European Asylum Law Research Articles

Migrant vulnerability or asylum seeker/refugee vulnerability? More than complex categories

The current theoretical socio-legal approach to vulnerability and vulnerable individuals, groups and populations is complex and wide-ranging. Unlike other traditional categories of “vulnerable groups”, the specific dimensions of migrant vulnerability raise issues that have not been properly resolved by laws, policies or judicial interpretation. This paper seeks to review and explain the reasons for the black-and-white legal categorical distinction between two types of people who migrate: “voluntary” migrants (economic, undocumented), and forced migrants (asylum seekers, refugees), based on their presumed internal or external “vulnerability”. It also reviews European asylum law to analyse the complex classification of asylum seeker/refugee vulnerability. This can help explain why some “particularly vulnerable categories” in compounded situations of intersectional vulnerability risk falling between the cracks. There is an urgent need to reassess the bivalent categories and the compact dimensions of migrant vulnerability, in order to find balanced internal coherence in the regulations that manage heterogeneous migration processes.

The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination

AbstractThis Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.

The End of Human Rights Dynamism? Judgments of the ECtHR on ‘Hot Returns’ and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy

Abstract Two controversial rulings of the Grand Chamber of the European Court of Human Rights (ECtHR) deserve global attention, since they declined to scrutinize on human rights grounds the prevalent move towards enhanced border controls and externalization practices that define European asylum law and policy at this juncture. In ND and NT, judges deemed the Spanish policy of ‘hot returns’, without access to basic procedural guarantees, of those climbing border fences to be compatible with human rights. A few weeks later, the Grand Chamber thwarted enduring hopes for judicial innovation in MN when it reasserted a ‘primarily territorial’ understanding of State jurisdiction and declared inadmissible the claim of a Syrian family from the war-torn town of Aleppo to a humanitarian visa. While the decision on humanitarian visas means that ‘non-arrival’ policies cannot usually be challenged, critical inspection of the ND and NT judgment displays a confounding combination of restrictive arguments and dynamic elements beneath the surface of a seemingly clear-cut outcome. This lack of judicial precision, which was bound to cause heated debate about the practical implications of the judgment, reflects the basic tension between the prohibition of refoulement and the absence of a right to asylum in classic accounts of international refugee law. It will be argued that the judicial vindication of the Spanish ‘hot returns’ policy does not call into question non-refoulement obligations; it aims at identifying graded procedural standards for different categories of refugees and migrants. By contrast, the novel insistence on the abstract availability of legal channels of entry presents itself as a humanitarian fig leaf for the acceptance of strict control practices. At an intermediate level of abstraction, the two rulings mark a watershed moment, indicating the provisional endpoint of an impressive period of interpretative dynamism on the part of the ECtHR, which has played a critical role in the progressive evolution of international refugee and human rights law over the past three decades. Experts in asylum law who have become accustomed to supranational courts advancing the position of individuals will benefit from the insights of constitutional theory and the social sciences to rationalize why the former vigour has given way to a period of hesitation and potential standstill, at least in Europe. This analysis employs the perspective of strategic litigation to discuss contextual factors hindering the continued dynamism of human rights jurisprudence in Europe at this juncture.

Understanding the crisis of refugee law: Legal scholarship and the EU asylum system

AbstractIn 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

The Refugees We Are: Solidarity in the European Constitutional Imagination

The Refugees We Are: Solidarity in the European Constitutional Imagination

Confessions of an ambivalent country expert: Queer refugeeism in the UK and the political economy of (im)mobility in and out of Trinidad and Tobago

This paper considers queer refugeeism from Trinidad and Tobago to the UK in relation to the political economy of (im)mobility in and out of the Caribbean. Gay rights have been embraced by liberal democracies as the newest form of human rights, what has been called “homonationalism.” Mirroring other double-binds of liberal inclusion, I show how queer asylum-seekers get caught betwixt and between two globally-stratified homonationalisms while confronting the realpolitik of European asylum law not only as queer refugees but also in terms of transnational social mobility otherwise unavailable to them. The British asylum system therefore materializes as a bordering operation that more often than not denies lesbian, gay, bisexual and transgender (LGBT) asylum-seekers their rights under the sign of their humanitarian protection. I consider whether homonationalisms everywhere—as assemblages of human rights discourse—should be thought of as “post-political” projects, a concept critical to growing bodies of political theory and cultural critique. This is because humanitarianism touts “rights” as universal and moral, therefore transcending the political. However, as a result of their practical effects, I show how the institutional practices deemed post-political in the case at hand should be understood as attempts to deflect and defuse the underlying politics of socioeconomic status and mobility at stake, and that the conflicts and contradictions at the heart of queer asylum-seeking represent the return of the repressed political within legal-technical spaces of disagreement. I also scrutinize the ambivalent entanglements of “expertise” when anthropologists are solicited as country experts in legal asylum cases.

Recent Developments in Austrian Asylum Law: A Race to the Bottom?

