RESEARCH HANDBOOK ON INTERNATIONAL

REFUGEE LAW
RESEARCH HANDBOOKS IN INTERNATIONAL LAW
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Research Handbook on International Refugee Law
Edited by Satvinder Singh Juss
Research Handbook on International
Refugee Law

Edited by
Satvinder Singh Juss
Professor of Law, King’s College London, UK

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Cheltenham, UK • Northampton, MA, USA

© Satvinder Singh Juss 2019

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.

Published by
Edward Elgar Publishing Limited
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Cheltenham
Glos GL50 2JA
UK

Edward Elgar Publishing, Inc.

William Pratt House
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Northampton
Massachusetts 01060
USA

A catalogue record for this book

is available from the British Library

Library of Congress Control Number: 2019946814

This book is available electronically in the

Law subject collection
DOI 10.4337/9780857932815

ISBN 978 0 85793 280 8 (cased)

ISBN 978 0 85793 281 5 (eBook)

Satvinder Singh Juss - 9780857932815

Dedicated to the memory of Dr. Stefania Barichello, a brilliant, passionate
and deeply caring scholar whose spirit remains with us.

Satvinder Singh Juss - 9780857932815

Satvinder Singh Juss - 9780857932815
Contents

List of contributorsx
Prefacexii

PART I REFUGEES, DISPLACED PERSONS AND THE RISE OF

TEMPORARY PROTECTION

1 At the crossroads: The 1951 Geneva Convention today 2

Julian M. Lehmann

2 The 1969 OAU Convention Governing the Specific Aspects of Refugee

Problems in Africa 16
Tamara Wood

3 Internally displaced persons and international refugee law 31

Bríd Ní Ghráinne

4 In-country programs: the procedure and politics of an additional pathway

to protection 44
Claire Higgins

5 Temporary protection of forced migrants  57

Meltem Ineli-Ciger

PART II BURDEN-SHARING, INTERNAL RELOCATION AND THE

SHIFT TO COOPERATION AGREEMENTS

6 Burden sharing in refugee law 71

Eddie Bruce-Jones

7 The rise of consensual containment: from ‘contactless control’ to

‘contactless responsibility’ for migratory flows 82
Mariagiulia Giuffré and Violeta Moreno-Lax

8 Responsibility-sharing in Latin America 109

Stefania Eugenia Barichello

9 The internal protection alternative and its relation to refugee status 126
Jessica Schultz

10 Gatekeepers of asylum: UK country guidance, indiscriminate violence

and internal relocation 139
Satvinder S. Juss and Jeni Mitchell

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viii Research handbook on international refugee law

11 International models of deterrence and the future of access to asylum 170

Nikolas Feith Tan

PART III PRINCIPLE OF NON-REFOULEMENT OF REFUGEES AND

THEIR NON-PENALISATION

12 What is the future of non-refoulement in international refugee law? 183

James C. Simeon

13 Constructive refoulement207
Penelope Mathew

14 The prosecution of asylum seekers 224

Yewa Holiday

15 Australia and the Refugee Convention 238

Savitri Taylor

PART IV FAMILY RE-UNION, GENDER DISCRIMINATION, GAY

RIGHTS, HUMAN TRAFFICKING AND CLIMATE REFUGEES

16 The rights to refugee family reunion 253

Emily Darling

17 The art of drawing lines: future behaviour and refugee status 268
Janna Wessels

18 Some other(ed) ‘refugees’?: women seeking asylum under refugee and

human rights law 281
Catherine Briddick

19 The rights of women seeking asylum: procedural and evidential barriers

to protection 295
Nora Honkala
20 Sexual orientation and refugee law: how do legal sanctions criminalizing
homosexuality engage the definition of persecution? 310
Tawseef Khan

21 Human trafficking and refugee law 324

Vladislava Stoyanova

22 Climate refugees and the 1951 Convention 343

Matthew Scott

PART V THE EXCLUSION AND REJECTION OF REFUGEES

23 New directions in article 1D jurisprudence: greater barriers for Palestinian
refugees seeking the benefits of the Refugee Convention 358
Kate Ogg

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 Contents ix

24 The war on terror and refugee law 374

Sarah Singer

25 The exclusion clauses in refugee law 390

Joseph Rikhof

26 The removal of undesirable asylum seekers 403

Joris van Wijk and Maarten Bolhuis

27 Reviewing review: the standard of review in asylum decision-making 417

Rowena Moffatt

Index429

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Contributors

Stefania Eugenia Barichello, Former research scholar at the Institute of Advanced Legal
Studies, University of London, where she was awarded a PhD in 2017.
Maarten Bolhuis, Assistant Professor Criminology at Vrije Universiteit Amsterdam.
Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration,
Refugee Studies Centre, University of Oxford.
Eddie Bruce-Jones, Reader in Law and Anthropology, Birkbeck School of Law, University
of London.
Emily Darling, Lecturer in Immigration and Refugee Law at Queensland University of
Technology.
Nadine El-Enany, Senior Lecturer in Law, Birkbeck College, University of London.
Nikolas Feith Tan, Researcher at the Danish Institute for Human Rights.
Bríd Ní Ghráinne, BCL (Int) (NUI), LLM (Leiden), DPhil (Oxon). Lecturer in Law,
University of Sheffield.
Mariagiulia Giuffré, Senior Lecturer in Law at the Department of Law and Criminology,
Edge Hill University.
Claire Higgins, Senior Research Associate and historian at the Kaldor Centre for International
Refugee Law at UNSW. She is the author of Asylum by Boat: Origins of Australia’s refugee
policy (2017). Claire is a Fulbright Postdoctoral Scholar 2017, and completed a DPhil in
History at the University of Oxford. Her research into in-country programs was supported
by funding from the National Archives of Australia and the Australian Academy of the
Humanities.
Yewa Holiday, BA (Hons) (Cantab), LLM (Sussex), PhD (QMUL) is a freelance researcher
and a trainee English teacher.
Nora Honkala, Lecturer in Law, The City Law School, City, University of London.
Meltem Ineli-Ciger, PhD, LLM Bristol, Assistant Professor at the Suleyman Demirel
University, Faculty of Law, Turkey.
Satvinder S. Juss, Professor of Law at King’s College London, London University.
Tawseef Khan, Research affiliate at the Refugee Law Institute, University of London.
Julian M. Lehmann, Project manager at the Global Public Policy Institute (GPPi) in Berlin,
working on migration and human rights.
Penelope Mathew, Dean of the Faculty of Law, The University of Auckland.

x
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 Contributors xi

Jeni Mitchell, Department of War Studies, King’s College London.

Rowena Moffatt, Barrister specialising in Public Law at Doughty Street Chambers.
Violeta Moreno-Lax, Senior Lecturer in Law, Founding Director of the Immigration
Law programme and inaugural co-Director and co-founder of the Centre for European and
International Legal Affairs at Queen Mary University of London.
Kate Ogg, Senior Lecturer, School of Law, Australian National University.
Joseph Rikhof, Senior Counsel, Crimes against Humanity and War Crimes Section,
Department of Justice and Adjunct Professor, International Criminal Law, University of
Ottawa.
Jessica Schultz, Researcher at the Chr Michelsen Institute in Bergen.
Matthew Scott, Lund University Sweden.
James C. Simeon, Head of McLaughlin College, Associate Professor, School of Public
Policy and Administration, Faculty of Liberal Arts and Professional Studies, York University,
Toronto, Ontario, Canada.
Sarah Singer, Senior Lecturer in Refugee Law, School of Advanced Study, University of
London.
Vladislava Stoyanova, Senior Lecturer, Faculty of Law, Lund University, Sweden. Author
of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive
Obligations in European Law (Cambridge University Press, 2017).
Savitri Taylor, Associate Professor, Law School, La Trobe University.
Joris van Wijk, Executive Director, Centre for International Criminal Justice, and Associate
Professor Criminology at Vrije Universiteit Amsterdam.
Janna Wessels, Researcher and Senior Lecturer, Faculty of Law, University of Giessen.
Tamara Wood, Lecturer, Faculty of Law, University of Tasmania; Centre Affiliate, Kaldor
Centre for International Refugee Law, UNSW.

Satvinder Singh Juss - 9780857932815

Preface

In recent years the UNHCR has expressed mounting concern at how ‘war, violence and per-
secution’ in the world have ‘left one in every 122 humans on the planet a refugee, internally
displaced or seeking asylum’, and has expressed disquiet over how the world is failing the
victims in an ‘age of unprecedented mass displacement’. It is now clear that, ‘the level of
worldwide displacement is higher than ever before, with a record 59.5 million people living
exiled from their homes’. Yet, it will come as no surprise to anyone to learn that the war in
Syria has been the single largest driver of displacement. Thus, even by the end of 2014, ‘the
conflict had forced 3.88 million Syrians to live as refugees in the Middle East and beyond, and
left 7.6 million more internally displaced. In blunter terms, one in every five displaced persons
worldwide was Syrian’.1 More than one-third of refugees arriving are children.2
The western world has not escaped this turmoil. In its Editorial, ‘Age of Anxiety’, The
Times of London explained how ‘[u]nchecked immigration from Syria, the wider Middle
East and sub-Saharan Africa has changed the terms of politics in Europe’ and that ‘[f]ears
about the migrant surge has nudged the far right into governing coalitions’ in many countries
where the ‘appeal is to those terrified of Islam; the sense of Muslims being an alien presence’
and that, ‘[t]hese are Europe’s new rulers, the product of the age of anxiety’.3 A spate of
books have addressed the refugee issue. Three recent books by Wolfgang Baur,4 Charlotte
Mcdonald-Gibson,5 and Patrick Kingsley6 argue for an improvement in the living conditions
of neighbouring countries into which refugees are displaced; the importance of identifying the
dead; greater investment in Africa; more aid to Lebanon and Jordan both of which are home to
vast refugee camps; and more support for Greece and Italy which bear the brunt of the arrivals
– all of which are suggestions which have been made before. Kingsley additionally disposes of
the myth that the people smugglers are causing the migration crisis. Instead it is of our making
caused by the chaos of how we have received them. Yet, it is easy to overlook the fact that no

