Refugee Status Determination Process Research Articles

Cross-effects of cultural and gay capitals in access to refugee status on the grounds of SOGI in France: Study of the formal and informal preparations of West African men for asylum trials

Abstract According to literature, ethnocentric representations of homosexuality structure the decision to grant asylum, or not, on the ground of sexual orientation. This ethnocentric criticism has recently led to a technicalization of evaluation practices by asylum judges, which are now based on a narrative and discursive mastery, a field in which respondents are unequal depending on their cultural and gay capitals. While the assessment as such appears to be more equitable, Western norms of gender and sexuality, and practicing self-narrative through their prism, continue to impose themselves in different ways, particularly in formal associative accompaniment or in informal preparation for the refugee status determination process. A 2-fold ethnographic approach, attentive to associative backing and the daily experience of exile as formal and informal spaces of asylum preparation and identity formation, is used to analyse the manner in which cultural and gay capitals influence identity formation, preparation for asylum trials, and chances of obtaining refugee status.

Administrative Review in Refugee Cases: The Vulnerable Persons Guidelines and the Role of Legal Representatives

In this article, we examine how the vulnerability of asylum seekers informs the refugee status determination process in Australia, focussing on administrative review. As vulnerability is not defined under Australian migration law, we turn to international law to explore its meaning and its relationship with international non- refoulement obligations. We then examine the Administrative Appeals Tribunal’s (‘AAT’) Guidelines on Vulnerable Persons and, following a systematic review of published AAT decisions between 2015 and 2022, explore its impact on decision-making. This analysis shows that identifying a person as ‘vulnerable’ can have significant procedural and substantive implications for the review process. With a significant backlog of protection visa cases at the AAT and the imminent establishment of the new Administrative Review Tribunal, finally, we consider the role of legal representatives in complex cases involving vulnerable persons.

I balance suffering(s): The politics and moralities of humanitarian caseworkers in Egypt as a refugee transit point

AbstractIn a world where asylum and migration have become major concerns for countries of transit and destination, political neutrality seems to be demanded from humanitarian workers. But under the pressures of workload, limited funds, and complex settings, these actors deviate from expectations and practice extra‐legal authority of a unique political nature. When handling asylum cases, these agents take crucial decisions that decisively impact the lives of asylum seekers. In legally fragile transit points where the rule of law faces challenges and where asylum seekers come seeking further resettlement in European countries, rejected applicants face risky fates of deportation, jail, violence, or death. In turn, humanitarian caseworkers pushed by workloads, purse strings, emotional burnout, and compassion fatigue, flatten the sufferings of their applicants, balance, and rank them. Caseworkers have to rank sufferings and decide who may eventually survive and who may simply be left to a risky unknown. In Agambian terms, this extralegal authority draws the lines, creates a zone of exception and throws rejected applicants into the realm of “Bare Life” where they become “Homo Sacer,” whose life is worthless. Using Lipsky's theorization of street‐level bureaucrats and in‐depth interviews, the paper tackles these crucial issues by interviewing caseworkers from a variety of international organizations operating in the transit point of Egypt. These caseworkers are responsible for conducting different roles in the Refugee Status Determination process.

The place where only gays go: constructions of queer space in the narratives of sexually diverse refugees

PurposeThe purpose of this paper is to develop an understanding of how gay and lesbian spaces are constructed and deployed within the context of asylum claims by sexually diverse people. Through doing this, the author details the ways in which the present deployment of place, as a form of evidence for a relatively fixed conception of sexual difference, does not correspond to the self-conceptions of sexually diverse asylum seekers.Design/methodology/approachThis article draws on the experiences of eight sexually diverse refugees who agreed to participate in semi-structured interviews. Deploying a queer narrative analysis approach, these experiences are explored to develop a detailed understanding of how sexually diverse spaces are constructed within refugee status determinations. This interview-led approach is combined with a critical epistemology informed by the queer theory to understand the role of place in the construction of sexual identity.FindingsThe central finding of this article is that engagement/attendance with/in particular places and spaces is overdetermined as a form of evidence of LGBTIQA+ identity within refugee status determination. Further findings relate to the relationship between places and sexual identities more generally. The paper helps to shed light on how sexually diverse identities are conceived in essentially ontological and fixed terms, with the result that places are often flattened, with the diversity and tensions within them being ignored and occluded.Originality/valueThe originality of this study emerges from the analysis of new qualitative data. This originality is strengthened by the successful combination of empirical research, queer theoretical insights and the application of this combination to policy. This remaining a relatively rare combination. In addition, in contrast to the existing literature, the paper looks specifically at how LGBTIQA+ or queer spaces are conceptualised within refugee status determination processes.

