Refugee Law Research Articles

MASS DEPORTATION OF AFGHAN REFUGEES FROM PAKISTAN: REFUGEE LAW AT STAKE OR SOLUTION FOR HALTING TERRORISM?

Pakistan has been a host to millions of afghan refugee for about more than 40 years. Initially, Pakistan provided asylum to the afghan refugees on the basis of Islamic brotherhood and called the afghan refugees as “Muhajirs.” Even though, Pakistan is not a signatory to the 1951 convention of refugee and its protocols of 1967. Yet Pakistan has a morale responsibility to give protection to the Muslims around the world because Pakistan is assumed as a castle of Islam. However, there has been a shift in this open door policy of Pakistan for Afghan refugees and in 2002 approximately four million Afghan refugees returned to their homeland with the support of UNHCR. After the withdrawal of US troops from Afghanistan, the afghan refugees have been reluctant to return to their country of origin due to their affiliation with the US. Lately, the caretaker government of Pakistan issued a statement about the deportation of unauthorized immigrants that largely impacted the Afghan refugees due to their large number living in Pakistan. This verdict of government included two phases of repatriation: in the first phase voluntary deportees were facilitated, whereas the second phase included the use of force in the repatriation process. This whole process of repatriation was presented as cessation of terrorism in Pakistan by the governmental authorities. This paper analyses the status of Pakistan and the refugee law for sending back the afghan refugees to the Afghanistan. This paper also examines how the mass migration has alleviated the problem of terrorism in Pakistan.

The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims.

Questioning legal personhood: a critique of the legal and jurisprudential underpinnings of EU immigration and asylum law

AbstractUsing the lens of immigration and asylum, this Article develops a new understanding of legal personhood on the basis of equal human dignity, as the interface between legal personhood, equality and human rights, in order to address the dual-faceted and opposing reality of immigrants and asylum claimants in relation to their equality as humans in the order of nature and their inequality within the social/political order of Europe, where they are subjected to a constant process of depersonification and reification. This reformulated approach to legal personhood not only seeks to remove the debasement and dehumanisation that has come to characterise European Union (EU) immigration and asylum law but also intends to address the limitations of the Common European Asylum System (CEAS) as a valid platform for translating the EU’s own self-proclaimed commitment to human rights into justiciable normative claims.

“Systemic Violations” in EU Asylum Law: Cover or Catalyst?

AbstractThe concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.

Progress in Migration and Asylum Law scholarship – International, Intersectional, and Interdisciplinary

Progress in Migration and Asylum Law scholarship – International, Intersectional, and Interdisciplinary

Invisible Crimes: Accountability for Crimes against Migrants in Libya

Abstract The systematic lack of accountability for migrant rights violations occurring in the context of migration control and other deterrence measures has been contested in theory and practice. While the scholarship has explored various accountability venues above and beyond international refugee law and within specialised regimes, new litigation strategies have accountability across multiple judicial and quasi-judicial fora at national and international levels. Against the background of this multilevel litigation strategy, international criminal law has emerged as a new site for accountability for violence against migrants at the borders of Europe. Starting from the Libyan case study, this article will examine the potential of international criminal law in the struggle for accountability for migrant rights violations. It will discuss whether and how qualifying migrant rights violations as crimes against humanity can illuminate certain aspects of violence against migrants at the borders of Europe while concretely challenging and addressing contemporary contactless forms of migration deterrence.

Reappraising the EU-Turkey Refugee Statement within the Human Rights and Neoliberalism Nexus

ABSTRACT Instead of acting consistently with international law and its own refugee law, the EU has adopted an ambivalent stance over refugee arrivals to Europe. Member states’ increasing anxiety led the EU to tighten border controls and outsource its humanitarian responsibilities by agreeing on a statement with Turkey to prevent refugees from entering the EU irregularly. This paper focuses on the human rights breaches and contradictions of the EU-Turkey Statement by specifically investigating the one-in-one-out mechanism and the argument that Turkey is safe country. It is argued that the Statement has turned the refugee issue into the subject of the European market because the political architecture of EU human rights norms has historically been part of the neoliberal hegemony. Hence, the refugee case reveals how inadequately produced norms inside Europe’s borders reproduce inequalities and cause mismatches between the EU’s claimed role as rights promoter and its practical inadequacies and market-based pragmatism.

Correction to: ‘Doing’ Legal History in Refugee Law: A Snapshot of Bangladesh’s Engagement with Non-Refoulement

Correction to: ‘Doing’ Legal History in Refugee Law: A Snapshot of Bangladesh’s Engagement with <i>Non-Refoulement</i>

European Response to the Mass Influx of People Caused by the Russian Invasion of Ukraine: Testing the Limits of International Refugee Law

Summary Russia’s invasion of Ukraine has forced millions of people to flee the erupting armed conflict. Some of them were displaced within Ukrainian territory, others crossed the border and sought refuge in neighbouring countries and others further abroad. This article explores the limits of international refugee law in addressing this situation, which are of two kinds. First, people fleeing armed conflict are not considered refugees under the Refugee Convention if they are ‘merely’ fleeing armed conflict. Furthermore, the large number of persons arriving is also a limit. These limitations of international refugee law are filled by regional protection statuses (including temporary protection in European Union law) and the procedural ways in which protection can be granted. This article focuses on whether the current legislation in EU law is a sufficient response to the situation created by the Russian invasion of Ukraine.