1
Sam Jones, ‘One in every 122 people is displaced by war, violence and persecution, says UN’.
Referring to the UNHCR annual global trends survey finds a record 59.5m people were refugees, inter-
nally displaced or seeking asylum by the end of 2014. The Guardian, Thursday, 18 June 2015. Available
at http://​www​.theguardian​.com/​global​-development/​2015/​jun/​18/​59m​-people​-displaced​-war​-violence​
-​​persecution​-says​-un, last accessed 30 March 2019.
2
Lizzie Deardon, ‘Refugee crisis: Children make up more than a third of arrivals and more than
ever are making deadly crossings alone Charity workers said children as young as nine were risking their
lives on smugglers’ boats completely alone’ The Independent, 28 May 2016. Available at http://​www​
.​​independent​.co​.uk/​news/​world/​europe/​refugee​-crisis​-children​-make​-up​-more​-than​-a​-third​-of​-arrivals​
-and​-more​-than​-ever​-are​-making​-deadly​-a7052911​.html, last accessed 30 March 2019.
3
Editorial, ‘Age of Anxiety’ The Times, Monday, 23 May 2016 at p. 27.
4
Wolfgang Bauer, Crossing the Sea: With Syrians on the Exodus to Europe (And Other Stories,
2016).
5
Charlotte McDonald-Gibson, Cast Away: Stories of Survival from Europe’s Refugee Crisis
(Portobello Books, 2016).
6
Patrick Kingsley, The New Odyssey: the Story of Europe’s Refugee Crisis (Guardian Faber, 2016).

xii
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 Preface xiii

one single form of regulation and protection is sufficient. Law and politics operate amid a sea
of shifting sands. In the words of Caroline Moorheard:7

one of the things that makes the subject so confusing is the way that it shifts: Egypt, once considered
a safe haven in the Middle East, ceased to be one when Abdel Fattah el –Sisi and the military took
power and turned against the Syrians who had found shelter there.

So dramatic and overwhelming is the change that one even loses sight of who is the refugee
and who is not as new forms of irregular migration emerge. Moorhead has drawn a distinction
between the ‘good’ refugees and the ‘bad’ refugees. She writes:

Whether those who flee are ‘good’ refugees (in the sense of falling under the 1951 Refugee
Convention, facing justifiable ‘fear of being persecuted for reasons of race, religion, nationality’
if they return home) or ‘bad’ (so called because they are seeking work or a better life) has become
largely meaningless in the world today. No one, ever, anywhere , wants to be a refugee, but for many
there is no alternative.8

But there is another distinction, one that Robert Fisk9 makes, that of ‘Muslim’ refugees and
non-Muslim refugees. In many ways, this far better accounts for the frenzy of restrictions
against today’s refugees. This new wave of migrants originates mostly from Syria (21 per
cent), Afghanistan (12 per cent) and Iraq (6 per cent), as well as Albania (8 per cent) and
Kosovo (5 per cent). The result is that we have reached today an impasse whereby, as Jeremy
Harding observed in the London Review of Books, wealthy States ‘have learned to think of
generosity as a vice’.10
The Elgar Handbook on Refugee Law consists of a series of carefully chosen, innovative,
and path-breaking chapters, by leading experts in the field of refugee law. Together with some
notable emerging scholars, they provide a critical perspective on the legal ordering for refu-
gees today, at a time when the legitimacy and politics of transnational regulatory governance
are in question as never before. Today, nearly three-quarters of a century after the international
system was set up, following the Second World War, which included the Convention Relating
to the Status of Refugees 1951, hot on the heals of The Universal Declaration of Human Rights
1948, the paradigm has shifted. Shortly after coming to power, the US under President Trump
in 2016 determined to exit global agreements, such as the Paris Pact11 and the Trans Pacific

7
Caroline Moorhead, ‘A tide that can’t be turned’ New Statesman, 20–26 May 2016, pp. 38–40, at
p. 40.
8
Ibid.
9
Robert Fisk, ‘Donald Trump’s arbitrary, cruel ban on refugees from Muslim countries sets
a chilling precedent’ The Independent, 28 January 2017 (available at https://​www​.independent​.co​.uk/​
voices/​donald​-trump​-refugee​-ban​-muslim​-countries​-christians​-welcomerobert​-fisk​-a7550941​.html, last
accessed 23 April 2019).
10
Jeremy Harding, ‘The Uninvited’ (February 2000) 22(3) The London Review of Books, pp. 3–25.
(available at http://​www​.lrb​.co​.uk/​v22/​n03/​jeremy​-harding/​the​-uninvited, last accessed 30 March 2019).
11
The ‘Paris Pact on Water and Adaptation to Climate Change in the Basins of Rivers, Lakes, and
Aquifers’ sets out to provide recommendations of actions that should be undertaken without delay at the
most relevant scale for water management adaptation to climate change – i.e., the basins of lakes, rivers,
and aquifers. The Pact also calls for actions of basin organizations and other relevant institutions (e.g.,
governments, international organizations, donors, local authorities, civil society and companies). Such
actions will contribute to reach target 6.4 to 6.b of the SDGs.

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xiv Research handbook on international refugee law

Partnership.12 Following The United Kingdom European Union Membership Referendum in

June 2016, the UK also embarked on negotiating Brexit so as to leave the European Union
after June 2017.13 Yet, both the US and the UK had been instrumental in creating the very
edifice of the international system after World War II following 1945. Nation states are
increasingly turning inwards. A renewed nationalist vigour abounds. The efficacy and effec-
tiveness of a transnational legal order is in question. The full implications of a multiplicity of
regional blocs also has yet to be worked out. There is Economic Community of West African
States (ECOWAS); the East African Community (EAC); the South African Development
Community (SADC); alongside the failing European Union (EU). On top of this, there are the
implications of global mobility for refugee security. Wolfgang Streeck has recently argued that
we are entering ‘a period of uncertain duration in which the old order is dying but a new one
cannot yet be born’ where the old order was ‘the state system of global capitalism’ and that
‘what the still to be created new order will look like is uncertain’ so that we are now in what
Antonio Gramsci termed an ‘interregnum’.14
This makes the inquiry into refugee law all the more compelling. This is not least given that
the modern refugee law system has always been contested. In the words of David A. Martin
today, ‘[e]specially objectionable, say many of the writers, is the dichotomy between political
refugees on the one hand, and who can claim a host of legal protections, and economic migrants
or displaced persons on the other, who cannot’,15 thus giving less than sanguine support to
Mathew Price’s thesis that asylum’s function historically was always ‘to protect unfortunates
from specifically political harms’. The distinction between the political and the economic
migrant ‘is particularly inept’ given ‘the travails of the developing world’ which is ‘the source
of most of today’s … refugees’.16 The view has been widely echoed by other writers of renown
in refugee law.17 So the truth of the matter is that even less than 40 years after the Convention,

12
The Trans-Pacific Partnership (TPP) was the centre-piece of President Barack Obama’s strategic
pivot to Asia. Its aim was to set up the world’s largest free trade deal, covering 40 per cent of the global
economy, so that the TPP would have expanded US trade and investment abroad, spurred economic
growth, lowered consumer prices, and created new jobs, while also advancing US strategic interests in
the Asia Pacific region. President Trump withdrew from this deal in 2017 because he saw it as likely to
accelerate US decline in manufacturing, lower wages, and increase inequality.
13
Oliver Wright and Charlie Cooper, ‘Brexit: What is it and why are we having an EU referendum?’
The Independent 23 June 2016 (available at https://​www​.independent​.co​.uk/​news/​uk/​politics/​what​-is​
-brexit​-why​-is​-there​-an​-eu​-referendum​-a7042791​.html, last accessed 30 March 2019).
14
Wolfgang Streeck, ‘The Return of the Repressed’ (2017) 104 New Left Review, pp. 1–8 at
p. v 4 (available at https://​newleftreview​.org/​II/​104/​wolfgang​-streeck​-the​-return​-of​-the​-repressed, last
accessed 30 March 2019).
15
David A. Martin, ‘The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce
Resource’ in H. Adelman (ed.) Refugee Policy: Canada and the United States (Toronto: Centre for
Refugee Studies, 1991) Ch 5, at p. 30.
16
Ibid.
17
James Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31
Harvard International Law Journal 129, 150, 163–5; Michael G. Heyman, ‘Redefining Refugee:
A Proposal for Relief for the Victims of Civil Strife’ (1987) 24 San Diego Law Review 449; Andrew
Shacknove, ‘Who is a Refugee’ (January 1985) 95(2) Ethics 274; Peter Singer and Renata Singer,
‘The Ethics of Refugee Policy’ in Mark Gibney (ed.) Open Borders? Closed Societies? (New York:
Greenwood Press, 1988), p. 111; D. Perlus and J.F. Hartman, ‘Temporary Refuge: Emergence of
a Customary Norm’ (1986) 26 Virginia Journal of International Law 551; Guy Goodwin-Gill,
‘Non-refoulement and the New Asylum Seekers’ (1986) 26 Virginia Journal of International Law

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 Preface xv

it was possible to ask that ‘surely we ought to think again about the morality of trying to base
an immigration policy on the difference between economic and political motivations’.18 With
the BRIC countries on the rise today, and Europe and the US in relative decline, can we afford
not to think more strategically about the long-term benefits of hosting refugees – particularly
if it is the case that this will be a politically astute guarantee of future diplomatic and trade alli-
ances? It is time to see refugees, not as collateral damage to be tidied up, but as core indicators
of failures of national and international, economic and political governance.
Against this background, this anthology begins in Part I with five chapters under the heading
‘Refugees, Displaced Persons and the Rise of Temporary Protection’. It opens with a first
chapter on the 1951 Geneva Convention, where Julian Lehman makes a case for saying how it
is today at a crossroads. He reminds us of the Refugee Convention’s requirement of alienage,
namely, that the refugee ‘is outside the country of nationality’ and has a ‘well-founded fear of
being persecuted’, suggesting that from the very beginning the refuge regime has responded
to the disadvantages only of people who were outside the country of their nationality, which
was a consideration of legal anomaly and of practicality. He argues that today, whereas the
Convention has remained relevant by proving flexible in the use of human rights law, it must
not lose its distinctive focus on actor-inflicted human rights harm connected to a Convention
ground, by allowing human rights to cannibalise the Convention so that it is forced to be inter-
preted more broadly than it otherwise would be.
The second chapter by Tamara Wood is on the 1969 OAU Convention, who observes how
there are few parts of the world more associated with refugees than Africa. Given that the vast
majority of refugees in Africa come from within the continent itself, the OAU Convention pro-
claims itself to be the ‘regional complement’ to the 1951 Convention, such that it is intended
to be applied alongside it. Unfortunately, implementation by African states has frequently
been compromised by lack of resources, capacity, and political will, such that a better under-
standing is essential. Moreover, scholarly analyses of the 1969 Convention are rare. Yet, it is
the only binding regional refugee law instrument to expand the 1951 Convention definition
of a refugee. It also develops key protection principles related to non-refoulement, asylum,
responsibility-sharing and security. Therefore, properly understood it could provide better
protection for refugees in Africa, and could serve as a model for other regions.
Brid Ni Gharainne in the third chapter considers internally displaced persons (IDPs), who
outnumber refugees by almost two to one, amounting to over 40 million, and being boosted
further by the crises in Syria, Yemen, Iraq, Afghanistan, the DRC, and Ukraine. Yet, being an
IDP does not entitle a person to additional rights, or to an IDP legal ‘status’, or protection by
a specific international agency. Accordingly, the author poses two distinct questions: whether
IDPs and refugees should be treated differently, and whether the increase in IDP protection
through the ‘Guiding Principles on Internal Displacement 1998’ should obviate the need for
international protection and asylum.
The fourth chapter by Claire Higgins describes ‘in-country programmes in refugee-like
situations’ for people who have not yet fled across an international border, whereby they are
first processed in their countries of origin, before being settled abroad. These programmes are
particularly well deployed by the governments of the US, Canada, and Australia, and provide