Dignity Deployed: An Examination of Refugee Rights through Domestic Dignity Jurisprudence

Abstract The 1951 Convention relating to the Status of Refugees (Refugee Convention) provides protection for people with a well-founded fear of persecution who find themselves outside their country of nationality. The treaty not only sets out a legal status for those recognized as refugees by the country of asylum, but also certain civil, political, social, and economic rights throughout the refugee status determination process. Yet, despite being faced with the highest numbers of displaced people since the Second World War, States parties to the Refugee Convention routinely fail to meet the standards set out by the Convention. This article explores how domestic courts enforce treaty compliance not as a matter of international law, but rather by using the concept of constitutional dignity. The discussion examines how constitutional courts around the world have used dignity as both a substantive right and a functional standard in order to fulfil the promises of the Refugee Convention. The article concludes with an argument for dignity as a powerful tool to fill gaps in refugee protection globally.

Queer legibility and the refugee status determination process

It is well documented that LGBTIQ+ applicants face a multitude of stereotypes and biases from decision-makers worldwide. We build on literature that argues that there is an unspoken component of credibility – to what extent the applicant is legible to the decision-maker. Based on interviews with legal representatives of LGBTIQ+ people seeking asylum in Australia, we observe that if the applicant’s narrative and label of their lived experience is familiar to the decision-maker, they are more likely to be understood by the decision-maker. Those whose experiences fall outside Western, and specifically Australian, conceptualisations of sexuality and gender identity categories are less legible to the decision-maker, than those who present a dominant, definitive, and stable identity narrative that is ‘out and proud’. Importantly, this paper also found that legal representatives shepherd applicants towards a clear label to perform an identity that is understood, or knowable to decision-makers.

Između pravne tvrđave i neizvesnosti - uporedna analiza zakonskog okvira o izbeglicama u Mađarskoj i Indoneziji

This study compares the legal frameworks of Hungary and Indonesia in dealing with the massive influx of refugees in their respective countries. While Hungary has successfully reduced the number of asylum seekers through a " fortress" approach using its Asylum Act of 2007, Indonesia's legal framework, as seen in Presidential Regulation 125/2016, lacks the procedures for converting asylum seekers into refugees. This is compounded by the absence of a refugee status determination process in Indonesia, making it challenging to provide assistance to increasing numbers of asylum seekers entering the state yearly. To address this problem, Indonesia must first make national legal changes that reflect its sociopolitical realities before ratifying the 1951 Refugee Convention and the 1967 Protocols. In contrast, Hungary's legal framework, while effective in reducing the number of asylum seekers, has been criticized for being restrictive and failing to respect human rights.

What Can Artificial Intelligence Do for Refugee Status Determination? A Proposal for Removing Subjective Fear

Abstract The drive for innovation, efficiency, and cost-effectiveness has seen governments increasingly turn to artificial intelligence (AI) to enhance their operations. The significant growth in the use of AI mechanisms in the areas of migration and border control makes the potential for its application to the process of refugee status determination (RSD), which is burdened by delay and heavy caseloads, a very real possibility. AI may have a role to play in supporting decision makers to assess the credibility of asylum seekers, as long as it is understood as a component of the humanitarian context. This article argues that AI will only benefit refugees if it does not replicate the problems of the current system. Credibility assessments, a central element of RSD, are flawed because the bipartite standard of a ‘well-founded fear of being persecuted’ involves consideration of a claimant’s subjective fearfulness and the objective validation of that fear. Subjective fear imposes an additional burden on the refugee, and the ‘objective’ language of credibility indicators does not prevent the challenges decision makers face in assessing the credibility of other humans when external, but largely unseen, factors such as memory, trauma, and bias, are present. Viewing the use of AI in RSD as part of the digital transformation of the refugee regime forces us to consider how it may affect decision-making efficiencies, as well as its impact(s) on refugees. Assessments of harm and benefit cannot be disentangled from the challenges AI is being tasked to address. Through an analysis of algorithmic decision making, predictive analysis, biometrics, automated credibility assessments, and digital forensics, this article reveals the risks and opportunities involved in the application of AI in RSD. On the one hand, AI’s potential to produce greater standardization, to mine and parse large amounts of data, and to address bias, holds significant possibility for increased consistency, improved fact-finding, and corroboration. On the other hand, machines may end up replicating and manifesting the unconscious biases and assumptions of their human developers, and AI has a limited ability to read emotions and process impacts on memory. The prospective nature of a well-founded fear is counter-intuitive if algorithms learn based on training data that is historical, and an increased ability to corroborate facts may shift the burden of proof to the asylum seeker. Breaches of data protection regulations and human rights loom large. The potential application of AI to RSD reveals flaws in refugee credibility assessments that stem from the need to assess subjective fear. If the use of AI in RSD is to become an effective and ethical form of humanitarian tech, the ‘well-founded fear of being persecuted’ standard should be based on objective risk only.

Non-State Actors of Protection and the Sliding Scale of Protection for Refugee Women

Abstract The article argues that although the gradual recognition of non-State actors as agents of persecution was hailed as a success in ensuring better protection for refugee women at risk of harm from their community or family, the associated development of non-state actors as agents of protection has had a detrimental impact on the protection of refugee women in Europe and more globally. More specifically, the article identifies various everyday practices of reliance on male family members and undefined social networks as actors of protection. These co-constructing practices are exercised by different entities involved in refugee status determination processes, including governments, national and regional courts, and regional and international asylum agencies. Although the trend has gone largely unnoticed, it has resulted in a sliding scale of protection for refugee women. The article argues that endorsing non-State actors of protection, such as male family members and undefined social networks, amounts to a requirement that women seeking asylum take action to avoid being persecuted by placing themselves under the protection of those private actors. This is contrary to international refugee law doctrine, fails to consider the possibility of new forms of harm and is, in itself, a breach of women’s human rights.

