Refugee Status Determination Research Articles

The importance of adopting an intersectionality approach to refugee status determination procedures: lessons from Greece, Israel and Uganda

PurposeThis paper argues that intersectionality ought to be a vital tool to identify and recognise those who are refugees. It provides a useful way to distinguish refugees from migrants as well as making it possible to screen for asylum seekers who are at greater risk of experiencing specific vulnerable situations, such as sexual and gender-based violence. This study therefore argues that intersectionality is useful for risk assessment processes as well as for triggering special protection mechanisms.Design/methodology/approachThis research article draws from a cross-cultural empirical study conducted in Greece, Uganda, and Israel on problems asylum seekers and refugees face in host countries.FindingsIt is argued that while it is important to identify and screen for asylum seekers who have survived or are at greater risk of experiencing sexual and gender-based violence to provide special protection, it may lead to what has been called a “categorical fetishism”, in this case, applied to vulnerability. Such stigmatising and disempowering perceptions of refugees and their experiences may lead to the view that there are “good” refugees and asylum seekers who are worthy of protection, as opposed to “others”.Originality/valueThis original empirical article provides a new way of examining issues of refugee status determination to ensure fairer ways of doing so.

A Global Administrative Act? Refugee Status Determination between Substantive and Procedural Law

A Global Administrative Act? Refugee Status Determination between Substantive and Procedural Law

Western hosts and Southern ghosts: the west-as-host construct in refugee law scholarship and its gendered implications for women in polygynous relationships

ABSTRACT Refugee law scholarship is largely focused on the application of refugee law and the refugee status determination processes of Western host countries. This geographical focus in much scholarly work stands in stark contrast to the global distribution of refugees, the majority of whom are hosted by countries of the Global South. Women refugees are particularly underrepresented in Western host states. This paper focuses attention on refugee women in polygynous relationships within the South African asylum system, exposing both the exclusionary impact of Western anti-polygamy measures and the imbalanced knowledge production in refugee law. This work makes clear the way in which an unacknowledged bias in the study of refugee law as applied only in select Western countries, limits and indeed distorts our understanding of international refugee law and serves to erase certain refugees.

The Challenges in Balancing National Interests and Global Responsibilities in South Korea’s Refugee Policy

Abstract This study offers a critical analysis of refugee policy in the Republic of Korea (South Korea) since the national government in 2013 enacted a law intended to improve its treatment of refugees and asylum seekers and align itself more closely with the principles of the 1951 Refugee Convention. The article begins by focusing on a major controversy that arose in 2018, following the arrival of more than 500 asylum seekers from Yemen, an episode that revealed how considerable public antipathy toward refugees presents a social and cultural problem for South Korea as it charts a course for improvement of its treatment of refugees. The analysis then turns to numerous problems at the nexus of law and society that continue to plague the refugee status determination process and, in many instances, to deny basic rights to a rapidly growing number of asylum seekers in South Korea. The article concludes by showing how, despite these problems, South Korea is better positioned than many of the world’s more affluent constitutional democracies to harmonize its national interests with its responsibilities to make a meaningful contribution to ongoing global efforts to protect and accommodate refugees.

‘Assembly-Line Baptism’

We explore judges’ approaches to asylum court appeals based on the issue of conversion from Islam to Christianity. Our court ethnography in Germany and Austria in 2018 and 2019 provides an insight into how such claims are discussed during appeals. At the time, they were increasingly common, especially concerning Iranians and Afghans involved in ‘free churches’ (e.g. Evangelical, Pentecostal or charismatic). We show how rumours, congregations’ reputations and assumptions about baptism and what genuine conversions entail are discussed. These factors can not only influence appellants’ cases, but reveal church–state tensions and some of the intractable challenges of refugee status determination.

“Sexuality” through the Kaleidoscope: Sexual Orientation, Identity, and Behaviour in Asylum Claims in the United Kingdom

The asylum system is a key site in which disputes over “sexuality” are contested. In refugee status determinations, administrative bodies are required to determine the actual or perceived sexuality of a claimant. This article draws on eight semi-structured interviews with refugees who claimed asylum in the United Kingdom based on their sexual diversity to deconstruct the distinct conceptions of sexual orientation, identity, and behaviour prevalent within the asylum system. It argues that the UK system overly privileges identity, falsely construing this as determinative of other aspects of sexuality. In doing so, it proposes a new framework of sexual diversity as a more relativist and inclusive way of making sense of sexual difference.