897; Karl Hailbronner, ‘Concerning “Nonrefoulement” and the “Humanitarian” Refugees: Customary
International Law or Wishful Legal Thinking?’ (1986) 26 Virginia Journal of International Law 857.
18
‘No Way to Judge Refugees’, New York Times, 8 May 1986, p. A27.

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xvi Research handbook on international refugee law

for a safe and legally-secure transfer of refugees without a dangerous journey over land or sea.
The orderly nature of this mechanism should not be used to avoid responsibility but instead to
shore up the integrity of the international protection regime, where states can mitigate the risk
to applicants.
The fifth chapter by Meltern Ineli-Cigar focuses on ‘temporary protection’ where again,
despite the fact that it affects the lives of thousands of forced migrants, there is no international
legal instrument providing for a clear definition of temporary protection or what it entails as
a protection framework. The author accordingly embarks on an examination of the laws and
policies of the European Union, Turkey, the US and Australia, and demonstrates how tempo-
rary protection still has a vital role to play for forced migrants today.
This compendium then continues onto Part II where there is a discussion in a further six
chapters on ‘Burden-sharing, Internal Relocation and the Shift to Cooperation Agreements’.
Thus, ‘Burden-sharing’ discussed in Chapter 6 by Eddie Bruce-Jones, is another example
of protection of refugees existing outside the Refugee Convention. There are a number of
defining ways in which ‘burden-sharing’, including as a legal obligation, as a discourse of
marketisation, as border securitisation, as crisis management, and as commitment to solidarity,
all of which are carefully analysed, before it is concluded that, unless the notion of ‘burden’ is
expanded, present practices only redouble local inadequacies on a global scale.
Mariagiulia Giuffre and Violetta Moreno-Lax describe in Chapter 7, the rise of higher levels
of sophistication in EU Member States’ responses to unwanted arrivals. What has emerged is
a transition from the well-documented and thoroughly discussed model of unilateral/passive
deterrence to orchestrated forms of consensual and pro-active containment of trans-boundary
flows. This has been done through the implementation of a novel variant of the ‘deterrence
paradigm’, which dominated during the last 30 years of employing strategies of outright
containment, but with a ‘deputational twist’ that also now involved the inducement to coun-
tries of transit being provided by the countries of destination requiring them to exert control
on migrants, on behalf of the countries of destination. What is being developed therefore is
a ‘contactless’ system of migration, which does not only deter migrants, but pro-actively
restrains the onwards movement of refugees to European territory.
Chapter 8 is a contribution by the late Stefania Eugenia Barichello, on the evolution of
shared responsibility in Latin America, with a particular emphasis on Brazil, where refugee
policies only emerged at the end of the 1970s. The way in which this has been done, is not
through a focus on ‘burden-sharing’ but ‘responsibility-sharing’, whereby the first responsi-
bility is of regional character and refers to the need for the states to act together to solve the
common problems, by emphasising a notion of ‘regional solidarity’; and the second responsi-
bility is of an international character. The author extols the success of the regional programme
of resettlement in Latin America and suggests that it could encourage similar initiatives in
other parts of the world, emphasising the importance of cooperation at regional and intercon-
tinental levels.
In Chapter 9, Jessica Schultz addresses the ‘protection elsewhere’ dynamic of international
refugee law as seen in the ‘internal protection alternative’ (IPA), which is designed to deny
refugee status to persons whose risk of persecution is present in only part of a country. This
mechanism permits removal of refugee claimants to their home state even if they cannot
safely return to their former residence. The consequence for the claimant is usually a return
to internal displacement. She explains how it is that despite widespread acceptance among
state parties to the Refugee Convention of an IPA limit, debate persists regarding the treaty

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 Preface xvii

basis for IPA practice and, as a consequence, its operational parameters. The focus of UNHCR
guidance, and most academic commentary, has been on establishing safeguards rather than
contesting the legality of IPA practice itself. What the author does, however, is to critically
consider how the IPA relates to the requirements for refugee status contained in the 1951
Refugee Convention, before concluding that operational parameters point to a narrow scope
for IPA application.
Thereafter, Juss and Mitchell also analyse in Chapter 10 ‘internal relocation’ in circum-
stances where even if victims of war and persecution cannot be sent back to their hometowns,
they can still be forcibly returned to another area of their home country – even if they have no
firm ties to that locale and its living conditions are dire. In the UK, this policy is facilitated
by the ‘Country Guidance Notes’ produced by the Home Office, which provide ‘Country
of Origin Information’ (COI) and legal guidance to assist decision-makers throughout the
asylum process. However, given that many war refugees today apply for asylum, not under the
1951 Refugee Convention, but under the subsidiary protection criteria in Article 15(c) of the
European Union’s Qualification Directive, on the basis that return to their state of origin would
pose a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate
violence in situations of international or internal armed conflict’, one of the most important
elements of a ‘Country Policy and Information Note’ (CPIN) is the determination of whether
a state of indiscriminate violence exists in all or part of a given country. Thus, the assessment
of indiscriminate violence in the country guidance notes has become a crucial determinant of
whether refugees can obtain asylum in the UK, and yet it is under-examined as an element of
the asylum process. Accordingly, this chapter first examines the role of UK country guidance
notes in the asylum process and their primary failings. Second, it is interrogates the conceptual
basis underlying ‘indiscriminate violence’ and its facilitation of internal relocation.
In Chapter 11, Nikolas Feith Tan also examines how deterrence policies are used by states.
As he argues, there remains a clear gap between the right to asylum and the obligation of
non-refoulement. As a consequence, refugees generally cannot be refouled if they never
arrive, and because of this, states often seek to avoid international responsibility for refugees
by operating in the grey areas of international law, such that the widespread presumption that
extraterritorial actions are less likely to incur international responsibility remains. The result is
that developed states have introduced a range of deterrence policies to prevent asylum seekers
reaching their territories or accessing national asylum systems. The author analyses the rise of
one form of deterrence, namely international cooperation preventing access to asylum, which
he refers to as ‘cooperative non-entrée’, whereby a developed state undertakes deterrence in
cooperation with a regional developing state ­to prevent asylum in the first state. The author’s
focus is accordingly on bilateral cooperation arrangements. Cooperation falls into five cat-
egories: funding, equipment and training; joint patrols and interdiction; financial incentives;
people exchange; and extraterritorial processing and protection elsewhere. However, the
author also considers issues relating to legal challenges to deterrence; the allocation of interna-
tional responsibility in such arrangements; and finally, the potential for cooperative non-entrée
policies to contribute to refugee burden-sharing.
Midway through this volume, there is, in Part III, a consideration of what many con-
sider to be the very edifice of refugee law – the jus cogens – namely the ‘Principles of
Non-Refoulement of Refugees and their Non-penalisation’. This section is in four chapters. In
Chapter 12, James Simeon considers the principle of non-refoulement as the cornerstone of the
modern international refugee protection system, observing how the UNHCR has asserted that

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non-refoulement is a fundamental principle of international law and one that is accepted by

the international community of states. He demonstrates how the jurisprudence of the European
Court of Human Rights is the most progressive in the protection of asylum seekers with
respect to the principle of non-refoulement, in comparison to the judgments of the Supreme
Court of the US, the Supreme Court of Canada, and the High Court of Australia. In fact, the
interdiction policies and practices of the US and Australia have been upheld by their highest
courts, and even the Suresh judgment of the Supreme Court of Canada allows for refugees
to be deported on grounds of national security risks, even in the face of torture back home.
Worryingly, as he describes, under the EU-Turkey deal, asylum seekers are being held in
refugee settlement centres in Greece and then being sent back to Turkey. Such measures serve
as deterrent measures to discourage asylum seekers from attempting to travel and enter the EU,
with serious long-term consequences for the principle of non-refoulement.
In Chapter 13 Penelope Mathew also explores the concept of constructive refoulement,
particularly in relation to Australian practice. Refoulement means to force back or turn away
and she examines the possible breaches of Article 33 of the Refugee Convention when the
state makes life so miserable for a refugee or asylum seeker that he or she ‘decides’ to return
home. At the very least, she argues this is a potential consequence of the state’s policies. This
amounts to ‘constructive refoulement’. However, it is uncommon to find case law that uses the
term, and even less common to find case law in which a court finds a violation that could be
described as constructive refoulement. It is also unclear exactly what the threshold for a con-
structive refoulement would be. The concept, she argues, appears to be an intuitive idea akin
to constructive dismissal in labour law, which often occurs when the employer makes life so
miserable at work, that the employee ‘chooses’ to resign.
Yewa Holiday in Chapter 14 looks at the much neglected provision of Article 31(1) of
the Refugee Convention which prohibits the penalisation of refugees ‘coming directly from
a territory where their life or freedom was threatened in the sense of Article 1’ for offences
of illegal entry and presence as long as they ‘present themselves without delay to the authori-
ties’ and ‘show good cause’ for the illegal entry or presence. Despite this, the penalisation of
asylum seekers does occur in the form of fines and imprisonment and summary deportation.
It also includes the delaying, obstructing or denying of access to asylum. Refugees without
proper documentation may also be channelled into ‘an inferior refugee procedure’. The author
argues that properly understood Article 31(1) exempts all asylum seekers from penalisation
except those who have found permanent protection from persecution and therefore have no
need to resort to irregular methods of travel.
The specific example of Australia is provided by Savitri Taylor in Chapter 15 when she
undertakes a critical analysis of Australian refugee policy, and the strategies which Australia
has employed to minimise the impact of its Refugee Convention obligations on its ability to
implement its immigration and border control agenda. She shows how the chapter is of wider
relevance because, in the wake of the Syrian refugee crisis, commitment to human rights is
receding and anxieties about uncontrolled population movement are coming to the fore in an
increasing number of states parties to the Refugee Convention and many countries are looking
to Australia for lessons on how to respond.
One of the most redeeming features of modern refugee law, however, is how it is stretched
to provide protection in new spheres of protection, in the midst of changing idioms of pro-
tection, persecution, and non-refoulement. These are discussed across a range of areas such
as Family Re-Union, Gender Discrimination, Gay Rights, Human Trafficking and Climate