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.

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.

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.

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.

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.

Refugeeness, Sexuality, and Gender: Spatialized Lived Experiences of Intersectionality by Queer Asylum Seekers and Refugees in Paris

In the last few years, asylum claims based on sexual orientation and/or gender identity (SOGI) have received increased attention within migration and queer studies. Mostly focusing on the refugee status determination process, these works have emphasized how the expectations of asylum institutions about “genuine queer refugees” lead to the exclusion of many applicants from SOGI asylum. This paper aims at shifting the analysis perspective from the legal categorization process to the impacts of everyday experienced categories of “asylum seekers” or “refugees” on queer migrants in the Parisian area. Using a three-year long ethnographic fieldwork, completed through interviews with queer asylum seekers and refugees, this paper investigates how refugeeness, understood as the objective and subjective effects of migration and asylum policies on individuals, contributes to shaping lived experiences of sexual and gender minorities in France. By drawing attention to the ways that the multiple power relationships queer asylum seekers and refugees have to face are spatially grounded, this paper discusses how an intersectional understanding of sexuality, gender, and refugeeness allows us to emphasize the role played by migration status in the negotiation of hetero- and cisnormativity. This paper also argues that far from remaining passive toward the categorization process they are subjected to, queer asylum seekers and refugees strategically appropriate the administrative categories with which they are associated. Such an analysis of lived experiences of queer asylum seekers and refugees in the country of arrival thus highlights the complex reshaping of social location caused by migration.

‘I Try Not to Be Dominant, but I’m a Lawyer!’: Advisor Resources, Context, and Refugee Credibility

AbstractCredibility assessments are a key component of refugee status determination. However, the difficulties associated with these assessments make professional assistance important. This article examines qualitative interviews with eight Australian migration advisors, exploring the key resources they report drawing on when contributing to client credibility in refugee status determination processes. Participants make sense of these resources and their choices about how they mobilize them by explicitly situating them within institutional and policy contexts. The article concludes that individual advisors vary in their approaches based on their beliefs about the particular resources they can and should mobilize within this context. These beliefs and practices, and the resources and contexts underlying them, have implications for how advisors contribute to asylum-seeker credibility, and ultimately, for access to refugee protection.

Who Is a Refugee? Uncertainty and Discretion in Asylum Decisions

Abstract Assessing claims for refugee status is a task often riddled with uncertainties, not least because of the challenge of establishing the credibility of the claims. The uncertainties enable divergent interpretations of both evidence and legal rules, thereby constituting a space for discretion in the refugee status determination process. This article explores how decision makers in the Norwegian asylum system reached a conviction about the outcome of asylum claims, despite numerous uncertainties. Decision makers who worked closely together developed a system of distinction that enabled them to single out applicants with protection needs from those who were not considered to be eligible. This system ordered the space for discretion, thereby reducing doubts about the outcome. It was based on the law and other formal sources, but also on recognizing patterns of difference and similarity with previous decisions. The emphasis on comparison between cases meant that the outcome of an individual application could not be understood in isolation; the distinctions between applicants who were accepted and those who were rejected depended, in part, on the case set as a whole. The findings suggest that, in a context of uncertainty, refugee status is to some extent determined by producing a local yardstick of who ‘the refugee’ is.

Solicitantes de refúgio no Brasil: tempo de permanência na condição migratória, suas implicações e ponderações sobre o panorama atual

O solicitante de refúgio se define enquanto categoria migratória a partir do processo de elegibilidade para o reconhecimento da condição de refugiado. O que, a princípio, seria necessariamente uma etapa migratória, de caráter provisório, costuma adquirir, em muitos casos, matizes de permanência, submetendo os migrantes que se encontram no trâmite do processo de elegibilidade às implicações próprias de tal categoria. O objetivo com o presente trabalho é propor, a partir da base de dados do CONARE, uma forma de se mensurar o tempo que os solicitantes de refúgio permanecem nessa condição migratória atualmente no Brasil e avaliar qualitativamente as implicações de tal cenário. Como resultados, percebe-se um aumento expressivo e contínuo no tempo de permanência na condição de solicitante de refúgio de 2014 a 2020 quando não se levam em conta os venezuelanos nos dois últimos anos, com um maior percentual de pessoas que aguardam três anos ou mais pela resposta a seu pleito. Identifica-se, como consequência, a exposição a problemas como as restrições do contato com parentes através da reunião familiar e dificuldades em fazer planos de longo prazo exequíveis em decorrência das incertezas inerentes à referida situação migratória. Propõem-se, enfim, reflexões sobre um aparente esforço de redução das solicitações pendentes, com especial atenção à realidade dos migrantes.