ECtHR could unconditionally assume that a government ‘incapable of properly investigating allegations of torture and excluding torture evidence’123 was able to assure that a suspected terrorist would not be mistreated to extract a confession. To conclude, it is encouraging that, in November 2012, siac did not open the backdoor to refoulement by means of new assurances from Jordan – a country where torture is ‘systematic and routine’. Nevertheless, the general image of the ECtHR, one year after Abu Qatada, ends up to be that one of a tightrope walker. It is the image of a Court that nimbly (yet not always convincingly) keeps the equilibrium between, on the one hand, the effort to protect human rights within and beyond borders, and on the other hand, the exigency to uphold States’ concern to face terrorist violence by displacing as far as possible the ‘foreign-born threat’ and, as a consequence, any responsibility for human rights violations. 3

Diplomatic Assurances on Asylum Seekers Removable to ‘Safe Third Countries’?

Section  2 is the core of this paper and it provided the answer to the main research question. It showed how an individual subjected to a return decision should not, in principle, encounter a violation of her right to access fair asylum procedures and effective remedies, and to receive protection from refoulement, if basic procedural rules are respected. The principle of confidentiality, embodied in soft and hard law instruments, prevents the host State from sharing information (through, for example diplomatic assurances) with the applicant’s home country pending a determination of the asylum claim. Moreover, as long as a rejected or excluded asylum seeker is entitled to challenge the decision on

see, Adam Wagner, ‘Abu Qatada: In the Public Interest’, uk Human Rights Blog, 16 November 2012. 122 Jones 2006, 33. 123 Abu Qatada v uk, para 285.

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her status as well as the expulsion order – thus questioning the reliability of assurances – no violation of the right to an effective remedy and to non-refoulement would take place. Nevertheless, Section  2 also revealed how the actual implementation of MoUs through individualized assurances can de facto hamper refugees’ access to protection. Whilst shifting from the study of the agreements per se to practice, a string of cases show that seeking diplomatic assurances during the asylum determination phase contributes to defying the procedural safeguards of asylum mechanisms, such as the principle of confidentiality, thus affecting the final upshot of the proceedings and the fairness of the entire process. Moreover, in some circumstances, asylum seekers have been rejected or excluded from refugee status/subsidiary protection after requesting diplomatic assurances from the home country. Deprived of their right to access administrative and judicial review of their exclusion/rejection decision and of the deportation order, they incurred violations of the right to an effective remedy. Finally, substantive international human rights case law, especially from the ECtHR, testifies to the risk of refoulement for people removed, generally on national security grounds, to countries of origin on the basis of diplomatic assurances against torture and ill-treatment. The above-examined judgments primarily concern people whose protection claims had been rejected or who were transferred on security grounds after exclusion from refugee status/subsidiary protection. However, in a few cases, the ECtHR has assessed diplomatic assurances as one of the elements to eradicate the risk of ill-treatment toward asylum seekers before asylum procedures were completed. It is important to note that removal is not to the country of origin but to a ‘safe third country’ of transit.124 This Section intends to 124 It would be beyond the frontiers of this paper to review the entire spectrum of procedural safeguards that must be in place in the readmitting country for a sending State contemplating a protection elsewhere transfer. However, it is generally accepted that not only de jure, but also de facto compliance with the Refugee Convention in the readmitting country is always required for a safe transfer of responsibility to take place. The ‘safe third country’ principle, integrated into Article 27 of the 2005 Procedures Directive (as replaced by Article 38 of the Recast Procedures Directive) and into the asylum legislation of almost all eu Member States is very controversial. In delimiting the contours of the term ‘safe’, Article 38 of the Recast Procedures Directive requires that: ‘Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of harm as defined in directive 2011/95/EU; (c) the principle of non-refoulement in

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separately examine this dangerous and unexplored anomaly in the system of protection, thereby questioning consequences for refugee rights. Generally, the Court reserves particular attention to the plight of asylum seekers as they belong to a particular vulnerable group.125 Thus, whilst assessing the opportunity of removal with assurances, it underlines how most regard should be had ‘to the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’.126 The ECtHR heretofore has rejected the use of diplomatic assurances for refugees and asylum seekers, but it has to a certain extent endorsed them with regard to people whose protection claims had been denied or subjected to exclusion. Only time will tell whether the Court’s attitude toward asylum seekers will not be contaminated by the approach adopted with regard to people who, for different reasons, are not entitled to refugee protection. By now, it is worth observing how the ECtHR in few cases – which, therefore, do not amount to a trend in status nascendi – seems to have suggested to contracting parties to negotiate assurances rather than taking responsibility for asylum seekers who are about to be removed or have already been removed.127 In the Hirsi v Italy judgment, for example, Judge Pinto de Albuquerque proposed ‘to provide the applicants with practical and effective access to an asylum procedure in Italy’.128 By contrast, in its final recommendations, the Court unexpectedly urged the respondent State to take ‘all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatments incompatible with Article 3 of the Convention or arbitrarily repatriated’.129 In the MSS v Belgium and Greece case, the Court affirmed that diplomatic assurances by Greece did not amount to a sufficient guarantee because they were worded in stereotyped terms and did not address the specific situation of the asylum seeker in question. However, the Court appears to foreshadow that accepting well detailed and individualized assurances would by all means be

125 126 127 128 129

accordance with the Geneva Convention is respected; (d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and if found to be a refugee, to receive protection in accordance with the Geneva Convention’. MSS v Belgium and Greece, para 251. Amuur v France, para 43. Moreno Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) hrlr, 592–593. Hirsi v Italy, Concurring Opinion 82. Hirsi v Italy, para 211.

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plausible if they were able to counteract any risk of ill-treatment. Without outlawing diplomatic assurances per se, the ECtHR proposes a case by case approach, with a special focus on the human rights situation of the readmitting country. Nevertheless, even countries where torture and ill-treatment of detainees are widespread and systematic have been considered safe, if adequate assurances are given. As international human rights bodies and national courts have substantively recognized, in many cases refoulement occurred as a consequence of expulsion of suspected terrorists under the auspices of assurances. For instance, the Canadian Commission of Inquiry called to decide about Mr Arar’s removal to Syria, found that the applicant was tortured despite assurances, and concluded that this finding is a concrete example that pledges of totalitarian regimes likely to practice torture in a systematic fashion, are of no value and cannot be accepted as reliable sources for a safe transfer.130 In the Saadi case, the uk claimed that when there is a threat to national security, stronger evidence has to be adduced to prove that the applicant would be at risk of torture or ill-treatment in the receiving country. In particular, the individual is not required to prove that a ‘real risk’ exists, but rather that such a risk is ‘more likely than not’.131 Accordingly, the threshold for determining the safety and reliability of the readmitting country giving assurances is seemingly lower when dealing with people expelled on national security grounds, regardless of whether they are the object of an exclusion provision. But are we ready to exclude that this threshold could one day not be applied also to asylum seekers transferred to a ‘safe third country’ or repatriated after diplomatic assurances have been used in the asylum proceedings? That would certainly amount to a procedural race to the bottom – someone could argue. States seem nevertheless eager and well equipped to run such a race.

130 See, e.g., the Arar’s case. Commission of Inquiry into the actions of Canadian Officials in relation to Mr Arar’s removal to Syria, Report of the Events relating to Maher Arar. 131 Saadi v Italy, para 122. For a critique of the balancing test between individual protection and national security, see, inter alia, Andrea Saccucci, ‘Diritto di Asilo e Convenzione Europea dei Diritti Umani alla Luce della Giurisprudenza della Corte di Strasburgo’ in Chiara Favilli (ed) Procedure e Garanzie del Diritto di Asilo (Padova 2011) 171; Andrea Saccucci, ‘Divieto di Tortura ed Esigenze di Sicurezza nel Contesto della War on Terror: Verso una Flessione “al Ribasso” degli Obblighi Internazionali?’ (2009) 1 dudi; Antonello Tancredi, ‘Assicurazioni Diplomatiche e Divieto “Assoluto” di Refoulement alla Luce di Alcune Recenti Pronunzie della Corte Europea dei Diritti Umani’ (2010) 1 dudi; Jens Vedsted-Hansen, ‘The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection’ (2010) 29(4) rsq.

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Diplomatic Assurances, MoUs, and Refugees’ Access to Protection: A Concluding Critique

To grasp the impact of assurances on refugees’ access to protection, both their content – whether framed or not within a MoU – and their actual negotiation and implementation by State authorities in single circumstances should be separately examined. MoUs are written umbrella agreements laying down the general skeleton of cooperation without specifying each and every right in detail. Individualized assurances, negotiated under a certain Memorandum when a particular need arises, contain instead the accord that the individual in question will not in fact be subjected to prohibited treatment.132 Despite detailed assurances within MoUs can only give an initial overview of the intentions of the parties without ensuring the safety of the deportee, their further specificity in individual cases make them less likely to be mere pro forma commitments.133 In the light of the above analysis, I argue that whilst the content of diplomatic assurances – whether or not inscribed within MoUs – does not seem to raise per se issues of incompatibility with refugee rights, the implementation of these bilateral agreements in concrete cases through individualized assurances may be questionable. Memoranda are drafted with the intent to normalize diplomatic assurances, establish a common plan of action, and make human rights authoritative sources of reciprocal commitments. Pursuing the intent of progressively stabilizing bilateral relations, Memoranda can be part of international cooperation, and have the effect of exercising pressure on the readmitting State to enhance the general human rights situation within its territory for the sake of the construction of a safe and credible deportation policy with the sending country. The fact that an MoU enunciates clear-cut commitments does not bar the requesting State from seeking further specific assurances,134 and the individual in question from explaining why in that particular case, the assurances envisaged by the MoU are not enough. However, even if MoUs are blanket agreements whose content is fulfilled in concreto through a case by case negotiation of human rights safeguards for a specific person, such individualized assurances might not be sufficient to consider ipso facto the readmitting State reliable with regard to the treatment of the deportee. It is also worth underlying 132 This reasoning led the ECtHR to deem diplomatic assurances inadequate to alter the individual risk assessment. See, Soering v uk case, para 97. 133 See, in this regard, also Jones 2006, 34. 134 See, uk-Libya MoU, Application and Scope, para 5; uk-Jordan MoU, Application and Scope, para 6; uk-Lebanon MoU, Application and Scope, para 5.

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that the unique uk’s diplomatic assurances programme, formalized within MoUs, which I use as units of analysis for this paper, could foreseeably act as a blueprint for other countries. States does not take return decisions on the basis of diplomatic assurances (either in the form of MoUs or individualized assurances). Nevertheless, assurances are one of the main elements – at times the most important one – States weigh in the balance while deciding on the expulsion of a person. The possibility of influencing the risk assessment is not a priori problematic, but it can turn out to be awkward where the mere existence of diplomatic assurances is assumed as both the primary criterion for rejection or exclusion from refugee status and complementary protection, or as a pre-condition to removal. In the case law of international human rights bodies, diplomatic assurances are generally upheld as one factor amongst many in the assessment of the risk, rather than trusted at face value.135 In addressing the question on their impact on refugees’ access to protection (herein meant as the combination of non-refoulement, and access to fair asylum procedures and effective remedies before removal) we can rely on the set of cases reviewed in Section 2 – some of which have had international resonance before human rights bodies. The key findings can, therefore, be summarized as follows. First, even if assurances are considered legally permissible and able in principle to reduce the risk of refoulement, they are not always effective in practice in preventing torture.136 As a result, national courts and primarily international human rights bodies have frequently held that refoulement took place or would take place upon removal. Second, if the exchange of assurances does not per se constitute a hurdle to asylum seekers’ access to asylum procedures, it might affect the fairness of the proceedings and alter the outcome of the decision-making process. Indeed, most of the reviewed cases on the use of diplomatic assurances show how they have being implemented to speed up the process at the expenses of pre-return individual guarantees, such as the right to fair asylum procedures and to effective remedies against rejection/ exclusion and the decision of expulsion. This ex ante crisis of guarantees assumes even more salience in an ex post perspective, as no enforcement mechanisms to protect deported individuals from the breach of a diplomatic assurance is envisaged. Negotiation of 135 For example, while deciding on the reliability of assurances, the ECtHR attaches considerable importance also to ‘information and evidence obtained subsequent to the applicants’ extradition’. See, Shamayev and Others v Georgia and Russia, para 345. 136 Jeffrey G Johnston, ‘The Risk of Torture as a Basis for Refusing Extradition and the Use of Diplomatic Assurances to Protect against Torture after 9/11’ (2011) 11 iclr 1, 48.

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assurances must, therefore, be case-specific and consider the entire human rights situation in the readmitting country, including its torture track record, in order to verify whether assurances suffice to protect from such a risk. It is not enough, for example, that the promisor has ratified international human rights instruments to consider it safe, but its compliance with human rights in concreto must be gauged. I hold the view that, in principle, the content of diplomatic assurances does not seem to raise problems of incompatibility with refugee and human rights requirements. However, in practice, access of asylum seekers to protection can be hampered, especially in the light of the nascent (and not-yet consolidated) trend of the ECtHR to rely on diplomatic assurances as one of the elements to eradicate the risk of ill-treatment toward asylum seekers before asylum procedures are completed, or even before asylum applications are actually submitted. Section  3 interestingly detects this questionable new pattern. I thus wonder whether the lower threshold for determining the safety and reliability of a country giving assurances on people expelled on national security grounds might one day also be applied to asylum seekers removed before examination of their claims or after diplomatic assurances have been used in their asylum proceedings. A dangerous employment of assurances may occur in at least five circumstances: (i) when the assessment of the risk excessively relies on the assurances given by the readmitting government, primary source of the fear, without bringing into the picture the general human rights situation and the pervasiveness of torture in the receiving country; (ii) when the receiving country has a history of failing both to comply with assurances and investigate the allegations of prohibited treatments against other detainees; (iii) when the assurances are negotiated during the examination of the asylum claim, thus violating the principle of confidentiality and the right of an asylum seeker to access and enjoy fair asylum procedures; (iv) when the existence of diplomatic assurances accelerate the rejection of the protection claim and the enforcement of the return procedures, thus preventing the individual from challenging the decisions and having access to an effective remedy; (v) when an efficient system of monitoring is lacking, and the government issuing the assurances is not able to enforce the agreement because of the lack of control of the territory or the security forces of the prison where the individual in question is detained. I believe that the fact that MoUs are blanket agreements does not mean they are neutral. Rather they constitute the matrix of any other contact between requesting and requested State; they formalize within a written accord the human rights commitments of a State with a dismal human rights track record. Regardless of their normative status, the format of MoUs cannot be used as a

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‘legal nicety’ to make ordinary a human rendition that common sense would de facto label as ‘extraordinary’. Dressing with the veil of law an arrangement designed to remove a person to ‘interrogation as opposed to “justice”’137 within the borders of a country notoriously known for its dubious techniques of questioning is at the very least objectionable. State practice does not stand in a vacuum, but it is the product of a normative setting which can be more or less well thought-out. And it is this normative setting that legal scholars are prone to look at first. Nevertheless, it is through the observance of practice that we get better clues on the relevant law. Despite letting law and praxis run on two parallel lines, we need to continue to keep our eyes on both of them. We therefore would realize that, if the negotiation of diplomatic assurances in individual cases raises continuous condemnation and disapproval, this is also due to flaws in the applicable legislation. Such awareness could induce us to engage in the game of regulation building on the fact that MoUs fail, for example, to mention ‘torture’ or ‘inhuman and degrading treatment’, or that they lack precision and accuracy with regard to monitoring, as well as enforcement and redress mechanisms in the event of a breach. While endorsing this criticism, I believe that amendments on further human rights safeguards in the text of MoUs would do little to sort the problem out. Even with new sophisticated monitoring procedures and enforcement mechanisms, there will always be limits in detecting torture and in eliminating the personal risk for the deportee.

137 See, Antenor Hallo de Wolf and James Watson, ‘Navigating the Boundaries of Prevention: the Role of opcat in Deportations with Diplomatic Assurances’ (2009) 27 nqhr 525, 540; see also, Craig Forcese, ‘The Capacity to Protect: Diplomatic Protection of Dual Nationals in the “War on Terror”’ (2006) 17(2) ejil 369, 371. According to the ECtHR, the term ‘extraordinary rendition’ refers to ‘an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment’. See, El-Masri v FROM, para 221. See also, Babar Ahmad and Others v the United Kingdom, para 113. The us has inaugurated the extraordinary rendition practice after 11 September 2001. In this regard, President Bush signed a classified order allowing the cia to carry outrenditions without the authorization of White House, Department of State, or Departmentof Justice. Transfers could be executed ‘solely for the purpose of detention and interrogation’ to countries where the prisoners did not face any criminal charges. See, Douglas Jehl and David Johnston, Rule Change Lets cia Freely Send Suspects Abroad to Jails, ny Times,6 March 2005, A1. See also, Katherine R Hawkins, ‘The Promises of Torturers: Diplomatic Assurances and the Legality of “Rendition,”’ (2006) 20 Geo.Immigr. L.J. 213.

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A number of contradictions are inherent in the process of seeking assurances given that ‘even as the sending State seeks protection for one, so it acquiesces in the torture of others’.138 Moreover, it remains unanswered why States need to frame their human rights commitments within bilateral political agreements – despite being subject to judicial control – which replicate human rights standards that have already been enshrined within international human rights treaties creating binding obligations and mechanism of individual complaints. In some circumstances, MoUs might be deemed trustworthy instruments that enhance the regime of protection owed to persons extradited under the assurance – issued by the judiciary – that they will not undergo capital punishment. But given that the safety of return is a matter of fact, I argue that returning a person, with the assurance that she will not be tortured, to a country where torture is a systematic practice is highly problematic from a human rights and refugee law perspective. Accordingly, I believe States should refrain from relying on diplomatic assurances – whether framed or not within standardized MoUs – with countries that persist in the use of torture. 138 Guy S Goodwin-Gill and Raza Husain ‘Diplomatic Assurances and Deportation’, unpublished conference paper, JUSTICE/Sweet & Maxwell Conference on Counter-terrorism and Human Rights (28 June 2005), as cited in Larsaeus 2006, 3. Another problem in investigating accusations of torture is also due to the fact that diplomats have clearly no interest in a genuine disclosure of truth with regard to people considered alleged terrorists, enemies of, or threats for the sending country. See, Gregor Noll, ‘Diplomatic Assurances and the Silence of Human Rights Law’, (2006) 7 mjil 104.

Lessons in Exclusion: Interdiction and Extraterritorial Processing of Asylum Seekers in the United States and Australia Daniel Ghezelbash* 1 Introduction Controlling and regulating the flow of irregular migrants has come to dominate the political discourse of both developed and developing nations all around the world. It has the power to make or break governments, with elections being won and lost over the issue. Even countries that are generally relaxed about large scale immigration have moved to introduce measures aimed at exerting greater control over their land and sea borders. Australia and the United States, the two countries chosen as comparators in this paper, have been at the forefront of this trend. The case of irregular migrants who are seeking asylum raises particular policy concerns in the context of this quest for greater control. While governments have absolute sovereign power to exclude or deport other irregular migrants, their ability to deal with asylum seekers is qualified by the obligations contained in the 1951 un Convention relating to the Status of Refugees and subsequent Protocol (‘the Refugee Convention and Protocol’) and other human rights instruments.1 This paper examines the parallels in the approaches adopted in Australia and the United States to circumvent and mitigate these obligations and maximise the power of the political branches to deal with irregular migrants (asylum seekers or otherwise).2 The focus of analysis will be on the policies of interdiction and extraterritorial processing of asylum seekers. The central argument of the paper is that the implementation of these policies in the United States and Australia was facilitated by a process of lesson-drawing, with Australia learning from and emulating developments in the United States. Specifically, it is argued that Australia’s * Associate Lecturer, Macquarie Law School, Macquarie University. This chapter reflects preliminary findings from ongoing doctoral research being undertaken under the supervision of Professor Mary Crock, Faculty of Law, University of Sydney. 1 Convention relating to the Status of Refugees (‘The Refugee Convention’) (adopted 28 July 1951), entered into force 22 April 1954) 189 unts 137. Protocol relating to the Status of Refugees (‘The Protocol’) (adopted 31 January 1967, entered into force 13 December 1973) 606 unts 267. 2 The term ‘political branches’ is used in this paper to describe the executive and legislative arms of government.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_006

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naval interdiction programme and the establishment of extraterritorial asylum processing facilities in Nauru and Papua New Guinea were modelled on the us migrant interdiction programme and the us practice of processing asylum claims extraterritorially on Guantanamo Bay and other locations in the Caribbean. The question of the legality of interdiction and extraterritorial processing under international law has been examined at length elsewhere.3 While acknowledging these serious concerns this paper does not intended to revisit this debate. Instead the focus is on tracking the spread of these policies between United States and Australia and exploring the nature and implications of this transfer process. Policy transfer is ‘the process by which knowledge of policies, administrative arrangements, institutions and ideas in one political system (past or present) is used in the development of policies, administrative arrangements, institutions and ideas in another political system.’4 It is widely recognised that such transfers can take many forms and there have been numerous attempts at developing typologies that categorise transfers based on a variety of criteria.5 This paper will focus on a subset of policy transfer known as ‘lesson-drawing’, which refers to the process by which actors in one time or place draw lessons from another time or place that are incorporated into their own policies and  practices.6 The key distinguishing feature of this type of transfer is its ­voluntary nature. Lesson-drawing is based on a voluntary process whereby government A learns from government B’s solution to a common problem, as opposed to coercive transfers that are forced upon governments by outside

3 See Arthur Helton, ‘The United States Government Program of Intercepting and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects’ (1993) 10 New York Law School Journal of Human Rights 325; Stephen Legomsky, ‘The usa and the Caribbean Interdiction Program’ (2006) 18 International Journal of Refugee Law 677; Angus Francis, ‘Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing’ (2008) 20 International Journal of Refugee Law 273; Susan Kneebone, ‘The Legal and Ethical Implications of Extraterritorial Processing of Asylum Seekers: The “safe third country” concept’ in Jane McAdam (ed), Forced Migration, Human Rights and Security (Hart Publishing, 2008). 4 David Dolowitz and Marsh David, ‘Who Learns What from Whom: A review of the policy transfer literature’ (1996) 44(2) Political studies 343, 344. 5 See David Dolowitz and Marsh David, ‘Learning from abroad: The role of policy transfer in contemporary policy making’ (2000) 13(1) Governance 5, 9; Katharina Holzinger and Knill Christoph, ‘Causes and conditions of cross-national policy convergence’ (2005) 12(5) Journal of European Public Policy 775, 780. 6 Richard Rose, ‘What is lesson-drawing?’ (1991) 11(1) Journal of Public Policy 3, 3.

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forces.7 These new policies need not necessarily be an exact copy of the original, but can take many different forms, ranging from hybrids of transferred and domestically developed components to completely new models.8 This paper will utilise a two-step approach to demonstrate that the existence of similar policies of interdiction and extraterritorial processing in the United States and Australia are the result of lesson-drawing. The first step, set out in Part 1, examines the history of the use of the case-study policies in each country to demonstrate the similarities in their implementation and development. The existence of a similar policy response, however, is not enough evidence to establish that a transfer has taken place as convergence of policies between several countries can arise as a result of similar, but independent responses of political actors to parallel problem pressures. Just as individuals all open their umbrellas simultaneously during a rainstorm, governments may decide to change their migration control policies in response to similar policy problems.9 The second step, set out in Part 2, dispels this alternate hypothesis by demonstrating that migration policy makers from Australia and the United States had direct and intimate knowledge of the policy developments in each other’s respective jurisdictions throughout the period in which the purported lessondrawing was occurring. This will be evidenced by interviews carried out by the author with key policy makers, references to documentary evidence and by cataloguing the numerous forums in which policy makers from the United States and Australia meet to discuss migration policy developments. Having established that the implementation of the case-study transfers were the result of lesson-drawing, Part 3, concludes with some comments on the implications of the practice. 2

The Use of Interdiction and Extraterritorial Processing in the United States and Australia

The policies of interdiction and extraterritorial processing of asylum seekers represent attempts by the political branches to exert maximum control over the movement of asylum seekers and side-step or mitigate the impediments imposed by the Refugee Convention and domestic judicial oversight. This section begins with a discussion of the way the case-study policies achieve this.

7 Ibid., 4. 8 Ibid., 22. 9 This analogy is adapted from Holzinger and Christoph (n 5) 786.

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This is followed by a comparative analysis of the use of the case-study policies in the United States and Australia that highlights the similarities (and differences) between their implementation in each country. Interdiction at sea and return of irregular migrants to their point of departure without screening of asylum claims represents one of the most extreme manifestation of the political branch’s quest for control.10 By relying on a view that the Refugee Convention has no extraterritorial effect, its non-refoulement obligations are said not to apply.11 A similar argument as to extraterritoriality is also employed to side-step judicial enforcement of constitutional and statutory rights that the irregular migrant may have had if they had entered the nation’s territory. Practical impediments of returning interdicted migrants to their point of departure, concerns over the legality of such an approach under international law and serious humanitarian concerns mean that this approach of interdiction and return without processing has only been used rarely in the United States and Australia. Interdiction coupled with some form extraterritorial processing seeks to strike a slightly more balanced approach between control and the rights of asylum seekers. Rather than being summarily returned, interdicted persons are subject to procedures to identify persons who may have an asylum claim. These have taken the form of crude screening measures aboard government vessels on the high seas, as well as more formal status determination procedures in external territories or third countries. This approach tacitly adheres to non-refoulement obligations by providing mechanisms to identify persons who may be refugees and not returning such persons to a place where they may face harm on a convention ground. However, in practice, the procedures are often 10

11

The type of interdiction examined in this paper is the practice of intercepting irregular migrants on the high seas and physically preventing them from accessing a State’s territory. Note that interception can also be carried out in the country of departure and in the territory of transit countries. An examination of these forms of interdiction is beyond the scope of this paper. This view was affirmed by the United States Supreme Court in Sale v Haitian Centers Council 509 us 155 (1993). Such an interpretation as to the extraterritorial applicability of the Refugee Convention has been the subject of much criticism. See, for example, the dissenting opinion of Justice Blackmun in Sale v Haitian Centres Council 509 us 155 (1993); Haitian Centre for Human Rights et al. v United States of America, Case 10.675, Report No. 51/96, Inter-American Commission on Human Rights; Robert J Williams, ‘Sale v Haitian Centers Council and its Aftermath: A Problematic Gap in International Immigration Law’ (1995) 9 Temple International and Comparative Law Journal 55; Thomas GammeltoftHansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press 2011) 44–99.

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inadequate and have resulted in refoulement.12 The extraterritorial nature of these procedures purports to place them beyond the reach of domestic statutory and constitutional protections. As such, irregular migrants subject to these polices are denied the rights they may have had if they had entered the State’s territory and are precluded from accessing judicial review of unfavourable status determinations. Control over access to the territory of the state is also maintained, with those recognised as refugees not automatically granted access to a state’s territory, and instead often held for long periods of time awaiting resettlement in a third country. In addition to exerting direct control over irregular migrants who are physically subject to them, the policies of interdiction and extraterritorial processing also purport to have a strong indirect control effect by acting as a deterrent to future irregular arrivals. The prospect of return to the point of departure, or long term detention in a camp in a third country or external territory seeks to deter all but the most desperate of irregular migrants from making the journey. Equally important is the message that these policies convey to the domestic audience. They are highly visible policies that reassure the public that the government is in control of its borders. What follows is examination of the historical development of each of the case-study policies in the United States and Australia. United States: Interdiction and Extraterritorial Processing on Guantanamo Bay The us interdiction and extraterritorial processing policies have predominantly targeted irregular boat arrivals from Haiti and Cuba. The interdiction of Haitians began in 1981, when the Coast Guard was authorised to intercept and search vessels suspected of transporting undocumented Haitians. These early interdictions were accompanied by the use of crude extraterritorial processing, with summary screening processes being carried out aboard United States Coast Guard cutters. Officers from the Immigration and Naturalisation Service (‘ins’) assessed the interdicted Haitians to determine if each had a ‘credible fear of persecution’.13 Those that were assessed as having a ‘credible fear’ were transferred to the United States to pursue their claims, while those that did not were returned to Haiti. The interdiction programme and screening procedures aboard us Coast Guard cutters were carried out pursuant to a bilateral treaty 2.1

12 13

See Robert Manne and David Corlett, ‘Sending Them Home: Refugees and the New Politics of Indifference’ (2003) 13 Quarterly Essay 1; and text to n 18. For a critique of the ‘credible fear’ test, see Bill Frelick, ‘us Refugee Policy in the Caribbean: No Bridge over Troubled Waters’ (1996) 20 Fletcher Forum of World Affairs 67, 72–74.

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between the United States and Haiti,14 ins interdiction Guidelines,15 and Executive Order 12324.16 Right from the outset, there were serious concerns raised about the efficacy of the screening process employed. A study undertaken by the Lawyers Committee for Human Rights (now Human Rights First) found that from 1981–1990, the United States interdicted and returned almost 23,000 Haitians, and had found only six passengers whose claim was strong enough to warrant providing a full asylum hearing.17 As Legomsky has observed ‘[g]iven the high incidence of serious human rights violations in Haiti during that period, there was ample reason to worry that the rarity of cases found to justify full hearing said more about the procedural adequacy of interviews than about the merits of the claims’.18 A violent military coup in Haiti in September 1991, which replaced the democratically elected President Jean-Bertrand Aristide with a military junta, caused a modification in the interdiction programme. Reports of wide-spread politically motivated violence and the public condemnation of the coup by the us administration made it difficult for the United States to summarily dismiss asylum claims by interdicted Haitians. At the same time, the Bush administration was reluctant to let the large number of arrivals (more than 38,000 Haitians were interdicted in the eight-month period following the coup)19 enter the United States. Screening continued to be carried out on the high seas, but those found to have a credible fear were no longer transferred to the United States to pursue their claims, but instead held on Coast Guard cutters. The Bush Administration attempted to frame the issue as a regional problem and negotiated with other Caribbean nations to take some of the Haitians held on us ships. On the whole, these efforts failed. Belize, Honduras, Venezuela, and Trinidad and Tobago agreed to offer temporary shelter in United Nationsadministered camps to a small number Haitians. The combined total of 14 15 16 17

18 19

Migrants Interdiction Agreement (23 September 1981) us-Haiti, 33 ust 3559, 3560. Immigration and Naturalization Service Interdiction Guidelines, ‘ins Role in and Guidelines for Interdiction at Sea (6 October 1981, revised 24 September 1982). Executive Order No 12324, 46 Fed Reg 48109 (1981). Lawyers Committee for Human Rights, ‘Refugee Refoulement: The Forced Return of Haitians under the us-Haitian Interdiction Agreement’ (February 1990) at 4. Cf. Ruth Ellen Wasem, ‘us Immigration Policy on Haitian Migrants’ (Congressional Research Service, Library of Congress, May 2011) 4; Frank Brennan, Tampering with Asylum: A Universal Humanitarian Problem (University of Queensland Press, 2003) 77 (Both putting the number of interdicted Haitians recognised as refugees during this period at 11). Legomsky (n 3) 679. ‘Islands of Inequality’, Washington Post (Washington, 4 November 1992) A18, cited in Helton (n 3) 330.

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550 places, however, was not enough to diffuse the situation.20 By November 1991, there were 2,200 Haitians in custody and all of the available coast guard cutters were at capacity.21 The Bush administration decided to open a facility on the us territory of Guantanamo Bay to which interdicted Haitian asylum seekers could be transferred and processed.22 Although Guantanamo Bay is better known in recent times as an exceptional space used to exclude enemy combatants from the protections of the American justice system,23 it was first used as a holding and processing centre aimed at precluding interdicted asylum seekers from accessing these same legal protections. Between November 1991 and May 1992, all interdicted Haitians were taken to Guantanamo Bay for processing. In effect, the Bush administration created a special (procedurally inferior) regime for processing refugee claims as compared to that pertaining to persons seeking refugee protection within mainland America. Statutory procedures available to asylum applicants on the mainland did not apply as Guantanamo fell outside of the statutory definition to ‘the United States’ under the Immigration and Nationality Act.24 Similar extraterritorial arguments were used to frame the Guantanamo Bay detainees as having no rights under the us Constitution.25 This left the executive free to streamline the screening process, ‘dispensing with such complications as the assistance of lawyers, administrative appeals, and judicial review’.26 Those that were found to have ‘credible fear of persecution’ were transferred to the United States to pursue an asylum claim,27 while those found not to exhibit such a fear were forcibly sent back to Haiti. Even 20

‘Furor Erupts Over u.s. Policy on Haitian Boat People’ 68 Interpreter Releases 1684 (25  November 1991) 1685; Vernon Briggs, ‘us Asylum Policy and the New World Order’ (1993) 1(3) People and Place 1, 3. 21 Briggs, ibid. 22 For a historical overview of us interests in Guantanamo Bay, see Azadeh Dastyari and Effeney Libbey, ‘Immigration Detention in Guantanamo Bay’ (2012) 6(2) Shima: The International Journal of Research into Island Cultures 49, 51–54. 23 See Fleur Johns, ‘Guantanamo Bay and the Annihilation of the Exception’ (2005) 16 European Journal of International Law 613. 24 8 usc §1101(a)(38) (1994) (defining ‘United States’ as limited to the continental United States, Alaska, Hawaii, Puerto Rico, Guam and the Virgin Islands); See also, Gerald L Neuman, ‘Anomalous Zones’ (1996) 48 Stanford Law Review 1197, 1229. 25 This view was accepted by the Eleventh Circuit in Haitian Refugee Center Inc. v Baker, 953 F2d 1498, 1513 n 8 (11th Cir 1992). 26 Neuman (n 24) 1229. 27 Note that persons who were found to have a credible fear, but were hiv positive, were not transferred to the us, but were detained in a seperate section of the Guantanamo Bay facility.

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these streamlined procedures, however, could not keep up with the steady flow of arrivals and the makeshift camp at Guantanamo quickly reached its 12,500 person capacity. With the facilities at Guantanamo at capacity, President George H W Bush issued the ‘Kennebunkport Order’ on 24 May 1992,28 revoking the 1981 policy of interdiction with screening. The new policy provided the interdiction and repatriation of all Haitians leaving Haiti by boat without procedures to determine if any were fleeing persecution. The order expressly declared that us non-refoulement obligations under the Refugee Convention and Protocol did not extend outside us territory and that, consequently, all passengers were to be returned to Haiti. Despite harshly criticising the policy during the 1992 presidential election, President Clinton maintained the policy of interdiction and return without screening when he came to office.29 In 1993, in Sale v. Haitian Centers Council, the United States Supreme Court upheld the no-screening policy and affirmed the Government’s stance that neither the non-refoulement obligations in the Refugee Convention and Protocol, nor the us implementing legislation prohibited return of refugees on the High Seas.30 President Clinton suspended the no-screening policy in May 1994, apparently deciding that Haiti was, in fact, too dangerous a place to return those fleeing.31 Initially, a policy of providing full asylum hearings aboard us ships was introduced (rather than credible fear screenings as had been carried out in 1992). An agreement was reached with Jamaica which allowed for processing to be carried out aboard a us ship sitting in Kingston Harbour.32 A separate agreement was reached with the United Kingdom for processing to be carried out on the Turks and Caicos Islands.33 The number of Haitians arriving quickly 28 29

Executive Order No 12807, 57 Fed Reg 23133 (1992). Three months before the election, Bill Clinton said ‘I am appalled by the decision of the Bush administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to possible political asylum. This process must not stand’: us Newswire, 29 July 1992, cited in Frank Brennan, Tampering with Asylum: A Universal Humanitarian Problem (University of Queensland Press, 2003) 77. 30 509 us 155 (1993). 31 Frelick (n 13) 67. 32 Memorandum of Understanding between the Government of the United States and the Government of Jamaica for the establishment within the Jamaican territorial sea and internal waters of a facility to process nationals of Haiti seeking refuge within or entry to the United States of America, entered into force 2 June 1994, kav 3901, Temp State Dept No 94–153. 33 Memorandum of Understanding between the Government of the United Kingdom, the Government of the Turks and Caicos Islands, and the Government of the United States to

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outstripped the processing capabilities and these full refugee adjudications procedures were suspended a little over a month after which they had begun. In July 1994 a new policy was implemented pursuant to which interdicted Haitians would be provided ‘safe haven’ at Guantanamo Bay and other Caribbean Countries. Haitians would not be returned automatically to their country, nor would they be offered the option of entering the United States as refugees or to pursue asylum claims. Just as President Bush had done three years earlier, Clinton sought to supplement capacity on Guantanamo through agreements with countries in the region to provide temporary safe haven in refugee camps. An agreement to establish such a camp in Panama fell through before it was implemented,34 but Antigua, Grenada, Suriname, St Lucia, and the Dominican Republic offered to host a total of approximately 11,000 Haitians in unhcr run camps.35 Following us military intervention in Haiti in September 1994, the number of boat arrivals from that country reduced significantly. Reinstituting a policy of presumptive ineligibility, the United States repatriated nearly all of the remaining Haitian asylum seekers held at Guantanamo in January 1995.36 In August 1994 the interdiction and extraterritorial processing policy was for the first time extended to Cuban arrivals. For three decades, us policy presumed all persons fleeing Cuba to be refugees and those that made it to sea were rescued and brought to the United States.37 A large spike in the number of Cubans making the journey prompted the Clinton administration to rethink this approach.38 On 19 August 1994, President Clinton announced that interdicted Cubans would be henceforth taken to the Guantanamo Bay Naval Base. Like the Haitians already there, they were to be held in ‘safe haven’. The Cubans

34 35 36 37 38

establish in the Turks and Caicos Islands a processing facility to determine the refugee status of boat people from Haiti, entered into force 18 June 1994, kav 3906, Temp State Dept No 94–158. 71 Interpreter Releases 885 (11 July 1994) 885. us Committee for Refugees, ‘World Refugee Survey’ (1995) 118. Frelick (n 13) 67. Ibid., 68. This was precipitated by an announcement by the Cuban government on 6 August 1994 that they would no longer interfere with efforts of those who desire to emigrate to the United States: Thomas David Jones, ‘A Human Rights Tragedy: The Cuban and Haitian Refugee Crises Revisited’ (1995) 9(3) Georgetown Immigration Law Journal 479, 492; The similarities to the situation that prompted the Mariel boat lift in 1981, led some to label the incident as Mariel II: Carlos Verdecia, Wily Castro Again Sends His Problems North, Christian Science Monitor (12 September 1994) 19, accessed 23 October 2013.

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were not subject to any screening procedures and told their only avenue for entering the United States was to return to Cuba proper and wait in line for processing through the admission programmes operating there.39 At the same time, the United States entered into an agreement with Cuba under which the Cuban Government would take measures to prevent irregular boat departures and the United States would admit 20,000 Cubans per year through legal and orderly procedures.40 By September 1994, there were more than 32,000 Cubans held at Guantanamo Bay. An alternate safe haven site was set up in the Panama Canal Zone, and 8,000 detainees were transferred there.41 Once the number of Cuban arrivals began to abate, the policy stance towards the interdicted Cubans was softened. At first, children, the sick and the elderly were offered ‘parole’ to allow them to enter the United States. Eventually, in May 1995, the Clinton Administration announced that most of the remaining Cubans would be brought to the United States. At the same time, a new blanket exclusion policy was introduced for future Cuban arrivals. All future arrivals were to be interdicted and returned to Cuba, except those that could show shipboard adjudicators a ‘genuine need for protection; that could not be satisfied by applying for refugee status with the us Interests Section in Havana’.42 Periodically, the practice of interdiction has been used against migrants from other countries. Nationals of the Dominican Republic have been regularly intercepted in the Mona Passage en route to Puerto Rico.43 Chinese nationals have also been interdicted attempting to make the journey by sea to Guam or the us mainland.44 Both the practices of interdiction and extraterritorial processing on Guantanamo Bay continue to this day. In 2013, there were a total of 2,094 person interdicted, comprising 1,357 Cubans, 508 Haitians, 110 Dominicans, and 119 migrants with other nationalities.45 Up to date figures of the number of

39 Frelick (n 13) 68. 40 Ibid., 71. 41 Ibid. 42 Ibid., 72. 43 In the period from 1 April 1995 through to 1 October 1997, over 9,500 migrants were interdicted and forced to turn back: us Coast Guard, Alien Migrant Interdiction (10 February 2014) accessed 26 February 2014. 44 Ibid. 45 us Coast Guard, Alien Migrant Interdiction: Total Interdictions – Fiscal Year 1982 to Present (10 February 2014) accessed 26 February 2014.

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asylum seekers held at the migrant operations centre at Guantanamo Bay are difficult to come by. The most recent statistics, which are from February 2012, indicate that there were a total of only 33 migrants (all Cuban) held there at that time.46 The facility continues to maintain readiness to respond to future mass migration flows, with a surge capacity of up to 10,000 persons.47 Current policy dictates the immediate repatriation of interdicted persons unless he or she specifically expresses a fear of return. Screening procedures are reported to vary depending on the nationality of the arrival. Haitians are not questioned about whether they fear being returned, but are required to vocalise these fears independently. A us Department of State official described the policy as ‘shout and you get an interview’.48 Where a Haitian manages to communicate a fear of return, the Coast Guard notifies the us Citizenship and Immigration Service (uscis), which transports an asylum officer to the ship in order to conduct a preliminary credible fear interview. In contrast, Cuban’s are automatically interviewed by a Spanish-speaking uscis official who explicitly asks them if they fear returning to Cuba. Regardless of nationality, when a ­person is found to have a credible fear, they are transferred to Guantanamo Bay. The Guantanamo Bay migrant operations centre currently operates under the auspices of Secretary of the Department of Homeland Security, who is empowered with an unreviewable discretion to detain and carry out status determinations of asylum seekers on the island.49 Where a person processed at Guantanamo Bay is found to be a refugee, they are not admitted to the United States. Instead, they are resettled in a third country pursuant to bilateral agreements entered into by the Department of State. From 1996 to 2011, 331 persons were resettled from Guantanamo to 21 countries worldwide.50 46 Dastyari and Effeney (n 22) 58. 47 Ibid. 48 Women’s Commission for Refugee Women & Children, ‘Refugee Policy Adrift: The United States and Dominican Republic deny Haitians protection’ (January 2003) 18. 49 On 15 November 2002, President George W Bush issued Executive Order 13276. The order, (as amended by Executive Order 13286), authorises the Secretary of Homeland Security to maintain custody and conduct screening of any undocumented non-citizens intercepted in the Caribbean region in Guantanamo Bay or any other appropriate location. This in effect provides an unreviewable discretion to the Secretary of Homeland security for the detention and status determination of asylum seekers and refugees in Guantanamo. 50 us Department of State, us Department of Homeland Security, us State Department of Health and Human Services, ‘Proposed Refugee Admissions for Fiscal 2012: Report to Congress’ 38.

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2.2 Australia: The ‘Pacific Solution’ Mark I & II As was the case in the United States, the policies of interdiction and extraterritorial processing were introduced in Australia as a direct response to a particular cohort of boat arrivals. Starting in the mid-1990s, a new wave of asylum seekers, dominated by fugitives from Iraq and later Afghanistan, began making their way to Australia via Indonesia. The immediate trigger for the policy change, however, were events set in motion by the rescue at sea of 433 asylum seekers by a Norwegian registered container ship, mv Tampa, in August of 2001.51 A diplomatic row erupted over where the rescues should be delivered. Reflecting the climate of public unease with the increasing flow of unauthorised arrivals, then-Prime Minister John Howard decided to prevent the delivery of the rescues to Australia. When initial negations failed to prevent the ship’s captain to change course, Australian Special Air Service troops were deployed to board the mv Tampa to prevent the vessel from entering Australian territorial waters. After a five-day ‘stand-off’, the crisis was resolved when agreements were reached with New Zealand and Nauru for rescues to be transferred to those countries to have their protection claims assessed. In September 2001, in the immediate aftermath of the Tampa incident, the Australian Parliament enacted a series of legislative reforms aimed at retrospectively validating the executive’s response52 and to deprive future asylum seekers arriving by boat access to regular Australian asylum procedures. The scheme, which became known as the ‘Pacific Solution’ and later the ‘Pacific Strategy’, involved three main initiatives. The first was the ‘excision’ of territories from Australia’s ‘migration zone’ with the effect that the migration legislation pertaining to the mainland no longer applied in these places.53 Initially, only Christmas Island, Ashmore Reef, Cartier Island and Cocos Islands were ‘excised’. Later, the excision zone was extended to include all territories outside of mainland Australia. A new category of ‘offshore entry person’ was then 51

For a detailed analysis of the incident, see Mary Crock and Daniel Ghezelbash, ‘Do Loose Lips Bring Ships?: The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals’ (2010) 19 Griffith Law Review 238; Mary Crock, ‘In the Wake of Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 12 Pacific Rim Law & Policy Journal 49; Jessica Tauman, ‘Rescued at Sea, but Nowhere to Go: The cloudy legal waters of the Tampa Crisis’ (2002) 11 Pacific Rim Law & Policy Journal 461; Chantal Marie and Jeanne Bostock, ‘The International Legal Obligations owed to the Asylum Seekers on the mv Tampa’ (2002) 14 International Journal of Refugee Law 279. 52 Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). 53 See Migration Amendment (Excision from Migration Zone) Act 2001 (Cth), amending s 5(1) of Migration Act 1958 (Cth).

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created to catch all asylum seekers who landed without a valid visa or authority on an excised territory.54 Offshore entry persons were barred from making a valid application for a protection visa unless the Minister exercised a personal, non-compellable discretion to allow it.55 Provisions were also introduced to prohibit ‘offshore entry persons’ from accessing the Australian courts.56 The second initiative involved the power to remove people who entered at an excised zone to a designated country for their claims to be processed.57 Hasty agreements were reached with Nauru58 and Papua New Guinea (png)59 for the establishment of offshore detention facilities on their territory to which offshore entry persons could be transferred. Asylum seekers processed on Nauru and Manus Island in png did not have access to the refugee status determination procedures applied on the Australian mainland. Depending on where they were held and when they arrived, asylum seekers’ claims were processed by either the unhcr, or by Australian immigration officials applying processes stated to be in accordance with those of the unhcr. The third strategy was an interdiction programme dubbed ‘Operation Relex’, which saw unauthorised boats intercepted on the high seas by Australian Navy boats and escorted back to Indonesia. In accordance with a Memorandum of Understanding reached with Indonesia,60 the Australian Navy would first attempt to tow or escort unauthorised boats back into Indonesian waters. 54

Migration Amendment (Excision from Migration Zone) Act 2001 amending s 5(1) of Migration Act 1958 (Cth). 55 Section 46A Migration Act 1958 (Cth). 56 Section 494AA Migration Act 1958 (Cth) (note that s 494AA(3) provides that the section is not intended to affect the original jurisdiction of the High Court). 57 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001; inserting the s 198A of Migration Act 1958 (Cth). 58 A 13 point Statement of Principles and First Administrative Arrangement was signed by Australian and Nauruan representatives on 10 September 2001: Select Committee for an Inquiry into a Certain Maritime Incident, ‘A Certain Maritime Incident’ (Commonwealth of Australia, 23 October 2002), 296. A new Memorandum of Understanding was signed on 11 December 2001: Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia for Cooperation in the Administration of Asylum Seekers and Related Issues, Answers to Questions on Notice, Department of Foreign Affairs and Trade, 19 June 2002. 59 A Memorandum of Understanding was signed with png on establishing a processing centre on Manus Island on 11 October 2001: Prime Minister of Australia, Arrangement with Papua New Guinea to Process Unauthorised Arrivals, Media Release (10 October 2001). 60 See Crock (n 51) 73.

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If these attempts failed, the asylum seekers aboard the vessels were transferred to Manus Island or Nauru for processing of their claims. Between August and November 2001, 12 boats carrying asylum seekers were intercepted by Australian Navy boats. Four boats, with some 600 asylum seekers on board, were intercepted and successfully forced back to Indonesia.61 The other eight boats were intercepted but could not safely make the journey back to Indonesia, either because they had broken down or because they had been sabotaged by asylum seekers in an attempt to force the Australians to take them on board.62 Of those rescued by the Tampa and these eight boats, a total of 1,501 asylum seekers were transferred to Manus Island and Nauru for processing.63 The quest for control underlying the approach was highlighted in a Select Committee report which stated: the government’s new policy was that it would not allow ‘unauthorised arrivals’ to land on Australian territory, in a manner uncontrolled by the Australian government, for the purpose of claiming refugee status. Individuals seeking asylum must be processed ‘off-shore’, and then decisions about whether to accept them as refugees top Australia made in the same way as decisions are made in relation to the claims of those assessed as refugees in camps elsewhere in the world.64 Over the next few years the number of unauthorised boat arrivals dropped off significantly.65 In 2008, the newly elected Labor Government announced that it would bring the Pacific Solution to an end, describing it as ‘cynical, costly and ultimately unsuccessful exercise’.66 It did not abandon the policy completely, maintaining the legislative provisions underpinning the strategy. Australia’s offshore territories remained ‘excised’ from the ‘migration zone’. However, after the February 2008 resettlement in Australia of the final group of refugees detained on Nauru, Labor adopted a policy of not exercising the power to transfer ‘offshore entry persons’ to third countries. Instead, asylum seekers interdicted at sea were to be held on the Australian territory of 61 Manne and Corlett (n 12) 45. 62 Ibid. 63 Ibid., 45–46. 64 Select Committee for an Inquiry into a Certain Maritime Incident (n 58) 3. 65 Whether this reduction was a result of government policies or changes in ‘push factors’ in sending countries remains the subject of ongoing debate. 66 Senator Chris Evans, Minister for Immigration and Citizenship, ‘Last Refugees Leave Nauru’, Media Release (8 February 2008).

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Christmas Island pending a decision by the Minister to exercise his nondelegable, non-compellable discretion to allow an application for a protection visa. As such, offshore entry persons continued to remain barred from the mainland status determination procedures and subject to a separate, inferior, processing regime on Christmas Island. The scheme was designed to keep status determinations procedures beyond the reach of the Australian courts, but in a landmark 2010 case the High Court of Australia decided that offshore entry people were entitled under Australian law to access the courts and have their status determinations reviewed to determine whether those decisions were made according to the law, including the common law rules of procedural fairness.67 The decision resulted in flood of litigation by offshore entry persons challenging adverse status determinations. This also coincided with a significant increase in the number of people arriving by boat. Public opinion began to turn against the Government, with a view that its perceived ‘softening’ of Australia’s border protection policies was to blame.68 In response, the Gillard Labor government moved to introduce a series of new measures to stem the flow of arrivals. First, attempts were made to seek agreement for the creation of a regional processing centre. East Timor was flagged as a possible location for the processing centre, but this plan was abandoned after support from the East Timorese government was not forthcoming.69 Second, a bilateral ‘arrangement’ was negotiated with Malaysia giving rise to what became known as the ‘Malaysian Solution’.70 The arrangement provided that 800 asylum seekers who arrived in Australia by boat would be transferred to Malaysia for the processing of their claims. In return, Australia was to accept 4000 unhcr-recognised refugees from Malaysia over four years. Shortly after the deal was announced and before any asylum seekers could be transferred, the arrangement was struck 67

68 69 70

Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) aljr 133; See, also, Mary Crock and Daniel Ghezelbash, ‘Due Process and Rule of Law as Human Rights: The Court and the “Offshore” processing of asylum seekers’ (2011) 18 Australian Journal of Administrative Law 101. See Mary Crock, ‘First Term Blues: Labor, Refugees and Immigration Reform’ (2010) 17 Australian Journal of Administrative Law 205. Lindsay Murdoch, ‘East Timor Dumps Bilateral Talks on Refugee Centre’ Sydney Morning Herald (Sydney, 29 April 2011). See Chris Bowen mp, Minister for Immigration and Citizenship, ‘Joint Statements by the Prime Ministers of Australia and Malaysia on a Regional Cooperation Framework’, Media Release (7 May 2011); Julia Gillard, Prime Minister of Australia and Chris Bowen mp, Minister for Immigration and Citizenship, ‘Australia and Malaysia Sign Transfer Deal’, Media Release (25 July 2011).

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down in the High Court on the grounds that the protections provided in Malaysia were inadequate and did not meet the statutory thresholds required for third-country transfer.71 Following recommendations from a report by an ‘expert panel’ set up to examine policy options,72 the Gillard Government reversed its position opposing extraterritorial processing on Nauru and Manus Island and moved to reopen offshore processing facilities at those locations. The Pacific Solution Mark II was born. Legislation was passed in August 2012 that replaced the threshold requirements that were relied upon to strike down the Malaysian arrangement, in an attempt ensure future third country transfer and processing arrangements would not be invalidated by the courts.73 The Government also negotiated new memoranda of understanding with Nauru and png to reopen the processing camps in those countries.74 As of 29 January 2014, 867 asylum seekers were being held at the processing centre in Nauru,75 with 71

72 73

74

75

Plaintiff M70/2011 v Minister for Immigration and Citizenship and Another; Plaintiff M106 (by his litigation guardian, Plaintiff M70/2011) v Minister for Immigration and Citizenship and Another (2011) 280 alr 18; For an analysis of the case see Sasha Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims: The Judgement of the High Court of Australia in the “Malaysian Solution” Case’ (2012) 12 Human Rights Law Review 168; Michelle Foster, ‘The Implications of the Failed “Malaysian Solution”: The Australian High Court and refugee responsibility sharing at international law’ (2012) 13 Melbourne Journal of International Law 395. Angus Houston, Paris Aristotle and Michael L’Estrange, Report of the Expert Panel on Asylum Seekers (August 2012). Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012; The new provisions provide that the only condition for the exercise of the power to designate a country is that the Minister thinks that it is in the national interest to make such a designation. Julia Gillard, Prime Minister of Australia and Chris Bowen mp, Minister for Immigration and Citizenship, ‘Australia Signs Memorandum of Understanding with Nauru’, Media Release (29 August 2012); Julia Gillard, Prime Minister of Australia and Chris Bowen mp,  Minister for Immigration and Citizenship, ‘Australia and Papua New Guinea sign updated memorandum of understanding’, Media Release (8 September 2012); An updated Memorandum of Understanding was signed with png on 6 August 2013: ‘Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues’. Oliver Laughland, ‘Australia’s asylum policy: teenage detainees’ plight shines light on regime’ The Guardian (29 January 2014) accessed 26 February 2014.

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plans to expand the facility to hold up to 5000 persons.76 On the 20 November 2012, the first group of asylum seekers were transferred to the Manus Island facility in png,77 and as of 29 January 2014, 1259 asylum seekers were being held there.78 The new extraterritorial processing regime differs from original Pacific Solution in a number of key ways. First, amendments were passed to the Migration Act that expanded the categories of persons liable for transfer to third countries for processing to include all unauthorised boat arrivals (not just those that arrived in excise offshore places).79 Second, the updated memoranda of understanding signed with Nauru and png, not only allow for the transfer of asylum seekers for processing to those countries, but also for the resettlement of transferees assessed to be refugees. However, to date, it remains unclear how many resettlement places will be offered by png and Nauru. Upon being elected in 2013, the Abbot Coalition government not only continued the policy of extraterritorial processing at png and Nauru, but also reintroduced the policy of interdicting and returning asylum seeker boats to Indonesia where possible. As of 25 February 2014, at least 7 asylum seeker boats had been intercepted and returned in this manner.80 2.3 us and Australian Practices Compared The striking similarities in us and Australian interdiction and extraterritorial processing policies raise a strong presumption that Australia drew on us experience when devising its policies. In order to fully appreciate the similarities and the possible lessons drawn from us practice, it is important to first clearly distinguish between the various forms the policies of interdiction and extraterritorial processing have taken in the United States. First, interdiction was combined with basic screening procedures carried out at sea, where persons screened in as having a credible fear of persecution were 76 77

78 79 80

aap, ‘Nauru tent city to cost $2bn, Parliamentary Budget Office says’ The Australian (3 September 2013). Simon Cullen, ‘First asylum seekers arrive on Manus Island’ abc News (21 November 2012) accessed 23 October 2013. Laughland (n 75). Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012. Michael Bachelard, ‘Another turned back boat lands in Indonesia’ Sydney Morning Herald (25 February 2014) accessed 26 February 2014.

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transferred to the United States for the processing of their claims (1981– November 1991). Second, interdiction was combined with the transfer of all interdicted persons to Guantanamo Bay for processing (November 1991–May 1992). Third, interdiction and return to the point of departure was carried out with no screening of asylum claims what-so-ever (March 1992–March 1994). Fourth, interdicted ­persons were transferred to a third country for processing (brief policy of ­carrying out processing in Jamaica and the Turks and Caicos Islands, June–July 1994). Fifth, interdiction was combined with the transfer of all persons to Guantanamo Bay or third country (Caribbean nations such as Panama) for safe haven where they were protected from refoulement but not given access to status determination procedures (1994–1995). Sixth, is the current practice under which interdicted persons undergo basic screening at sea and are transferred to Guantanamo Bay for further processing (1995-present). The measures introduced as part of the original Pacific Solution bear the most direct resemblance to the third (interdiction and return with no processing) and fourth (interdiction and processing in a third country) form of the policy as utilised by the United States. The policy objective, however, was the same as all six incarnations of the policies of interdiction and extraterritorial processing: namely to control access to the State’s territory and carry out asylum determinations in a discretionary manner and outside the framework of domestic legislation and beyond the reach of judicial oversight. Unlike in the United States, where the approaches were used at separate points in time, Australia operated the policies of return without screening and extraterritorial processing concurrently. As part of Operation Relex, the Australian navy was instructed to intercept and return boats to Indonesia where ever possible. These returns were made subject to a Memorandum of Understanding between Australia and Indonesia, which echoed the agreement between the United States and Haiti which had facilitated the return of Haitians. Recognising, however, that returns may not always be possible, the Australian Government set up a concurrent system of offshore processing on Nauru and Manus Island in png as an alternative. The extraterritorial processing regime introduced as part of the Pacific Solution shared many striking similarities with the extraterritorial processing regimes utilised by the United States, both in third countries (Turk and Cocos Islands and Jamaica) and in the territory of Guantanamo Bay. All created a separate inferior system of asylum determination operating outside domestic legal frameworks. Australian law did not extend to asylum seekers on Nauru or png as these were sovereign nations with their own laws. us law did not extend to Jamaica or Turk and Cocos Islands for the same reason.

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Guantanamo’s special status put it beyond the reach of domestic migration legislation,81 and until recently, was viewed to be beyond the reach of the us Constitution.82 This extra-territoriality allowed for the adoption of streamlined processing which dispensed with essential features of mainland processing such as access to administrative review,83 judicial review, and access to lawyers.84 The excision of Australia’s offshore islands from Australia’s migration zone may also have been inspired by us practice. In some ways, it appears to be the logical extension of the ‘entry fiction’ first introduced in the United States in 1891.85 The ‘entry fiction’ allows for the transfer of those seeking admission to the us to us territory, while deeming them not present for the purposes of immigration law. Under the policy of excision, irregular arrivals who reached certain offshore territories were deemed not to have entered Australian ­territory for the purposes of the Migration Act and hence could not apply for asylum under domestic law. While possibly inspired by certain us practices, the policy had the effect of expanding the practice of interdiction and extraterritorial processing beyond that which had applied in the United States. Whereas the policy of extraterritorial processing had only been applied in the United States to persons who had been intercepted before they reached us ­territory, excision as introduced as part of the Pacific Solution extended the applicability of extraterritorial processing to asylum seekers who made 81 See text to n 24. 82 See Boumediene v Bush 533 us 723 (2008) (holding that the protection contained in the Suspension Clause of the us Constitution could be claimed by an enemy combatant held at Guantanamo Bay). 83 Asylum seekers processed in the United States have a right of review of their primary refugee determination before an Immigration Judge at the Executive Office for Immigration Review. Likewise, asylum seekers processed in Australia have a right to review at the Refugee Review Tribunal. No such review was available for persons under the extraterritorial regimes at Guantanamo Bay, the Turk and Cocos Islands, Jamaica, Nauru or Manus Island. 84 Asylum seekers processed in the United States have right to a lawyer present during their refugee determination interviews: 8 cfr § 208.5. Most asylum seekers in detention in Australia (as well as some living in the community) are given access to governmentfunded assistance through the Immigration Advice and Application Assistance Scheme (Note, however, that the new Abbott government elected in 2013 has expressed its intension to dismantle this scheme). Lawyers have been denied persons processed extraterritorially by the us and Australia. 85 The Immigration Act of 1891, s 8.

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landfall at Australia’s outlying islands. Reforms introduced in 2013 as part of the Pacific Solution Mark II, effectively extend this excision policy to apply to mainland Australia.86 The excision policy also took a new significance after the 2007 reforms which moved the location of extraterritorial processing from Pacific Islands to the excised territory of Christmas Island. The Government attempted to rely on the excision laws to create its own Guantanamo Bay on Christmas Island: creating a territory over which it exercised full control, but in which domestic laws and protections were said not to apply. The judiciary firmly rejected such an approach in the case of M61.87 This decision, as well as the failure of other attempts to create a regional solution to the continuing flow of irregular migrants led to a return to third country extraterritorial processing, with the reopening of detention centres in Nauru and Manus Island as part of the Pacific Solution Mark II. 3

Confirming the Lesson-Drawing Hypothesis

As the previous section indicates, the policy developments relating to interdiction and extraterritorial processing have followed similar patterns in Australia and the United States. While these similarities raise a strong presumption that lesson-drawing has been taking place, it does not rule out the alternate hypothesis that the similarities are due to independent responses to similar policy problems in both countries. This section sets out evidence that rules out the possibility of independent development by demonstrating that policy makers in Australia and the United States had direct knowledge of policy developments in each other’s jurisdictions which were drawn upon when developing the parallel policy responses. The section begins by identifying the instances of purported lesson-drawing that have taken place. Next, the evidence supporting the lesson-drawing hypothesis will be examined. This will be done with reference to documentary sources and interviews carried out by the author with key policy makers from Australia and the United States. The section concludes with an overview of the channels and forums which have facilitated the lesson-drawing process.

86 87

See text to n 79. See text to n 67.

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3.1 Content and Direction of the Transfers Before examining the evidence of the knowledge possessed by decision makers involved in the case study transfers, it is important to be clear about the content, direction and timing of the purported instances of lesson-drawing. In  relation to the practice of interdiction and extra-territorial processing, the transfer process appears to have been mono-directional, with Australian policy makers drawing lessons from the United States in the immediate lead up to the introduction of the original Pacific Solution in August and September 2001. While there is evidence to suggest ongoing dialogue in relation to the  operation of offshore detention facilities,88 these do not appear to have materially affected the interdiction and extraterritorial processing policies in either country. 3.2 Evidence Supporting the Lesson-Drawing Hypothesis This section demonstrates that Australian policy makers had an intimate knowledge of the operation of the policies interdiction and extraterritorial processing operating in the United States and drew on this knowledge when formulating Australia’s interdiction and extraterritorial processing policies. This will be achieved with reference to both documentary evidence on the public record, and interviews carried out by the author with key policy makers involved in the policy making process in Australia and the United States (note that the interview process is ongoing and this section reflects preliminary findings from the interviews carried out thus far).89 In relation to the transfer of the policy of interdiction and extraterritorial processing from the United States to Australia in 2001, the Bill Digest accompanied the Border Protection (Validation and Enforcement Powers) Bill 2001 directly

88 89

See text to n 95. The interview sample consists of key policy makers (including both politicians and bureaucrats) involved in developing and implementing interdiction and extraterritorial processing policies in Australia and the us. Subjects were identified using a mixed purposive/snowballing approach. The first stage of sample selection involved identifying a subset of relevant respondents through an examination of policy documents, media reports and parliamentary materials. Using this initial subset of respondents, a snowballing/ chain-referral process was initiated whereby respondents were asked to provide a list of people they feel where influential in the potential policy transfer under study. This procedure was repeated with the new nominees once the initial respondents proposed fresh names. So far the approach has identified 15 relevant policy makers from Australia and 9 from the United States. Confidentiality of interview subjects was guaranteed so as to maximise participation and encourage full and frank disclosure.

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refers to the us precedent.90 This act was the first of a series passed in the immediate aftermath of the Tampa incident to retrospectively authorise the actions that had been taken against that vessel and set up the legislative framework underpinning interdiction and offshore processing. The Bill Digest includes a section titled ‘United States Analogy’ which highlights the similarities between the proposed changes and the us interdiction programme operating since 1981.91 Australian policy makers interviewed on the subject acknowledged they had knowledge of the us precedent, but denied that they had engaged in lesson-drawing.92 A repeated assertion that was emphasised was that the policies were a response to unique Australian circumstances.93 However, the striking similarities between the Australian and us policies (and direct reference to us practices in the bill digest) make it very unlikely that no lessons were drawn from the us model. My interviews with us policy makers confirm this hypothesis. A senior bureaucrat intimately involved in setting up the us interdiction and extraterritorial processing regime confirmed that he was in daily contact with Australian Immigration and foreign affairs officials in the direct aftermath of the Tampa incident and provided these Australian officials with detailed briefings on the us experience with interdiction and extraterritorial processing and operational challenges that the Australia was likely to face.94 Ongoing dialogue in relation to the operation of extraterritorial processing and interdiction was evident in the ‘refugee swap’ agreement reached between  the United States and Australia in 2007.95 Under a Memorandum of Understanding entered into on 17 April 2007, the United States was to ­resettle 200 asylum seekers who had been recognised as refugees on extraterritorial processing centres in Nauru and were awaiting resettlement. In return, Australia was to consider for resettlement recognised refugees waiting for resettlement in Guantanamo Bay.96 As Dastyari has observed, the refugee swap 90

Nathan Hancock, ‘Bills Digest: Border Protection (Validation and Enforcement Powers) Bill 2001’ (Department of the Parliamentary Library: Information and Research Services, 2001). 91 Ibid., 14. 92 Interview aup50, aup35, aup49. 93 Ibid. 94 Interview usb19. This was confirmed by interview usb6. 95 Kevin Andrews mp, Minister for Immigration and Citizenship, ‘War Crimes mou and Asylum Agreement Signed’ (17 April 2007). For analysis of the agreement see Azadeh Dastyari, ‘Refugees on Guantanamo Bay: A blue print for Australia’s “Pacific Solution”?’ (2007) 79(1) Australia Quarterly 4. 96 Note that the decision of the Australian Labor government to abandon offshore processing in 2007 meant that the refugee swap was never actually carried out.

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was ‘a reminder of the parallels between us and Australian practices towards refugees and asylum seekers’.97 3.3 Channels of Communication As well as the direct evidence cited above, the ever increasing number of formal and informal forums in which Australian and us migration officials meet to discuss policy developments provide strong indirect or circumstantial evidence that Australian and us policy makers are discussing and hence well aware of policy developments in each other’s jurisdictions. These policy networks which facilitate the transfer process can be divided into four main categories:98 1) international networks operating within official international organisations; 2) regional networks that operate within existing regional economic, political and security institutions and organisations; 3) migration specific informal regional networks; 4) Australian-us bilateral networks. 3.3.1

International Networks Operating within Existing International Organisations Australian and us migration policy makers meet and discuss policy developments in a number of regular inter-governmental meetings facilitated by formal international institutions. The Executive Committee of the un agency responsible for refugees and displaced persons – the un High Commission on Refugees (unhcr)99 operates yearly executive committee meetings which ­provide an opportunity for participant states to discuss recent developments and issues relating to the interpretation and implementation of the Refugee Convention and to develop policies of sorts in the form of ‘Conclusions’.100 The un has also run a number of ad hoc forums dealing with migration policy which Australia and the United States have participated in including the unhcr Global Consultations on International Protection held in 2001 and 2002.101 The International Organisation of Migration (iom) also operates regular international forums in which us and Australian policy makers participate. 97 98

Dastyari (n 95). On the role of networks in facilitating transfers, see Diane Stone, ‘Transfer agents and global networks in the “transnationalisation” of policy’ (2004) 11 Journal of European Public Policy 545. 99 unhcr was established by the un General Assembly as a subsidiary organ under Article 22 of the United Nations Charter. See Guy Goodwin-Gill and Jane McAdam The Refugee in International Law (3rd edn, Oxford University Press 2008) 428. 100 See Goodwin-Gill and McAdam, ibid., 215–217, 429–430. 101 See Judith Kumin, ‘Revitalising International Protection: The unhcr’s Global Consultations’ (2001) 19 Refuge 5.