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Refugees, the latter which at the time of writing, is still struggling for proper protection. Part
IV consists of six further chapters where these are analysed. In Chapter 16, Emily Darling
looks at the right to family reunion for refugees, given that refugees are often separated from
family members as a result of the refugee experience. The issue often comes to the fore when
after obtaining residence rights in the new host country, refugees seek to reunite with family
members they have been able to locate in their home countries or elsewhere, after which an
essential part of the process of resettlement in the new country becomes one of reuniting with
close family members. The international obligations and standards that apply in the context
of refugee family reunion is what the author carefully critiques. She considers particularly the
level of protection that these standards in practice offer, along with the limitations on access to
family reunification. Limitations on family reunification include the need for implementation
of the rights at domestic level, narrow definitions of family members who are eligible for
reunification and barriers created from ineffective administrative processing. Her firm con-
clusion is that although it is more difficult to establish a right to family reunification, there is
a stronger case for refugees and children to be granted the right quite simply because family
reunification is an essential part of the resettlement process for refugees starting a new life in
another country.
Janna Wessels in Chapter 17 discusses the implications of the UK Supreme Court judgment
on gay rights in HJ (Iran) [2010] UKSC 31, which inspired a fierce debate among refugee
law scholars on the role of a claimant’s acts, identity and rights, especially in the article
‘Queer Cases Make Bad Law’ by James Hathaway and Jason Pobjoy in 2012. She argues that
the judgment and the reaction to that decision by Hathaway and Pobjoy’s article crystallises
a broader dispute concerning an asylum seeker’s future conduct in refugee law at the heart
of refugee protection. She remarks on how this debate systematises the two broad trends that
literature and case law reveal in this debate, which are represented by the judgment and the
article. The author proceeds thereafter to reflect on the reasons why the claimant’s future
behaviour causes such trouble and suggests that the refugee law community might in fact be
fighting over the ‘right’ solution to a different puzzle. In an insightful contribution, she raises
questions which have not previously been raised. These are that any person has at least some
discretion regarding what others know about their sexual characteristics, and this creates
a dilemma for refugee status determination, which is based on a future-focused analysis, and
yet it remains the case that claimants can influence that future to some extent. So, therefore,
does this mean that claimants can be expected to hide their persecuted characteristics? If not,
can claimants at the very least be required to exercise some restraint in their expression?
In Chapter 18 Catherine Briddick explores the issues that arise from a consideration of
women’s claims for recognition as refugees under international refugee law (IRL), subsidiary
protection and/or protection from refoulement under international human rights law (IHRL).
The first issue relates to women’s access to protection. She draws attention to the increasing
numbers of women seeking protection, and the gendered impacts that Europe’s ‘re-bordering’
has on those women who are forced to undertake ‘illegalised’ and dangerous journeys. She
argues that the jurisprudence on violence against women and sex discrimination should be
relied upon to challenge specific instances of re-bordering that impact disproportionately on
women. The second issue considered is the scope of protection offered to women seeking
protection from gender-based violence under IRL and IHRL. Here she argues that broad
assertions of IHRL’s primacy when it comes to affording women protection from violence
are overly simplistic, so that recourse to a multiplicity of legal sources, particularly the spe-

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cialist regimes developed to respond to violence and discrimination against women, should be
undertaken. Third, she reports on a recent success: developments in IHRL that seek to improve
the way that women’s claims for protection are determined. Ultimately, she asks whether
advocacy that focuses on securing procedural protections for women, when coupled with the
attack on women’s ability to access asylum, actually risks contributing to the denuding of the
substantive right, the right to seek and enjoy asylum from persecution, by equating it, in effect,
to compliance with a set of procedures that comparatively few women are able to benefit from.
The rights of women seeking asylum is still much overlooked as a whole in refugee law and
practice and this is taken up in Chapter 19 by Nora Honkala. Women face specific challenges,
especially in the UK. Their persecution is more likely to include sexual violence or rape.
Significantly, it is also more likely to occur in the so-called private sphere and at the hands of
non-state actors, and yet there is no gender ground in the Refugee Convention, and the prac-
tical reality of the rights protection on the ground remains bleak. The asylum processes have
remained largely the same, and there is little evidence of any significant organisational shifts.
The result is that asylum seeker women continue to claim their rights within a complex polit-
ical climate. They are disadvantaged by restrictive immigration and asylum policies, cuts to
legal aid, and the raising of appeals fees. Women fleeing gender-based persecution are subject
to detention. This includes pregnant women. The continued erosion of asylum seeker women’s
rights deserves to be better known.
In the same way, in Chapter 20 there is a consideration by Tawseef Khan of the complexity
and diversity of sexuality, which the Refugee Convention overlooks in its five grounds of
status. He argues that LGB individuals eligible to receive refugee protection experience per-
secution in unique and nuanced ways. Indeed, the UNHCR guidelines emphasise the intricacy
of such claims, stating that an assessment of persecution in a sexual identity-based asylum
claim is a complex determination, incorporating ‘the circumstances of the case, including the
age, gender, opinions, feelings and psychological makeup’ of the applicant. He interrogates
the status and assessment of legal sanctions that criminalise sexual acts between same-sex
partners. He first outlines the development of a working definition of persecution across
asylum-granting jurisdictions. He then gives a brief overview of the prevailing treatment of
criminal sanctions across many traditional asylum-receiving states, with explicit reference to
British asylum policy and the Court of Justice of the European Union (CJEU) case of X, Y and
Z. in 2013. Finally, he advances the viewpoint on the serious and persecutory nature of the
‘mere existence’ of such legal sanctions.
Vladislava Stoyanova in Chapter 21 discusses how human trafficking law operates in paral-
lel with refugee law. First, victims of human trafficking may qualify for refugee status or forms
of complementary protection. Second, victims of human trafficking have been designated in
EU legislation as vulnerable persons with special reception needs, as is clear from the EU
Reception Conditions Directive (recast) and in the EU Procedures Directive (recast), and this
is significant given that asylum seekers are vulnerable to human trafficking. Third, European
law on human trafficking has challenged states’ immigration control prerogatives, allowing
victims of human trafficking to avoid deportation. Fourth, victims of human trafficking are
eligible for certain assistance measures. Fifth, asylum seekers who are victims of human traf-
ficking are entitled not to be punished on account of their illegal entry. Sixth, the two regimes
of refugee law and human trafficking law interact on procedural issues, allowing an asylum
seeker to benefit from protection if identified as a victim. Yet, many of the protection measures
emerging from the human trafficking legal framework are limited to its regional manifestation

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in the Council of Europe and EU. Whilst the European anti-trafficking framework contains
binding obligations to assist and protect victims of human trafficking, the universal framework
is very weak. Moreover, the anti-trafficking and the interrelated anti-smuggling measures
adopted by states have a negative impact on the refugees in terms of their possibilities to leave
countries of origin and to access the territory of countries of asylum.
In Chapter 22, Matthew Scott considers the relevance of the Refugee Convention to natural
disasters and climate change. He argues that the political resonance of the ‘climate refugee’
idea does not translate readily into the inclusion clause at Article 1A(2) of the Refugee
Convention and that this is unsatisfactory, because the legal arguments for inclusion are more
persuasive than the moral arguments. He demonstrates this by arguing that refugee status
determination should proceed from an appreciation of individual circumstances that is under-
stood by reference to wider social patterns, such that it ought not be conducted with a narrow
focus on disasters and climate change. The ultimate question remains whether a person seeking
refugee status is able to demonstrate a well-founded fear of being persecuted for a Convention
reason. However, denial of human rights is heightened in its probability after a disaster given
that climate change brings more frequent and intense natural hazard events and processes to
increasingly exposed and vulnerable societies, groups and individuals. In such a situation,
the risk of being persecuted in this connection is raised for the foreseeable future. Even if
most people displaced following natural disasters and climate change events are not refugees,
refugee status determination should still be conducted with an awareness of the relevance of
economic and social rights in the persecution enquiry.
In the final part of this tome, we consider in Part V the ‘The Exclusion and Rejection of
Refugees.’ In Chapter 23 there is a discussion by Kate Ogg of new issues that have arisen in
relation to Palestinian refugees under Article 1(D) of the Refugee Convention. Given recent
decisions of El Knott and of AD (Palestine), which have been scarcely analysed although they
break away from earlier Article 1D jurisprudence, she embarks upon a critical examination
of these two decisions by the CJEU and NZIPT, respectively. Her conclusion is that although
these precedents provide greater opportunities for Palestinian refugees to obtain the benefits
of the Refugee Convention, they also threaten the principle of continuity of international pro-
tection for Palestinian refugees, because they adopt a narrow understanding of the meaning of
‘protection or assistance’. This is done by imposing on Palestinians ‘an evidentiary paradox’
requiring them to prove that their decision to flee was involuntary. In fact, the CJEU’s
approach favours those who have heroic or intrepid narratives. These can serve to disadvantage
Palestinian women and girls because they create additional and often-insurmountable barriers
to Palestinian refugees, who would wish to seek the benefits of the Refugee Convention, not
supported by Article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.
Sarah Singer considers the exclusion clauses of Article 1(F) of the Refugee Convention
in relation to the War on Terror in Chapter 24 with respect to the War on Terror, which has
become so important over the past two decades. She argues that the drive to deny the benefits
of refugee status to terrorists has resulted in an expansion of the grounds of exclusion under
the 1951 Refugee Convention and EU Qualification Directive. There are concerns over the
most recent jurisprudence of the CJEU and future directions of this area of law. The singling
out of refugees and asylum seekers as potential terrorist threats is curious and we should be
suspicious of state attempts to infringe individual rights in the name of counter-terrorism oper-
ations. It is far better, she argues, that the 1951 Refugee Convention’s mechanisms to address
suspected criminality and state security are in themselves. We should not have to resort to