The Austrian asylum policy is shifting from a showcase of support to asylum seekers to one of the most restrictive in Europe. Recent amendments to the asylum law are due to the massive influx of asylum seekers in 2015/2016 as a result of which Austria has accepted the second largest number of asylum seekers per capita in Europe. The Austrian government first responded by setting an upper limit of asylum applications from 2016 and then by creating the possibility of suspending its obligations under international and European asylum law. Both measures are legally doubtful and based on the assumption that if the upper limit is met this may threaten the maintenance of public order and the protection of internal security, which is not possible to prove. The contribution provides a legal analysis of the recent legal developments in Austrian asylum law, which are reviewed from the perspective of international and European asylum law as well as human rights. It concludes that the Austrian measures are part of a race to the bottom of European countries with the purpose of keeping refugees away. They cannot be justified from a legal perspective and create a threat to the respect for the rule of law.

Evidence Assessment in Refugee Law with Stories and Arguments

In this article, we aim to analyse whether a systematic meth- od for reasoning with evidence in legal cases – the hybrid theory of stories and arguments – can be ap- plied to a novel legal domain, name- ly European asylum law. This analy- sis serves as a case study for testing the applicability of the hybrid theory outside of the context of criminal law. Furthermore, the analysis will provide insights on how the hybrid theory can be used to improve the normative framework for evidence assessment in asylum cases.

European asylum law. Reality and challenges in the context of immigration

The protection of the rights of refugees and asylum seekers has become an important issue in legal discourse. This is primarily due to rising migration levels, precipitated by greater political and economic instability in overseas nation states such as Syria for example, which has been embroiled in a protracted civil war that has left the country in shambles and its people with no hope for the better future. As a result of large-scale migratory movements in the EU space today, it is a major challenge for Member States to comply with the Geneva Convention and EU law concerning the protection of refugees and asylum seekers.

Territory, Procedures and Rights: Border Procedures in European Asylum Law

Border procedures have so far received little attention in the legal literature dealing with European asylum law. Literature on immigration detention in Europe has also neglected the use of detention in border procedures. This is remarkable because one of the reasons that Member States resort to border procedures can be traced back to the centrality of territorial presence within the modern State for the enjoyment of rights. The triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty has remained imprecise. This indeterminacy has had important repercussions for the way in which the right to liberty has been protected at the borders of Europe. However, the way in which the Recast Asylum Procedures Directive circumscribes Member States' use of this procedure is unprecedented. This article uses the Dutch implementation of the Asylum Procedures Directive in order to unpack the above-mentioned triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty. It will show that European Union regulation in this area is distinctive because it entails recognition of the fact that, when it comes to the enforcement of migration control, individual rights are at stake.

The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future

The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future

European Asylum Law and the Rights of the Child

European Asylum Law and the Rights of the Child

A Comparative Legal Approach to the Protection of Refugees and Asylum Seekers in the European Union: With a Focus on the Principle of Non-Refoulement

The legal argument of the paper will be built around a comparative method, pointing towards the disparities and similarities between international refugee law (including the United Nations and the Council of Europe legal framework) and European asylum law. The final goal is to see how European asylum law has been shaped and defined as a compromise between the conflicting views of Member States, but also in reference to international norms. The literature used to support this method consists of doctrine, jurisprudence and other legal instruments, such as the applicable conventions, treaties, directives, regulations, etc.

Persecution, Concealment and the Limits of a Human Rights Approach in (European) Asylum Law - The Case of Germany v Y and Z in the Court of Justice of the European Union

In the case of Germany v Y and Z, the Court of Justice of the European Union (CJEU) dealt, for the first time, with the meaning of the term ‘persecution’ in the EU Qualification Directive (QD). German judicial practice that led to the CJEU decision had differentiated between the core and the fringe of the right to freedom of religion in order to circumscribe the scope of ‘persecution’. Restrictions on the exercise of religion were not part of that ‘core’. German courts therefore rejected asylum applications when the alleged risk was a restriction on the free exercise of religion in public. Against this background of German practice and the CJEU’s judgment, this article discusses how to determine the protective ambit of the Qualification Directive in the context of freedom of religion. It argues that the CJEU did not solve the problems that the QD entails regarding the human rights approach to defining the harm required for the notion of ‘being persecuted’. The CJEU pushed these problems aside by relying on the narrowest conceivable definition, based on jurisprudence of the European Court of Human Rights. Its position on the causal nexus in the 1951 Convention and its stance on the human rights approach remain vague. Lacking strong dogmatic basis, the judgment lags behind legitimate expectations of the only supranational court in asylum matters. http://www.kaldorcentre.unsw.edu.au/resource/persecution-concealment-and-limits-human-rights-approach-european-asylumlaw-%E2%80%93-case-germany Page 1 of 1

Environmental Displacement in European Asylum Law

Environmental Displacement in European Asylum Law

Recent developments in asylum and immigration law before the Court of Justice

In this paper recent developments in asylum and immigration law before the Court of Justice of the European Communities are discussed, both from a substantive and a procedural perspective. In relation to substantive law developments, the article analyses cases such as Zhu, Eind and Metock, in which the rights of third country nationals are examined and protected through the prism of the rights of Union citizens. This situation is changing with the arrival at the Court of preliminary references on instruments adopted under Title V of the EC Treaty, and cases currently in the pipeline, such as Elgafaji and Petrosian, will reveal whether the Court’s analysis of third country nationals’ rights will be different in this context. In the second part of the article, which deals with recent procedural developments, particular attention is given to the urgent preliminary ruling procedure and how the most effective use can be made of it in the field of European asylum and immigration law.