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3.3.2

Regional Networks Operating within Existing Institutions and Organisations Migration law and policy has been placed on the agenda of various regional economic, political and security institutions and organisations, which address migration issues as one of a broad range of topics. Examples of such organisations, in which both Australia and the us participate, include the Asia Pacific Economic Cooperation (apec) Forum and the G-20 summits.

3.3.3

Informal Migration Specific Regional Forums: Regional Consultative Processes Recent years have seen the proliferation of Regional Consultative Processes (rcps), regular, informal, closed-door meetings in which states with similar backgrounds and interests meet regularly to discuss policy for the purpose of exchanging ideas, fostering cooperation, and developing ‘best practice’ ­models. rcps vary in their composition, history, purpose and organisational frameworks, but they share the principal characteristics of being created to meet regularly for the specific purpose of discussing migration issues and generating informal, non-binding agreements. In this respect they differ from other regional bodies where migration might be only one of many themes for discussion. By design, they are processes that foster the transfer of migration policy and practice. Their role as facilitators of policy learning and transfer is well documented,102 and is evident by one of the often-cited goals of these institutions: ‘to build capacity to manage migration’.103 Capacity building involves the transfer of knowledge, skills and best practice policies. It occurs at a general level through the sharing, collecting and dissemination of migration information and lessons learned in migration management, and through specific capacity building workshops.104 The key rcps in which Australian and us policy makers meet are the so called ‘Group of 5’

102 Randall Hansen, ‘Interstate Cooperation: Europe and Central Asia’ in Gervais Appave and Frank Laczko (eds), Interstate Cooperation and Migration (International Organisation for Migration 2005) 17; Colleen Thouez and Frederique Channac, ‘Shaping international migration policy: The role of regional consultative processes’ (2006) 29 West European Politics 370; Bimal Ghosh, ‘New international regime for orderly movements of people: what would it look like?’ in Bimal Ghosh (ed), Managing Migration: Time for a New International Regime? (oup 2000). 103 International Organisation for Migration, ‘Global Meeting of Chairs and Secretariats of Regional Consultative Processes on Migration (rcps) – Bangkok, 4–5 June 2009: Summary Report’ (International Organisation for Migration, 2009) 3–4. 104 Ibid., 4.

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meetings (which also include representatives from Canada, the United Kingdom and New Zealand) and the Inter-governmental Consultations on Asylum. The informal, non-binding nature of these forums is said to foster full and frank discussion of policy problems and responses and hence facilitate lesson-drawing.105 3.3.4 Bilateral Forums Australian and us migration policy makers meet and discuss migration control policy developments through formalised and ad hoc bilateral channels. Ad hoc transfer of ideas is facilitated by bilateral meetings and formal exchange programmes. Five of the Australian policy makers (two former Ministers and three bureaucrats) interviewed indicated that they had made separate trips to the us on fact finding missions.106 Another prominent channel for communication cited by interview subjects were the migration policy attachés based in the Australian embassy in Washington, and the us embassy in Canberra. These officials provide a permanent channel through which policy makers from each country can request information regarding the operation or implementation of migration control policies. 4 Ramifications The transfer of migration control policies between Australia and the United States examined in this paper are not isolated incidents. Subsequent to their adoption by Australia and the United States, the policies of interdiction and extraterritorial processing have been considered and or implemented in a number of other jurisdictions. The European Union (eu) and individual eu nations have utilised the practice of interdiction at sea. Maritime interdiction operations have been carried out by Italy, France, Greece and Spain in the Adriatic Sea, the Mediterranean and around the Canary Islands.107 Interdiction 105 Randall Hansen, ‘Making Cooperation Work: Interests, Incentives, and Action’ in Randall Hansen, Jobst Koehler and Jeannette Money (eds), Migration, Nation States, and International Cooperation (Routledge 2011) 21. 106 Interviews aup11, aub15, aub77, aub19, aup35. 107 Maarten Den Heijer, Europe and Extraterritorial Asylum (Hart 2012); Violeta Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of eu Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174; Derek Lutterbeck, ‘Policing Migration in the Mediterranean’ (2006) 11 Mediterranean Politics 59.

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operations have also been carried out by the eu under the auspices of Frontex.108 Various proposals have been put forward to create an extraterritorial processing centre in Europe to which persons interdicted on the high seas or at land borders could be transferred for processing.109 Elsewhere, I have argued that a similar process of lesson drawing has been occurring with respect to the policy of mandatory detention of asylum seekers.110 In principle, there is nothing wrong with drawing lessons from the policies and laws of foreign jurisdictions. More than 2300 years ago, Aristotle studied the different ways Greek cities governed themselves in order to learn how to create the best political system. Examining the experiences and policy responses of other jurisdictions makes good sense. Why reinvent the wheel when there are existing tried and tested models operating elsewhere? There are, however, a number of concerns raised by the nature of the lesson-drawing process that has been carried out in the migration control policy arena. The first relates to the quality and transparency of the information relied upon when drawing lessons. The second relates to the competitive nature of the practice which has given rise to a race to the bottom and an erosion of the international refugee protection regime. 4.1 Misinformed Lessons Lesson-drawing can only be an effective policy making tool when it is informed by reliable and independent information about the operation and effect of the policy from which lessons are being sought to be drawn. In this regard there are serious concerns about the information relied upon by migration policy makers in their lesson-drawing endeavours. The underlying purpose of the casestudy policy measures examined in this paper is maximising the power of the political branches over migration control and reducing the number of irregular arrivals. In relation to the second objective, it is unclear what evidence 108 See Moreno-Lax, ibid., 179–183. 109 See Gregor Noll, Fagerlund Jessica and Liebaut Fabrice, ‘Study on the feasibility of processing asylum claims outside the eu against the background of the common European asylum system and the goal of a common asylum procedure: final report’ (Danish Centre for Human Rights, 2002); Amnesty International, ‘uk/eu/unhcr: Unlawful and unworkable – extra-territorial processing of asylum claims’ (17 June 2003); Madeline Garlick, ‘The eu Discussions on Extraterritorial Processing: Solution or Conundrum?’ (2006) 18 International Journal of Refugee Law 601; Susan Kneebone, McDowell Christopher and Morrell Gareth, ‘A Mediterranean Solution? Chances of Success’ (2006) 18(3–4) International Journal of Refugee Law 492. 110 Mary Crock and Daniel Ghezelbash, ‘Secret Immigration Business: Policy Transfers and the Tyranny of Deterrence Theory’ in Satvinder S Juss (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013).

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policy makers are relying on when evaluating the effectiveness of foreign models. There exists a relative dearth of hard research on the real effects and effectiveness of migration control measures. The discourse on immigration and border control in many countries seems to be characterised by assertion and assumption rather than by reasoned and evidence based exposition. The unreliability of the information relied upon is compounded by the closed and exclusionary nature of the forums in which governments share information about migration control policies. As a result, governments may not be getting the whole story and may be implementing ineffective policies based on misinformed lessons. In a recent piece co-authored with Professor Mary Crock, we argue that one of the ways to address this issue of misinformed transfers is for migration academics to take a more active role in sharing and discussing policy developments in their countries so as to equip each other with the knowledge to counter unsubstantiated claims about efficacy of particular policies.111 4.2 Race to the Bottom Lesson-drawing in the migration control policy arena appears to be, at least in part, fuelled by a competitive drive that is resulting in the dissemination of progressively harsher and more punitive measures. Migration control is an area of law in which governments are particularly concerned about what other jurisdictions are doing. Changes in the immigration policy of one country have implications for the immigration policy of other countries. As Brubaker has noted: ‘a person cannot be expelled from one territory without being expelled into another, cannot be denied entry into one territory without having to remain in another.112 As such, a more permissive policy in one state, may lead to a reduction of immigration flows in neighbouring states, while a more restrictive policy may increase the number of migrants seeking entry into other states.113 In this context, states appear to observing (and learning from) the policies of comparator countries because they are competing to deter irregular migrants. The assumption is that asylum seekers choose countries in which to seek refuge according to ease of access and what might loosely be termed immigration and settlement outcomes. Countries with generous laws and policies then become targets for people smugglers and traffickers. After the Australian Labor party announced a deal to return asylum seekers to Malaysia 111 Ibid. 112 Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press 1992) 26. 113 Sandra Lavenex and Emek M Uçarer, ‘The External Dimension of Europeanization’ (2004) 39(4) Cooperation and Conflict 417, 425.

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for processing in July 2011, New Zealand and Canada were named expressly as alternative destinations for asylum seekers who might otherwise have tried their luck in Australia.114 This competitive approach creates a vicious cycle which leads to a race to the bottom in which governments seek to outdo each other by implementing progressively more restrictive policies. In this context, the policy imperative becomes deflecting irregular arrivals to alternate destinations and reassuring the public that the government is in control of the nation’s borders. Such an approach has, and will continue to have, a devastating impact on the institution of asylum. 114 See afp, ‘New Zealand shuts door to refugees’, Sydney Morning Herald (Sydney, 12 July 2011) accessed 23 October 2013.

A Liberal Paradigm Shift? A Critical Appraisal of Recent Trends in Latin American Asylum Legislation Luisa Feline Freier1 1 Introduction The literature on refugee policies and laws suggests a restrictive trend ‘from asylum to containment’2 since the end of the Cold War. Although controversy exists about the ‘downward spiral’ in European refugee law,3 there is evidence that Western receiving states have limited the protection they offer and rather focus on containing refugees in their countries or regions of origin.4 The sparse studies of refugee policies in the South focus on Africa and describe a parallel restrictive policy trend.5 Loescher & Milner (2011) find that “[i]n the South, which continues to host the vast majority of the world’s refugees, states are also responding to the mass arrival and prolonged presence of refugees by placing limits on the quantity and quality of asylum they offer.” The generalizing assumption of increasing restrictiveness in the field of asylum legislation overlooks an intriguingly different development in Latin America. 1 PhD candidate London School of Economics and Political Science, Department of Government. 2 Andrew Shaknove, ‘From Asylum to Containment’ (1993) 5 (4) International Journal of Refugee Law. 3 Christian Kaunert, Sarah Léonard, ‘The European Union and Refugees: Towards More Restrictive Asylum’ (2011) 8 Gritim Working Paper Series; Eiko Thieleman and Nadine El-Enany, ‘Refugee Protection as a Collective Action Problem: is the eu Shirking its Responsibilities?’ (2010) 19 (2) European Security. 4 Bhupinder Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11 (4) Journal of Refugee Studies; Virginie Guiraudon, ‘European Integration and Migration Policy: Vertical Policy-Making as Venue Shopping’ (2000) 38 (2) Journal of Common Market Studies; Andreas Schloenhardt, ‘To Detain, Deter and Deny: Protection of Onshore Asylum-Seekers in Australia’ (2002) 14 (2/3) International Journal of Refugee Law; Timothy Hatton, ‘Seeking Asylum in Europe’ (2004) 19 (38) Economic Policy; Guild, Elspeth ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18 (3–4) International Journal of Refugee Law; Timothy Hatton, Seeking Asylum: Trends and Policies in the oecd (2011) Centre for Economic Policy Research (cepr). 5 Bonaventure Rutinwa, ‘The end of Asylum? The Changing Nature of Refugee Policies in Africa’ (1999) 5 New Issues in Refugee Research; Gil Loescher and James Milner, ‘unhcr and the Global Governance of Refugees’ in Alexander Betts (ed.) Global Migration Governance (2011) Oxford University Press.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_007

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Legislative reforms in Latin America, and especially in South America, do not mirror the pattern of constricting asylum, but rather represent a new vanguard in human rights based refugee law. Since the late 1990s, policy makers in the region, who in their majority inherited restrictive migration and asylum legislation from the military dictatorships of the 1970s and 1980s, became increasingly prone to protecting refugee rights. Since 1997, almost all Latin American countries reformed their refugee legislation.6 The head of the legal department of the United Nations High Commissioner for Refugees (unchr) for the Americas in San José, Juan Carlos Murillo González, praises the legislative good practices embedded in these legislations, and sees Latin America as surpassing Europe as a model of human rights based refugee legislation.7 This chapter explores the liberal paradigm shift in Latin American asylum legislation. The term ‘liberal’ is understood as favourable to individual rights and freedoms, and liberal asylum legislation as expansive regarding refugees’ rights. The chapter shows liberalization of Latin American asylum legislation both over time, and in international comparison. First, the chapter traces five major developments in Latin American asylum legislation since 1950. Second, it explores the range of expansiveness of recent refugee laws based on a weighted scheme of the legislative good practices unchr identified in the region. Third, the chapter offers an in-depth comparison of the two most liberal legislations in Latin America, the laws of Argentina and Mexico, with one of the lowest scoring legislations, Peru. Although the conclusion suggests some possible determinants of this paradigm shift, developing explanations for legislative change in the region leaves room for important further research. 2

Regional Context

At the beginning of the 21st century, Latin America and the Caribbean host relatively few refugees and asylum-seekers. In mid 2013, only approximately 380.000, or 3.4%, of the 11.1 million refugees or people in refugee-like situations

6 The two exceptions are Cuba, which only has a constitutional right to asylum since 1976, and Dominican Republic, which has not reformed its asylum legislation since 1984. 7 Interview with Juan Carlos Murillo González, head of the legal department of the (unchr) for the Americas in San José, London, 14.11.2013.

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resided in Latin America, compared to roughly 1 Million in Europe.8 This has not always been the case. In the 1960s and 1970s, the military dictatorships in the Southern Cone led to ten thousands of refugees in the region and other parts of the world (no definitive statistics are available on the number of individuals exiled as a consequence of the repressive actions of authoritarian governments).9 In the 1980s, internal conflict and human rights violations led to the mass displacement of Central Americans. By the late 1980s, there were between 500,000 and 750,000 Central American refugees in Mexico and as many as one million in the United States.10 The gradual democratization of the region in the 1980s and the closure of refugee camps in Mexico and Central America in the mid-90s, together with the voluntary repatriation movements to Guatemala, El Salvador and Nicaragua, reduced the number of asylum-seekers and refugees.11 However, at the end of the 1990s internal and external forced displacement in and from Colombia increased, and hundreds of thousands of Colombians have since looked for protection in Ecuador, Panama and Venezuela. In mid 2013, there further were close to 4.75 million Internally Displaced Persons (idps) in Colombia. Since the late 1990s, Latin American countries have also received growing numbers of asylum applications from Caribbean, especially since the Haitian earthquake of 2010, and from African, Asian and Middle Eastern nationals.12 Regarding the reception and protection of refugees, there are three types of scenarios:13 (1) countries that host few (or almost no) asylumseekers and refugees, such as Bolivia, Colombia, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay and Uruguay; (2) countries that give shelter to 8 9

un High Commissioner for Refugees (unhcr), Mid-Year Trends 2013. Juan Pablo Terminiello, Dictatorships, Refugees and Reparation in the Southern Cone of Latin America, available at: [accessed 17 March 2014]. 10 Maria Cristina Garcia, Seeking Refuge, Central American Migration to Mexico, The United States, and Canada (2007) University of California Press. 11 See un High Commissioner for Refugees (unhcr), ‘The Refugee Situation in Latin America: Protection and Solutions Based on the Pragmatic Approach of the Cartagena Declaration on Refugees of 1984’ (2006) 18 (1) International Journal of Refugee Law. 12 Luisa Feline Freier, ‘Las corrientes migratorias contemporáneas de Asia, África y el Caribe en Sudamérica’ in: ‘Migrantes extracontinentales en América del Sur: Estudio de casos’ (2013) 5 Cuadernos Migratorios International Organization for Migration. 13 See un High Commissioner for Refugees (unhcr), ‘The Refugee Situation in Latin America: Protection and Solutions Based on the Pragmatic Approach of the Cartagena Declaration on Refugees of 1984’ (2006) 18 (1) International Journal of Refugee Law.

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a significant number of asylum-seekers and Latin American refugees, such as Costa Rica, Ecuador, Panama and Venezuela; (3) emerging resettlement countries, such as Argentina, Brazil and Chile. 3

Developments in Latin American Asylum Legislation

The chapter identifies five stages of liberalization in Latin American asylum legislation since the mid 20th century: (1) the ratification of the 1951 Convention Relating to the Status of Refugees (hereafter the 1951 Convention), (2) the ratification of its 1967 Protocol, (3) the adoption of a constitutional right to asylum, (4) the incorporation of the Cartagena refugee definition into national legislation, (5) and recent reforms in refugee legislation. Regional declarations and action plans that aim to strengthen the commitment of American countries to search for sustainable solutions for refugees, displaced and stateless persons further supplement these legislative developments: the 1994 San Jose Declaration on Refugees and Displaced Persons, the 2004 Mexico Plan of Action and the 2010 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas. Figure 4.1 depicts the chronological order of the five stages of legislative liberalization for nineteen Latin American countries since 1950.14 It needs to be pointed out that Latin America historically had a pioneering asylum tradition that long predated the 1951 Convention. Although the historic origins of political asylum lie in post French Revolutionary Europe, it was the 1889 Montevideo Treaty on International Penal Law that contained the first provisions ever on asylum and refugee protection, and laid the groundwork for the later development of international asylum law.15 However, there is an important conceptual difference between the Latin American asylum tradition and the 1951 Convention and its 1967 Protocol. The former is a narrow concept that was originally aimed at the protection of highprofile political and social leaders, whereas the 1951 refugee status is not

14 15

Although Belize is one of the signing states of the Cartagena Declaration, it is not part of Latin America and thus not included in the analysis. David Cantor, ‘European Influence on Asylum Practices in Latin America: Accelerated Procedures in Colombia, Ecuador, Venezuela and Panama’ in Hélène Lambert, Maryellen Fullerton and Jane McAdam (eds.), The Global Reach of European Refugee Law (2013) Cambridge University Press.

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Figure 4.1 Five stages of liberalization of Latin American asylum legislation

*B olivia included the Cartagena refugee definition in 1983, one year before the adoption of the Cartagena Declaration in 1984. **Repealed through Decree 1.182 of 2012

only based on political persecution, but also on persecution based on race, religion, nationality or social group. More importantly, the character of the asylum condition in Latin America has historically been constitutive, in contrast to the declarative nature of the refugee status of the 1951 Convention. Whereas “[a] person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition” (unhcr 1979),16 in Latin America an asylee only became an asylee if recognized as such by the asylum granting government. In contrast to

16

The 1951 refugee status determination is declarative, not constitutive. “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. …Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee” (un High Commissioner for Refugees (unhcr), unhcr Handbook on Procedures and Criteria for Determining Refugee Status (1979, 1992).

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the 1951 concept of well founded fear of persecution, Latin American asylees furthermore had to prove their actual persecution.17 Despite Latin America’s pioneering role in the development of international asylum law, the ratification of the 1951 Convention and its 1967 Protocol thus amount to the first two stages of policy liberalization since the mid 20th century. After the first group of European countries had become parties to the 1951 Convention in the 1950s, Ecuador was the first Latin American country to ratify the Convention in 1955 and its Protocol in 1969. Another group of South American countries followed to ratify the Convention in the early 1960s and the Protocol in the mid 1970s.18 Most Central American countries ratified the Convention and its Protocol in the late seventies and early eighties.19 Mexico was the last country in the region to ratify both in 2000. The incorporation of a constitutional right of asylum constitutes a third stage of liberalization because it defines asylum as an individual, fundamental,  human right. While Costa Rica and Cuba adopted such a constitutional right in 1949 and 1976,20 a second group of Central American countries and Brazil followed in the eighties.21 Most South American countries adopted a 17

18

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20 21

Cantor argues that even after the adoption of the 1951 Convention and its Protocol, in many Latin American countries [p]olitical asylum continued to be the paradigm through which refugee law was understood, see David Cantor, ‘European Influence on Asylum Practices in Latin America: Accelerated Procedures in Colombia, Ecuador, Venezuela and Panama’ in Hélène Lambert, Maryellen Fullerton and Jane McAdam (eds.), The Global Reach of European Refugee Law (2013) Cambridge University Press; also see Eduardo Arboleda, ‘Refugee Definition in Africa and Latin America: The Lessons of Pragmatism’ (1991) 3 (2) International Journal of Refugee Law, 201. Argentina ratified the 1951 Convention in 1961 and its 1967 Protocol in 1976; Colombia ratified the 1951 Convention in 1961 and its 1967 Protocol in 1980; Brazil ratified the Convention in 1962 and its 1967 Protocol in 1970; Peru ratified the 1951 Convention in 1964 and its 1967 Protocol in 1983; Uruguay ratified the 1951 Convention and its 1967 Protocol in 1970; Paraguay ratified the 1951 Convention and its 1967 Protocol in 1970; Chile ratified the 1951 Convention and its 1967 Protocol in 1972. Costa Rica, Dominican Republic and Panama ratified the 1951 Convention and its 1967 Protocol in 1978; Nicaragua ratified the 1951 Convention and its 1967 Protocol in 1980; Bolivia ratified the 1951 Convention and its 1967 Protocol in 1982; El  Salvador and Guatemala ratified the 1951 Convention and its 1967 Protocol in 1983; Honduras ratified the 1951 Convention and its 1967 Protocol in 1992; Venezuela ratified the 1967 Protocol in 1986. Costa Rica (Art. 31 of 1949 Constitution); Cuba (Art. 13 of 1976 Constitution). El Salvador (Art. 28 of 1983 Constitution); Guatemala (Art. 27 of 1985 Constitution); Honduras (Art. 101 of 1982 Constitution); Nicaragua (Art. 5 of 1987 Constitution); Brazil (Art. 4 of 1988 Constitution).

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constitutional right to asylum in the 1990s.22 Ecuador, Bolivia, Dominican Republic and Mexico only did so since 2008,23 while Chile, Panama and Uruguay do not have any constitutional provisions on asylum. The relatively recent adoption of the constitutional right to asylum in Latin American is intriguing from a comparative perspective because most countries in the world provide asylum through domestic refugee laws, such as a statute incorporating the 1951 Convention Relating to the Status of Refugees. In Europe, there has in fact been a development away from the constitutional right to asylum in the 20th century.24 The fourth stage of legislative liberalization in Latin America since 1950 is the incorporation of the Cartagena refugee definition into national legislation. The 1984 Cartagena Declaration was developed in the context of the mass displacement of Central Americans in the early 1980s. The Colloquium on the International Protection of Refugees in Central America, Mexico and Panama that met in Cartagena in November of 1984 recognized that the 1951 Convention and its 1967 Protocol, let alone pre-existing inter-American asylum treaties, did not adequately address the situation of displaced Central Americans25 and extended entitlement to protection to victims of generalized violence, foreign aggression, internal armed conflict, and mass human rights violations or other circumstances, which seriously disturb the public order. The ten signing states were Belize,26 Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela. Gibney and 22

23 24

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Colombia (Art. 36 of 1991 Constitution); Paraguay (Art. 43 of 1992 Constitution); Peru (Art. 36 of 1993 Constitution); Argentina (Art. 75 of 1994 Constitution); Venezuela (Art. 69 of 1999 Constitution). Ecuador (Art. 41 of 2008 Constitution); Bolivia (Art. 29 of 2009 Constitution); Dominican Republic (Art. 46 of 2010 Constitution); Mexico (Art. 11 of 2011 Constitutional). The three prominent European exceptions to this rule are France, Italy and Germany, where a constitutional right of asylum was implemented in the aftermath of the 1789 Revolution and the Second World War, but has become somewhat superfluous under the Refugee Convention and recent eu asylum legislation (ibid.). France (Art. of 1793 Constitution), Italy (Art. 10 (3) of 1948 Constitution) and Germany (Art. 16 (II) (Art. 2 of 1949 Basic Law), see Hélène Lambert, Francesco Messineo and Paul Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany: Requiescat in Pace?’ (2008) 27 (3) Refugee Survey Quarterly. Eduardo Arboleda, ‘Refugee Definition in Africa and Latin America: The Lessons of Pragmatism’ (1991) 3 (2) International Journal of Refugee Law. Although Belize is one of the signing states of the Cartagena Declaration, it is not part of Latin America and thus not included in the analysis. The country passed a formal refugee law, the Refugees Act, in 1991, which it revised in 2000. Although the legislation provides for a Refugee Eligibility Committee, it has been inactive since 1997, and the refugee

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Hansen (2005) argue that although non-binding, the Cartagena Declaration was made applicable to all of Latin America through its adoption by the General Assembly of the Organization of American States (oas) in 1985.27 However, the declaration was adopted in a context, in which the majority of countries in the region had just recently become party to the 1951 Convention and it’s Protocol. The process of democratization was far from consolidated, and most countries lacked national legislation and procedures to enforce international normative frameworks. Although the Cartagena Declaration originally was a Central American, rather than a Latin American project, Bolivia anticipated its broad refugee definition in 1983, one year before its official adoption.28 Ecuador followed in 1987, Mexico in 1990 and Brazil in 1997.29 Guatemala, El Salvador and Colombia adopted the Cartagena definition in special governmental decrees in 2001, 2002 and 2009 respectively.30 Paraguay, Peru, Honduras, Argentina, Uruguay, Nicaragua and Chile incorporated the Cartagena definition in refugee laws passed between 2002 and 2010.31 Costa Rican, Cuban, Dominican, Ecuadorian, Panamanian and Venezuelan legislations – thus including the four countries that receive by far the most refugees in the region – do not adhere to the Cartagena refugee definition. After the Cartagena Declaration, the development of a regional system of asylum continued with the 1994 San Jose Declaration on Refugees and

27 28 29 30 31

department was downsized to a single desk within the migration department in 1998. Asylum claims have not been adjudicated since 1998. Belize thus currently has no functioning asylum system. See un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Belize, March 2013, available at: [accessed 22 March 2014]. Matthew Gibney and Randall Hansen, Immigration and Asylum: From 1900 to Present (2005) abc-clio Oxford/Santa Barbara. Bolivia (Decree Supremo Nr. 19640, Art. 2). Ecuador (Decree Nr. 3293 of 1987); Mexico (‘Ley General de Población’ (reform of) of 1990); Brazil (Law Nr. 9474, Art. 1, III of 1997). Guatemala (Governmental Agreement 383–2001, Art. 11 c of 2001); El Salvador (Decree Nr. 918, Art. 4 c of 2002); Colombia (Decree Nr. 4503, Art. 1 B of 2009). Paraguay (Law Nr. 1.938 ‘Ley General sobre Refugiados’, Art. 1 b of 2002); Peru (Law Nr. 27.891 ‘Ley del Refugiado’, Art. 3 of 2002); Honduras (‘Ley de Migración’, Art. 42. 3 of 2004); Bolivia (Decree Supremo Nr. 28329, Art. 12); Argentina (Law Nr. 26.165 ‘Ley General de Reconocimiento y Protección al Refugiado’, Art. 4 b of 2006); Uruguay (‘Ley 18076 sobre el Estatuto de Refugiados’, Art. 2 b) del 2006); Nicragua (‘Ley 130 de Protección a Refugiados’, Art. 1 c) of 2008); Chile (Law Nr. 20430, Art. 2.2 of 2010).

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Displaced Persons, the 2004 Mexico Plan of Action, and the 2010 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas. The unhcr praises the latter as international precedent, particularly high-lighting three topics: the emphasis on non-refoulment, the incorporation of gender, age and diversity into national refugee legislation, and the declaration’s encouragement to adequately address new situations of displacement not foreseen in the 1951 Convention, such as the people fleeing from violence in Colombia. In the final stage of liberalization, almost all Latin American countries reformed their asylum legislation since the 1990s, most passing more comprehensive and expansive refugee laws.32 A significant number of Latin American countries lacked formal refugee laws before, although international and domestic instruments at least in theory regulated the principles, determination and fundamental rights of asylum-seekers and refugees. Brazil (1997), Argentina (2006) and Mexico (2011) passed exceptionally expansive laws. There are, however, exceptions to this fifth stage of liberalization. For Example Ecuador, which was the first country in the region to ratify the 1951 Convention and the second to incorporate the Cartagena definition in 1987,33 has recently made its refugee legislation more restrictive. After adhering to the Carta­ gena refugee definition for 25 years, it was not included in the 2012 decree 32

33

Brazil (Law Nr. 9.474 of 1997, ‘Define Mecanismos para a Implementação do Estatuto dos Refugiados de 1951, e Determina outras Providências’); Venezuela (‘Ley Orgánica sobre refugiados o refugiadas y asilados o asiladas’ of 2001); Guatemala (Governmental Agreement Nr. 383 of 2001, ‘Reglamento para la protección y determinación del estatuto de refugiado en el territorio del Estado de Guatemala’); El Salvador (Decreto Nr. 918 of 2002, ‘Ley para la determinación de la condición de personas refugiadas’); Paraguay (Law Nr. 1.938 of 2002, ‘Ley General sobre refugiado’); Peru (Law Nr. 27.891 of 2002, ‘Ley del Refugiado’); Honduras (Decree Nr. 208 of 2004, ‘Ley de migración y extranjería’); Argentina (Law Nr. 26.165 of 2006, ‘Ley General de reconocimiento de protección al refugiado’); Uruguay (Law Nr. 18.076 of 2006, ‘Ley sobre el Estatuto del Refugiado’), Nicaragua (Law Nr. 655 of 2008 ‘Ley de Protección a Refugiados’); Costa Rica (Law Nr. 8.764 of 2009, ‘Ley General de Migración y Extranjería’); Chile (Law Nr. 20.430 of 2010, ‘Establece disposiciones sobre protección de refugiados’); Mexico (‘Ley sobre Refugiados y Protección Complementaria’ of 2011); Bolivia (Law Nr. 251 of 2012, ‘Ley de Protección a Personas Refugiadas’); Panama (Law Nr. 74 of 2013, ‘Establece los requisitos para que todos los refugiados y asilados puedan aplicar a la categoría de residente permanente’); Ecuador (Decree Nr. 1.182 of 2012, ‘Reglamento para la aplicación del derecho de refugio’); Colombia (Decree Nr. 2840 of 2013, ‘Por el cual se establece el Procedimiento para el Reconocimiento de la Condición de Refugiado, se dictan normas sobre la Comisión Asesora para la Determinación de la Condición de Refugiado y otras disposiciones’). Decree 3293 of 1987.

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on refugee law.34 Civil society and the unhcr furthermore severely criticize the adoption of accelerated procedures in the assessment of asylum claims since 2011.35 Based on the five stages of liberalization, it can be noted there has been alternation in the position of Latin America vis-à-vis other world regions and/ or international asylum law regarding the expansiveness of asylum legislation. After the region pioneered with historically expansive asylum rights at the turn of the 20th century, the ratification of the declarative 1951 Convention and its 1967 Protocol implied a liberalization of the constitutive asylum tradition in Latin America. The adoption of the 1984 Cartagena refugee definition, in turn, instituted liberalization in comparison to the scope of protection of the 1951 Convention. The adoption of a constitutional right to asylum presented liberalization in comparison to Europe, where there has been a development away from the constitutional right to asylum in the 20th century. The recent wave of legislative refugee reforms constitutes liberalization both in comparison to older legislations within the region, and in contrast to the restrictive trends in other world regions. 4

Range of Expansiveness of Latin American Refugee Legislation

This section will take a closer look at current refugee legislations in Latin America. The legislative reforms since the late 1990s constitute liberalization on the regional level, but there is significant variation in cross-country comparison. The following analysis is based on 30 legislative good practices (buenas prácticas legislativas) for the protection of refugees that the unhcr identified in Latin America on the occasion of the 30th anniversary of the Cartagena Declaration in 2013. The unhcr abstracted these good practices primarily from refugee laws, but also from immigration laws, international conventions, treaties and national decrees.36 In order to account for the fact that some of these good practices are more important than others, the chapter applies a four-tier weighting scheme, differentiating between (1) basic principles of asylum; (2) the scope of protection: (3) the asylum granting procedure and (4) integration measures. 34 35 36

Decree Ejecutivo 1182 of 2012 ‘Reglamento para la aplicación del derecho de refugio’. Decree 1635/09 made operational through Ministerial Accord 003 of 2011. The analysis is available in table format on unhcr’s regional website: .

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The basic principles of asylum, and the refugee definition constitute core refugee law and receive four and three points respectively. The basic principles of asylum are weighted higher than the scope of protection because they provide the basis of protection, whereas the scope of protection stipulates who is to be protected. Good practices in asylum procedures are weighted with two points. Although one could argue that adequate procedures are essential to effectively exercise the right of asylum stipulated by the law, procedures alone cannot provide protection. Good practices regarding procedures, on the other hand, can be demanded based on basic principles of asylum and the scope of protection. Although good practices regarding the integration of asylum-­ seekers and refugees are very important for their quality of life, they are not essential for their protection, and are thus rated with one point. Table 4.1 shows that in most cases there is no significant difference between the percentages of the incorporation of unweighted and weighted good Table 4.1

Incorporation of unweighted and weighted good practices

Country

Incorporation unweighted good practices in %

Incorporation weighted good practices in %

Argentina Bolivia Brazil Chile Costa Rica Colombia Cuba Dominican Republic Ecuador El Salvador Guatemala Honduras Mexico Nicaragua Panama Paraguay Peru Uruguay Venezuela

80 60 73.3 56.7 60 36.7 6.7 20 50 46.7 43.3 33.3 73.3 56.7 43.3 43.3 43.3 60 60

83.3 52.6 75.6 38.5 62.8 38.5 9.0 19.2 47.4 44.9 43.6 41 78.2 59 39.7 39.7 41 62.8 60.3

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practices. This means that most countries incorporate good practices across the four categories of basic principles of asylum, scope of protection, the asylum granting procedure and integration measures. Exceptions are Chile’s 2010 law that scores almost 20% lower in the weighted good practices, Bolivia’s 2012 law that scores 8% lower and Honduras’ legislation of 2004 scoring 7% higher in the weighted good practices. The Chilean and Bolivian laws incorporate few good practices in the basic principles of asylum and the scope of protection, whereas in Honduras eight out of ten good practices lie in these areas. The table also shows that the only two countries that have not recently reformed their internal asylum norms, Cuba and Dominican Republic, score significantly below the regional average, at 6.7% unweighted/9% weighted and 20% unweighted/19.2% weighted respectively. The seventeen countries that reformed their refugee legislation since 1997 average at 42.4/78 points, or 54.3% coverage of weighted good practices (16.7/30 or 55.7% unweighted). Figure 4.2 depicts the distribution of Latin American refugee legislations around the average incorporation of unhcr good practices. The figure illustrates significant variation among the expansiveness of refugee legislations within the region. Brazil’s Refugee Act of 1997 initiated the

Argentina Mexico

Score (1= average)

1.4

Brazil

1.2 Uruguay Venezuela

Costa Rica Nicaragua

1.0

Chile

Bolivia Ecuador

El Salvador Guatemala

0.8

Peru Paraguay 2000

Honduras

2005 Year

Panama Colombia 2010

Figure 4.2 Variation in expansiveness of Latin American refugee legislation

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recent reforms in Latin America, and, together with Argentina’s Refugee Act of 2006, has served as a model refugee law for the region.37 The Argentine and Mexican laws are even more expansive than the Brazilian legislation, incorporating around 80% of the weighted good practices. Another group of countries is centred around the regional average, including slightly more than half of the weighted good practices in their legislations: Venezuela, Uruguay, Nicaragua, Costa Rica, Chile and Bolivia. Paraguay, Peru, Honduras, and most recently, Panama and Colombia have the least liberal refugee legislations in the region, incorporating around 40% of good practices. Regarding the basic principles of asylum, Latin American legislations, on average, cover 18.6/36 points or 51.6% of weighted good practices (4.6/9 unweighted), regarding the scope of protection 13.4/24 points or 55.9% of weighted good practices (4.5/8 unweighted), regarding the asylum procedure 6.5/10 points or 64.7% of weighted good practices (3.2/5 unweighted), and regarding the integration of asylum-seekers and refugees 3.9/8 points or 48.5% of weighted good practices. On average, Latin American refugee legislation thus is most expansive in the field of asylum procedures, similarly liberal with a view to basic asylum principles and the scope of protection, and least ­expansive regarding integration measures. 5

Comparative Case Study of Argentine, Mexican and Peruvian Refugee Laws

This section offers an exemplary qualitative discussion of Latin American refugee laws. In order to cover both the high and low end of the spectrum of expansiveness of recent refugee legislations, as well as geographic range across Latin America, the section discusses the two countries with the highest scores in South and Central America with the country scoring among the lowest in the weighted good practices: Argentina (65/78, or 83% coverage of weighted good practices), Mexico (61/78, or 78% coverage of good practices) and Peru (32/78,

37

José H. Fischel de Andrade, ‘Refugee Protection in Brazil (1921–2013): An Analytical Narrative of Changing Policies’ in David Cantor, Luisa Feline Freier and Jean-Pierre Gauci (eds.) A Liberal Tide: Towards a Paradigm Shift in Latin American Migration and Asylum Policy-Making (2014) Palgrave; María Soledad Figueroa and María José Marcogliese, ‘Avances Normativos y Institucionales en la Protección de los Refugiados en la República Argentina’ in Martín Lettieri (ed.) Protección internacional de refugiados en el sur de Sudamérica (2012) Remedios de Escalada: Ediciones de la UNLa.

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or 43% coverage of weighted good practices). Colombia, Paraguay and Panama score one or two points lower than Peru. However, Argentina, Mexico and Peru make for the better comparative case study as these are three countries with comparable refugee populations, whereas Paraguay and Colombia host almost no refugees.38 Peru adopted Refugee Law Nr. 27891 in December of 2002.39 Argentina passed Law Nr. 26.165, the General Law on the Recognition and Protection of Refugees (Ley General de Reconocimiento y Protección al Refugiado), in November of 2006. Mexican President Felipe Calderón signed the Law on Refugees and Complementary Protection (Ley sobre Refugiados y Protección Complementaria) on 26 January 2011. All three countries lacked formal refugee laws before, although a number of international and domestic instruments regulated the determination and fundamental rights of asylum-seekers and refugees. After a brief introduction of the three case countries regarding their ratification of international refugee law and the constitutional right to asylum, the section will provide an exemplary qualitative comparison of their refugee legislations according to the four weighting categories applied above: (1) basic principles of asylum; (2) the scope of protection; (3) asylum procedure and (4) the integration of asylum-seekers and refugees. The section concludes with briefly commenting on the implementation of these new laws and their endorsement by unhcr. 5.1 International and Constitutional Context Regarding international treaties, Argentina ratified the 1951 Refugee Convention in 1961, with its inherent restrictions in application in time and place to events that occurred before 1st January 1951 and in Europe. It lifted the time limitation with the 1967 Protocol,40 but only discarded the geographic limitation after the return to democracy in 1984.41 Peru became party of the 1951 Refugee Convention in 1964, but only ratified its Protocol in 1983. Mexico was the last country in the region to ratify the 1951 Convention and its Protocol in 2000. To date, Mexico holds reservations to Art. 17 (wage-earning employment), Art. 26 and 31.2 (freedom of movement), and Art. 32 (expulsion). 38 39

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In mid 2013, Argentina hosted 3,604, Mexico 1,688 and Peru 1,126. There were only 133 refugees residing in Paraguay. In 2002, Peru further passed Law Nr. 27.840 of 2002, ‘Ley de asilo’, that defines territorial and political asylum in the Latin American tradition of political prosecution (Art. 4). Art. 3.2. gives international treaties precedence over the law. Law Nr. 17.468. Law Nr. 23.160, Art. 1.

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On the constitutional level, Peru grants the constitutional right to asylum since the constitutional reform of 1993.42 In Argentina, the constitutional right to asylum is not explicitly stipulated. However, Art. 75 of the 1994 Constitution gives international treaties precedence over national laws. This implies that the 1951 Convention and its 1967 Protocol, as well as any other international instruments on asylum that Argentine will ratify in the future, must be interpreted as complementary to the rights and guarantees recognized in the Constitution. Figueroa & Marcogliese43 argue that the “umbrella of human rights” that Art. 1 of Law Nr. 26.16544 spans based on the human rights standards that are evoked through the 1994 Constitution elevates the protection of refugees in Argentina above the protection standard of the 1951 Convention. Asylum-seekers and refugees are not only granted the same rights as other foreigners residing in the country –as Art. 20 of the Peruvian law provides – but the protection of their human rights is treated as equal to that of Argentine nationals. In theory, the same applies to the Mexican case, where the constitutional reform of 2011 rewrote Art. 1 to elevate international treaties on human rights to the constitutional level. A second paragraph was further added to Art. 11, explicitly stipulating the right to “political asylum.” However, when applying  the standards of unhcr, the wording used is technically incorrect and based on the conceptual confusion between “refugees” and “asylum” pointed out above.45 42 43

44

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Art. 36 of 1993 Constitution. María Soledad Figueroa and María José Marcogliese, ‘Avances Normativos y Institucionales en la Protección de los Refugiados en la República Argentina’ in Martín Lettieri (ed.) Protección internacional de refugiados en el sur de Sudamérica (2012) Remedios de Escalada: Ediciones de la UNLa. Law Nr. 26.165, Art. 1: “La protección de los refugiados se regirá por las disposiciones del derecho internacional de los derechos humanos aplicable en la República Argentina, la Convención de 1951 sobre el Estatuto de los Refugiados y su Protocolo de 1967, así como por cualquier otro instrumento internacional sobre refugiados que se ratifique en lo sucesivo y por lo que dispone la presente Ley.” Instead of “refugee status” (condición de refugiado) “diplomatic and territorial asylum” (asilo diplomático y territorial) the article uses the term “refugio” (a term that does not exist in international law and is inconsistent with international and regional instruments to which Mexico is party) and “asylum.” Another fundamental problem of Art. 11 is the permanence of the term “undesirable aliens residing in the country,” and the term “pernicious foreigner.” See un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Mexico, March 2013, available at: [accessed 12 March 2014].

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5.2 Basic Principles of Asylum Regarding the basic principles of asylum, the Argentine law incorporates 88.9% of weighted good practices (32/36 points), the Mexican law 77.8% (28/36 points) and the Peruvian law 33.3% (12/36 points). All three laws incorporate provisions for non-refoulement.46 In Argentina, the principle of nonrefoulment is extended to asylum applicants that fall under the authority of an Argentine official without the necessity of being present on national territory at the time of the application.47 Mexico’s legislation explicitly states the non-­ refoulment of minors.48 At the same time, Art. 33 of the Mexican Constitution bears the risk of undermining the principle of non-refoulement because it grants the government “the exclusive power to compel any foreigner whose remaining he may deem inexpedient to abandon the national territory immediately and without the necessity of previous legal action,” without any safeguard in case of the expulsion of a person to a country where she could be persecuted or her life could be at risk.49 In line with Art. 31 of the 1951 Refugee Convention, asylum-seekers should not be penalized for irregular entry for the purpose of seeking protection, and all three laws indeed explicitly state non-penalization of irregular entry.50 In the case of Argentina, the good practice of suspending any criminal proceedings for irregular entry until the case of the asylum applicant is decided is noteworthy.51 Argentina’s and Mexico’s laws further emphasize the declarative nature of the refugee status,52 i.e. that a person is a refugee as soon as he fulfils the criteria contained in the definition of the law, even before he is officially recognized as a refugee. This is especially important in the Latin American context. As pointed out above, the character of the asylum condition in Latin America has historically been constitutive, in contrast to the declarative nature of the refugee status of the 1951 Convention. Argentina’s law further bases the principles of non-refoulment, non-discrimination, and .

46

Argentina (Law Nr. 26.165, Art. 2, 3, 39); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 6, 21); Peru (Law Nr. 27.891, Art. 5). 47 Law Nr. 26.165, Art. 3. 48 ‘Ley de Migración’, Art. 120. 49 Art. 33: “El Ejecutivo de la Unión, previa audiencia, podrá expulsar del territorio nacional a personas extranjeras con fundamento en la ley, la cual regulará el procedimiento administrativo, así como el lugar y tiempo que dure la detención”. 50 Argentina (Law Nr. 26.165, Art. 2, 40); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 7); Peru (Law 27.891, Art. 31). 51 Law Nr. 26.165, Art. 40. 52 Argentina (Law Nr. 26.165, Art. 2); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 12, 47).

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non-sanctioning for irregular entry on the declarative character of the refugee condition. Regarding the principle of confidentiality, only the Argentine and Mexican laws guarantee that authorities will refrain from any communication with the country of origin in order to verify or authenticate declarations or documents provided by the asylum-seeker.53 The lack of guarantee of confidentiality can potentially jeopardize the protection of asylum-seekers and refugees in Peru. As pointed out by the unhcr, if authorities responsible for assessing an asylum claim deem it necessary to collect information from the country of origin, such requests must be couched in the most general and anonymous terms, and should never include names or data by which the asylum-seeker or his or her family could be identified in the country of origin. Authorities should never seek communication with the country of origin of the claimant to verify declarations or documents provided by the asylum-seeker.54 5.3 Scope of Protection In the area of the scope of protection, the Mexican law incorporates 100% of weighted good practices (24/24 points), the Argentine law 75% (18/24 points) and the Peruvian law 37.5% (9/24 points). Mexico already incorporated the Cartagena refugee definition into national legislation in 1990,55 whereas Peru and Argentina incorporated the definition in the context of legislative reforms of 2002 and 2006. Mexico is exemplary in that its 2011 legislation furthermore includes complementary protection for persons who are not formally recognized as refugees neither under the 1951 Convention nor the 1984 Cartagena Declaration, but whose repatriation would violate the principle of non-­ refoulement by sending the individual to a country were her life is in danger, or she would be at risk of torture, ill treatment, or other forms of cruel inhuman treatment.56 Such generosity is intriguing because of potentially high numbers of refugees emanating in the context of Central American organized crime. Since 2011, Mexico in fact accepts Central American asylum claims based on fears of violence emanating from organized crime in Central America.57 53 Argentina (Law Nr. 26.165, Art. 17); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 21, 57). 54 See un High Commissioner for Refugees (unhcr), Advisory opinion on the rules of confidentiality regarding asylum information, 2005, available at: [accessed 22 March 2014]. 55 ‘Ley General de Población’ (reforma of) of 1990. 56 ‘Ley sobre Refugiados y Protección Complementaria’, Art. 2. IV. 57 Interview with Juan Carlos Murillo González, head of the legal department of the (unchr) for the Americas in San José, London, 14.11.2013.

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Although one might argue that the 1951 Refugee Convention and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can in many respects provide complementary protection for refugees, the incorporation of complementary protection in Mexico’s refugee law is advantageous. The Convention against Torture should not be used as a tool to fill the gaps in refugee protection. The practice of rejected asylum-­ seekers having recourse to the un Committee against Torture risks “that its increasing workload could lead to a stricter application of its rules of procedure and the adoption of higher evidentiary burdens which may result in the turning away of otherwise meritorious claims.”58 The Mexican law further provides refugee status to applicants that were already granted refugee status in a third country, if no effective protection was granted.59 This provision stands in stark contrast to the concept of the first country of asylum, or “safe third country,” the indiscriminate application of which has made the admission of asylum-seekers to countries not in proximity to their countries of origin increasingly difficult,60 and has led to the de facto denial of the right of asylum-seekers of an analysis of the substance of her claim in Europe.61 The concept was originally limited to cases where refugees had already found effective protection in a specific country and had moved on in an irregular manner in search of a new country of asylum, but is now often used to “send asylum-seekers back whence they came.”62 Argentina’s 2006 refugee law does not formally provide for complementary protection, but the country’s migration law provides for entry and temporary or permanent residence for humanitarian reasons.63 Decree Nr. 616/2010, which regulates the application of the migration law, provides that persons in need of international protection who are not granted refugee status may obtain legal residence on humanitarian grounds under the principle of

58 59 60

61

62

63

Brian Gorlick, ‘The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees’, (1999) 11 (3) International Journal of Refugee Law, 495. ‘Ley sobre Refugiados y Protección Complementaria’, Art. 46, 47. un High Commissioner for Refugees (unhcr), Considerations on the “Safe Third Country” Concept, July 1996, available at: [accessed 11 March 2014]. un High Commissioner for Refugees (unhcr), Considerations on the “Safe Third Country” Concept, July 1996, available at: [accessed 11 March 2014]. Hélène Lambert, “Safe Third Country’ in the European Union: An evolving concept in international law and implications for the uk” (2012) 26 (4) Journal of Immigration, Asylum and Nationality Law. ‘Ley de Migraciones’ Nr. 25.871, Art. 23, 29, 34.

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non-refoulement. Moreover, it states that people affected by natural disasters, once in Argentine territory, may obtain a transitory residence. The Mexican migration law also provides humanitarian visas for asylum-seekers, for unaccompanied children, for individuals that have been victims of or witnessed a crime that occurred on national territory, and for other humanitarian reasons or the public interest.64 Both the Argentine and Mexican laws are progressive regarding the explicit inclusion of fear of persecution because of sexual orientation.65 Whereas Argentina’s and Mexico’s asylum laws are expansive regarding the scope of protection, Peru has not established complementary forms of protection or humanitarian status to address the situation of persons in need of international protection that do not fall under the refugee definition, such as persons fleeing the consequences of natural disasters, or persons protected against refoulement by Art. 22.8 of the Inter American Convention on Human Rights and Art. 3 of the Convention Against Torture.66 However, Art. 35 of the Peruvian refugee law entitles people who illegally enter Peru as part of a mass influx to temporary protection for three months. 5.4 Asylum Procedure Regarding the asylum procedure, the Argentine law incorporates 100% (10/10 points) of weighted good practices, the Peruvian law 80% (8/10 points), and the Mexican law 40% (4/10 points). The Peruvian and Argentine laws provide for the creation of refugee commissions to receive, examine, process and decide on refugee status applications. In Peru, Art. 7 of Law Nr. 27.891 established the Special Commission for Refugees (La Comisión Especial para los Refugiados, cepr) inside the Foreign Ministry. It is integrated by the Director of Human Rights and Social Issues, the Director of the Foreign Ministry, the Director of State Security of the National Police, or his representative, the Director of Legal Support and Humanitarian Assistance of the Foreign Ministry, 64 ‘Ley de Migración’, Art. 52 v. 65 Argentina (Law Nr. 26.165, Art. 53); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 13). 66 In the case of Peru, the unhcr documents efforts of several governmental institutions and civil society organizations to promote a migratory legislation amendment to ensure the adoption of a humanitarian visa, see un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review – Peru, March 2012, available at: [accessed 12 March 2014].

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the Executive Secretary, designated by the President of the Commission, and a representative of the unhcr with voice but without vote. Applications can be channelled through unhcr, but can equally be submitted to immigration officials at airports and ports, or at police stations. The Secretariat of the cepr carries out the registration of asylum applicants and conducts the eligibility interviews. It is problematic that cepr does not elaborate any written eligibility assessments on individual cases to insure the consistency in the processing of applications. Art. 8 of Law Nr. 27.891 creates the Appeals Commission for Refugees (Comisión Revisora para Asuntos de Refugiados), adjunct to the Foreign Ministry, which decides on appeals. The Revision Commission is integrated by the Vice Minister of Foreign Relations, the Vice Minister of the Interior, the Vice Minister of Justice and a representative of the unhcr with voice but without vote. Art. 18 of Argentine Law Nr. 26.165 created the National Commission for Refugees (Comisión Nacional para Refugiados, conare), which addresses all aspects linked to the protection and assistance of refugees. Argentina full-fills the good practice of the participation of the unhcr and civil society in its refugee commission, with Art. 23 stipulating the participation of civil society in the refugee determination process. Representatives of the Ministry of the Interior, the Ministry of Foreign Affairs, International Trade and Religion, the Ministry of Justice, Security and Human Rights, the Ministry of Social Development and the National Institute Against Discrimination, Xenophobia and Racism integrate conare, and a representative of the unhcr and an elected ngo representative participate with voice but without vote. In contrast to its institutional precursor, the Comité de Elegibilidad para Refugiados (C.E.Pa.Re), conare’s mandate does not only include refugee determination, but rather extends to the design, coordination and monitoring of public policies on asylum and refugee integration. According to Art. 25, the protection of the rights of refugees and asylum-seekers is the explicit responsibility of conare. The law explicitly obligates conare’s Executive Secretariat, created by Art. 28, to take the special needs of women and children who have suffered violence or were affected by other circumstances into consideration. Argentina’s commission furthermore is the only of the three cases that provides a systematic compilation of precedents to insure the consistency in the processing of applications. In Mexico, the Secretariat of the Interior has competence over the recog­ nition of refugee status after consulting the Foreign Ministry.67 In contrast to Argentina and Peru, Mexico’s Commission for Aid to Refugees (Comisión 67

‘Ley sobre Refugiados y Protección Complementaria’, Art. 12.

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Mexicana de Ayuda a Refugiados, comar) is not established by its refugee law, but rather is an inter-ministerial body, comprised of the Ministries of Interior, Foreign Affairs, and Labor and Social Welfare, created in 1980 to assist refugees arriving from South and Central America. To perform its role of effectively processing the recognition, cessation, cancellation and revocation of the refugee status and providing institutional assistance to refugees, comar depends on an independent agency under the Ministry of Interior, the General Coordination of the Mexican Commission for Aid to Refugees (Coordinación General de la Comisión Mexicana de Ayuda a Refugiados). unhcr and civil society previously had greater involvement in Mexico’s refugee status determination (rsd), but are no longer involved. Regarding the application procedure, Argentina’s law full-fills the good practice of having no time limit to make an asylum claim, whereas Art. 18 of the Mexican law stipulates a time limit of 30 days after entry or attained knowledge of the right to asylum to file an application. Similarly, in Peru, the asylum application must be made before the temporary residence expires, or in case of irregular entry, within 30 days of entry, unless the Special Refugee Commission extends this period in individual cases.68 The Peruvian and Mexican legislations define that decisions on asylum applications have to be made within 60 and 45 days respectively.69 The Argentine law includes no such obligation. The Argentine and Mexican laws guarantee free legal assistance to asylumseekers.70 Furthermore, the two laws are progressive regarding the stipulation of gender awareness in the interviewing process.71 In practice this might mean that the members of a family are interviewed separately and by an interviewer of the same sex. Mexico furthermore is one of only two countries in the region (the other being Costa Rica) to forbid the discrimination of asylum applicants based on sexual orientation.72 This is to avoid that an application is rejected because of reservations about the sexual preferences of the appli­cant by the interviewer. Both laws stipulate special attention to women and 68 69

Law Nr. 27.891, Art. 13. Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 42); Peru (Law Nr. 27.891, Art. 15). 70 Argentina (Law Nr. 26.165, Art. 32); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 18). 71 Argentina (Law Nr. 26.165, Art. 53); Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 20, 23, 42, 54). 72 Mexico (Ley sobre Refugiados y Protección Complementaria’ Art. 8) Costa Rica (‘Reglamento de Personas Refugiadas’ of 2011, Art. 6).

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children that have been victims of violence.73 The Mexican law further ­stipulates special awareness for social context, age, gender, disabilities, chronic diseases, or other circumstances that make asylum-seekers particularly ­ vulnerable. 5.5 Integration of Asylum-Seekers and Refugees Regarding the integration of asylum-seekers and refugees, the Argentine and Mexican laws incorporate 62.5% (5/8 points) of weighted good practices and the Peruvian law 37.5% (3/8 points). The Argentine legislation extends temporary residence to asylum applicants and refugees,74 whereas Mexico grants permanent residence to refugees.75 In Peru, Art. 14 grants only a provisional residence permit of 60 days to asylum applicants (with the possibility of extension through cepr). Art. 22 grants temporary residence status to recognized refugees for one year, with the possibility of annual renewal. At the same time, the Peruvian law is the only of the three legislations to full-fill the good practice of not identifying refugee status on refugee’s documentation to prevent possible discrimination.76 Only the Argentine and Peruvian laws extend the right to work to asylum applicants,77 whereas all three legislations grant this right to recognized refugees.78 The Argentine and Mexican laws further prescribe the speedy accreditation of foreign diplomas of refugees.79 In Peru, the lack of validation mechanisms of professional degrees is an important barrier to the full enjoyment of refugees’ right to work. The Argentine and Mexican legislations further stipulate a refugee’s right to basic social services, education and health,80 whereas the access to basic social services is not provided in the Peruvian law. All three laws include the principle of family reunification. The Mexican legislation extends refugee status up to the 4th degree of kinship of the applicant, and 2nd degree of kinship of his or her spouse, if economically 73 Argentina (Law Nr. 26.165, Art. 53); Mexico (‘Ley sobre Refugiados y Complementaria’, Art. 54). 74 Law Nr. 26.165, Art. 42. 75 ‘Ley sobre Refugiados y Protección Complementaria’, Art. 48. 76 Law Nr. 27.891, Art. 23. 77 Argentina (Law Nr. 26.165, Art. 43); Peru (Law Nr. 27.891, Art. 14). 78 Argentina (Law Nr. 26.165, Art. 51, 22); Mexico (‘Ley sobre Refugiados y Complementaria’, Art. 44); Peru (Law Nr. 27.891, Art. 20). 79 Argentina (Law Nr. 26.165, Art. 42); Mexico (‘Ley sobre Refugiados y Complementaria’, Art. 85). 80 Argentina (Law Nr. 26.165, Art. 51); Mexico (‘Ley sobre Refugiados y Complementaria’, Art. 44).

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dependent on the applicant and present in Mexico at the time of the application.81 In the Argentine legislation, Art. 50 stipulates family unity as an essential right of refugees and his or her family members. The law extends refugee status to spouses, life partners and family members of 1st degree of kinship, if economically dependent on the main applicant.82 The right to family reunification is less expansive in the Peruvian law. Art. 25 of the latter grants refugee status only to spouses, life partners, children and economic dependants. 5.6 Implementation and Endorsement by uhncr Regarding the implementation of the three laws, it is noteworthy that Argentina has still not completed the process of adopting the necessary administrative procedures to facilitate the effective implementation of Law Nr. 26, although the law stipulated a deadline of 60 days for the adoption of procedures.83 Nevertheless, the law had thus far been applied rather generously. The administrative procedures for the Peruvian and Mexican legislations were passed in 2003 and 2012.84 The unchr endorses the Argentine and Mexican refugee laws as leading the vanguard of human rights based refugee legislation in the region,85 whereas it evaluates the Peruvian law as only “fairly liberal.”86 While the above analysis also points out limitations of the Peruvian ­refugee law in the area of basic principles of asylum, the unhcr stresses ­short-comings in the scope of protection, the application procedure and the integration of migrants.87 Regarding the scope of protection, the unhcr is especially concerned about the lack of legal provisions for the protection and assistance needs of unaccompanied children and women seeking asylum. Furthermore, there are no provisions to prevent refugees, asylum-seekers and other persons of concern to unhcr from being trafficked, nor are there any special mechanisms in place to identify victims of trafficking, who are in need of

81 82 83 84 85 86 87

Mexico (‘Ley sobre Refugiados y Protección Complementaria’, Art. 12, 58). Argentina (Law Nr. 26.165, Art. 60). Argentina (Law Nr. 26.165, Art. 59). Peru (‘Reglamento de la ley del refugiado No 119-2003-RE’); Mexico (‘Nuevo Reglamento dof 21-02-2012’). Interview with Juan Carlos Murillo González, head of the legal department of the (unchr) for the Americas in San José, London, 14.11.2013. un High Commissioner for Refugees (unhcr), unhcr Global Report 2002, 450. un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review – Peru, March 2012, available at: [accessed 12 March 2014].

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international protection, and to refer them to special asylum procedures. The unhcr further urges the Peruvian government to consider adopting and implementing legislation that establishes complementary forms of protection for persons in need of international protection that do not necessarily fall under the refugee definition, such as the possibility to grant humanitarian visas.88 Regarding the application procedure, the unhcr is concerned about unlawful rejections and refoulements of asylum-seekers at border check-points due to the lack of special training and capacity-building activities of the respective officials. A great number of asylum-seekers enter Peru through its territorial borders, but the majority only manages to file asylum claims if they physically reach the unhcr’s implementing partner premises in Lima or its protection networks in the border areas. The Peruvian government needs to implement effective referral mechanisms to ensure the asylum procedure of persons seeking asylum. Furthermore, the unhcr criticizes that Peru lacks adequate documentation of asylum cases to insure consistency in the processing of applications. According to the unhcr, the facilitation of the integration of asylum-seekers and refugees is severely hampered by obstacles to accessing the labour market and health service. The absence of special programmes facilitate local integration particularly makes refugee women vulnerable to human trafficking for sexual exploitation.89 Although the unhcr praises Mexico’s legal provision for complementary protection, it sees short-comings in the areas of basic principles of asylum, the scope of protection and the asylum procedure.90 Regarding the basic principles of asylum, the unhcr welcomes the inclusion of the right of asylum in Art. 11 of the Constitution, however criticizing that its refugee definition accords with neither international standards nor Mexican obligations. The term “refugio,” which does not exist in international law, creates confusion and is inconsistent with international instruments, to which Mexico is party, including the 1951 Refugee Convention. The unhcr is further concerned about Art. 33, which may undermine the principle of non-refoulement, as it does not establish any safeguard in case of the expulsion of a person to a country where she could be at risk. Mexico made reservations to Art. 17 (wage-earning

88 Ibid. 89 Ibid. 90 un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Mexico, March 2013, available at: [accessed 12 March 2014].

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employment), Art. 26 and 31.2 (freedom of movement), and Art. 32 (expulsion) of the 1951 Convention.91 Regarding the scope of protection, there are short-comings regarding the protection of children and trafficking victims. Although the 2011 law includes provisions relating to child protection and Best Interest Determination, these are rarely implemented in practice. Mexico’s general law on trafficking, which was adopted in June 2012, stipulates the possibility that victims of trafficking may qualify as refugees.92 The application procedures of the migration law also establish the trafficking/asylum nexus and include provisions that guarantee the protection and assistance of victims. Despite these positive steps regarding the legal framework, unhcr identifies the need for mechanisms to ensure the identification of victims of trafficking, as well as referral mechanisms to the appropriate authority responsible for assessing possible needs for international protection in an age- and gender-sensitive procedure, in order to respond to the specific needs of victims and to prevent refoulement.93 Regarding the application procedure, the unhcr worries about the detention of asylum-seekers in migratory centres. Seeking asylum is not an unlawful act, and in line with Art. 31 of the 1951 Refugee Convention, asylum-seekers should not be penalized for irregular entry in seeking protection. However, due to the context of mass transmigration through Mexico, persons who enter the Mexican territory in an irregular manner are automatically detained. A significant number of asylum claims are presented in these centres, and asylumseekers, including children and vulnerable people, are often detained for long periods waiting for their claims to be resolved. Not only is the detention of asylum-seekers unlawful, there are furthermore very limited reception mechanisms to accommodate children, women at risk or persons with disabilities. Many immigration detention centers offer inadequate privacy and hygiene standards.94 Although the unhcr fully endorses Argentina’s new refugee law, there is some concern regarding the scope of protection and the integration of asylum-seekers.95 More specifically, the unhcr criticises Argentina for lacking 91 Ibid. 92 ‘Ley general para prevenir, sancionar y erradicar los delitos en materia de trata de personas y para la protección y asistencia a las víctimas de estos delitos’, Art. 75. 93 Ibid. 94 Ibid. 95 un High Commissioner for Refugees (unhcr), Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Argentina, March 2012, available at: [accessed 12 March 2014].

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necessary measures for the full implementation of the “Protocol for the Protection, Assistance and Search of Durable Solutions for Unaccompanied or Separated Children Seeking Asylum,” which was developed by a working group coordinated by unhcr in 2011 and addresses a range of issues, including the identification of unaccompanied children, the appointment of a legal guardian (tutor), the referral to the rsd procedure, and granting of complementary forms of protection. The unhcr further encourages the design of a comprehensive public programme or social policy to ensure proper social assistance for asylum-seekers and durable solutions for refugees, particularly to those in situations of extreme social vulnerability.96 The local integration of refugees and asylum-seekers in fact remains a major challenge in all three countries and therefore, comprehensive public policies need to be elaborated. Asylum-seekers’ access to socio-economic rights is hampered by precarious and temporary documentation, which is often not recognized by employers. Additionally, local integration is restricted when asylum-seekers and refugees, as non-nationals, face administrative obstacles to access the benefits available to nationals in similar situations of social vulnerability. In sum, the current refugee laws of Argentina, Mexico and Peru constitute important liberalization – especially when keeping in mind that all three countries lacked formal refugee laws before. There is significant variation among the three laws, with Argentina offering the most expansive framework. International precedents show that legislative reform does not guarantee the implementation of more expansive protection measures. To give one example, just as Argentina and Mexico, some European Union member states have also explicitly added gender identity as a reason for persecution in their internal refugee norms. Nevertheless, in a significant number of cases protection is denied to lgbt persons facing persecution and threats on their lives.97

96 Ibid. 97 Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (2011) Vrije Universiteit Amsterdam; Deborah Morgan, ‘Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases’ (2006) 15 Law and Sexuality; Fatma Marouf, ‘The Emerging Importance of “Social Visibilty” in Defining a “Particula Social Group” and Its Potential Impact on Asylum Claimes Related to Sexual Orientation and Gender’ (2008) 27 (47) Yale Law & Policy Review.