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uncomfortable and ill-defined appeals to ‘terrorism’ or terrorist-related activity. The Refugee

Convention already contains references to war crimes and other serious criminal activity in
the first two limbs of Article 1F. This is a firmer and more reliable basis for exclusion from
refugee protection. In addition, domestic criminal processes are also available to seek redress.
On the other hand, what the global ‘War on Terror’ has done is to affect appropriate refugee
protection frameworks and approaches across the globe.
Joseph Rikhoff considers the ‘exclusion clauses’ in Chapter 25. He demonstrates that, for
Article 1F(a), the interaction between exclusion law and ICL has followed a different course
in the area of crimes compared to that of extended liability. Further, decision-makers nation-
ally have followed ICL closely for war crimes and crimes against humanity. They have also
borrowed from other international crimes and relied on international precedents, and then
developed their own parameters for these crimes. The area of extended liability has been
a new approach for forms of liability so that in the last few years ICL has become a source of
inspiration and the courts in the UK and Canada have developed the new test of voluntary,
personal and significant contribution. For Article 1F(b), the elements of what is a crime, what
is a serious crime, what law should apply for the determination of what is a crime, the meaning
of outside the country, the concept of political crime and the issue of expiation all have been,
and are still, in a considerable amount of flux at the international level with only the parame-
ters of political crimes having been resolved in a consistent and satisfactory manner. Rikhoff
argues that guidance from the highest national courts or even international institutions would
be welcome if one is to avoid too much fragmentation of this important area of refugee law in
the future. For Article 1F(c), the main issue is not as much the fact there has been disagreement
among the various judicial decision-makers, given that all agree that acts of terrorism and
human rights violations should fall within its description, but whether there is an independent
meaning of 1F(c) as all forms of criminality used under this heading can also fall easily within
the parameters of 1F(a) and 1F(c).
Joris van Wijk and Maarten Bolhuis point out in Chapter 26 how in cases where refugee
status is denied to an applicant or revoked, host states normally require such a person to leave
the country. Yet, this does not always happen and the removal of failed asylum seekers has
become an issue of increasing public concern. Even more remarkable is the situation where
a host country fails to remove an applicant whose claim for refugee status is denied or revoked
on account of an allegation of involvement in serious non-political crime or crime against
humanity. The authors here explore and assess the various policy options that states have to
remove undesirable asylum seekers, such as voluntary return, forced return and relocation. But
they also discuss situations in which such options are not available and the undesirable asylum
seeker is de facto ‘unreturnable’. What host states may then do is prosecute such failed asylum
seekers and / or offer them a form of temporary leave to stay. Such an outcome for those that
are deemed ‘undesirable’ and yet ‘unreturnable’ does not require a harmonised approach. So
far, the UNHCR has considered the issue of unreturnable 1F-excluded asylum seekers to fall
outside its mandate. It has not published any guidance in this regard. Member states prefer
retaining full discretionary powers over the adoption of a harmonised approach. However, the
inactivity of the EU or UNHCR should not prevent states from independently developing their
own structural solutions to this elusive but important issue.
Given that many rejected asylum seekers fail in successfully having their decisions reviewed
on grounds that the decision-maker has not acted contrary to law, so as to commit an ‘error of
law’, Rowena Moffatt considers in Chapter 27 how asylum decisions are reviewed. She argues

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 Preface xxiii

that the proper standard of review is a ‘merits review’ rather than a ‘legality review’ – the
former looks at the facts afresh whilst the latter looks at the way that the decision has been
made. This, she argues, would give better protection to failed asylum seekers and should be
embedded in the supranational norms governing asylum decision-making. The author con-
siders the Refugee Convention, the European Convention on Human Rights, and the Asylum
Procedures Directive, and concludes that given the nature of rights at stake ‘merits review’
should be adopted in asylum decision-making.
Finally, I would like to thank my authors for so readily agreeing to participate in this project
and I trust that readers will find these accounts informative and moving in equal measure.
I would like to record my gratitude for my publishers, and especially the Senior Editor at Elgar,
Mrs Laura Mann, for her patient and unsparing support for the production of this work. Finally
I would like to record my indebtedness to Mr Ben Booth, Senior Commissioning Editor, for
commissioning me to undertake the enormous task of compiling this Handbook. This work is
dedicated to the memory of Stefania Barichello (1983–2017). Dr Stefania Barichello was an
inspiring, committed and passionate scholar who cared deeply about the refugee cause. She
was awarded a PhD from the Institute of Advanced Legal Studies, University of London, in
2017.
Satvinder S. Juss
2 January 2019

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Satvinder Singh Juss - 9780857932815
1. At the crossroads: The 1951 Geneva
Convention today
Julian M. Lehmann

1. INTRODUCTION: EVALUATING THE REFUGEE

CONVENTION AT 65

At the time of writing, the 1951 Geneva Refugee Convention is 65 years old, the traditional
age for retirement in many industrialized countries. This chapter will assess the Convention’s
workforce from the point of view of legal research debates and as applied by states rather than
operational policies of the UN High Commissioner for Refugees. It is guided by the questions
of whether the Convention is relevant (has the Convention evolved to ensure its continuous
application?), effective (do the Convention’s provisions serve their purpose, and if not, why?)
and whether it is sustainable (are there trends that could challenge the Convention’s relevance
and effectiveness?). It addresses these questions by outlining contentious issues in respect to
the following selection of transversal topics of refugee law research: the development of the
Convention’s refugee definition; the relation of refugee law to human rights law; the disso-
nance between the Convention’s provisions on criteria for refugee status and substantive rights
on the one hand, and access to asylum on the other hand; the universality of the Convention;
and, last but not least, the relation of the Convention to politics. The chapter concludes with
an assessment on the Convention’s future, as well as on research agendas for refugee law. It
argues that the evolutionary interpretation of the Convention has limits inherent in the text,
some of the most important challenges which refugee law is facing will not be solved ‘within’
the Convention.

2. ‘…SHALL APPLY TO ANY PERSON WHO…’: STRETCHING

THE CONVENTION’S REFUGEE DEFINITION

The 1951 Convention features a catalogue of rights and obligations (Arts 2–34), including
the prominent norm of non-refoulement, granted only to those individuals who fall under
the refugee definition in Article 1A(2). Given the importance of the refugee definition for
the Convention’s entitlements, the definition is one of the most salient issues in the judicial
and academic debate on the Convention’s evolution. While several criteria of the refugee
definition have progressed considerably, the limits to its evolution have also become appar-
ent: the Convention retains a distinctive focus and cannot become a catch-all for all forms of
displacement.
On the most fundamental level, the relevance of the refugee definition is challenged by
the question: why should refugees be privileged over other groups in need, or, why they are

2
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 At the crossroads: The 1951 Geneva Convention today 3

defined in the way they are defined?1 This concerns the Convention requirements of alienage
(‘is outside the country of nationality’) as well as the ‘well-founded fear of being persecuted’
for a Convention ground (race, religion, nationality, political opinion or membership of
a particular social group). Indeed, from its very beginnings, the refugee regime has responded
to the disadvantages only of people that were outside, and lost the protection of their country
of nationality. This was not just a consideration of need, but also one of legal anomaly and
of practicality. The criterion of alienage made sure that states as well as the then responsible
agencies could practically act on behalf of refugees, because they would not be compelled
to exercise power on foreign territory.2 More philosophically, the benefits of refugee status
accord refugees a new national home as they are in a disenfranchised, stateless-like situation.3
This impetus, it has been argued, flows from the persecutory harm to which a refugee is
exposed; refugee status makes her ‘as-simil-able’: it reduces her otherness given the ostracism
faced in her original community.4
On a more technical, legal level, the relevance of the Convention has been tested by its evo-
lution to accommodate different forms of harm and discrimination. At the time of adoption,
the 1951 Convention’s refugee definition was the first to circumscribe both harm and reasons
for harm that refugees would face in their respective countries of nationality. Because previous
instruments had been limited to particular nationalities, it had until then been unnecessary to
elaborate on these points.5 As an upshot of that novelty, some of the Convention’s key notions,
in particular ‘being persecuted’ and ‘membership of a particular social group’, were left unde-
fined,6 and have proven to be drivers for its evolution.
In that evolution, an important milestone has been the emerging consensus that harm
inflicted by non-state actors is relevant for the ‘being persecuted’ notion, not only when the
state authorities are unwilling to provide effective protection, but also when they are unable

1
Satvinder Singh Juss, ‘International Migration and Global Justice, Law and Migration
Series’ (Ashgate Publishing 2006) 198.
2
James C. Hathaway and Michelle Foster, The Law of Refugee Status (2 edn, Cambridge University
Press 2014), stating that:
The restriction of refugee status to persons who have left their own country is logical because
it defines a class of persons to whom foreign states can, as a matter of practicality, undertake to
provide an unconditional response of precisely the kind set by the Refugee Convention.
referring to the principle that States shall not exercise power in the territory of other states, Lotus [1927]
Permanent Court of Justice Reports, Series A, No 10, paras 18–19.
3
Communication from the General Council of the International Refugee Organization, Document
E/1392, para 5, July 11, 1949:
Lacking the protection of the Government of his country of origin, the refugee does not enjoy
a clearly defined status based upon the principle of reciprocity as enjoyed by nationals of those
states which maintain normal diplomatic relations. The rights which are conferred on such nation-
als by virtue of their status, which is dependent upon their nationality, are generally unavailable to
him. A refugee is an anomaly in international law [...]
4
For a discussion of various asylum paradigms, see Jean-François Durieux, ‘Three Asylum
Paradigms’ (2013) 20(2) International Journal on Minority and Group Rights 147–77.
5
Atle Grahl-Madsen, ‘Protection of Refugees by Their Country of Origin’ (1985) 11 Yale Journal
of International Law 362.
6
Atle Grahl-Madsen, The Status of Refugees in International Law: Refugee Character (A.W.
Sijthoff 1966). McAdam argues that the term, if not explicit in the early instruments of refugee protec-
tion, had been implicit in those instruments; see Jane McAdam, ‘Rethinking the Origins of ‘Persecution’
in Refugee Law’ (2014) 25 International Journal of Refugee Law 25.