Epilogue: Asylum Law and Linguistic Fragility

This paper provides an overview of the contributions of the special issue, using these to arrive at an inventory of five ways in which we can critically approach the role of legal language in the systems of asylum determination in rich countries. It also draws out a series of broader lessons from the special issue and concludes by reflecting on the influence of scholarly work amongst the judges, lawyers, interpreters, and others involved in administering asylum processes.

Non-Incorporation of the Principle of Non-Refoulement in the Chilean Immigration and Aliens Law

This paper critically analyses the non-incorporation of the principle of non-refoulement in the Chilean Immigration and Aliens Law 21.325 of 20 April 2021. It was published in the context of migratory pressures within the Latin American region, deriving mainly from the Venezuelan socio-political crisis. It was also published after the recommendations given by the CMW in the last two periodic reviews of 2011 and 2021 to update the previous version dictated during the Pinochet dictatorship. As a state party to the core international human rights treaties and the American Convention on Human Rights, an urgent claim existed in Chile to adapt its migration law. Following a heated debate in 2019, the parliament eliminated the recognition of the principle of non-refoulement contained in the draft law arguing it was already recognised in refugee legislation. Instead, they identified a ‘complementary protection’. This paper examines whether this decision breaches human rights standards, particularly the obligation to adopt legislative measures to give effect to the principle of non-refoulement. It begins by analysing the principle of non-refoulement in international refugee law. Then, it turns into identifying the human rights obligations emanating from the principle of non-refoulement. Finally, the paper applies this standard to law 21.325. The paper concludes that not incorporating the principle of non-refoulement into law 21.325 constitutes a breach of Chile’s human rights obligations, facing the risk of incurring international responsibility.

MOBILIZATION OF THE “OTHER” IN SLOVENE NATIONAL IDENTITY DURING THE 2015 REFUGEE CRISIS

In the aftermath of the 2015 European refugee crisis, a wave of scholarship has considered Eastern European populist leaderships to explain these states’ policies toward refugee influx. This article challenges these accounts by contending that relationship between influx of foreign nationals in the name of migrants into a national homeland and deteriorating national perceptions deserves greater attention to understand social strife within Slovene society against the flow. To this end, it examines Slovene intelligentsia’s policy of construction of Slovene national identity and its stereotyping Balkan ‘Other’ during the breaking up of Yugoslavia. Concretely, it applies postmodern approach that identities are fluid and benefiting from modernist theories on nationalism to explain deteriorated perceptions of post-communist Slovene society toward distinct Slovene national homeland in the time of refugee influx. The article finds that Slovene national identity that was constructed during the secession from Yugoslavia under the influences of europeanization and globalization has been re-constructed during and aftermath of the 2015 refugee crisis and the Other of Slovene identity mobilized or changed from the Balkan to the Middle East and Islam and that can be investigated through developments, a) changing perceptions of the Slovene nationals, b) Slovenia’s new asylum law, c) collaboration of Slovenia and the Balkan states d) discourses of prominent Slovenes and social media groups.

Exclusion of the principle of non-refoulement in article 33 paragraph 2 of the 1951 refuge convention

This study aims to examine whether non-refoulement in the refugee context has attained the status of a jus cogens norm or not and how the exceptions in Article 33(2) should be understood if non-refoulement is indeed considered as a jus cogens. This research adopts a normative juridical analysis approach to critically examine the status of the principle of non-refoulement. The study concludes that the principle of non-refoulement qualifies as a norm of jus cogens based on several key criteria. Firstly, it satisfies the requirements of a jus cogens norm by addressing matters of common concern to the international community, serving humanitarian purposes, and aligning with principles outlined in the UN Charter relating to treaties and the use of force in international relations. Secondly, the exception outlined in Article 33 Paragraph 2 of the Refugee Convention does not alter the non-derogable nature of the principle of non-refoulement. The fulfillment of Article 33 Paragraph 2 is contingent upon strict conditions and necessitates objective evidence to be provided by a country. The research is intended to contribute to the understanding of the normative status of the principle of non-refoulement within the framework of international refugee law.

Balanced Security and Humanity: an Analysis of Australian Policies in Handling of Boat People and Its Impact on Indonesia

The rise of Boat People arriving in Australia made the Australian government issue a policy called a policy Operation Sovereign Border, the policy is a policy used to deal with asylum seekers by preventing and expelling asylum seekers. This policy reaped controversy because it violated the provisions of international law. This legal writing analyzes how efforts to deal with boat people and their rights and obligations according to international law as well as the influence of Australian policies in dealing with boat people and the impact of Australian policies on Indonesia. This research uses a normative juridical method which is carried out through a literature study with a statutory, historical approach, and conceptual. Australia has also ratified the 1951 Convention which has become the basis of international law for refugees, and has also regulated the protection of refugees and has become a reference for many countries in developing their refugee laws and policies. Australia's policy on preventing migration by boat has several significant effects, such as: (1) Reducing the number of migrants via; (2) Impact on the people smuggling business; (3) controversies and issues of human rights; and (4) Regional effects.

Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?

Abstract Since India has no established refugee regime, most developments in this sphere have arisen from judgments. However, the lack of relevant applicable law means that these developments are piecemeal and humanitarian at best, failing to make true advances in jurisprudence, and anti-refugee at worst. This article argues that through recourse to international law, these hurdles can be surmounted to ensure more robust protection to refugees. Further, it is argued that constitutional and international law obligations binding India mandate that the Indian judiciary refer to these international law instruments. Doing so would ensure significantly stronger protection for refugees and less deference to the executive’s ad hoc stance.

Europe’s Refugee “Crises” and the Biopolitics of Risk

Abstract This paper provides an analysis of the legal and policy foundations of the different approaches adopted by the European Union (EU) in relation to the 2015/2016 and 2022 refugee “crises”. Its main objective is to show how a risk-based biopolitical framework can bridge the gap between EU institutional narratives and the critique of Europe’s racialised governance schemes. The two “crises” have been largely shaped by a perceived need to manage risk, yet this has produced very different institutional responses, in ways that concealed their racialised dimension. Analysing how risk has been understood in the two contexts, the paper shows how their legal and policy foundations (re-)produce a racialised differential scheme. Amidst ongoing debates on reforming EU migration and asylum law, the paper also shows how the current proposals further consolidate this scheme.

All That Glitters Is Not Gold? Civil Society Organisations and the (non‐)Mobilisation of European Union Law

AbstractIncreasingly, collective actors in Europe, such as in the Netherlands and Italy, turn to litigation as the preferred strategy to attain their goals. Both at the national level and at the European level, civil society organisations (CSOs) are active in high‐profile cases, for example, in the field of asylum law. These CSOs operate in a different national political and legal system but do have similar European‐level opportunities. However, the extent to which European Union (EU) law is mobilised differs per CSO. This begs the following key question: Why do some CSOs mobilise EU law more frequently than others? Using empirical data, this article attempts to uncover what factors are relevant for four CSOs from Italy and the Netherlands whether to mobilise EU law or not. Most importantly, the article concludes that the framing of EU legal opportunities by the CSOs is considered to be relevant in (non‐)mobilisation of EU law.

A Requirement of Shame: On the Evolution of the Protection of LGB Refugees

Abstract The particular difficulties that lesbian, gay, and bisexual refugees face when applying for asylum are in constant flux. As one issue is removed, another takes its place. This article provides a historical overview of these developments and shows how attempts to include lesbian, gay, and bisexual people and their experiences have transformed shame into an implicit legal requirement in certain countries, in particular, Sweden and the Netherlands. While the implementation of the Difference, Stigma, Shame, and Harm (DSSH) model aimed to promote open-ended conversations about the fluidity of sexual orientation, in the contexts examined in this study, it has arguably led to a set of legal requirements that emphasize suffering and internalized homophobia. Further, the article argues that, as developments in refugee law have centred the procedural focus on the credibility of the applicant and have formulated sexual orientation as a fixed identity, this identity has become a decisive requirement in the bureaucracy of border control. In addition, the understanding of this lesbian, gay, or bisexual refugee identity has, in turn, been influenced by colonial perceptions of homophobia and sexuality.

Understanding the Politics of Refugee Law and Policy Making: Interdisciplinary and Empirical Approaches

AbstractIn this article, we argue that building a stronger empirical understanding of the politics of domestic refugee law and policy making is essential for refugee law scholars to better advocate for protection-orientated reforms. While much of the legal scholarship is aimed at promoting policy change, the best way to achieve this goal has rarely been examined. We identify three key areas of interdisciplinary empirical research that can create a stronger evidence-base for improving domestic policy reform efforts. This includes understanding the institutions and actors involved in policy formulation, measuring the impact of refugee laws and policies in practice, and identifying how to influence public opinion and build support for progressive law and policy change. We showcase existing interdisciplinary research in each of these areas, and highlight topics ripe for further empirical inquiry.

Between Asylum and Liberation: The New Palestinian Refugees

Abstract Contemporary Palestinian asylum seekers raise fundamental questions regarding the relationship between the institution of asylum and struggles for national liberation. Underlying the legal framework that applies to them is an assumption of inverse correlation: the more Palestinians obtain access to individual asylum claims, the less secure are the fundamental Palestinian claims of self-determination and return. But is this trade-off acceptable today? Comparable dilemmas animate other large-scale displacements, but scholars seldom discuss their full implications for international legal theory. Rather than providing a definite answer to the question, this article maps out four major aspects of how individual protection and self-determination are interrelated, or, indeed, bifurcated, in international law. The new Palestinian refugees are important to consider not only because their continued displacement is foreseeable but also because their exceptional plight invites a reconsideration of the political foundations of refugee law. How can policy makers and legal interpreters uphold principles of both individual and collective protection, preventing the two from cutting against each other?