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6 Conclusion Since 1950, there have been five stages of liberalization in Latin America asylum legislation that can be broadly summarized as follows: the ratification of the 1951 Convention from the 1960s to 2000, the ratification of it’s 1967 Protocol from the 1970s to 2000, the adoption of a constitutional right to asylum since the early 1980s, the incorporation of the Cartagena refugee definition into national legislation from the late 1990s to 2010, and the passing of comprehensive refugee laws since the late 1990s. Although Latin America had a pioneering asylum tradition that long predated the 1951 Convention, the ratification of the 1951 Convention and its Protocol constitute legislative liberalization because they establish the declarative nature of the refugee condition, in contrast to Latin America’s tradition of a constitutive right to asylum. The granting of a constitutional right to asylum is a form of legislative liberalization because it understands asylum as an individual, fundamental, human right, whereas domestic legislation usually stipulates the right of asylum as a state prerogative. Most countries provide the right to asylum through domestic legislation, and in Europe there has in fact been a development away from the constitutional right to asylum in the 20th century. The incorporation of the Cartagena definition of refugee in domestic legislation constitutes liberalization because it is more expansive and flexible than the refugee definition of the 1951 Convention. It includes as refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances, which have seriously disturbed public order. It is thus better equipped to respond to new situations of refugees in the region, such as victims of organized crime and general violence in Central America. At no point has the declaration been legally binding. Nevertheless it effectively concretized regional, customary law principles with respect to protection and assistance of refugees. By the late nineties, practically the whole region de jure or de facto applied the refugee concept as defined in the Cartagena Declaration, and to date, fifteen Latin American states have incorporated the declaration into their national legislation. Finally, the recent wave of adoption or reform of internal refugee norms constitutes the most significant liberalization of asylum legislation in the region. Latin American refugee legislation is expansive regarding the refugee definition, complementary protection, and the explicit incorporation of specific characteristics of asylum-seekers and refugees, such as gender and sexual orientation. Although there is significant variation among the expansiveness of recent refugee laws in the region and legislative advances are not always

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fully translated into practice, they mark a significant improvement from the former lack of formal refugee laws. These laws serve to hold governments that do not adhere to there own laws accountable. The purpose of this chapter has been to demonstrate a liberal shift, albeit with certain variation, in the development of Latin American asylum legislation in the past 60 years, specifically regarding the recent adoption or reform of internal norms on refugee matters. Further research should endeavour to explain this paradigm shift in Latin American asylum legislation, as well as cross-country variation. Apart from conventional explanations, such as the numbers of asylum-seekers and refugees present in a country, and socioeconomic factors, such as the state of the economy and public opinion, there are a number of specific factors that are likely to matter in the Latin American context: the generous spirit of regional and domestic human rights instruments, the relationship between recent reforms of asylum and immigration legislation, and, in this context, domestic political discourses on the immigration policies of the United States and Europe.

part 2 Scope of Protection: The 1951 Refugee Convention and Beyond

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The Evolving System of Refugees’ Protection in Latin America Stefania Barichello1 Introduction Scholars2 have recognised that within the context of an increasing trend towards the harmonization of procedures and norms in many legal arenas, the issue of regional approaches rises in refugee law. Harmonization is not an end in itself and regional policy approaches attempt to mitigate the weaknesses and deficiencies of the 1951 Convention, adapting international refugee law to regional displacement contexts and to contemporary forced migration. Latin America has developed particular regional policy approach towards better protection for refugees through various normative and institutional developments. Apart from the regional instruments, which have laid down the foundation for the status of political asylum,3 Latin American countries have developed mechanisms and concepts that have undertaken the contemporary refugee problems in a sensible manner. Initially designed as a answer to the problems of the late 1970s and early 1980s in Central America, the 1984 Cartagena Declaration has influenced Latin American countries. The 1984 Declaration goes beyond the definition of refugee that appear in the 1951 Geneva Convention,4 including in the category of ‘refugee’ those people that left their 1 Doctoral candidate at the Institute of Commonwealth Studies and a doctoral affiliate at the Refugee Law Initiative at the School of Advanced Study, University of London. Research funded by the capes Foundation Ministry of Education of Brazil (BEX 0796/14-0) Her doctoral research focuses on refugee protection and responsibility-sharing in Latin America, primarily the Mexico Plan of Action. 2 See: Kelley, N., ‘International Refugee Protection Challenges and Opportunities’ (2007) 19 International Journal of Refugee Law 401; Kneebone, S. and Rawlings-Sanaei, F. (eds.), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books, 2007); Fischel De Andrade, J.H., ‘Regionalización y Armonización del Derecho de Refugiados: una perspectiva latinoamericana’, in unhcr/iidh (eds.), Derechos Humanos y Refugiados en las Américas: lecturas selecionadas (San José, Instituto Interamericano de Derechos Humanos/Alto Comisionado de la onu para Refugiados, 2001), pp. 75–104. 3 Santiago, J.R., ‘La Declaración de Cartagena: Naturaleza jurídica y trascendencia histórica’, in unhcr (ed.), Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (Editorama, 2005). 4 Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee: “A person who owing to a well-founded fear of being persecuted for reasons of race, © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_008

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country of origin because of war, massive violations of human rights or because of similar causes that severely disturb public order.5 In 1994, on the occasion of the tenth anniversary of the Cartagena Declaration, the San Jose Declaration reiterated the importance of the Declara­ tion and broadened its scope in order to extend protection, in particular, to the internally displaced. Furthermore, in 2004, the Mexico Plan of Action was also adopted in order to deal with the new crisis of refugees and asylum seekers from Colombia. This chapter aims to study the evolving system of Latin American asylum law and policy. Its main objective is to provide a historical overview of the gradual development of asylum law and policy in Latin America by analysing how the 4 main instruments of refugees’ protection evolved in that continent. The study is done by means of collection and analysis of relevant primary, declarations, and secondary sources, such as journal articles and books. This paper is structured in 5 parts. Following the introduction, the first part presents the 1951 Convention Relating to the Status of Refugees and its protocol. The second section provides an overview of the 1984 Cartagena Declaration on Refugees. The third part examines 1994 San Jose Declaration on Refugee and Displaced Persons. The fourth part looks at the 2004 Mexico Plan of Action. The fifth part studies the 2010 Brasilia Declaration on the protection of refugees and stateless persons. Finally, the conclusions are intended to summarise the main aspects and the outcome of this research and also provide views and expectations concerning the protection of refugees and ipds in Latin America. 1

How the Status of Refugee was Internationally Recognised: The United Nations High Commissioner for Refugees (unhcr), The Convention Relating to the Status of Refugees (1951) and Its Protocol (1967)

While researching the refugee phenomenon in Latin America, it is important to underline the establishment of the United Nations High Commissioner for

religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” un, Treaty Series, vol. 189, No. 2545, 1954, p. 137–220. 5 Santiago, J.R., ‘La Declaración de Cartagena: Naturaleza jurídica y trascendencia histórica’, in unhcr (ed.), Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (Editorama, 2005).

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Refugees (unhcr) and remember that almost all the Latin American countries ratified Convention Relating to the Status of Refugees in 1951 and its Protocol, in 1967.6 The 1951 Convention has proved to be a solid instrument providing international protection to the millions of refugees throughout the world, and it continues to have direct relevance for many, if not most, contemporary refugee situations. However, regional policy approaches to refugee protection, without neglecting the general principles endorsed by the international community, complement and guide actions to resolve, or at least alleviate, the refugee problem.7 The origins of the 1951 Convention can be found in the work of the Ad Hoc Committee on Refugees and Stateless Persons, appointed by the ecosoc in its Resolution 248 (IX) of 8 August 1949, with a mandate to “consider the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons and, if they consider such a course desirable, draft the text of such a convention.”8 The establishment of a legal system for refugees was initially marked by the Resolution 319 (IV) of the un General Assembly of 3 December 1949,9 which established the unhcr.10 Its statute is attached to the Resolution 428 (V) of the un General Assembly No. 428 of 14 December 1950.11 unhcr initiated its activities on 1 January 1951 with the fundamental goal of granting legal protection of international refugee and adopt the 1951 Geneva Convention relating to the Status of Refugees.12 These legal instruments provided a formal structure to meet the general needs of refugees, and established rules to protect them under international law.

6

The exceptions are Venezuela, which has acceded to the Protocol only, and Cuba and Guyana, which are not party to either treaty, in unhcr. unhcr Global Appeal 2008–2009. 7 Fischel De Andrade, J.H., ‘Regionalización y Armonización del Derecho de Refugiados: una perspectiva latinoamericana’, in unhcr/iidh (Org.), Derechos Humanos y Refugiados en las Américas: lecturas selecionadas (San José, Instituto Interamericano de Derechos Humanos/Alto Comisionado de la onu para Refugiados, 2001), pp. 75–104. 8 Lauterpacht, E. and Bethlehem, D, ‘The Scope and Content of the Principle of Nonrefoulment: Opinion’, in Feller, E., Türk, V. and Nicholson, F. (eds.), Refugee Protection in International Law: unhcr’s Global Consultations on International Protection (Cambridge University Press, 2003), pp. 98–99. 9 un General Assembly, A/RES/319, 1949. 10 Henceforth unhcr. 11 un General Assembly, A/RES/428(V), 1950. 12 Henceforth 1951 Convention.

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unhcr was created so that refugees could receive the protection they deserved, without the coercive powers that could determine compliance with certain actions and initiatives by states on behalf of refugee protection. It was, and has been, an important step in that direction. With this in mind, the High Commissioner seeks to ensure everyone’s right to seek asylum and find safe refuge in another State, or to return voluntarily to their country.13 The untold suffering experienced by millions of people who survived the great catastrophe of the 20th century, the Second World War (which took the lives of over forty million people), led the un to establish a major international instrument the Convention Relating to the Status of Refugees of 1951 that governs the legal status of refugees. The Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held in Geneva between 2 and 25 July 1951, aimed to complete the draft of the Convention and sign it. The event was attended by delegations from 26 countries,14 plus representatives of unhcr, ilo and iro, without voting rights, and Caritas Internationalis, International Committee of Red Cross and various ngos, as observers. The conference was marked by two distinct schools of thought: the first held that the Convention was an instrument and should be generally applicable to all refugees, regardless of their origin. The other group held that the Convention should limit its scope and be applied only to refugees originating from European countries. The countries that supported the first school of thought were called “universalists”15 and countries that supported the second were called “europeanists.”16 The conference ended on July 28, 1951 and the

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un, Treaty Series, vol. 189, No. 2545, 1954. The 26 countries attending the conference were: Australia, Austria, Belgium, Brazil, Canada, Colombia, Denmark, Egypt, United States, France, Greece, Iraq, Israel, Italy, Yugoslavia, Luxembourg, Monaco, Norway, uk and Northern Ireland, Germany, Sweden, Switzerland (whose delegation also represented Liechtenstein), Turkey and Venezuela. Besides these, observers represented Cuba and Iran. See: unhcr, 1951. It comprised representatives from the uk, Egypt, Yugoslavia, Canada, Belgium, among others and was leaded by the United Kingdom’s representative who defended a Universalist conception, claiming a refugee definition as broad as possible, without any limitation. See: Goodwin-Gill, G., The Refugee in International Law (Oxford University Press, 1996). It consisted of representatives from France, the United States, Italy, Australia, among others. One of the reasons given was the fact that it welcomed large numbers of refugees and, if the definition was too broad, would not afford to house a larger number of them. See: Goodwin-Gill, G., The Refugee in International Law (Oxford University Press, 1996).

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Convention Relating to the Status of Refugees was signed by 12 countries.17 It came into force on April 22, 1954.18 The 1951 Convention is considered the founder stone of International Refugee Law. In Chapter 3 it defines who is a refugee and in Chapters 5 and 6 forth the status of refugees and the minimum standards for their treatment for those who come under this definition, including one enumerated their basic rights. The Convention represents a milestone in the emergence of a global willingness to address the problems of forced displacement. Article 1.A., § 2 of the Convention states that the concept of refugee shall apply to any person who: (2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.19 The text of the Convention stated that would be recognized as refugees only those who had fear of being persecuted “as a result of events occurring before 1 January 1951, that could be understood in two ways: first, as those that took place in Europe (which was interpreted as a ‘geographical limitation’, recognizing as refugees only people of European origin) and, secondly, as those that took place in Europe or elsewhere.”20 Pursuant to Article 1 of the 1967 Protocol, it affirms that the term “refugee” shall […], mean any person within the definition of article 1 of the Convention as if the words “As a result of events occurring 17

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The 12 countries that signed the Convention in July 1951 were: Austria, Belgium, Colombia, Denmark, Holland, Yugoslavia, Liechtenstein, Luxembourg, Norway, United Kingdom, Sweden and Switzerland. See: Goodwin-Gill, G., The Refugee in International Law (Oxford University Press, 1996). Lauterpacht, E. and Bethlehem, D., ‘The Scope and Content of the Principle of Nonrefoulment: Opinion’, in Feller, E., Türk, V. and Nicholson, F. (eds.), Refugee Protection in International Law: unhcr’s Global Consultations on International Protection (Cambridge University Press, 2003). un, Treaty Series, vol. 189, No. 2545, 1954, pp. 137–220. Goodwin-Gill G, The Refugee in International Law (Oxford University Press, 1996).

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before 1 January 1951 and…” and the words “…as a result of such events,” in article 1 A(2) were omitted.21 In view of new events on the international scene, as the decolonization of Africa, creating new flow of refugees, the Protocol on the Status of Refugees22 was drawn up and submitted to the un General Assembly in 1966. And in 1967 the Protocol, sought to eliminate geographic and temporal limitations contained in the 1951 Convention. 2

Cartagena Declaration on Refugees

The expansion of the refugee concept occurred on a regional scale, firstly by the Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Organization of African Unity (oau),23 of September 10th of 1969, and, subsequently, by the Cartagena Declaration on Refugees, of November 22nd of 1984. In the 1960s, nationalist movements erupted in the African colonies, leading to their decolonization and, consequently, to the constitution of new independent States. Some of these States reached their independence by peaceful means, while others, such as Algeria and Rwanda,24 had a more violent transition, when new circumstances forced a new interpretation of the meaning of ‘refugee’. Whereupon, in 1963 the oau was created and in the signed constitution objectives were founded such as: promoting unity and solidarity between African States; coordinating and intensifying cooperation among them; eradicating all forms of colonialism in Africa; defending sovereignty, territorial integrity and independence of these States; coordinating and harmonizing their policies on diverse topics. The oau convention brought the first expanded definition of ‘refugee’, according to its Article I,25 which extends to the protection of people who search for refuge due to aggression, external occupation, foreign domination or, even, events that gravely disturb public order in part of their country or the 21 un, Treaty Series, vol. 606, No. 8791, 1967, pp. 267–276. 22 Henceforth 1967 Protocol. 23 Hereinafter, oau. oau, was substituted in 2002, by the African Union (au). 24 Saraiva, J.F.S., ‘Relações Internacionais contemporâneas de 1815 a nossos dias: da construção do mundo liberal à globalização’ (Brasília: Paralelo 15 Editores, 1997), pp. 241–278. 25 Article I. oau Convention.

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entirely of it. This way, the expanded definition did not discard the motives foreseen by the 1951 Convention, but enlarged its role by supplementing it.26 The oau Convention and the Cartagena Declaration broaden the concept of the refugee founded in the 1951 Convention. They developed from a perception and an experience in Africa and Latin America that there was a need to complement the 1951 Convention so as to provide adequate responses to new dimensions of mass displacements of persons in need of international protection and assistance. In the 70s and 80s, Central America was witness to social conflicts due to lack of land for peasants, unequal distribution of wealth and restricted enjoyment of political rights. These factors combined to the conditions for the Cold War as the United States and the Soviet Union support opposite sides in Nicaragua, El Salvador and Guatemala. The armed conflicts of this period created over 2 million refugees and internally displaced people, of which only 150,000 were considered refugees in terms of the 1951 convention.27 Due to these massive displacements of population and refugee crisis, in May of 1981, in the city of Mexico, the Matías Romero Institute of Diplomatic Studies of the Mexican Ministry of Foreign Affairs organized, in cooperation with the Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México (unam) and under the auspices of the unhcr,28 a Colloquium29 to examine the more delicate and immediate problems of asylum and the refugees, the needs and gaps of the international legal orders and the internal rights of the refugees. Under the determinations of the Colloquium, conclusion number 4 is highlighted, stating that: 4. In Latin America, it is necessary to extend the protection that the Universal and inter-American instruments grant refugees and asylees, to all the people who fled from their countries due to aggression, foreign 26

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Arboleda, E., ‘La Declaración de Cartagena de 1984 y sus semejanzas con la Convención de la Organización de la Unidad Africana de 1969: una perspectiva comparativa’, in Namihas, S. (ed.), Derecho Internacional de los Refugiados (Pontificia Universidad Católica del Perú/Instituto de Estudios Internacionales, 2001), pp. 81–91. Fischel de Andrade, J.H., ‘Regionalización y Armonización del Derecho de Refugiados: una perspectiva latinoamericana’, in unhcr and iidh (eds.), Derechos Humanos y Refugiados en las Américas: lecturas selecionadas (Instituto Interamericano de Derechos Humanos/Alto Comisionado de la onu para Refugiados, 2001), pp. 75–104, p. 91. Santiago, J.Rd., ‘La Declaración de Cartagena: Naturaleza jurídica y trascendencia histórica’, in unhcr (ed.), Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (Editorama, 2005). 1981 Colloquium on Asylum and the International Protection of Refugees in Latin America.

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occupation or domination, massive violation of human rights or situations that seriously alter public order, in all or part of the territory of the country of origin (Author’s translation).30 After that, on the 19th to 22nd of November, 1984, under the auspices of the Colombian government and the help of the unhcr, the University of Cartagena de Indias and the Regional Centre of Third World Studies (creset), the ‘Colloquium on the International Protection of Refugees in Central America, Mexico and Panama: Juridical and Humanitarian problems’ was held. From this meeting emerged a new and creative answer, in the generous tradition of Latin America asylum, building upon the conclusions of Colloquium of Mexico in 1981: the Cartagena Declaration on Refugees.31 The Cartagena Declaration adopted the expanded concept of ‘refugee’ foreseen in the oau Convention (Article 1, paragraph 2), enlarging it in the sense of aiding people threatened by generalized violence, internal conflicts and human rights violations. The text of the Cartagena Declaration states in its third conclusion, the following definition of ‘refugee’: Third. […] it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the oau Convention (article 1, paragraph 2) and the doctrine employed in the reports of the InterAmerican Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence or foreign aggression.32 According to Franco, the Cartagena Declaration reflects a fundamental step in the integration of universal principles, regional values and the practice of the States, permitting Latin America to enter the labyrinths of International Refugee Law.33 30 31 32 33

‘Conclusiones y recomendaciones’, 1981, p. 1. Spindler, W., ‘El Plan de Acción de México: proteger a los refugiados a través de la solidaridad internacional’, 55 Revista Migraciones Forzadas 40. ‘Cartagena Declaration on Refugees’, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama. Franco, L., ‘Diez Años de la Declaración de Cartagena sobre Refugiados en America Latina’ (1994) , p. 4.

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The Cartagena Declaration is divided into four parts. In the first part, conclusions are presented and recommendations adopted by the 1981 Colloquium on Asylum and International Protection of Refugees in Latin America, which established important criteria for review and consideration of material. The second features the commitments related to refugees included in the “Contadora Act on Peace and Co-operation in Central America”34 whose criteria are completely accepted and transcribed in the 1952 Convention. The third reproduces a series of conclusive results found by the 1984 Colloquium of Cartagena de Indias, the third conclusion of which expanded the concept of ‘refugee’. While, the fourth establishes a series of recommendations that have the objective of reaffirming the necessity of observing commitments in matters of refugees in the “Contadora Act.” Although not formally binding, the Cartagena Declaration has become the basis of refugee policy in the region and established a juridical foundation for the treatment of refugees in the region as it has been incorporated in to the national legislation of a number of States. Among these principle topics, the non-refoulement principle, the importance of integration of refugees and the need to eradicate the causes of generalized movements of the population. It also partly filled this gap by relating the refugees’ displacement and repatriation problems directly with human rights. Latin American countries not only make an effort to regulate the protection of refugees but went beyond it when they decided to recognize as well those who had suffered violation of their human rights, allowing the refuge of a larger group of refugees, which would corroborate the commitment of Latin America to this problem. The Declaration has multiple contributions, overall highlighting the expansion of the definition of ‘refugee’ by extending the causes to widespread violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that would severely disturb public order. Additionally, the Declaration encouraged action of the States, reiterated the importance of  the non-refoulement principle as the basis of refugee protection and 34

The “Contadora group” was created on January 9th of 1983 during a conference on Panama Island, with the objective of discussing the pacification of Central America and in particular, the conclusion of the civil wars in El Salvador, Guatemala, and the conflict between Nicaragua and the United States. The group denominated as a platform for political negotiation and was made up of diplomatic representatives of Mexico, Venezuela, Panama and Colombia. One of the main objectives was the search for new regional solutions to the Central American conflicts. In June of 1984, the group presented to the five central American countries a draft of the ‘Acta de Contadora para la paz y cooperacion en Centroamerica’. See: Forman, A., Puentes sobre la Turbulencia/La Concertación Política Latinoamericana en los Ochenta (flacso, 1990).

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peremptory rule of international law; noted the need for the States to develop minimum standards enshrined in the basic instruments of protection of refugees, internally displaced and repatriated people. The Cartagena Declaration was not intended as a legally binding instrument. Although it was not formally binding and implementation efforts still have to be improved, it became the pillar of policy on refugees in the region and was incorporated into the national legislation of diverse States in the continent,35 which permitted, together with the support of the governments and civil society, the creation of a network of protection on a continental level. The Declaration established that the States can adopt an enlargement of the refugee concept or not, a fact that acted as an important persuasive element through the years due to the acceptance and application of the Declaration by various states.36 This occurred, either through the formal adoption of national standards, or by their existing procedures of recognition of refugee status. 3

San Jose Declaration on Refugees and Displaced People

On the occasion of the tenth anniversary of the Cartagena Declaration in 1994, the importance of this document was reiterated in the Colloquium in Commemoration of the “Tenth Anniversary of the Cartagena Declaration on Refugees” that took place in San Jose, Costa Rica, from the 5th to the 7th of December, in which delegates of 20 American countries participated. This Colloquium aimed to revaluate the Cartagena Declaration and resulted in the elaboration of the San Jose Declaration on Refugees and Displaced Persons.37 Internally displaced people are those who have not crossed an international border, but by choice or by force, flee from their homes to avoid the effects of an armed conflict, situations of generalized violence, or violations of human rights.38 They are therefore, a vulnerable group that finds itself in a similar situation to refugees. The Colloquium in Commemoration of the “Tenth Anniversary of the Cartagena Declaration on Refugees” proposed to evaluate the Cartagena 35 36

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Bolívia, Brasil, Equador, El Salvador, Guatemala, México, Paraguai e Peru. Nevertheless, the expanded definition of refugee has been also applied in countries as Argentina and Chile. Lavanchy, P., ‘acnur e América Latina: estratégias regionais e soluções aos problemas no continente’ (2004) . Hereinafter, San Jose Declaration. San José Declaration on Refugees and Displaced Persons.

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Declaration and noted that its adoption has led to the development of a refugee protection with the intention of durable solutions.39 The participants’ conclusions of the Colloquium were registered in the San Jose Declaration, of which it is important to highlight the following: First. To recognize the overriding importance of the Cartagena Declaration in addressing refugee situations generated by the Central American conflicts of the past decade, and, consequently, to stress the appropriateness of resorting to the Declaration in order to find solutions both to pending problems and to the new challenges posed by up-rootedness in Latin America and the Caribbean. […] Eighteenth. To note with particular interest the efforts initiated by the Permanent Consultative Group on Internally Displaced in the Americas, as a regional inter-agency forum dedicated to the study and consideration of the acute problems faced by the displaced within their own countries for reasons similar to those that result in refugee flows, […] Twentieth. To call upon States to urge existing regional fora dealing with matters such as economic issues, security and protection of the environment to include in their agenda consideration of themes connected with refugees, other forced displaced populations and migrants.40 The San Jose Declaration intensified relations between Refugee Law and Human rights. This Declaration acknowledged the convergences among International Refugee Law, International Human Rights and International Humanitarian Law, when stating that violation of human rights is one of the causes of displacement and, therefore, the protection of such rights and the strengthening of democratic systems are the best measures in the search for durable solutions, as well as the prevention of conflicts the exodus of refugees and the severe humanitarian crisis.41 This declaration served to reanimate and strengthen the commitment of the countries in the American continent in the treatment and in the search for solution for the question of refugees and displaced people. In a moment that violence echoed in numerous regions of the world, the American continent 39 40 41

San José Declaration on Refugees and Displaced Persons, p. 1. San José Declaration on Refugees and Displaced Persons, pp. 4–6. Trindade, A.A.C., ‘Reflexiones sobre el desarraigo como problema de derechos humanos frente a la conciencia jurídica universal’, in acnur/iidh (ed.), Derechos Humanos y Refugiados en las Américas: lecturas selecionadas (Instituto Interamericano de Derechos Humanos/Alto Comisionado de la onu para Refugiados, 2001), p. 5.

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committed itself devotedly to the support of hope, it was appreciated that regardless of the financial and societal limitations restricting a number of countries in the Americas, they had still been able to remain united and work closely with the unhcr to ensure that the refugees, internally displaced persons and asylum seekers are provided with the necessary security and aid.42 4

Declaration and Mexico Plan of Action

The situation of Colombians idps and refugees was a strong reason to the development of the pam and its solidarity proposals for durable solutions. This item is subdivided into two parts. The first presents essential information for understanding the Colombian situation and the relation between armed conflict and the crowded borders. The second examines the three solidarity programmes proposed in the plan of action of Mexico. 4.1 Forced Migration and Colombian Situation Colombia is the fourth biggest Latin American country, with the third largest population and the fifth most powerful economy in Latin America. It hosts 44.5 million inhabitants, 28% of whom live in 4 cities: Bogotá, Medellin, Cali and Barranquilla. It’s a country of paradoxes and contrasts that, during the first century of its independent existence, endured nine wars and 54 local revolutions, culminating in the Thousand Day War at the beginning of the twentieth century, followed by conflicts between the Liberal and Conservative political parties in the 50s, and one internal armed conflict that has already lasted for more than four decades.43 Without historical context, it is nearly impossible to understand the Colombian conflict. According to Ramirez, it resulted from a long process of territorial fragmentation, political exclusion, poverty and a traditional political polarisation and should be seen as a process of average duration. The illegal armed groups that currently operate in the country base themselves in historical factors to legitimate their actions, to attack the State and to battle the ­political elite and economics of the country.44 42

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OAS AG/RES. 1273 (XXIV-O/94), Legal Situation of Refugees, Returnees, and Displaced Persons in the American Hemisphere, resolution adopted at the ninth plenary session, held on June 10, 1994. Rangel, A., ‘Colômbia: um país de contrastes’ 8 Revista Diplomacia, Estratégia e Política Brasília, pp. 111–121. Ramírez, M.L., ‘Colômbia: política externa, economia e o conflito’ 9 Revista Diplomacia, Estratégia e Política Brasília 73, p. 73. Author’s translation.

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During the twentieth century, Colombia became one of the most violent countries in the world. In 1949, the murder of presidential candidate Jorge Eliecer Gaitán, a charismatic leader, provoked upheaval among the working classes in every Colombian territory. This incident gave rise to the conflicts of the 50s which received the generic name ‘La Violencia’ and resulted in between 300,000 and 500,000 deaths, generating an enormous displacement of peasants towards the main cities of the country. This violent period was interrupted by the military coup of General Gustavo Rojas Pinilla, supported by the Conservative party, whose government lasted for four years (1953–1957). In an effort to end the party violence, the Liberals and Conservatives, reached an agreement with the intention of alternating power every term, for the 16 following years. This pact was called National Front and had as consequence the closure of the political space.45 In the 60s, the political rule of the National Front started to give signs of depletion and the combined factor of the Cold War, the Cuban Revolution, internal and institutional Colombian crises, the profound agrarian problems of the country, of the radicalization of youth movements and of some unions united to form the embryo of the current socio-political situation in Colombia.46 The Revolutionary Armed Forces of Colombia (farc) appeared in 1964, in a union of diverse groups that didn’t accept the amnesty proposed by President Alberto Lleras Camargo, and defined themselves as followers of a Marxist-Leninist ideology. In 1982, these groups of armed peasants chose an ideology that would unite the fight in the political, economical, military and social sphere. From there, the organization joined their name with the People’s Army (Ejército del Pueblo) and the acronym ep, thereafter known as farc-ep, and their strategy passed from a defensive to an offensive position in the search for political power.47 The Army of National Libertation (Ejército de Liberación Nacional, eln) also emerged in the 60s. It sought to bring down the government through a “Marxist stamp” revolution. It was founded by university students, inspired by Cuba and influenced by the political ideas of Che Guevara, and their network was made up of activists of the communist party, liberation theology supporters and trade unionists.48 45 46 47 48

Rangel, A., ‘Colômbia: um país de contrastes’ 8 Revista Diplomacia, Estratégia e Política Brasília, pp. 111–121. Ramírez, M.L., ‘Colômbia: política externa, economia e o conflito’ 9 Revista Diplomacia, Estratégia e Política Brasília 73. Ramírez, M.L., ‘Colômbia: política externa, economia e o conflito’ 9 Revista Diplomacia, Estratégia e Política Brasília 73. Ramírez, M.L., ‘Colômbia: política externa, economia e o conflito’ 9 Revista Diplomacia, Estratégia e Política Brasília 73.

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In the beginning of the 70s an urban guerrilla movement called M-19 emerged, supposedly founded to claim the election victory of General Rojas Pinilla in response to an electoral fraud during the final National Front election of Misael Pastrana.49 The 80s was one of the most chaotic decades for the country, when large drug cartels confronted the State. farc and eln  guerrillas strengthened themselves and enlarged their presence in Colombian territory. In the same decade peace negotiations began between the government and the guerrilla groups. The political crises worsened with the increased corruption and financial interest in drug trafficking by government officials. This prompted paramilitary groups that were able to articulate and coordinate themselves in a national organization to form the United Self-defense of Colombia (Autodefensas Unidas de Colombia – auc). These paramilitary groups launched an “extermination act” towards those who, in their opinion, assisted the guerrillas, causing a massive displacement of people throughout the entire country. The guerrilla movements, in their turn, responded to the paramilitary groups with similar tactics, thus generating a humanitarian crisis due to the internal armed conflict of Colombia.50 The government of Colombia encouraged the development of paramilitaries or civil armed groups during the 80s, with the objective to contain the guerrilla movements in specific regions of the country. Currently, the humanitarian situation in Colombia is characterized by large-scale displacement due to the armed conflict. All the parts of this war with three sides (government, paramilitary, and guerrilla groups) use tactics against civilians including displacement, forced recruitment and collective punishment.51 Despite efforts by the government and international organisations, many of the displaced prefer not to return to their homes and not participate in the programs of the international bodies. The humanitarian crisis caused by the internal conflict of Colombia and the fear that suppresses the civilian population, consisting mostly of women and children, grows causes concern in the international community, the un and the unhcr.52 49 50 51 52

Ramírez, M.L., ‘Colômbia: política externa, economia e o conflito’ 9 Revista Diplomacia, Estratégia e Política Brasília 73. Rangel, A., ‘Colômbia: um país de contrastes’ 8 Revista Diplomacia, Estratégia e Política Brasília, pp. 111–121. unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003). unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003).

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In the last few years, with the aggravation of the confrontation, there has been an increase in displacements not only in the countryside but also in neighbouring States. The origin of the current context is grounded in the dynamics of its own conflicts and effects largely the border zones. According to the unhcr, “the dimension of the Colombian forced displacement increases each day, as well as the impact in Ecuador, Panama, Peru and Venezuela”53 and it is necessary to acknowledge and accept the complexity of the internal armed conflict of Colombia and the practical implications that it brings to the protection of victims of the forced displacement, both inside Colombia as well as in neighbouring countries. From this acknowledgement, it’s possible to identify the growing humanitarian crisis that extends throughout the region, in particular the frontier zones, and understand the importance of counting on a shared vision of regional character for the Andean countries.54 For the unhcr, the situation in Colombia defines itself as an armed political conflict that uses terrorist-like methods – ethically and democratically unacceptable – and is financed with drug traffic. The nature of the conflict – political and armed – is determined by the objectives that pursue the insurgent ­organizations, and not by the means used. And as of today, certainly, terrorism is used.55 Years have passed, and the armed conflict has become a component of the Colombian national reality that has generated new situations, for example, the transfer of conflicts from the fields to the cities. According to the unchr, “now the large urban centres are utilized as sources of capture of militants (the prisons) and as spaces for violent deeds (the ‘vacuna’56 and political kidnapping).”57 53 54 55 56

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unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003), p. 11. Author’s translation. unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003). unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003), p. 20. Author’s translation. In this sense, the Spanish term “vacuna” is used as a levy or bribe (which denotatively means vaccine). The money paid to organised crime and Colombian guerrillas was used in order to continue working on an economic activity without being the target of reprisals. Rangel A, ‘Colômbia: um país de contrastes’ 8 Revista Diplomacia, Estratégia e Política Brasília, pp. 111–121. unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003), p. 22. Author’s translation.

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According to unhcr, some actors of the armed conflict are considered illegal, such as craf, eln, and auc while others are considered legal, like the Colombian Armed Forces.58 These actors are divided into two main sectors: one is formed by the civilians and politicians of the insurgent groups, the other one is formed by the civil society in both their strands: the one that assumes a passive attitude, assorted by the indifferent victims and observers; and the active, formed by the sympathizers of the use of force, the financers of war and the organized groups that support a national movement towards peace. The armed and social-political conflict that Colombia has been through for more than 40 years has become a permanent worry for human rights organizations, not just because of the implications generated against the Colombian civilian population, but also because of measures applied by the borderline states to respond to one of their biggest challenges: the flow of refugees, because of generalized violence and mass violation of human rights, cross the borders of Colombia in search of international protection in Venezuela, Panamá, Ecuador, and other States of the region and also the flow of internally displaced, fleeing from violence without crossing Colombias’s borders.59 Other than the displacements caused by the armed conflicts, an intrinsic consequence to these phenomena that is fundamental in the protection of refugees and internally displaced people is the crowded borders. It’s a phenomenon still sparingly identified and poorly defined, however, it is just as real as the internal displacements. Colombia is a typical example of the crowded borders phenomenon. In the American embassy in Bogotá, to request an entry visa, it’s necessary to be included on a waiting list and wait, on average, two and a half years for an interview. A persecuted person cannot afford this luxury of time. Many times their persecutors are waiting for the first opportunity to attack. The threats, assassinations and kidnappings perpetrated by networks of guerrilla and paramilitary groups, which are wellequipped and interconnected throughout Colombian territory, many times necessitate that the escape should be realized in a matter of days or even a matter of hours.60 58 59 60

unhcr, Hacia una visión compartida de las víctimas del conflicto colombiano en los países vecinos (2003). Colombia is the country with the highest number idps. unhcr, ‘Global Overview 2011: People Internally Displaced by Conflict and Violence, idmc’ (2012). Carneiro, W.P., ‘As mudanças nos ventos e a proteção dos refugiados’ 3 Universitas: Relações Internacionais.

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4.2 Mexico Plan of Action and Its Solidarity Programmes Within this context, on 20-year anniversary of the Cartagena Declaration, in 2004, four preparatory meetings were held in San José (Costa Rica), Brasília (Brazil), Cartagena de Indias and Bogotá (Colombia). States, international organisations and representatives of civil society gathered to analyse the main challenges that refugee protection faced in Latin America, included the crowded borders phenomenon due to the Colombian armed conflicts, and to identify a course of actions to be taken so as to better protect refugees and assist asylum countries in finding durable solutions.61 The Mexico Plan of Action (mpa) was adopted on the 16th of November 2004 by 20 Latin American governments with the primary purpose of devising a common strategy to deal with the displacement of people from Colombia. It defines the parameters of a regional plan in respect to protection and proposes the adoption of durable measures for the refugee issue in particular to face both situations that need an urgent answer: the increasing flow of refugees seated in the large urban cores of Latin America and the situation of the enormous number of Colombians in the border zones with Ecuador, Costa Rica, Panamá, and Venezuela. The mpa is composed of four chapters, which deal with the situation of the refugees in Latin America, the international protection of refugees, the search for durable solutions, and mechanisms of promotion, execution, continuity and evaluation, respectively. The first chapter notes that, during twenty years of the Cartagena Declaration, especially in the Andean region there are still situations of forced displacement, as a result of which, individuals are forced to become anonymous and do not formally request international protection. Many situations coexist in Latin America and can be classified in three main types: countries that receive a reduced number of asylum-seekers and refugees in regional and continental migratory flows; those hosting a significant number of recognized refugees and/or asylum-seekers; and countries with emergent resettlement programmes. Some countries in Latin America are a convergence of these three situations and although some countries have consecrated the right of asylum at the constitutional level, there is a preeminent need to clarify and improve the definition of refugee. The definition of refugee contained in the Cartagena Declaration was included in the legislation of various Latin American countries, but in the 61

Lavanchy, P., ‘The Mexico Declaration and Plan of Action: Reaffirming Latin America’s Generous Tradition of Asylum and Innovative Solutions’ (2006) 18 International Journal of Refugee Law 450.

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preparatory meetings for the Mexico Declaration and Plan of Action, a need was found to clarify and specify the criteria for the definition of refugee and its possible interpretations under specific circumstances, in particular, the restrictive interpretation of the exclusion clauses, the interpretation of the specific grounds and their application in individual cases, using the jurisprudence of human rights organs and tribunals and taking into account the legitimate security concerns of States, through a broad and open dialogue, with a view to systematizing doctrine and state practice.62 The Plan also intend to award fundamental rights to refugees and, in it, the quality of the asylum is considered fundamental to finding durable solutions for the problem. The analysis highlights two regional situations that require urgent action: the increasing numbers of refugees settled in large urban centres of Latin America and the situation of the Colombian citizens in the border zones with Ecuador, Panamá and Venezuela. According to Carneiro, in Ecuador, it’s calculated that exist 150,000 Colombians have received refugee status, over 20,000 are recognized by the Ecuadorian government. In Venezuela the estimates equally round about the 150,000, while in Panamá and Costa Rica, it is estimated that there are between 50,000 and 100,000 Colombians in each country, being that in Costa Rica almost 10,000 Colombians have already been recognized as refugees, enjoying the full protection of the State. At the same, displaced by the violence inside the Colombian territory it’s counted that between 3 to 4 million people have been giving true dimension to the humanitarian crises in Colombia.63 The mpa was planned to answer especially the humanitarian needs of people that flee from the violence in Colombia and includes an comprehensive exhausting program to evaluate the refugee’s needs and those of local host communities, especially in border areas of neighbouring countries, considering complementary humanitarian activities and the orientations for 62 63

Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America, p. 6. Carneiro, W.P., ‘As mudanças nos ventos e a proteção dos refugiados,’ 3 Universitas: Relações Internacionais, p. 8. Author’s translation.

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development.64 After all, three programmes were proposed: one of the mechanisms of the Plan is a regional responsibility-sharing program focused on resettlement of refugees and internally displaced persons (idps), “Solidarity Resettlement” Programme. The other two pillars are integration of refugees and idps in safe communities (“Solidarity Cities”), and development of the border regions of neighbouring countries to benefit displaced Colombians and their hosts (“Borders of Solidarity”). The programme “Solidarity Cities” intends to avoid, as far as possible, the so-called irregular or secondary movements and intend, overall, to offer more effective protection that encompasses the refugees’ duties and their social, economic and cultural rights. This program aims to ease the execution of public policy, under a social integral strategy, with financial aid from the international community and in collaboration with the United Nations and civil society. The program “Borders of Solidarity” was the outcome of the preparatory meeting of Cartagena de Indias in Colombia, realized on the 16th and 17th of September 2004, which indicated unawareness of the size of the issue on the borders with Ecuador, Panamá and Venezuela with Colombia, since the 10,000 refugees and the 30,000 asylum seekers would represent, at the time, only a fraction of the total of Colombian citizens that would transit through or reside in these countries. These displaced, in most part, remained “invisible,” or in other words, in irregular migratory conditions. The regional program “Solidarity Resettlement” was proposed by the Brazilian government, in the preparatory meeting that occurred in Brasília, on the 26th and 27th of August of 2004. It is a program that consists of regional resettlement for Latin American refugees, based on principles of international solidarity and responsibility-sharing. This opens the possibility for any Latin American country, the moment it finds it appropriate, to receive refugees that find themselves in other countries of the region, and aims at lowering the impact of the humanitarian situation. The fourth chapter of the mpa concerns “promotion, execution, continuity and evaluation mechanisms” and focuses the execution of the Plan through a series of activities at various levels: national, regional, sub-regional, regional and international. The mpa thus contributes substantially two main aspects. The first, of regional character, refers to the States’ need to act together to resolve problems considered by them to be common, reflecting a feeling of international 64

Spindler, W., ‘El Plan de Acción de México: proteger a los refugiados a través de la solidaridad internacional’ 55 Revista Migraciones Forzadas, pp. 40–41.

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solidarity and an idea of responsibility sharing, contributing therefore to work carried out on this topic within the European context.65 The second aspect is of an international character, while studying regional programmes in Latin America it could provide reliable and academic research and encourage similar initiatives in other parts of the world, revealing the importance of South– South, South–north and North–south Cooperation at the regional and inter-intercontinental levels. 5

Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas

On the 11th of November, 2010, the Brasilia Declaration on the protection of refugees and stateless persons in the Americas,66 was adopted in Brasilia, Brazil, by the countries present at the end of the “International Meeting on Refugee Protection, Statelessness and Mixed Migration Movements in the Americas” hosted by Brazil’s Justice Ministry, was intended to mark the occasion of the sixtieth anniversary of the unhcr and the 1951 Convention Relating to the Status of Refugees and the fiftieth anniversary of the Convention on the Reduction of Statelessness.67 The meeting congregated most of the signatories of the map and resulted in eighteen of the twenty participating States pledging to strengthen their efforts to protect growing number of refugees and stateless persons in Latin America,68 including continued accession to other international instruments for their protection. 65

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Since 1999 the European Union has been developing a legal asylum framework, the Common European Asylum System (ceas), with mixed results in terms of burden-­ sharing. Even if other European countries had been willing to share the “burden,” it is difficult to compare the contribution made by various countries. As a result, it has been difficult to negotiate the ceas and the results of the first phase of harmonization are more of an amalgam of national standards and practices than a unified system. For further information about ceas see: Lambert and Goodwin-Gill, Thielemann, and Noll. Hereinafter, Brasilia Declaration. unhcr, ‘Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas’ (2010). Available at . The states that adopted the Brasilia Declaration are: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. Canada and the United States took part of in the Brasilia international meeting as observers but did not sign and adopt the Declaration.

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The Declaration underlined that every person possesses the right to seek and be granted asylum as enshrined in the American Declaration of the Rights and Duties of Man of 1948. The participating States stated their “unrestricted respect for the principle of non-refoulement, including non-rejection at borders and indirect non-refoulement, as well as non-penalization of illegal entry.”69 Mix Antònio Guterres, the un High Commissioner, welcomed the declaration in a statement released on the day after in Geneva. He stated the Brasilia Declaration as “a landmark declaration that I hope will result not only in better protection for refugees and other displaced people across the Americas, but also accelerate global efforts to improve the situation of displaced people and end the scourge of statelessness.”70 The statement acclaimed the Declaration and its value as “international precedent,” encouraging “governments in other regions to take note of the pioneering leadership that has been shown today by Latin America.”71 The declaration has three main features that merit particular attention. The first element is the unrestricted respect countries have agreed to for the principle of non-refoulement. It expands upon the basic definition found in the 1951 Refugee Convention by including “non-rejection at the border and indirect nonrefoulment” and ‘non-penalization of illegal entry and non-discrimination’. Secondly, the Declaration supports the continued incorporation of gender, age and diversity considerations into national laws on refugees and idps. Accordingly, Paragraph 8 states that member states’ compromise “to promote the values of solidarity, respect, tolerance and multiculturalism.” And the third feature is the fact that it encourages States to embrace mechanisms to address “new situations not foreseen by the international instruments for the protection of refugees.”72 Conclusion To sum up, with regards to forced migrants protection, Latin America has a particular tradition that since the ‘expanded refugee concept’ provided by the 69 70 71 72

unhcr, ‘Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas’ (2010). Available at . unhcr, ‘Latin America Nations Pledge More for Protection of the Displaced and Stateless’ (2010). Available at . unhcr, ‘Latin America Nations Pledge More for Protection of the Displaced and Stateless’ (2010). Available at . unhcr, ‘Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas’ (2010). Available at .

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Cartagena Declaration includes the concern with internally displaced people contained in the San Jose Declaration; and also the quest for durable solutions for the refugee problem, such as the programs proposed in the Mexico Plan of Action, as seen above. The Cartagena Declaration on Refugees of 1984 constitutes a compilation of best practices, based on the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, bringing together the generous tradition of Asylum in Latin America. It embodies a flexible instrument that articulates and attempts to harmonize legitimate concerns related to security and regional stability with humanitarian needs for the protection of those in need. The Declaration represents a significant strengthening in the concept of refugee and goes beyond the idea of individualized persecution for motives such as race, religion, nationality, belonging to a certain particular social group or political opinion (reasons which appear in the 1951 Geneva Convention), as also includes in the category of refugees those people that left their country of origin because of war, massive violation of human rights or because of similar causes that severely disturb public order. In extending the concept of ‘refugee’ to include those displaced by war, massive violation of human rights or severe disturbance of public order, the Cartagena Declaration filled a human rights gap, when bridging the “protection gap” which lasts in situations where unhcr seeks to protect persons with respect to whom concerned States do not recognise that they have a responsibility, as they are not protect under the 1951 Convention. Many States in the region adopted the Declaration as a basis of policy on refugees in the region, though it was not formally binding. In spite of the fact that acceptance of the extended concept of ‘refugee’ was optional, many States incorporated it into their national standards. In 1994, on the occasion of the tenth anniversary of the Cartagena Declaration, the importance of the Declaration was reiterated through the San Jose Declaration on Refugee and Displaced Persons, which mentions the necessity to confront the problem of internally displaced people in the region. It states that violations of human rights is one of the causes of dislocation and that, therefore, the protection of such rights and the fortification of the democratic system form the best measures in the search for durable solutions. In 2004, the 20-year celebration of the Cartagena Declaration was marked with initiatives that made reflect to the urgent need the States to update the Declaration. This resulted in the Mexico Plan of Action, a regional answer to the new outbreaks of conflict in the continent, like those of Colombia and Haiti, as well as the impact of these conflicts on neighbouring countries. The mpa defines the lines of regional action in regards to protection and proposes

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an agreement of durable measures for the refugee issue, especially to two situations that urgently need an answer: the increasing flow of refugees centred in the urban cores of Latin America and the phenomenon of the crowded borders. Their proposals include the adoption of three programmes: “Solidarity Cities,” “Borders of Solidarity” and “Solidarity Resettlement.” The Mexico Plan of Action represents a step forward in strengthening the protection of the human rights and the affirmation of the universality of human dignity. The mpa will express the Latin American solidarity with countries that currently has the highest number of refugees in Latin America and is confronting larger burden on its protection system due to the disproportionally large influxes of Colombian refugees in to its territory. The consolidation of the objectives and programs of the mpa carries with it a dual responsibility. The first, of regional character, referring itself to the need of the States to act together to solve the problems considered common, reflecting a notion of international solidarity and shared responsibility. The second responsibility is of international character. The success of the regional program of resettlement in Latin America could encourage similar initiatives in other parts of the world, revealing the importance of cooperation’s at regional and intercontinental level. Observing the Cartagena Declaration’s principle of working with development actors and ngos, the mpa has been a constructive framework used to stimulate the participation of actors from Civil Society and development agents in matters of refugees and idps. Civil society has significantly contributed with the Asylum System by providing monitoring and evaluation of the mpa. In November 2010, the International Meeting on Refugee Protection, Statelessness and Mixed Migration Movements, that originated the Brasilia Declaration, was carried out with the objective of presenting the outcomes of distinctive activities implemented by various countries concerning the mpa. The Brasilia Declaration represents agreement between a majority of countries in the Americas to continue developing a regional framework of cooperation for responding to forced and mixed migration flows. The Declaration reiterated the mpa, along with recognizing some of the recent developments in the region and urging states to ratify existing international instruments on statelessness.

Why Trafficked Persons Need Asylum Jean-Pierre Gauci* A number of factors influence the decision of trafficked persons regarding return to their countries of origin. These factors may be of such kind or severity to call into play international human rights law and, in some cases, to activate non-refoulement obligations. These include the possibility of re-trafficking (whether by the same or other traffickers), the threat of retaliation (by traffickers and/or their associates – and possibly the state) and the risk of ostracism (by family and more broadly by society).1 Other reasons may include family and social ties having been established in the country of destination that might call into play the right to family life, health considerations, as well as other human rights obligations. This chapter provides a critical analysis of how existing counter-trafficking instruments address these concerns by providing an overview of recent critiques, by applying an assessment framework to determine the protection potential of the instruments and by assessing these instruments against the standards set out in the ohchr Principles and Guidelines on Human Rights and Human Trafficking.2 Concurrently, the chapter offers commentary throughout as to how asylum can extend and fill in the gaps of existing instruments to offer more comprehensive protection for vulnerable peoples. Such an assessment of existing instruments, with asylum as a corollary option, is necessary for two main reasons. First, an analysis of the protection potential of the current anti-trafficking instruments indicates a need for alternatives, and asylum is a major one. Second, recent years have witnessed a growing number of asylum applications filed by trafficked persons.3 Thus, this chapter evaluates the relevance of asylum as a strategy to achieve long-term * Director, The People for Change Foundation and Research Coordinator in Public International Law, British Institute of International and Comparative Law. 1 See in this regard: Nadine Finch and Parosha Chandran, ‘Residence for Victims of Trafficking in the uk: Humanitarian, Asylum and Human Rights Considerations’ in Parosha Chandran (ed), Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the uk (LexisNexis 2011) 243. 2 ohchr, Recomended Principles and Guidelines on Human Rights and Human Trafficking (United Nations 2010). 3 See in this regard: Abigail Stepnitz, ‘A Lie More Disastrous Than the Truth: Asylum and the Identification of Trafficked Women in the uk’, (2012) 1 Anti-Trafficking Review 104; Stepnitz notes that based on Poppy Project service users (women trafficked for forced prostitution – i.e. only one subset of trafficked persons) 792 individuals had sought asylum in the period between 1 April 2009 and 31 March 2011. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_009

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protection within the context of existing counter-trafficking instruments which claim to perform this very function. Whilst acknowledging that a human ‘rights based approach’ to counter-trafficking is multi-pronged and comprises not only protection provisions, but also issues of prevention, criminalisation, investigation, prosecution and punishment,4 this chapter focuses exclusively on the protection potential of the existing instruments within a human rights framework. It therefore looks both at how risks are addressed and mitigated and at the issue of the status of trafficked persons in receiving States. In particular, it examines the right of trafficked persons to stay in the country of destination. The lack of provision for long-term protection in favour of a criminal justice approach, it is argued, is the greatest weakness of the current framework. The scope of this analysis is limited first by the legal instruments to which it refers and second by the type of protection it addresses. To the first limita­ tion, whilst a wide spectrum of legal instruments provide for the prohibition of human trafficking,5 this chapter assesses those instruments which are specifically dedicated to trafficking and which make substantive provisions. These are: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children6 (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime7 (unctoc); 4 See in this regard: Tom Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (Martinus Nijhoff Publishing 2006); unodc, Toolkit to Combat Trafficking in Persons (United Nations 2008); Bernadette McSherry and Susan Kneebone, ‘Trafficking in Women and Forced Migration: Moving Victims Across the Border of Crime into the Domain of Human Rights’ (2009) 12 International Journal of Human Rights 67. 5 See for instance: the European Union Charter of Fundamental Rights, the Arab Charter on Human Rights, the American Convention on Human Rights, the Convention on the Elimination of All forms of discrimination against women, the Protocol to the African Charter on Human and People Rights on the Rights of Women in Africa, the Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, the African Charter on the Rights and Welfare of the Child, the saarc Convention on Regional Arrangement for the Promotion of Child Welfare in South Asia, the 1930 Convention regarding Forced or Compulsory Labour, the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, the International Convention for the Suppression of White Slave Traffic, the International Convention on the Protection of the Rights of All Migrant workers and Members of their Family, Convention (No. 143) concerning migrations in abusive conditions and the promotion of equality of opportunity and treatment of migrant workers, 6 un General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime [2000] A/RES/55/2. Hereinafter ‘the Protocol’ or the ‘Trafficking Protocol’ 7 United Nations Convention against Transnational Organized Crime [2001] A/RES/55/2.

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the  Council of Europe Convention on Action against Trafficking in Human Beings8 (CoE Convention); the South Asian Association for Regional Cooperation Convention on Preventing and Combating Trafficking in Women and Children for Prostitution9 (saarc Convention); Directive 2011/36/EU of The European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA10 (eu Trafficking Directive) and Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities11 (Residence Permit Directive). National transposition and implementation of their provisions, as well as provisions in international legal instruments around slavery, are beyond the scope of the present chapter and will only be referred to in passing. This focus is merited in that in the national transposition and international slavery instruments, substantive protection provisions are incorporated therein. This is not so in the five instruments under analysis here. Whilst establishing the principle that trafficking is prohibited, they do not otherwise provide further legal obligations. To the second limitation, the focus of this chapter will be on ‘long-term protection’ rather than short-term ‘assistance and support’. The latter receive considerably greater attention in the anti-trafficking instruments but are less relevant to a discussion of durable safety for trafficked persons, including immigration status which refugee law seeks to provide. Long-term protection includes protection from potential harm in the long term, not only provisions of assistance upon initial identification as a trafficked person. It also includes immigration status, access to long-term care, employment, education and healthcare, and, more broadly, an ability to settle into a new

8 9 10

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Council of Europe Convention on Action Against Trafficking in Human Beings [2005] cets 197. South Asian Association for Regional Cooperation Convention on Preventing and Combating Trafficking in Women and Children for Prostitution [2002]. Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/ JHA, [2011] OK L101/01. Council Directive 2004/81/EC of 29 April 2004 on the Residence Permit Issued to ThirdCountry Nationals Who are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate with the Competent Authorities [2004] L261/19.

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life free from the risk of harm. It goes beyond the short-term support provided through a single session with a counsellor and social worker, and explores the need for settlement and integration. As such the chapter deals primarily with the rights of trafficked persons in, and the obligations of destination States, that is, the country to which they have been trafficked. I  argue that asylum also creates obligations on third-party countries, irrespective of whether they have played a part in the trafficking process. Let us begin our assessment with an overview of the recent critiques of the Trafficking Protocol, the CoE Trafficking Convention, the saarc Trafficking Convention, the eu Anti-Trafficking Directive and the Residence Permit Directive. 1

Recent Critiques 

Recent literature on the existing counter-trafficking instruments makes two related observations. First, that these instruments promote a law enforcement approach to human trafficking; second, that this is done to the detriment of protection-guarantees for trafficked persons. Hathaway,12 Srikantiah,13 Bruch14 and Fitzpatrick15 agree that the primary focus of the Trafficking Protocol is on law enforcement, including prevention and prosecution understood within a framework of border control and transnational crime. Gallagher notes that while human rights concerns may have provided some impetus (or cover) for collective action, it is the sovereignty/ security issues surrounding trafficking and migrant smuggling that were the true driving force behind such efforts.16 This is partly explained by the adoption of the Protocol within the purview of the United Nations Office on Drugs and Crime, a context that raised the concern of the Special Rapporteur on

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James Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (2008) 49 Virginia Journal of International Law 1. Jayashri Srikantiah, ‘Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law’ (2007) 28 Immigration and Nationality Law Review 741. Elizebeth M. Bruch, ‘Models Wanted: The Search for an Efffective Response to Human Trafficking’ (2004) 40 Stanford Journal of International Law 1. Joan Fitzpatrick, ‘Trafficking and a Human Rights Violation: The Complex Intersection of Legal Frameworks for Conceptualizing and Combating Trafficking’ (2003) 24 Michigan Journal of International Law 1143. Anne T Gallagher, The International Law of Human Trafficking (Cambridge University Press 2010) 976.

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Violence against Women.17 According to Edwards,18 this focus reflects how ‘national governments have tended to approach trafficking in human beings principally from a criminal justice / prosecution or an immigration perspective, the latter in vigorous and increasing attempts to control irregular migration’.19 In practice, this focus resulted in a Trafficking Protocol that ‘from a victims’ perspective (…) offers only limited assistance with rather nebulous, aspirational obligations that leave much to the State’s discretion’.20 Kneebone eloquently sums up the argument noting how the Trafficking Protocol: leads to a criminal justice response in which trafficked persons are constructed by police and law in contradictory terms, both as free agents (migrants) and as victims of crime, as a result of the failure to see them as objects of responsibility and bearers of human rights.21 The European Union framework has been criticised for being overly focused on prosecution and providing protection only to those who are able and ­willing to participate in the prosecution of traffickers. Whilst the un Joint Commentary notes that the adoption of the 2011 Anti-Trafficking Directive reflects the continued commitment of the European Union to counter-trafficking, and represents a critical step in addressing human trafficking comprehensively, it still / nonetheless raises a number of concerns regarding who the object of protection might be. Commenting about the 2004 Residence Permit Directive (which remains valid despite the adoption of the 2011 Anti-Trafficking Directive and reference to which is made in the latter directive) both Raffaelli22 and 17

Radhika Coomaraswamy, Integration of the Human Rights of Women and the Gender Perspective: Report of the Special Rapporteur on Violence Against Women submitted in accordance with Commission on Human Rights Resolution 1997/44 (2000). On this point however, Gallagher rightly notes that ‘the international human rights system amply demonstrated over many years that, on its own, it was incapable of taking any serious steps towards (the) elimination trafficking and other forms of private exploitation’ Gallagher, ‘International Law of Human Trafficking’ (n 35) 5. 18 Alice Edwards, ‘Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/Migration and Labor’ (2007) 36 Denver Journal of International Law and Policy 9. 19 Ibid., 11. 20 Ryszard Piotrowicz, ‘The unhcr’s Guidelines on Human Trafficking’ (2008) 20 International Journal of Refugee Law 242. 21 Susan Kneebone, ‘The Refugee -Trafficking Nexus: Making Good (The) Connections’ (2010) 29 Refugee Survey Quarterly 137. 22 Rosa Raffaelli, ‘The European Approach to the Protection of Trafficking Victims’ (2009) 10 German Law Journal 205.

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Piotrowicz23 note that the narrow protection offered by European law hinders its potential efficacy.24 As will be highlighted below, whilst the 2011 AntiTrafficking Directive remedies some of the shortfalls, it does not overcome the key hurdle that protection is limited to persons collaborating with the prosecution of the traffickers. The Council of Europe Anti-Trafficking Convention received greater support from academic writers. Gallagher25 and Sembacher26 laud its human rights dimension, going so far as to refer to it as a human rights treaty and a milestone in the path towards achieving a comprehensive approach. This optimism is justified by the specific, detailed and substantive human rights provisions found in the Convention. Gallagher does express some caution, however, astutely noting that the Convention represents a marked improvement over the Trafficking Protocol but still falls short of the higher standards set out by the ohchr Guiding Principles.27 As the Explanatory Report identifies, the drafters of the Convention recognised the links between the prosecution of traffickers and the protection of trafficked persons.28 Scarpa eloquently argues that one of the critical achievements of the Convention is: The shift of focus from the traffickers’ prosecution to the victims’ protection and the consequent adoption of a human rights based approach, of gender mainstreaming and of a child-sensitive approach as the basis of every action in the field of trafficking in persons. Scarpa, however, also acknowledges that various protection-oriented provisions proposed by the Parliamentary Assembly were not accepted, a failure she attributes in part to the pressure from European Union representatives in the drafting committee.29

23

Ryszard Piotrowicz, ‘European Initiatives in the Protection of Victims of Trafficking who give Evidence Against their Traffickers’ (2002) 14 International Journal of Refugee Law 263. 24 Raffaelli (n 22) 1. 25 Gallagher, The International Law of Human Trafficking (n 35); Anne Gallagher, ‘Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments’ (2006) 8 European Journal of Migration and Law 163. 26 Anke Sembacher, ‘The Council of Europe Convention on Action against Trafficking in Human Beings’ (2006) 14 Tulane Journal of International and Comparative Law 435. 27 ohchr (n 2). 28 Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (2005). 29 Silvia Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford University Press 2008) 145.

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The saarc Convention has been described as primarily a criminal justice instrument that replicates the moralistic and protectionist emphasis of the 1949 Trafficking Convention. Gallagher acknowledges that the Convention nevertheless includes a number of important assistance and protection provisions, several of which go beyond their strictly optional equivalents contained in the Trafficking Protocol.30 However, the scope of the saarc Convention is narrower than other instruments, referring exclusively to the trafficking of women and girls for the purposes of sexual exploitation, and thereby excluding trafficking for other exploitative purposes, as well as the trafficking of men and boys. This must be borne in mind when reading comments specific to this particular instrument. Whilst, therefore, some provisions are stronger than their Trafficking Protocol equivalent, the protection potential is undermined by the limitations of the instrument itself. 2

Assessing the Protection Potential

We now move into assessing the (human rights) protection potential of the international instruments on trafficking of human beings. The analytical framework applied here builds on that developed by unesco within the context of education that refers to availability, accessibility, acceptability and adaptability, with a context- specific understanding of the terms.31 For our purposes ‘availability’ refers to whether or not there is a legal obligation to make protection provisions. As such it refers to whether protection is a priority of the legal instruments and whether there is a legal obligation to protect. The discussion around ‘accessibility’ includes practical considerations and legal constraints on accessing protection, primarily conditionality of protection on collaboration with law enforcement. The assessment of ‘acceptability’ looks at the content of the protection granted and whether this is in line with other international obligations and whether it meets the needs of trafficked persons. ‘Adaptability’ does not apply directly to the present discussion and is instead replaced by a brief discussion of potential human rights externalities. Throughout this analysis, the viability of asylum as a channel for protecting trafficked persons is discussed, outlining whether and how asylum overcomes some of the shortcomings identified in trafficking-specific protection provisions.

30 Gallagher, The International Law of Human Trafficking (n 35) 131. 31 See generally: Katarina Tomaševski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable. (United Nations 2001).

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Availability: Stated Purpose, Nature of Provisions, Scope of Protection There are at least three dimensions to the question of availability of protection within the trafficking instruments: the first is whether protection is one of the purposes of the legal instruments; the second relates to the nature of the legal provisions, and the third refers to the scope of protection. With regard to the stated purpose of the instruments, the ohchr Guidelines promote the primacy of human rights as an underlying purpose and feature of  all counter-trafficking efforts.32 The achievement of a comprehensive approach33 and specifically the protection and human rights of trafficked persons is a stated purpose of the Trafficking Protocol,34 the Council of Europe Convention35 and the 2011 eu Directive.36 The saarc Convention places cooperation towards the rehabilitation of trafficked persons as one of the purposes.37 Such statements of purpose carry political rather than legal weight, 2.1

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Recommendation 1, within the broader section on Primacy of Human Rights provides that: ‘The human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims’. Such an approach is usually described in relation to: Prevention, Prosecution, Protection and Redress. The preamble to the Protocol refers to how ‘effective action to prevent and combat trafficking in persons, (…), requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognised human rights’. Article 2 provides that one of the purposes of the Protocol is ‘to protect and assist the victims of such trafficking, with full respect to their human rights’ Article 1(1)B provides that one of the purposes of the Convention is ‘to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, whilst guaranteeing gender equality (…)’. In describing the subject matter of the Directive, Article 1 provides that ‘This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also introduces common provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims thereof’. This is further developed through a number of preamble clauses which place specific focus on the protection of trafficked persons. Article II of the Convention provides that The purpose of this Convention is to promote cooperation amongst Member States so that they may effectively deal with the various aspects of prevention, interdiction and suppression of trafficking in women and children; the repatriation and rehabilitation of victims of trafficking and prevent the use of women and children in international prostitution networks, particularly where the countries of the saarc region are the countries of origin, transit and destination.

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and whilst providing interpretive assistance regarding the remaining provisions of the instruments, they do not themselves create legal requirements. The importance of protection is also reflected in the preambular clauses of all of these instruments, albeit to different degrees. Beyond explicitly stated purposes, ‘protection’ is the sine qua non of asylum and the way to achieve is through legal regulations. Whilst a discussion on the purpose of asylum is beyond the scope of the present analysis, it suffices to briefly refer to the broad humanitarian objective of the Refugee Convention38 and the conceptualisation of asylum as offering surrogate human rights’ protection when the State of origin proves unable or unwilling to meet its protection obligations. Comparing trafficking instruments and asylum in this context is of course difficult as one is contrasting the protection objectives of asylum with the crime-control objectives inherent in anti-trafficking instruments. Of greater relevance is the nature of the relevant legal provisions – namely whether the provisions are mandatory (shall) or discretionary (may) and how these compare to other provisions within the same instrument. In the latter case, the protection potential of the provisions, and the relevant instrument more broadly, is significantly more limited. This is relevant due to the consensual theory of international legal obligations whereby States are only bound if they have agreed to be bound.39 Part II of the Trafficking Protocol deals specifically with protection issues. The provisions therein are drafted in discretionary, non-obligatory terms. They  refer to ‘shall consider implementing’ and ‘shall endeavour to provide’ justifying the criticism echoed by Hathaway,40 Gallagher,41 McClean42 and Fitzpatrick43 amongst others that the Protocol is ‘content to recommend, rather than to require remedies for victims’.44 The inter-agency group45 noted 38

See generally: Zainab Esther Fornah v. Secretary of State for the Home Department, [2005] ewca Civ 680, United Kingdom: Court of Appeal (England and Wales). 39 Peter Malanczuk, Akehurst’s Modern Introduction to International Law (Routledge 2002). 40 Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (n 12). 41 Gallagher, The International Law of Human Trafficking (n 16); A. Gallagher, ‘Human Rights and The New un Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975; Anne Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2009) 49 Virginia Journal of International Law 789. 42 David McClean, Transnational Organized Crime (Oxford University Press 2007). 43 Fitzpatrick (n 15). 44 Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (n 12) 7. 45 As reported by Anne Gallagher, ‘Human rights and the New un Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975.

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that the discretionary nature of the protection provisions was ‘unnecessarily restrictive and not in accordance with international human rights law’.46 A number of obligations are imposed, relating to compensation, privacy and assistance with proceedings. However, even these provisions are qualified mainly by an unfettered reference to ‘appropriate cases’, allowing a wide margin of State discretion. The protection potential of the Trafficking Protocol is therefore undermined by the lack of legal obligations and the reliance on provisions that, as Jayasinghe and Baglay47 rightly note, ‘could be characterised as requiring States to perform acts of benevolence’.48 The weak protection potential is further highlighted when comparing the discretionary nature of these provisions to the mandatory nature of provisions on: criminalisation,49 repatriation,50 prevention,51 information exchange and training,52 and border measures.53 Nowhere is this contrast starker then in the discussion on return. Whilst the return provisions (dealing with cooperation on return) are all mandatory in nature, the requirement relating to the voluntary nature of such return is couched as: ‘and should preferably be voluntary’.54 The travaux preparatoires explicitly explain that this does not place any obligations on the State Party returning the victims.55 Other instruments have sought to provide more mandatory provisions. For instance, the eu framework is particularly strong as a result of the enforcement possibilities inherent in an instrument of eu Law.56 Whilst some discretion might still be applied (including definitional issues and context specific determinations) States are obliged to adopt the proposed measures and face infringement procedures for failure to do so. This is an important improvement over the weak provisions enshrined in the Trafficking Protocol. The protection provisions in the international framework (beyond the European 46 Ibid. 47 Udara Jayasinghe and Sasha Baglay, ‘Protecting Victims of Human Trafficking Within a ‘Non-Refoulement’ Framework: is Complementary Protection an Effective Alternative in Canada and Australia?’ (2011) 23 International Journal of Refugee Law 489. 48 Ibid. 49 Article 5. 50 Article 8. 51 Article 9. 52 Article 10. 53 Article 11. 54 Article 8(2). 55 See: McClean (n 42). 56 See generally: Paul Craig and Gráinne De Búrca, eu Law: Text, Cases, and Materials (Oxford University Press 2011).

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context) continues to be framed in soft obligations reflecting lack of political will to transform rhetoric into legal requirements against which States may be held accountable. This issue of the nature of provisions is clearer in the context of refugee law. The Geneva Refugee Convention is drafted in mandatory terms, as are the various regional instruments. It must be noted however that the regional refugee law instruments do not all carry the same legal strength, having been adopted through different international organisations enjoying different levels of harmonization and law making competence.57 The Cartagena Declaration is possibly the weakest in terms of the nature of the instrument, even if it is held to be widely influential in asylum law and policy in Latin America.58 We move now to discuss the issue of scope of protection with regards to the countries that have protection obligations under the various instruments and the individuals entitled to such protection. Asylum, it is argued, extends the scope of protection with regards to both these dimensions. With regard to the geographical scope, the obligations under these trafficking instruments refer, explicitly or implicitly, to countries of origin, transit and destination as

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A detailed elaboration of the specific characteristics of each legal vehicle is beyond the scope of the present thesis. It is however pertinent to briefly outline the instruments adopted by region as this has implications on the strength of the specific instruments and their potential influence on national legislation. The universal instrument is a Convention meaning that it is legally binding on States that choose to sign and ratify it. It is supplemented by a Protocol that is subject to independent ratification. The same applies for the Arab Convention and the oau Convention. The Latin American model is a declaration, a non-legally binding statement of aspiration. Interestingly, the declaration emanated from a conference which brought together State representatives and academics and not from within the Organisation of American States. Nevertheless, the latter has adopted the declaration in its General Assembly. The ‘Asian’ instrument is also not legally binding, having been adopted by the Asian – African Legal Consultative Organisation that does not have competence to promulgate legally binding instruments. The eu’s instrument within this field is the Directive, an instrument that is legally binding as to the ends to be achieved but allows Member States a certain degree of discretion as to the form and method to be adopted in achieving them The choice of instrument reflects the will (or lack of it) of States to bind themselves to certain legal obligations. It also reflects the strength of the entity adopting the instruments. This notwithstanding, implementation and application remain within the competence and responsibility of individual States. For instance, whilst declarations are not legally binding, the Cartagena Declaration is applied widely across Latin America. In the eu, research has shown widely diverging application of the relevant definitions. See: BS Chimni, International Refugee Law (Sage 2000).