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4 Research handbook on international refugee law

to do so.7 Despite reaching a consensus, there remains some debate when it can be said there
is effective protection against harm inflicted by private parties, such as domestic violence
claims.8
While there is more consensus on most forms of physical harm in more traditional cases
of political dissent, there also remains discussion on particular, group-specific forms of
harm. The debate on the scope of the ‘being persecuted’ notion has most recently focused on
Lesbian, Gay, Bi- and Intersexual (LGBTI) claimants, after there was significant development
on gender-specific harm such as forced marriage, sterilization, forced abortion or forced
prostitution.9 In LGBTI claims, a controversial issue in academic debate concerned the forms
of harm that are relevant to the ‘being persecuted’ notion, and whether a behaviour modifica-
tion of an LGBTI claimant in the country of nationality, aimed at evading harm, can itself be
persecutory harm. An alternative view is that behaviour modification is simply unreliable, and
therefore irrelevant in assessing the risk of harm.10
A cross-cutting issue in all controversies on the scope of the ‘being persecuted’ notion has
been the extent to which it should be informed by human rights law. Among the different
attempts to further specify the ‘being persecuted’ notion,11 the most influential one relies
on human rights as guidance to define the scope of relevant harm. This approach is not only
used by the UNHCR in its authoritative Handbook on Procedures and Criteria Determining
Refugee Status,12 but also by numerous courts in both civil and common law jurisdictions. 13
Meanwhile, this ‘human rights approach’, as it is often called, is not without contention.
Critics of the approach caution that the distinctive content of the ‘being persecuted’ notion
could get lost.14 Even among proponents of the human rights approach, there has been debate
about single aspects. In particular, this includes the theoretic rationale on how to identify
which human rights are relevant and which are not, and, in consequence, the scope of relevant
harm. Some have argued that the being persecuted notion should essentially compare to the
scope of the prohibition of inhuman or degrading treatment as contained internationally in

7
For a summary of the debate, see Walter Kälin, ‘Non-state Agents of Persecution and the Inability
of the State to Protect’ (2000) 15 Georgetown Imigration Law Journal 415.
8
Michael G. Heyman, ‘Domestic Violence and Asylum: Toward a Working Model of Affirmative
State Obligations’ (2005) 17(4) International Journal of Refugee Law 729–48.
9
Deborah Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) Harvard
Human Rights Journal 133.
10
James C. Hathaway and Jason Pobjoy, ‘Queer Cases Make Bad Law’ (2012) 44(2) Journal of
International Law and Politics 315–89.
11
For an analysis of different ways, see Hathaway and Foster (n 2).
12
UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para
51. For a position similar to the UNHCR Handbook’s, see the 1995 Commentary by Weis – Weis, The
Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr Paul Weis
– according to which:
At the very least, a connection exists between’ persecution and the failure on the part of states
to observe certain human rights.The reference contained in the Preamble to the Convention
concerning the principle that human beings shall enjoy fundamental rights and freedoms may
provide a context for advancing the view that the violation of certain rights may either constitute
persecution per se, or evidence thereof.
13
For a list of cases, see Hathaway and Foster (n 2), 185, 196.
14
E.g., David James Cantor (ed.), Human Rights and the Refugee Definition – Comparative Legal
Practice and Theory (International Refugee Law Series, Brill 2016).

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 At the crossroads: The 1951 Geneva Convention today 5

the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT), the International Covenant on Civil and Political Rights (ICCPR),
and regionally in the European, Intra-American and African Conventions on human rights.15
Others have proposed tying the notion to a hierarchy of duty under international human rights
law, in which all harm that falls in the ambit of a human rights norm and is not covered by
a limitation clause is relevant, including harm that would not pass the threshold of inhuman or
degrading treatment.16 Ultimately, both approaches face distinct challenges. While the latter
approach needs to define limits to its inclusiveness, the former approach could risk ignoring
the growing practice on other claims, including on violations of social and economic rights.17
The debate over the scope of harm relevant to the being persecuted notion is closely tied to
the refugee definition’s nexus requirement, which determines eligibility based on persecution
related to race, religion, nationality, political opinion, or membership of a particular social
group. That criterion has, on the one hand, witnessed a gradual evolution through the relatively
flexible concept of a particular social group. To a greater extent than the other categories, the
particular social group concept has been interpreted in a way that accommodates types of
claims not anticipated at the time of drafting. In addition to sex and gender as defining elements
for a particular social group, the concept has extended to claims in which the particular social
group is the family or clan, a particular age-group, or people with disabilities.18 On the other
hand, the nexus criterion also demonstrates some of the limits to the Convention’s continued
evolution. First, although there is a wide array of circumstances in which the 1951 Convention
can accommodate the claims of individuals fleeing armed conflict,19 the nexus clause remains
an insurmountable hurdle when it comes to the recognition of refugee status for people fleeing
indiscriminate violence, rather than violence that targets specific groups or disproportionately
affects specific groups. Second, courts have so far been reluctant to consider economic status
a defining element, thus the Convention is unlikely to cover individuals fleeing economic
destitution.20 Likewise, it is questionable whether courts will recognize any particular social
group in the face of indiscriminate consequences of natural disasters, including those induced
by climate change.21 Finally, it is clear that the particular social group concept cannot evolve

15
Hugo Storey, ‘What Constitutes Persecution? Towards a Working Defintion’ (2014) 26
International Journal of Refugee Law 272.
16
Hathaway and Foster (n 2).
17
For ESCR, see Michelle Foster, International Refugee Law and Socio-economic Rights: Refuge
From Deprivation (Cambridge University Press 2007), Vol. 51.
18
Michelle Foster, The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential
Developments relating to ‘Membership of a Particular Social Group’ (UNHCR Legal and Protection
Policy Research Series, 2012).
19
Vanessa Holzer, The 1951 Refugee Convention and the Protection of People Fleeing Armed
Conflict and Other Situations of Violence. UNHCR, 2012.
20
For the limited circumstances of cases fitting into the refugee definition, see Foster (n 17); Kate
Jastram, ‘Economic Harm as a Basis for Refugee Status and the Application of Human Rights Law
to the Interpretation of Economic Persecution’ in James Simeon (ed.) Critical Issues in International
Refugee Law: Strategies Toward Interpretive Harmony (Cambridge University Press 2010); James
C. Hathaway, ‘Food Deprivation: A Basis for Refugee Status? (2014) 81(2) Social Research: An
International Quarterly 327–39. For other types of claims, see also Alexander Betts, ‘Towards a ‘Soft
Law’ Framework for the Protection of Vulnerable Irregular Migrants’, (2010) 22 (2) International
Journal of Refugee Law 209–36.
21
For potential discriminatory circumstances in such cases, see Matthew Scott, ‘Refugee from
Climate Change-Related Harm: Evaluating the Scope of International Protection within the Common

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6 Research handbook on international refugee law

to the degree that the defining element would be simply the fear of being persecuted, or vic-
timhood, for the criterion would otherwise be superfluous.

3. ONE-SIDED DEPENDENCE? HUMAN RIGHTS LAW AND

THE FUTURE OF THE 1951 CONVENTION

Because there are boundaries to the evolutionary interpretation of the Convention, other bodies
of law have increasingly gained relevance for the Convention. Human rights law has become
not only the primary tool to interpret the relevant harm for the ‘being persecuted’ notion and
(to a far lesser degree) interpret the scope of the Convention grounds. Not least important,
human rights law is also complementing the gaps of the Convention in respect of both its
refugee definition and the substantive rights under Articles 2–34 of the Convention.
Regarding the definition, it is now long-standing practice that certain norms of human
rights law entail obligations of non-return. The rationale of such ‘non refoulement law’22 is
that the sending state incurs liability for exposing an individual to a real risk of serious and
irreparable harm. In contrast to the ‘being persecuted notion’ in the 1951 Refugee Convention,
such harm must not necessarily be linked to a discriminatory ground, so that human rights law
non-refoulement obligations may in some cases be wider in scope.
Jurisprudence on non-refoulement law was pioneered by the European Court of Human
Rights, in the Soering case,23 but that jurisprudence also influenced the interpretation of obli-
gations under other human rights law treaties, in particular under the ICCPR.24 What is more,
there are similar obligations under the Convention against Torture,25 and the Convention on the

European Asylum System’ in Céline Bauloz et al. (eds), Seeking Asylum in the European Union (Brill
2015).
22
Jean-François Durieux, ‘The Vanishing Refugee: How EU Asylum Law Blurs the Specificity of
Refugee Protection’ in Hélène Lambert, Jane McAdam and Maryellen Fullerton (eds), The Global Reach
of European Refugee Law (The Global Reach of European Refugee Law, Cambridge University Press
2013).
23
Soering v. the United Kingdom App No 14038/88 [1989] 11 EHRR 439, in particular para 91:
The establishment of such responsibility inevitably involves an assessment of conditions in the
requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there
is no question of adjudicating on or establishing the responsibility of the receiving country, whether
under general international law, under the Convention or otherwise. In so far as any liability under
the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by
reason of its having taken action which has as a direct consequence the exposure of an individual
to proscribed ill-treatment.
24
Hélène Lambert, ‘Consolidation and Development of the Asylum-Related Jurisprudence of
the European Court of Human Rights – Key-Note Speech to the Second Colloquy on the European
Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons’
(2000) SSRN eLibrary. On the obligations, see Human Rights Committee, General Comment No. 31
[80] The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, CCPR/
Rev.1/Add. 13, 26 May 2004 para 12. See also Human Rights Committee, General Comment 20, Art
7 (44th session, 1992), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 30 (1994) para 9.
25
Convention against Torture, art 3(1): ‘No State Party shall expel, return (‘refouler’) or extradite
a person to another State where there are substantial grounds for believing that he would be in danger of
being subjected to torture.’