Digital Refugee Lawyering: Risk, Legal Knowledge, and Accountability

Abstract This article explores how the digital transformation of humanitarianism, and the refugee regime reshapes refugee lawyering. Much refugee lawyering is based on a traditional understanding of legal protection – and a focus on legal aid, law reform advocacy, and specific protection procedures (such as refugee status determination). Refugee lawyering must now grapple with the challenges offered by the digital transformation of international protection. This entails identifying emergent protection issues and how they relate to the law and legal claims. To that end, the article puts forward suggestions regarding the risks of the digital transformation as it pertains to the humanitarian space, the refugee management infrastructure, and refugee lawyering. The article also considers its implications for legal knowledge and the possibility that law may be “displaced” by technology. The article concludes by discussing what it means for refugee lawyering and for being accountable to the norms and values of rule of law standards, international protection, and to individual clients.

Canada - A Long Way To Go: The Designated Country of Origin Policy and Refugee Protection

The Designated Country of Origin (DCO) policy was a political response to unwanted migration in Canada. Adapted from Europe, Harper took a liking to the EU’s SCO policy after Canada received a large influx of Middle Eastern and Balkan refugees seeking asylum. He adapted it in Canada, renaming it Designated Country of Origin (DCO). Under the DCO, the government of Canada would decide if a refugee's country of origin was dangerous enough to be considered for asylum. If the asylum seekers country is determined as safe, that person would be disregarded and sent back to their country of origin. Many refugees who had already settled in Canada had their files reopened and were told to return to their country of origin. The DCO policy became an integral part of the refugee status determination process in Canada to which some regarded as faulty, inefficient, and unjust. In 2019, the SCO was deemed unconstitutional and violated The Canadian Charter of Rights and Freedoms. Ahmed Hussen, Minister of Immigration, wanted to create an asylum system that was considered fair and efficient. While it is important for an asylum seeker to prove they are truthful about the facts of their case, the DCO policy represents a climate of hostility towards migrants in Canada. In this piece, it will be argued that the DCO policy is a discriminatory migration tool used to “weed out” what the government deems as fake migrants. This policy could deny international protection to those who are genuinely in need. The DCO proves that the nation has a misleading reputation of being welcoming to all who come. The DCO threatened the human rights of asylum seekers who sought refuge in Canada.

Canadian Exclusion Jurisprudence post-Febles

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

Implementing and Interpreting Refugee Resettlement Through a Veil of Secrecy: A Case of LGBT Resettlement From Africa

In the last decade the number of countries aiming to resettle refugees increased and complementary pathways aiming to relocate humanitarian migrants expanded. Stakeholders in charge of the selection process of candidates and logistical organization of these programs multiplied as a consequence. Because refugee resettlement and complementary pathways are not entrenched in international law, selection processes and logistical organization are at the discretion of stakeholders in charge, sometimes hardly identifiable themselves, and can vary greatly from one scheme to another. For displaced candidates to resettlement and complementary pathways, this opacity can have dramatic consequences in regions of origin. This article will present the case of a group of African lesbian and gay asylum seekers who first sought asylum in a neighboring country, hoping for resettlement to the global North. Because their first country of asylum criminalizes homosexuality, the responsible regional office of the United Nations High Commissioner for Refugees (UNHCR) must circumvent the said country’s sovereignty on asylum matters and recognize LGBT asylum seekers as refugees under UN mandate before submitting their cases to resettlement countries. UNHCR agents thus conduct refugee status determination (RSD) and resettlement procedures behind a veil of secrecy, at the risk of antagonizing their local partners and confusing aspiring refugees. Meanwhile, INGOs from the global North cooperate with local LGBT associations to relocate LGBT Africans out of the same African countries. This paper will show African asylum asylum seekers’ efforts to qualify for all these programs simultaneously, unaware of the mutually exclusive aspects of some; to become visible to institutions and “sponsors” they deem more powerful, at the expense of solidarity within their group.

Technology, Displaced? The Risks and Potential of Artificial Intelligence for Fair, Effective, and Efficient Refugee Status Determination

Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of artificial intelligence in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law. The consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future technologies on refugee status determination. Predictive analytics, biometrics, automated credibility assessments and algorithmic decision-making are technologies that could have utility for refugee status determination processing, credibility assessments and decision-making. Each technology is considered through a lens of ‘risk and potential’, which is measured in terms of ‘fair, efficient and effective’ refugee status determination. The opportunities that artificial intelligence offers for efficiency and effectiveness in refugee status determination are compelling. Artificial intelligence allows for faster data processing and the ability to undertake high-volume, repetitive tasks. Increased consistency and up-to-date information, a capacity to plan for workloads and predict movements and the potential to ‘design out’ existing biases, promise to deliver positive outcomes for asylum seekers. But the risks of integrating artificial intelligence in a decision-making process that is defined by human vulnerability loom large. The lack of transparency in algorithms may result in a denial of procedural fairness, and algorithmic bias continues to be a vexing issue. If refugee and human rights are denied, international protection may be compromised. Technical and contextual issues may increase the potential for error, and unanswered questions remain around legality.