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reflected in the preamble to the Trafficking Protocol.59 Asylum on the other hand also places obligations on third countries, that is, countries with no connection to the trafficking process. For instance, if a Nigerian girl is trafficked through Italy and exploited in Spain and manages to reach the United Kingdom, the uk is still obliged to examine her claim for asylum even if this claim is based exclusively on risks associated with her having been trafficked. This is also relevant in cases of internal trafficking. Applications by persons who have been trafficked into the same country where protection is sought are relatively new to refugee law and place trafficking based asylum claims as a subset of their own. Moreover, asylum extends the scope of protection beyond trafficked persons themselves and can also be used to protect persons at risk of being trafficked. Discursively this is reflected in the title of the unhcr Guidelines on trafficking which claims which refer to victims of human trafficking and those at risk of being trafficked.60 Such risk ranges from those who have already suffered attempts and threats of trafficking to those whose circumstances place them at heightened risk of being targeted and trafficked. A significant number of trafficking based asylum claims stand somewhere on this spectrum of persons who had trafficking related claims but who had not been trafficked and could therefore not be considered ‘former victims of human trafficking’. Asylum also covers other persons including family members and other known associates of the trafficked persons who might be at risk. For instance, a husband who helped a trafficked woman escape considered himself at risk from her traffickers. All too often, threats against family members are used as a means of control over trafficked persons but such threats might be sufficient to indicate a well founded fear of persecution. Asylum can also be used to protect activists and other stakeholders who might face retribution from traffickers because of their anti-trafficking efforts.61 For instance, a formal school principal sought asylum after she felt threatened because of her actions to combat the trafficking of girls attending her school. Similarly the New Zealand Refugee Appeal Nos 76481–76481 revolved around the engagement of one of the 59 60

61

As noted above, the preamble makes reference to a ‘comprehensive international approach’ as including measures in countries of origin, transit and destination. unhcr, ‘The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked’ in Guidelines on International Protection (unhcr 2006). For an example of risks faced see: Martina Vandenberg, ‘Complicity, Corruption, and Human Rights: Trafficking in Human Beings’ 34 Case W Res J Int’l L 323 9. For a case see: Cases 76478–76481 of the Refugee Status Appeals Authority of New Zealand. See also: Suvorova v. Canada (Minister of Citizenship and Immigration) of the Canadian Federal Court.

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applicants (the husband) in anti-trafficking activities in Pakistan. Each applicant must, however, prove a well-founded fear because of a Convention ground, although the familial or other relationship with a trafficked person might itself constitute a valid link. This increases both the availability and accessibility of protection, thereby supporting the view that asylum is a viable source of protection for trafficked persons. The reach of asylum to protect these categories of persons provides added value over the limited protection potential of the anti-trafficking instruments. Finally, the implication of the trafficking instruments is that protection, wherever addressed, is against traffickers and their associates. Asylum, on the other hand, offers protection against all forms of harm experienced by trafficked persons provided they are of such severity as would amount to persecution. Ostracism by family and/or the community is a key form of persecution raised in trafficking based asylum claims. Such harm appears to fall outside the protection provisions of the trafficking instruments but might be sufficient for a successful claim for asylum. This is an important consideration considering the harm that may ensue from such ostracism, including significant physical and psychological harm as well as the heightened risk of re-trafficking that such ostracism causes. To reiterate therefore, whilst the protection of trafficked persons is a stated purpose of the counter-trafficking instruments, this does not translate into the ‘availability’ of effective protection provision in the instruments. When provided, protection provisions are limited in terms of both the countries obliged to protect, the persons from whom protection is granted, and the categories of persons eligible for that protection. Asylum offers opportunities to expand the scope of protection and to better materialise the promise of protection for persons at risk because of trafficking situations. 2.2 Accessibility: Conditionality and Practical Barriers The issues of ‘availability’ of protection cannot be divorced from the discussion on the ‘accessibility’ of protection. Two dimensions are addressed here: the issue of conditionality and the issue of practical barriers to accessing protection. Conditionality refers to the making of protection conditional on the ability and willingness of the trafficked person to collaborate with law enforcement authorities. Gallagher observes that the linking of assistance and protection to cooperation with national criminal justice agencies is prevalent in all regions of the world.62 This is despite a growing acknowledgment that this 62 Gallagher, The International Law of Human Trafficking (n 16) 298.

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cooperation is likely to increase the risks faced by trafficked persons63 and that conditionality impacts negatively on the trafficked persons’ perception of law enforcement, thereby hindering rather than helping prosecutions.64 The ohchr Guidelines provide that protection and care should be unconditional on the capacity or willingness to partake in legal proceedings.65 The protection potential of a legal instrument is therefore negatively affected by making protection and support conditional on collaboration. Conditionality of protection is most direct in the 2004 European Union Directive on the residence permit issued to third country nationals who are victims of trafficking in human beings (…) who cooperate with the competent authorities, or the Residence Permit Directive. As the full name suggests, the Directive is conditional on cooperation with the authorities in its entirety. Whilst cooperation goes undefined in the Residence Permit Directive, it is broadly understood as referring to the giving of information related to arrival as a trafficked person including the name of traffickers and their accomplices or details related to points of departure, which information significantly contributes to the tracing or prosecution of the trafficker.66 Cooperation, therefore, is broader than a decision to act as a witness in a trial, but must contribute and be beneficial to the investigation and/or prosecution. The conditionality is linked both to the granting of the residence permit (and related rights) and to its duration, as the residence permits are renewable only for such time as the cooperation continues.67 The eu Trafficking Directive is often wrongly presented as providing for unconditional access to assistance and support. However, through its link to the 2004 Residence Permit Directive,68 in practice it also imposes a condition 63 64

65 66 67 68

See: Vandenberg, ‘Complicity, Corruption, and Human Rights: Trafficking in Human Beings’ (n 61). Mike Dottridge, Report on the Implementation of Anti-Trafficking Policies and Inter­ vention  in the 27 eu Member States from a Human Rights Perspective (2008–2009) (E-NOTES 2011). ohchr Guidelines (n 2), para 8. See for instance: Article 248A of the Maltese Criminal Code. Article 8(3). Article 11(3) provides that: Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC of 29 April 2004 on the Residence Permit Issued to Third-Country Nationals Who are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate With the Competent Authorities or similar national rules.

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of cooperation with the authorities, at least with regard to trafficked persons who do not have rights to legal residence.69 In practice, with regard to this subset of trafficked persons, assistance and support are unconditional only until deportation, the barring of which is conditional on collaboration. Moreover, issues of protection are addressed within the purview of the criminal justice process, restricting their scope to those trafficked persons somehow involved in that process (as witnesses or in some other capacity). As noted above, the focus here is on protection rather than assistance and support, although the two must go hand in hand. Similarly, the CoE Convention provisions regarding assistance provide that such support and assistance should not be made conditional on the willingness of the trafficked person to act as a witness. The direct reference to acting as a witness implies that assistance can, within the parameters of the Con­ vention, be made conditional on forms of cooperation that fall short of acting as a witness. This sceptical interpretation is further merited when considering that in other contexts the Convention speaks of cooperation rather than acting as a witness. With regard to residence permits, the Convention allows States the discretion to determine whether such a permit should be made available to anyone who needs it on the basis of personal circumstances or restrict it to situations where ‘the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigations or criminal proceedings’.70 The Trafficking Protocol allows an implied right to make assistance and protection conditional on cooperation based on the nature of the provisions – in practice if States are not obliged to offer protection, they are also not obliged to offer unconditional protection. It also provides that repatriation should be with due regard to the safety of the person however it is unclear what the implications of this provision are. It is to be noted that whilst conditionality remains an intrinsic part of the  protection regime within the legal instruments at the centre of this analysis, a number of soft law instruments have clearly sought to restrict such conditionality, arguing instead for unconditional support and protection. These include the ohchr Guidelines, the unodc Legislative Guide71 as well 69 70 71

For example – this will not be an issue with trafficked persons who are eu nationals and who, as such, have the right to reside in any eu Member State. Article 14(1). unodc, Legislative Guide for the implementation of the Protocol to Prevent, Suppress and Punish Trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organised Crime (United Nations 2004), para 62.

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as the Explanatory Memorandum to the coe Convention. This is another example of soft law moving forward from the basis provided under treaty law. The impact of such recommendations is, however, limited. In practice, and across many countries, these visas or equivalent measures remain under-used. Importantly, they cannot be applied for but rather must be offered by the authorities on a discretionary (often arbitrary) basis. This arbitrariness is encouraged by the failure to adequately outline the relevant test for contribution to the criminal justice process. In contrast to the anti-trafficking instruments, asylum is not conditional on the criminal justice process but is rather concerned with the risk of harm in the country of origin. As such it marks a shift in conditionality from the interests of the State and of the prosecution, to the human rights of the individual applicant. For recognition as a refugee, the risk must create a well-founded fear and the harm must reach the level of persecution under one of the five grounds of Article 1A(2) of the Convention. For complementary forms of protection, the risk level may be lower but in either case must involve a substantial violation of human rights. Different States apply different interpretations of the refugee definition and apply different criteria. This shift of conditionality therefore overcomes the accessibility issues raised with regard to protection within the trafficking instruments. Asylum protects trafficked persons and persons at risk of trafficking-related harms from a future risk. Whilst past persecution is an important consideration it is not a sine qua non of the need for protection.72 The protection under the trafficking instruments looks back at the past trafficking and allows for protection as a way of remedying that past wrong and bringing those responsible to justice. Asylum, on the other hand, is primarily interested in the future risk, that is the risk of harm upon return.73 It does not look exclusively at the actual trafficking but is also interested in its implications in the future. The condition for asylum is the need of the individual person for protection and not his or her ability to cooperate with the criminal justice process. This too broadens the availability and accessibility of protection. The duration of protection is another important consideration in assessing accessibility. Protection under the trafficking instruments subsists until such time as the collaboration with the authorities ceases, an extension of conditionality of protection. Refugee status on the other hand is, in practice, a quasi-permanent declaration, although different States renew the status at 72 73

See: James Hathaway, The Law of Refugee Status (Butterworths, 1991); The Convention definition of a refugee speaks of a well-founded fear of persecution as the reason why an individual cannot go back to his country of origin.

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different intervals.74 In theory refugee status continues to subsist until such time as the well-founded fear of persecution no longer exists.75 However, one may also consider that the frequent review of the right to a residence permit can have negative psychological implications on trafficked persons. The other dimension to consider regarding accessibility are practical barriers to seeking protection including, for example, lack of information about available options and hastened deportations which practically impede and/or prevent the possibility of seeking protection. In part, this is remedied through provisions for ‘reflection and recovery’ periods. The CoE Convention and the 2004 Residence Permit Directive allow for a reflection period in which the trafficked person should be provided with assistance and which would allow him/ her to decide on whether he/she wishes to collaborate with the authorities. This can be granted on the basis of a presumptive identification of an individual as a trafficked person and includes the right not to be expelled provided a number of conditions are met. No similar provisions can be found in the Protocol or the saarc Convention. Practical barriers to accessing assistance and protection also call into play the need for adequate identification structures as an individual will not have access to any of these rights and entitlement unless, and until, he/she is identified, at least presumptively, as being a trafficked person. The emphasis placed on identification both in the legal instruments and by international organisations, more generally, is therefore commendable. 2.3 Acceptability: Content of Protection The third key indicator in the assessment of the protection potential of any instrument is the acceptability of protection it provides. All of the countertrafficking instruments make a number of short-term protection-relevant provisions regarding, inter alia, identification,76 assistance and support,77

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See in this regard: Parosha Chandran, Nadine Finch, ‘Residence for Victims of Trafficking in the uk: Humanitarian, Asylum and Human Rights Considerations’ in Parosha Chandran (ed), Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the uk (LexisNexis 2011) 246. See: J.C. Hathaway, ‘Reconceiving Refugee Law as Human Rights Protection’ (1991) 4 Journal of Refugee Studies 113. See in this regard: ohchr Trafficking Guideline 2, Protocol Articles 11 and 10(1) a, coe Convention Articles: 7(1) and 10, 2011 Directive Article 11(4) and saarc Convention Article VIII. See in this regard: ohchr Trafficking Guideline 6, Protocol Article 6, coe Convention Article 12, 2011 Directive Article 11.

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privacy,78 and non-criminalisation.79 Whilst these are beyond the specific scope of this chapter, it is pertinent to note the importance of such provisions. The protection of trafficked persons is also catered to in varying degrees in the relevant instruments. We consider this first by looking into safety and risks assessments and second by dealing with immigration-related provisions, namely those allowing trafficked persons to stay in the country of destination. These provisions must be read with the debate above regarding the conditionality of protection in mind. The Trafficking Protocol makes an important, albeit weak, provision regarding the safety of trafficked persons in providing that, ‘Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons whilst they are within its territory.’80 This provision, which relates to States of origin, transit and destination, is weak in nature (‘shall endeavour to’) and does not create an obligation to protect. In the context of return, the Protocol obliges States to ascertain that return shall be with due regard to the safety of that person. This indirectly mandates a risk assessment to be carried out r­ aising the possibility of other human rights obligations (including non-refoulement) being activated. Similarly, the eu 2011 Anti-Trafficking Directive requires individual risk assessment and the provision of appropriate protection. However, this is restricted to individuals within the criminal justice process.81 The 2004 Directive provides that ‘Member States shall take due account of the safety and protection needs of the tcns’.82 The 2011 directive also makes specific provisions regarding re-victimisation within the context of the investigation and trial. The CoE Convention requires States to ‘take due account of the victim’s safety and protection needs’. Furthermore, it provides that such protection is provided on a consensual and informed basis, also taking into account any specific vulnerabilities. Additionally, it includes specific provisions regarding 78 79 80 81

82

See in this regard: Protocol Article 6(1), coe Convention Article 11, 2011 Directive Article. This is missing from the Trafficking Protocol. See: ohchr Trafficking Guideline 5(5), coe Convention Article 26, 2011 Directive Article 8. Article 6(5). Article 12(3) of the Directive provides that: Member States shall ensure that victims of trafficking in human beings receive appropriate protection on the basis of an individual risk assessment, inter alia, by having access to witness protection programmes or other similar measures, if appropriate and in accordance with the grounds defined by national law or procedures. This provision is located under the broader title which sets its potential application to protection of victims of trafficking in human beings in criminal investigation and proceedings. Article 7.

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those involved in the criminal justice process, including trafficked persons, other persons who report the offence or cooperate with the investigations, witnesses as well as, when necessary, family members of such persons. The protection afforded under this provision is quite broad and includes a mix of measures, such as physical protection, relocation, identity change and assistance in obtaining jobs. The Convention also extends protection to associations involved in anti-trafficking which participate in the investigations and prosecution of trafficking. This protection is akin to witness protection programmes in other contexts, but it is offered to anyone involved within the criminal justice process and not only to those providing testimony. This is the broadest provision of this kind and reflects an understanding of the criminal networks and organisations that are often behind situations of trafficking. A third corollary to protection is the issue of status in the country of destination. A major problem is how trafficked persons are too often treated as irregular immigrants, subjected to detention and deportation.83 This negatively impacts on trafficked persons (whose protection needs might not be addressed) as well as the criminal justice process. Arguments against allowing trafficked persons the right to stay in the country of destination have promoted the ‘floodgates argument’, noting how trafficking will become another channel to circumvent migration controls. Speaking of the drafting process of the Trafficking Protocol, Gallagher reflects how: The inclusion of some kind of right of trafficked persons to remain in the receiving country, at least temporarily (…) was never a serious option. Most delegations were concerned that the inclusion of such a right would further encourage illegal migration and actually benefit traffickers.84 The Protocol does, however, require States, in non-mandatory terms, to consider the adoption of measures allowing trafficked persons to remain in their territory, whether temporarily or permanently, giving appropriate consideration to humanitarian and compassionate factors.85 The latter qualification 83

84 85

See in this regard: Satvinder Juss, ‘Human Trafficking, Asylum and the Problem of Protection’ in Juss S. (ed), The Ashgate Research Companion to Migration Law, Theory and Policy (Ashgate 2012) 283. See also: Dina Francesca Haynes, ‘Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and to Secure the Prosecution of Traffickers’ (2004) 26 Human Rights Quarterly 221. Anne Gallagher, ‘Human Rights and the New un Protocols on Trafficking and Migrant Smuggling’ (n 45) 992. Article 7(2).

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reflects some understanding of the complexity of trafficking scenarios but again relies on the benevolence of States. The CoE Convention and the eu Framework (that is the 2011 Trafficking Directive and the 2004 Residence Permit Directive) go one step further and create a two-tiered system. They require the granting of a ‘reflection and recovery period’ (in the case of the CoE Convention of at least 30 days) during which deportation is prohibited.86 The purpose is to allow the trafficked persons ‘to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities’.87 As the unodc rightly confirms ‘the reflection period is now recognised as an effective best practice and humanitarian measure aimed at protecting the human rights of trafficked persons’.88 The CoE Convention and the eu Framework also make provision for a renewable residence permit. As noted above, the Convention allows States discretion as to whether such permits are to be issued on the basis of individual needs or to be made conditional on cooperation. The non-renewal and withdrawal of such residence permits is also subject to national law, allowing a wide margin of appreciation for States. As discussed above, the residence permit under the Directive is conditional on the ability and intention of the trafficked person to cooperate with the authority and is issued for a renewable minimum period of 6 months.89 No similar provisions are made in the saarc Convention. None of the instruments go as far as to require State parties to allow an unconditional right to trafficked persons to remain in the country of destination, even if in some cases such a right arises from other legal contexts, including the broader human rights framework and the activation of the principle of non-refoulement. By comparison, under the Refugee Convention and other refugee law ­instruments, the rights and entitlements ascribed are greater than those assigned under the trafficking instruments. Foremost amongst these is the right to remain in the country for so long as the risk persists including possible access to long-term residence if the duration is of the requisite duration.90 86 See coe Convention Article 13 and 2004 Directive Article 6. 87 Article 13(1). 88 unodc, Toolkit to Combat Tafficking in Persons (United Nations 2008). 89 Article 8. 90 For an in depth discussion of the rights and entitlements of refugees under international law see: James C H, The Rights of Refugees under International Law (Cambridge University Press 2005).

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In the case of persons qualifying for ‘full’ refugee status these rights include the right to family reunification that is not available to persons recognised as ­having been trafficked.91 It also includes a greater set of rights in terms of ­economic well-being.92 This section has highlighted the focus of the anti-trafficking instruments on early stage assistance and support rather than long-term protection whilst the right to stay is couched in discretionary and conditional terms as noted above. In terms of ‘acceptability’, therefore, they lack long-term protection provision that refugee law provides. This in part reflects the distinction between refugee law provisions aimed at settlement and integration and the trafficking framework that views trafficked persons as an asset for the prosecution, therefore as a person who will only be in the country for a number of months or years, but is not intended to settle there permanently. 2.4 Human Rights Externalities A final indicator of the protection potential of anti-trafficking instruments is the possibility of human rights externalities – that is the possible side-affects of these instruments on the enjoyment of other human rights. The ohchr Guidelines implicitly acknowledge the possibility of negative externalities and note that anti-trafficking measures ‘shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum seekers’.93 The various counter-trafficking instruments also try to mitigate some of these externalities through safeguard clauses,94 ensuring that rights and entitlements due under the broader human rights framework are not side-lined under the pretext of the trafficking instruments. The eu Framework establishes minimum standards and the Directives ‘shall not prevent Member States from adopting or maintaining more favourable provisions’.95 As Gallagher reflects, the significance and impact of these clauses should not be understated.96 One key concern relates to provisions aimed at strengthening border controls.97 Whilst the potential of border efforts for the prevention and 91 92 93 94 95 96 97

See Article 12 of the Geneva Refugee Convention and the provisions of the European Union Family Ruenification Directive. See Article 17 to 19 of the Geneva Refugee Convention. Para 6 of ohchr Guidelines (n 2). See as example: Article 14 of the Trafficking Protocol. Article 4. Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground?’ (n 60). See as example: Article 11 of the Trafficking Protocol.

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identification of trafficked persons cannot and should not be understated, these provisions can provide a pretext for closing down borders further, negatively affecting prospects of legal migration and access to protection. These measures have resulted in further obstacles faced by refugees and asylum seekers in acquiring protection. At a time when securitisation is the rule in border management, and when States are keen to close their borders to all migrants, including asylum seekers, the Trafficking Protocol risks providing ‘a context for developed States to pursue a border control agenda under the cover of promoting human rights’.98 Increasing the risks for the ‘service providers’ when met with stable demand for the service increases the price.99 This, in turn, results in more people falling into situations of debt bondage and consequently into the hands of traffickers. Koser100 argues that there ‘are clear indications that trafficking is burgeoning in the stifling climate of asylum restrictions’.101 Moreover, a number of States have used the pretext of counter-trafficking to restrict the opportunities of voluntary migration for women and girls restricting their freedom of movement in a discriminatory way.102 Speaking about the saarc Convention, iom notes that ‘the Convention includes provisions that potentially encourage state parties to adopt measures that can adversely affect the mobility rights of women and children in the interests of preventing trafficking, which has occurred in some saarc countries’.103 Gallagher notes how restrictions put in place under the pretext of counter-trafficking efforts often limit women’s (and especially women of a certain age) options in terms of destinations and occupations.104 Such measures have been implemented both in 98 99

Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (n 12) 26. Demand for migration is not likely to diminish, provided that the massive disparities of wealth and opportunities continue to subsist. 100 Khalid Koser, ‘Asylum Policies, Trafficking and Vulnerability’ (2000) 38 International Migration 3. 101 Ibid., 106. 102 See: Vandenberg, ‘Complicity, Corruption, and Human Rights: Trafficking in Human Beings’ (n 61)8. Vandenberg reports how in one village in Romania, women’s passports were collected by the local police, under the pretext of preventing trafficking but in reality merely prohibiting women’s options to leave. Richards refers to similar measures in Thailand, Nepal and Bangladesh. See: Kathy Richards, ‘The trafficking of migrant workers: what are the links between labour trafficking and corruption?’ (2004) 42 International Migration 147. 103 International Organisation for Migration, Review of the saarc Convention and the Current Status of Implementation in Bangladesh (2009) 22. 104 Gallagher, The International Law of Human Trafficking (n 16) 161.

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countries of origin and of destination, and have in some cases disproportionately affected the rights of the individuals concerned. The United Nations special rapporteur on trafficking in persons, especially of women and children, notes how ‘a number of States reportedly prohibit certain citizens from migrating, judging them to be potential victims of trafficking based on their sex, age, status or destination countries’.105 In India, for example, female household workers under the age of 30 are prohibited from seeking and taking up jobs in Saudi Arabia.106 Brazilian women were denied access to European countries on the pretext that they looked like prostitutes and were therefore suspected of having been trafficked.107 In Nepal, girls who had been intercepted whilst crossing into India were stigmatised in their communities because they had been intercepted by organisations known to work with sex workers. Some of the protection measures to which the instruments refer have been misconstrued and misapplied as justifying the detention and other human rights violations of trafficked persons. Such detention is often justified under the pretext of shelter and support, protection from further harm, and securing cooperation in investigations and prosecutions. Detention is sometimes mandated by immigration control requirements. Moreover, as highlighted elsewhere, the conditionality of protection can heighten the risks for trafficked persons. Individuals who give evidence against their traffickers heighten their risks of being targeted by the same trafficker, or his/her associates. Hathaway argues that counter-trafficking efforts have taken the attention away from the issue of slavery more broadly.108 These externalities can be avoided through a bona fide interpretation and implementation of the requirements of the various counter-trafficking instruments. Whilst asylum addresses a number of shortcomings found in the antitrafficking instruments, in itself it still has a number of important weaknesses in this context. Edwards identifies some of these as including: low recognition rates, lack of capacity of status determination authorities to handle the complexities of trafficking based asylum claims, lack of awareness of the right to apply for asylum and discouragement by long delays and complicated procedures.109 Stepnitz, in turn, identifies some of the practical disadvantages 105 Joy Ezeilo, ‘Thematic Analysis: Prevention of Trafficking in Persons’ in United Nations (ed), Report of the Special Rapporteur on Trafficking in Persons Especially Women and Children (United Nations 2010) 13. 106 Ibid. 107 Ibid. 108 James Hathaway, ‘The Human Rights Quagmire of Human Trafficking’ (n 12). 109 Edwards ‘Traffic in Human Beings: At the Intersection’ (n 18).

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that the over-approximation of trafficking and asylum might have on trafficked persons. These include the shift of specific concerns like future risk onto national referral mechanisms processes, and the extension of the culture of disbelief.110 3

Concluding Remarks

This chapter has highlighted the limited protection potential of the countertrafficking instruments. This reflects how these instruments were never intended as human rights instruments but rather were primarily adopted with crime-control objectives. As a result, the focus is on immigration and crime control with support for trafficked persons as a convenient output, but not a driver of ensuing policy and practice.111 However, the important human rights dimension of trafficking requires lawyers, academics and activists to look for other options. Various such options exist. First, one could look for protection measures available under the general and specific human rights framework, including within the prohibition of forced labour, servitude and slavery and within the Convention Against Torture. In this area the European Court of Human Rights has elaborated a number of important positive obligations for States.112 Another avenue for this protection is asylum. As this chapter has highlighted, asylum offers a viable channel for the protection of trafficked ­persons by extending the scope of protection, and overcoming some of the shortcomings, in the protection provisions of the counter-trafficking instruments. This overlap is recognised in the anti-trafficking instruments including: Article 14 of the Protocol, Article 40 of the coe Convention and the Preamble and Article 11(6) to the 2011 Directive. There is scope for the two protection regimes to be applied in tandem with asylum offering a supplementary rather than an alternative channel for protection. Protection and assistance under the trafficking instruments provide a more tailored approach to the specific needs of trafficked persons making reference to psychological and other assistance for instance. Moreover, remedies under civil law and under trafficking law can provide significant ­remedies against traffickers, including for the payment of earned salaries and damages. The importance of such compensatory measures should not be understated. 110 Stepnitz, ‘A Lie More Disastrous Than The Truth’, (n 3). 111 Ibid. 112 Ryszard Piotrowicz, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 24 International Journal of Refugee Law 181.

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Moreover, identification as a trafficked person by the ‘trafficking framework’ – i.e. the National Referral Mechanism – provides at least part of the evidence required for the determination of refugee status. Identified trafficked persons should therefore be informed of their right to seek asylum and models of referral between the two systems should be established.113 For some individuals, however, asylum may be the only possible channel of protection. This chapter has highlighted the viability and need of asylum as a channel for the long term protection of trafficked persons. The opportunity of protection under refugee law, coupled by the limited options faced by individuals who have been victims of some of the most egregious human rights violations, places a responsibility on refugee lawyers and courts to reflect upon the real purpose of asylum, thus extending protection to trafficked persons. Edwards explains how ‘the asylum channel is often the only one available’.114 However, the protection that may be afforded within the purview of refugee law is additional to and distinct from that due under the trafficking instruments and other relevant instruments. As Juss eloquently argues: ‘the case of human trafficking provides refugee law courts and lawyers with a context in which to map out the contours of protection that can be a useful model for similar future cases’, whilst ‘the sheer frequency with which victims of human trafficking now raise refugee asylum claims is such that the courts can hardly ignore their impact on refugee law’.115 As the phenomena overlap, both in fact and in law, policy developments in both areas must work in sync in order to ensure that the negative ripple effects of one field onto the other are adequately mitigated. Finally, these overlaps create a mutual learning space for organisations and entities making determinations and offering support. They also highlight the need for greater policy coherence between different areas with varying policy objectives. 113 On the possibility of referral between the two systems see: Jacqueline Bhabha and Carmen Alfirev, ‘The Identification and Referral of Trafficked Persons to Procedures for Determining International Protection Needs’ (Legal and Protection Policy Research Series 2009). 114 Edwards, ‘Traffic in Human Beings: At the Intersection’ (n 18). 115 Juss, ‘Human Trafficking, Asylum and the Problem of Protection’ (n 85).

Revisiting Temporary Protection as a Protection Option to Respond to Mass Influx Situations Meltem Ineli-Ciger* Introduction The mass displacement of persons fleeing armed conflict (pfac) continues to be a major problem that needs to be addressed by states and the international community.1 The Convention Relating to the Status of Refugees2 framework is inadequate to address all problems, especially the ones related to pfac and mass influx situations. In view of this protection gap and the difficulties that states face during large-scale influx, this chapter revisits the concept of temporary protection. The first part of this chapter analyses and defines temporary protection. This part also examines some of the instances where temporary protection has been introduced. In order to provide a better understanding of the concept, the main criticisms directed to temporary protection and its practice are addressed in the second part. Therein, the chapter outlines the positive and negative aspects of temporary protection and problems associated with its practice. Namely, the research examines the arguments that temporary protection undermines the 1951 Convention. The second claim which is critically assessed in this part is that temporary protection implies a shift in the search of durable solutions away from the sphere of law. * PhD Candidate, University of Bristol, Law school. The author would like to thank Achilles Skordas and Lilian Tsourdi for their comments on the previous drafts of the chapter. 1 Persons fleeing armed conflict (hereinafter pfac) will refer to all individuals who are forced to leave their country of origin and unable to return to the country of origin due to existence of an internal or international armed conflict. pfac includes victims of internal and international armed conflict as well as victims of generalized, endemic or indiscriminate violence and systematic human rights violations, provided that the violence and human rights violations can be associated with an armed conflict. pfac is chosen as the focus of this research because pfac constitute one of the main groups that can benefit substantially from the practice of temporary protection. Mainly because there are protection gaps in the 1951 Convention and other under international, supranational and regional treaties that preclude a comprehensive protection of pfac. These gaps will be further explored throughout the research. 2 unga, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. (hereinafter ‘the 1951Convention’).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_010

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The third part advances the position that temporary protection is a viable option to protect persons fleeing armed conflict in mass influx situations.3 It further elaborates this argument and makes clear which aspects of temporary protection support it. 1

Defining Temporary Protection

The roundtable on temporary protection assembled in 2012 by the United Nations High Commissioner for Refugees (unhcr) concluded that: “Temporary protection is not a new concept, yet its content, boundaries and legal foundation remain largely undefined or unsettled.”4 The roundtable conclusion is right stating that many aspects of temporary protection are largely undefined. Except the unhcr Guidelines on Temporary Protection or Stay Arrangements (hereinafter the unhcr Guidelines on Temporary Protection) published in 2014 which define temporary protection as, “an emergency response to the large-scale movement of asylum-seekers, providing immediate protection from refoulement and basic minimum treatment”, there are not many international instruments that define temporary protection and reflect a consensus on what it entail as a protection framework.5 However, it is possible to define the main features of temporary protection by examining state practice, unhcr documents, the Executive Committee of the High Commissioner’s Programme (ExCom) Conclusions and one of the formalized forms of temporary protection at supranational level, namely the Council Directive providing for minimum standards for giving temporary protection (Temporary Protection Directive).6 3 Onken identifies temporary protection a viable option whereas Yakoob defines it as a useful mechanism. See V. Onken, ‘The Social Implications of Temporary Protection in Light of the Imperative of Return: A Study of European Policies’ in Refugee Crises and International Response: Towards Permanent Solutions? Bolesta, Andrjez ed. (Wydawnictwo i Drukarnia publishing 2005) European Policies’210; N. Yakoob, ‘Report on the Workshop on Temporary Protection: Comparative Policies and Practices’ (1998–1999) 13 Georgetown Immigration Law Journal 632. 4 unhcr, Roundtable on Temporary Protection: 19–20 July 2012. International Institute of Humanitarian Law, San Remo, Italy: Summary Conclusions on Temporary protection, 20 July 2012. 5 unhcr, Guidelines on Temporary Protection or Stay Arrangements, February 2014, available at: [accessed 1 December 2014]. 6 Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving such Persons and Bearing the Consequences Thereof, 7 August 2001, OJ L. 212–223. (hereinafter ‘Temporary protection Directive’).

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Temporary refuge, which is accepted as the predecessor of temporary protection by many, is defined by Coles as “protection characterized by the principle of non-refoulement which is accorded a person and which is pending the obtaining durable solution.”7 Temporary refuge can be understood as a primitive form of temporary protection that places emphasis on the admission of persons seeking refuge to a host state without elaborating the rights that they are entitled in the host states.8 Perluss and Hartman, in their article that attempted to conceptualize temporary refuge as a customary international law principle, offer a long list of state practice; including instances where states have protected masses seeking refuge from violence and civil war.9 The Comprehensive Plan of Action (cpa) is one of these examples. Under the cpa arrangements more than 1 million people that fled from Vietnam, Laos and  Cambodia were granted temporary refuge in Indonesia, Hong Kong, Philippines, Thailand and Malaysia.10 To guide first countries of asylum that are participating to the cpa, the ExCom adopted Conclusion no 19 and Conclusion no 22. ExCom Conclusion no 19 noted that: “In cases of large-scale influx, p ­ ersons seeking asylum should always receive at least temporary refuge.”11 The term temporary protection replaced the term temporary refuge in the 1990’s.12 This change in rhetoric meant that temporary protection now denotes a comprehensive framework that encompasses not just securing admission to the host states but also minimum standards of treatment to be offered to the protection beneficiaries.13 In 1992 the concept of temporary protection is introduced by the unhcr as an element of the ‘Comprehensive Response to the Humanitarian Crisis in Former Yugoslavia’ to encourage states to keep their borders open, and to 7 8 9 10 11

12 13

G.J.L. Coles, ‘Temporary Refuge and the Large Scale Influx of Refugees’ (1978) 8 Aust. ybıl 199. A. Edwards, ‘Temporary Protection, Derogation and the 1951 Refugee Convention’ (2012) 13 Melbourne Journal of International Law 595–621. D. Perluss, J.F. Hartman, ‘Temporary Refuge: Emergence of a Customary Norm’ (1985) 26 Virginia Journal of International Law 551. S.A. Bronée. ‘The History of Comprehensive Plan of Action’ (1993) 5(4) 539; S.E. Davies, Legitimising Rejection (Martinus Nijhoff Publishers Leiden 2008) 86–88. The ExCom Conclusion no 22 went a step further than the ExCom Conclusion no 19 and also offered a comprehensive guidance on the protection of asylum seekers in large scale influx. The ExCom Conclusion no 22 articulated the rights that should be afforded to the persons protected under temporary refuge. See unhcr ExCoM Conclusion No 19 (XXXI) ‘Temporary refuge’ (1979); unhcr ExCoM Conclusion No 22 (XXXII) ‘Protection of Asylum Seekers in Situations of Large Scale Influx’ (1981). G.S. Goodwin-Gill, J. McAdam, The Refugee in International Law (3rd edn, oup 2007) 340. Edwards n (8) 595–621.

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provide protection to persons fleeing the Bosnian conflict.14 Similarly, temporary protection, as a part of the Humanitarian Evacuation Pro­gramme and the Humanitarian Transfer Programme, was implemented to persuade Macedonia to open its borders to the refugees fleeing Kosovo and to protect refugees from Kosovo in various host States. Temporary protection is still being used; Turkey has been implementing temporary protection to protect Syrians.15 It is not possible to talk about formalization of temporary protection at the international level. The Temporary protection Directive, which was adopted in 2001, is the only instrument that formalized temporary protection at a supranational level.16 The Directive defines temporary protection as an exceptional procedure to be used in mass influx situations when persons that flee armed conflict and violence cannot be returned to the country of origin and the asylum systems of host states cannot cope with the influx efficiently.17 According to Article 2 of the Directive, persons who are forced to leave their country or region of origin and are unable to return in safe and durable conditions especially victims of armed conflict, endemic violence and systematic or generalized human rights violations are defined as the persons eligible for temporary protection. The Temporary Protection Directive further defines mass influx situations as “arrival in the community of a large number of displaced persons, who came from a specific country or geographical area.”18 The Directive has an activation mechanism. It becomes applicable, in other words activated, when the existence of a mass influx situation is determined by a Council of the European Union decision adopted by qualified majority.19 The Council has the authority to activate the Directive, to determine which groups will receive temporary protection and to decide when temporary protection regime will end.20 Wide discretion given to the Council is defined as a dangerous blank cheque by Arenas.21 In a given situation, it can choose not to 14 15

16 17 18 19 20 21

unhcr, A Comprehensive Response to the Humanitarian Crisis in the Former Yugoslavia, 24 July 1992, HCR/IMFY/1992/2. V. Türk, A. Edwards, M. Braeunlich, Introductory Note to the San Remo Summary Conclusions on Temporary protection, (2013) 25(1) ıjrl 1 (hereinafter Introductory Note to the San Remo Summary Conclusions). I. Boccardi, Europe and Refugees, Towards an eu Asylum Policy (Kluwer Law International Publishing 2002) 166. Temporary protection Directive (n 6) Article 2 (a). Ibid., Article 2(d). Ibid., Article 5(1). Ibid., Article 5(3) and Article 6. N. Arenas ‘Concept of Mass Influx of Displaced Persons in the European Directive Establishing the Temporary’ (2005) 7 ejıl 447.

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activate the Directive. It can also limit the category of persons who will receive temporary protection by setting time limits, excluding a specific group and by using other criteria. The Temporary Protection Directive has yet to be implemented.22 Activation of the Directive has been considered by the Council when there was an increase on the number of asylum seekers coming from Iraq and Afghanistan in the beginning of 2000’s.23 However the Council choose not to activate the Directive. Similarly, the Temporary Protection Directive has not been implemented when the arrivals associated with the conflicts of Arab Spring tested the asylum capacities of Member States at eu’s external borders.24 In the eu instead of the Temporary Protection Directive, the Qualification Directive25 has been used to protect pfac including instances where the situation resembles or actually can be defined as a mass influx situation.26 Shared belief by the eu member states that activation of the Directive may create a ‘pull factor’ can be identified as the one of the reasons for which it remained inapplicable.27 The second reason for the lack of activation of the Directive is because some member States, especially the ones that were less likely to be affected by an influx situation, do not want it to be activated. These states simply do not want to share the burden that a mass influx implies. 22 23 24

25

26 27

A. Klug, ‘Regional Developments: Europe’ in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Zimmermann, A. ed. (oup 2011) 133. Ibid., 133. B. Nascimbene, A. Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in North Italy from North Africa’ (2011) 13 European Journal of Migration and Law 346–347; M. Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in view of the Recent Asylum Crisis in Mediterranean’ in Bauloz, Ineli-Ciger, Singer, Stoyanova (eds.) Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common European Asylum System (2015, forthcoming Martinus Nijhoff Publishers). Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 19  May 2004, 2004/83/EC replaced by Council Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted OJ L 337, 20.12.2011, pp. 9–26. H. Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’ (2013) 25(2) ijrl 209, 210. Klug (n 20) 133.

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Noll argues that the same reason is also valid for the lack of a meaningful and comprehensive burden sharing mechanism in the eu.28 The activation procedure of the Directive requires a Council decision adopted by qualified majority and  this is not easy to achieve when a situation only affects a number of member states. Considering the lack of implementation of the Directive so far, it is unclear whether it will ever be implemented. I believe that unless the interests of more than a few member states are at stake or the scale of the displacement is so high that the activation of the directivebecomes essential to manage the incoming flows, it will not be implemented. There is a simple solution that will facilitate activation of the Directive in future instances of mass influx and that is to amend the qualified majority requirement. Despite the lack of implementation, the Directive could provide a well structured and formalized protection regime which clarifies the concept of temporary protection and the standards to be introduced in mass influx situations in Europe. As illustrated in the examples above, temporary protection is usually associated with situations of mass influx. It is not possible to come up with an absolute definition of a mass influx situation; however it is possible to provide some of the elements that can help us identify a mass influx situation. The unhcr articulates mass influx as a concept having some or all of the following elements: “(i) considerable numbers of people arriving over an international border; (ii) a rapid rate of arrival; (iii) inadequate absorption or response capacity in host States, particularly during the emergency; (iv) individual asylum procedures, where they exist, which are unable to deal with the assessment of such large numbers.”29 Durieux and McAdam note that the suddenness of movements and the size of the arrivals are defined as distinctive features of a mass influx situation.30 The number of persons arriving to a particular host state and the capacity of this host state to accommodate these arrivals are factors to consider. When as a result of high number of arrivals from a specific geographical area or a state, the asylum systems of host countries become unable to cope with the arrivals, this signals the existence of a mass influx situation. 28 29 30

G. Noll, ‘Risky Games? A Theoretical Approach to Burden-Sharing in the Asylum Field’ (2003) 16.3 Journal of Refugee Studies 241. unhcr excom Conclusion No 100 (lv) ‘Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations’ (2004). J. Durieux, J. McAdam, ‘Non-refoulement Through Time: the Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies’ (2004) 16(1) ıjrl 17.

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With the help of these elements, that are stated above, each situation should be examined on a case by case basis and a decision should be reached whether a situation can be defined as a mass influx situation. unhcr data suggests that in 15 months, the number of Syrians that sought refuge in Turkey reached 300.000.31 And these numbers suggest an example of a mass influx situation. Between 1975 and 1980 nearly 1 million Indo-Chinese asylum seekers from Vietnam, Kampuchea and Laos fled to other Asian states.32 Although the IndoChinese arrivals may not possess the suddenness element, due to the high rate of arrivals and incapacity of host states for managing the arrivals, they can still be identified as a mass influx situation. Temporary protection is a flexible framework which can be introduced for protection of different groups that seek refuge such as victims of armed conflict, violence or systematic human rights violations and even environmentally displaced persons.33 It is a framework that has been introduced mostly to ­manage mass influx situations. It is implemented as a group-based protection without individual status determination. Temporary protection frameworks guarantee admission of the persons seeking refuge to the host states when individual status determination is impracticable or inapplicable and provides basic minimum treatment in accordance with human rights, until durable solutions are available.34 For the purposes of this chapter temporary protection refers to a framework to be implemented to protect pfac and only to be used in situations of mass influx. 2

Clarifying the Meaning of Temporary Protection

Temporary protection has been subjected to extensive debate and its practice received substantial criticism. The critiques which the practice of temporary protection has received will be addressed below. 2.1 Does Temporary Protection Undermine the 1951 Convention? It is suggested that temporary protection undermines the 1951 Convention by suspending its implementation and granting fewer rights to the protection 31 32 33 34

unhcr ‘Revised Syria Regional Response Plan’ (January- December 2013). Coles (n 5) 19. unhcr Roundtable on Temporary protection (n 3) 3. Note on International Protection (submitted by the unhcr) EXCOM’s Programme Fortyfifth session un doc. A/AC.96/830 7 September 1994.

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beneficiaries.35 Temporary protection schemes generally protect both refugees and persons falling outside of the 1951 Convention’s scope. Temporary protection schemes do not necessarily grant the same set of rights compared to the 1951 Convention. In previous instances where temporary protection schemes were applied, states have offered fewer rights both in terms of quantity and quality to their beneficiaries. For an objective examination of the argument above, one should consider whether states can suspend application of the 1951 Convention in mass influx situations. Article 9 of the 1951 Convention states that: “[N]othing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.”36 The wording of the Article 9 does not provide a clear account of instances which justify derogation from the state obligations under the 1951 Convention.37 There are conflicting views on whether state obligations under the 1951 Convention can be suspended in situations of mass influx.38 Davy suggests that states can restrict rights of specific individuals under Article 9, but not groups.39 Weiss is of the opinion that suspension of the 1951 Convention on a group basis should last until screening of asylum seekers is completed.40 Edwards argues that Article 9 allows states to suspend their obligations towards groups; however she adds some rights that have become peremptory norms of international law such as: prohibition of torture and prohibition of discrimination cannot be derogated in mass influx situations.41 In my view, in some particular cases, a mass influx situation can indeed be accepted as an exceptional circumstance that allows for suspension of the 35

36 37 38

39 40 41

Onken (n 3) 185; K. Koser, M. Walsh, R. Black, ‘Temporary Protection and the Assisted Return of Refugees from the European Union’ (1998) 10(3) ıjrl 445; D.A. Martin, ‘Large Scale Migrations of Asylum Seeker’ 76(3) ajıl 605; J. Fitzpatrick, ‘Temporary protection of Refugees: Elements of a Formalized Regime’ (2000) 94(2) ajil 280, 289. Article 9 of the 1951 Convention. Edwards (n 8) 595–621. See ibid., 595–621; Goodwin-Gill McAdam (n 12) 448–450; P. Weiss, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary (cup 1995) 75; U. Davy ‘Article 8, the 1951 Convention’ in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Zimmermann, A. ed. (oup 2011) 792. Davy (n 38) 792; Durieux McAdam (n 26) 21. Weiss (n 38) 75. Edwards (n 8) 595–621.

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state obligations under the 1951 Convention, with the exception of the state obligations provided under Article 33 of the Convention. Taking into account of this possibility and following Edward’s reasoning I conclude that impelementation of temporary protection frameworks does not necessarily violate or undermine the 1951 Convention.42 However, it should be noted that state obligations towards refugees and asylum seekers under Article 33 of the 1951 Convention cannot be suspended in situations of mass influx.43 The main imperative of the temporary protection frameworks is to secure admission of persons seeking refuge to host states and I believe this imperative is in line with the absoluteness of Article 33 of the 1951 Convention. Introduction of temporary protection schemes does not necessarily require the suspension of the 1951 Convention for a long time. Following an initial period which allows states to adjust their asylum systems according to the high number of asylum seekers, processing of the asylum applications of individuals can be resumed. Does Temporary Protection Imply a Shift in the Search of Durable Solutions Away from the Sphere of Law? It is argued that temporary protection places refugee protection outside the ambit of international law due to its administrative nature44 and that it implies a shift in the search of durable solutions away from the sphere of law.45 Another argument directed against temporary protection is related to its focus on repatriation. It is argued that states implementing temporary protection schemes can more easily implement forced repatriation.46 So far temporary protection schemes have been introduced and regulated only by domestic law and/or administrative decisions of states.47 The ad hoc nature of the temporary protection schemes is due to the lack of a universal

2.2

42

43 44 45

46 47

See ibid., 595–621. Nevertheless, taking into account of the possibility of mass influx situations providing a valid reason of derogation under Article 9 of the 1951 Convention, in each mass influx situation, a thorough examination should be done as to whether the large scale influx can be accepted as grave and exceptional circumstances under Article 9 of the 1951 Convention. Ibid., 595–621; Durieux McAdam (n 26) 6. Koser Walsh Black (n 35) 445. Fitzpatrick (n 35) 283; Onken (n 35) 182; Koser Walsh Black (n 35) 445; S.M. Akram, T. Rempel, ‘Temporary Protection as an İnstrument or Implementing the Right of Return of Return for Palestinian Refugees’ (2004) 22(1) Boston University International Law Journal 12. Fitzpatrick (n 35) 291. J. Thorburn, ‘Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe’ (1995) 7(3) ijrl 462–464; Akram Rempel (n 35) 10–13.

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formalization of standards to be offered in mass influx situations.48 A successful harmonization and formalization of temporary protection may suggest a conceptualized legal protection framework. This formalization of temporary protection can be on regional or universal level; can be introduced by a regional or international Convention or a protocol, where states would agree on the main issues stated below. A formalized regime should affirm the principle of non-refoulement and clearly oblige states to admit pfac to their territories in a mass influx situation. Harmonization of temporary protection standards should clearly state the groups that will be protected under temporary protection, the rights that will be granted to the status holders, the duration of the protection, and conditions for termination of temporary protection.49 Temporary protection beneficiaries should be able to receive emergency aid and be able to access food, shelter and basic sanitary and health facilities. The rights that will be granted to the temporary protection beneficiaries should follow standards taking place in the international and regional human rights treaties. The set of rights granted to temporary protection beneficiaries can be further strengthened and expanded depending on the duration of the protection and the needs of special groups. In order to place the search for durable solutions in the area of law, international legal standards should be introduced for withdrawal of temporary protection and return of refugees.50 Through the introduction of these standards regarding the end of temporary protection, states would be assured that with certain conditions temporary protection would come to an end.51 On the other hand, persons protected through temporary protection would be assured that they will not be forced to return solely based on a state’s discretion.52 It is claimed that states that search for the option with the maximum likelihood of rapid repatriation tend to see temporary protection as an attractive option.53 It should be recalled that the legality of forced repatriation and its 48 49

50 51 52 53

Fitzpatrick (n 35) 281. Koser Walsh Black (n 35) 445; W. Kälin, ‘Flight in Times of War’ (2001) 83 irrc 641. Hathaway and Neve offers a comprehensive proposal for such a temporary protection model. See J.C. Hathaway, R.A. Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard. Human Rights Journal 115–172; See also unhcr Guidelines on Temporary Protection (n 5); Fitzpatrick (n 35). J. Fitzpatrick, ‘The End of Protection: Legal standards for Cessation of Refugee Status and Withdrawal of Temporary Protection’ (1999) 13 Georgetown Immigration Journal 346–347. Ibid., 363. Ibid., 363. Ibid., 347.

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implementation should be considered under the principle of non-­refoulement. For signatories of the 1951 Convention, Article 33 of the 1951 Convention places a negative obligation not to send a refugee back to a place where his/her life or freedom would be threatened on Convention grounds. Similarly many international and regional human rights instruments such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat), the International Covenant on Civil and Political Rights (ıccpr) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) have non-refoulement related clauses. These treaties prohibit return of a person to a place where he/she would be in risk of torture, inhuman and degrading treatment. Aside from the treaty law, the mainstream scholarly opinion suggests that the principle of non-refoulement has become part of customary international law.54 Taking into account the protection that the principle of non-refoulement offers to refugees as well as to pfac, the following conclusion can be reached. If the forced repatriation practice violates the principle of non-refoulement, temporary protection cannot be used to justify this action. Although it will be definitely useful to harmonize and formalize rules governing the end of temporary protection, states should consider their obligations under international law independent from the regime of temporary protection. As long as the principle of non-refoulement is respected, temporary protection does not suggest a riskier alternative compared to other complementary protection frameworks. The next part will address the question why temporary protection is a viable option for the protection of persons fleeing armed conflict in mass influx situations. 3

Temporary Protection, a Viable Framework to Respond to Mass Influx Situations

3.1 The Prospect of Protecting More People The 1951 Convention is the principal legal instrument concerning the protection of refugees. Temporary protection is an asset especially in regions or 54

Non-refoulement is defined as a rule of customary international law by following scholars; W. Kälin, M. Caroni, L. Heim, ‘Article 33, para 1’ in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Zimmermann, A. ed. (oup 2011) 1344–1345; J. Allain ‘The Jus Cogens Nature of Non-refoulement’ (2001) 13 ijrl 538; A.  Kjaerum, ‘Temporary Protection in Europe in the 1990s 445’ (1994) 6 ıjrl 444; E. Lauterpacht, D. Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion (cup 2003); Goodwin-Gill McAdam (n 12) 347.

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states where the 1951 Refugee Convention or other human rights instruments have not been ratified.55 In regions where the 1951 Convention is ratified, there is still merit for implementation of temporary protection for various reasons. The first answer to the question, why temporary protection is a viable protection option for protection of persons fleeing armed conflict, is that temporary protection can be introduced to protect not just refugees but  all  pfac.56 By introducing temporary protection, States have the prospect of protecting more persons especially compared to the 1951 Convention framework. The refugee is defined in 1951 Convention as a “person who owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”57 Not all pfac can be protected within the 1951 Convention framework because not all pfac are refugees as defined under Article 1 of the 1951 Convention.58 Through the course of an armed conflict, persons fleeing indiscriminate violence,59 generalized violence,60 persons persecuted by non-state actors and persons who do not have a fear of persecution on Convention grounds have 55 56

57 58 59

60

Introductory Note to the San Remo Summary Conclusions (n 4). Fitzpatrick (n 35) 292; M.J. Gibney, ‘Between Control and Humanitarianism: Temporary Protection in Contemporary Europe’ (1999–2000) 14 Georgetown Immigration Journal 691; D. Joly, ‘Temporary Protection within the Framework of a New European Asylum Regime’ (1998) 2(3) International Journal of Human Rights 54. Article 1A (2) of the 1951 Convention. F. Durieux ‘Of War, Flows, Laws and Flaws: A reply to Hugo Storey’ (2012) 31(3) Refugee Survey Quarterly 167–171. Zimmermann and Mahler note that indiscriminate violence occurs when there is a lack of distinction between military and civilian targets or when the military violence is specifically directed against the civilian population. See A. Zimmermann, S.J. Mahler, ‘Article 1 A, para 2’ in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A  Commentary Zimmermann, A. ed. (oup 2011) 370–371; Holzer notes that: “Both the terms indiscriminate and widespread violence indicate that the violence is untargeted widespread, random and affects persons alike.” See unhcr, The 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence, September 2012, PPLA/2012/05; Durieux states that: “Generalized violence and indiscriminate violence do not have the same meaning. Generalized and widespread may also include discriminate violence.” See Durieux (58) 165. ‘Generalized violence is widespread and constitutes serious breaches of, and intrusions into the protected sphere of the individuals’. See A. Skordas, ‘Council of the European

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substantive challenges on successfully claiming asylum.61 Additional to these challenges, implementation of restrictive policies by states such as Internal Flight Alternative (ifa), Safe Third Country and Safe Country of Origin, denies refugee status to a considerable number of pfac.62 In order for pfac, especially victims of internal armed conflict, to fulfil the criterion of ‘well -founded fear of persecution’ established in Article 1A (2) of the 1951 Convention can be problematic.63 Usually, the existence of armed conflict brings general insecurity, without the individual persecution element being present.64 When the requirement of being singled out is applied for determining who is a refugee, unintended victims of crossfire and bombings who face indiscriminate violence fall outside the 1951 Convention’s scope.65 The belief shared by national courts, some scholars and earlier by unhcr66 is that a mere victim of an armed conflict or a person who is not singled out

Union, Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving such Persons and Bearing the Consequences Thereof’ in eu Immigration and Asylum Law Commentary on eu Regulations and Directives, Hailbronner ed. (Hart Publishing 2010) 828. 61 A.R. Zolberg, A. Suhrke, S. Aguayo, Escape From Violence Conflict and the Refugee Crisis in Developing World (oup 1989) 269. 62 unhcr, ‘Protection Gaps in Europe? Persons Fleeing the Indiscriminate Effects of Generalized Violence’, 18 January 2011, 1–8. 63 For a comprehensive research on restrictive interpretation of ‘well-founded fear of persecution’ element in the Refugee definition See unhcr, the 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence (n 59) 14–18. 64 Goodwin-Gill McAdam (n 12) 126. 65 V. Holzer, ‘The Relevance of the 1951 Refugee Convention for the Protection of Individuals Forced to Flee Armed Conflicts’ in Protection of Global Risks: Constructing World Order Through Law, Politics and Economics (Peter Lang GmbH 2010) 101; H. Storey, ‘Armed Conflict in Asylum Law: The “War Flow”’ (2012) 31(2) Refugee Survey Quarterly 10. 66 1979 unhcr Handbook states that “persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.” unhcr, Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), June 2005, PPLA/2005/02, para 21 p. 9; unhcr has changed its position in the 1979 unhcr Handbook regarding Convention’s application for persons fleeing armed conflict. One of the recent unhcr Guidelines issued in 2010 it is noted that: “for persons fleeing armed conflict, there is no need for the applicant to have been singled out or individually targeted, nor is there a requirement that he or she suffers from a risk or impact which is different than for other persons.” unhcr, unhcr Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, April 2009.

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for persecution cannot be defined as a refugee.67 Review of the cases concerning persons fleeing armed conflict in various domestic jurisprudences reveals that the Courts followed two main approaches when dealing with asylum cases of persons fleeing armed conflict;68 these are the comparative approach (differential risk approach)69 and the non-comparative approach.70 The comparative approach71 focuses on whether an asylum seeker, or the group that he/she is a member of, is in a differential risk compared to other individuals or groups in their country of origin.72 The differential risk approach introduces an additional threshold and implies that certain harm is not persecution when it affects a large number of persons in the same way.73 Thus when ‘differential treatment’ or ‘being singled out’ criteria are used through refugee status determination, the number of victims who qualify for the refugee status is considerably reduced.74 Most domestic courts which initially followed the comparative approach through time have adopted a more flexible interpretation of the persecution element.75 Although many courts have adopted a less restrictive interpretation over time, there is still an incoherent interpretation of the term ‘persecution’ between courts. This incoherence restricts the success of asylum claims lodged by persons fleeing armed conflict.76 67

68 69 70

71

72

73 74 75 76

Kälin argues that according to the 1979 unhcr Handbook and State practice, persons fleeing armed conflict need to be singled out for persecution to be protected under the Convention. W. Kälin, ‘Refugees and Civil War’ (1991) 3 ıjrl 437–438. For an examination of these approaches see Storey (n 65) 5. It is also called exceptionality approach by some scholars. See Storey (n 65) 5. H. Storey, R. Wallace, ‘War and Peace in Refugee Law Jurisprudence’ (2001) 95(2) ajıl 352– 355; Kälin (n 49) 643; Guideline 1, Civilian Non-Combatants Fearing Persecution in Civil War Situations, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Immigration and Refugee Board Ottawa, Canada, Effective date: March 7, 1996 (hereinafter the Canadian Guidelines). Canadian Guidelines supra (n 70) 5; Following comparative approach in case Isa v. S.S.C. the Court noted that: “Many, if not most civil war situations are racially or ethnically based. If racially motivated attacks in civil war circumstances constitute a ground for Convention refugee status, then all individuals on either side of the conflict will qualify.” See Isa v. S.S.C. (1995), 28 Immigration Law Review (2d) 68 (F.C.T.D.) para 8 cited in Storey Wallace supra (n 70) 351. “Asylum seekers fleeing civil war, as defined in Adan, must demonstrate that they face a ‘differential impact’ over and above the general risks of the civil war.” See R v. Secretary of State for the Home Department, Ex parte Adan, Ex parte Aitseguer, United Kingdom: House of Lords (Judicial Committee), 19 December 2000. Holzer (n 65) 111. Kälin (n 49) 642. Storey (n 65) at 5. Durieux (n 58) 165.

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There should be a link between the Convention grounds and the­ well- founded fear of persecution for an asylum seeker to be able to receive Convention refugee status. The grounds for persecution in the Convention are stated as race, religion, nationality, membership of a particular social group or political opinion. Persons fleeing violence can qualify for refugee status where conflicts are rooted in ethnic, religious or political differences which specifically victimize those fleeing.77 Not all persons fleeing armed conflict have a fear of persecution on the basis of Convention grounds; some flee because they are trapped between fighting armed groups.78 Persons who flee due to the indiscriminate and generalized effects of an armed conflict cannot be protected by the 1951 Convention, unless they are able to prove persecution on Convention grounds.79 There is nothing in the 1951 Convention which indicates that a person who has a well- founded fear of persecution by non-state actors should be excluded from the scope of the Convention.80 Earlier state practice, especially from the 1980’s and 1990’s, reveals that persons persecuted by non-state actors were not granted refugee status. The main reason for the deprivation of the refugee status for persons persecuted by non-state actors is the restrictive interpretation of the refugee definition. States at times left out new targets of persecution, new forms of persecution and new identities of persecutors in order to provide protection to less asylum seekers.81 When a liberal interpretation is adopted 77 78 79 80

81

unhcr, Advisory Opinion by unhcr to the Tokyo Bar Association on the Causal Linkage Between a 1951 Convention Ground and the Risk of Being Persecuted, 1 March 2006, 1–2. Kälin (n 67) 438. Ibid., 438. Non-state actors are neither mentioned in the Convention nor in the Convention’s Travaux préparatoires. This does not mean that the drafters wanted to exclude persecution by nonstate actors. In the Convention’s drafting period non-state actors were not considered as one of the main actors of persecution. See C. Phuong, ‘Persecution by Non-state Agents: Comparative Judicial Interpretations of the 1951 Refugee Convention’ (2003) 4 European Journal of Migration and Law 522; Zimmermann Mahler (n 59) 363 Despite this, through 1980’s and 1990’s shows, some states including Germany and France did not recognise persecution by non-state actors as sufficient grounds to grant asylum seekers refugee status. See Eeva Nykänen, Fragmented State Power and Forced Migration: A Study On Non-State Actors In Refugee Law (Martinus Nijhoff Publishers 2012) 139, 140; R v. Secretary of State for the Home Department(n 72); unhcr, the 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence (n 59) 14–18. Fitzpatrick supra (n 35) 292; The low refugee recognition rates for persons who are forced to flee from Afghanistan, Somalia and Iraq in European host States suggest that the restrictive interpretation of the Convention provisions can deprive a number of persons

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by States and domestic courts, a significant amount of persons fleeing armed conflict can potentially be protected under the 1951 Convention.82 However, even where a liberal interpretation of the refugee definition is implemented, still a number of persons fleeing armed conflict will be left out from the scope of the 1951 Convention. Existence of the protection gap for persons fleeing armed conflict is acknowledged by many scholars as well as institutions and organisations such as unhcr.83 However, an amendment of Article 1 A (2) to expand the protection to all persons fleeing armed conflict does not seem likely in the near future.84 In order to fill this gap, unga Resolutions expanded the unhcr’s mandate to be able to protect persons who cannot be protected within the 1951 Convention’s framework but who nevertheless require international protection.85 Some regional instruments which possess a broader refugee definition such as the Organization of African Unity Convention (oau Convention),86 and the Cartagena Declaration87 have attempted to fill this protection gap. The eu has also undertaken a relevant initiative through the adoption of supranational legislation, namely the Qualification Directive88 which codifies subsidiary protection at the European level.



82 83 84

85 86 87

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fleeing armed conflicts. See unhcr ‘Safe at Last? Law and Practice in Selected eu Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence’ 27 July 2011, 17; McAdam Durieux (n 35) 8, 9. Durieux (n 58) 167–171. Kälin Caroni Heim (n 49) 134; Zimmermann Mahler (n 58) 464; J. Fitzpatrick, ‘Revitalizing the 1951 Refugee Convention’ (1996) 9 Harvard Human Rights Journal 249. Article 1(2) of the oau Convention See Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (“oau Convention”), 10 September 1969, 1001 U.N.T.S. 45. Note on International Protection (submitted by the unhcr) excom’s Programme Fortyfifth session un doc. A/AC.96/830 7 September 1994. Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 U.N.T.S. 45. The Cartagena Declaration, adopted by ten Latin American countries in 1984, expands the refugee definition to include those who flee their country because their “lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances that have seriously disturbed public order.” See Americas – Miscellaneous, Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984. Council Directive 2004/83/EC (n 25).

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Reasons Related to Practicality, Temporariness and Efficacy of Protection In situations of mass influx, the overwhelming number of persons crossing borders in a short period alarms states. The problem of how to accommodate high number of persons that fled an emergency becomes a great concern for authorities of host states. National security concerns in addition to the financial burden of protection discourage states to open borders to mass flows, especially when there are no burden sharing schemes to distribute the burden of the mass influx. One of the key elements of temporary protection is the temporary nature of this form of protection. This is considered favourably by states that have the wrong presumption that admission of pfac means permanent settlement of refugees.89 The temporary nature of such schemes encourages states to admit and protect pfac by opening their borders. States are free to decide on how to fulfil the substantive obligations in the 1951 Convention and how to establish their own refugee determination procedures.90 Most states have introduced asylum systems based on individual refugee status determination (rsd).91 Taking into account the large numbers of pfac, applying the 1951 Convention, based on individual rsd during the first phase of arrivals creates a heavy burden on host States.92 Temporary protection has generally been implemented through prima facie status determination which does not require individual rsd. By allowing for entire groups to be protected, temporary protection does not overwhelm national asylum systems. Individual rsd in mass influx situations entails substantial costs, time and a large work force.93 Very few States possess resources to process asylum applications of persons fleeing in the initial phase of mass influx situations.94 The application of temporary protection allows for the transfer of the cost, labour and time required for individual rsd into providing basic necessities to pfac such as food, shelter, and basic sanitary and health facilities. Absence of burden-sharing is one of the reasons that states are reluctant to offer refuge to asylum seekers. Solidarity is one of the important elements that

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89 90 91 92 93 94

Hathaway Neve (n 49) 140. A.V. Eggli, Mass Refugee Influx and the Limits of Public International Law (Martinus Nijhoff Publishers 2002) 18; Hathaway Neve (n 49) 166. Hathaway Neve (n 49) 139–143. W. Kälin, ‘Temporary Protection in the ec: Refugee Law, Human Rights and Temptations of Pragmatism’ (2001) 44 German Yearbook of International Law 210. Ibid., 211. Durieux McAdam (n 30) 17.

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motivate states to continue protecting pfac. The flexibility of temporary protection schemes can be used as a means to implement burden-sharing for refugee protection amongst host States.95 Considering that the 1951 Convention does not oblige its parties to participate to the burden-sharing in mass influx situations, the formalization of temporary protection which incorporates an equitable burden-sharing mechanism would contribute to the willingness of States providing protection to pfac.96 In the initial phases of an armed conflict, it is difficult to predict when it may come to an end. By implementing temporary protection, states admit and protect pfac and when conditions in the country of origin allow for safe and durable return, states can repatriate the protected persons.97 If the safe and durable return is not possible, then other protection solutions such as resettlement in third countries or integration in the host society can be considered.98 When temporary protection is implemented by states neighbouring the country of origin, repatriation of the pfac becomes easier and less costly. When the root cause of the mass influx situation is an armed conflict, persons that fled from the country of origin may be also willing to return when the reason of flight is eliminated.99 In order to encourage this willingness, host states can implement assisted return schemes.100 These schemes could include financial aid for transportation, look and see visits, assistance and funding reconstruction of infrastructures, as well as provide special training for temporary protection beneficiaries to respond effectively to the labour shortages in the country of origin.101 These schemes can be introduced as elements of temporary protection schemes and this possibility illustrates how the flexibility of temporary protection can be used to enhance search for durable solutions for pfac. In conclusion, due to its efficacy, flexibility and temporariness temporary protection is a viable option to manage mass influx situations. Despite these 95 96 97

Fitzpatrick (n 35) 287; Akram Rempel (n 45) 12. Thorburn (n 47) 478. M.A. Castillo, J.C. Hathaway, ‘Temporary Protection’ in Reconceiving International Refugee Law, Hathaway ed. (Martinus Nijhoff Publishers 1997) 17. 98 Thorburn (n 47) 464; unhcr ExCoM Conclusion no 22 (n 11). 99 Fitzpatrick (n 50) 353. 100 Koser Walsh Black (n 35) 444–461; unhcr, Note on Temporary Protection in a Broader Context, 1 January 1994, available at: [accessed 11 December 2014]. 101 R. Black, ‘Conceptions of ‘Home’ and the Political Geography of Refugee Repatriation: Between Assumption and Contested Reality in Bosnia-Herzegovina.’ (2002) 22(2) Applied geography 123–138; Koser Walsh Black (n 35) 444–461.

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positive features, as stated previously, in some cases instead of temporary protection, the complementary protection frameworks have been used to protect pfac in situations of mass influx. In the eu, the use of the Qualification Directive of the Temporary Protection Directive constitutes such an example. The next part will explore the reasons why temporary protection offers a better response to mass influx situations rather than complementary protection frameworks. Temporary Protection, a Tailored Response for Mass Influx Situations Complementary protection refers to the protection granted by states on the basis of an international protection need outside of the 1951 Convention framework.102 Article 3 of the cat, Article 3 of the echr and Article 7 of the iccpr are the legal basis of complementary protection.103 Subsidiary protection is a codified form of complementary protection in the eu.104 McAdam defines complementary protection as an individual counterpart of temporary protection.105 pfac can be protected within both temporary protection and complementary protection schemes.106 Both schemes are built on the respect for the principle of non-refoulement and protect a broader category of people compared to the 1951 Convention. However complementary protection does not offer any special protection solution to mass influx situations. In addition, it generally requires individual status determination which makes it impractical for managing mass influx situations. Temporary protection is more suitable for mass influx situations as an exceptional measure until the national asylum system can cope with the pressure, whereas complementary protection is introduced for persons who do not qualify for the 1951 Convention refugee protection but nevertheless cannot be returned to their country of origin.107 Mass influx emergencies require a protection framework different than complementary protection regimes which are based on individual processing. Temporary protection schemes are designed to satisfy the emergency needs

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102 unhcr, Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), June 2005, PPLA/2005/02, 2–3. 103 J. McAdam, The Evolution of Complementary Protection (oup 2007) 32. 104 McAdam notes that the term subsidiary has sometimes implied a weaker protection that complementary protection. See McAdam (n 103) 49. 105 Ibid., 43. 106 unhcr ‘Protection Mechanisms’ (n 102) 3. 107 See McAdam (n 103) 32.