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 At the crossroads: The 1951 Geneva Convention today 7

Rights of the Child.26 In principle, multiple human rights norms could entail non-refoulement
obligations.27 In practice, however, these obligations have almost exclusively remained
limited to the prohibition of torture, inhuman or degrading treatment or punishment,28 which
was found relevant in a plethora of different cases that range from indiscriminate violence to
lacking medical treatment or dire humanitarian conditions in situations of armed conflict.29
Meanwhile, whether or not human rights non-refoulement law is broader than the Refugee
Convention chiefly depends on interpretation. Ironically, only if the Convention’s being per-
secuted notion is interpreted inclusively, covering other human rights harm than inhuman or
degrading treatment, will the refugee definition retain its distinct characteristics vis-à-vis the
scope of harm relevant for human rights non-refoulement law.
For the future of the Convention, the complementary role of human rights law for the
Convention’s substantive entitlements is potentially even more important than the com-
plementarity of human rights non-refoulement law. In contrast to human rights law, which
unconditionally applies to everyone within the territory and subject to the jurisdiction of a state
party (that is, also extraterritorially, and irrespective of legal status),30 the 1951 Convention’s
catalogue of rights and obligations is contingent on the level of attachment with the asylum
state. Although there are some obligations owed to refugees who are merely under a state
party’s jurisdiction,31 or are physically present, a significant number of obligations require
either lawful presence, lawful stay or durable residence by the refugee.32 Moreover, the

26
UN Committee on the Rights of the Child, CRC General Comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/
GC/2005/6 (2005) para 27:
in fulfilling obligations under the Convention, States shall not return a child to a country where
there are substantial grounds for believing that there is a real risk of irreparable harm to the child,
such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention,
either in the country to which removal is to be effected or in any country to which the child may
subsequently be removed.
27
In F. v United Kingdom, the court stated that while ‘on a purely pragmatic basis, it cannot be
required that an expelling contracting state only return an alien to a country which is in full and effective
enforcement of all the rights and freedoms set out in the Convention’, there may be an issue arising under
art 6 ECHR in case of a flagrant denial of the right to a fair trial. This was first applied in Othman (Abu
Qatada) v. United Kingdom App No 8139/09, ECHR 2012.
28
E.g., Communication No. 1544/2007, Mehrez Ben Abde Hamida v. Canada, 18 March 2010;
communication No. 692/1996, A.R.J. v. Australia, 28 July 1997; X. v. Sweden, 1 November 2011.
For the scope of non-refoulement obligations under the ICCPR, see e.g., Cornelis Wolfram Wouters,
International Legal Standards for the Protection from Refoulement (Intersentia 2009).
29
Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press
2007); David James Cantor and Jean-Francois Durieux (eds), Refuge from Inhumanity? War Refugees
and International Humanitarian Law (International Refugee Law, Brill 2014).
30
As a general rule, the ICCPR applies without discrimination between nationals and non-nationals.
See Human Rights Committee, General Comment No. 31 [80] The Nature of the General Legal
Obligation Imposed on State Parties to the Covenant, CCPR/Rev.1/Add. 13, 26 May 2004 para 10; see
also Human Rights Committee, CCPR General Comment No. 15: The Position of Aliens Under the
Covenant, UN Doc. HRI/GEN/1/Rev.1, 18.
31
For a discussion of jurisdiction in the more contested contexts of refugee law, see Thomas
Gammeltoft-Hansen, Access to Asylum – International Refugee Law and the Globalisation of Migration
Control (Cambridge University Press 2011).
32
James C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press
2005). The meaning of these concepts is, according to Hathaway, ‘defined by practical circumstances

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8 Research handbook on international refugee law

Convention seeks treatment that is as favourable as possible, yet its minimum obligation is
only non-discrimination with other ‘aliens generally in the same circumstances’33 or ‘the most
favourable treatment accorded to nationals of a foreign country, in the same circumstances’.34
This particular structure of entitlement has led to debate about its relevance in comparison to
human rights law. Thus, it has been argued that the Convention increasingly loses relevance.35
Indeed, most of the substantive Convention rights of refugees are also guaranteed by human
rights law, albeit only if that body of law is interpreted in an evolutionary and inclusive way,
in particular on the scope of obligations under economic, social and cultural rights. However,
the Convention prescribes that refugees shall be treated as favourably as their own nationals
in areas that can be particularly sensitive and contested under human rights law, including
freedom of religion, access to a rationing system, public relief and social security, employ-
ment, and elementary education. What is more, its duty to facilitate the naturalization of refu-
gees finds no expression in human rights law. Ultimately, whether the Convention will retain
its relevance will depend on authorities, lawyers and courts relying on its distinct provisions
rather than on omnipresent human rights law. An example of such reliance is the recent EU
Court of Justice case M’Bodj v. Belgium, in which the court extended the higher standards of
protection of the 1951 Convention in respect to free movement of individuals enjoying com-
plementary forms of protection (‘subsidiary protection’ in EU jargon).36

4. NO ACCESS, NO STATUS; NO SOLIDARITY, NO

PROTECTION: WHERE THE CONVENTION IS SILENT

A bigger problem for the effectiveness of the Convention than its multi-level entitlements
may be its application to policies aimed at deterring refugees or returning refugees to places
of substandard protection, and its silence on responsibility and burden sharing, issues often
referred to as ‘access to protection’.
Driven by the desire to control inflows, states resort to practices of migration control that
take physical as well as legal forms and are no longer confined to their own territories, but take
effect in the territories of other states too. The legality of such measures is under the current
refugee protection system primarily a matter of the applicability and scope of non-refoulement,
in Article 33 of the Convention. From a refugee legal research perspective, the least ‘problem-
atic’ of such measures are the more traditional scenarios that can be covered by an evolving
understanding of jurisdiction no longer fixated on spatial criteria alone. Thus, there is a growing
body of practice supporting the view that jurisdiction can be triggered by control over persons,
so that the Convention not only applies to transit facilities, but also extraterritorially, in par-

rather than by any official decision or status’, because of the declaratory nature of recognition of refugee
status, ibid., 198.
33
E.g. art 18.
34
E.g. art 15.
35
Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee Law and Human Rights Law’ in R. Rubio Marin (ed.), Migration and Human
Rights (Migration and Human Rights, Oxford University Press 2011).
36
Mohamed M’Bodj v. Belgian State Judgment of the Court of 18 December 2014 (unreported)
(CJEU).

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 At the crossroads: The 1951 Geneva Convention today 9

ticular on the high seas.37 However, academic literature also recognized a trend of various,
more subtle forms of migration control: these include carrier sanctions, incentives and support
for border operations in other states, such as through immigration liaison officers, support for
pull-back operations by foreign authorities, or the privatization of migration control.38 Making
the Convention’s non-refoulement obligation relevant for such measures is fraught with legal
difficulty – in particular, on the scope of a personal model of jurisdiction, on the attribution of
conduct to a state by a private person or group of persons, and state responsibility for aiding or
assisting another state with the commission of a wrongful act. For instance, it is highly unlikely
that the current measures of cooperation in the Mediterranean, targeted financial assistance,
or the provision of technical equipment by EU states to strengthen capacity for border protec-
tion,39 could trigger joint responsibility for a wrongful act committed by one of the supported
states. Indeed, these measures are laying bare how easily international responsibility can be
circumvented under the current system. Yet, as Hathaway and Gammeltoft-Hansen observe,
states may in the future face a trade-off between effective deterrence and lawfulness, which
may ultimately push them to adopt measures that trigger legal liability.

The inclination to become more directly involved in order to achieve more control and thereby to
increase the likelihood of efficacy thus often pushes states to the more interventionist end of the
spectrum of contemporary non-entrée. Yet it is when a state’s own personnel are deployed in aid of
deterrence abroad or where joint or shared enforcement is established that legal liability becomes
most clear.40

While the Convention has evolved on key refugee law concepts and thus assured its continued
relevance to migration control, it has remained stagnant on another key issue: solidarity, which
is key to a global displacement situation that affects some countries and regions far more than
others.41 Although the drafters were aware of that imbalance, the Convention neither regulates
the ‘sharing’ of people (responsibility sharing), nor the sharing of financial resources (burden
sharing).42 Crucially, the Convention does not compel states to proactively admit refugees
from foreign territories. In the international refugee regime established by the Convention, the
distribution of refugees to particular countries therefore continues to depend primarily on the
agency of refugees themselves, who, within the realms of their legal, physical and financial
possibilities, pick one country, as well as on the norm of non-refoulement, which prohibits

37
Guy S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of
Non-refoulement’ (2011) International Journal of Refugee Law 23; Cathryn Costello, ‘Courting Access
to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 Human Rights Law
Review 287; Gammeltoft-Hansen (n 31).
38
Ibid.; Tilman Rodenhäuser, ‘Another Brick in the Wall: Carrier Sanctions and the Privatization of
Immigration Control’ (2014) 26(2) International Journal of Refugee Law 223–47.
39
For EU cooperation with third countries, see Paula García Andrade et al., EU Cooperation with
Third Countries in the Field of Migration, study for the LIBE Committee, 2015, http://​www​.europarl​
.europa​.eu/​RegData/​etudes/​STUD/​2015/​536469/​IPOL​_STU(2015)536469​_EN​.pdf, last accessed 9
April 2019.
40
James Hathaway and Thomas Gammeltoft-Hansen, ‘Non-Refoulement in a World of Cooperative
Deterrence’ (2014) University of Michigan Law School Law & Economics Working Papers, Paper 106.
41
UNHCR Global Trends. The drafters of the Convention did acknowledge that sharing burdens was
crucial to an effective international response to forced displacement.
42
For this typology, see Gregor Noll, ‘Risky Games? A Theoretical Approach to Burden Sharing in
the Asylum Field’ (2003) 16 Journal of Refugee Studies 236–52.

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10 Research handbook on international refugee law

returning refugees back to persecution, including by not admitting them to the territory where
the denial of admission would result in their exposure to persecution.43 Indeed, the task of
remedying the silence of the Convention when it comes to sharing people has fallen largely
upon non-refoulement obligations from refugee and human rights law. Thus, the sending of
individuals to countries with heavily defunct asylum systems can be contested as indirect (or
‘chain’) refoulement under the Convention, or be prohibited by the right to freedom from
inhuman or degrading treatment, in case it leads to returns that expose an individual to a real
risk of relevant harm.
More controversial are the Convention’s safeguards with regard to returns to countries with
a poor quality of protection, but below the threshold of indirect refoulement or an exposure
to inhuman or degrading treatment in the receiving state. The Convention does not compel
refugees to seek protection in the first state where there is an opportunity to do so, but neither
explicitly prohibits return to a place where refugees are not granted all the rights under the
Convention. This void has led to numerous arrangements that can be referred to as ‘protection
elsewhere’, such as ‘first country of asylum’ and ‘safe third country’ concepts.44 While it has
been argued that the Convention precludes stripping refugees of acquired rights (and thus bars
return to countries that disregard Convention rights),45 the minimum standards for ‘protection
elsewhere’ arrangements remain contested.
Meanwhile, what is more certain is that proactive forms of admission, such as resettlement
and humanitarian admission, are currently being left entirely to the realm of politics, because
they are not prescribed by law. Developed countries have preferred such types of admission
to spontaneous arrivals, a trend that may increase amid security concerns over spontaneously
arriving refugees and domestic political opposition to high intakes.46 As this preference is
unlikely to translate into legal norms, and states engage in cooperative non-entré policies
whose lawfulness cannot easily be challenged, legal research is challenged to find its place on
the most pressing issues the Convention faces.