The Cartagena refugee definition and nationality‐based discrimination in Mexican refugee status determination

AbstractMexico's Refugee Law of 2011 has been praised as exceptionally progressive. A core aspect of the new law is the inclusion of an expanded refugee definition derived from the Cartagena Declaration. Nonetheless, it has also been pointed out that implementation gaps persist between Mexico's laws and policy practice. In this paper, we analyse in how far Mexico has applied the Cartagena definition to allegeable asylum seekers. Based on the analysis of a representative sample of 565 Refugee Status Determination (RSD) resolutions, we identify patterns in the country's RSD procedure from 2011 to 2016. On the one hand, we find a 98 per cent recognition rate, under the Cartagena refugee definition, for Venezuelan asylum seekers; on the other hand, a lack of application of the Cartagena definition to Central Americans. We discuss how our findings relate to broader problems associated with the RSD procedure in Latin America, and provide policy recommendations.

The Map and the Territory: The Use of Country Information in Asylum Assessments

When determining who should be accepted as a refugee, decision-makers use information about asylum-seekers’ home countries to assess the credibility of the claim and the risk of future persecution. As such, country information plays a decisive role in the outcome of asylum claims. Based on asylum case files and interviews with decision-makers in Norway, I investigate the use of country information in the refugee status determination process and compare the specific pieces of country information that decision-makers used in their assessments to landmarks on maps. Landmarks here are understood as decision-makers’ interpretations about places, customs, and political and social conditions in asylum-seekers’ home countries. To come across as credible, applicants had to demonstrate knowledge of landmarks familiar to decision-makers, but they also needed to present a story that testified to their personal experience with the landscape in their home countries. Minor deviations from the landmarks could undermine a claim’s credibility. The metaphor of the map as a seemingly objective representation of reality illustrates the authority of country information in the refugee status determination process. As I demonstrate, however, decision-makers based their knowledge of such landmarks not only on formal sources of information, but also on the narratives of other applicants, assumptions about rational behavior, and their own everyday experience with places. In line with the legal mandate to produce a binary decision, decision-makers had to consolidate uncertain information into solid landmarks that enabled them to clearly distinguish between refugees and non-refugees. Because of their important role in enabling such distinctions, landmarks are key in refugee protection on the one hand and migration control on the other.

Assessing Transgender and Gender Nonconforming Asylum Claims: Towards a Transgender Studies Framework for Particular Social Group and Persecution

In this article, I focus on gender identity and gender expression as grounds for international protection. After clarifying issues of terminology and theoretical framework, namely Transgender Studies, I criticize the current framework for determining membership in a Particular Social Group (PSG) for the purposes of the Refugee Convention, drawing on Berg and Millbank's work on the concept of self-identification and gender non-conformity as a means to assess transgender asylum claims (2013). I problematize the issues arising in the assessment of well-founded fear of persecution and the form it may take in transgender and gender non-conforming asylum claims. Drawing connections between sexuality and gender identity/expression claims, I attempt to provide a humanizing and depathologized framework for assessing the credibility of transgender and gender non-conforming applicants. Finally, by critiquing the work of Hathaway and Pobjoy and drawing from current human rights norms, I reflect on how to make good law with transgender cases without reproducing medicalized notions of gender identity or placing all the burden of proof on the applicants. In so doing, this article attempts to achieve a balance between theoretical and practical challenges that arise in the Refugee Status Determination (RSD) process involving transgender and gender non-conforming applicants. This article serves as an attempt to critically review the existing scholarship within the framework of transgender studies and offers insights for a refined framework of refugee status determination based on an inclusive reading of Particular Social Group and persecution drawing on the reading of crucial case law from anglophone countries.

Artificial Intelligence for a Reduction of False Denials in Refugee Claims

AbstractDeciding refugee claims is a paradigm case of an inherently uncertain judgment and prediction exercise. Yet refugee status decision-makers may underestimate the uncertainty inherent in their decisions. A feature of recent advances in artificial intelligence (AI) is the ability to make uncertainty visible. By making clear to refugee status decision-makers how uncertain their predictions are, AI and related statistical tools could help to reduce their confidence in their conclusions. Currently, this would only hurt claimants, since many countries around the world have designed their refugee status determination systems using inductive inference which distorts risk assessment. Increasing uncertainty would therefore contribute to mistaken rejections. If, however, international refugee law was to recognize an obligation under the UN Convention to resolve decision-making doubt in the claimant’s favour and use abductive inference, as Evans Cameron has advocated, then by making uncertainty visible, AI could help reduce the number of wrong denied claims.