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such as shelter, medical care, and food. Temporary protection can also be introduced to protect all pfac, its temporary nature appeals to states and it offers a different set of rights compared to complementary protection schemes. Thus, when complementary protection schemes are used as an alternative to temporary protection in mass influx situations, it does not offer the practicality and flexibility that the latter offers. For all the reasons stated above, when the two frameworks are compared it can be concluded that, when there is a mass influx situation, temporary protection should be the preferable option. Conclusion Temporary protection frameworks have long suffered from an undeserved bad reputation. Some have argued that temporary protection schemes undermine the 1951 Convention by granting fewer rights to refugees compared to what they are already entitled to under the 1951 Convention. It has also been put forth that the temporary protection framework can be used as an excuse for implementing forced repatriation by states. These criticisms fail to take into account the protection gaps that are inherent in the 1951 Convention. For example, the difficulty that the first asylum countries face during a mass influx situation and how the lack of effective burden- sharing shape the protection standards that states offer in mass influx situations. In an ideal world, when there is a mass influx situation, every host state would be expected to admit every person seeking refuge; process their asylum claims and grant refugees and others who deserve refuge, the full set of rights foreseen in the 1951 Convention; and provide effective durable solutions. However in reality, the first step of protection for persons seeking refuge in mass influx situations, namely admission to the host states, has been in most cases difficult to secure. The majority of states that implement the non-entrée policies in mass influx situations are parties to the 1951 Convention, as well as to other human rights treaties which contain non-refoulement clauses. Implementation of temporary protection frameworks means admission of the persons seeking refuge to the host states, when individual status determination is impracticable or inapplicable. A temporary protection framework provides basic minimum treatment in accordance with human rights and emergency aid, until durable solutions are made available. By implementing temporary protection schemes, states can provide refuge to all pfac under a conceptualized protection regime. This includes persons that can be protected under the 1951 Convention and those that cannot. Implementation of temporary protection does not require individual status determination and therefore can

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save costs, time and work force. Temporary protection beneficiaries receive physical safety and their emergency needs are satisfied. Burden-sharing measures to enhance the success of protection in mass- influx situations can be incorporated to the temporary protection framework. This could lead to a more equitable burden- sharing and a greater willingness on behalf of states to offer refuge to pfac in mass influx situations. This chapter has demonstrated that temporary protection has the potential to remedy the protection gaps identified, as it offers the prospect to protect all pfac and thus constitutes a viable option to be implemented in mass influx situations.

Humanitarian Asylum for Forced Migrants: The Case of Haitians’ Arrival in Brazil Andrea Pacheco Pacífico* and Érika Pires Ramos** Introduction This study aims to analyse some legal issues which are essential to the refuge and migration dynamics and their effects on international regimes, as well as the current Brazilian legal order related to this issue, particularly by considering the recent immigration of Haitians to Brazil after the 2010 earthquake in Haiti. A historical perspective of the Brazilian asylum and immigration laws, in addition to the international and regional instruments ratified by Brazil on the issue, make it possible to identify the Brazilian government’s interests on migration and asylum, which oscillate between advancements and setbacks in addressing the issues. It is essential to say that the theory and the practice in Latin America distinguish Asylum from Refuge, being two different legal institutes. However, for academic reasons, in this article, the word “asylum” is used as a synonym for “refuge,” following the European practice. This article examines the Haitians’ arrival in Brazil and the role of agencies, authorities and civil society organisations in granting them humanitarian asylum or not. It presents, on one hand, an innovative solution without legal precedent in Brazil on the protection of national groups. On the other hand, this humanitarian protection, issued through a permanent residence permit visa for humanitarian reasons, is far from giving a definitive and satisfactory solution, either to the Haitian question, or to other cases of migration with environmental pressures as a trigger to displacement, leaving a vacuum of legal protection for individuals and groups under this condition.

* Associate Professor of International Relations and International Law. State University of Paraiba – Brazil (www.uepb.edu.br). Lead Researcher at nepda/uepb (Research Group on Environmentally Displaced Persons). ** Federal Attorney at the Brazilian Institute of Environment and Natural Renewable Resources (ibama/agu) in São Paulo, Brazil (www.agu.gov.br). Researcher at nepda/uepb and Law and International Relations Studies Centre (orbis). Founder of resama – South American Network for Environmental Migrations.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_011

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As a result, this article aims to reinforce the urgency of a global and concrete debate, which Brazil starts to attend, in recognition of a new category of people who need effective protection beyond immediate humanitarian assistance. Thus, the authors suggest an integrated approach which adopts a new international protection regime and wider protective mechanisms of cooperation and assistance, such as “ecological assistance,” in states and communities affected by this dilemma, particularly those in situation of extreme vulnerability, such as in Haiti. 1

The Brazilian Immigration and Refugee Laws

Brazil had been recognised as a country of immigration for centuries as a result of the large numbers of immigrants, particularly from Europe and Asian who have assisted to build the country since the XVI Century, when the Portuguese discovered the land and colonised it. Japanese, Italian, Syrian, Lebanese, German, Dutch and many others immigrated to Brazil, fleeing from wars or in search of better living conditions. Refugees in Brazil are protected by Constitutional law and its infra-­ constitutional norms (i.e. their legal force is under the constitutional legal force), Immigration law and Refugee law, as well as by international and regional Human Rights instruments that Brazil has ratified over the years. Pacífico1 points out that, though having hosted many immigrants, former Brazilian Constitutions used to ban (or even to restrict the entrance of) foreign people to the Brazilian territory by establishing a quota system. Such an ­example can be found in the 1934 National Constitution, whose article 6 (6) affirmed that [e]ntrance in the national territory will have necessary restrictions to guarantee the individual’s ethnic integration and physical and civil capacity. Additionally, the migratory flux from each country cannot exceed, annually, 2% over the total number of respective national people residing in Brazil during the last fifty years. Paragraph 7 of the same Constitution added that “[t]he immigrants’ concentration is not allowed in any site of the Brazilian territory, so that the law must regulate the alien’s selection, localization and assimilation.” 1 Andrea Pacheco Pacífico, O capital social dos refugiados: bagagem cultural e políticas públicas (Edufal 2010).

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Regarding labour rights, the current 1943 Labour Law points out, in its article 354, that “[n]o company might have more than one third of foreign employees” which shows the Government’s concern over hosting immigrants, despite the need to receive them in order to assist the country’s industrialisation process during the fifties and the sixties. All this shows why Brazil has become a multicultural society, regarding its ethnic composition. However, the dominant political and economic elite has continued to exploit less powerful people, including immigrants. This spirit permeates the current immigration law, adopted during the period of military dictatorship. This legislation, that is Act 6815/1980, Presidential Decree 76815/1981, and Act 6964/1981, as well as some regulatory rules, continues to regulate the immigrants’ entrance (including the asylum system), leave (including deportation, expulsion and extradition), exit, rights, duties, travel documents and naturalisation in Brazil. According to the Act 6815/1980 above mentioned, which does not include the treatment of refugees, the different types of visa to enter Brazil are the following: transit, tourist, temporary (i.e. cultural trip, study, business, artistic or sport event, scientist, professor, technical, under labour contract, serving the Brazilian Government, media correspondent, religious), permanent, courtesy, official and diplomatic visa (Articles 4 and 13). Some normative resolutions have been progressively delivered by the Ministry of Labour in order to explain unclear rules and to adapt them to the current national legal order, particularly to the current national Constitution. However, there is no instrument in the Brazilian legal order that contemplates the situation of Haitians who arrived in Brazil after the 2012 hurricane, apart from this legal precedent of granting them permanent residence permit for humanitarian reason. Currently, according to article 5 of the 1988 Brazilian Constitution, which is situated in the first chapter (i.e. individual and collective rights and duties), “[a]ll persons are equal before the law, without any distinction whatsoever, Brazilian and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property […].” This explains why Brazil has attracted large numbers of foreigners and why a high amount of visas have been issued by the Brazilian government to those wishing to come to Brazil for different reasons. Still quoting the 1988 Brazilian Constitution, which ignores refugee issues but regulates citizenship rights, article 12 affirms that Brazil uses a mixed system (jus soli and jus sanguinis) to accord (as well as to withdraw) Brazilian citizenship to individuals by birth, whether they are born in the Brazilian soil or not, or by naturalisation. It is also useful to mention article 5 (items LI and LII)

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of the Constitution, which regulates extradition from Brazil and affirms that “[n]o Brazilian shall be extradited, except the naturalised ones in the case of a common crime committed before naturalization, or in the case there is sufficient evidence of participation in the illicit traffic of narcotics and related drugs, under the terms of the law,” as well as that “[e]xtradition of a foreigner on the basis of political or ideological crime shall not be granted.” Further relevant norms, are those stipulating that foreigners in Brazil shall not be expelled in case their actions are of political or ideological reasons, according to article 75 (1) of the Act 6815/1980, because this would contradict what has been established by current and former national constitutional rules, and namely: 1934 Constitution: article 113 (31); 1946 Constitution: article 141 (33); 1967 Constitution: article 150 (19); and the current 1988 Constitution, expressis verbis: “[e]xpulsion shall not be proceeded if it implies extradition not allowed by Brazilian law.” Additionally, according to article 65 of Act 6815/1980 expulsion is a result of acts against national security, political or social order, public morality and popular economy (i.e. regarding the latter, according to Act. 1521/1951 they are acts that injure free competition or aimed at the formation of cartels, oligopolies or monopolies and price manipulation and market trends), as well as acts whose procedures are harmful to national convenience and interests. Thus, the 1988 Constitution affirms in its article 12 (4), that naturalised Brazilians shall not be expelled, apart from the case that they lose their nationality by a court decision which cancels their naturalisation on account of an activity harmful to the national interests and, hence, they become ordinary foreigners and are subject to expulsion. As mentioned above, immigrants in Brazil, regardless their status (regular or irregular), are protected by constitutional and infra-constitutional norms, at least with relation to their basic fundamental rights, though Brazil has not yet ratified the un Convention on the Protection of the Rights of all Migrants Workers and Members of their Families. For instance, there are no detention centres for immigrants in Brazil and asylum seekers are able to access the labour market, to study, and to access universal public health care, according to the 1997 Refugee Law. Brazil gives so much attention to the refugee dilemma so that refugee’s protection is based on its own refugee law, the Brazilian Immigration Law, dated from 1980, which is different from the Brazilian Refugee Law, dated from 1997. Jubilut and Apolinário2 say that ‘[w]ith regard to refugee law and protection, 2 Silvia Meniucci Apolinário and Liliana Lyra Jubilut, ‘Refugee Status Determination in Brazil: A tripartite Enterprise’ (2008) 25 (2) Refugee 29.

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Brazil can be seen as both an “old” and a “new” country’. For them, on one hand, it is an “old” country insofar as Brazil was involved in the first international initiatives of refugee protection, it has been a member of the Executive Committee (ExCom) of the United Nations High Commissioner for Refugees (unhcr) since 1958, and ratified the 1951 Refugee Convention and its 1967 Protocol in 1961 and 1972, respectively. On the other hand, it is a “new” country because of the current National Refugee Act 9474/1997 and it has become an emerging resettlement country since 2001, that is, in the beginning of the twenty-first century. In fact, Pacífico3 insists that the current Brazilian role in protecting refugees has its origins in the re-democratisation process in Brazil between 1984 and 1988, when the current Constitution was adopted, as well as in the unhcr office transfer to Brasilia (1991) and the Inter-Ministerial Regulation 394/1991 which enlarged refugees’ rights in Brazil and established specific procedures for claiming asylum through a bilateral agreement between the unhcr (which has an advisory role in individual cases?) and the Brazilian Government (which holds the final decision-making competence). Brazil officially enlarged its refugee definition in 1992 when, fleeing from a civil war, 1,200 Angolans arrived in Brazil and claimed asylum. Following the 1984 Cartagena Declaration, Brazil started to consider that persons who are fleeing from severe and generalised human rights violations also fall within the refugee definition. This was the main point that led to the decision of adopting a specific law for refugees and refugee claimants, though, in practice, a humanitarian approach had already been adopted by the Brazilian government. The current Brazilian Refugee Law, enunciated by Act 9474/1997, established arrangements for the implementation of the 1951 Convention on the Status of Refugees and related provisions, as well as created the National Committee for Refugees (Conare), whose articles 11 and 12 affirm that it is a body of collective deliberation within the Ministry of Justice and, under the auspices of the 1951 Convention, 1967 Protocol and other sources of refugee rights under international law, has competence, on a first instance, to analyse the claim and recognise refugee status, decide on cancellation or loss of refugee status, provide guidelines and coordinate actions to enhance the efficiency of the Brazilian refugee regime, and approve regulations to clarify the application of this law. Regarding refugee protection, in Brazil, refugees (articles 4 to 6 of the above Act) are beneficiaries to the provisions of the above refugee law, with no prejudice to the provisions of international instruments to which the Brazilian 3 Cf Pacífico (n. 3) 107.

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Government is a party, ratifies, or adheres to in the future. They enjoy all the rights (for instance identity card, labour card, travel documents, access to free public education and to the free universal health care system) and are subject to the duties related to foreigners in Brazil, the provisions of this law, the 1951 Convention, and the 1967 Protocol, and under the obligation of complying with the laws, regulations and provisions for the maintenance of public order. Even in case refugees commit such offenses (i.e. offenses which lead to expulsion), Articles 36 and 37 prevent them from expulsion of the national territory, except for reasons of national security and public order. However, they will never be refouled to a country where their life, liberty or physical integrity may be at risk, and shall only be returned to a country where there is no risk of persecution. Brazil clearly applies the principle of non refoulement, also according to article 7 (1 and 2) of the above Act, which declares that “[i]n no case his or her deportation shall be to the border of a territory where his or her life or liberty is threatened by reasons of race, religion, nationality, social group or political opinion,” unless the refugee or refugee claimant is considered a danger to national security. Additionally, article 8 also protect refugee claimants who entered Brazil irregularly, by emphasising that “[a]ny irregular entrance into national territory shall not be an impediment for a foreigner to claim asylum before competent authorities” and “[a] request, properly submitted under the previous Articles, shall suspend any administrative or criminal procedure caused by irregular entrance, brought against the claimant and his or her following family group” and, “[i]n case the condition of refugee is recognised, the criminal procedure shall be canceled, provided it could be shown that the related infringement had been determined by the same facts justifying such recognition.” This fact leads to the refugees’ extradition dilemma, which may occur in many countries, for instance the usa, Canada, and the eu. In Brazil refugees and refuge claimants are protected and shall never be extradited. According to Articles 33 to 35 of the above Act, asylum is hierarchically over the extradition request, even in case of grave crimes. Namely, “[a] request for asylum shall cease, until its final decision, any proceedings for extradition pending in administrative or judicial courts, based on the facts that have founded the granting of such refuge” and the “[r]ecognition of a refugee condition shall cease the proceedings of any request for extradition based on the facts that have founded the granting of such refuge.” At last, regarding the refugee status determination procedures, as seen above, it is Conare’s competence to decide on first instance whether to

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recognise refugee status. However, Articles 29 to 32 of the Act 9474 prescribe that a claimant whose request has been denied has the right to appeal before the National Minister of Justice (who has the final decision not subject to further appeal) within 15 days from the date of receipt of the notice. In case the appeal is refused, the claimant shall be protected by the Immigration Law as ordinary immigrant and his or her transfer to the country of nationality or origin shall not occur while there are still risks for his or her life, physical integrity and liberty, with some exceptions. Though the last step to have refugee status recognised is the appeal to the Minister of Justice, Article 5 (35) of the 1988 Brazilian Constitution affirms that “[t]he law shall not exclude any injury or threat to a right from the consideration of the Judicial Power.” Hence, if a refugee claimant is not satisfied with his or her decision, there is still the Constitutional provision which guarantees the right to seek a decision before the Federal Supreme Court. Lastly, some regional instruments on Human Rights and/or Refugee Rights are ratified by Brazil and incorporated into the Brazilian Legal Order. They promote, protect and guarantee legal protection to refugees and refugee claimants in Brazil, for instance: • 1969 American Convention on Human Rights: Article 22 (7 and 8) protects freedom of movement and residence, by affirming that “[e]very person has the right to seek and be granted asylum in a foreign territory […]” and is protected against refoulement. It is useful to mention that the Inter-American Court has competence to punish those States, like Brazil, is its member and fail to follow its provisions. • 1984 Cartagena Declaration on Refugees – a Colloquium on the Inter­national Protection of Refugees in Central America, Mexico and Panama: Conclusion III (3, 8, and 10) enlarged the refugee definition to include ­persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. Here is a clear desire to establish a minimum standard of treatment for refugees, on the basis of the provisions of the 1951 Convention, the 1967 Protocol, and of the American Convention on Human Rights. • 1994 San Jose Declaration on refugees and Displaced Persons: the Third Conclusion stresses the complementary nature and convergence between the systems of protection to persons established in International Human Rights Law, International Humanitarian Law, and International Refugee law, as well as makes an appeal to States party to the 1969 Convention to adopt domestic measures to apply its provisions and to be supervised by its

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pertinent bodies. Additionally, the Tenth Conclusion reaffirms that refugees and those persons who migrate for other reasons, including economic ones, have human rights which should be respected at all times and in all circumstances and places, […] before, during and after their flight or return to their place of origin, with a view to ensuring their well-being and human dignity. • 2004 Mexican Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America: both instruments are concerned with durable solutions for refugees, particularly local integration and new forms of resettlement, such as Solidarity Cities, Integrated Borders of Solidarity, and regional solidarity resettlement. • 2010 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas: the first decision aims at revitalising the implementation of the above mentioned durable solutions, the sixth decision aims at ­considering the possibility of adopting appropriate national protection mechanisms to address new situations not foreseen by the international instruments for the protection of refugees, giving due consideration to the protection needs of migrants and victims of trafficking […], and the ninth decision aims at recognising the importance of greater opportunities for regular migration and policies that respect the human rights of migrants, regardless of their migration status […]. • 2012 Mercosur Declaration of Principles on International Protection of Refugees (23 November): it aims to adopt common policies to protect refugee claimants and refugees and to strength the regional humanitarian space, as well as to adopt non-restrictive migration policies, to identify refugees in mixed migration flows, to pay special attention to questions of gender and age (particularly unaccompanied minors), to apply non refoulement and to give refugee claimants and refugees the same rights as other regular migrants. Additionally, it also seeks to adopt a favourable approach to family reunification and to establish mechanisms of cooperation among all national institutions which deal with the refugees’ dilemma. Furthermore, all countries have agreed to strengthen national resettlement programs and build a regional one with alternative mechanisms to deal with it, besides strengthening those existing instruments of international protection of refugees. Lastly, all countries agreed to strengthen the national commissions to cope with the dilemma and to recognize the civil society participation in favour of refugees’ rights and to encourage all states to adopt the wider definition of refugees, according to the 1984 Cartagena Declaration. Two weeks later, in 7 December 2012, a Joint Communication of Mercosur and Associated States’ Presidents was published and has stated, according to

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paragraphs 44 and 47, respectively, that “[a]ll asylum and refugee institutions have a mandated to are in force to protect human rights of people whose lives or physical integrity are threatened […]” and “[a]ll states are committed to prevent and combat terrorism […], according to what is prescribed by national law and to follow Public International Law, including International Human Rights Law, International Refugee Law and International Humanitarian Law.” Hence, it is clear that Brazil uses a holistic approach to protect immigrants in the country, by incorporating norms from both the refugee regime and from the human rights regime (at national, regional and international levels). Additionally, the 1997 Brazilian Refugee Law is one of the most advanced in the world, protecting convention refugees and other forced migrants fleeing from human rights violations. However, the 1980 Brazilian Immigration Law, which defines the legal status of foreign people in Brazil, was created before the 1988 “Citizen” Constitution and is absolutely outdated. Unfortunately, these legal instruments are not enough to offer legal protection to all types of migrants, particularly in Latin America, as a result, for instance, of different interpretations of the 1984 Cartagena Declaration. In this regard, Cançado Trindade4 defends that the international refugee law regime should protect victims of environmental disasters caused by human beings, according to the interpretation of the term “other circumstances” which cause forced migration. Therefore, many problems occur for those unable to be defined as refugees or not allowed to stay in as regular migrants. A current example has been the case of Haitians who have forcibly migrated as a consequence of environmental pressure and human rights abuses and have been unable to be defined as refugees or regular migrants in Brazil. The only possible solution found by the Brazilian Government was to offer them a permanent residence permit for humanitarian reasons, which does not exist in the Brazilian Legal Order. In so doing, a legal precedent was built in Brazil. 2

Haitians’ Arrival in Brazil after the 2010 Earthquake: A Legal Peculiarity

The reasons for analysing the Haitian Case is, at first, the significant repercussion of the intense migration flows of Haitians after the 2010 earthquake for the Brazilian State and for the Brazilian Legal Order, and, secondly, its impact 4 Antônio Augusto Cançado Trindade, Direitos humanos e meio ambiente: paralelos dos sistemas de proteção regional (Sergio Antonio Fabris Editor, 1993).

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on the international scene, which gave evidence to the absence of legal protection for people affected by natural disasters and other forms of environmental pressures, such as climate change. The United Nations Environment Programme5 demonstrates below the magnitude and complexity of the 2010 earthquake, such as: loss of life, property and environmental resources; serious damage to population´s safety and quality of life; and damage to institutions and to the state: [A]t 4.53 pm local time on 12 January 2010, a powerful 7.0 magnitude earthquake hit Haiti. Its epicenter was the crowded city of Léogâne, 56 km southwest of the capital, Port-au-Prince. It was the worst tremor in Haiti in more than 200 years and among the strongest ever to strike the Caribbean. Of the aftershocks which continued for weeks afterwards, a staggering 16 aftershocks registered 5.0 or higher on the Richter Scale. The earthquake devastated Port-au-Prince, Léogâne and other cities mainly in the south, including Miragoane and Jacmel. Homes, offices and commercial centers were decimated. The Presidential Palace, the Parliament, the Supreme Court and most public administration buildings sustained serious damage. An estimated 105,000 houses were reduced to rubble and more than 188,300 others were damaged in the Port-auPrince area and in much of southern Haiti. Many hospitals, schools, courthouses, police stations and prisons were also destroyed, while rural areas suffered extensive crop losses. Sediment and rubble flowing into coastal areas closed ports and had a catastrophic impact on fisheries. More than 222,000 people perished and over 300,000 were injured. In total, 2.3 million Haitians were displaced and almost 1.5 million people were housed in temporary shelters. Haiti’s capacity to cope was seriously affected by the death of many key officials and the crippling of government infrastructure. Also among the deceased were 102 un workers, the single greatest loss of life in the history of the United Nations. After the 2010 earthquake, Isaac tropical storm and Sandy hurricane/tropical storm (in August and October 2012) increased the destruction scenario in Haiti, reaching regions already affected by the earthquake. The Office for the Coordination of Humanitarian Affairs6 estimates that Sandy Hurricane affected 2 million people in Haiti (in sectors such as: food security, shelter, 5 un Environment Programme, ‘unep in Haiti 2010 Year in Review’ (2011). 6 un Office for the Coordination of Humanitarian Affairs, ‘Emergency revision of the Consolidated Appeal 2012: Needs Arising from Impact of Hurricane Sandy’ (2012) 2–14.

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education, health and wash, nutrition, water-sanitation-hygiene, camp coordination and camp management) and caused evacuation at various internally displaced people (idps) camps as a result of floods and landslides. Of the 541 camps: 115 camps were affected by Sandy, 218 camps by Isaac and 78 camps by both events. According to the International Organisation for Migration (2012), more than 360,000 idps have been living in camps since the 2010 earthquake. The Haitians’ arrival in Brazil occurs in an atypical context of international migration, due to the immediate cause of forced displacement (natural disaster as a trigger), to the geographical shift in the migratory route (moving from South-North to South-South) and to the response strategy given by the Brazilian Authorities to “asylum” or “assistance” requests. Costa,7 Representative of Pastoral dos Migrantes in Manaus, reports that the Haitians’ arrival coincided with the earthquake in Haiti: “It was a moment of global upheaval. Brazil could not prevent immigration. There were discussions on asylum from natural disasters and humanitarian asylum. In fact, the Federal Police issued the Protocol as asylum seekers, followed by a personal statement issued by conare.” On the process of displacement, Fernandes, Milesi & Farias8 identify the following route: Haiti (Port-au-Prince) – Dominican Republic – Panama – Ecuador, Peru or Bolivia – Brazil. The main gateway of Haitians in Brazil has been the Northern states of Acre and Amazonas, from where Haitians cross the Amazonian borders of Peru and Bolivia and suffer from intense activities of trafficking networks (coyotes). Transit countries (Ecuador, Peru and Bolivia), in turn, have adopted different measures to facilitate or restrict the passage or even the entrance of Haitians in their territories. The French Guiana is also a destination sought because of its native language (French). From the environmental and legal perspective, the Haitian case is emblematic: forced displacement had the earthquake as environmental trigger. That is, a natural disaster (not a man-made cause) hinders the assignment of responsibilities, traditionally founded on the idea of causality. However, the impact of earthquakes and other extreme weather events in vulnerable countries like Haiti are enhanced because of pre-existent economic, political and environmental precarious legacy. In this sense, different causes of environmentally  induced displacement by natural or anthropogenic causes (isolated or 7 Gelmino A. Costa Fr, ‘A imigração haitiana em Manaus: presença da Pastoral do Migrante’ (2011) 68 Revista do Migrante 84. 8 Duval Fernandes, Rosita Milesi and Andressa Farias, ‘Do Haiti para o Brasil: o novo fluxo migratório’ (2011) 6 (6) Caderno de Debates Refúgio, Migrações e Cidadania 81.

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combined ones) could point, at first, to different legal regimes under the current International Law framework for the protection of persons affected by global environmental changes. Conversely, it is necessary to highlight, regardless of the causes/triggers and their complex interactions such as in Haiti, the lack of the States’ responsiveness, which is primarily responsible for protecting and assisting populations affected by disasters. This includes the adoption of preventive measures and post-disaster recovery assistance that goes beyond material, psychological and legal issues to be provided to individuals and groups affected. In general, the low (or no) capacity of adaptation and response to environmental changes are important indicators of external environmental migration flows and key elements to be considered for the construction of adequate and durable solutions. As a result of the lack of recognition of refugee status to Haitians, all proceedings initiated by the National Committee for Refugees (conare) were sent to the National Immigration Council (CNIg), pursuant to Decree n. 840/93, which gave to CNIg responsibility to “[f]ormulate immigration policy,” “[c]oordinate and conduct the activities of immigration” and “[s]olve missing cases regarding immigrants.” conare argued that Haitian asylum seekers were not qualified to obtain refugee status because environmental factors do not constitute “[c]auses of persecution” under the 1951 Refugee Convention and its 1967 Protocol. It is relevant to note that, according to the 1997 National Refugee Act, Brazil has adopted an expanded refugee definition, establishing the possibility to recognise a person as a refugee due to gross and widespread violation of human rights (Article 1, III). However, Brazilian law has not been applied to provide refugee status to people moving from their countries in case of environmental disasters. Considering this exceptional situation under the international migration and refugee framework and Brazilian refugee and foreign laws, the solution given by CNIg to the Haitian case was to approve a permanent residence for humanitarian reasons because deportation would result in greater damage to the protection of Haitians’ fundamental human and social rights. A brief timeline of the debate on Haitian issue in Brazil (CNIg – Meeting Reports, 2010– 2012) is the following: • 2010: The Haitians’ Working Group was created to analyse the situation in Haiti and the serious consequences of the 2010 earthquake on the population, the social structure, the state government, and Haitians’ entrance in Brazil.

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• 2011: conare requests CNIg to grant them protection, because conare is not able to do that based on humanitarian reasons, according to Recommended Resolution n. 08/06. Then, CNIg grants permanent residence for humanitarian reasons to Haitians who entered in Brazil due to the 2010 earthquake, based on Normative Resolution n. 27/98, which deals with missing and/or special cases. • 2012: CNIg established, through its Normative Resolution n. 97/2012, some criteria and quotas for granting residence permit for five (5) years in Brazil (one hundred visas per month). The “new visa” was to be issued by the Brazilian Embassy in Port au Prince to Haitians’ citizens. The Federal Public Prosecutor in the State of Acre (Amazon Region) filed a Public Civil Legal Action against the Brazilian Government to claim refugee status to all Haitians’ citizens who are in Brazil or who wish move to Brazil, based on serious and generalised human rights violations, according to Act 9474/97 (Article 1, III). In December, CNIg approved the end of the restriction on issuing visas to Haitians interested in migrating to Brazil. The new rule will be valid for the whole year of 2013 and the measure will be discussed again at the end of the year. In Haiti, the issuance of 1,200 visas per year was not enough to meet the demand. According to the Brazilian ngo Migration and Human Rights Institute9 (imdh 2012), more than 5,500 Haitians were granted permanent residence between 28.04.2011 and 28.11.2012 and their dependents count 100 people. However, Foreque and Nery10 mention a CNIg unpublished Report, of December 2012, which has declared that the Brazilian government has issued, in two years, 4,016 visas for Haitians. In Haiti, the amount of 1,200 visas issued a year have not been enough and the Brazilian Consulate stopped to receive new requests for permanent residence visas at the end of December 2012. Indeed, 1,200 Haitians families were already interviewed in 2012 for granting visas in 2013. Hence, most asylum seekers in Brazil are Haitian citizens. Unfortunately, the Brazilian authorities’ concern with this exceptional measure applied in Haiti´s case is that this kind of solution generates precedent for future situations and may lead to an increase of migration from Haiti to Brazil that would not be sustainable in the medium and long term.

9 10

Instituto Migração e Direitos Humanos, ‘List of Haitians Granted Permanent Residence in Brazil’ (imdh, 2012). Flávia Foreque and Natuza Nery, ‘Brasil deverá dar mais vistos a haitianos’ Folha de São Paulo (São Paulo, 14 December 2012).

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The current assessment, mentioned by Foreque and Nery,11 is that this pentup demand may encourage the immigration of illegal Haitians and the performance of “coyotes” (smugglers). At the same time, the Brazilian government does not believe that the end of visa restrictions will increase immigration to Brazil. There has also been fear that these foreigners would take jobs away from Brazilian citizens. However, it has not been confirmed. Even with the solution adopted by the Brazilian government for this special case, concerns on the lack of minimum standards for dealing with forced displacement caused by environmental pressures remains. In the Haitian case, it is clear that the recovery and reconstruction process will require considerable time, which certainly impacts the flow of these “environmental migrants/refugees or environmentally displaced persons,” legally limited by the recent criteria established by the Brazilian Government in order to grant visa to Brazil. The lack of particular protection under international and domestic laws can also lead to injustice and discrimination towards people who are in same conditions. The assistance conferred by general instruments of human rights needs to be implemented in a way so as to avoid insecurity and serious and repeated human rights violations. The implication of international networks of human trafficking in the migration process of Haitians has also been reported to the authorities. The case of Haiti has all elements that demonstrate the existence of a new category of migrants not yet covered by existing international legal instruments. This case requires a different management by international law and special protection beyond that provided by general human rights instruments. 3

Permanent Residence for Humanitarian Reasons: Implications of a Legal Precedent

Given the legal peculiarity, the Brazilian Government created a complementary humanitarian protection for Haiti´s case, that is, a “permanent residence for humanitarian reasons”. Hence, according to the Brazilian authorities’ interpretation, the situation of Haitians who migrated to Brazil due to environmental causes was not covered under the framework of the Refugee Convention or National Refugee Act. In turn, it was considered an exceptional case not yet regulated by existing domestic law or international legal instruments, but 11 Ibid.

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worthy of special protection. For this reason, the conare did not reject the claims and sent them to CNIg, which sought to establish a new way to reduce the high risk of life in the migration process that was increased by coyotes’ action. It is of paramount importance to mention that the Brazilian government has applied this complementary humanitarian protection (permanent residence for humanitarian reasons) for the first time collective (i.e. to a national group), though it had been implemented for individual cases before. The reason why it was conceived as an exceptional measure, particularly to Haiti´s case was in order not to create legal precedents. Hence, given the impact of the Haitians’ migration to Brazil, discussions on the victims’ protection in case of environmental disasters – so-called environmental refugees, environmental migrants or environmentally displaced ­persons – started in Brazil. Despite the adoption of a complementary humanitarian protective mechanism, the question of how to deal with individuals and groups forced to move, particularly those who leave their countries due to major (anthropogenic or natural) disasters and environmental pressures, remains open. The special complementary protection implemented by Brazil may seem interesting as an emergency and short-term measure, but it is not sufficient as a long-term mechanism for both countries: in fact the country of origin (Haiti) faces a difficult and long process of reconstruction; countries of destination (such as Brazil), must therefore be prepared to assist and monitor the needs of this category of people in order to discourage illegal immigration and also criminal network activities. Another worrying trend is the possible proliferation of the use of complementary humanitarian protection, which should be avoided and, instead, preference should be given to recognize refugee status, in order not to weaken the higher level of rights associated with refugee status. According to McAdam:12 [c]omplementary protection describes protection granted by states on the basis on an international protection need outside the 1951 Convention framework. It may be based on a human rights treaty or on more general humanitarian principles, such as providing assistance to persons fleeing from generalized violence,

12

Jane McAdam, ‘Complementary Protection and Beyond: How States Deal with Human Rights Protection’ (2005) New Issues in Refugee Researching Working Paper 119.

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that is, “[a] source of the additional protection” to provide “an alternative basis for eligibility for protection,” such as the eu subsidiary protection regime (2004 Qualification Directive, art. 2(e)) quoted by McAdam;13 the us temporary protection status, withholding of removal and cat-based protection; and the 2001 Canadian Immigration and Refugee Protection Act (Section 97(1)) for persons in need of protection and under the Convention against Torture (cat). The need for a specific protection instrument for environmental refugees or environmentally displaced persons (i.e. a new category of persons deserving protection under International Law) would also serve to differentiate this new group of people from the conventional system of international protection for existing refugees, given the current adverse scenario regarding the renegotiation and extension of the 1951 Refugee Convention. In this sense, in addition to human rights legal instruments, efforts to create a global instrument, not necessarily a binding legal treaty, that specifically establishes minimum standards of protection and coordinated action among (affected or not) state actors and non-state actors in cases of environmental disasters (contemplating environmental triggers without neglecting the complexity of related causes) is necessary and urgent, aiming at stimulating cooperation among, for instance, ngos and State actors. Human mobility as a result of global environmental changes has been increasingly numerous and frequent. The normative and governance gap seriously undermine international peace and security, particularly when affected states and communities have no capacity to respond and to adapt to such events, such as in the case of Haiti. Therefore, the Haitians’ case is affected by this gap and interpretation of the general instruments of human rights has not been enough to avoid the precarious conditions in which the Haitians are submitted in Haiti and abroad. Accordingly, in the absence of an international regime, Pacífico14 suggests an integrated approach of existing international instruments as a way of ensuring States’ accountability regarding the necessary protection to environmental refugees or environmentally displaced persons: [I]n the absence of an international regime to protect them internationally if they are considered internally displaced or refugees, a solution, however, could be an integrated approach to human rights and humanitarian law, whose norms binding and the international institutions could oblige States to take responsibility for this multicausal dilemma, which 13 14

Ibid., 131–136. Cf Pacífico (n. 3), 6.

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combines the involuntary displacement with environmental changes, such as drought (i.e. slow processes of desertification), although other factors are included, such as social, economic and political, as advocates Zetter (2008 and 2010). Therefore, the need for legal recognition by States and the international community is essential not only for the protection of human rights of the displaced environmental,15 which should be in line with international obligations of states, but also to human and state security, as claimed Zetter et al. While the absence of a specific system with effective mechanisms of protection persists, domestic legislation and States’ public policies should be prepared to provide individual and collective assistance to those affected by disasters and to contribute to restoration and rebuilding of affected countries, in order to allow their return with dignity to their countries. 4

Suggestions: Ecological Assistance as an Integrated Approach

Existing gaps in the legal framework and at policy level concerning the emerging problem of “environmental refugees” (a category not recognized by the international law or by the 1951 Refugee Convention), environmental migrants or environmentally displaced persons require an adequate response not limited to broad humanitarian assistance (material, psychological and legal ones), but also “ecological assistance” to affected countries, provided by the international community, its actors and civil society organisations, regardless of geographic proximity. The ecological assistance must include cooperative efforts in response, adaptation, resilience, mitigation, capacity building of communities and populations affected, and prevention, with the aim to reduce human and environmental vulnerability to disasters and increase safety. An integrated approach and solution to the problem of environmental refugees or environmentally displaced persons, as Ramos advocates16 must establish the connection between protecting human beings and the environment, overcoming a fragmented solution, limited and inadequate to face the complex dynamics of forced displacement by environmental causes and the demand for protection of environmental refugees and environmentally displaced persons. 15 16

2008 and 2009, p. 141–144 and Fletcher et al. 2009. Cf Ramos (n. 1), 131–133.

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In this sense, Ramos17 points out that all efforts to adjust existing international instruments to extend its application and to achieve new and complex legal situations often come up against structural limitations inherent to the scope of the development of these standards, as well as temporal constraints, since such instruments were designed during and for another historical context. In addition to these limitations, a highly unfavorable political scenario to renegotiate the 1951 Refugee Convention or to improve migration laws and policies support this framework. For this reason, the authors defend a new global commitment founded on a wider basis, balancing allocation of States’ responsibilities based on the principle of “common but differentiated responsibilities” with the whole international community’s responsibility based on the principle of solidarity. This would lead to individuals accessing protection without discrimination towards environmental refugees and environmentally displaced persons. Both the 1951 Convention relating to the Status of Refugees, which does not have an environmental mandate, and international environmental regimes (such as the Climate Change Convention), which are not centered on protecting this new category of persons or on the process of ecological restoration, have limitations in dealing with new situations arising from legal recognition of a new category of refugees/displaced persons. Hence, an international instrument to contemplate this emerging challenge should be developed independently of these existing regimes and instruments, but related to them, by incorporating principles, standards and mechanisms that can be adjusted to deal with new complex legal situations. In this sense, some concrete initiatives should be mentioned, such as: – The Draft Convention relating to the status of Environmentally Displaced Persons18 that describes legal situations related to environmental displacement condition (to protect individuals and groups temporary or permanently affected and potential victims) and creates institutional mechanisms (specific agency and decision-making bodies with the participation of

17 18

Ibid., 125. Proposed in 2008 by Centre de Recherche Interdisciplinaire en Droit de ’Environnement, de l’Aménagement et de l’Urbanisme (crideau), Centre de Recherche sur les Droits de la Personne (crdp), Observatoire des Mutations Institutionnelles et Juridiques (omij) and Centre International de Droit Comparé de l’Environnement (cidce) and still under review. Projet de convention relative au statut international des déplacés environnementaux, Deuxième version (May 2010).

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non-state actors), financial instruments (funds) and a governance system (cooperation between convention bodies/institutions and authorities and with secretariats of international conventions on environment and human rights issues). – The Draft Articles on the protection of persons in the event of disasters19 based on identifying an international framework applicable in disaster responses in order to ensure a specific legal framework accessible in disaster situations. The Draft Convention on the protection of persons in the event of disasters, in general terms, seeks to establish legal (neither moral nor political) duties between affected and non-affected States, particularly in terms of cooperation, assistance and its limits (immediate post-disaster response and recovery phase/reconstruction efforts) in these issues: protection of persons in need, duty to cooperate, duty of the affected State to seek assistance, consent of the affected State to external assistance, and right or duty of non-affected actors to offer assistance and governance in disaster relief. Therefore, the adoption of a particular international instrument, carefully designed to deal with this emerging category of “environmental refugees” or environmentally displaced persons, is the best way to ensure wider human rights protection, humanitarian aid and environmental restoration to those persons forced to leave their places of origin and their livelihoods due to environment degradation, as well as strategies for prevention and adaptation to cope with adverse effects of environmental change. The more appropriate solution, including extreme vulnerable States’ needs, such as case of Haiti, is to “unify for a better protection.” A wider legal definition of the term environmental refugee or environmentally displaced persons could ensure minimum standards and unified international protection for individuals and groups severely affected by environmental events and whose survival and security also require international protection, whether inside or outside the limits of their countries of origin or habitual residence. The responsibility for protection and assistance should be shared not only among affected states, but also with the entire international community,

19

Developed by International Law Commission of the United Nations in 2007 and still under review. ilc. Draft Articles on the Protection of Persons in the Event of Disasters. Available at: accessed 14 March 2014.

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through a global agreement founded on coexistence, cooperation and solidarity. Therefore, it is important to strengthen the state’s role in implementing these measures through institutions, without which formal recognition of this new category of migrants would not be possible. However, it is necessary to be aware that the adoption of agreements and treaties will not be enough to solve the problem if their causes remain unchangeable. International cooperation and participation of new actors are also essential in this process, particularly regarding more sensitive and vulnerable States to global environmental changes, usually those States with less capacity to respond to such changes, whether in preventive action or in relation to adapting to environmental events. The economic costs of preventive measures will always exist, but it is also true that such costs are much smaller than the cost of human, material and environmental losses and damages, as well as material and legal assistance to victims and to the environment reconstruction. Many States are not prepared for the global environmental changes (i.e. climate change and environmental disasters), which represents a much greater threat to global security, particularly in the absence of international reaction in terms of global instruments and policies to cope with these new challenges. The adoption of a specific system of protection aims not only to the legal recognition of this new category of persons’, but also to a global commitment to effectively protect persons in such circumstances. This system would promote the internalisation of future commitments under domestic law and stimulate coordinated action among the actors involved in relevant issues, such as refugee protection, migration, environment and human rights, including their preventive aspect. Another suggestion related to cooperation and adaptation to new needs is to link security and forced migration. In fact, if states are concerned with their own security, as well as the global security, they may be convinced to recognise environmentally displaced persons or climate refugees and to provide measures for mitigating the impact of land degradation, mainly slow-onset disasters on local population. This could include promoting means by which they could adapt their lives to the local environment, facilitating the return of those displaced and improving the living conditions of those who were not able to migrate, according to their human rights and humanitarian obligations on national and international levels. Given the absence of binding norms and institutions at international level (for example, no enforcement mechanisms for the 1951 Refugee Convention and for the environmental migrants´ protection) to legally bind States to

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protect refugees and environmental migrants, as well as the asymmetrical power relations between, on one side, the governments, and, on the other side, the environmentally displaced persons or climate refugees, a solution may be to make use of local and international non-state actors to persuade states to recognise that their security interests are connected to the serious consequences brought by environmentally displaced persons, as a means to overcome environmental degradation, human rights violations and states’ omission, and hence that they cooperate to overcome the dilemma through cross-issue persuasion. According to Betts, cross-issue persuasion are “[t]he conditions under which an actor A can persuade an actor B that issue area X and issue area Y are linked as a means of inducing actor B to act in issue area X on the basis of its interests in issue area Y.”20 In this case, it can be explained as the conditions under which non state actors, for instance ngos, academia and international organisations can persuade a country that environmentally displaced persons or climate refuges and security are linked as a means of inducing a state to act in overcoming the protracted situation of environmentally displaced persons or climate refugees on the basis of its interests in security. Hence, for Betts, cross-issue persuasion is also a resource of power as weaker actors can use conditionality or issue-linkage to influence powerful actors to cooperate to overcome the dilemma. Environmentally displaced persons’ legal protection can no longer be seen in isolation from other policy fields. By linking the issues of climate refugees or environmentally displaced persons (i.e. forced migration) and security, states need to adapt the current international norms, rules and institutions to the national legal order, even in the absence of formal negotiation at international level, in order to implement new norms and policies necessary for dealing with this dilemma. This may be done through regime stretching, defined by Betts21 as “[t]he degree to which the scope of a regime at the national or local level takes on additional or supplementary tasks not prescribed at the global level.” It means that if local governments are convinced that they will be rewarded by the international community for stretching the scope of the current norms and institutions related to refugees and idps to protect environmentally displaced persons or climate refugees locally, then stretching will occur. For Betts,22 this can take place by (re)negotiating norms, adapting them to national 20 21 22

Alexander Betts, Prtection by Persuasion: International Cooperation in the Refugee Regime (Cornell University Press, 2009) 4. Cf Betts (n. 2) 2. Ibid., 5–6.

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and local legislation, and implementing them through adequate policies and practices, according to the government’s interests. For Zetter,23 “[i]t is more prudent to adapt existing norms and instruments for protecting migrants, and shape them to incorporate the emerging rights-based challenges posed by climate change.” When norms or institutions are adapted to new problems at the level of implementation, that is, within an existing institution, it is called regime stretching. For Betts,24 “[t]his is a particularly important concept in the context of a world in which new problems and challenges are emerging but new formal institutions are created at a much slower pace, and there is often a need for “old global institutions” to adapt to “new national challenges.”” Regime stretching may include implementation of local norms and institution adaptation. It means that local adaptation may be obtained through crossissue persuasion, by convincing States to link security with environmentally displaced persons or climate refugees. This would provide means for policy implementation to mitigate forced migration as an outcome of environmental degradation or climate change, with the aim of promoting adaptation, resilience, and sustainability (Zetter et al.25) International cooperation is also necessary and should not be avoided. In short, in order to recognise the link between global environmental degradation, forced migration and security it is also important to develop instruments and policies to prevent conflicts and improve actions that promote international peace and security. 23 24 25

Roger Zetter, ‘Protecting Environmentally Displaced People: Developing the Capacity of Legal and Normative Frameworks’ (2010) rsc University of Oxford Research Report 14. Cf Betts (n. 2) 9. Roger Zetter, Tim Morris and Camillo Boano, ‘Environmentally Displaced People: Understanding the Linkages between Environmental Change, Livelihoods and Forcer Migration’ (2008) Forced Migration Policy Briefing 1, 18–19.

Qualifying for International Protection in the eu: New Understandings of the 1951 Convention and Beyond Evangelia (Lilian) Tsourdi* Introduction The ‘Common European Asylum System’ (ceas) traces its origins in the Treaty of Amsterdam which conferred powers upon the Community to adopt measures concerning asylum and other forms of international protection.1 The Tampere European Council, which took place soon after the entry into force of the Amsterdam Treaty, elaborated the exact content of the ceas.2 It was agreed this system should include, in the short term, criteria and mechanisms around the determination of the State responsible for the examination of an asylum application, as well as minimum standards on asylum procedures, conditions of reception of asylum seekers and qualification of third country nationals as refugees.3 It was further decided to establish subsidiary forms of protection.4 The functioning of the mechanism to allocate responsibility between eu Member States for the examination of asylum claims was also aimed at hindering secondary movements within the eu. In the longer term, Community rules should lead to a common procedure and a uniform eu status for those granted asylum valid throughout the eu.5 However, harmonization is not an end in itself. The ultimate objective at the eu level is to establish a system which guarantees to persons genuinely in need of protection access to a high level of protection under equivalent conditions in all Member States while dealing fairly and efficiently with those found not to need protection.6 The Commission stated that three pillars underpin the * PhD candidate and Research Assistant, Université libre de Bruxelles (ulb) and Research Assistant, Université catholique de Louvain (ucl). The author would like to thank Philippe De Bruycker and Emmanuelle Bribosia for their valuable comments on an earlier version of this research. 1 Art. 63(1), 63(2), Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Amsterdam, 2 October 2007, in force since 1 May 1999. 2 Tampere European Council, Presidency Conclusions, 15–16 October 1999. 3 Ibid. at para 14; this is the so-called first phase of the ceas. 4 Ibid. 5 Ibid. at para 15; this is the so-called second phase of the ceas. 6 Commission of the European Communities, Green Paper on the Future Common European Asylum System, com(2007) 301 final, Brussels, 6 June 2007, at p. 2. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_012

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development of the ceas: further alignment of legislation in order to harmonize to greater extent standards of protection, effective and well-­supported practical co-operation and finally, enhanced solidarity among eu states as well as amongst the eu and third countries.7 This contribution assesses the compatibility of eu’s asylum legislation with international and European legal standards and comments on its potential to develop the international protection regime. It focuses on the Qualification Directive, a core legal instrument which establishes common standards for the qualification and loss or denial of international protection (refugee status and subsidiary protection status). The study does not analyse this instrument exhaustively but instead highlights key elements of the criteria for qualification for international protection status. Namely, the study is centered on provisions defining the acts, actors and reasons for persecution and assesses provisions establishing the notion of adequate protection in the country of origin.8 It uses as a basis the legal text of the recast Directive that was adopted in 2011 while comparing it, where necessary, with the provisions of the original text of the Directive that was adopted in 2004.9 The provisions are examined against the text of the 1951 Refugee Convention10 but also against relevant international and regional human rights norms and standards.11 In addition the study analyses the case-law of the Court of Justice of the European Union (cjeu) that has provided guidance in the meaning and 7 8

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Commission of the European Communities, Policy Plan on Asylum − An Integrated Approach to Protection Across the eu, com(2008) 360/3, Brussels, 17 June 2008, at p. 3. Namely, Articles 7 and 8 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted, OJ L 337/9 [2011 Qualification Directive Recast]. Council Directive 2004/83/ec of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 304 [2004 Qualification Directive]. 1951 Convention Relating to the Status of Refugees, 25 July 1951, entered into force 22 April 1954, 189 unts 150, as amended by the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, entered into force 4 October 1967, 606 unts 267 [1951 Refugee Convention]. International and regional human rights instruments include the International Covenant on Civil and Political Rights, New York, 16/12/1966: Entered into force 23/03/1976· u.n. Doc. A/6316 (1966), 999 u.n.t.s. 171 [iccpr] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10/12/1984: Entered into Force 26/06/1987·1465 u.n.t.s. 85 [cat]; the European Convention on Human Rights, Rome, 4/11/1950: Entered into force 3/9/1953·cets 005, as amended by Protocol 11 which entered into force 1/11/1998·cets 155 [echr].

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application of several of the Directive’s provisions. The relevant case-law of the European Court of Human Rights (ECtHR) are also taken into account. The research draws from existing literature on the subject and takes into consideration commentary from civil society and unhcr.

Section 1: Clarifying the Scope of the 1951 Refugee Convention: Acts, Actors and Reasons for Persecution

The notion of persecution is not defined in the 1951 Refugee Convention or in any other international instrument. Various attempts to formulate such a definition have met with little success.12 Scholars have provided insight into the notion of persecution. Goodwin-Gill and McAdam note that acts amounting to persecution may include − but are not limited to − those covered by the prohibition of torture, cruel, inhuman or degrading treatment or punishment or repeated punishment for breach of the law, which is out of proportion to the offence.13 Foster has in particular explored when violations of economic, social and cultural rights may also amount to persecution.14 Two other scholars have proposed a systematic approach to defining persecution. Hathaway has proposed a model which in essence categorises human rights violations according to the nature of the right (i.e. non-derogable civil and political rights, derogable civil and political rights that are recognized in  the iccpr, economic, social and cultural rights that are included in the ­i cescr,15 and finally rights that are only taken up in the udhr16 but not in any of the two Covenants) and then links their violation to persecution in a gradation scale.17 Thus the violation of non-derogable rights will always constitute persecution, while the violation of rights only taken up in the udhr will

12

Goodwin-Gill, G., Mc Adam, J., The Refugee in International Law, 3rd edition, Oxford: Oxford Univ. Press, 2007, at p. 90 and unhcr, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, at para 51. 13 Goodwin-Gill, G., Mc Adam, J., Ibid. at pp. 90–91. 14 See Foster, M., International Refugee Law and Socio-economic Rights: Refuge from Deprivation, Cambridge: Cambridge University Press, 2007. 15 International Covenant on Economic, Social and Cultural Rights, New York, 16/12/1966: Entered into force 03/01/1976, 993 u.n.t.s. 3 [icescr]. 16 Universal Declaration of Human Rights, g.a. res. 217A (III), u.n. Doc A/810 at 71 (1948) [udhr]. 17 Hathaway, J., The Law of Refugee Status, Toronto: Butterworths, 1991, at pp. 108–112.

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normally not suffice to establish an act of persecution.18 Carlier, while not focusing on the definition of acts which constitute persecution, suggested the introduction of a proportionality link between the three main dimensions of an asylum application: the level of severity of risked harm, the level of likelihood that it will occur and the level of proof.19 These elements are to be examined in combination and to be assessed on a scale.20 Apart from the sufficiently severe human rights violations, there is a second element inherent to the notion of ‘persecution’ which is the failure of the state to protect the individual.21 This section analyses how the Qualification Directive, as interpreted by the Court of Justice, defines the notion of persecution, what is its added value compared to the 1951 Refugee Convention definition and whether any inconsistencies exist with the Convention.

Acts Amounting to Persecution and the Issue of the Nexus Requirement The 2004 Qualification Directive was the first legally binding instrument to elaborate the notion of persecution for the refugee law context.22 It contained in Article 9 a non-exhaustive list of acts that could constitute persecution.23 This open-ended approach is positive and in compliance with the spirit of the 1951 Geneva Convention. As Hathaway mentions, it is generally acknowledged that the drafters of the Convention intentionally left the meaning of persecution undefined because they realised the impossibility of enumerating in advance all the forms of maltreatment which might legitimately entitle persons to benefit from the protection of a foreign state.24 Namely, the inclusion of two specific references in the Qualification Directive was particularly important. The first was the explicit, albeit framed in a very restrictive manner,

18 Ibid. 19 Carlier, J.Y., Droit d’asile et des réfugiés : De la protection aux droits, Recueil des cours de l’académie de droit international de La Haye, Leiden: Martinus Nijhoff, 2008, p. 197. 20 Ibid. 21 Zimmerman, A., Mahler, C., ‘Article 1A, para 2’, Zimmermann, A., et al. (eds.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 281, p. 345. 22 The Statute of the International Criminal Court (icc) provides a definition of persecution which constitutes a crime against humanity in the framework of international criminal law, see Article 7(2)g, Rome Statute of the icc, A/CONF.183/9 of 17 July 1998: Entered into force on the 1 July 2002. 23 Article 9(2), 2004 Qualification Directive. 24 Hathaway, J., The Law of Refugee Status, Toronto: Butterworths, 1991, p. 102 and fn. 26, 27.

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reference to conscientious objection.25 The second was the reference to acts of a gender-specific or child-specific nature.26 Regarding conscientious objection, the directive retains the example of persecution that would arise in the case of an individual that would refuse to perform military service in a conflict, if the military service would entail the commission of war crimes and other crimes covered by the exclusion clauses of the Qualification Directive. In fact, the original Commission proposal was much more ambitious and stipulated for example that draft evasion which is punished disproportionately or in a discriminatory manner would also amount to persecution; this provision was, however, watered down during the negotiations.27 In its final form the wording is more restrictive than the practice of some Member States.28 It also does not fully reflect the position of unhcr as developed in its Handbook29 as well as its recent guidelines on the matter.30 The 2011 Recast Directive failed to enhance this formulation and instead maintained the exact wording. However, given that the directive adopts an open-ended approach, and that this formulation is meant as an illustration, Member States can and should interpret ‘acts of persecution’ in this framework more broadly. For example disproportionate or arbitrary punishment for refusing to undertake State military service, such as excessive prison terms or corporal punishment would be a form of persecution.31 25

The text of the 2004 Qualification Directive on this point reads as follows: Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2). 26 Article 9(2)(f), 2004 Qualification Directive. 27 Hailbronner, K., Alt, S., ‘Articles 1–10 Qualification Directive’, in Hailbronner, K. (ed.), eu Immigration and Asylum Law: A Commentary, Műnchen: C.H. Beck/Hart/Nomos, 2010, 1006, pp. 1076–1077 who also analyze the positions taken by the different Member States during the negotiations. 28 Battjes, H., European Asylum Law and International Law, Leiden-Boston: Martinus Nijhoff Publishers, 2006, p. 234. 29 unhcr, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/ REV.1 Reedited, Geneva, January 1992, paras 167–174. 30 See unhcr, Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service within the Context of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees, December 2013, Doc. No. HCR/GIP/13/10. 31 Ibid. at para 14.

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Gender-specific or predominantly gender-specific types of harm include female genital mutilation, rape, domestic violence, forced marriage and forced abortion.32 This inclusion is a significant step forward. As Anker has commented, the incomplete and gendered interpretation of refugee law and the failure of decision-makers to acknowledge and respond to the gendering of politics and of women’s’ relationship to the state, have constituted bars to women’s eligibility for refugee status.33 In what concerns child-specific forms of persecution unhcr has stated that examples of such policies and practices are the recruitment of children for regular or irregular armies, their subjection to forced labor, the trafficking of children for prostitution and sexual exploitation and the practice of female genital mutilation.34 The importance of taking into account child-specific forms of persecution has also been raised by other international and regional human rights bodies.35 Furthermore, the reference to gender-specific acts and child-specific forms of persecution in the same subparagraph is potentially helpful because it can serve to integrate the two concepts; for example in the case of the girl-child, there is often an overlap between gender and age in terms of rights violations.36 The 2011 Recast Directive has not brought any further changes to this point. Furthermore, Article 9(3) of the 2004 Directive sets out the norm that there should be a connection between the reasons of persecution and the acts of persecution. This required causal relationship follows from the language of the 32

33 34 35

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Cheikh-Ali, H., Querton, C., Souldard, E., Gender-Related Asylum Claims in Europe: A Comparative Analysis of Law and Practice Focusing on Women in Nine eu Member States, May 2012, at p. 8 and unhcr, Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002, at para 3. Anker, D., ‘Refugee Law, Gender and the Human Rights Paradigm’, 15 Harv. Hum. Rts. J., 2002, 133, at p. 139 and fn. 29. unhcr, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, at para 8.7. Recommendation of the Parliamentary Assembly of the Council of Europe 1703 (2005), Protection and Assistance for Separated Children Seeking Asylum, which calls for the recognition of child-specific forms of persecution as persecution within the meaning of the 1951 Geneva Convention (par. 9g) and Committee on the Rights of the Child, General Comment no. 6 (2005), Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, June 2005 which states in para 74 that the refugee definition must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Smyth, C., European Asylum Law and the Rights of the Child, Oxford: Routledge, 2014, at p. 83.

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1951 Convention ‘for reasons of’ however once more the Convention itself does not provide interpretative guidance on this concept.37 The language of the Directive provision was considered problematic as it failed to take into account the cases where persecution emanates from non-state actors for reasons other than those stipulated in the Convention but where the state is unable or unwilling to protect the applicant for one of the reasons of the Convention.38 The 2011 Recast Qualification Directive addressed this point as it added an express reference to the fact that the required nexus might be fulfilled when there is absence of protection against acts of persecution.39 The Court of Justice of the eu has provided further interpretative guidance on the notion of persecution in a 2012 judgment which arose from a reference for a preliminary ruling of the German Federal Administrative Court and concerned persecution on the basis of religious beliefs.40 In particular, it dealt with the well-founded fear of persecution for reasons of religion of two active members of an Islamic reformist movement, long contested and prosecuted in Pakistan. In its analysis, the cjeu focused on the nature of the repression inflicted upon the individual because he exercised his right to freedom of

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39 40

Zimmerman, A., Mahler, C., ‘Article 1A, para 2’, Zimmermann, A., et al. (eds.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 281, pp. 372–375. Explanatory Memorandum, 2009 Qualification Recast Proposal, pp. 7–8 and Storey, H., ‘eu Refugee Qualification Directive: A Brave New World?’, 20 Int. J. Refugee Law, 2008, 1, p. 26 where the author also mentions that the case law of several major countries of asylum has not required a strict causal nexus test; this point is also illustrated well by Lord Hoffman in the case of Islam v sshd ex parte Shah (Islam v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, ex parte Shah [1999] ukhl 20, 25 March 1999 (uk House of Lords): “A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question ‘Why was he attacked?’ would be ‘because a competitor wanted to drive him out of business’. But another answer, and in my view the right answer in the context of the Convention, would be “he was attacked by a competitor who knew that he would receive no protection because he was a Jew.” Article 9 (3), 2011 Recast Qualification Directive. C-71/11 and C-99/11, Y and Z, 5 September 2012.

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religion.41 Thus, instead of abstractly defining the acts that belong to the ‘core of the right’ of religious freedom or of classifying violations according to the nature of the rights, Member States are required to concretely assess the severity of the harm likely to be inflicted on the individual who worships in public.42 Such a ‘concrete consequences’ test is not free of ambiguity; namely it remains unclear which one of these concrete consequences would in themselves constitute a sufficiently severe breach of fundamental rights to reach the level of persecution.43 The Court refers to the ‘genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment’ without indicating which other fundamental rights violations have to be taken into account.44 However, the ‘concrete consequences test’ should not result in limiting ‘acts of persecution’ to violations of non-derogable rights.45 Such an interpretation goes against the open-ended definition of the Refugee Convention and of the Directive itself which states that the cumulative effect of minor human rights violations can amount to persecution.46 The more recent X, Y and Z case constitutes a missed opportunity to further clarifying this point. This case resulted from a reference for a preliminary ruling by the Dutch Council of State which concerned applicants of homosexual orientation. The referring Court asked whether Article 9(1)(a) read together with Article 9(2)(c) of the 2004 Qualification Directive must be interpreted as meaning that the mere fact that homosexual acts are criminalised and accompanying that criminalisation with a term of imprisonment is an act of persecution.47 The national Court referred only to Article 9(1)(a) which speaks of acts that by their nature or repetition, constitute a severe violation of human rights and Article 9(2)(c) which refers to ‘prosecution or punishment which is disproportionate or discriminatory’. The cjeu, restricting its analysis on these two provisions, concluded that:48 41

Ibid., para 65; see also Opinion of Advocate General Yves Bot, C-71/11 and C-99/11, Y and Z 19 April 2012, para 52. 42 Leboeuf, L., Tsourdi, E., ‘Towards a Re-definition of Persecution? Assessing the Potential Impact of Y and Z’, 13 hrlr, 2013, 402, at p. 407. 43 Ibid. 44 Ibid.; see also C-71/11 and C-99/11, op.cit., at para 69. 45 Ibid. 46 Ibid.; see also Article 9,(1)(b), 2011 Recast Qualification Directive. 47 cjeu, X, Y and Z, Joined Cases C 199/12 to C 201/12, 7 November 2013, at para 37. 48 Ibid. at paras 54–55.

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[t]he fundamental rights specifically linked to the sexual orientation concerned in each of the cases in the main proceedings, such as the right to respect for private and family life […] [are] is not among the fundamental human rights from which no derogation is possible. […] In those circumstances, the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive. The Court thus missed the opportunity to reformulate the question so as to bring within the scope of its enquiry an analysis of the persecution threshold pursuant to Article 9(1)(b) of the 2004 qd, which provides that an accumulation of various measures can constitute persecution.49 Indeed criminalising legislation cannot be examined in isolation; it is sign of a homophobic society where individuals might face discrimination in various aspects of their life and where non-state actors might act in impunity. Nevertheless, the Court added that the term of imprisonment which accompanies a legislative provision which punishes homosexual acts is capable, in itself of constituting an act of persecution within the meaning of Article 9(1) of the Directive, provided that it is actually applied in the country of origin which adopted such legislation.50 Therefore, according to the Court any enforcement of such criminalising legislation satisfies the threshold of persecution. Reasons for Persecution: Two Case-Studies The Refugee Convention furthermore stipulates that in order to qualify as a refugee the individual must have a well-founded fear of being persecuted for one or more of the following grounds: race, religion, nationality, membership of a particular social group or political opinion.51 The Convention does not give any guidance as to the exact content of those grounds and, since its adoption, it has become apparent that those five grounds need to be clarified. unhcr, national jurisdictions and national courts have thus developed a rich body of jurisprudence and guidelines. 49

50 51

International Commission of Jurists, X, Y and Z: A Glass Half Full for “Rainbow Refugees”? The International Commission of Jurists’ Observations on the Judgment of the Court of Justice of the European Union in X, Y and Z v. Minister voor Immigratie en Asiel, June 2014, at para 52. cjeu, X, Y and Z, Joined Cases C 199/12 to C 201/12, 7 November 2013, at para 56. Article 1(A)2, 1951 Refugee Convention.

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The 2004 Qualification Directive provided some guidance as it defined these five grounds in a more detailed manner.52 The definitions were further refined by the 2011 Recast.53 An exhaustive analysis of the content of each of the five grounds goes beyond the objectives of the present research. Instead, the research focuses on areas where both versions of the Directive have made a significant contribution: claims of female asylum seekers and claims of lesbian, gay, bisexual, trans and intersex individuals (lgbti). It first analyses how these case-loads are treated by international refugee law and then comments on the position of eu asylum law in this field. i

An Analysis of the Position Developed under International Refugee Law The 1951 Convention definition is gender-neutral and does not include gender as an independent enumerated ground of persecution.54 In order to confront this situation, there is a position which argues for the revision of the 1951 Refugee Convention in order to explicitly include gender as a separate ground for persecution as the only means to ensure effective protection for women refugees.55 Although there are cases where gender is the main reason for the infliction of serious harm, e.g. adultery committed by female spouses punishable by death, a woman may also be persecuted for reasons unrelated to gender (e.g. race) but in a gender-specific way (e.g. rape with the purpose of pregnancy).56 Therefore, according to a second line of reasoning, the solution lies not in the inclusion of gender as a separate ground but in the proper interpretation of the existing grounds so as to encompass gender-related persecution claims.57 This has been the solution followed by individual states58 and unhcr.59 In practice, gender-related claims have often been analysed within the parameters of the ground of ‘membership of a particular social

52 53 54 55 56 57 58 59

Article 9, 2004 Qualification Directive. Article 9, 2011 Recast Qualification Directive. Wallace, R., ‘Making the Refugee Convention Gender Sensitive: The Canadian Guidelines’, 45 Int’l & Comp. L.Q, 1996, 702, at p. 703. Al-Omari, G., ‘The Legal Protection of Refugee Women’, 20 rpn , 1995, 14, at p. 15. Crawley, H., Refugees and gender: Law and Process, Bristol: Jordans, 2001, at pp. 7, 8, 62. Ibid., pp. 62–63. For example see Canadian Guidelines − Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution, 13 November 1996. unhcr, Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002.

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group’, making the understanding of the content of this term of paramount importance.60 With respect to claims of lesbian, gay, bisexual, transgender and intersex individuals (lgbti), unhcr notes that they have most often been considered within the ‘membership of a particular social group’ ground.61 Other grounds may though also be relevant depending on the political, religious and cultural context of the claim; for example advocacy by lgbti activists may be seen as going against prevailing political or religious views or practices.62 Refugee status has been granted on the basis of membership to a particular social group ground for example when individuals, having disclosed their homosexuality and having demonstrated it in their external behavior, were exposed to criminal prosecution or various forms of harassment.63 Despite the growing jurisprudence and the acceptance by different jurisdictions to examine lgbti claims under the ‘membership of a particular social group’ ground there is considerable international variation in the outcomes of such cases.64 60

Ibid. at par. 28; see also the analysis of Spijkerboer, T., Gender and Refugee Status, Surrey: Ashgate, 2000, pp. 115–124 where the author analyses case-law and doctrine related to the grounds ‘political opinion’ and predominantly ‘membership of particular social group’ classifying it under five categories (political activities, social mores, kinship, the one-child policy and sexual violence) and Cheikh-Ali, H., Querton, C., Souldard, E., Gender-Related Asylum Claims in Europe: A Comparative Analysis of Law and Practice Focusing on Women in Nine eu Member States, May 2012, pp. 55–56. 61 unhcr, Guidelines on International Protection no. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/12/09, 23 October 2012, para 40. 62 Ibid. 63 Errera, R. ‘The Concept of Membership of Particular Social Group in Refugee Law’, in Dupuy, P.M., Shaw, M., et al. (eds.), Common Values in International Law-Essays in Honour of Christian Tomuschat, N.P. Engel Verlag, 2006, 133, at p. 145; the author further analyses at pp. 146−147 French jurisprudence regarding the recognition of transsexuals as belonging to a particular social group. See also Hathaway, J., Pobjoy, J., ‘Queer Cases Make Bad Law’, 44(2) New York University Journal of International Law and Politics, 2012, at p. 315. 64 Millbank, J., ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’, 18 Geo. Immigr. L.J., 2003–2004, 71, at p. 72; as the author characteristically notes (at p. 73 and fn.12) lesbians had great difficulties grounding their claims as their experience was ‘too private’ while gay men’s experience was often characterized as ‘too public’; see also the problems faced by bi-sexual persons in being recognized as refugees in Rehaag, S., ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’, 53 McGill L.J., 2008, 59.