Environmental Displacement in European Asylum Law

AbstractEnvironmentally displaced persons can be included in several existing categories of protected persons under international law, but there may be a normative protection gap for many of those who cross an international border. This article looks at protection possibilities within the EU framework and national European legislations. Environmental displacement can arguably trigger temporary protection according to the EU Temporary Protection Directive. There may also be environmentally displaced persons who require longer-term or permanent protection. Drawing on the EU Qualification Directive and case-law from the European Court of Human Rights, one can argue that subsidiary protection should be granted in certain cases of extreme natural disaster or degradation. In less extreme cases, humanitarian asylum could be granted. Human rights principles such as non-refoulement could also be used to extend at least basic protection. In addition, legal labour migration could supply a work force, assist distressed countries and enhance protection of the individual. A strategy to meet the challenge of environmental displacement must also include climate change mitigation and external measures such as adaptation. Most of the displaced persons in the world today and in the near future do not arrive at the EU borders.

Polska polityka azylowa. Ujęcie prawno-instytucjonalne

Polish refugee policy dates back to September 26, 1991 when the Republic of Poland ratified the Geneva Convention relating to the Status of Refugees of 1951 and the New York Additional Protocol of 1967. The adoption of provisions of both these international documents obliged Poland to amend the Law on Foreigners of March 29, 1963. The changes introduced in 1991 have not concluded the matter. Membership of the European Union resulted in the adaptation of Polish legislation to the requirements of the Common European Asylum System. Consequently, persons seeking asylum in Poland can be granted protection in the form of refugee status, temporary protection, asylum (defined as territorial asylum), subsidiary protection and tolerated residence. The dynamics of the European asylum law results from diversified migration situations in the member states, as well as from the necessity to guarantee the security of the EU and to work out a unified approach to asylum problems. All this requires further legal and institutional changes.

EU Refugee Qualification Directive: a Brave New World?

This article aims to map some of the major implications for asylum-related law in Europe of the Refugee Qualification Directive, which twenty-four EU Member States were required to implement by 10 October 2006. It seeks to build on important studies of the Directive completed by, among others, Hemme Battjes, in his book European Asylum Law and International Law, Nijhoff 2006, and Jane McAdam, in her book Complementary Protection in International Refugee Law, OUP 2007, albeit it takes a different view of some key questions.Part 2 deals with the impact of the Directive on the application and interpretation of the 1951 Refugee Convention and its 1967 Protocol. It is argued that, even read simply as a set of provisions giving interpretive guidelines on the application of the Refugee Convention, it affects many things concerned with refugee eligibility, since these provisions cover key elements of the refugee definition.Part 3 deals with the impact of the Directive on the asylum-related human rights jurisdiction that currently prevails in Europe in one form or another.1 It is argued that the effect of the Directive is and must be to render Article 3 ECHR protection - or its domestic equivalent - a largely residual category, save in exclusion cases.Part 4 addresses to what extent, if at all, the Directive contains mandatory provisions and how, post-implementation, these can be integrated into the national law of Member States. It is argued that, considered in purely textual terms, the key definitional and interpretive provisions of the Directive are mostly in mandatory form. Further, that whilst, by virtue of being a minimum standards directive, the Directive allows Member States to introduce or retain more favourable standards (A3), the same article stipulates that such standards must be compatible with the Directive. That proviso is of some importance given that the Directive’s preamble (at R7) identifies as one objective the avoidance of secondary movements. In relation to articles of the Directive which specify in mandatory terms how elements of the refugee definition are to be applied, Member States cannot be free to introduce or retain differing standards.Parts 5 and 6 analyse suggested differences, first, between the Directive’s refugee definition and the Refugee Convention (it is argued that the only potential difference of real significance concerns the Directive’s rendering of the Article 1F exclusion clauses of the Refugee Convention) and, secondly, between the Directive’s subsidiary protection definition and Article 3 ECHR. The extent of symmetry between the new subsidiary protection criteria and ECHR protection under Article 3 is explored, in particular, arguing that, whilst there are three respects in which subsidiary protection criteria are narrower (relating to personal scope; the existence of cessation and exclusion clauses; and limited application to ‘health cases’), there may be limited respects in which it may be broader in scope than Article 3 ECHR.Part 7 examines patterns of implementation in the light of early evidence to hand from, for example, the November 2007 UNHCR survey of five Member States. The UK is considered as a further example, that of a member state where, despite it being seen as unnecessary to make any substantial changes, the implementing measures have required important changes in method of approach and in conceptual language.

European Asylum Law and International Law

European Asylum Law and International Law