Digitization Without Digital Evidence: Technology and Sweden’s Asylum System

Abstract States and asylum seekers are at the centre of rapid digital innovation in surveillance, mobility, welfare and identity. Why do some states rush to digitalize asylum systems, while others do not? Why is the pace and form of digitalization within countries uneven within asylum agencies? In this article, we examine drivers of the digitalization of the Swedish state, in particular uneven digitalization within the Swedish Migration Agency (Migrationsverket). While many processes were swiftly digitalized, we found that Swedish bureaucrats, rather than politicians or activist lawyers, resisted the adoption of digital evidence within the refugee status determination process, despite enthusiastically digitizing elsewhere. We explore these differences by looking at the historical, institutional and cultural bases of Swedish refugee policy. We present evidence from fieldwork in Sweden and find an unequal pace of digitalization that was largely dependent on the bureaucratic risk-aversion, extant legal norms, and perceived vulnerability to fraud.

Asylum decision-making and discretion: Types of room for maneuver in refugee status determination

By mobilizing ethnographic methods to study the Swiss asylum administration, this article analyzes the discretionary powers of Swiss asylum caseworkers in a context characterized by an important sophistication of law. Starting from the observation that the daily work of asylum caseworkers is strongly oriented and controlled by their superiors and colleagues, by institu-tional rules and guidelines, as well as by their socialization, the author identifies different types of discretionary powers, on which caseworkers' discretion rests. Consequently, he discusses how caseworkers perceive and use it differently, depending on the situation in which they find themselves. Thus, the article argues that asylum caseworkers have different types of room for maneuver according to their tasks, to the situations they are faced with, to the conditions in which they operate, and to their own characteristics (capitals, attitudes, experience). Eventually, the present contribution shows the relational and collective dimensions of bureaucratic dis-cretion.

INEFFECTIVE REFUGEE STATUS DETERMINATION PROCESS: HINDRANCE TO DURABLE SOLUTION FOR REFUGEES RIGHTS AND PROTECTION

In any State of Asylum, the process of Refugee Status Determination (RSD) conducted by the United Nations High Commissioner for Refugees (UNHCR) is critical in facilitating asylumseekers to seek necessary protections. UNHCR ensures that asylum-seekers will not be returned involuntarily to the State of Origin where they could face persecution. As a long-term solution, UNHCR helps refugees to find appropriate and permanent solutions to their plights, either by repatriating them voluntarily to their homeland or assisting them to integrate into the States of Asylum or helping them to resettle in third States. In the absence of domestic legal protection in dealing with the refugees and asylum-seekers in Malaysia, a variety of operations are executed by UNHCR, including the admission, registration, documentation, and status determination of asylum seekers and refugees. To prevent the deportation of individuals qualified for international protection, UNHCR should reassess its RSD process in Malaysia, and consider alternative means that would be less burdensome and less risky for people who are fleeing violence and human rights violations. Primarily aimed at reassessing the RSD process in Malaysia using a doctrinal and comparative approach, the analysis is presented in four parts in this article. The first part provides for the definition and current statistics of refugee and asylum-seekers in Malaysia; the second part examines the mechanism of RSD conducted by UNHCR under international law; the third part focuses on how RSD operates in Malaysia; the last part reviews the mechanism of RSD in Indonesia and Brazil.

Trans*it: Transgender and gender nonconforming asylum claimants’ narratives in Greece

In this article, I reflect on two interviews of transgender/gender nonconforming asylum claimants in the broader West. In the Trans*it documentary that my partners and I created, a non-binary person and a transgender woman, Ilios and Christina, interview each other on the difficulties of being a transgender/gender nonconforming asylum applicant in Greece. Greece is an understudied area with huge migration flows at the border of the EU and has no official data for Sexual Orientation Gender Identity asylum claims. The documentary, this article contends, provides a starting point for reflecting on the experiences of transgender/gender nonconforming applicants at the borders of Europe and their transition from their country of origin to the West/Greece, and for importing non-Western migrant subjectivities into our current thinking on sexuality/gender. In particular, I problematize the legal framework of Refugee Status Determination and explore the decolonization of gender identity/expression in refugee law. Finally, I reflect on the process of making the documentary and my attempt to centre the voices of gender nonconforming asylum claimants while minimizing the impact of my gaze as a white Greek researcher in the field. In doing so, this article shows how documentary film can be used as a means to further considerations of gendered normativities of asylum claims in a key, yet understudied, context. It concludes by arguing for a decolonializing approach that questions the normalization of Western standards of gender, and their transgression, in Refugee Status Determination.

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.