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One of the issues where divergent interpretations persist in relation to lgbti cases is whether there exists or not a ‘discretion requirement’, i.e. whether the applicants would in fact be safe from persecution if they were ‘discreet’ about their sexual orientation so as to avoid sanctions or attacks. The author is of the opinion that such arguments distort the meaning of states’ obligations under the Geneva Convention; the provisions cannot be construed as requiring a person to denounce their fundamental beliefs and innate characteristics, such as their sexual orientation so as to avoid persecution. This opinion has also been supported by other academics, civil society organizations as well as the unhcr.65 In addition, there exist two landmark cases from Australia and the uk that dismissed the ‘discretion requirement’ and marked a change in policy at national level.66 ii

The Position Developed under eu Asylum Law and Jurisprudence: A Critical Evaluation Turning now to the specific text of the Directive, the 2004 Qualification Directive made reference to sexual orientation and gender only related to the

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See, Spijkerboer, T., Jansen, S., Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, 2011, at pp. 33–39; at p. 36 the authors also mention that in some Member States such as France the problem is the ‘discretion requirement in reverse’, i.e. authorities often require lgbti applicants to have fully disclosed their sexual orientation in the country of origin publicly or to have manifested it by exterior behavior, otherwise they do not fulfill the ‘social perception requirement’ of membership of a particular social group; unhcr, Guidelines on International Protection no. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/12/09, 23 October 2012 at paras 30–33 where they stress at para 31 that ‘as affirmed by numerous decisions in multiple jurisdictions, a person cannot be denied refugee status based on a requirement that they change or conceal their identity, opinions or characteristics in order to avoid persecution’. uk Supreme Court 7 July 2010, hj (Iran) and ht (Cameroon) v Secretary of State for the Home Department [2010] uksc 31 and the guidelines released by the uk Border Agency in implementation of this judgment, Sexual Orientation Issues in the Asylum Claim, date of release not specified, available at: ; as well as High Court of Australia 9 December 2003, Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs [2003] hca 71, S395/2002 and S396/2002. See also Chelvan, S., ‘Put Your Hands Up (If You Feel Love) − A Critical Analysis of hj (Iran) and ht (Cameroon) [2010] uksc 31; [2011] 1 ac 596’, Journal of Immigration, Asylum and Nationality Law 25(1),2011, at p. 56.

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ground of ‘membership to a particular social group’.67 Although on the one hand explicit mention to such considerations is a positive element, the author supports that it would have been more consistent with the unhcr Guidelines to mainstream gender and sexual orientation considerations in all five grounds. As unhcr stressed in its recent Guidelines on claims based on sexual orientation or gender identity: ‘[o]ther grounds may though also be relevant depending on the political, religious and cultural context of the claim; for example advocacy by lgbti activists may be seen as going against prevailing political or religious views and/or practices’.68 Moreover, the wording was weak as, on the one hand, the text stipulated that gender related aspects ‘might’ be considered and, on the other, there was no specific reference to ‘gender identity’.69 This term is broader than ‘sexual orientation’ and encompasses better claims from transgender and transsexual people.70 67

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Article 9 (d) of the 2004 Qualification Directive mentions in particular that: (d) a group shall be considered to form a particular social group where in particular: – members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and – that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article. unhcr, Guidelines On International Protection: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees, 2012, para 40. As mentioned in the Yogyakarta Principles − Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, April 2007, at p. 2 ‘Gender Identity Is Understood to Refer to Each Person’s Deeply Felt Internal and Individual Experience of Gender, Which May or May Not Correspond with the Sex Assigned at Birth, Including the Personal Sense of the Body (Which May Involve, If Freely Chosen, Modification of Bodily Appearance or Function by Medical, Surgical or Other Means) and Other Expressions of Gender, Including Dress, Speech and Mannerisms’. Transsexual people identify with the gender role opposite to the sex assigned to them at birth and seek to live permanently in the preferred gender role. This is often accompanied by strong rejection of their physical primary and secondary sex characteristics and a wish to align their body with their preferred gender. Transgender people live permanently in their preferred gender. Unlike transsexuals, however, they may not necessarily wish to or need to undergo any medical interventions. Both these definitions are taken from the

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What is even more worrying in Article 9(d) is the word ‘and’ which connects the immutable characteristics and social perception approaches, clearly suggesting that the two tests are not alternatives but rather are to be applied cumulatively − a position not consistent with the unhcr Guidelines, nor apparently with any established judicial approach whether common law or civil law.71 A study undertaken by the Odysseus Academic Network on the transposition of the Directive found that in practice the two requirements for constituting a social group were applied alternatively in some Member States and cumulatively in others and thus considered that clarification on this point through a legislative amendment would be desirable.72 This interpretation was endorsed by the cjeu in the X, Y and Z case.73 In answering the question whether foreign nationals with a homosexual orientation may be regarded as being members of a particular social group the Court applied the ‘cumulative approach’. It held that a ‘person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it’74 and that ‘the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports a finding that those persons form a separate group which is perceived by the surrounding society as being different’.75 Thus, on the one hand the Court’s explicit recognition that sexual orientation is an innate characteristic, clarifies and advances the understanding of the ‘membership of a particular social group’ ground for this group of applicants. On the other hand, the

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73 74 75

Report of the European Network of Legal Experts in the Non-discrimination Field, Trans and Intersex People: Discrimination on the Grounds of Sex, Gender Identity and Gender Expression, July 2011, at p. 12. Foster, M., uhncr Legal and Protection Policy Research Series − The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments Relating to ‘Membership of a Particular Social Group’, April 2012, at p. 16–17; see also unhcr, Guidelines on International Protection: “Membership of a Particular Social Group” within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, HCR/ GIP/02/02, 7 May 2002, at paras 10–13. De Bruycker, P., et al., Study for the ep: Setting up a Common European Asylum System: Report on the Application of Existing Instruments and Proposals for the New System, 2010, at p. 184; see also ecre, The Impact of the eu Qualification Directive on International Protection, October 2008, which noted at pp. 20–21 that Belgium, France, Hungary, Ireland, Luxembourg, the Netherlands and Slovakia require fulfillment of both criteria and called for a broad and inclusive way of interpretation. cjeu, X, Y and Z, Joined Cases C 199/12 to C 201/12, 7 November 2013. Ibid. at para 46. Ibid. at para 48.

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Court’s interpretation is undermined by the fact that it follows the ‘cumulative approach’ which departs from the unhcr’s interpretation of the 1951 Refugee Convention and the majority of state practice. The 2011 Recast Qualification Directive marks some progress on the problems identified above.76 Not only does the Directive now explicitly refer to ­gender identity but it also entails an obligation for decision-makers to give consideration to gender-related aspects, including gender identity – reflected by the use of ‘shall’ instead of ‘might’.77 However, even this strengthened wording does not unambiguously include intersex individuals; nonetheless, the Directive does recognize in Article 9(2) that ‘gender-specific’ acts and ‘childspecific’ acts fall within the concept of persecution, which can also be relevant in cases of persecution of intersex people.78 The new text, however, continues to point to the cumulative application of the immutable characteristics and the social perception approaches for the applicability of this concept. If applied restrictively this would risk leaving unprotected persons that are envisaged to fall under the refugee definition by the 1951 Refugee Convention. Finally, gender, sexual orientation and gender identity considerations are still only explicitly mentioned in relation to the membership of a particular social group ground and have not been mainstreamed in all five grounds. Finally, judicial interpretation has advanced the treatment of lgbti cases in an important aspect, namely the unequivocal rejection of a ‘discretion requirement’. The Dutch Council of State in X, Y and Z questioned whether foreign nationals with a homosexual orientation can be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution.79 In addition, it sought clarification on whether applicants can be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution and

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Article 10(1)(d), 2011 Recast Qualification Directive; this is also in line with Recommendation CM/Rec(2010)5 of the Committee of Ministers to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity, 31 March 2010 which mentions in par.43 that Member States Should Ensure Particularly That Asylum Seekers Are Not Sent to a Country Where Their Life or Freedom Would Be Threatened or They Face the Risk of Torture, Inhuman or Degrading Treatment or Punishment, on Grounds of Sexual Orientation or Gender Identity (emphasis added). Tsourdi, E., Sexual Orientation and Gender Identity: Developments in eu law, 42 fmr, 20, at 21. Tsourdi, E., Guidelines on the Transposition of the Asylum Qualification Directive: Protecting lgbti Asylum Seekers, ilga-Europe, 2012, at p. 9. cjeu, X, Y and Z, Joined Cases C 199/12 to C 201/12, 7 November 2013, at para 37.

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moreover, if greater restraint can be expected of homosexuals than of heterosexuals.80 The Court followed the same line of reasoning as it had adopted in the above-mentioned case concerning religious freedom that was rendered in September 2012.81 In that former case, the Court had noted that none of the provisions of the Qualification Directive can be interpreted as requiring the decision-maker to consider the applicant´s ability to avoid the risk of persecution by abstaining from the religious practice in question.82 In X, Y and Z the Court further refined its reasoning on this point. Through its question, the Dutch Council of State had constructed a ‘two-tier’ approach regarding discretion (total concealment-restraint) and was seeking advice on whether either of the two tiers was compatible with the obligations under the Qualification Directive, and in extension with the 1951 Refugee Convention. The cjeu argued that:83 [n]othing in the wording of Article 10(1)(d) suggests that the European Union legislature intended to exclude certain other types of acts or expression linked to sexual orientation from the scope of that provision’. […] ‘[r]equiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it. It then concluded that:84 [I]t follows that the person concerned must be granted refugee status, in accordance with Article 13 of the Directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect. This clear pronouncement rejecting both a requirement for total concealment of or discretion about one’s sexual orientation should dispel divergences in 80 Ibid. 81 cjeu, Y and Z, Joined Cases C-71/11 and C-99/11, 5 September 2012. 82 cjeu, Y and Z, Joined Cases C-71/11 and C-99/11, 5 September 2012, at para 78. 83 cjeu, X, Y and Z, Joined Cases C 199/12 to C 201/12, 7 November 2013, at paras 67 and 70. 84 Ibid. at para 75.

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national practice on this point. Any differentiation in what concerns restraint to be expected from homosexual in relation to heterosexual applicants would have been irreconcilable with the principle of non-discrimination as enshrined inter alia in the Charter of Fundamental Rights.85 In addition, this position also permits the Court to escape the pitfalls of the ht and hj Iran case-law of the uk Supreme Court;86 for the cjeu whether discretion would result from the individual’s own choice, from social pressure or from the fear of persecution plays no role.87 Actors of Persecution State practice had focused on the state as the sole agent of persecution even if the 1951 Refugee Convention does not require persecution to emanate from the state.88 This focus can be explained by the fact that the conceptualization of the refugee problem is deeply rooted in the political situation that prevailed at the end of the Second World War.89 In the eu there were divergent interpretations on this point and eu Member States such as France and Germany denied asylum because they maintained that persecution emanating from non-state actors, even when the state was unable to provide protection, did not amount to persecution in the sense of the 1951 Refugee Convention.90 The 2004 Qualification Directive explicitly included non-state actors as potential actors of persecution when effective protection is not available in the country of origin.91 This element gave a further drive to harmonization and 85 86

Article 21, eucfr. hj (Iran) and ht (Cameroon) v. Secretary of State for the Home Department [2010] uksc 31, United Kingdom: Supreme Court, 7 July 2010. 87 Leboeuf, L., ‘Observations: Droit européen d’asile et homosexualité’, 176 Revue du droit des étrangers, 2014, 3, at p. 8. 88 Phuong, C., ‘Persecution by Third Parties and European Harmonization of Asylum Policies’, 16 Geo. Immigr. L.J., 2001–2002, 81, at p. 82. 89 Ibid. 90 For an analysis of the German and French jurisprudence on this point prior to the adoption of the Qualification Directive see Kälin, W., ‘Non-state agents of persecution and the inability of the state to protect’, 15 Geo. Immigr. L.J., 2000–2001, 415. 91 The precise wording is stipulated by Article 6, 2004 Qualification Directive (unchanged in the 2011 Recast Qualification Directive) Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.

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was an important evolution in enhancing protection standards in the eu.92 Its significance is highlighted for example in the context of collapsed states in cases where the danger emanates from clans and tribes, or in the context of gender-related persecution, where the persecutor is a family member.93 This definition is also in line with the jurisprudence of the ECtHR on Article 3 that has repeatedly pronounced that the obligation not to expel also applies when the danger emanates from persons or groups who are not public officials.94 However, the inclusion of persecution by non-state actors within the refugee definition is a significant step forward as it ensures that such applicants benefit from the full array of rights afforded to recognized beneficiaries of protection, and not only from non-return. Indeed, entitlements to medical and welfare benefits depend on a formalized status and the echr does not normally go as far as guaranteeing the right of a residence permit.95

Section 2: Assessing the Notion of ‘Adequate Protection’ in the Country of Origin: Actors of Protection and the Possibility of an Internal Protection Alternative

An additional element constitutive of the refugee definition is the absence of effective protection in the country of origin. As the 1951 Convention states, the person must be ‘unable’ or ‘unwilling’ to avail themselves of the protection of their country (of nationality).96 During the drafting process it was taken for 92

See for example Chetail, V., ‘The Implementation of the Qualification Directive in France: One Step Forward, Two Steps Backwards’, in Zwaan, K. (ed.), The Qualification Directive: Central Themes, Problem Issues, and Implementation in Selected Member States, Nijmegen: Wolf Legal Publishers, 2007, 87, at p. 95 and fn. 44, 45, 46 where the author mentions that this change created a sort of cultural revolution for French judges and led to the recognition of refugee status to nationals from Columbia who had a well-founded fear of being extorted and kidnapped by the farc guerrilla group and to the assertion that persecution may emanate from Somali clans. 93 See Anker, D., ‘Refugee Status and Violence against Women in the Domestic Sphere: The Non-State Actor Questions’, 15 Geo. Immigr. L.J., 2000–2001, 391 and unhcr, Asylum in the European Union: A Study of the Implementation of the Qualification Directive, 2007, at pp. 43–46. 94 See Salah Sheekh v the Netherlands, Application no. 1948/04, 11 January 2007 as well as Ahmed v Austria, Application no. 25964/94, 17 December 1996. 95 Mole, N., Meredith, C., Asylum and the European Convention on Human Rights, Strasburg: Council of Europe Publishing, 2010, at pp. 193−197. 96 Article 1(A) 2, 1951 Refugee Convention.

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granted that the term ‘unable’ refers primarily to two groups, namely on the one hand stateless refugees, and on the other hand to refugees who, while legally possessing a nationality, are nevertheless refused passports or other protection by their government.97 Therefore, a person claiming refugee status is ‘unable to avail himself of protection of that country’, if the country of origin would de facto not extend its protection to this very person upon his or her return, thus having the effect of the refugee not being able to successfully seek protection from persecution.98 As for the term ‘unwilling’ it was considered to refer to refugees who refuse due to a well-founded fear of persecution to accept the protection of their respective home government.99 What is though the standard of ‘adequate’ or ‘effective’ protection under the Qualification Directive and international law and who must offer it? This section looks into two issues linked with these questions: actors of protection and the internal protection possibility. The issue of effective protection in third countries which is regulated at eu level by the Procedures Directive goes beyond the scope of the research and does not form part of the analysis.100 Actors of Protection Traditionally the state was the clearly established actor of protection in international law. The willingness and ability of authorities in the country of origin to provide protection is a crucial consideration when an asylum claim is grounded in persecution by non-state actors or renegade agents of the state.101 The extent to which non-state entities, including international organisations can provide effective and adequate protection is more controversial.102 The only explicit reference on this issue included in the 1951 Refugee Convention, is 97

Zimmerman, A., Mahler, C., ‘Article 1A, para 2’, in Zimmermann, A., et al. (eds.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 281, at p. 443. 98 Ibid. 99 Ibid. at pp. 443–444. 100 For an analysis of this issue see Legomsky, S., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, 15 Int. J. Refugee Law, 2003, 567 and Costello, C., ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’, 7 Eur. J. Migrat Law, 2005, 35, as well as Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13. 101 ecre, Actors of Protection and the Application of the Internal Protection Alternative: European Comparative Report, 2014, at p. 50. 102 unhcr, Asylum in the European Union: A Study of the Implementation of the Qualification Directive, 2007, at p. 48.

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one to the un Relief and Works Agency for Palestine (unrwa), which has responsibility for Palestinian refugees.103 However, there is increasing state practice evidencing that protection could be provided by non-state actors.104 The 2004 Qualification Directive defined the concept of actors of protection. It stipulated that protection can be provided by: the State; or parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.105 Protection is provided when such actors take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.106 The inclusion of non-state actors as actors of protection has been widely criticised. An important point that has been raised by ecre against their inclusion is that State-like authorities and international organizations are not and cannot be parties to international human rights instruments and therefore cannot be held accountable for non-compliance with international refugee and human rights obligations.107 The International Law Commission’s Draft Articles on the responsibility of international organisations, a soft-law instrument, only foresees the invocation of responsibility of an international organisation by ‘a State or another international organisation injured’.108 This option is highly unlikely to be of assistance to individuals. Thus, individuals lack an effective remedy against potential violations. This point has been argued as well by unhcr which noted that ‘[u]nder international law, international organizations do not have the attributes of a State and furthermore they are not parties to human rights treaties’.109 103 1951 Refugee Convention, Article 1D. 104 See for example Nykänen, E., Fragmented State Power and Forced Migration: A Study on Non-state Actors in Refugee Law, Leiden-Boston: Martinus Nijhoff Publishers, 2012. 105 Article 7 par.1, 2004 Qualification Directive. 106 Ibid. 107 ecre, Information Note on the Qualification Directive, October 2004, at p. 7. 108 See Part IV, Chapter I, Invocation of the responsibility of an international organization, in Draft articles on the responsibility of international organizations 2011, Yearbook of the International Law Commission, 2011, vol. II, Part Two. 109 Garlick, M., ‘unhcr and the Implementation of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’, in Zwaan, K. (ed.), The Qualification Directive: Central Themes, Problem Issues, and Implementation in Selected Member States, Nijmegen: Wolf Legal Publishers, 2007, 59, at p. 65.

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In addition, international organizations have limited resources and lack legal authority.110 This renders unrealistic the suggestion that they can ‘control’ territory and ‘protect’ people in the same way States can.111 Despite these concerns, research on the implementation of the Directive in 19 eu Member States revealed that most of the surveyed countries have implemented this article and that national case-law has referred mostly to un bodies such as unmik in Kosovo, or unhcr camps, or organizations such as the Red Cross.112 More alarmingly, the 2010 European Commission Report on the application of the Directive stated that some Member States also considered ngos as actors of protection with regard to women at risk of female genital mutilation and honor killings, to the extent that they diminish such risks.113 The Commission went on to note that in practice, protection offered by those actors proves to be ineffective or of short duration.114 Recent research conducted by ecre attests to the following national jurisprudential trends:115 Recent cases in the uk have considered clan protection in deciding whether it is reasonable to expect someone to stay in a region.116 Similarly in Germany, there are cases where clans or families are practically considered as actors of protection,117 although in no case in the research sample was such protection decisive in denying asylum. The cjeu in 2010 also pronounced itself upon this issue on a case dealing with cessation of refugee status.118 Amongst other questions the referring national Court asked essentially whether protection can be considered effective in the 110 Ibid. 111 Ibid. 112 ecre, The Impact of the eu Qualification Directive on International Protection, 2008, at pp. 16–17. 113 European Commission, Report on the Application of Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection, 16 June 2010, com(2010)314 final, at p. 6. 114 Ibid. 115 ecre, Actors of Protection and the Application of the Internal Protection Alternative: European Comparative Report, 2014, at p. 50. 116 uk: See e.g., ukut, amm Somalia, 25.11.2011; hh am, J and ma (Somalia) v sshd [2010] ewca Civ 426; ukiat, nm and Others (Lone women – Ashraf ) Somalia cg [2005]. 117 de: fac, 20.03.2007, 1C 34.06 (4irq01fsb), §27. 118 cjeu, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, 2 March 2010.

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country of origin if it can only be assured with the help of multinational troops. The Court, without analyzing in detail the requirements stipulated by the Directive, noted that ‘[t]he Directive does not preclude the protection from being guaranteed by international organisations, including protection ensured through the presence of a multinational force in the territory of the third country’.119 The Court chose not to elaborate on the requirements that Advocate General Mazák had raised in his Opinion on this point.120 More specifically, the Advocate General had stated: [I] consider however that in order to comply with the terms of Article 7 of Directive 2004/83, a State may only rely on the assistance of multinational troops provided such troops operate under the mandate of the international community, for example under the auspices of the United Nations.121 Such a requirement would have clarified the scope of application of this article and would have considerably strengthened the guarantees for the applicant. As O’Sullivan notes, this is a means of introducing a level of accountability to the actions of an international organization and some certainty as to powers, functions and durability of stay in a country.122 The European Commission, cognizant of the fact that ‘[t]he lack of clarity of the concept allows for wide divergences and for very broad interpretations which may fall short of the standards set by the Geneva Convention on what constitutes adequate protection’, proposed amendments to the article in its 2009 Recast Proposal.123 The proposed amendments went some way in 119 Ibid. at para 75. 120 Opinion of Advocate General Mazák in Salahadin Abdulla and Others v. Bundesrepublik Deutschland, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, delivered on 15 September 2009. 121 Ibid. at para 58. 122 O’Sullivan, M., ‘Acting the Part: Can Non-state Entities Provide Protection under International Refugee Law?’, 24 Int. J. Refugee Law, 2012, 85, at p. 97; the author refers at fn. 64 to the mandate of unmik which provided for an interim administration whose functions included: ‘[M]aintaining Civil Law and Order, Including Establishing Local Police Forces’, ‘[P]rotecting and Promoting Human Rights’ and ‘[A]ssuring the Safe and Unimpeded Return of All Refugees and Displaced Persons to Their Homes in Kosovo’. 123 Explanatory Memorandum, European Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International

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addressing the shortcomings: they rendered the list of actors explicitly exhaustive, they stressed the fact that protection must be effective and durable and they stipulated that the actors must not be merely ‘willing’ but also ‘able’ to enforce ‘the rule of law’. This last phrase stressed the state-like attributes of non-state actors envisaged by the Commission. However, certain ambiguities remained. For example unhcr noted that based on the formulation of paragraph 2 it is possible to consider that an actor has provided sufficient protection if ‘reasonable steps’ have been taken, although the protection is neither effective, nor durable.124 The Commission’s proposal was further watered down during the negotiations. The text of the 2011 Qualification Directive Recast keeps the list of actors of protection explicitly exhaustive.125 However it changes the wording relating to non-state actors of protection; instead of them being willing and able to ‘enforce the rule of law’ they are required to be willing and able to ‘offer protection’.126 The change of wording implies that ‘protection’ could also be offered even when the non-state actor is not able in practice to enforce the rule of law. This seems not to be resonating well with the requirements that protection be ‘effective’ and of a ‘non-temporary nature’. It also reinforces the concerns raised by civil society and unhcr that Member States might interpret the provision

Protection and the Content of the Protection Granted (Recast), com (2009) 551 final [2009 Qualification Recast Proposal], at p. 6; the text of the Commission Recast Proposal in Article 7(2)(3) is also stated below for clarity (emphasis added): 1. Protection against persecution or serious harm must be effective and durable and can only be provided by: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State and which are willing and able to enforce the rule of law 2. Effective and durable protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm inter alia by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection. 124 unhcr, unhcr comments on the European Commission’s Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted (com(2009)551, 21 October 2009), 29 July 2010, at p. 5. 125 Article 7(1), 7(2), 2011 Recast Qualification Directive. 126 Ibid.; emphasis added.

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restrictively thus judging that protection is effective when ‘reasonable steps’ to prevent, prosecute and punish persecution are taken even if on the ground this is not the reality for the applicant. As with other definitional issues, the result of any judgment on this point is in fact the potential return of the applicant to her country of origin which must only take place if they will be protected from persecution. The author is of the opinion that more clarification into the wording of this provision is necessary and that, at its current form, it is still at variance with Member States’ legal obligations. Non-governmental organisations offering shelter and services to victims, as well as local militia and clans that have a tenuous, and often temporary, control over an area cannot be reasonably expected to provide effective protection. Non-state actors can only be considered as actors providing effective protection against persecution when they can implement the rule of law. In this sense, the original wording proposed by the Commission, that was however dropped during the negotiations of the recast, combined with the reasoning of Advocate General Mazak, that was however not followed by the Court, which stated that only internationally mandated forces fall into the definition of the Directive, would have gone a long way to ensure the compatibility of this provision with Member States’ legal obligations. The Internal Protection Alternative The 1951 Refugee Convention does not mention the concept of an ‘internal protection alternative’ (ipa). The notion emerged at the beginning of the 1980’s from State practice but very unsystematically and without a clearly conceptualised understanding.127 It was developed in a somewhat ad-hoc manner through international and national jurisprudence, academic analyses and governmental and intergovernmental policy statements.128 There is therefore no set definition for the concept at the international level but it follows the logic that a person facing persecution that is limited to a particular region of his or her country of origin but would at the same time be safe from persecution in another region of that very same country cannot qualify as a refugee within the meaning of the 1951 Refugee Convention.129 It is generally accepted that this expansion in the determination inquiry, in large part reflects 127 Marx, R., ‘The Criteria of Applying the “Internal Flight Alternative” Test in National Refugee Status Determination Procedures’, 14 Int. J. Refugee Law 2002, 179, at p. 179. 128 Ibid. 129 Zimmerman, A., Mahler, C., ‘Article 1A, para 2’, in Zimmermann, A., et al. (eds.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford: Oxford University Press, 2011, 281, at p. 443.

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the attempt of asylum countries to more carefully delineate the limits of their legal obligations under the Convention.130 Given the way the concept was developed, it comes as no surprise that there has been an absence in the caselaw of a solid framework of analysis regarding the standard for assessing whether the claimant should be expected to relocate internally.131 Two theories have been developed about the link of the internal protection alternative to the Convention; some locate it in the ‘well-founded fear of being persecuted’ clause of the definition,132 while others in the ‘unwilling… or unable…to avail himself of the protection of that country’133 clause.134 According to unhcr these approaches are not necessarily contradictory, since the definition comprises one holistic test of interrelated elements.135 However, convincing arguments have been brought forth by Hathaway and Foster who conceptually place the notion of ipa not in the ‘well-founded fear’ limb but in the second ‘protection’ limb of the analysis.136 As the authors stress, although the elements of ‘well-founded fear’ and ‘protection’ are to some extent intertwined, the analysis shifts significantly once it has already been 130 Kelley, N., ‘The Internal Flight/Relocation/Protection Alternative: Is It Reasonable?’, 14 Int. J. Refugee Law 2002, 4, at p. 5. 131 Ibid. at p. 6 and Goodwin-Gill, G., Mc Adam, J. The Refugee in International Law, 3rd edition, Oxford: Oxford University Press, 2007, at p. 124; the authors note that this is especially the case in what relates to whether or not considerations about the requisite level of protection of other rights, such as those necessary to the maintenance of a certain level of social and economic existence come into play. 132 See for example uk House of Lords, Januzi v Secretary of State for the Home Department Immigration; Hamid v Secretary of State for the Home Department and Other Appeals [2006] ukhl 5, point 7 (opinion of Lord Bingham) (“if a person [could] move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason”). 133 Ibid., point 66 (opinion of Lord Hope) (concurring in Lord Bingham’s opinion and declining to adopt this approach). 134 unhcr, Guidelines On International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2003, at para 3. 135 Ibid. 136 Hathaway, J., Foster, M. ‘Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination’, in Feller, E., et al. (eds.), Refugee Protection in International Law: unhcr’s Global Consultations on International Protection, Cambridge: Cambridge University Press, 2003, 353, at pp. 365–381.

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established that a person has a well-founded fear of persecution in their home area (area A); it is not logical, nor realistic to find that because the State can protect the person in some other region of the country, region (area B), the well-founded fear in area A is negated or removed.137 Far from being a theoretical discussion of purely academic interest this differentiation has a practical outcome for the applicant. In particular, it has significant bearing on the burden of proof, with some jurisdictions demanding that asylum seekers prove ‘nation-wide’ persecution, i.e. that they would be unsafe in the entire territory of the country of origin, or it leads decision-­ makers to determine the issue of ipa before examining the nature and the basis of the claimant’s fear.138 After an analysis of the Refugee Convention, the ECtHR case-law and ­academic articles, Battjes concludes that both Conventions allow for the ­application of the internal protection alternative, provided three conditions are met.139 First it must be accessible, second, the applicant should be safe there from the agent of persecution or serious harm who threatens them elsewhere and finally, there must be no well-founded fear of persecution or real risk of serious harm from another agent or for another reason.140 unhcr also supports a further criterion, a ‘reasonableness test’, which consists of analysing whether it is subjectively and objectively reasonable for the applicant to relocate there on the basis of his personal circumstances, past persecution, respect for human rights and economic survival.141 Hathaway and 137 Ibid. at pp. 366–367, the authors further explain that just as the risk would not be removed or negated by the availability of protection in a country of second nationality or in an asylum state, the well-founded fear in this case remains; however the person is able to avail themselves of countervailing national protection. 138 Kelley, ‘The Internal Flight/Relocation/Protection Alternative: Is It Reasonable?’, 14 Int. J. Refugee Law, 2002, 4, at pp. 8−9 and Storey, H., ‘The Internal Flight Alternative Test: The Jurisprudence Re-examined’, 10 Int. J. Refugee Law, 1998, 499, at p. 501 and 524 the author mentions that ‘proving fear of persecution locally is enough of a hurdle for an asylum seeker; to have to prove it here, there and everywhere within a country can appear too harsh’ and that ‘to require a claimant to demonstrate that everywhere is unsafe from persecution seems to set the test too high’. 139 Battjes, H., European Asylum Law and International Law, Leiden-Boston: Martinus Nijhoff Publishers, 2006, at p. 251. 140 Ibid.; regarding accessibility unhcr notes that the area should be practically, safely and legally accessible − see unhcr, Guidelines On International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2003, at paras 10–12. 141 Ibid., unhcr, at paras 22–30; as unhcr notes some variation of the reasonableness test has been applied by most national jurisdictions.

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Foster argue that the ‘reasonableness test’ is too subjective and have thus put forward a different requirement, that of ‘minimum affirmative state protection being available’ at the region of relocation.142 The Michigan Guidelines on the ipa speak of local conditions which ‘at least meet the Refugee Convention’s minimalist conceptualization of protection’.143 Although there is no agreement on what exactly the minimum standard of protection should be in an ipa, there is consensus that it should be above mere subsistence.144 Legally, such a requirement can be grounded in several arguments. First of all, an analogy can be made with what the uk Court of Appeal has stated in the joined cases of Adan, Subaskaran and Aitseguer regarding return to a safe third country:145 [s]uch a claimant might in the third country be faced with so destitute an existence, if he were wholly excluded both from the right to work and from any access to social provision, and possessed no other resources upon which he might call, that he would be driven to return to the country of feared persecution even though he had successfully claimed such rights of residence in the third country as are offered by these other forms of protection. Namely, it is conceivable that lack of subsistence may lead a refugee to return to the area of persecution, amounting to de facto refoulement. Further arguments can be drawn from the case law of the ECtHR. This Court has stated that it: cannot exclude that State responsibility could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found

142 Hathaway, J., Foster, M. ‘Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination’, in Feller, E., et al. (eds.), Refugee Protection in International Law: unhcr’s Global Consultations on International Protection, Cambridge: Cambridge University Press, 2003, 353, at pp. 405–411; according to the authors ‘protection’ is not simply the absence of the risk but clearly implies the existence of some affirmative defense or safeguard. 143 University of Michigan Law School, International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative, 11 April 1999, para 13. 144 Eaton, J., ‘The Internal Protection Alternative under European Union Law: Examining the Recast Qualification Directive’, 24 ijrl, 765, at p. 776. 145 R v. Secretary of State for the Home Department, Ex parte Adan and Others, United Kingdom: Court of Appeal (England and Wales), 23 July 1999, at para 85.

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herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity.146 Therefore, return to an area of the country of origin where a refugee would find herself in situations of serious deprivation incompatible with human dignity could raise issues of compatibility with Article 3 echr that prohibits torture, inhuman and degrading treatment, thus such return could potentially violate the principle of non-refoulement. Another set of arguments has been advanced by Foster who, applying the reasoning of the echr in the t.i. case to the Refugee Convention, advances that while the Convention does not impose obligations on states to deliver rights to refugees in the abstract, state parties have assumed obligations to deliver rights to refugees with whom they have a connection, in some cases based on mere physical presence.147 A good faith application of Convention obligations therefore requires that, in order to transfer a refugee to another state in accordance with the Refugee Convention, a state is under the obligation to ensure that the refugee will enjoy the rights to which she is entitled under the Convention scheme at the time of transfer.148 The 2004 Qualification Directive contains a definition on ‘alternative protection’. It sets out that Member States may determine that an applicant is not in need of international protection if in part of the country of origin there is no well-founded fear of being persecuted or no real risk of serious harm and the applicant can reasonably be expected to stay there.149 The decision should have regard to the general circumstances in that part of the country and to the personal circumstances of the applicant, but it may be taken notwithstanding technical obstacles to return.150 The 2004 Qualification Directive formulation fell short of Member States’ international obligations as it allowed for the application of the concept even when the asylum seeker could not travel and gain admittance to the part of the country considered safe. Hailbronner and Alt elaborate on the different formulations that were proposed during negotiations at the Council to avoid this inconsistency which however were not adopted, as Member States were afraid that obstacles created by the unwillingness of the applicant to cooperate could 146 Budina v. Russia, Application no. 45603.05,18 June 2009 (admissibility). 147 Foster, M., ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’, 28 Mich. J. Int’l L., 2006–2007, 223, at p. 270. 148 Ibid. 149 Article 8, para 1, 2004 Qualification Directive. 150 Article 8, paras 2, 3, 2004 Qualification Directive.

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be understood as ‘technical obstacles’ barring return.151 In the meantime, the ECtHR ruled in a case concerning the possibility of the Netherlands to make use of the internal protection alternative: The Court considers that as a precondition for relying on an internal flight alternative certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment.152 Thus, the Commission deleted this paragraph in its Recast Proposal to bring the provision in line with ECtHR jurisprudence.153 In addition, it added the specification that states should use precise and up-to-date country of origin information to assess the ‘circumstances prevailing in the country’.154 Surprisingly, the Commission deleted from the text of the Article the reasonableness requirement, while adding the specification that the applicant should be able to ‘safely and legally travel, gain admittance and settle’; this part of the proposal if adopted would have led to a lowering of standards. The ‘reasonableness’ test goes further than the possibility to have legal and practical access to a territory and includes considerations around the personal circumstances of the applicant and the possibility for economic survival in the area. Even if one considers that such considerations were implicit in the word ‘settle’ that the Commission added, such an interpretation would not be unambiguous. At the same time the deletion of the term ‘reasonable’ from the text might have given wrong signals as to the issues Member States should take into consideration before applying the ipa concept. The final text of the Recast Directive maintained the deletion of the requirement that the concept may apply notwithstanding technical obstacles to return to the country of origin as well as the new enhanced wording on reliance on accurate country of origin information.155 It also reintroduced the 151 Hailbronner, K., Alt, S., ‘Articles 1–10 Qualification Directive’, in Hailbronner, K. (ed.), eu Immigration and Asylum Law: A Commentary, Műnchen: C.H. Beck/Hart/Nomos, 2010, 1006, at pp. 1061–1062. 152 Salah Sheekh v. the Netherlands, Application no. 1948/04, 11 January 2007, at para 141. 153 Explanatory Memorandum, 2009 Qualification Recast Proposal, at p. 7. 154 2009 Qualification Recast Proposal, Article 8(2). 155 Article 8(1), (2), 2011 Recast Qualification Directive.

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reasonableness criterion the Commission had deleted in its recast proposal, thus avoiding the potential misinterpretations that were elaborated upon before.156 The inclusion of a strong presumption against the internal flight alternative when the State or agents associated with the State are the actors of persecution, although not added to the text of the article itself, was added in a recital.157 However, the amended formulation is not without issues. Eaton notes that the Directive text places the ipa ‘as part of the assessment of the application for international protection’;158 this risks making ipa a threshold condition, thus skipping the critical analysis of the conditions that lead to the applicant fleeing in the first place.159 The dangers of such an approach have been analysed above in this contribution; these are somewhat tempered by the reasonableness requirement. It should be noted, however, that although the maintenance of a reasonableness requirement is a positive step and could contribute to raising protection standards, the content of this term is not clearly defined and the interpretation of ‘reasonableness’ varies between Member states. In her contribution to this volume, Schultz notes this inconsistency and analyses the impact of human rights jurisprudence in the understanding of this term.160 Conclusions The Common European Asylum System has the potential to develop the international refugee protection regime. The Member States of the eu are engaged in a common endeavour and have the additional potential advantage of working within a regional law and policy framework which the members have established with the declared purpose of achieving harmonisation consistently with international law.161 However, the ceas also bears within it the risk to potentially undermine the international protection regime, when 156 Ibid. 157 Ibid., Recital 27. 158 Ibid., Article 8(1), 2011 Recast Qualification Directive. 159 Eaton, J., ‘The Internal Protection Alternative Under European Union Law: Examining the Recast Qualification Directive’, 24 ijrl, 765, 2012, at pp. 777 and 786. 160 Schultz, J., The European Court of Human Rights and Internal Relocation: An Unduly Harsh Standard? contribution to this forthcoming collective volume. 161 Goodwin-Gill, G., ‘The Search for the One, True, Meaning…’, in Goodwin-Gill, G., Lambert, H. (eds.), The Limits of Transnational Law: Refugee Law, Policy, Harmonization and Judicial Dialogue in the European Union, Cambridge: Cambridge University Press, 2010, 204, at p. 205.

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despite the stated objective, the legal harmonisation or the implementation of the norms deviates from Member States’ international legal obligations. As it became apparent from the analysis of parts of the 2004 Qualification Directive, while some provisions strengthened and clarified Member States’ obligations towards refugees, certain other provisions went against the obligations of Member States under the 1951 Refugee Convention, and human rights norms as enshrined in iccpr and the echr as well as the Strasbourg Court’s jurisprudence, or both. These obligations also form part of eu law, as general principles of law and as part of the eu Charter of Fundamental Rights which has the same legal value as the Treaties.162 The European Commission tried to tackle these deficiencies through its Recast proposal. However, the Commission chose not to address some points that had been raised as inconsistent by unhcr, civil society and scholars and some of its proposals were ‘watered down’ during negotiations with the ep and the Council. It is clear that it was a policy choice made by the Commission to leave aside some points bearing in mind the difficult negotiations that lay ahead with the Member States’ and the ep. From a legal point of view though, this means that there is still no full adherence to the international legal framework. Overall, our area of study − qualification for international protection − reveals a mixed picture. The recast Qualification Directive breaks new ground on some aspects such as the protection of lgbti applicants and provides a new approach in defining persecution. At other points, such as the definition of non-state actors of protection, it goes against the obligations of Member States under the 1951 Refugee Convention and further human rights norms. The remaining inconsistencies as well as further interpretative difficulties will, to an extent, have to be addressed by the cjeu. The first signs of the Court’s jurisprudence are encouraging as it has sought an interpretation consistent with Member States’ international obligations, basing itself on the Geneva Convention text.163 Its jurisprudence in this field reveals that it is seriously committed to respecting the ‘fundamental rights dimension’ of eu asylum policy.164 However, the effectiveness of judicial oversight in the area of asylum 162 Article 6(1), Teu. 163 See for example the analysis of the Court’s case law in matters related to cessation, exclusion and protection by other actors in Tsourdi, E., ‘What Role for the Court of Justice of the eu in the Development of a European Asylum Policy? The Case of Loss and Denial of International Protection in the eu’, 2/3 tbp, 2013, 212. 164 Lenaerts, K., ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’, 59 Int’l & Comp. L.Q, 255, 2010, at p. 298.

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is constrained by the relatively low number of references for a preliminary ruling by national Courts, at a time when similar matters are an object of numerous national proceedings as well as proceedings before the Strasbourg Court.165 In addition, the role of the ECtHR cannot be underestimated. Although the echr does not recognise a right to asylum as such, the Strasbourg court’s jurisprudence regarding non-refoulement is pertinent to the ceas and as the mss v. Belgium and Greece judgment showed,166 can have wide repercussions in this area of eu law. Beyond legislative harmonisation and judicial interpretation, the European Asylum Support Office,167 an eu agency tasked with coordinating and developing practical co-operation efforts, has the potential to contribute to the harmonisation process by approximating national practices.168 In conclusion, despite its limitations and although eu’s interpretation of the 1951 Refugee Convention cannot be imposed upon the signatories to the 1951 Geneva Convention, the ceas has potential to develop both international refugee law as well as the human rights regime, for example in the area of nonrefoulement. It also possesses a number of mechanisms that could assist in addressing its shortcomings.

165 Labayle, H., De Bruycker, P., Etude pour le Parlement Européenne : Impact de la Jurisprudence de la cej et de la cedh en matière d’Asile et d’Immigration, 2012, pp. 101−102. 166 mss v Belgium and Greece, Application no. 30696/09, 21 January 2011. 167 According to Regulation (eu) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office three main areas of activity are covered by the agency: practical cooperation among eu Member States, support towards eu States under particular pressure and contribution to the development of a ceas. 168 Through for example its actions on the gathering and exchange of country of origin information (coi) and the adoption of a common coi methodology as well as the provision of training for asylum officials on the basis of the European Asylum Curriculum (eac) model.

PART 3 Content of Protection: Rights of Refugees and Asylum Seekers

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Unmerited Restrictions on Access to Justice for Asylum Seekers Emma Borland* Introduction Within the context of asylum adjudication in the uk, there exists great tension between ‘the political imperative to maintain effective immigration control’1 and the uk’s obligations (under international refugee law, human rights law, and the eu legal framework) towards those seeking protection. It is thus in both the State’s interests and in the interests of individuals seeking asylum that claims are determined fairly and accurately, thereby ensuring that those who are entitled to refugee status, humanitarian protection, or whose human rights would otherwise be breached if refouled, are identified and granted protection accordingly.2 While the 1951 Refugee Convention,3 the eu Qualification Directive4 and the European Convention on Human Rights (echr)5 set out the eligibility criteria for those who should be afforded protection, none of these instruments stipulate how claims should be determined and governments are therefore free to process claims in whichever manner they see fit.6 In the uk, the ‘process of asylum is both an administrative and legal one’.7 The Home Office process and determine initial claims and there is a right of appeal against refusals to an independent, specialist tribunal. * Ph.D. candidate, Cardiff Law School, Cardiff University, Email:[email protected]. 1 Robert Thomas, ‘Evaluating Tribunal Adjudication: Administrative Justice and Asylum Appeals’, (2005) 25 Legal Stud 462. 2 Robert Thomas, ‘Assessing the Credibility of Asylum Claims: eu and uk Approaches Examined’ (2006) 8 Eur. J. Migration & L. 79, 80. 3 Geneva Convention Relating to the Status of Refugees, 189 unts 150, 28 July 1951. 4 Council Directive (ec) 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ 304/12 (Asylum Qualification Directive). 5 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. 6 unhcr Handbook on Procedures and Criteria for Determining Refugee Status [189], subject to Council Directive (ec) 2005/85 on minimum standards on procedures in Members States for granting and withdrawing refugee status [2005], OJ L 326/13 (Asylum Procedures Directive). 7 Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Hart Publising, 2011) 22.

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Under this administrative and legal structure, the interest in a cost-effective system must be carefully balanced against the interests of fairness and justice.8 In light of these competing values, and given the adversarial nature of the British system, it is postulated that access to quality legal advice and representation throughout the asylum process – that is, prior to the initial claim and through to any subsequent appeals or fresh claims – is crucial to ensure equality of arms and that the decisions reached are fair and accurate. However, there is evidence to suggest that the uk is failing to fulfil its obligations by imposing restrictions to legal aid that undermine the effectiveness and fairness of the asylum determination process. Cuts to legal aid impede access to justice for asylum seekers by limiting the availability of adequate legal advice and representation. Access to quality legal representation has been shown empirically to increase the prospects of successful outcomes for asylum seekers9 who are unlikely to have the requisite knowledge to navigate the unnecessarily complicated asylum adjudication system.10 The grave concern that arises is that some unrepresented or poorly represented claimants are wrongfully refused asylum and then are either forcefully returned to persecution in their home countries or remain in the uk clandestinely, stuck in limbo and facing destitution. Drawing upon evidence from the literature in this area, the contribution of restrictions to legal aid to the marginalisation of asylum seekers in the uk – who suffer from ‘[t]he cloak of invisibility conferred by…political and media dehumanisation’11 – will be revealed. The paper seeks to identify some of the inequities caused by the ‘entrenched operational problems within the current legal aid system’12 and suggests areas where further research is required to move forward the cause of bestowing fair and equal access to justice for all asylum seekers.

Overview of the Asylum Determination Process

In the uk, asylum applications are processed by the Home Office under the New Asylum Model (nam)13 where a single case owner will be allocated to a 8 Thomas, ‘Evaluating Tribunal Adjudication’ (n 1) 472. 9 Thomas, Administrative Justice and Asylum Appeals (n 7) 116. 10 Described by Sir Bill Morris as a ‘legal minefield’, see Bail for Immigration Detainees (bid) and Asylum Aid, ‘Justice Denied: Asylum and Immigration Legal Aid – A System in Crisis’ (bid and Asylum Justice, Evidence From the Front Line, 2005). 11 Frances Webber, ‘Borderline Justice’ (2012) 54 Race & Class 39, 52. 12 Alison Griffin, ‘Justice Denied?’ (2012) 62 (7519) Supp (Charities Appeals Supplement) New Law Journal 8, 9. 13 Operational since May 2007.

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particular case and will manage and be responsible for all aspects of that case, seeing it through from start to finish. Claims can be made at any time, either upon arrival to the uk at the port of entry or any other time after arrival at a Home Office Screening Unit. However, delay in claiming asylum without a reasonable explanation is considered behaviour that damages the applicant’s credibility.14 Once an individual has indicated that they would like to claim asylum then the process of screening will begin. Screening involves the applicant’s fingerprints being taken together with a screening interview where the applicant’s personal details are taken (to establish, for example, identity and nationality) and details regarding their travel and mode of entry to the uk. This is followed by the substantive asylum interview, which is ‘an asylum seeker’s main opportunity to explain their grounds for asylum’.15 Public funding is generally no longer available for representatives to attend the substantive interview. If the applicant does not speak English, an interpreter employed by the Home Office will be available. The applicant will be asked at the end of the interview to sign a copy of the written interview record confirming that it is a true and accurate account, despite the fact that the record will not be read back to her in a language that she understands or a translation of the record given to her. How can an applicant in these circumstances confirm the accuracy of the transcribed interview? This is troubling, particularly where interpreters have been used given the increased likelihood of errors arising.16 The applicant will be given a copy of the interview record and has 5 days to consult with her legal representative, if she has a representative, and notify her Home Office case owner if there is any additional information she would like to submit or issues that she would like to clarify. Regrettably, there is anecdotal evidence of legal representatives failing to read back the interview record to their clients in a language that they understand.17 There is thus the risk that claimants are being unfairly prejudiced by the absence of a lawyer or by their lawyers’ poor practice. A decision will then be made by the Home Office case owner on the basis of the screening and substantive interview records, together with any other additional information submitted. If refused, as most claims are,18 then a letter 14 15 16 17

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Under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, s 8. Griffin (n 12) 8. Roxana Rycroft ‘Communicative Barriers in the Asylum Account’ in P Shah (ed.) The Challenge of Asylum to Legal Systems (London, Cavendish, 2005). This has been the experience of volunteer legal advisors at Asylum Justice, Cardiff who assist asylum seekers to challenge the decision of their previous legal representatives to withdraw public funding at appeal stage. Discussed below. For example, in 2010, there were 15,056 refusals (of which 10,439 were male and 4, 617 were female) out of the 20,261 decisions reached. See Home Office, ‘Asylum Data Tables

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detailing the reasons for refusal will be issued. Under the nam, the Home Office ‘aims to ensure that all cases are dealt with at considerable pace: with a maximum of 6 months a claim’.19 The speed of the asylum process under nam, means that a number of claimants have difficulty accessing legal advice prior to their substantive interview.20 The claimant then has 14 days21 after she is served with notice of the decision to lodge an appeal with the First-tier Tribunal of the Immigration and Asylum Chamber.22 This time limit was described as woefully short by a variety of bodies and organisations’.23 Around 70% of asylum claimants refused initially lodge appeals.24 This is not surprising given that ukba ‘decision-making has often been criticised for being of indifferent quality, poorly reasoned, inadequately engaging with the evidence of the applicant and for disclosing factual errors concerning country conditions’.25 Appeals normally adhere to the following timeframes. Two weeks after an appeal is lodged there is a Pre-Hearing Review (phr) for any preliminary case management matters to be addressed and to ensure that the case is ready to proceed to the full substantive hearing. The full oral hearing will then be listed for two weeks after the phr. Directions are issued that normally request that both parties file and serve any evidence that they intend to rely upon 5 working days before the date of the hearing. It is Home Office practice to file and serve a bundle that will normally include copies of the appellant’s screening and interview records, together with any relevant country of origin information (coi) reports and other documentary evidence supporting the respondent’s case. The appellant will usually attend the hearing although in many cases will be unrepresented, for reasons discussed in detail below. She may or may not have

Immigration Statistics October – December 2011 Volume 1’ (Home Office, Table as.05: Asylum initial decisions for main applicants, by sex and country of nationality, 23 February 2012) accessed 26 November 2012. 19 Jon Burnett, ‘No Access to Justice: Legal Aid and Destitute Asylum Seekers’ (pafras Briefing Paper Number 3, January 2008) accessed 19 November 2012. 20 Kate Smart, ‘Access to Legal Advice for Dispersed Asylum Seekers’ (Asylum Support Partnership Impact Report, July 2008). 21 The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI 2014, No. 2604 (L. 31), Rule 19, which came into effect on 20 October 2014. 22 Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005, No. 230, s 7(1)(b). 23 Burnett (n 19). 24 Thomas, Administrative Justice and Asylum Appeals (n 7) 22. 25 Thomas, ‘Evaluating tribunal adjudication’ (n 1) 479.

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filed any evidence in support of her case depending on whether she has the benefit of legal representation. The matter will be heard before an Immigration Judge (ij) and a court interpreter will be made available if requested. The hearings are ‘meant to be less intimidating than normal courts, which they nonetheless resemble’.26 As Thomas highlights, the hearings are ‘conducted on an adversarial basis, but this can vary depending upon the presence and quality of legal representation’.27 While the ij should not adopt an inquisitorial role and embark upon a fact-finding mission, she should adapt her role and assist unrepresented appellants by: (i) checking that the appellant understands the purpose of the hearing and the case against her; (ii) verifying whether the contents of the asylum interview records, and any other statements made by the appellant, in the Home Office bundle of evidence are accurate; (iii) giving the appellant an opportunity to make any additions to her evidence; and (iv) in the absence of a legal representative to object, ensuring that only appropriate questions are asked by the Home Office Presenting Officer (hopo) during cross-examination.28 The ij may put her own questions to the appellant in order to give the appellant the opportunity to clarify any issues, however, she must be careful not to ‘enter the arena’29 and assume the hopo’s role.30 However, there is evidence emerging of inconsistent practices by ijs across the uk putting into question the fairness of asylum appeals.31 The ij will usually reserve her decision and a written determination will then follow within 10 days. The decision of the ij may be challenged by either side by applying for permission to appeal to the Upper Tribunal but only if the determination discloses an error of law.32 An ij’s findings of fact and credibility  are rarely overturned.33 Some cases reach the Court of Appeal or the 26

Anthony Good, ‘Anthropologists as Experts: Asylum Appeals in British Courts’ (2003) 19(5) Anthropology Today 3, 4. 27 Thomas, Administrative Justice and Asylum Appeals (n 7) 23. 28 hhj Henry Hodge obe, Chief adjudicator, ‘Unrepresented appellants’ (Adjudicator Guidance NOTE No 5, April 2003) accessed 20 November 2012. 29 Good (n 29) 4. 30 The guidance (Adjudicator Guidance NOTE No 5 (n 30)) stresses, consistent with the Surendran Guidelines (mnm (Surendran guidelines for Adjudicators) Kenya * [2000] ukiat 00,005) that ‘the adjudicator may ask questions, but must not descend into the arena and appear to be assuming the hopo’s mantle’. 31 Melanie Griffith, ‘Observing Differences: Asylum Appeals in the uk’ (The COMPAS Blog, 2013) accessed 22 October 2013. 32 Tribunals, Courts and Enforcement Act 2007, s 11. 33 Good (n 29) 5.

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Supreme Court and either side may also seek Judicial Review at any stage of proceedings. The burden of proof is placed upon the person claiming asylum but the standard of proof is low, lower than the civil standard of the balance of probabilities, that of ‘a reasonable degree of likelihood’, sometimes expressed as ‘substantial grounds for believing’ or ‘real risk’.34 It is recognised that it will often be practically difficult for persons fleeing persecution to be able to provide documentary evidence or other proof to substantiate aspects of their claim, and instances where it is possible for an individual to provide such corroborative information form ‘the exception rather than the rule’.35 In the majority of asylum cases therefore, the only evidence available will be the claimant’s written and oral statements.36 Thus, for the claimant to succeed on her account alone she must be found credible.37 Credibility assessments play ‘a key role’38 in asylum determinations. Decision-makers (both Home Office case owners and ijs) will consider internal credibility, that is, whether the claimant has provided a coherent and consistent account. They will try to identify any inconsistencies between the different written, oral and other documentary evidence provided by the claimant over space and time that might undermine her credibility.39 They may also find that the claimant’s credibility has been damaged if they consider that she has provided insufficient detail regarding aspects of her claim.40 An external credibility assessment is also carried out which requires decision-makers to compare the claimant’s account to available objective coi. When questioning the plausibility of a claimant’s account, decision-makers should be aware of cultural differences and not dismiss the claim simply because it appears implausible in a British context.41

34 See Ravichandran v SSHD [1996] Imm AR 97 and Karanakaran v SSHD [2000] Imm AR 271. 35 unhcr Handbook (n 6) [196]. 36 Ben Feder, ‘A Credible Judge of Character? A Psycho-Legal Analysis of Credibility Assessments for Asylum Applicants with a History of Sexual Violence’ (2010) 24 jianl 295, 297. 37 SW v Secretary of State for the Home Department (Adjudicator’s questions) Somalia [2005] UKIAT00037 [20], as cited by Thomas, ‘Assessing the Credibility of Asylum Claims’ (n 7) 79. 38 Feder (n 39) 295. 39 See paragraph 339 L of the Immigration Rules that sets out the criteria to be applied by decision-makers. 40 Home Office, ‘Considering Asylum Claims and Assessing Credibility’ (Asylum Process Guidance, 4.3.1. Internal Credibility – the applicant’s own evidence – Level of detail). 41 Feder (n 39) 299, citing Y v Secretary of State [2006] ewca Civ 1223.

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However, in practice, ‘the innate subjectivity involved in credibility assessments poses major problems in terms of maintaining a fair and accurate system’.42 One criticism is that credibility assessments, are ‘often uninformed by the psychological problems associated with the disclosure of traumatic experiences, and as such, can contribute towards subjective and inaccurate determinations’.43 Feder attributes this ‘injustice’ to the ‘combined result of poor training of decision makers, inadequate policy and restrictive domestic legislation within the context of a politicised “culture of disbelief”’.44 This culture of disbelief, that distorts the decision-making of Home Office case owners and ijs alike, is described by Webber as ‘a colonial-style set of assumptions about applicants’ dishonesty and behaviour’.45 Thomas explains that, ‘being presented constantly with claims of torture or persecution may also induce compassion fatigue and an organizational culture of disbelief toward claimants’.46 This has lead Webber to conclude that, ‘[i]nstitutional racism is alive and well…in the…United Kingdom Border Agency….and in the immigration judiciary’.47 Webber highlights that ‘[m]any immigration judges find it hard to resist becoming Home Office gatekeepers, allowing anti-asylum attitudes to infect their approach’.48 Of equal note is that ‘legislators have increasingly sought to guide the assessment of claimants’ credibility and that the content of such assessment frameworks tend to favour the negative assessment of credibility’.49 This is exacerbated by the fact that the ukba has rejection quotas.50 Another criticism often made is that where objective coi is stringently applied, this can lead to an ‘obsession with dates in asylum determinations which result in minor memory difficulties being used to undermine credibility’.51 Given that ‘the majority of ukba case owners mainly or solely [rely] on ukba’s own coi reports’,52 Tsangarides also questions the ‘objectivity’53 of coi by highlighting 42 43 44 45 46 47 48 49 50 51 52 53

Ibid., 296. Ibid., 295. Ibid., 296. Webber, ‘Borderline Justice’ (n 10) 40. Thomas, ‘Assessing the Credibility of Asylum Claims’ (n 7) 84. Webber, ‘Borderline Justice’ (n 10) 51. Ibid., 40. Thomas, ‘Assessing the Credibility of Asylum Claims’ (n 7) 80 [emphasis added]. Helen Hintjens, ‘“Like Leaves in the Wind”: Desperately Seeking Asylum in the uk’ (2006) Race & Class 79, 83. Feder (n 39) 298. Natasha Tsangarides, ‘The Politics of Knowledge: An Examination of the Use of Country Information in the Asylum Determination Process’ (2009) 23 jianl 252, 252. Ibid., 263.

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the ‘subjectivity involved in knowledge production, interpretation and use’.54 She concludes that, ‘these reports do not allow for the level of complexity necessary to gain a holistic understanding of a country or an individual asylum claim’.55 Gill argues that the discretion of decision-makers is influenced by the temporal and spatial presentation of asylum seekers’ claims through the institutional arrangements within which they and asylum seekers interact.56 For example, Home Office case owners ‘face tight deadlines, strict targets and monotonous work schedules’57 that affect their work. They are susceptible to stress and secondary trauma from hearing the stories of asylum seekers and might either ‘burn out’ or ‘shut down’, finding it easier to see all asylum seekers as liars.58 Particular spatial arrangements, such as security measures that ‘separate, distance, defamiliarise and sever’ Home Office staff from asylum seekers, ‘result in the production of asylum seekers as a separate and threatening category, which can impact upon the work that caseworkers undertake’.59 For ijs, they are ‘inevitably insulated by their position of privilege and under political, bureaucratic and time pressure to see cases as purely intellectual exercises’.60 Their perceptions are also ‘systematically affected by the control and restriction of the supply of legal aid’61 as they rely upon lawyers’ representations in order to make an informed judgment. Gill points out that little research has been done regarding the agency of the asylum sector decision-makers who hold ‘increasing discretion’.62 Further study addressing the experiences of these actors and the significance of their roles is therefore needed. In view of the high degree of discretion and subjectivity involved in asylum determinations, it is not surprising that asylum procedures are often criticised for producing inconsistent decisions. Phrases such as ‘asylum lottery’63 and ‘refugee

54 Ibid. 55 Ibid., 252. 56 Nick Gill, ‘Presentational State Power: Temporal and Spatial Influences Over Asylum Sector Decision Makers’ (2009) 34 Transactions of the Institute of British Geographers 215, 216. 57 Ibid., 223. 58 Ibid. 59 Ibid., 225. 60 Webber, ‘Borderline Justice’ (n 10) 48. 61 Ibid., 225. Discussed below. 62 Gill (n 59) 215. 63 See, for example, Raekha Prasad, ‘The Asylum Lottery’ (The Guardian, 25 January 2002).

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roulette’64 are thus regularly employed to describe the floundering system. Such inconsistency is troubling because, ‘if a decision making process produces disparate outcomes, then surely some of its decisions must also be substantively incorrect’.65 This is extremely worrying given that the error costs for asylum seekers are so high.

The Cuts

The extensive cuts to legal aid in this sector, instigated under the previous Labour government, have been described as ‘savage’66 and ‘the single greatest blow to the protection of human rights and the right of asylum’.67 In 2004, as part of a vision of a value for money market-driven system68 legal aid entitlement was reduced from around forty hours to just five hours preparation for each initial asylum application to the Home Office, ‘despite grave concerns… that such restrictions would not allow enough time for cases to be adequately prepared’.69 Chakrabarti aptly asks the question, ‘[h]ow many members of wider society would feel satisfied with that amount of advice in preparation of an acrimonious divorce, let alone a decision which might result in return to death or persecution on the other side of the world?’70 These time constraints make it very difficult for legal representatives to offer quality representation, to build up a relationship of trust with their often extremely vulnerable clients, encouraging their confidence and helping them to put their case fully to the authorities. The fixed fee that legal aid lawyers receive per asylum matter, regardless of how many hours they spend working on a case71 is paid retrospectively, which ‘is 64 65 66 67

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See, for example, Natasha Tsangarides, The Refugee Roulette: The Role of Country of Origin Information in Refugee Status Determination (London: Immigration Advisory Service, 2010). Robert Thomas, ‘Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom’ (2008) 20 Int’l J Refugee L 489, 490. Webber, ‘Borderline Justice’ (n 10) 51. Maurice Wren, cited in Annie Kelly, ‘Asylum Aid Condemns Move to Limit Legal Aid’ (Third Sector, 3 September 2003) accessed 23 November 2012. Jon Robins, ‘Comment: An incentive to Dumb Down’ (2010) 24 June LS Gaz 8. Also see Deborah James and Evan Killick, ‘Empathy and Expertise: Case Workers and Immigration/ Asylum Applicants in London’ (2012) 37 Spring Law & Social Inquiry 430, 439–440. Burnett (n 19). And, as highlighted above, costs are generally no longer covered for lawyers to attend their client’s asylum interview. Shami Chakrabarti, ‘Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom’ (2005) 32 J.L. & Soc’y 131, 141. Griffin (n 12) 8.

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both unprecedented and unique to asylum and immigration cases’.72 As will be discussed further below, given the often complex and protracted nature of asylum cases, this retrospective funding arrangement is problematic and can cause serious cash flow problems for firms, putting them at risk of going under. While an hourly rate can be paid in ‘Exceptional Cases’,73 ‘payment for [such] complicated, and possibly precedent-setting cases…may be collected only after they have been completed – a lengthy and drawn-out process’.74 It makes financial sense, therefore, for legal representatives to ‘cherry pick’75 cases estimated most likely to succeed but that will require little work and can be billed quickly. As James and Killick observe, under this funding structure, ‘the more complicated cases that may supply potential legal landmarks [are] often considered too risky and [fail] to find representation’.76 Robins thus describes the funding regime ‘as a system that incentivises dumbing down’.77 According to Griffin, fixed fees ‘makes poor and mediocre legal provision more likely as it incentivises some legal firms to cut corners in order to increase efficiency’.78 For those firms that are committed to providing a high level of client care, the low fixed fee paid retrospectively means that they ‘have to cross-subsidise their legally aided asylum work from other areas’79 otherwise they risk going out of business. The knock-on effect of public-funding restrictions therefore is the dramatic reduction in the availability and quality of representation for asylum-­seekers.80 Since the introduction of the present funding regime, firms and other organisations providing asylum advice and representation have been forced to reduce capacity or are closing81 with ‘respected asylum lawyers leaving practice or moving into more sustainable areas’.82 According to empirical research, 72 73

Thomas, ‘Evaluating Tribunal Adjudication’ (n 1) 492. See Legal Services Commission, ‘Unified Contract Standard Terms’, (lsc, 2007) accessed 8 November 2012: ‘…a case which would otherwise be paid under a fixed fee but which is payable on hourly rates because of the extent by which the claim exceeds the fee’. 74 James and Killick, ‘Empathy and Expertise’ (n 71) 438. 75 Robins (n 71) highlights that ‘[u]nder the Solicitors Code of Conduct, there is no penalty for cherry picking’. 76 James and Killick, ‘Empathy and Expertise’ (n 71) 438. 77 Robins (n 71). 78 Griffin (n 12) 8. 79 Ibid. 80 Griffin (n 12) 8, refers to the ‘general dearth of high quality legal providers’. 81 Refugee Action, ‘Long Term Impacts of the 2004 Asylum Legal Aid Reforms on Access to Legal Aid’ (Refugee Action, May 2008). 82 Chakrabarti (n 73).

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‘given the new financial constraints and the pressure to work faster and deal with more clients, [legal representatives] were often forced to work on weekends and into the evening, in a manner that proved unsustainable’.83 As articulated by Webber, ‘[t]oday, the number of immigration lawyers is shrinking again, as legal aid cuts decimate high-street firms and specialist practice’.84 Moreover, anyone carrying out immigration and asylum publicly funded work must be accredited.85 In reality, this serves as a further obstacle to lawyers seeking to practice within this field. Indeed, asylum seekers in Wales appear to be at risk of being ‘disadvantaged by the general shortage of law firms offering immigration advice in the region’.86 This leaves ‘large numbers of clients with no choice of alternative representation if they believe that their solicitor is not acting in their best interests and therefore impacts on the quality of advice they receive’.87 Most notably, Refugee and Migrant Justice (rmj) and the Immigration Advisory Service (ias), who employed hundreds of lawyers between them and provided services to tens of thousands of asylum seekers, went into administration in 2010 and 201188 leaving many clients without hope of finding new legal representation within the already saturated market. The collapse of both rmj and ias was due to cash-flow problems caused by retrospective funding,89 serving to ‘illuminate the alarming deficiencies’90 of the funding regime. 83 James and Killick, ‘Empathy and Expertise’ (n 71) 436. 84 Webber, ‘Borderline Justice’ (n 10) 46. 85 The lsc requires any contributor to a legal aid contract in immigration law to be accredited under the Law Society’s Immigration and Asylum Accreditation Scheme (iaas). 86 See Peter Aspinall and Charles Watters, ‘Refugees and Asylum Seekers: A Review From an Equality and Human Rights Perspective’ (Equality and Human Rights Commission, 2010) accessed 21 February 2012 and Kate Smart, Tina Crimes and Carol Hanox, ‘Access to Legal Advice for Asylum Seekers and Refused Asylum Seekers in Wales’ (Welsh Refugee Council, 2010) accessed 18 November 2012. 87 Refugee Action (n 84). 88 Webber, ‘Borderline Justice’ (n 10) 46–47. Robins (n 71) notes that rmj’s closure left ‘some 10,000 asylum-seeking clients, including 900 lone children, who could be left without representation because of this failure’. 89 See Alison Harvey, ‘Closure of Refugee and Migrant Justice and the Legal Aid Tenders’ (2010) 24 jianl 230 for details regarding rmj’s closure. Robins (n 71) highlights that rmj ‘squarely blames its collapse on the Legal Services Commission’s practice of only paying up on the completion of cases’. 90 Robins (n 71).

