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Review: Exploring the boundaries of refugee law

Exploring the boundaries of refugee law, recently published by Brill/Nijhoff as part of their International Refugee Law series, arises from a successful conference hosted by the Refugee Law Initiative in London in 2012. Papers arising therefrom are now presented in this hardback volume, with a thought-provoking essay to set the scene from Professor Guy Goodwin-Gill, who cites another scholar’s resonant phrase to capture the phenomenon whereby important issues that warrant measured consideration are nevertheless said to be solved by “a mischievous phrase, whether it be sovereignty, or independence, or domestic jurisdiction, or whatever the next catchword may be”. He goes on to address a series of barriers to accessing international protection, giving particular attention to the potential threat to the protection regime represented by the introduction of national security considerations that trump due process and to the dangers in deeming a transnational asylum system such as the Common European Asylum System safe without appropriate attention to whether there may be individual cases that fall through the gaps: inevitably the CJEU’s treatment of the Dublin II Regulation receives attention.

The book addresses three issues of perennial importance to international protection scholars and lawyers: access to protection, the scope of the protection under the Refugee Convention and beyond, and the content of the status granted to beneficiaries of protection. It is unrealistic to mention all the contributions in a short review, but the whole collection is well worth exploring: not just for the academic, but also for the practitioner interested in the contemporary scope and potential of international protection law.

Daniel Ghezelbash’s piece on the Interdiction and Extraterritorial Processing of Asylum seekers in the United States and Australia, likely to be of importance given the inevitable interest of his theme to European Union policy makers faced with the present volumes of asylum seekers and tempted to export the problem to third country territory, documents the chequered progress of determining asylum claims outside of the territory where asylum was claimed: particularly in Australia, this has set the courts and government at loggerheads over the legality and justiciability of the ensuing process.

Even more pertinent is the writing of Meltem Ineli-Ciger, which discusses the availability of Temporary Protection as a solution to mass forced migration. This subject, in the European Union, is addressed by Council Directive 2001/55/EC of 20 July 2001 addressing the mass influx of displaced persons who have fled areas of armed conflict, endemic violence or faced systematic breaches of their human rights.

It provides for a year-long grant of residence, extendable for up to three years. But its weakness is that it is activated not at the request of individuals, but only where a qualified majority of the European Council recognises a particular state of affairs as amounting to a mass influx, following a Commission proposal to such effect. Beneficiaries would receive a right to work and access housing, following which they would be required to return abroad voluntarily or face enforced removal; individuals may move between Member States subject to the consent of the States involved, opening up the possibility of burden-sharing. It has never been called into action by the Council, and one might wonder if it ever will be, if the present crisis does not justify its use (we learn that the Council discussed its invocation in relation to the rather less dramatic asylum flows from Iraq and Afghanistan in the early 2000s). The article argues that, so long as the element of discretion which bedevils temporary protection can be addressed, this form of status can provide a solution to the challenges of mass influx.

The scourge of trafficking has long been the subject of international attention, as explained by Jean-Pierre Gauci, pointing to the longevity of the legal responses which date back even before the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. All are bedevilled by the same tension, between the desirability of punishing the perpetrators and protecting the victims, without risking the integrity of immigration control: as one academic quoted puts in, victims are often seen as victims when it comes to punishing their traffickers, but as voluntary migrants when it comes to considering their immigration status.

Most instruments concentrate on the criminal justice dimension, only contemplating the victims’ status in this country as an adjunct to ensuring the efficient prosecution of their traffickers. However, there has been a strand of protection of victims as well as frontiers running through the various measures (from the 1949 Convention’s reference to Parties having agreed to “encourage measures for the rehabilitation and social adjustment of the victims” to the residence permit which may be granted where “their stay is necessary owing to their personal situation” under the Council of Europe Trafficking Convention with which most practitioners are more familiar). The article stresses the need to see the Refugee Convention and other international instruments as part of an over-arching framework within which trafficking victims might find appropriate protection.

Jessica Schultz critiques the case law of the European Court of Human Rights in relation to internal relocation. Strasbourg, of course, focussed as it is on whether a migrant’s removal would contravene their Convention rights, approaches the question of internal relocation not via questions of reasonableness or undue harshness per se, but rather via whether removal will infringe the ECHR: inevitably it therefore concentrates on the only provision, Article 3, breach of which it recognises as precluding removal. The author finds this approach wanting for its exclusive focus on whether a safe haven is compatible with Article 3 standards, for conflating reasonableness with the risk of internal refoulement, and consequently failing to approach internal relocation in a suitably principled way in its influential decisions, which are inevitably treated as precedents at national level vis-á-vis particular countries of origin: her thinking will be of interest to those representing clients from countries where claims tend to turn on questions of internal relocation.

Overall, then, a vital collection of writing on international protection that warrants being drawn on by lawyers and policy makers confronting the global refugee flows of the current era.

Mark Symes
Mark Symes Mark is a barrister at Garden Court Chambers with twenty years of casework experience, he is co-author of the "encyclopaedic... pre-eminent" Asylum Law and Practice and is enthusiastic about all areas of all immigration law, from human rights to commercial cases. Mark is rated as a "real expert" and as "dynamic and brilliant" by Chambers UK 2014.

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