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At risk of compounding the problem is the enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (laspo), which will see ‘the almost complete destruction of civil legal aid’.91 While the provision of legal aid for asylum seekers will be ring-fenced under the Act, the provisions curtailing legal aid in most immigration cases, which came into force in April 2013, are predicted to also impact negatively upon access to justice for asylum seekers. As Webber observes, while ‘[t]he government says the cuts won’t affect asylum seekers…legal aid in these areas has already been cut to shreds’.92 It is clear that this further attack on legal aid could put some of the last reputable specialist immigration and asylum practices out of business93 leaving many more asylum seekers without access to quality legal advice and legal representation, thus greatly hindering their chances of a successful appeal.94 Under the current fee structure for legal aid work, ‘[a]ll providers who reach a minimum level of quality are…paid an identical fee…, reducing the incentive to strive for high quality, in effect penalising those firms that do, and forcing the choice between financial survival and responsibility to clients’.95 Financial pressures, coupled with time constraints under the nam, result in the majority of clients receiving ‘inadequate or, in some cases, virtually no legal advice to assist them in presenting their asylum case during their substantive interview with the ukba’.96 This is problematic because it is important that time is taken for a relationship of trust to be built up between the claimant and her legal representative in order for her to be able to confide significant issues such as rape, torture or mental health problems and for the legal representative to help the claimant to make her case for asylum as effectively as possible.97 Moreover, there is the danger that representatives are failing to properly advise and assist clients to gather crucial supporting evidence and to have vital documents translated on their behalf.98 There is also the risk that the funding regime 91 92

Webber, ‘Borderline Justice’ (n 10) 51. Frances Webber, ‘uk: the Real “Immigration Debate”’ (2012) 53 Race & Class 91, 93–94. 93 See Alice Forbess, ‘Reversing Inequalities’, (The Justice Gap) accessed, 28 February 2012. 94 Discussed below. 95 Adeline Trude and Julie Gibbs, ‘Review of Quality Issues in Legal Advice: Measuring and Costing Asylum Work’ (Report by icar, City University, London, 2010). 96 Griffin (n 12) 8, discusses the experience of Refugee Action. 97 Helen MacIntyre, ‘Imposed Dependency: Client Perspectives of Legal Representation in Asylum Claims’ (2009) 23 jianl 18, 195. 98 See Hintjens (n 53) 82.

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encourages unscrupulous lawyers to profit.99 As put by Webber, sadly ‘there are some terrible, lazy, negligent and down- right crooked lawyers who see clients purely as income streams and do untold damage to them’.100 James and Killick’s research has revealed the fascinatingly ‘complex and contradictory character’101 of legal representation in the field of asylum law and the intriguing paradoxes exposed warrant further exploration. On the one hand, even in respect of those lawyers who remain committed to the cause of providing quality advice and representation for asylum seekers, ‘funding cuts and the increasing number of clients per case worker are eroding empathy through increased stress, uncertainty of reimbursement, and administrative work of case workers’.102 Tragically, ‘[c]ompassion fatigue or burnout is threatened through the cutting of legal aid funding, which threatens both the sense of self-worth of these workers and the actual value of their work’.103 On the other hand, it was found that, ‘compassion serves to initiate, motivate, and sustain the work of [legal representatives]’104 who ‘provide exceptional levels of aid to their clients in facing an arbitrary bureaucracy’.105 While it seems that it is somewhat easier for asylum seekers to find representation at the initial stage, the problem of finding a representative at appeal and post-appeal stages has been described as ‘acute’,106 for reasons outlined below. Refugee Action highlights that even where firms are willing to take on fresh claims, which are notoriously labour intensive, there tend to be very long waiting lists for appointments.107 This is problematic because asylum seekers at this stage will usually be destitute as generally there is no entitlement to asylum support without a pending application. The lack of provision of legal representation at appeal and post-appeal stages not only deprives individual appellants from access to important advice and representation at risk of significantly hampering their chances of success, but also, as noted above, diminishes the opportunity to bring test cases.108 99

Burnett (n 19) stresses that ‘legal exploitation is rife’ and notes that, ‘unscrupulous advisers continue to profit directly from extortionate costs for their “expertise”’. 100 Webber, ‘Borderline Justice’ (n 10) 52. 101 James and Killick, ‘Empathy and Expertise’ (n 71) 437. 102 Ibid. 103 Ibid. 104 Ibid. 105 Ibid., 430. 106 Smart (n 20). 107 Ibid. 108 See, for example, Steve Symonds, ‘Access to Justice, Legal Aid and the Higher Courts’ (2011) 25 jianl 327.

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Moreover, the current ‘funding arrangements apply pressure to reshape advice as a technical, administrative matter, rather than allowing for each client to be considered as an individual with his or her own specific and detailed experiences’.109 Thus, ever-increasing financial pressure on immigration practitioners has the effect of cajoling them into becoming a further layer of Home Office gate-keepers, insidiously transforming their role into one of ‘surveillance’.110

The ‘Merits Test’

At appeal stage, in order for legal aid to be granted by the Legal Aid Agency,111 lawyers must assess the claim to have above 50% prospect of success. In theory, this should not create a problem because, if properly assessed, the claims of appellants refused legal aid funding would be unmeritorious and bound to fail on appeal. However, as already noted, restrictions to publicly funded legal aid provision generally has created a shortage of good legal representatives and it is often low level, overworked and poorly paid case workers who are left to assess merits. As Griffin acknowledges, part of the problem is that ‘having spent insufficient time working on a case at the initial claim stage, representatives are simply not in a position to assess whether or not the case has sufficient merit at the appeal stage’.112 The terms of the legal aid contract stipulate that legal representatives must show that they have been successful in 40% of cases in order to retain public funding.113 As Smart points out, this requirement ‘leads solicitors to exercise a high level of caution when agreeing to take on a case’.114 In addition, as highlighted above, funding is retrospective which is also ‘likely to have a negative impact on appellants as representatives will have to undertake a commercial assessment of the level of risk they are able to undertake’.115 Furthermore, where the appellant is unrepresented, the ij is effectively informed before the trial that the appellant’s lawyer has applied the merits test and rejected her case, creating the risk of placing the appellant at a disadvantage from the start. While there is guidance for ijs stating that, ‘the fact that the 109 James and Killick, ‘Empathy and Expertise’ (n 71) 439. 110 Deborah James and Evan Killick, ‘Ethical Dilemmas? uk immigration, Legal Aid Funding Reform and Caseworkers’, (2010) 26 Anthropology Today 13, 13 note that the tightening of the provision of funds attempt to force them into ‘a surveillance role’. 111 That superseded the Legal Services Commission (lsc). 112 Griffin (n 12) 8. 113 Smart (n 20). 114 Ibid. 115 Thomas, ‘Evaluating tribunal adjudication’ (n 1) 492.

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appellant has not passed the merits test must not colour your assessment of his case’,116 there has been no research done on whether this is properly applied in practice. The Asylum Appellate Project, a study carried out in Devon and Cornwall between 2007 and 2010, revealed that legal representatives were wrongly applying the merits test and refusing public funding in 79% of cases.117 If indicative of the situation across England and Wales, this potentially means that a large proportion of meritorious claims are unrepresented at appeal. What is more, the study also revealed that in a number of cases where funding had been reinstated and legal representation secured, the appeals had been successful, suggesting that asylum seekers are being refused funding not only where they meet the criteria for publicly funded representation but also for protection in the uk.118 In light of the above evidence, Refugee Action ran a similar ‘Access to Justice Project’119 (in Bristol, Manchester, Liverpool and London) to help asylum seekers refused funding to challenge that decision and, where successful, to find new legal representatives to work on the asylum appeal, while recording the number of asylum seekers wrongly refused legal aid. Refugee Action found that 64% of the asylum seekers that they helped had been wrongly refused legal representation, indicating that the misapplication of the merits test by legal representatives is a national rather than just a regional problem.120 It is believed that the findings from these projects are likely to reflect the situation in Wales. In 2005, retired barrister Roger Warren Evans established the Welsh charity Asylum Justice121 to address the problem created by the merits test. The organisation, run entirely by unpaid volunteers up until 2013, offers free legal advice, assistance and legal representation to asylum seekers abandoned by their representatives who have considered their claim ‘weak’ and have withdrawn public funding. Such decisions are challengeable to the Legal Aid Agency (previously the lsc) and Asylum Justice has assisted a number of individuals to appeal their legal representatives’ refusals. The success rate has 116 117 118 119

Adjudicator Guidance NOTE No 5 (n 30). Griffin (n 12) 9. Refugee Action (n 85). Ceri Hutton and Sue Lukes, ‘An interim external evaluation of Refugee Action’s Access to Justice Project’ (Refugee Action, October 2013) accessed 26 February 2014. 120 Ibid. 121 Registered with the Office of the Immigration Services Commissioner (oisc).

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been high and legal aid has been reinstated in the majority of cases. Unfortunately, the exact number is unknown, as records have not been kept due to limited resources. Nonetheless, the process of challenging refusals of funding has produced anecdotal evidence of inadequate reasons given by local legal representatives for withdrawing representation. Gross oversights have also been detected by volunteers where funding has been refused in cases involving particularly vulnerable individuals such as children, victims of trafficking and torture, and those suffering from mental health problems. Where decisions to refuse funding are overturned the next and more difficult hurdle is to try to find new legal representation and within the time constraints imposed by the tribunal. In light of the tight time limits to lodge an appeal and the difficulties in finding new legal representation, some legal representatives who have withdrawn funding will nonetheless lodge an appeal on behalf of the claimant on a pro bono basis before ceasing to act completely so that the claimant does not lose their right of appeal. This in itself recognises the difficulties that most asylum seekers face in trying to comply with appeal procedures without any assistance. Once the appeal has been lodged, the clock then starts to tick and the appellant has little time to try to challenge the refusal of legal aid and to find further legal representation before the appeal is listed. The tribunal is unlikely to grant an adjournment unless it can be shown that new legal representatives have been found or are likely to be found within a reasonable period of time. Moreover, without the benefit of legal representation, or the assistance of an organisation such as Asylum Justice, appellants are unlikely to have sufficient knowledge of the tribunal’s procedure to be able to apply for an adjournment on their own. After the appeal has been lodged and prior to the phr, the tribunal will also send the claimant what is known as a ‘Reply Notice’ requesting details such as whether they wish the matter to proceed to an oral hearing; whether they will require an interpreter; how many witnesses they intend to call; whether they intend to call an expert witness; what evidence they intend to serve, and so on. Even complying with this arguably simple procedural requirement without any assistance is likely to prove daunting and difficult for asylum seekers. Where funding is reinstated the previous legal representative who refused funding is unlikely to take the case again. As a consequence of the shortage of specialist representatives generally, due to cuts to legal aid in this area, new representatives, whose services are in high demand, may simply not have capacity to take on the case and prepare the appeal within the tight tribunal deadlines. Where the decision to refuse funding has not been challenged or unsuccessfully challenged, it is most unlikely that the appellant will be able to find a new representative as it may be assumed ‘that if you have failed the merit test once you

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will fail again’.122 Smart thus calls for ‘a review of the merits test and the required success rate, as these discourage solicitors from taking on cases, which, as the Asylum Appellate Project shows, have strong grounds for appeal’.123 It is also of interest to note that in several cases where Asylum Justice has unsuccessfully challenged the refusal of funding on behalf of the client, the ij has nonetheless allowed the appeal (in cases both represented by Asylum Justice and, more surprisingly, where the appellant was unrepresented). This clearly suggests a lack of consistency and an inherent unfairness within the system. The major problem with the merits test is that it requires legal representatives to take on the role of ‘actuaries, even judges: roles of which they neither approved nor envisaged as part of their professional life’.124 This places legal representatives in a difficult position, caught between acting in the best interests of their clients and carrying out the administrative task of vetting and identifying those considered deserving. As a consequence, it is not surprising that legal representatives have ‘bemoaned the fact that this process was asking them to prejudge cases rather than allowing them to be advocates of their clients’.125 In summary, it can be said that the merits test creates what Webber calls ‘borderline justice’, that is, ‘marginal justice, justice that constantly disappears and has to be fought for’.126

Why is the Provision of Publicly Funded Legal Representation Crucial?

Within the setting of an unnecessarily complicated legal regime and arbitrary, ‘dehumanizing bureaucracy’,127 exacerbated by political pressure and racist attitudes, legal aid lawyers play a vital role in offering their experience and expertise to help asylum seekers. As Refugee Action highlight, ‘[m]any applicants do not speak English as a first language, do not understand the Home office systems and do not know what is expected as reasoning behind or evidence included in an appeal’.128 There is also the issue that many claimants cannot 122 123 124 125 126 127 128

Smart (n 20) quoting Refugee Council in Yorkshire and Humberside. Smart (n 20). James and Killick, ‘Empathy and Expertise’ (n 71) 435. Ibid., 441. Webber, ‘Borderline Justice’ (n 10) 40. James and Killick, ‘Empathy and Expertise’ (n 71) 437. Refugee Action (n 84).

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afford to have crucial documents that substantiate their claim translated.129 For poorly educated claimants and claimants with learning difficulties the system proves impenetrable without the assistance of legal representation.130 Good lawyers131 can make a difference by helping their clients to present their accounts fully and effectively before the authorities. Through sustained contact between lawyers and their clients the facts of the case emerge and can then be presented in the prescribed form before the relevant decision-maker. Lawyers can also offer ‘kindness, commitment, and understanding’132 to their often isolated and vulnerable clients.133 Conversely, research by Trude and Gibb suggests that poor quality work may generate short-term savings but cost more in the longer term both to the public purse and in human terms to individual asylum applicants.134 Those denied the opportunity to convey their account fully and effectively due to the absence of representation, or from having inadequate representation, are at risk of being wrongly refouled in breach of the uk’s obligations under the Refugee Convention135 or face destitution on the streets of the uk as a failed asylum seeker.136 Once an asylum seeker has exhausted all their rights of appeal, they are expected to leave the uk and their entitlement to asylum support ceases. However, only few leave voluntarily and most are detained and removed forcibly from the uk137 a process that incurs an extremely high cost to 129 Ibid. 130 James and Killick, ‘Empathy and Expertise’ (n 71) 431. 131 See MacIntyre (n 100) whose research found that ‘good’ representation, from a client perspective is where the representative (i) offers ‘clear explanations’; (ii) has time to listen to clients; (iii) is on ‘on their side’; and (iv) not negligent and does not make mistakes. 132 James and Killick, ‘Empathy and Expertise’ (n 71) 437. 133 Ibid., 453. 134 Trude and Gibbs (n 98). 135 As the Countess of Mar reminds us, the asylum tribunal ‘is the only jurisdiction in the country that has the power of invoking the death penalty… You can also impose on people an awful prison sentence. Some of the conditions in the country that asylum seekers come from are appalling’ as quoted by MacIntyre (n 100) 188. 136 See Heaven Crawley, Joanne Hemmings and Neil Price, ‘Coping with Destitution: Survival and Livelihood Strategies of Refused Asylum Seekers Living in the uk’ (Oxfam Research Report, 2011) accessed 22 October 2013. 137 Scott Blinder, ‘Deportations, Removals and Voluntary Departures from the uk’ (The Migration Observatory, University of Oxford, 19 December 2012) accessed 7 March 2014.

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the public purse.138 Others, fearful of the persecution that awaits them in their home countries139 take their chances and remain in the uk clandestinely, facing hardship, homelessness and destitution.140 Such vulnerable individuals are at risk of abuse, exploitation141 and trafficking142 as well as deterioration in their health, including mental condition143 exacerbated by the uncertainty of their future and the ever-present fear of detention and deportation.144 Feelings of frustration, desperation and depression amongst asylum seekers have been directly linked to the experience of seeking asylum in the uk.145 Some have even been driven to commit suicide.146 As Burnett observes, ‘increasing numbers of people are being locked into a peripheral existence: vulnerable to exploitation and with little recourse to legal aid’147 in order to assist with a fresh claim for asylum. In the absence of any status, these individuals – who exist ‘below an underclass’ and ‘live a life of indefinite limbo that is largely invisible and often ignored’148 – try their best to subsist by working ‘without papers’ in ‘secretive and often dangerous conditions so as to raise the funds necessary for legal assistance – no matter what the costs’.149 MacIntyre has observed that the ‘agency that asylum claimants are denied by the complexity of the asylum determination process is taken up by representatives who play a powerful role in the course of many asylum claims’.150

138 Ibid., In 2005, the cost of forced removal – including detection and arrest, detention, obtaining travel documents, ‘dealing with further representations’, and the flights – was calculated per person at £11,000. 139 Hintjens (n 53) 81, describes how failed asylum seekers would rather stay and face the harsh conditions in the uk because they are ‘terrified…of being returned to persecution, violence, torture and possible death in their home countries’. 140 Crawley, Hemmings and Price (n 139). 141 See British Red Cross, ‘Not Gone, but Forgotten: The Urgent Need for a More Humane Asylum System’ (British Red Cross Report, June 2010). 142 See Hintjens (n 53). 143 See, for example, Khatidja Chantler, ‘Gender, Asylum Seekers and Mental Distress: Challenges for Mental Health Social Work’ (2011) British Journal of Social Work 1, highlighting, inter alia, the relationship between poverty and mental health in asylum cases. 144 Burnett (n 19). 145 Hintjens (n 53). 146 Ibid. 147 Burnett (n 19). 148 Burnett (n 19). 149 Ibid. 150 MacIntyre (n 100) 182.

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She argues, however, that, largely due to the prevalence of a ‘positivist paradigm’ in refugee law – that focuses on the ‘black letter’ of the law but fails to look at ‘how the law operates on the ground’151 – the instrumental role of legal representatives is ‘chronically under-acknowledged’.152 She considers this ‘particularly damaging and indefensible in light of the anecdotal acceptance of a high level of poor quality legal representation in the sector’.153 According to Ian Macdonald qc: There’s a culture within the legal profession whereby you speak about the deficiencies or laziness of colleagues in the robing room or in private with other colleagues, but you don’t go public. Specialist practitioners, who take over cases are often appalled at the way the case has been handled by the previous legal advisers, but usually say nothing…154 In light of the gap in the literature regarding legal representatives’ behaviour or theorisation regarding their role in the asylum determination process, further research regarding the agency of representatives within the asylum system is therefore needed, particularly in view of the compounded restrictions on public funding.155 Otherwise, ‘reports of poor advice will continue to be anecdotal and unsubstantiated and the problem will continue to be ignored’.156 It is important that asylum seekers have the benefit of quality legal representation from the outset. Research by James and Killick supports the general claim that quality representation, which involves a good relationship between advisors and their clients, is important in ‘securing fairer outcomes to initial requests for asylum, and ensuring that applicants – even failed ones – were more likely to accept these rather than initiating lengthy and costly appeal procedures’.157 Whether or not an appellant is represented at appeal is also significant. According to Thomas, ‘empirical research indicates that appellants benefit from representation’.158 He further comments how, in view of ‘the factual and 151 152 153 154

155 156 157 158

Ibid., 184. Ibid., 187. Ibid., 182. See Legal Action for Women with All African Women’s Group, Black Women’s Rape Action Project and Women Against Rape, A ‘Bleak House’ for Our Times – An Investigation Into Women’s Rights Violations at Yarl’s Wood Removal Centre (London, Crossroads Women’s Centre, 2005). MacIntyre (n 100) 185–186. Ibid., 182. James and Killick, ‘Empathy and Expertise’ (n 71) 452. Thomas, ‘Evaluating Tribunal Adjudication’ (n 1) 478.

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legal complexity of many appeals, the inability of many appellants to represent themselves, the seriousness of the outcome of appeals and, for many applicants, the lack of a privately funded option, such restrictions may adversely impact on the quality of the appeal process’.159 A good lawyer will also put a lot of time and effort into fully preparing an appeal. Such preparation includes ‘searching for the legal principles to do so, as well as (crucially) ensuring that the evidential basis is there, which means going through the facts thoroughly’.160 Webber highlights that part of a legal representative’s job ‘is to articulate the sense of unfairness that the decision embodies in language recognisable to a judge161 and observes that ‘judicial creativity generally rests on the work of the barristers whose arguments frame the courts’ judgements’.162 On the other hand, poorly prepared cases are likely to impact negatively upon the ij’s determination.163 It is argued that representation is crucial in light of the adversarial nature of asylum appeal hearings. Asylum appeals involve ‘an overwhelmingly factbased form of decision making’164 and lawyers are therefore needed to help appellants to overcome the ‘evidential hurdles’.165 The principle of equality of arms is undermined if legal representation is not available because it is unlikely that appellants will have the skills and resources to properly represent themselves. As stated by a former President of the tribunal: …it makes it more difficult to give proper consideration when you do not have the evidence put before you in the form that it ought to be put and our system does not enable us to act as the inquisitor, or at least not to any great extent…166 Perceptions of the fairness of the appeal proceedings are also important and the fact that appellants often appear unrepresented while the Home Office is represented, undermines the oft-quoted adage, ‘Not only must Justice be done; it must also be seen to be done’. 159 Ibid., 478. 160 Webber, ‘Borderline Justice’ (n 10) 47. 161 Ibid. 162 Ibid., 48. 163 Gill (n 59). 164 Thomas, ‘Consistency in Asylum Adjudication’ (n 68) 491. 165 Steve Symonds, ‘Legislative Comment: Legal Aid’ (2011) 25 jianl 212. 166 Oral Evidence to the Constitutional Affairs Committee, 21 March 2006, Q35 per Collins J. cited by Symonds, ‘Legislative Comment’ (n 168).

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Despite growing evidence, outlined above, that questions the fairness of asylum determinations in the uk, the protection of Article 6 of the echr, that is, the right to a fair hearing, does not currently extend to disputes concerning the lawfulness of immigration authorities’ decisions to refuse asylum.167 However, lack of legal representation caused by cuts to legal aid might, in some cases, amount to a violation of the eu Asylum Procedures Directive, or Article 13 of the echr (that guarantees a right to an effective remedy but must be raised in conjunction with another Convention article), or Article 47 of the eu Charter of Fundamental Rights168 (that also guarantees the right to an effective remedy but only in cases that are founded directly on eu law). Unfortunately a full discussion of these procedural protections are out-with the scope of this paper that focuses on the effects of cuts to legal aid in asylum cases in the uk. Conclusion The asylum determination process in the uk appears to currently operate in a counter-intuitive manner. Ill-thought-out policies to radically cut legal aid and churn out initial decisions in record time are proving unnecessarily costly, both in financial and human terms. In light of the highly subjective and discretionary nature of asylum decision-making and the significant role of legal representatives within the adversarial system, empirical research regarding the agency of decision makers and lawyers within the asylum determination process is needed. This will hopefully help us to understand how these actors might help to shape a system that produces fairer and more accurate outcomes. Although the immigration and asylum appeal system was originally intended to be ‘largely inquisitorial, and legal representation was not envisaged as necessary’169 the current appeal structure takes an adversarial form. In light of this fact, and in view of the complexity of the law that has developed in this area, the provision of quality, publicly funded legal representation is crucial. However, as it has been demonstrated, cuts to legal aid that limit access to legal representation for asylum claimants renders this system lame. In order to ensure that asylum seekers are guaranteed a fair appeal hearing, either a wellresourced inquisitorial model must be adopted (that allows Immigration Judges to commission experts to produce reports, where part or all of a claim is 167 See Maaouia v France (39,652/98) (2001) 33 ehrr 42 and MK (Iran) v SSHD [2010] ewca Civ 1115. 168 Charter of Fundamental Rights of the European Union, OJ C 364/1, 18 December 2000 (entry into force 1 December 2009). 169 Thomas, ‘Evaluating tribunal adjudication’ (n 1) 477.

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in dispute, and to have crucial documents translated) or free legal representation must be made available in every case. It is further posited that it would be valuable to build upon the Asylum Appellate Project to find whether a similar pattern regarding the gross misapplication of the merits test exists in Wales. It is anticipated that a Welsh study will confirm that a significant number of asylum seekers are being wrongly refused publicly funded representation at appeal stage, supporting the campaign for an urgent change in policy to abolish the merits test.170 The merits test is wrong in principle because it forces asylum lawyers to be complicit with a political agenda focused on protecting our borders at the cost of protecting those individuals who have sought refuge on our shores. 170 Note that the there is no equivalent merits test in Scotland.

Out-of-Country Voting: The Predicament of the Recognised Refugee Reuven (Ruvi) Ziegler* A Introduction The effective exercise of the right to vote ‘imposes an obligation upon the state not merely to refrain from interfering with the exercise of the right, but to take positive steps to ensure that it can be exercised’.1 The State’s positive2 obligations include, inter alia, the promulgation of election laws that regulate candidacy and the formation of political parties, facilitate registration and voting processes, and enable access to information regarding the ballot and the candidates. All states have non-citizen resident populations and, pertinently for this chapter, have non-resident citizens. States must first determine whether their non-resident citizens remain eligible voters; failing that, expatriates will have to exercise their (recognised) right to return to their state and reside there in order for their (dormant) voting rights to be re-established. However, if expatriates remain on the electoral roll, an effective exercise of their right to vote may depend on accessible out-of-country voting procedures (ocv).3 The analytically distinct questions of eligibility and accessibility are often conflated. Expatriates requiring access to ocv procedures may be (broadly) divided to three categories: first, voluntary migrants (migrant workers and their families); second, conflict forced migrants (persons displaced by conflict from their state of origin, whose access to ocv is appraised in this chapter in relation to transformative or post-conflict electoral processes taking place in their state of origin); third, recognised refugees (for the purposes of this chapter, persons recognised as refugees under the 1951 Convention Relating to the Status of Refugees who hold refugee status in a state of asylum whilst electoral processes are held in their state of origin).4 This chapter sheds light on the unique political predicament of recognised refugees qua expatriates. * Lecturer in Law, University of Reading School of Law ([email protected]). 1 Richter v Minister for Home Affairs and Others, 2009 (3) sa 615 (cc) (12 March 2009) [53]. 2 See generally R. O’Connell, ‘Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy’ (2010), 61(3) Northern Ireland Law Quarterly 263. 3 See R. Bauböck, ‘Towards a Political Theory of Migrant Transnationalism’ (2003), 37 International Migration Review 700, 714 (arguing that, since most states do not grant voting rights to non-citizen residents, the latter are deprived of any opportunity for democratic participation unless they can vote in elections of their states of citizenship). 4 28 July 1951, 189 unts 137, entered into force 22 April 1954 (1951 Convention). © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265585_014

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Section B demonstrates that neither the International Covenant on Civil and Political Rights (iccpr)5 nor regional treaties proscribe the imposition of residency requirements in addition to citizenship in order to determine voting eligibility. Nonetheless, most states consider their expatriates to be eligible voters. Whereas ocv procedures used to be rare,6 and eligible expatriates were expected to travel to the state to cast their ballot in person, today 115 States have in place ocv procedures.7 ‘Soft law’ instruments, most notably those of the Council of Europe, advocate an expansive approach both to eligibility and to accessibility, whereas judicial bodies are still reluctant to require Contracting States to include expatriates on their electoral rolls, or (when they do so) to facilitate full access to ocv procedures. Notably, signatory States to the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families8 legally undertake to enable their expatriates to vote in their states of employment. Section C addresses the accessibility of conflict forced migrants to ocv procedures. It is contended that such access is made available against the backdrop of either post-conflict transformation or peace-building. In such circumstances, elections often play a pivotal role in internationally sponsored agreements. Conflict forced migrants voting in these elections are seen either as being symbolically (re)admitted to the political community of their state of origin, or as actively participating in the (new) formation thereof. International organisations would offer their assistance and cooperation in order to secure the widest possible participation, and to enhance legitimacy and accountability. Indeed, the rationale underlying access of conflict forced migrants to ocv and facilitation of such procedures by states of asylum is an imminent or forthcoming repatriation of conflict forced migrants; oftentimes, the two processes take place in parallel. Section D considers the predicament of recognised refugees, noting that they may flee states that hold regular elections and have ocv procedures in 5 GA/Res/2200 (XXI), 16 December 1966, 999 unts 171, entered into force 23 March 1976. 6 P. Spiro, ‘Citizenship and Diaspora: A State Home for Transnational Politics?’ Available at: (noting that, historically ‘[t]he grant of political rights to those who have established residence outside the national territory is anomalous’). 7 Voting from Abroad: The International IDEA Handbook on External Voting (Institute for Democracy and Electoral Assistance, 2007), 1–3 (positing that ‘external voting’ has two main purposes: ensuring the realisation of political rights for citizens living outside their state, and increasing political participation and thereby building trust and confidence in electoral processes and the democratic governments they produce). 8 18 December 1990, 2220 unts 3, entered into force 1 July 2003 (Migrant Workers Convention).

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place.9 It is contended that, among expatriates, recognised refugees have a strong normative claim to remain eligible voters and to have access to ocv procedures.10 It is a constitutive element of their status that recognised refugees have left their State of origin involuntarily,11 and cannot or will not exercise their right to return and vote in person; hence, absent access to ocv, they are effectively disenfranchised. Importantly, recognised refugees are stakeholders in elections held in their state of origin; indeed, effective repatriation may depend on its results. Moreover, denying recognised refugees access to ocv procedures creates perverse incentives for regimes which may aim to achieve desirable political results by persecution or by failing to adequately offer recognised refugees protection from persecution by non-state actors.12 Nevertheless, it is asserted that access of recognised refugees to ocv poses unavoidable impediments over and above those facing voluntary expatriates and conflict forced migrants in post-conflict circumstances. Recognised refugees suffer alienage from the political community of their state of origin as a direct result of their well-founded fear of persecution; unlike conflict forced migrants participating in post-conflict or transformative electoral processes, their repatriation is neither imminent nor forthcoming. While international organisations may conduct ocv operations in the context of post-conflict or peace-building transitional elections, they are highly unlikely to offer such assistance to recognised refugees. Moreover, participation of recognised refugees in ocv processes requires formal engagement with authorities of their state of origin for the purposes of identification, registration and voting. If their well-founded fear of persecu­ tion results from actions of a persecutory regime, it would be manifestly unreasonable to expect recognised refugees to be willing to make such contact. 9 10

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B. Roberts, Guide to Forced Migration and Electoral Participation (Forced Migration Online, 2003), 16. Conflict forced migrants may not necessarily satisfy the criteria set in the 1951 Convention, and their arrival en masse often results in states of asylum being unable (or unwilling) to conduct Refugee Status Determination procedures. They may be granted ‘temporary protection’ status or a form of ‘subsidiary protection’. unhcr, Excom, Conclusion No. 62 (xli), Note on International Protection (5 October 1990) (noting ‘…(iii) the difference between refugees and persons seeking to migrate for economic and related reasons, and the need for any refugee policy to respect fundamental distinctions between the two categories of people, and be fully consonant with the principles particular to, and essential for, the protection of refugees including…non refoulement’). J. Grace, External and Absentee Voting in Challenging the Norms and Standards of Election Administration (ifes, 2007), 35, 39.

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Indeed, persecutory regimes may view ‘deflectors’ as criminals and disenfranchise them; states of asylum may, for ideological reasons, refuse to facilitate political engagement of recognised refugees with their persecutory regime on their territory.13 In contradistinction, where the recognised refugee’s fear of persecution stems from non-state actors, states of origin that are unable to provide their citizens with adequate protection from persecution may not necessarily be able to maintain functioning ocv processes. Furthermore, states of asylum may view political engagement between recognised refugees and officials of their state of origin as indicative of voluntary reavailment of that state’s protection, and initiate proceedings for cessation of refugee status; in turn, recognised refugees may be reluctant to engage with the diplomatic missions of their state of origin for fear of losing their status. Hence, despite having a prima facie strong normative claim to an effective right to vote from abroad, recognised refugees are likely to remain de facto disenfranchised. Consequently, their forced alienage from the political community of their state of origin entails that they cannot take part in its elections through ocv procedures nor exercise their right to return to that state. B

ocv of Voluntary Migrants

1 ocv and the International Covenant on Civil and Political Rights Article 25 of the International Covenant on Civil and Political Rights (iccpr) stipulates that ‘[e]very citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions…(2) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage’. In tandem, Article 12(4) of the iccpr pronounces that every person has a right to return ‘to his own country’14 and reside there. 13 Importantly, ocv takes place on the territory of the state of asylum; thus, it requires the acquiescence of that state. For a recent example regarding ocv in Canada of French expatriates, see ‘Returning Officers’, The Economist Online, 2 June 2012. Available at: . 14 The provision clearly applies to citizens, and potentially to other persons who have a strong attachment to the state. In General Comment No. 27: Freedom of movement (Article 12), CCPR/C/21, Rev. 1, Add 9 (2 November 1999), the Human Rights Committee notes that ‘[t]he right of a person to enter his or her own country recognizes the special relationship

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The Human Rights Committee notes that ‘the right provided for by Article 25 is not an absolute right and that restrictions of this right are allowed as long as they are not discriminatory or unreasonable’.15 Residency is not one of the prohibited grounds in Article 2 of the iccpr; hence, the question is whether residency may be considered a reasonable restriction on the exercise by an otherwise eligible citizen of her right to vote.16 State Parties undertake in Article 2(1) of the iccpr to respect and to ensure to all individuals within their territories and subject to their jurisdiction the rights recognised in this convention. The Human Rights Committee opined that the iccpr may apply extraterritorially to ‘anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’.17 Indeed, it may be argued that a purposive interpretation of the iccpr entails that, at least for the purposes of Article 25, expatriates are under effective control of their state.18 The Human Rights Committee notes

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18

of a person to that country’ and considers ‘that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’. The Committee emphasises that ‘[t]he right to return is of the utmost importance for refugees seeking voluntary repatriation’. Ibid. [19] and [21]. Communication 500/1992 Joszef Debreczeny v the Netherlands, [9.2]. According to the Human Rights Committee, the factors which should determine whether a particular residency requirement is reasonable are the nature and purpose of the election, and the effect on the concerned population; see Communication 932/2000 Gillot v France, [14.2] (holding that the imposition of lengthy prior residency requirements which effectively disenfranchised French settlers in the context of a referendum on autonomy for the pacific territory of New Caledonia was reasonable). Cf. the American Convention on Human Rights, 22 November 1969, Art 23(1): ‘[e]very citizen shall enjoy the following rights and opportunities: (b) to vote…in genuine periodic elections, which shall be by universal and equal suffrage…’; Art 23(2): ‘[t]he law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings’ (emphasis added). In contradistinction, Art 13 of the African Charter on Human and Peoples’ Rights (1982), 21 ilm 58 pronounces that: ‘[e]very citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law’ without explicit qualifications (emphases added). Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21, Rev. 1, Add 13 (29 March 2004) [10]. C. Carter, ‘The Right to Vote for Non-resident Citizens: Considered through the Example of East Timor’ (2011), 46 Texas International Law Journal 655, 657.

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that ‘[s]tates must take effective measures to ensure that all persons entitled to vote are able to exercise that right [to vote]’.19 Nevertheless, it implicitly acknowledges the legitimacy of residency requirements by maintaining that ‘when residency requirements apply…they must be reasonable…and should not be imposed in such a way as to exclude the homeless from the right to vote’ (emphasis added).20 It is plausible that the global trajectory towards facilitating ocv will lead the Human Rights Committee in future proceedings to scrutinise residency requirements more robustly. 2 ocv and the Council of Europe Institutions Article 3 of Protocol 1 of the European Convention on Human Rights (echr) proclaims that ‘[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of the legislature’.21 While the provision does not explicitly enunciate an individual right to vote, the European Commission on Human Rights held in Mathieu-Mohin22 that the provision entails a subjective ‘right to vote’ based on the concept of ‘universal suffrage’.23 It further held that, while the right to vote is not absolute, its 19 20

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22 23

General Comment No. 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Article 25), CCPR/C/21, Rev. 1, Add 7 (12 July 1996) [3]. Ibid. [11]. The latter point may be significant in the context of recognised refugees. See also Inter-Parliamentary Union, Declaration on Criteria for Free and Fair Elections, adopted unanimously by the Inter-Parliamentary Council in its 154th session, Paris, 26 March 1994, Art 2(1): ‘[e]very adult citizen has the right to vote in elections on a non-discriminatory basis’; Art 2(3): ‘[n]o eligible citizen shall be denied the right to vote or disqualified from registration as a voter, otherwise than in accordance with objectively verifiable criteria prescribed by law, and provided that such measures are consistent with the State’s obligations under international law’; and Art 2(5): ‘[e]very voter has the right to equal and effective access to a polling station in order to exercise his or her right to vote’. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, ets No. 005; Protocol I, Enforcement of certain Rights and Freedoms not included in Section I of the Convention, Paris, 20 March 1952, ets No. 009. App. No. 9267/81 Mathieu-Mohin and Clerfayt v Belgium (2 March 1987) [54]. Ibid. [51]. See also G.S. Goodwin-Gill, Free and Fair Elections (Inter-Parliamentary Union, 2006), 103–104. The ECtHR has recently subjected eligibility-restricting measures to heightened scrutiny. See e.g. App. No. 33802/06 Kiss v Hungary (Second Section Chamber) (20 May 2010) (holding that a provision in the Hungarian Constitution disenfranchising persons under the partial guardianship of another due to their mental incapacity is in contravention of Article 3 of Protocol I. The ECtHR emphasised that, where a provision disenfranchises ‘a particularly vulnerable group in society’, the ‘margin of appreciation’ must be considered narrower and the state must offer very weighty reasons for its decisions).

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exercise should not be curtailed to such an extent as to impair its ‘very essence’ and deprive it of its effectiveness.24 ocv features highly on the agenda of the Council of Europe. Its Committee of Ministers adopted a recommendation stipulating that the right to vote is an essential part of the democratic process, and that every European expatriate should be entitled to fully exercise it.25 The Parliamentary Assembly of the Council of Europe (pace) adopted a series of ‘soft law’ instruments concerning access to ocv. Its 2004 recommendation entitled Links between Europeans Living Abroad and their Countries of Origin pronounced that expatriates should have ‘the right to vote…in embassies and consulates in the host states’ while maintaining their ‘right of return’, and called on signatories to ‘take account of their expatriates’ interest in policy making, in particular concerning questions of […] political rights, including voting rights’.26 The explanatory memorandum emphasised that ‘[t]he right to vote may be regarded as the principal attribute of citizenship and its exercise as the very basis of democracy’, and that ‘[m]ember States [should] allow their expatriates to vote by post, in person at their consulates, or by proxy’.27 In its 2005 resolution entitled Abolition of Restrictions on the Right to Vote, pace urged states to ‘allow citizens living abroad to participate to the fullest extent possible in the electoral process’, inter alia, by ‘grant[ing] electoral rights to all their citizens (nationals) without imposing residency requirements’.28

Note also recent case-law concerning prisoner voting: App. No. 126/05 Scoppola (No. 3) v Italy (gc) (22 May 2012); App. No. 20201/04 Frodl v Austria (First Section Chamber) (8 April 2010); App. No. 74025/01 Hirst (No. 2) v uk (Fourth Section Chamber) (30 March 2004); (gc) (6 October 2005). For analysis of prisoner voting jurisprudence, see R. Ziegler, ‘Legal Outlier, Again? u.s. Felon Suffrage: Comparative and International Human Rights Perspectives’ (2011), 29(2) Boston University International Law Journal 197, 222–234. 24 Mathieu-Mohin (n 22) [54] and [56]. 25 Recommendation R(86), The Exercise in the State of Residence by Nationals of other Member States of the Right to Vote in the Elections of the State of Origin (21 March 1986). Notably, the Council of Europe is advocating ocv of non-resident citizens and enfranchisement of non-citizen residents; Convention on the Participation of Foreigners in Public Life at Local Level, Strasbourg, 5 February 1992, cets No. 144. 26 Recommendation No. 1650 (2004) §5.v.d.iv, [6] and [9.1.c] respectively. The Parliamentary Assembly notes that ‘it is in states’ interest that their nationals should continue to exercise their nationality consciously and actively’ and that ‘nationals can play an important go-between role in host countries, working for better political, cultural, linguistic, economic, financial and commercial relations between their countries of origin and the countries where they live’. Ibid. [3]. 27 Ibid., Explanatory Memorandum §4.3.1 [36]. 28 Resolution No. 1459 (2005) [7] and [11(b)]. See also Recommendation No. 1714 (2005) [1.ii].

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As the analysis below demonstrates, the European Court of Human Rights (ECtHR) has been more cautious, generally refraining from proscribing residency eligibility requirements and (absent such requirements) from requiring states to ensure effective access to ocv procedures. In a case concerning eligibility, the Fourth Section Chamber rejected a challenge to Lichtenstein’s legislation stipulating that only Liechtenstein nationals who ordinarily reside (ordentlicher Wohnsitz) in Liechtenstein one month before the date of elections or referenda are entitled to vote therein.29 The judgment offered four rationales for justifying residency requirements: first, a non-resident citizen is less directly or less continually concerned with his state’s day-to-day problems and has less knowledge of them. Second, it is impracticable for parliamentary candidates to present electoral issues to citizens abroad; moreover, non-resident citizens have no influence on the selection of candidates or on the formulation of their electoral programmes. Third, there is a close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected. Fourth, the legislature may legitimately wish to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the state.30 Critically, the judgment emphasised that Mr Hilbe (residing in Switzerland) retains an unqualified right to return to Lichtenstein; should he choose to exercise this right, his right to vote would be restored.31 An (effective) right of return was thus considered to be a justification for ineligibility of expatriates. In contradistinction, the Second Section Chamber upheld a challenge to a residency requirement for candidacy in the Ukraine, holding that, since Ukrainian law did not distinguish between ‘legal’ and ‘habitual’ residence, the fact that the applicant’s internal passport (Propsika) indicated that he retained legal residence satisfied the registration requirements.32 The ‘technical’ nature 29

App. No. 31981/96 Hilbe v Liechtenstein (gc) (7 September 1999) (in French). Cf. Court of Justice of the European Union judgment concerning the exclusion of Dutch nationals residing in Dutch overseas territories from participation in elections for the European Parliament (C-300/04 Eman v College van burgeneester en wethounders van Den Haag [2006] ecr I-08055). The Court applied similar reasoning in upholding the reasonableness of residency requirements. For discussion, see generally P. Stasinopolous, ‘eu Citizenship as a Battle of the Concepts: Travailleur v Citoyen’ (2011), 4(2) European Journal of Legal Studies 74. 30 Hilbe (n 29) (p. 3 of the English translation). 31 Ibid. 32 App. No. 17707/02 Melnychenko v Ukraine (Second Section Chamber) (30 March 2005) [61]. Cf. Judge Loucaides (dissenting), maintaining that reliance on the applicant’s

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of the judgment was reified by the Chamber’s reiteration that residency ‘was not an unreasonable or arbitrary requirement per se’.33 The Chamber emphasised that ‘stricter requirements may be imposed on the eligibility to stand for election to parliament as distinguished from voting eligibility’ as it would ‘enable [candidates] to acquire sufficient knowledge of the issues associated with the national parliament’s tasks’.34 However, the Chamber noted that ‘he [the applicant] was in a difficult position: if he had stayed in Ukraine, his personal safety or physical integrity might have been seriously endangered, rendering the exercise of any political rights impossible, whereas, in leaving the state, he was prevented from exercising such rights’.35 Hence, the fact that applicant has been granted refugee status in the United States was instrumental: Melnychenko may have been decided differently had the applicant been a voluntary migrant rather than a recognised refugee. In recent years, uk legislation disenfranchising non-resident citizens absent from the uk for more than fifteen years withstood two echr-based challenges.36 In 2007, the Fourth Section Chamber held in Doyle that ‘over such a time period, the applicant may reasonably be regarded as having weakened the link between himself and the uk and he cannot argue that he is affected by the acts of political institutions to the same extent as resident citizens’.37 The Chamber emphasised that if ‘he [the applicant] returns to live in the uk, his eligibility to vote as a British citizen will revive’.38 ‘undisputed actual residence rather than on the formal registration of such residence… cannot be considered an arbitrary or even a wrong decision’ (emphases in original). 33 Ibid. 34 Ibid. [56–57]. 35 Ibid. [65]. See also the analysis in Section D infra. 36 Representation of the People Act 1985 s1, c.50 [uk]. 37 App. No. 30158/06 Doyle v uk (Fourth Section Chamber) (6 February 2007). 38 Ibid. Cf. the High Court judgment in Preston v Wandsworth Borough Council [2011] ewhc 3174 [39–42] (rejecting a claim that the uk legislation serves as a deterrent for British citizens qua eu nationals wishing to exercise their eu right to freedom of movement. The High Court held that, while the right to vote is a fundamental uk constitutional right and the claimant is aggrieved by its removal, the uk government was entitled to hold that there is a legitimate objective which the rule is designed to achieve, namely to remove the right to vote from those whose links with the uk have diminished and who are not, for the most part at least, directly affected by the laws passed in the uk. According to the judgment, there is no evidence to suggest that the rule creates a barrier of any kind to freedom of movement. The judgment was upheld by the Court of Appeal in R (on the application of Preston) v Lord President of the Council, [2012] ewca Civ 1378.

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In May 2013, the Fourth Section Chamber rejected in Shindler39 a further challenge to the legislation. The applicant, Mr Shindler a Second World War veteran living in Italy with his Italian wife, argued that the rationales that were outlined in Hilbe (and cited approvingly in Doyle) are archaic: modern technology enables non-resident citizens to keep in contact with their state of origin, and it is entirely possible for a person living in Italy to be as informed as a person living in London on the day-to-day problems of the uk and to follow a general elections campaign.40 Mr Shindler submitted that the fact that he is entitled to repatriate at any time indicates that his interests are directly affected, inter alia, by National Health Service reforms, pensions, banking regulations, and taxation. The court observed that only three member states of the Council of Europe disenfranchise most of their expatriates, with limited exceptions for diplomats, servicemen and the like; nine member states, including the uk, apply divergent tests to disqualify expatriates whose residence abroad is not deemed to be temporary; whereas in thirty-five member states, all expatriates retain their voting rights regardless of the length of their period of absence.41 Furthermore, the Chamber noted that ‘non-judicial bodies of the Council of Europe […] had demonstrated a growing awareness at European level of the problems posed by migration in terms of political participation in countries of origin and residence’.42 Nonetheless, the Chamber concluded that ‘the legislative trends are not sufficient to establish the existence of any common European approach concerning voting rights of non-residents’; hence, ‘the margin of appreciation enjoyed by the State […] still remains a wide one’.43 The claim that the Hilbe rationales are archaic was not fully addressed. Council of Europe jurisprudence regarding restrictive access to ocv procedures of otherwise eligible voters dates back to 1979, when the European Commission on Human Rights rejected a challenge to uk legislation applicable at that time restricting access to ocv procedures to uk servicemen and diplomats. The Commission reasoned that servicemen and diplomats are distinguishable from other expatriates in that they ‘are not living abroad voluntarily but have been sent to a state other than their own by their government in the performance of services to be rendered their country’. The Commission 39 40 41 42 43

App. No. 19480/09 Shindler v uk (7 May 2013). pp. 4–5 to the applicant’s submission (draft with author). Shindler (n 39) [73–75]. Ibid. [114]. Ibid. [115].

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also noted that, regarding these populations, ‘there is […] no risk of electoral fraud in their use of postal votes’.44 In 2010, the First Section Chamber upheld a legal challenge mounted by Council of Europe employees, Greek nationals residing in Strasbourg, who were denied access to ocv procedures.45 Article 51(4) of the 1975 Greek Constitution stipulates that ‘[t]he conditions for the exercise of the right to vote by persons living outside the country may be specified by statute adopted by a majority of two thirds of the total number of Members of Parliament’. The applicants argued that, absent legislative regulation setting up ocv procedures in Greek Embassies and Consulates, they were effectively unable to vote in Greek parliamentary elections. The Chamber held (by a 5–2 majority, Judges Vajic and Flogaitis dissenting) that, whilst the applicants could have returned to Greece in order to vote, a de facto obligation to travel is expensive and disturbs professional and family life; hence, the lack of legislative implementation in respect of ocv constitutes unfair treatment of Greek citizens living abroad, particularly of ‘expatriates who, due to their financial circumstances or the fact that their place of residence is even further away, are de facto deprived of the opportunity to exercise their right to vote’.46 The Chamber emphasised, per Melnychenko, that restrictions on the exercise of voting rights should be subject to greater scrutiny than restrictions on the right to stand for election; hence, Contracting States should enjoy a narrower ‘margin of appreciation’. Drawing on Council of Europe resolutions and recommendations, as well as on legislative developments in other member states, the Chamber held that ‘Greece clearly falls short of the common denominator […] as regards the effective exercise of voting rights by expatriates’.47 In March 2012, the Grand Chamber unanimously reversed.48 In line with its tendency to accord States a wide margin of appreciation in electoral matters, it maintained that ‘bright line’ rules are inevitable even if they may not do justice to particular applicants.49 According to the Grand Chamber, Contracting States are not under an obligation to enable citizens living abroad to exercise their right to vote, nor is there a European consensus of which Greece supposedly falls short.50 44 45 46 47 48 49 50

App. No. 7730/76 X v uk (28 February 1979), European Commission of Human Rights Decisions and Reports 15, p. 137. App. No. 42202/07 Sitaropoulos v Greece (First Section Chamber) (8 July 2010). Ibid. [43]. Ibid. [46]. App. No. 42202/07 Sitaropolous v Greece (Grand Chamber) (15 March 2012). Ibid. [68–69]. Ibid. [75].

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The court held that, while traveling to Greece in order to exercise one’s right to vote disrupts one’s financial, family and professional lives, such disruption is not ‘disproportionate to the point of impairing the very essence of the voting rights in question’.51 This section demonstrated that the questions whether voluntary migrants should retain their right to vote in their state of nationality and, if so, whether they should have access to ocv procedures increasingly receive political and jurisprudential attention. It is contended that, while the jurisprudence is far from uniform, four assumptions underlie all judgments involving voluntary migrants: first, states of origin can establish effective ocv procedures if they so wish. Second, in order to vote from abroad, voluntary migrants are able to engage with diplomatic services of their states of origin if they so wish. Third, the states where voluntary migrants reside generally tolerate such political foreign engagements on their territory. Fourth, voluntary migrants can return to their state to vote in person, though it may cause disruption to their work and family life. It is asserted in Section D that none of these conditions are likely to be satisfied in the case of recognised refugees. 3 ocv and the Migrant Workers Convention: A Treaty Obligation The Migrant Workers Convention concerns migrant workers and their families; refugees are explicitly excluded from its remit.52 The treaty imposes obligations both on states of employment (defined as states ‘where the migrant worker is to be engaged, is engaged or has been engaged in a remunerated activity, as the case may be’) and on sending states (defined as states ‘of which 51

52

Ibid. [80]. Cf. the South African Constitutional Court judgment in Richter (n 1), quashing domestic legislation listing professions and post-holders that may enjoy access to ocv procedures, to the exclusion of others, including the applicant (a teacher working in the United States). The Court held that ‘a voter may not complain if the burden imposed does not prevent the voter from voting, as long as the voter takes reasonable steps to do so. Ibid. [56]. However, ‘[while] [i]t is acceptable to ask voters to travel some distances from their homes to a polling station…[i]t cannot be said…that requiring a voter to travel thousands of kilometres across the globe to be in their voting district on voting day is exacting reasonable compliance from a voter’. Ibid. [68]. The Court further observed that expatriate voting ‘is an expression both of…continued commitment to…[the] country and…civicmindedness from which…democracy will benefit. Ibid. [69]. Migrant Workers Convention, Art 3(d). A ‘migrant worker’ is defined in Art 2(1) as ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national’. Notably, the Convention steers clear of questions of migration control (Art 79: ‘Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families’).

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the person concerned is a national’).53 Thus, the treaty aims to protect rights of migrants qua non-citizen residents as well as their rights qua expatriates of their sending states.54 By contrast, in view of the political predicament of recognised refugees, the 1951 Convention imposes obligations only on the state of asylum. The Migrant Workers Convention imposes obligations on sending states regarding voting rights of migrant workers and the families. According to Article 41(1), ‘[m]igrant workers and members of their families shall have the right to participate in public affairs of their State of origin and to vote…at elections of that State, in accordance with its legislation’ (emphases added). In order to regulate acts taking place outside the state’s territory, the acquiescence of the territorial state is required; hence, ocv procedures are subject to limitations imposed by host states.55 In recognition of this norm, Article 41(2) of the Migrant Workers Convention pronounces that states of employment ‘shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights’. Notably, alongside the obligations regarding voting rights of migrants in elections of their states of origin, Article 42(3) of the Migrant Workers Convention stipulates that ‘[m]igrant workers may enjoy political rights in the State of employment if that State, in the exercise of its sovereignty, grants them such rights’ (emphasis added). Hence, while the Migrant Workers Convention, like the Council of Europe, considers ocv of non-resident citizens and enfranchisement of non-citizen residents as conceptually compatible, it attaches a legal obligation only to the former. The Committee on Migrant Workers (the treaty’s monitoring body) receives reports concerning fulfilment of convention obligations.56 The Committee has commended Mali, noting ‘with satisfaction that many expatriate Malians have the opportunity to participate in certain countries’.57 Similarly, it commended Mexico, which established ocv processes in 2005, as well as Azerbaijan, BiH, 53 54

55 56 57

Ibid. Art 6. Similarly to the 1951 Convention, the Migrant Workers Convention distinguishes between rights granted to all migrant workers and members of their families regardless of legal status (enumerated in Part III) and ‘[o]ther rights of migrant workers and members of their families who are documented or in a regular situation’ (enumerated in Part IV) which such persons shall enjoy in addition to the rights set forth in Part III. C. Navarro, ‘The Political Rights of Migrant Workers and External Voting’ in Voting from Abroad (n 7), 178. The individual complaints mechanism requires ten accessions; so far, only two states have acceded to it. CMW/C/MLI/CO/1 of 31 May 2006.

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Colombia, Ecuador, The Philippines, and Senegal.58 By contrast, the Committee expressed concern that no arrangements were established by Albania, Algeria, Bolivia, Chile, Egypt, El Salvador, Guatemala, Paraguay, and Sri Lanka.59 Two states, Azerbaijan and Paraguay, indicated in their reports that they entitle non-citizen residents to vote in local elections, in accordance with the recommendation in Article 42(3).60 Article 8(2) of the Migrant Workers Convention further affirms the statecitizen bond by enunciating the right of migrant workers and members of their families ‘at any time to enter and remain in their state of origin’.61 Hence, similarly to Article 12(4) of the iccpr, the underlying assumption is that voluntary migrants retain their bond of citizenship with their state of origin whilst residing abroad, reflected in their right to return to that state at will, in the availability of protection abroad, and in the dual commitment on the part of the sending state and of the state of employment to facilitate access to ocv procedures. C

ocv of Conflict Forced Migrants

Conflicts oftentimes cause displacement.62 Settlements of conflicts may include elections and, occasionally, the establishment of representative 58

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CMW/C/MEX/1 of 18 November 2005 (Mexico); CMW/C/AZE/CO/1 of 19 May 2009 (Azerbaijan); CMW/C/BIH/CO/1 of 3 June 2009 (BiH); CMW/C/COL/CO/1 of 22 May 2009 (Colombia); CMW/C/ECU/2 of 26 January 2010 (Ecuador); CMW/C/PHL/CO/1 of 22 May 2009 (The Philippines); CMW/C/SEN/1 of 4 January 2010 (Senegal). CMW/C/ALB/CO/1 of 22 February 2010 (Albania); CMW/C/DZA/1 of 22 June 2008 (Algeria); CMW/C/BOL/CO/1 of 29 April 2008 (Bolivia); CMW/C/CHL/CO/1 of 19 October 2011 (Chile); CMW/C/EGY/CO/1 of 25 May 2007 (Egypt); CMW/C/SLV/CO/1 of 4 February 2009 (El Salvador); CMW/C/GTM/CO/1 of 18 October 2011 (Guatemala); CMW/C/PRY/1 of 23 February 2011 (Paraguay); CMW/C/LKA/CO/1 of 19 October 2009 (Sri Lanka). CMW/C/AZE/CO/1 of 19 May 2009 (Azerbaijan); CMW/C/PRY/1 of 23 February 2011 (Paraguay). Nonetheless, the Migrant Workers Convention has only 45 signatories. As most of the duties are imposed on states of employment, State Parties tend to be sending states such as Mexico and the Philippines, which consider the treaty as a vehicle to protect their citizens working abroad; states of employment are noticeably absent. Moreover, at present, the only European State Party is Bosnia and Herzegovina. See S. Vucetic, ‘Democracies and International Human Rights: Why is there no Place for Migrant Workers?’ (2007), 11(4) International Journal of Human Rights 403, 418 (analysing the Travaux, Vcuetic suggests that the Migrant Workers Convention was largely drafted by developing states for developing states). Grace defines a ‘conflict forced migrant as any person displaced from their home community due to a deteriorating security or human rights situation generally as a consequence

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institutions as part of a transition to democracy as a key component of durable peace-building.63 Transitional elections in which conflict forced migrants are effectively disenfranchised may be considered deficient; by contrast, participation of conflict forced migrants enhances the legitimacy of the outcomes of negotiations and of election results, and increases the commitment of conflict forced migrants to the peace-building process. Elections may help reunite a conflict-torn society around common institutions.64 The involvement of conflict forced migrants in post-conflict elections has arguably played an important role in the peace-building process in cases as diverse as Angola, Bosnia-Herzegovina, Cambodia, Guatemala, Mozambique, and Nagorno-Karabakh, by providing direct opportunity for conflict victims to participate in the selection of their post-conflict leadership.65 Indeed, diaspora members have participated in peace-building commissions and in other forms of post-conflict political activity: for instance, the Iraqi diaspora has recently played a prominent role in post-invasion governance.66 Recognition of a claim to effective citizenship, and consequent inclusion of conflict forced migrants in formal political activities such as elections or referenda, serve as powerful symbols of their (re)admission to the political community as equal citizens.67 The underlying assumptions behind electoral processes taking place in such circumstances are either that the conflict has ended or that it is likely to be resolved soon and, consequently, that repatriation is either imminent or forthcoming. unhcr notes that ‘conflict settlements often include the holding of national elections, and refugees [conflict forced migrants, in this chapter’s analysis − the author] may be expected to repatriate according to a certain schedule in order to vote’.68 Repatriation arguably plays an important part in validating the 63 64

65 66

67 68

of violence; notably, this is a far broader definition than that of a recognised refugee. J. Grace, Enfranchising Conflict Forced Migrants (iom, 2003), 5. J. Grace, The Electoral Rights of Conflict Forced Migrants: A Review of Relevant Legal Norms and Instruments (iom, 2003), 3. The Electoral Knowledge Network, Voting from Abroad, available at: . See also Voting from Abroad (n 7), 18–19. J. Milner, Refugees and the Peace-Building Process (unhcr, 2011), 5–6. K. Long, Voting with Their Feet: A Review of Refugee Participation and the Role of unhcr in Country of Origin Elections and other Political Processes (unhcr, 2010), 47. Cf. ‘Expats vote start Egypt’s Presidential race’, 20 May 2012, available at: . Long (n 66), 13. Handbook on Voluntary Repatriation (unhcr, 1996), 66.

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post-conflict political order. When conflict forced migrants voluntarily go back to their homeland, they are quite literally ‘voting with their feet’ and expressing confidence in the future of their state; enabling conflict forced migrants to repatriate and express their political preference is arguably inherent in the concept of a free, fair and democratic election.69 The logic of repatriation and (re)enfranchisement guides the interpretation of Article 5(c) of the Convention on the Elimination of All Forms of Racial Discrimination.70 Signatories must guarantee the enjoyment of ‘political rights, in particular the right to participate in elections, to vote […] on the basis of universal and equal suffrage’, while Article 5(d)(ii) guarantees everyone ‘[t]he right to leave any country, including one’s own, and to return to one’s country’ (emphases added). The Committee on the Elimination of Racial Discrimination emphasised that ‘(a) all such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety’,71 and ‘[…] after the return to their homes of origin, the right to participate fully and equally in public affairs at all levels…’.72 Annex 7 of the Dayton agreement concerning the future of Bosnia and Herzegovina is illustrative of the approach to the significance of ensuring participation of conflict forced migrants in post-conflict electoral processes.73 The agreement stipulated that ‘[a]ll refugees and displaced persons have the right freely to return to their homes of origin’ and that ‘the parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries’.74 The agreement established that ‘the parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution or discrimination’.75 Crucially, the Dayton agreement pronounced that ‘[t]he exercise of a refugee’s right to vote shall be interpreted as confirmation of his or her intention to return to Bosnia and Herzegovina’ and that ‘by Election Day, the return of 69 70 71

72 73 74 75

The State of the World’s Refugees: A Humanitarian Agenda (unhcr, 1997), ch. 4. 21 December 1965, 660 unts 195, entered into force 4 January 1969. cerd Committee, General Recommendation No. 22, Article 5 and Refugees and Displaced Persons, Forty-Ninth session, un Doc A/51/18, annex VIII at 126 (1996) [2]. The recommendation recalls ‘the 1951 Convention and the 1967 Protocol relating to the Status of Refugees as the main sources of the international system for the protection of refugees in general’. Ibid. [2(a)] and [(d)] respectively. General Framework Agreement for Peace in Bosnia and Herzegovina, Agreement on Refugees and Displaced Persons, signed on 14 December 1995. Ibid. [1]. Ibid. [2].

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refugees should already be underway, thus allowing many to participate in person in elections in Bosnia and Herzegovina’.76 Had displaced persons been excluded from the democratic processes, the legitimacy of these processes would have been seriously compromised. There have been instances in which the linkage between elections and repatriation had arguably led states of asylum to withdraw their protection prematurely while effective repatriation was impeded by local resistance.77 Indeed, host states eager to see conflict forced migrants depart may attempt to bring asylum to an imminent end following participation in post-conflict elections.78 For instance, in the 1997 Liberian elections, Guinea refused re-entry to Liberians who had returned to Liberia to vote, even though international agencies argued that repatriation was unsafe.79 Furthermore, host states may prefer to see immediate repatriation of conflict forced migrants rather than allow ocv on their territory.80 They may be concerned about jeopardising their security, stability and sovereignty by allowing political party campaigning, voter education, and voter registration to take place on their soil. Thus, the international community may have to ‘persuade’ host states that participation of conflict forced migrants in elections will expedite their repatriation. An Organisation for Security and Cooperation in Europe conference convened in 1999 resolved ‘to secure the full right of persons belonging to minorities to vote and to facilitate the right of refugees to participate in elections in their countries of origin’.81 It may be argued that effective ocv of conflict forced migrants sometimes requires international support, inter alia, through provision of funding, administrative assistance in issuance of documentation, registration, distribution of election material, monitoring and verification. The International Organisation for Migration (iom) has conducted several 76 77 78 79

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Ibid., annex 3: Agreement on Elections, art iv (Eligibility) [1]. L. Prather and E.S. Herron, ‘Enfranchising Displaced Voters: Lessons from BosniaHerzegovina’ (2007), 6(4) Election Law Journal 354, 357. J. Grace and E. Mooney, ‘Peacebuilding through the Electoral Participation of Displaced Populations’ 28(1) (2009) Refugee Survey Quarterly 95, 102. B. Lacy, Building Accountability, Legitimacy and Peace: Refugees, Internally Displaces Persons, and the Right to Political Participation (International Foundation for Electoral Systems, 2004), 4. Host States refused to allow electoral activities of Liberia and Cambodia on their territories thereby compelling repatriation of Liberians and Cambodians wishing to vote in their states’ elections. D. Gallagher and A. Schowengerdt, ‘Participation of Refugees in Postconflict Elections’ in K. Kumar (ed), Postconflict Elections, Democratization, and International Assistance (Lynne Reinner Publishers, 1998), 199, 208–209. Istanbul Summit Declaration, 18–19 November 1999 [26].

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large-scale ocv operations in transitional elections.82 For conflict forced migrants, involvement of the international community creates a secure and sustaining environment auspicious to electoral participation. It may be concluded that, in contradistinction from voluntary expatriates, effective participation of conflict forced migrants in ocv is likely to occur in a post-conflict or transformative contexts, with international assistance, and with a view to forthcoming repatriation, notwithstanding the challenges relating to premature termination of protection. D

ocv of Recognised Refugees

1 Introduction The well-founded fear of persecution that the international community recognises as a basis for recognised refugee status is a symptom of a more fundamental political rupture between the refugee and her state of origin,83 leaving 82 The iom led ocv processes in the 1999 elections in Bosnia and Herzegovina through the ‘Refugee Elections Steering Group’ set up following the signing of a Memorandum of Understanding between the iom and the Organisation for Security and Cooperation in Europe. iom offices in 17 States registered 630,000 voters of whom 394,000 cast their ballots. The iom provided similar assistance following the 1999 East Timor tripartite agreement (Indonesia, Portugal, and the United Nations). In 2000–2001, the iom operated the ‘Out of Kosovo Voting Programme’ registering nearly 300,000 Kosovars. The iom was also responsible for ocv of 846,000 Afghani refugees residing in Pakistan and Iran in the 2004 elections in Afghanistan; a Memorandum of Understanding was signed with the respective governments. In 2005, the iom assisted the Independent Electoral Commission of Iraq in registering and administering elections for the 2005 Transitional National Assembly in 14 states, registering 279,000, of whom 265,000 voted (the information is available on the iom website: ). Note also that, in August 2013 unhcr assisted the participation in Mali’s presidential elections of Malians displaced in Senegal. 83 Cf. A. Shacknove, ‘Who Is a Refugee?’ (1985), 95 Ethics 274, 277 (arguing that persecution is a sufficient but not a necessary condition for the severing of the normal social bond; persecution is one manifestation of a broader phenomenon: the absence of protection of the citizen’s basic needs, which constitutes the full and complete negation of society and the basis of refugee-hood). Shacknove asserts that ‘under normal conditions, protection appends to the citizen following him into foreign jurisdictions. For the refugee, protection of basic needs is absent, even at home’ and suggests that ‘refugee status should only be granted to persons whose government fails to protect their basic needs, who have no remaining recourse other than to seek international restitution of these needs, and who are so situated that international assistance is possible’. Ibid. 284.

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a recognised refugee without protection abroad84 and without access to a political forum.85 Hathaway suggests that a recognised refugee is ‘by definition a person who no longer enjoys the assumed bond between citizens and the state’.86 Because recognised refugees receive a form of substitute protection, international refugee law excludes those who enjoy the basic entitlements of citizenship in a national community.87 Recognised refugees may be described as persons in respect of whom ‘the web of rights and obligations which links the citizen to her state has broken down’.88 It is asserted that ocv procedures require a cumulative tri-partite effort on part of the recognised refugee, the state of origin, and the state of asylum. The unique predicament of recognised refugees dictates that, notwithstanding normative commonalities with conflict forced migrants, recognised refugees are unlikely to enjoy effective access to ocv. The underlying assumption behind participation of conflict forced migrants in post-conflict or transformative electoral processes is that a fundamental change in circumstances in their state of origin has occurred, and that their repatriation thereto is imminent or forthcoming. In contradistinction, accessibility of recognised refugees to ocv processes is appraised absent such developments in their state of origin. Hence, it is presumed that their well-founded fear of persecution on a 1951 convention ground in their state of origin, which inhibits them from availing themselves of the protection of that state, has not subsided. This distinction has profound implications for the viability of recognised refugees’ access to ocv. Normative Commonalities between Recognised Refugees and Conflict Forced Migrants in Post-conflict Elections Situations Section B considered jurisprudence challenging preferential access to voting from abroad granted to non-resident citizens serving as military personnel and diplomats. The justification for these practices lies in the claim (and presumption) that, unlike voluntary migrants, they are sent abroad by their

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Cf. R. Ziegler, ‘Protecting Recognised Geneva Convention Refugee Outside their Countries of Asylum’ (2013), 25(2) International Journal of Refugee Law 235. Cf. R. Ziegler, Voting Rights of Geneva Convention Refugees in Elections of their Countries of Asylum (draft with author). J.C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005), 210. J.C. Hathaway, The Law of Refugee Status (Butterworth, 1991), 135. The State of the World’s Refugees (n 69), ch. 1: Safeguarding Human Security.

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governments, render services to their state, and remain strongly attached thereto. Recognised refugees, like conflict forced migrants, reside outside their state of origin involuntarily;89 in seeking asylum, they have not in any way manifested a wish to relinquish their citizenship.90 Indeed, an effective exclusion of recognised refugees from ocv processes may create perverse incentives for persecutory governments to use displacement as a means of securing and legitimising their rule.91 However, in terms of their relations with their state of origin, and their attachment thereto, it may be contended that recognised refugees are in a diametrically opposed position to that of servicemen and diplomats, discussed in Section B. It has been suggested that ocv is pertinent when non-resident citizens are stakeholders in election results rather than merely affected by them. Mr Shindler asserted before the ECtHR that his right to ocv as a non-resident British citizen stems, in part, from the fact that, should he choose to exercise his right to return to the uk, he would be subject to government policies decided in his (political) absence. For recognised refugees, election results may determine whether they are likely to be able to exercise their right to return;92 hence, their ‘stakes’ in such elections are particularly high. Importantly, recognised refugees are entitled to hold their status until one of an exhaustive list of cessation clauses in Article 1C of the 1951 Convention can be invoked by their state of asylum, in which case they would no longer require international protection and would no longer be able to refuse to avail themselves of the protection of their state of origin.93 Article 1C(5) is particularly noteworthy in this context, as it concerns changes in circumstances in the state of origin of the recognised refugee that have a ‘fundamental, stable and durable character’ and that result both in

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Long (n 66), 25. Gallagher and Schowengerdt (n 80), 199. See also Venice Commission, Report on Out-ofCountry Voting (24 June 2011), c.i.v (‘if persons, in exceptional cases, have been displaced against their will, they should, provisionally, have the possibility of being considered as resident at their former place of residence’). Note, in this context, the decision in Melnychenko (n 32). See e.g. ‘Congolese refugees in Zambia await elections in their homeland before deciding to return’ (2 June 2006). J. Fitzpatrick, ‘The End of Protection: Legal Standards for Cessation of Refugee Status and Withdrawal of Temporary Protection’ (1998–1999), 13 Georgetown Immigration Law Journal 343, 346.

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eradication of the refugee’s well-founded fear of being persecuted and in restoration of protection.94 unhcr has issued formal declarations of general cessation of refugee status regarding changes in a particular territory.95 Post-conflict or peace-building transitions are often perceived in such terms.96 The analysis below is premised on the assumption, built into the 1951 Convention framework, that absent such changes that would satisfy the requirements of Article 1C(5), recognised refugees are either unable or unwilling to repatriate.97 By contrast, as section C illustrated, post-conflict or transformative elections can be (and are) considered indicative of the feasibility of repatriation.

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unhcr, ExCom, Conclusion No. 65 (xlii) (1991), recalled in ExCom, Conclusion No. 69 (xliii) (1992) [b]. unhcr advocates a waiting period of minimum 12–18 months before assessing developments in a country of origin. unhcr, ExCom, Discussion Note, The Application of the Ceased Circumstances Clause in the 1951 Convention, un Doc EC/ SCP/1992/CRP.1 (20 December 1991) [12]. A similarly phrased cessation clause, art 1C(6), concerns refugees who are de jure stateless. The analysis in the chapter centres on the predicament of refugees who are citizens of their state of origin, and who would able to vote in its elections save for their persecution-induced involuntary non-residence. See also J. Fitzpatrick and R. Bonoan, ‘Cessation of Refugee Status’ in E. Feller, V. Türk, and F. Nicholson (eds), Refugee Protection in International Law (Cambridge University Press, 2003), 491, 495. 95 unhcr, Guidelines on International Protection: Cessation of Refugee Status under Articles 1C(5) and (6) of the convention (2003) (n 3) (references to unhcr formal declarations of general cessation regarding the situations in Poland and Czechoslovakia, 15 November 1991; Chile, 28 March 1994; Malawi and Mozambique, 31 December 1996; Bulgaria and Romania, 1 October 1997; Ethiopia, 23 September 1999; Timor Leste, 20 December 2002). 96 See e.g. J.C. Hathaway, ‘The Rights of States to Repatriate Former Refugees’ (2005), 20 Ohio State Journal on Dispute Resolution 175, 185 (suggesting that the paradigmatic change which the 1951 Convention drafters conceived of was the reversion of a totalitarian regime to democratic governance). 97 Cf. unhcr’s contention that the ‘compelling reasons’ clause in art 1C(5) (textually confined to pre-convention refugees) has come to reflect a general humanitarian principle that is applicable to art 1A(2) refugees; Guidelines on International Protection (n 95) [21]. See also J.R. Montgomery, ‘Components of Refugee Adaptation’ (1996), 30 Inter­ national Migration Review 679, 697–8 (arguing that refugees have a natural inclination to develop ties to the community within which they reside and a human need to build a new life following severe trauma); G. Noll, Rejected Asylum Seekers: The Problem of Return (unhcr, 1999), 6 (suggesting that refugees may resist repatriation ‘in order to preserve the value of their integrative effort’). See also Fitzpatrick and Bonoan (n 94), 502 (enclosing a table of ‘ceased circumstances’ situations, ranging from Sudan in 1972 to Ethiopia in 1999).

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3 ocv of Recognised Refugees: Impediments a Introduction ocv ipso facto takes place outside the state’s territory. It requires recognition on the part of the state of origin of the need to give effect to the right to vote of its expatriates. As was noted above, in post-conflict or peace-building contexts, international assistance is oftentimes provided. By contrast, it seems highly improbable that international organisations will assist recognised refugees to exercise ocv in their states of asylum.98 In a [draft] unhcr policy paper, it is contended that the organisation should refrain from facilitating or promoting large-scale refugee ocv unless elections are likely to be ‘transformative’.99 The paper sets four cumulative parameters for such engagement that are unlikely to be satisfied in a ‘regular’ recognised refugee context: first, elections have to take place in post-conflict situations, and the security situation has to be generally stable. Second, the overall political and social environment should be generally considered conducive to free and fair elections. Third, the exercise of the right to vote should foster durable solutions. Fourth, refugees must be able to participate voluntarily in national elections and not be subjected to misrepresentation, intimidation or manipulation. In view of the above, international involvement in cases of recognised refugees is highly improbable. ocv requires, first, direct engagement of recognised refugees with officials of their state of origin, at least for registration and voting purposes. Second, their state of origin has to be both willing and able to conduct ocv in the respective state of asylum, and to permit their participation. Third, states of asylum must agree to facilitate or, at the very least, permit ocv on their territory as well as, arguably, election-related activities. When states of origin are persecutory, none of these cumulative conditions are likely to be 98 99

Long (n 66), 7. The Participation of Refugees in Elections of their Country of Nationality and the Role of unhcr (unhcr Geneva, 2010) (draft with author), 2. For instance, in 2005, unhcr was considering whether to assist ocv of Iraqi conflict forced migrants, notwithstanding its assessment at the time that conditions in Iraq were not conducive to return, as the authorities were not yet able to protect citizens from violent attacks, and as basic services needed for a secure and stable existence could not be guaranteed. ‘Iraqi election enthusiasm reflected among refugee Diaspora’ (16 December 2005). In 2010, the Iraqi Election Commission requested assistance from unhcr regarding ocv of Iraqis living in states neighbouring Iraq (Jordan, Lebanon, Syria and Egypt). The conflict forced migrants were divided on whether to participate, citing sectarian violence as the greatest threat if they return. W. Amr, ‘Refugees Watch Iraqi Elections with Doubts and Hopes’ (1 March 2010).

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fulfilled; when non-state actors are persecutory, it is highly improbable that all three conditions can be satisfied. b Fear of Persecution by the Regime of the State of Origin ocv may require expatriates to present themselves at embassies or consulates in order to register and vote. Recognised refugees whose well-founded fear of persecution stems from the actions of a predatory regime may wish to refrain from engaging with officials of their states of origin.100 Indeed, Article 25 of the 1951 Convention pronounces that the state of asylum must provide administrative assistance to recognised refugees that would normally be provided by their state of origin.101 A persecutory regime may not even necessarily have diplomatic relations with the state of asylum; however, even if ocv procedures are in place in the state of asylum and are used by other expatriates of the state of origin, a persecutory regime will not consider itself to be persecutory, and may not permit recognised refugees whom it may view under its domestic law as criminals102 to participate in such elections.103 Article 2 of 1951 Convention requires that refugees in a state of asylum ‘conform to its laws and regulations as well as to measures taken for the maintenance of public order’. Hence, ocv of recognised refugees requires both de jure and de facto consent of the state of asylum. When a state grants asylum to recognised refugees based on their well-founded fear of persecution stemming from their state of origin, the state of asylum may object to official engagement between the refugee and their persecutory regime, just as it would refuse to accept an attempt by the latter state to exercise protection abroad on behalf of its recognised refugee-national.104 c Fear of Persecution by Non-state Actors in the State of Origin It is widely acknowledged that well-founded fear of persecution may stem from the actions of non-state actors, where the state of origin fails to comply 100 R. Mandal, Political Rights of Refugees (unhcr, 2003), 19–20. 101 Ad Hoc Committee on Refugees and Stateless Persons, Draft Report of the Ad Hoc Committee on Statelessness and Related Problems (15 February 1950) annex II. 102 Cf. Melnychenko (n 32) (regarding the treatment of the applicant by the Ukrainian authorities). 103 Voting from abroad (n 7), Ch. 1. 104 While Art 28 of the 1951 Convention requires states of asylum to issue Convention Travel Documents to recognised refugees, they may limit their validity so that refugees are prohibited from travelling to their state of origin.

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with its primary protection obligation to establish and operate a system of effective protection against persecution. In such circumstances, recognised refugees may not fear engagement as such with officials of their state of origin; indeed, the authorities may even be sympathetic to their cause. Nonetheless, unhcr views engagement of recognised refugees with officials of their state of origin with suspicion, especially regarding the issuance of official documentation such as national passports.105 Drawing on instances of application for national passports or renewal thereof as creating a presumption that re-availment of protection is intended, Goodwin-Gill and McAdam emphasise that, for the purposes of re-availment of protection, the recognised refugee must not only act voluntarily, but must also intend to and actually obtain protection so as to indicate the establishment of normal relations with the authorities of the state of origin.106 Recognised refugees may fear that their state of asylum will consider their (potentially continuous) voluntary engagement with officials of their state of origin concerning ocv qua expatriates to be indicative of their willingness to accept the protection of their state of origin and of the ability of that state to provide adequate protection. A state of asylum may then be inclined to invoke the Article 1C(1) cessation clause, which stipulates that if a recognised refugee has ‘voluntarily re-availed himself of the protection of the country of his nationality’ he no longer requires international protection. Hathaway contends that, once a state of asylum determines that protection in the state of origin is viable, it is entitled to withdraw recognised refugee status, as the 1951 Convention does not require that asylum be granted as permanent admission to a new political community.107 Grace and Mooney assert that ‘the act of refugees voting in their home state’s elections, whether in person or by absentee ballot should never be taken 105 For instance, unhcr advises that, once recognised, a refugee should not normally retain her national passport, and that if a refugee applies for and obtains a national passport or its renewal, it will (in the absence of evidence to the contrary) be presumed that she intends to avail herself of the protection of her state of nationality. unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (reissued 2011) [49–50]. Notably, however, it is ordinary practice for expatriates to identify themselves using their national passports when residing abroad. See also R. Da Costa, Rights of Refugees in the Context of Integration (unhcr, 2006), Ch. 9, 131. 106 G.S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd edn, Oxford University Press, 2007), 136. 107 J.C. Hathaway, ‘The Meaning of Repatriation’ (1997), 9(4) International Journal of Refugee Law 551, 551.

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to signal that refugees and asylum-seekers no longer require international protection’.108 However, in practice, these acts are likely to be considered as such a signal by states of asylum. Moreover, a recognised refugee may be faced with having to rebut the assumption that, if her state of origin is able to conduct ocv procedures and to enable effective participation of recognised refugees therein, it is also able to provide adequate protection from persecution at the hands of non-state actors. E

Concluding Remarks

Recent international developments in state practice and jurisprudence suggest that the majority of states consider their expatriates to be eligible voters; moreover, ocv is increasingly made available to voluntary migrants, notwithstanding the fact that they may be able to exercise the right to return to their state of nationality. In tandem, internationally-supported concerted efforts are often made to enhance participation of conflict forced migrants in post-conflict or transformative elections with a view to their imminent or forthcoming repatriation. By contrast, recognised refugees are both electorally excluded and unable due to their well-founded fear of persecution to exercise their internationally recognised right to return to their state. This chapter demonstrated that the strength of the normative claim of recognised refugees to access ocv processes is met with a political (and legal) reality in which continued disenfranchisement is highly likely. Thus, recognised refugees are harmed in a manner which repudiates their claim to political membership.109 They are both effectively and symbolically, territorially and extraterritorially, shunned from the political community of their state of origin. Their unique vulnerability is heightened by the fact that the length of their stay in the state of asylum is indefinite, and their repatriation is thus neither imminent nor necessarily forthcoming. Their political predicament characterises recognised refugees as a special category of non-citizen residents.110 108 Grace and Mooney (n 78), 114. 109 M.E. Price, Rethinking Asylum: History, Purpose and Limits (Cambridge University Press, 2009), 70. 110 Ziegler (n 85).

Australia’s Refugee and Humanitarian Family Reunion Programme: A Comparative Study with the European Union Emily Darling1 Introduction Often families are separated during the refugee experience. Refugees may find it difficult to settle into the new State until remaining family members are able to join them. States differ in approaches to allowing entry to family members. This chapter will begin by outlining the background of refugee family reunion in Australia including a discussion of recent developments. The relevant international obligations and standards that apply to family reunion will then be discussed. The additional human rights obligations in Europe will also be examined. A comparison will be made between the implementation of the relevant international standards in the European Union and Australia. The aim of this chapter is to highlight some of the barriers to refugee family reunion in Australia and examine the protections available at international law. The chapter concludes with recommendations for further protections which may assist with reference to the example of the additional human rights protections available in Europe. In August 2012, as a result of the Houston report, the Australian government introduced what it has termed the ‘No Advantage’ principle with the aim of deterring asylum-seekers arriving by boat.2 A series of changes were introduced via legislation and policy commencing on 13 August 2012 to prevent any advantage to asylum-seekers travelling to Australia using the services of a people smuggler, rather than waiting to be processed in transit countries for

1 PhD Candidate and lecturer in Immigration and Refugee law, Queensland University of Technology; Solicitor and Registered Migration Agent. 2 Australian Government, ‘Report of the Expert Panel on Asylum Seekers’ (August 2012) referred to as the Houston Report. Some of the key recommendations by the government advisory panel included ensuring no benefit would be gained through the circumventing of regular migration arrangements by asylum seekers (Recommendation 1), the reintroduction of offshore processing of asylum seekers (Recommendation 7), and those arriving in Australia by ‘irregular maritime means’ should not be eligible to sponsor family under the Special Humanitarian Program but should be redirected to the Family migration stream (Recommendation 12). The Report uses the term ‘irregular maritime arrivals’ when referring to asylum seekers who arrive by boat. This chapter reflects the law as at April 2014.

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eventual resettlement. These began with the recommencement of offshore processing of asylum-seeker boat arrivals on Nauru and Manus Island in Papua New Guinea.3 On 13 August 2012, the Australian government announced that asylum seekers arriving by boat in the excised territories could be processed in a ‘regional processing country’ rather than at the excised territory of Christmas Island where much of the processing had occurred.4 While many asylum seekers arriving by boat are transferred to one of the regional processing centres, inconsistencies remain, as other boat arrivals may be granted bridging visas and released into community detention while awaiting processing of their protection claims and security clearances. The lack of information and certainty regarding the reasons for selection of some asylum-seekers for transfer while others are processed in Australia is a cause for concern. There have been frequent changes in the law and policy governing the treatment of asylum-seekers leading up to and in the aftermath of the last Australian Federal government election in September 2013. On 18 October 2013, the new Federal government announced the proposed reintroduction of temporary protection visas for boat arrivals on bridging visas in detention centres and community detention who were still awaiting determination of their asylum claims.5 The Bill introducing these measures has been disallowed by the upper House of parliament (the Senate).6 It is clear, however, that the recent policy and legislative amendments will also have a significant impact on family reunion for refugees. As will be discussed later in this chapter, asylum-seekers holding bridging visas while awaiting the processing of their claims for protection are not able to access any of the available family reunion visa options under the humanitarian program to reunite with family members. While they may access visa options for family members under the family 3 Migration Legislative Amendment (Regional Processing and Other Measures) Act 2012 (Cth), Subdivision B; Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 (October 2012); Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 (September 2012). 4 Migration Legislative Amendment (Regional Processing and Other Measures) Act 2012 (Cth), Subdivision B; Migration Act 1958 (Cth), Division 8, Subdivision B. 5 Migration Amendment (Temporary Protection Visas) Regulation 2013, Select Legislative Instrument No. 134, 2013 (commencing 18 October 2013) accessed 21 October 2013; ‘Coalition Government resurrects temporary protection visas’, 19 October 2013  accessed 21 October 2013. 6 Disallowance of sli2013, 234 Migration Amendment (Temporary Protection Visas) Regulation 2013 (12 November 2013).

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stream, the Federal government reduced the potential assistance this pathway could provide by specifying that any applications lodged under the family visa stream by family members of boat arrivals would be given the lowest processing priority.7 As a result of the infamous Tampa incident in August 2001, where asylum seekers en route to Australia by boat were rescued at sea by a Norwegian vessel, but refused entry to the Australian port at Christmas Island, the Australian government introduced legislation to excise the island territories of Christmas Island, the Cocos and Keeling Islands and Ashmore reef from the Australian migration zone.8 The effect of the changes meant that asylum seekers arriving by boat (called ‘offshore entry persons’ at that time9) were not able to make an application for a permanent protection visa without first being approved by the Minister for Immigration and Citizenship. These asylum-seekers had their claims processed under a different non-statutory process to those asylum seekers arriving onshore with limited access to review mechanisms and the courts.10 The use of the offshore processing centres in Nauru and Manus Island ceased when they were closed by the Rudd government in 2008, however boat arrivals continued to be detained and processed on Christmas Island. Despite the restrictions and the initial reduction in numbers of boat arrivals, asylum seekers arriving by boat once again continued to rise. The media coverage and commentary has often attributed the number of fatal incidents at sea where asylum-seekers have died, due to faulty vessels or poor weather, to the closure of the offshore processing centres. The Australian government responded with 7

8 9

10

Fact Sheet 37 – Processing Priorities for Family Stream Migration, The Department of Immigration and Border Protection, accessed 24 April 2014. There are two programmes which may provide family reunion options for refugees seeking to sponsor family members. The Refugee and Special Humanitarian Programme allows eligible permanent residents or Australian citizens who were granted a refugee class visa to propose their immediate family for permanent residence. The other option is to apply to sponsor family members under the Family Stream of visas. The Family Stream visas include partner, child and parent visas. Visa applications in this category may have a better chance of success and in some cases will take less time to process, however involve higher costs including visa application charges. As will be discussed in this chapter, processing priorities apply to applications depending on the status and mode of arrival of the sponsor. Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Act 1958, s 5. Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (No. 35, 2013) – Schedule 1, Part 1. This amendment had the effect of changing the term for boat arrivals from ‘offshore entry persons’ to ‘unauthorised maritime arrivals’. Migration Act 1958 (Cth), s 46A; Angus Francis and Sonia Caton ‘Access to Protection for ‘Offshore Entry Persons’ aka asylum seekers (2011) 36 (3) Alternative Law Journal 172, 174.

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the implementation of stricter measures to try to deter asylum seekers risking boat journeys from Indonesia with the assistance of people smugglers. Under the regional processing measures, to reinforce the ‘No Advantage’ principle, asylum seekers who arrive by boat are now prevented from making applications for family reunion under the Refugee and Special Humanitarian programme.11 The discriminatory nature of this policy is evident as onshore asylum seekers and resettled refugees are eligible to propose family members under the Refugee and Special Humanitarian programme. Any asylum seeker who arrives by boat and who wishes to reunite with family members now needs to make an application under the family visa stream which involves significant cost and additional eligibility requirements based on income, accommodation and continuing connection with the family member.12 It is uncertain what rules will apply to boat arrivals in future given the rapidly changing policy in this area. However it is clear that the rights of boat arrivals to sponsor family members are being eroded. Government proposals for the re-introduction of temporary protection visas have specified that holders of these visas would not be eligible to propose their family members. Due to the large numbers of asylum seekers awaiting transfer to offshore processing centres, some boat arrivals continue to be released into the community on bridging visas while awaiting processing.13 During this time, asylum seekers and in some cases recognised refugees who have not yet been granted a protection visa, may not be entitled to work rights and will not be able to propose family members due to their lack of permanent residence status.14 The application criteria for the relevant visa subclasses within the Migration 11

12

13

14

Minister for Immigration and Citizenship, Chris Bowen, ‘Government implements Expert Panel’s Family Reunion Recommendation’ (24 September 2012) accessed 21 October 2013; for example Migration Regulations 1994 (Cth), subregulation 200.211(2)(e). Ibid.; Refugee Council of Australia, ‘rcoa’s Analysis of the Recommendations of the Expert Panel on Asylum Seekers’ (August 2012) accessed 21 October 2013, 14. The Sydney Morning Herald, ‘Floods, New Rules Add to Refugees’ Misery’ (23 November 2012) ; Simon Cullen, Australia Network News ‘First Asylum Seekers Arrive on Manus Island’ (21 November 2012) . A bridging visa is a temporary visa and is not a substantive visa. Only limited rights are attached to bridging visas. Migration Regulations 1994 (Cth), subregulation 202.211(2)(b). Subregulation 202.211(2)(e) also specifies that the proposer must not be an irregular maritime arrival. Migration Regulations 1994 (Cth), subregulation 202.211(2)(b). Subregulation 202.211(2)(e) also specifies that the proposer must not be an irregular maritime arrival.

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Regulations 1994 (Cth) specify that the sponsor of the family member applicant must be an Australian citizen or permanent resident.15 Asylum seekers in this situation may need to wait for an indefinite period before being granted a visa.16 As with unauthorised maritime arrivals taken to regional processing countries, there is no entitlement for asylum-seekers on bridging visas to propose a family member under the Refugee and Special Humanitarian programme. Lack of work rights and bridging visa status will also make it difficult for asylum seekers in community detention to apply for family reunion under one of the family stream visa categories.17 There may be further legislative and policy change resulting in uncertainty and anxiety for asylum-seekers and refugees. Even if granted a permanent protection visa, refugees may have difficulty meeting the costs associated with a family stream visa application and in meeting the criteria demonstrating a continuing connection with their family members remaining in the country of origin or transit. These recent changes reflect an increasing restriction on the right of refugees to propose family members for permanent residence in Australia. These changes highlight the barriers to access to justice for asylum seekers arriving by boat, as well as discrimination and penalisation on the basis of the mode of arrival.18

International Law Obligations

This section conducts a comparative analysis of the right of refugees to family unity and family reunification under international law, in Australia and Europe to reveal the differing perspectives implicit in each jurisdiction. There are similarities between Australia and Europe, as a result of the international obligations that apply to both jurisdictions. Europe is an interesting comparative jurisdiction due to its explicit recognition of measures for the protection of human rights under European Union and Council of Europe human rights 15 16

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Migration Regulations 1994 (Cth), subregulation 202.211(2)(a). Refugee Council of Australia ‘“No Advantage” Is a Maximum Disadvantage for Boat Arrivals’ (21 November 2012) accessed 21 October 2013. Family stream visas include partner, child, parent, carer and orphan relative visas. In addition to visa application fees, there are also income requirements to be met by the sponsor, as well as dna testing and other documentary evidentiary requirements which are difficult for refugees to satisfy. Convention Relating to the Status of Refugees 1951, unga Resolution 2198 (XXI), 189 unts 137, Article 31.

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instruments. The most important of these being the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and The European Charter of Fundamental Rights 2000.19 Europe also provides an interesting comparison for the Australian context due to the use of eu supranational law and guidelines in the form of the Council of Europe Directives, most notably the European Council Directive on Family Reunification.20

International Standards

Often families are separated during the refugee experience and refugees are unable to effectively settle into the new State until remaining family members are able to join them.21 States differ in approaches to allowing entry to family members. At international law, the strongest support for a right to refugee family reunion is the principle of family unity22 and the rules governing family reunification under Article 10 of the Convention on the Rights of the Child.23 The two main terms used at international law that are relevant to refugee family reunion are family unity and family reunification. The concept of family unity is a more general concept referred to under international human rights instruments whereas family reunification is more specifically focussed on the reunification of families after separation, as in the case of refugee families. Family Unity Anderfuhren-Wayne has defined family unity as ‘a right of recognition of a legal relationship between family members’.24 She has also contrasted the 19

20 21

22 23

24

The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Council of Europe, ets No. 5; The European Union Charter of Fundamental Rights (2000) (2000/C 364/01). Council of the European Union Directive 2003/86/EC (22 September 2003). Refugee Council of Australia, ‘Family Reunion and Australia’s Refugee and Humanitarian Program: A Discussion Paper’ (November 2009), accessed 22 October 2013, 1; Refugee Council of Australia, ‘Humanitarian Family Reunion: The Building Block of Good Settlement’ (April 2012), accessed 22 October 2013, 2. Universal Declaration of Human Rights 1948, unga Resolution 217 A (III), Article 16(3); International Covenant on Civil and Political Rights 1966, 999 unts 171, Article 23. Convention on the Rights of the Child 1989, unga Res. 44/25, 20 Dec. 1989; Cecilia Anderfuhren-Wayne ‘Family Unity in Immigration and Refugee Matters: United States and European Approaches’, International Journal of Refugee Law (1996) 8(3) 347, 349 and 351. Anderfuhren-Wayne (n 18), 349.

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right of family unity with the right to family reunification which extends to protecting families who have separated and wish to reunite.25 This seems to be the accepted view in the literature. The principle of family unity in Article 16(3) of the Universal Declaration of Human Rights26 and the identical principle in Article 23 of the International Covenant on Civil and Political Rights27 state that the family is entitled to protection by the State as the fundamental group of society.28 The 1951 Convention on the Status of Refugees does not contain a specific reference to family unity or family reunification for refugees.29 Hathaway notes that the intention of the drafters of the Convention was to include such a right, as evidenced by the statement of the Council of Plenipotentiaries in recommending governments take the necessary measures to protect the refugee’s family, with the aim of ensuring the refugee’s family is maintained.30 While the right to family unity or reunification is not included in the Refugee Convention, it is referred to specifically in the Preamble. In the European context, the benefits of family unity are also emphasised in the preamble of the European Council Family Reunification Directive.31 Article 4 of the Directive states that the benefits of family unity include socio-cultural stability and the facilitating of integration. Paragraphs (4) and (9) of the Preamble of the Directive go further in stating that family reunification is a necessary way of making family life possible, and family reunification should apply in any case to members of the nuclear family. While family unity is not defined in the Universal Declaration of Human Rights and the other international human rights instruments, they each refer to the principle of family unity and emphasise the importance of family unity as the family is considered the fundamental group of society.

25 Ibid. 26 Universal Declaration of Human Rights 1948, unga Resolution 217 A (III). 27 International Covenant on Civil and Political Rights 1966, 999 unts 171. 28 Ibid., (n 26). 29 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons(held in Geneva, Switzerland 2–25 July 1951), Final Act and Convention relating to the Status of Refugees A?CONF.2/108/Rev.1; Kate Jastram and Kathleen Newland, ‘Family unity and Refugee Protection’, in Erika Feller, Volker Turk and Frances Nicholson (eds.), ‘Refugee Protection in International Law – unhcr’s Global Consultations on International Protection’ (Cambridge University Press, 2003), 569. 30 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (n 29); James Hathaway, ‘The Rights of Refugees under International law’ (Cambridge University Press, 2005), 542. 31 Council of the European Union Directive 2003/86/EC (22 September 2003).

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International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights One view considers that there is no universally applicable express right to family unity or reunification outside Europe that overrides the sovereign right of States to decide whether or on what terms non-nationals can stay.32 This is a reflection of the international and supranational standards applicable in the European context. Jastram and Newland counter this by saying that there are extensive and unequivocal rights and standards which apply to all individuals under the iccpr, icescr, crc and the 1949 Geneva Convention and Protocols.33 In addition to family unity, further support for family reunion is provided via the right to respect for family life in Article 17 of the International Covenant on Civil and Political Rights 1966. Article 17 prevents arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. The un Human Rights Committee as the monitoring body for the iccpr looks to the judgments of the European Court of Human Rights for guidance in monitoring and determining State compliance with the right under Article 17.34 In this respect, the unhrc follows a similar decision-making process as the European Court of Human Rights by firstly establishing the existence of family life, and secondly determining State interference and finally whether the interference was arbitrary.35 Article 10 of the International Convention of Economic, Social and Cultural Rights provides the State has an obligation to both protect and support the family.36 Article 10(1) states that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.37 A problem however appears to be in the implementation and protection of these rights. While decisions made by the Australian government in breach of its obligations under iccpr may be challenged and reviewed on individual petition to the United Nations Human Rights Committee, in reality it is unrealistic for a refugee proposer to access the unhrc to challenge a decision to 32 Jastram and Newland (n 29), 567. 33 Ibid. 34 Ryan Mrazik and Andrew Schoenholtz, ‘Protecting and Promoting the Human Right to Respect for Family Life: Treaty-Based Reform and Domestic Advocacy’, Georgetown Immigration Law Journal (2010) 24 (3–4), 651. 35 Ibid., 664. 36 Jastram and Newland (n 29), 566. 37 International Covenant on Economic, Social and Cultural Rights, unga Res. 220 A (XXI), 16 Dec. 1966, 993 unts 3.

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refuse their family member a visa. Proposers may not be aware of the ability to access this option, as well as experience difficulty in obtaining free immigration legal advice due to the severe lack of funding for such services despite the huge demand. Proposers may also experience language barriers, not the least being illiterate in their first language. Australia also has a history of disregard for recommendations made by the unhrc and the Committee on the Rights of the Child.38 The Committee on the Rights of the Child has previously recommended that Australia introduce legislation and policy reform to guarantee children of asylum-seekers are reunified with their parents in a speedy manner.39 These measures have not yet been implemented into Australian law, as evidenced by the backlog of refugee family reunion cases which are yet to be processed. In addition, the new rules preventing boat arrivals from sponsoring family members under the Refugee and Special Humanitarian Programme will also have a significant impact on children (both as proposers and applicants). As already discussed, the main limitation on the protections offered to refugees wishing to reunite with family members is that the right to family unity is considered to be more a statement of principle than a legally enforceable right. Family Reunification Convention on the Rights of the Child The right to family reunification under the Convention on the Rights of the Child (crc) is generally viewed to afford more protection of family rights than other instruments.40 Article 10 of the crc provides that family reunification applications involving children should be dealt with in a positive, humane and expeditious manner.41 Article 9(3) provides that State parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except where this is contrary to the child’s best interests.42 Nastic and Drew state that Article 9 sets out a substantive standard to be obtained, while Article 10 outlines the manner for dealing with family reunification.43 A different approach was taken 38

Committee on the Rights of the Child, Concluding Observations on Australia, un doc. CRC/C/15/Add.79 (10 October 1997), [30]. 39 Ibid. 40 Anne Staver, ‘Family Reunification: A Right for Forced Migrants?’ Working Paper Series No. 51 – Refugee Studies Centre (University of Oxford, 2008), 14. 41 Convention of the Rights of the Child 1989, Article 10(1). 42 Ibid., Article 9(3). 43 Dragan Nastic and Drew Sandya, ‘The Immigration Reservation to the Convention on the Rights of the Child: An Insuperable Difficulty No More’ Journal of Immigration Asylum and Nationality Law (2009) 23(2) 119, 133.

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by the Chairman of the working group drafting the Convention who stated that Article 10 is designed to apply to separations across different countries whereas Article 9 applies in a domestic situation.44 It is the author’s view that Article 10 applies to family reunification across State borders as it addresses the issue of processing family reunification applications quickly which is more relevant to the situation where family members are separated and need to be reunited as soon as possible . Despite the positive wording in Article 10, unicef has stated that the article does not extend to an expressly guaranteed right of family reunion.45 The Committee on the Rights of the Child has specified that when family reunification in the origin country is not possible, the obligations under Articles 9 and 10 should govern the host country’s decision on family reunification.46 In many jurisdictions this is limited to allowing entry to members of the immediate family – the spouse and any dependent children.47 It is accepted that family reunification should generally be regarded as being in the best interests of the child.48 There are differing views as to the extent of State obligations with respect to ensuring the right of family unity and family reunification. Hathaway and Anderfuhren-Wayne have emphasised that the difficulty is in determining to what extent these rights place obligations on State parties to facilitate family reunification by granting entry or residence to family members of refugees.49 Staver highlights the problem of the definition of the family as a means of State control over any existing family reunification rights, making the right conditional.50 Often the right is specified to be limited to reunification with ‘immediate family’ members only.51 44 45

46 47

48 49 50 51

United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (n 29). unicef, ‘Implementation Handbook for the Convention on the Rights of the Child’, 3rd ed. (September 2007), accessed again 22 October 2013, 135. Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin [83]. For example under the Australian Migration Regulations 1994 (Cth) subregulation 202.21 and regulation 1.12AA (which defines immediate family to include the spouse/defacto partner, children or parent of a minor under 18 years). unhcr, Guidelines on Determining the Best Interests of the Child (May 2008), accessed 22 October 2013, 31. Hathaway (n 30), 546; Anderfuhren-Wayne (n 23), 349. Staver (n 40), 23, 24. Brooke Wilmsen, ‘Family Separation: The Policies, Procedures, and Consequences for Refugee Background Families’, Refugee Survey Quarterly (2011), 30(1), 44, 57, 58.

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Jastram and Newland highlight the sovereign right of States to limit entry, which acts as a qualifier on these rights.52 The authors also highlight the fact that there are extensive rights provided under the iccpr, icsecr and crc, as well as a strong argument that the right to family unity has become part of customary international law, however this is not a view held by all.53 The unhcr Committee has encouraged all States to facilitate measures implementing a right to family unity and family reunification for all refugees.54 From the literature, the conclusion is that the standards under the various international instruments can provide support for refugee family reunification, however the main difficulties are in interpretation of the rights and implementation of the rights due to State discretion.55 As examined later in this chapter, state discretion in the form of the margin of appreciation principle also plays a role in limiting family reunification rights in Europe.

Definition of ‘Family’

There is general consensus from researchers that there also needs to be an expanded definition of family under the relevant international standards and in interpretation of these standards. There is no definition of ‘family life’ specified for interpreting Article 8 of the European Convention, however the Directive specifies that protection extends to immediate family in the form of a spouse and dependent children.56 Jastram and Newland have discussed the need for the development of a ‘culturally sensitive and situation-specific’ definition of family for the purposes of family unity and family reunification.57 The authors also recommend that the

52 53 54

55 56

57

Jastram and Newland (n 29), 568. Ibid., 567, 568. unhcr Global Consultations on International Protection, Summary Conclusions on Family Unity, Geneva Expert Roundtable (8–9 November 2001); Jastram and Newland (n 29), 571; Council of Europe: Committee of Ministers, Recommendation R (1999) 23 of the Committee of Ministers to Member States on Family Reunion for Refugees and other Persons in Need of International Protection (15 December 1999), R (1999). Jastram and Newland (n 29) 571, 592. Goran Cvetic, ‘Immigration Cases in Strasbourg: The Right to Family Life under Article 8 of the European Convention’, The International and Comparative Law Quarterly (July 1987), 36, 650; Brugge-man and Scheuten v Germany (1981) 3 ehrr 244; Council of the European Union Directive 2003/86/EC (22 September 2003), Preamble (9) and Article 4. Jastram and Newland (n 29), 564, 5.

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vulnerability of elderly refugee family members be recognised in the relevant criteria for family reunification.58 Currently it appears that in many jurisdictions, including Europe and Australia, family reunification rights extend to immediate family members only.59 As highlighted repeatedly in studies of refugee health and resettlement, refugee families tend to vary in the types of relationships which constitute ‘family’.60 The members included in an individual refugee’s concept of their family will depend on cultural views as well as the pattern of resettlement post-conflict. Families separated as a result of conflict may form new arrangements with extended family where required for support. This is often seen for example in the case of orphaned children being customarily adopted by aunts or uncles who support their niece or nephew in the same way they would support their own children. This is a phenomenon in the cultures of many refugee populations – for example African and Afghan Hazara families. Extending the definition of family would assist refugees in the post-settlement phase and have the dual benefit of allowing other vulnerable groups to access protection and leave dangerous and unsuitable conditions. This is essential for the elderly and dependent children – even where they don’t meet the standard definition of family. In the case of Australia, the limit placed on the quota of places for those seeking family reunion has meant that priority is given to immediate family under the humanitarian program. Once the quota is filled for the particular year, this leaves little scope to grant visas to other relatives, so applications for family members other than immediate family are unlikely to succeed. Another group affected by the limited definition of family include children customarily adopted in refugee situations. Often the customarily adopted child is not recognised as a dependent child for the purposes of the application. It is difficult to be successful in an application under the Refugee and Special Humanitarian Programme for an applicant on the basis of customary adoption, meaning children are often left alone in transit countries once the other family members have been granted a visa, or the addition of the customarily adopted child becomes a reason for the refusal of the visa application as a whole. (As all family members are added as secondary applicants to the main applicant’s visa application.) As more refugees become aware of this 58 59

60

Ibid. at 563. For example, in Australia, subregulation 202.21 and regulation 1.12AA extend the definition of family for the purposes of a protection visa holder who was granted refugee status and permanent residence who is seeking to sponsor family members for permanent residence in Australia to include immediate family. Wilmsen (n 51) and Staver (n 40).

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decision-making tendency, they are leaving such children and other extended family members off their applications to increase the chances of success of the application. Separating families in this way leaves the most vulnerable members of the family behind in countries where they face an uncertain future without family support. Counter to the argument for extending the definition of family runs the state sovereignty argument. How far should the obligations of a State extend to allowing entry of family members of refugees? Often the sovereignty argument has been provided by States as a justification for limiting the definition of family for the purposes of family reunion. However the point can also be made that States have obligations towards refugees who have become permanent residents or citizens. The host State also has an obligation to meet the resident or citizen’s right to family unity and the best interests of the child to be reunited with their parents.61

Refugee and Special Humanitarian Family Reunion in Australia

Key Regulatory Provisions Refugees who receive permanent protection visas through onshore application (a subclass 866 visa) or are resettled under Australia’s offshore refugee programme and receive a visa subclass 200–204 visa,62 are eligible to propose family members through the Refugee and Special Humanitarian programme. There are no fees associated with such applications and successful family member applicants are granted the same type of permanent residence visa as the sponsor (apart from 866 visa holders whose family members are granted the subclass 202 visa).63 These applications are referred to as split family applications. The main criteria for such a family reunion application include that: – the family member was declared to Immigration before the proposer’s own visa was granted; – the application is made within 5 years of the date of grant of the proposer’s visa; and 61 62

63

See for example the principle of family unity under the udhr, iccpr and family reunification in Article 10 of the crc. Migration Regulations 1994 (Cth), Subclass 200 Refugee visa, Subclass 201 In-country Special Humanitarian Program visa, Subclass 202 Global Special Humanitarian Program visa, Subclass 203 Emergency Rescue visa, and 204 Woman at Risk visa. Migration Regulations 1994 (Cth), subregulation 202.211.

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– on the date of that grant the applicant was a member of the immediate family of the proposer.64 Applications have usually been assessed on the basis of the applicant’s connection with Australia. This factor has tended to be interpreted in terms of the connection between the proposer and the visa applicant and the continuing nature of contact and maintenance of a family relationship between the parties.65 Immediate family members receive priority in grants of visas while more distant relatives including adult siblings, grandparents, aunts and uncles and parents of sponsors above 18 years have a very limited if not non-existent chance of being granted a visa under the family reunion programme. Since the introduction of the post-Houston Report amendments in August 2012, all applicants for split family applications being proposed by protection visa holders also need to demonstrate compelling circumstances (this does not apply to family members being proposed by offshore humanitarian visa holders).66 The Refugee and Special Humanitarian family reunion programme in Australia is currently experiencing many of the same difficulties as in Europe including processing delays, limited annual quotas, a restricted definition of ‘family’ and a restriction of eligibility with some refugees effectively unable to reunite with their family members.67 This has a significant impact on refugee communities and their settlement in the new country (resulting in stress, anxiety and mental illness).68 In addition to the reintroduction of offshore processing, the changes introduced as a result of the Houston Report on Asylum Seekers in August 2012 also announced the government’s intention to increase the annual quota for visa grants to refugees from the usual 13,750 places to 20,000 and eventually to 27,000.69 The Coalition government has declared its intention to reverse the increase, however with the difference that the number 64 65

66 67 68 69

For example Migration Regulations, subregulation 200.211(2). Migration Regulations, subregulation 200.222. Amendments in March 2014 have specified that family members sponsored by minors on subclass 866 protection visas (often issued to boat arrivals) no longer receive these concessions and now need to show additional requirements including the degree of discrimination the applicant is subject to in their home country. Migration Amendment Regulation 2012 (No. 5) (Cth), Select Legislative Instrument 2012, No. 230. Wilmsen (n 51), 57, 58. In Europe, see for example the integration and language testing requirements applicable in some member States. Ibid., 47, 48. Expert Panel Report (n 2) Recommendation 2, 14.

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of proposed Temporary Protection Visas granted would not take any places away from the quota for other related visas. One of the main problems with the refugee quota system was the inclusion within the quota of all protection visas granted onshore and offshore to irregular boat arrivals, visa granted under the resettlement program to applicants offshore, and all visas granted under the refugee family reunion programme. Prior to the above changes, the number of protection visas granted to an increasing number of boat arrivals had the effect of reducing the number of family members entitled to reunite with family members, a fact that the government has emphasised in justifying its return to offshore processing to deter asylum seekers arriving by ‘irregular means’. While opening more places to refugee family reunion applicants, recent legislative changes also mean some refugees are now only able to propose family members under the family stream which involves additional costs and income criteria to meet.70 Some authors have considered the impact of Australia’s family reunion policies on refugee communities. Wilmsen considers various case studies of refugee families and their experiences of the Australian refugee and special humanitarian family reunion programme.71 She makes several recommendations to address the current problems including the requirement that family reunion policies respect the principle of family unity and where possible support the existing configurations of refugee background families.72 Demleitner says that ‘generous and speedy family reunification can help prevent, or at least decrease, large-scale undocumented migration.73 While this was not referring specifically to the Australian context, it is particularly relevant to today’s refugee policy debate in Australia. If refugees are able to reunite quickly with family members, it may be less likely they will need to resort to the use of people smugglers to bring their family members to Australia.74 It remains to be 70

71 72 73 74

Ibid., 16. Family stream visas include partner visas, child visas and orphan relative visas. Significant application fees apply at the time of lodgement of the application. The sponsoring family member needs to demonstrate sufficient income to support their family members once they arrive in Australia and dna testing fees often need to be met by the family. Wilmsen (n 51),46. Wilmsen (n 51), 57. Nora Demleitner, ‘How Much Do Western Democracies Value Family and Marriage? Immigration Law’s Conflicted Answers’, Hofstra Law Review (2003) 32, 273, 295. Refugee Council of Australia (n 12), 9. A recent compelling case the author is aware of illustrates this. The wife and children of a man who arrived by boat and was granted asylum in Australia made applications for family reunion under the special humanitarian programme. The family members had all also been processed by unhcr in the transit country.

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seen whether the new policies restricting access to family reunion for unauthorised maritime arrivals have the effect of deterring boat arrivals, or whether reduction in numbers of arrivals is due to the reintroduction of offshore processing and lack of access to resettlement in Australia. It is likely that many asylum seekers will still continue to travel to Australia by boat, as many are unable to access viable settlement prospects in countries of transit such as Pakistan or Iran. There may also be residual hope that options to resettle in Australia may improve as there have been frequent changes to refugee policy. Refugee family reunion is a dynamic area of the law as a result of the recent changes to Australian law and policy on processing applications for family members, and the developments in Europe in response to the Green Paper on the Family Reunification Directive.75 The large backlog in refugee family reunion cases in Australia reinforces the need to examine alternative approaches. Increasing the quota by the small number announced previously will not provide long-term solutions.76 Nor will ad hoc policy changes, such as those which prevent ‘irregular maritime arrivals’ (now called ‘unauthorised maritime arrivals’) from proposing family members through the refugee and humanitarian programme and encourage applications through the family stream or the allocation of lowest priority processing to family stream applications sponsored by boat arrivals.77 Short term measures of this nature provide further barriers to the development of an appropriate process of reunification with family members.78 As already discussed, not all sponsors are eligible to make an application for a family member under the Family Visa Stream due to sponsorship requirements and prohibitive application fees. The Family Visa Stream includes partner visas, child visas, parent visas, and orphan relative visas. In addition to the requirements particular to the visas subclass, many of these visa applications are subject to long waiting periods.79 A parent visa may take more than

75 76 77 78

79

After waiting more than 2 years for the application to be processed, the family travelled by boat to Christmas Island and were transferred to Nauru for processing, meaning if assessed to be refugees, they won’t be settled in Australia with their husband and father. European Commission, Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC) (Brussels 15 November 2011). Report of the Expert Panel on Asylum Seekers (n 2), 14. Report of the Expert Panel on Asylum Seekers (n 2) 16, 17. Report of the Expert Panel on Asylum Seekers (n 2). There are additional costs and visa criteria to meet. Not all family members will be eligible for a partner visa, although this is the pathway recommended by the report. Asylum seekers awaiting processing of their claims who are released into community detention are often granted Bridging Visas. They may remain on bridging visas for extended periods without work rights. As bridging visa holders they are unable to sponsor

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13 years to be processed, causing great hardship for unaccompanied minors arriving by boat who wish to sponsor their parents.80 They will be prohibited from making an application under the refugee and humanitarian stream, leaving a parent visa as the only option in many cases. Comparative Practices in Europe There are a number of additional human rights protections that apply at the supranational level in Europe. Family members of applicants within the jurisdiction of the Council of Europe and European Union Member states that are party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (echr) and the European Union Charter of Fundamental Rights (2000) (Charter) may be protected under Article 8 of the echr and Article 7 of the Charter. Article 8 of the echr obliges State parties to respect the private and family life of individuals within the jurisdiction of the State.81 While this is a qualified right, any interference with the respect for family life must be in accordance with law and shown to be necessary in a democratic society.82 Article 7 of the Charter provides that everyone has the right to respect for his or her private and family life, home and communications. The right under Article 7 is specified as containing the same meaning and scope as Article 8 of the echr.83 It has been accepted that the Convention is intended to be a living instrument interpreted in the light of present-day conditions.84 Such an approach indicates that provisions of the echr are viewed in the context of the changing refugee situation in the Europe. Much of the case law and articles on Article 8 focus on how the right to respect for private life or family life is relevant to a consideration of whether a refugee can be deported or removed from the State.85 There has been case law to the effect that Article 8 of the echr may also 80

81 82 83 84

85

family members under the family stream visa programme. They will also have difficulty building up finances to sponsor family members in future without work rights and an income. Department of Immigration and Border Protection, Parent Visa Queue accessed 22 October 2013. echr (n 19). echr (n 19), Article 8(2); European Charter of Fundamental Rights (n 19). European Charter of Fundamental Rights (n 19), Article 52(3); echr (n 19), Article 8. Tyrer v United Kingdom (25 April 1978) echr; Helene Lambert, ‘The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion’ (1999) 11(3), International Journal of Refugee Law, 440. Charlotte Steinorth, ‘Uner v the Netherlands: Expulsion of Long-Term Immigrants and the Right to Respect for Private and Family Life’, Human Rights Law Review (2008), 8(1) 185.

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be invoked to allow entry of a family member where there is no other country where the family would be able to live together.86 There is no obligation to admit the non-citizen as such, but there may be an obligation on the State to admit the non-citizen with respect to the human rights of the individual’s family members.87 The right to respect for family life is considered to be more restrictive in entry cases than in cases where an expulsion or deportation is challenged.88 The approach of the European Court of Human Rights to Article 8 is to balance individual interests against the community’s interests,89 to determine whether any barriers exist to the applicant and his or her family members living together elsewhere (for example in their country of origin).90 Lambert has observed that not only does Article 8 involve a negative obligation not to interfere with family life, but also a positive obligation to ensure the right to family life is guaranteed.91 Lambert acknowledges that this leaves a wide margin of appreciation to States regarding what ‘respect’ entails.92 Lambert states that the test for interference operates more strictly in entry cases as it is more difficult to establish the required evidence of strong family ties and obstacles to continuing normal family life elsewhere.93 Thym sees this requirement as a reflection of the State’s prerogative to control the entry of foreigners.94 Thym also discusses a further method of restriction available to States as the restriction of ‘family life’ to apply to the nuclear family or core family but not extended family.95 Goodwin-Gill and McAdam see Article 8(1) echr as a qualified right which may be balanced against State aims including economics, health and security in the public interest.96 The European Court of Justice (now the Court of Justice of the European Union (cjeu)) has supported these views in the European Parliament v Council of the European Union case in confirming that 86 87

fh v Entry Clearance Officer, Tehran [2010] ukut 275 (iac). Daniel Thym, ‘Respect for Private and Family Life under Article 8 echr in Immigration Cases: A Human Right to Regularize Illegal Stay?’ International and Comparative law Quarterly (2008) 57, 87 at 103. 88 Jastram and Newland (n 29), 580; Lambert (n 84), 427. 89 Lambert (n 84), 428. 90 Jastram and Newland (n 29), 580. 91 Lambert (n 84), 487. 92 Ibid. 93 Lambert (n 84), 438. 94 Thym (n 87), 96. 95 Ibid., 91, 92. 96 Guy Goodwin-Gill and Jane McAdam, ‘The Refugee in International Law’, 3rd ed. (Oxford University Press, 2011), 318.

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the right to respect for family life does not create an individual right for family members to enter the territory of a State and the Member States do have a margin of appreciation when examining applications for family reunion.97 The margin of appreciation has been said to reflect the international nature of the European Court of Human Rights.98 In a similar vein, state sovereignty has continually been emphasised in the Australian context through explanatory statements accompanying the introduction of legislative amendments. This is often explained as a balancing the human rights of individuals against the national interest or in the interests of the Australian community.99 Gul v Switzerland has been cited as authority for the three-step determination process conducted by the European Court of Human Rights in relation to the right to respect for family life under Article 8 of the echr.100 The first step taken by the Court is to establish whether family life exists.101 The second step involves determining whether the action of the State constituted ‘interference’ with the family life; and the third step whether the interference by the State was justified in the circumstances.102 This requires a determination of whether the State’s actions were justified in accordance with law and necessary in a democratic society in the interests of national security, public safety, economic wellbeing, prevention of disorder, or protection of health, morals or the rights or freedoms of others.103 It has been suggested that usually the Court will find an adverse decision was justified where consistent with a State’s domestic legislation.104 The European Court of Human Rights has often found in favour of the member State in question where parents have voluntarily left dependent children behind and later wish to make a family reunification application for the child or children.105 Another reason the Court has frequently provided for refusal to overturn a member State decision is where there is no barrier to the family re-establishing life together in another country (for example 97 98

European Parliament v Council of the European Union (C-540/03) [2007] All e.r. (ec) 193, [1]. Gina Clayton, Textbook on Immigration and Asylum Law, 2nd ed. (Oxford University Press, 2006), 77. 99 See for example the Explanatory Memorandum accompanying the Temporary Protection Visas, or Select Instrument 230. 100 Mrazik and Schoenholtz (n 34), 657; Gul v Switzerland (1996) App. no. 23218/94, 22 Euro. h.r. Rep. 93. 101 Mrazik and Schoeholtz (n 34), 657. 102 Ibid. 103 Ibid. 104 Ibid., 658. 105 Gul v Switzerland (1996) App. no. 23218/94, 22 Euro. h.r. Rep. 93.

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the country of origin). This is less likely to be the case where the applicant family are refugees due to the impossibility of returning to the state of origin. It has also been observed that the Court has a tendency to focus on the overriding importance of the child’s cultural and linguistic ties in making a decision about whether the obligation to respect family life has been complied with.106 It has been recognised there are limits on the actions of member States justified by the use of the margin of appreciation principle. The method of interpreting the Convention as a living instrument has been used to reduce the margin of appreciation allowed to States.107 While strict uniformity throughout Europe is not required under the Convention, the Court has recognised boundaries on member State margins of appreciation and can request States to amend domestic legislation where it is inconsistent with the Convention.108 In 2012, Non-Government Organisations called for interpretative guidelines to assist member States in the implementation of the standards under the echr and Charter.109 Both instruments set out broad obligations which, by their nature, provide wide discretion in the way they are implemented by States. In response, in 2013 the European Court of Human Rights and the European Union Agency for Fundamental Rights jointly published a handbook on European Law relating to asylum, borders and immigration.110 The Council of Europe has also now published a handbook on Article 8 of the European Convention on Human Rights.111

106 Mrazik and Schoenholtz (n 34), 666. 107 Jean-Paul Costa, ‘On the legitimacy of the European Court of Human Rights Judgments’, European Constitutional Law Review (2011) 7, 177. 108 Ibid., 180. 109 64 ngos have called on the European Commission and eu Member States to ‘clarify the definition of the family members and of the dependent relatives entitled to family reunification’, and widen further than the current restriction of the definition to married couples and minor children (May 2012). 110 The foreword of the handbook specifies the handbook provides guidance on case law from both the Strasbourg and Luxembourg courts as well as the eu regulations and directives. accessed most recently on 22 April 2014. 111 Ivana Roagna, ‘Protecting the Right to Respect for Private and Family Life under the European Convention on Human Rights’, Council of Europe Human Rights Handbooks (2012), Strasbourg.

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European Council Directive on the Right to Family Reunification

The echr and Charter are both legally binding on all eu member states as a result of the provisions of the 2009 Lisbon Treaty.112 State parties to the Convention are required to accept the jurisdiction of the European Court of Human Rights.113 In addition to the Convention and the Charter, member States are bound by the obligations and minimum standards under the European Council Directive on the Right to Family Reunification.114 The Directive was challenged in the European Parliament Case, however the Court held that the Directive was consistent with rights in the echr and the Charter.115 A generous view of the protections under the Directive was supported in Chakroun v Minister van Buitenlandse Zaken.116 In that case, the European Court of Justice determined that the Directive establishes a clearly defined individual right to family reunification leaving member States without a margin of appreciation.117 The Court also emphasised that authorisation of family reunification is the general rule, and any conditions that member States might try to impose on third-country nationals wishing to unify with family members will be imposed strictly and as a limited exception.118 An important development in Europe has been the release of the European Commission Green Paper on the Family Reunification Directive and the resulting submissions in response to the paper.119 Despite the earlier decision by the ecj (cjeu) in Chakroun, one of the main issues the Paper identified as being of concern is allowing too much discretion to member States when applying optional provisions.120 The general view of the numerous submissions in response to the Green Paper is that the Directive allows parties too much 112 Treaty of Lisbon amending the treaty on European Union and the Treaty establishing the European Community, C2007/306/01, 13 December 2007. 113 Council of the European Union Directive of 22 September 2003 on Family Reunification 2003/86/EC [2003] OJ L251. 114 Ibid. 115 European Parliament Case (n 97), [110]. 116 Chakroun v Minister van Buitenlandse Zaken (C-578/)S) [2010] 3 cmlr 5 (ecj). 117 Ibid., [1]. 118 Ibid.; Anja Wiesbrock, ‘The Right to Family Reunification of tcns under eu Law: Decision of 4 March 2010, case C-578/08’, European Constitutional Law Review (2010), 6, 462. 119 European Commission, Green Paper on the right to family reunification of thirdcountry nationals living in the European Union (Directive 2003/86/EC) (Brussels 15.11.2011). 120 Ibid., 1.

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discretion to restrict family reunification rights.121 The Preamble (9) of the Directive provides that reunification should apply to members of the nuclear family, leaving it to the discretion of State parties to allow reunification for any other family members.122 Introduction of the Family Reunification Directive was consistent with the European Union’s intention to create a common immigration and asylum policy through the Common European Asylum System.123 Some of the identified problems with the Family Reunification Directive and its implementation include the use of ‘may’ provisions allowing State discretion with respect to fees, waiting periods, resources and integration measures (including language testing).124 Submissions in response to the Green Paper also identified other issues including instances where the directive has not been implemented correctly into domestic legislation. Many submissions (particularly those from ngos) cautioned against attempting to amend the Directive in the current political climate, believing that may only result in further restrictive provisions in the Directive.125 There were extensive calls from both member states and ngos for the introduction of interpretative guidelines for the Directive. Guidelines on the application of the Directive were released on 3 April 2014 so it is not yet possible to gauge the impact of these in this chapter, however the European Commission states the aims of the guidelines include ensuring a transparent and clear understanding of family reunification and contributing to the coherent application of these rules across member States.126

121 unhcr’s Response to the European Commission Green paper on the Right to Family Reunification of Third Country Nationals Living in the European Union (Directive 2003/86/EC), February 2012, 4; Submission from the European Council on Refugees and Exiles in response to the Commission’s Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/ EC), 2. 122 Family Reunification Directive (n 114) Article 4(6) makes it possible for member States to require applications for family reunification of minors to be submitted before the children turns 15 years of age. 123 Clayton (n 98), 132. 124 Report on the application of Directive 2003/86 on family reunification of third country nationals, Memo/08/611 (Brussels 8 October 2008). 125 Summary of responses to the Green Paper by the European Commission. 126 Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification, com(2014) 210 final, 3.4.2014, Brussels; faq: on the Family Reunification Directive and the guidelines, European Commission, 3 April 2014, Brussels.

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Apart from the limited definition of family, other barriers restricting access to family reunification include the imposition of income and accommodation requirements.127 Income and accommodation requirements also cause difficulties for family reunification in Europe.128 While determining these requirements may be seen as within the scope of the margin of appreciation granted to member States, restricting access to family reunification by introducing unrealistic requirements may mean States are not meeting international obligations.129 Conclusion Despite the international protections that exist for family reunification, refugees seeking to propose family members to come to Australia face significant barriers including restrictions on the type of family members who may be eligible and long delays in processing. For those who arrive by boat and apply for protection, it is no longer possible to apply for family reunification under the Refugee and Special Humanitarian programme to propose family members. Redirecting applications by this group to the Family Visa Stream imposes additional cost and evidentiary requirements which may prevent access to family reunification entirely for certain sponsors and applicants. One of the aims of granting temporary protection visas rather than permanent visas is to prevent asylum-seekers arriving by boat from accessing family reunification rights. This will result in a breach of the international obligations to respect the right to family unity and family reunification under the relevant international instruments and which is recognised by some scholars as a customary law right, if not officially recognised under the relevant international instruments. While a full comparative study cannot be completed in this paper, there are a few points to note in terms of the differences between family reunification rights in Australia and Europe. In the Australian context, family reunification is protected through broad rights including the principle of family unity under the iccpr, icescr and udhr and the specific case of children under the crc. There are no additional safeguards in place to protect individual rights to the respect for family life. In the Australian context, refugees seeking family reunion are penalised according to the mode of arrival. In the case of 127 Jastram and Newland (n 29), 561. 128 Jastram and Newland (n 29), 562. 129 Ibid.

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unauthorised maritime arrivals, policy changes have effectively prevented access to a right to family reunification at all, breaching Australia’s international legal obligations. Australia has justified its approach to family reunification for boat arrivals as necessary to protect Australia’s sovereignty and to prevent the use of people smugglers, however this does not excuse the failure to accord with the principle of family unity or right to family reunification under the crc for unauthorised maritime arrivals. European Union member States are bound by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms to respect the right to family life. In addition the European Council Directive on Family Reunification provides guidance for member States in implementing the right to family reunification on a domestic level. While it is acknowledged that there are also limitations in the European context for refugees seeking reunification with family members, it is the author’s view that the European Charter, Convention and Family Reunification Directive provide further protection for applicants. The additional right to respect for family life provides another layer of protection through binding rights in both the Convention and Charter, as well as the Family Reunification Directive. These instruments act to protect at least the minimum standards for refugees seeking to reunite with family members. It is argued that these boundaries on the margin of appreciation or executive discretion available to States provide additional protection to refugees seeking family reunification which do not exist in the Australian context. Despite the fact that the right to family life under Article 8 of the echr has often been applied restrictively in the case of entry cases where family members are seeking to join their family members resident in the European Union, the additional review mechanisms available provide a benefit to family reunification applicants. Further protection for the right to family unity and family reunification may be provided through expanding the definition of ‘family’ in the international instruments to encompass wider formulations of refugee families. Introducing additional human rights protections in Australia, consistent with the rights protected by Article 8 of the echr may also assist in providing further safeguards for refugee family reunion. The difficulty lies in balancing the rights of an individual to reunification with family members against the margin of appreciation granted to States in the interests of State sovereignty.

Index Access to justice 44, 276, 286, 289, 327 Access to protection 35, 50, 55–56, 57, 82, 85–86, 193 Adversarial 6, 276, 279, 295–296 Appellant 11, 13, 70, 278–279, 287–291, 294–295 Asylum appeals 279, 289, 295, 296 Asylum determination process 6, 17, 31, 57, 59, 62, 67, 93, 94, 100, 102, 104, 107, 122, 138, 195, 203, 210, 213, 215, 216, 193, 294, 296 Australia 4, 6, 34, 90–94, 101–107, 251, 323–345 Australia’s refugee programme 335 Brasilia Declaration 121, 126, 150, 168–171 Brazil 5, 121, 123, 125–130, 167, 194, 218–232 Brazil – Migration Law n. 6815 of 1980 220– 221, 235 Brazil – Haitian In 220, 226–233 Cartagena Declaration 124–125, 127, 134, 144, 149–150, 154–159, 165, 170–171, 182, 212, 222, 224–226, 347 Colombia 120, 121, 124–126, 128, 130–131, 150, 156, 160–171 Common European Asylum System 24, 35, 240, 241, 269, 271, 344 Convention Relating to the Status of Refugees / 1951 Convention / Geneva Convention 24, 51, 52, 60, 68, 69, 149, 151, 170, 182, 208, 222, 229, 231, 233, 235, 237, 241–243, 247–248, 251, 254–256, 261, 263, 265, 267, 270, 275, 292, 329 Council Directive 2001/55/ec 198 Court of Justice of the European Union 21–22, 36, 241, 340, 347 Credibility 18, 20, 59, 277–281 Cuba 94, 98–99, 123, 125, 128–129, 161 Culture of disbelief 20, 195, 281 Decision-makers 3, 10, 16, 32–34, 46, 48, 29, 245, 254, 265, 280, 282 Durable solutions 143, 159, 160, 165–166, 170, 197, 203, 205–206, 214, 216, 229, 281, 319

Earthquake in Haiti (2010) 120, 218, 226–230 European Convention on Human Rights 3, 24, 25, 32, 207, 275, 303, 328, 333 341, 342, 343 European Court of Human Rights 3, 13, 16, 18, 20, 22–23, 26–28, 31, 36, 49, 61–62, 65–66, 74–79, 84–88, 242, 257, 265–266, 268, 271, 270, 305, 317, 330, 340–342 Effective protection 36, 38, 49, 75, 78, 135, 167, 184, 219, 249, 256–258, 263, 321 Environmental migration 159, 203, 218, 226, 228–229, 231–239 Environmentally displaced persons (see Environmental migration) eu Qualification directive 24, 35–36, 28, 42, 44, 47, 29, 58, 201, 212, 215, 233, 241, 243–249, 252, 254, 267–270 Expatriates 298–310 Extraterritorial processing 4, 90–94, 98–99, 101, 105–111, 114–115 Fairness 61, 68, 82, 86, 104, 276, 279, 291, 295, 296 Family reunification 6, 323, 331 Family reunion (see family reunification) Family unity 7, 140, 328 First-tier Tribunal (Immigration and Asylum Chamber) 278 Forced migrants 169, 217, 226, 298–300, 312–317, 322 Forced Migration 2, 5, 149, 160, 171, 225, 237–239, 243 Gender 24, 126, 138–139, 142–144, 169, 177, 225, 244–245, 249–255, 257 Guantanamo Bay 91, 94, 96–100, 107–109, 111 Haiti 94–100, 107, 170, 218–220, 226–233, 236 Haiti – Earthquake in 120, 218, 226–230 Home Office (uk) 71, 275–283, 288, 291, 295 Human trafficking 141, 173, 175–176, 196, 231 Human trafficking – victim of 140, 142, 174, 176–177, 179–181, 183, 185–186, 189–190, 194, 196, 225–226, 290

348 Human trafficking – protocol on 173, 175–183, 186, 188–190, 193, 195 Human trafficking – Council of Europe Convention 174, 177, 179 Humanitarian crisis 159, 162–163, 166, 199 Humanitarian protection 136, 141, 218, 231–232, 275, 336 Humanitarian Visa (see humanitarian protection) iccpr 65–67, 73, 207, 215, 242, 270, 299, 301, 302, 311, 330, 333, 345 Immigration Judge 279, 281, 296 Inquisitorial 279, 296 Interdiction 2, 4, 12, 90–95, 97–99, 101–102, 106–111, 114, 179 Internal flight alternative 3–5, 7, 9–11, 31–38, 42–49, 258, 260, 263–266, 268–269 Internal protection alternative (see internal flight alternative) Internal relocation (see internal flight alternative) Latin America 4, 7, 118–127, 129–130, 133, 144–145, 149–151, 155–157, 159–160, 165–169, 171, 182, 218, 225–226, 233 Legal advice and representation 276, 279, 282–287, 289–290, 292, 294–297 Legal aid 6, 276, 282–283, 285–291, 293, 296 Lesson-drawing 4, 90–92, 109–111, 114–116 Mass influx situations 5, 136, 171, 197–207, 213–217 Membership 4, 6, 33, 68, 153, 208, 211, 248–249, 252–254, 322 Merits test 288–289, 291, 297 Mexico Plan of Action 121, 126, 150, 160, 165–166, 170–171 Migrant workers 194, 221, 298–299, 309–311 Migrants’ rights 225, 310 Migration policy 7, 92, 113, 116, 229 Natural disasters 7, 136, 227–228, 232 Nauru 91, 101–103, 105–107, 109, 111, 324–325 Persecution 1, 5, 11, 13–15, 17–19, 24, 33–38, 44, 47, 57–60, 63–64, 68–69, 94, 96–97, 106, 122–123, 136, 143, 170, 183–184,

Index 187–188, 208–211, 223, 229, 241, 251, 254–259, 262–266, 269–270, 276, 280–281, 283, 293, 300–301, 313, 315–316, 318, 320–321 Persecution – notion of 242–249 Pacific Solution 101–110 Papua New Guinea 91, 102, 324 Persons fleeing armed conflict 197, 208–212 Policy transfer 91, 110 Political participation 307 Post-conflict 312–319, 322, 334 Pro bono 290 Protection – Long Term 173–174, 192, 196, 232 Protection – Short Term 174–175, 188, 232 Protection – Refugee (see protection –long term/short term) Public funding 277, 284, 288–289, 294 Quality 9–10, 44, 80, 115, 118, 128, 166, 204, 227, 276–279, 283–287, 292–296 Re-trafficking 172, 184 Refugee Convention 31–36, 44, 47–49, 93, 97, 112, 131–135, 141–142, 169, 180–182, 191, 208, 222, 229–235, 241–243, 248–249, 254–259, 263–271, 275, 292, 329 Refugee family reunification 333 Refugee family reunion 323, 328, 331, 337–338, 346 Regional Consultative Processes 113 Responsibility-sharing 167 saarc Trafficking Convention 175 San Jose Declaration 121, 125, 150, 158–159, 170 Sexual orientation 247–248, 251 Solidarity 154, 160, 165, 167–169, 171, 235, 237, 241 Solidarity – borders of 167, 171, 225 Solidarity – cities 167, 225 Solidarity Resettlement 171, 225 Temporary protection visas 324, 326, 337, 346 Trafficking in persons (see human trafficking) Trafficked Person (see human trafficking – victim of)

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Index United Kingdom 12, 27, 37, 39, 43, 54, 97, 114, 183, 281 unhcr 9, 34, 38, 44–47, 57–58, 60, 63, 98, 102, 104, 112, 122, 126–134, 137, 138, 140–143, 150–152, 155, 156, 160, 162–164, 168, 170, 183, 198–199, 202–203, 209, 212, 222, 242, 244–245, 248–254, 259–262, 264–265, 270, 312, 318–319, 321, 333

United States 54, 90, 92–101, 106–111, 114, 120, 145, 155, 306 unodc 187, 191 Voting rights 152, 298, 304, 307–310 Wales 285, 289, 297