5. THE TEMPORAL LIMITATION THAT WAS: THE

CONVENTION AS A UNIVERSAL INSTRUMENT?

In the genesis of modern refugee law, the 1951 Convention sticks out as the first legal instru-
ment that does not apply to a particular nationality only, after early institutions and treaties
had applied to, among others, Russians escaping the October Revolution, Armenians escaping

43
On the scope of non-refoulement, see Hathaway (n 32), 300. Less attention was paid to the ramifi-
cations and scope of the right to leave any country, including one’s own. See Nora Markard, ‘The Right
to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) European Journal
of International Law 27.
44
Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek
Protection in another State’ (2007) Michigan Journal of International Law 223.
45
Ibid. also Hathaway and Foster (n 2).
46
Reports that the self-proclaimed Islamic State or Daesh trains Djihadists to succeed in asylum
interviews.

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 At the crossroads: The 1951 Geneva Convention today 11

the Ottoman government, or Germans escaping Nazi persecution.47 In contrast, the 1951
Convention, even in its early drafts, does not apply to the nationals of particular countries.48
Despite its relatively broad refugee definition, the Convention was fundamentally a response
to the displacement in Europe. Although the drafters of the Convention had expressed their
hope that the application of the Convention would be expanded to other contexts too,49 gov-
ernments had been reluctant to embrace a universal refugee definition.50 The Convention thus
included a temporal limitation to events before 1951, and was allowed to restrict its application
to Europe only. Pragmatic action circumvented this limitation quickly,51 but the Convention
retained a stigma of a Eurocentric post-World War instrument.
With the adoption of the 1967 Protocol Relating to the Status of Refugees (the Protocol),
the Convention finally provided the basis for universal application. However, the debate
about the Convention’s universality does not stop here. In gauging universality, it is helpful to
distinguish between different levels: relative universality at the level of a concept (level one),
which in turn is characterized by several different conceptions (level two) and implementa-
tions (level three).52 Propelled by the observation that some underlying concepts of the 1951
Convention – providing sanctuary or demonstrating hospitality to strangers – date back to
the medieval period in Europe and around the world,53 the Convention’s standard-setting for
a particular group of needy foreigners does have universal appeal. There is also a fair degree
of international legal universality at level one, given the high number of ratifications54 and
high-level processes reaffirming the Convention. In the 2001 Declaration of State Parties to the
Convention and the Protocol,55 and most recently the New York Declaration,56 governments
have reaffirmed their commitment to implement their obligations under these instruments.
However, such conceptual universality does not mean shared conceptions of all Convention
provisions, which frequently allow for different interpretations. Indeed, there are a number

47
Paul Weis, ‘The International Protection of Refugees’ (1954) American Journal of International
Law 193.
48
Ad Hoc Committee on Statelessness and Related Problems, Summary Record of the Seventh
Meeting, held at Lake Success, New York, 31 January 1950 (UN Doc. E/AC32/SR17, 1950).
49
Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons, 25 July 1951, http://​www​.unhcr​.org/​protection/​travaux/​40a8a7394/​final​-act​-united​
-nations​-conference​-plenipotentiaries​-status​-refugees​-stateless​.html, last accessed 9 April 2019.
50
Kazimierz Bem, ‘The Coming of a “Blank Cheque’’ — Europe, the 1951 Convention, and the
1967 Protocol’ (2004) 16 International Journal of Refugee Law 609.
51
See the account of the gradual expansion of UNHCR’s mandate, Alexander Betts and Gil
Loescher, The United Nations High Commissioner for Refugees (UNHCR): The Politics and Practice of
Refugee Protection (Global Institutions, Routledge 2013).
52
Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29(2) Human Rights
Quarterly 281–306.
53
Linda Rabben, Sanctuary and Asylum: A Social and Political History (University of Washington
Press 2016).
54
For a list of ratifications to the Convention and the Protocol, see United Nations Treaty Series,
http://​www​.unhcr​.org/​protection/​basic/​3b73b0d63/​states​-parties​-1951​-convention​-its​-1967​-protocol​
.html, last accessed 9 April 2019.
55
UN High Commissioner for Refugees (UNHCR), Declaration of States Parties to the 1951
Convention and or Its 1967 Protocol relating to the Status of Refugees, 16 January 2002, HCR/
MMSP/2001/09.
56
UN General Assembly, New York Declaration for Refugees and Migrants, A/71/L.1, 13
September 2016.

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12 Research handbook on international refugee law

of contentious issues on the interpretation of Convention provisions, some of which have

been mentioned in this chapter or are discussed in this volume. They include, among others,
the scope of the refugee definition; the threshold for cessation of refugee status; the scope
of refugee rights, including access to welfare and extraterritorial application of the duty
of non-refoulement; the criteria for exclusion, or even the understanding of basic terms as
‘protection’. Yet, different legal conceptions do not mean that there is an indefinite range of
permissible interpretations. As it was put in a UK case grappling with divergent interpretations
of the Convention, ‘however wide the canvas facing the judge’s brush, the image he makes
has to be firmly based on some conception of objective principle which is recognized as
a legitimate source of law’.57 As law is conveyed through language and as language is inde-
terminate, a community of practice (legislative, executive and judicial actors) struggles over
semantics, upholds and develops law with shared understandings based on common interpre-
tative means and rules.58 Those means and rules are primarily the rules of interpretation of the
Vienna Convention on the Law of Treaties, which prescribe an approach to the Convention
that builds on ‘consistency with principle, […] object and purpose, and good faith’.59 The
Convention’s universality cannot be taken for granted, but needs continuous and principled
affirmation by a community of practice. From the perspective of refugee law research (this
contribution is no exception), that community of practice tends to be composed mainly of
courts of industrialized countries that handle individual claims, missing out on practice in
the Global South. What is more, refugee law research has only recently begun to study the
emulation and cross-pollination of refugee law between different legal systems in a systematic
way,60 and tends to treat compliance as a direct consequence of positive law. This is where the
Convention’s supervision and relation to politics comes into play.

6. THE POLITICS OF PROTECTION: COMPLYING WITH 1951

CONVENTION OBLIGATIONS

Focusing on countries with relatively sophisticated refugee status determination and function-
ing domestic legal enforcement creates a limited frame for analysing compliance questions in
refugee law research: they are most often addressed as part of doctrinal analysis, aiming at the
systematic description and criticism of positive law. The quest for a broad interpretation of
the refugee definition in Article 1A(2), and the systematic description of obligations towards
specific subsets of refugees, is a case in point. This focus has ensured refugee research remains
relevant to the practice of immigration lawyers and the broader debate on the legality of con-
tested measures of immigration control; however, it has somewhat missed out on theoretical
and empirical research on compliance mechanisms with the Convention.

57
Sepet v. Secretary of State for the Home Department, [2001] Imm AR 452 (Eng. CA, May 11,
2001), at 477 [66].
58
Jutta Brunnée and Stephen J. Toope, Legitimacy and Legality in International Law (Cambridge
University Press 2010), 352; Ingo Ventzke, How Interpretation Makes International Law (Oxford
Universtiy Press 2012).
59
Goodwin-Gil cited in James C. Simeon, ‘Introduction: The Research Workshop on Critical Issues
in International Refugee Law and Strategies Towards Interpretative Harmony’ in Simeon (n 20), 9.
60
Lambert, McAdam and Fullerton (n 22).

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 At the crossroads: The 1951 Geneva Convention today 13

Research on international law compliance is interested in why states commit to international

legal obligations, why they do or do not comply with legal obligations after having committed
to them, and what the mechanisms of enforcement are. The first question is most convention-
ally answered by pointing to state power and interests. Interests can be affected by incentives
of meaningful enforcement, such as linking ratification with rewards, reciprocity or reputa-
tional sanctions.61 Yet, given the lack of centralized enforcement, these explanations normally
struggle to explain commitments to human rights treaties.62 Scholars have therefore pointed to
the importance of domestic factors for ratifying and complying with human rights treaties, for
instance, as a tactical concession to the demands of rights proponents.63 These factors cannot,
in turn, be easily applied to refugee law, as they posit that it is citizens advocating for their
own rights (and potentially supported internationally) that push compliance. Research on com-
pliance with refugee law, and on the readiness to expand it, has pointed in various directions,
including the centrality of domestic pressure and relations with the country of origin of asylum
seekers,64 the importance of linking protection to other issues at the core of state interest,65 but
also the aversion of states to rights-based language and legal protection. Indeed, it has been
argued that human rights-based approaches and protection activities have been detrimental to
‘on the ground’ solutions for refugees in the Middle East.66
Perhaps more widely discussed is compliance with the Convention in relation to the super-
vision of the 1915 Convention and UNHCR initiatives aimed at strengthening the Convention.
Article 35 of the 1951 Convention bestows on the UNHCR the competence to supervise the
application of the Convention, while imparting on states the duty to cooperate with the High
Commissioner. In practice, the UNHCR supervisory role has included a broad scope of activ-
ities. These range from representations to governments, submissions to court cases, advice on
draft legislation and on refugee status determination, public advocacy, capacity building and
data collection.67 However, the ‘good offices’ role of UNHCR supervision remains different
from the monitoring of human rights treaties. The UNHCR does issue interpretative guidelines

61
Beth A. Simmons, ‘Compliance with International Agreements’ (1998) 1(1) Annual Review of
Political Science 75–93.
62
Richard A. Nielsen and Beth A. Simmons, ‘Rewards for Ratification: Payoffs for Participating in
the International Human Rights Regime?’ (2015) 59(2) International Studies Quarterly 197–208.
63
Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into
Domestic Practices: Introduction’ (1999) 66 Cambridge Studies in International Relations 1–38.
64
Domestic and international incentives of elites, including pressures from civil society and bilateral
relation with the country of asylum comparing South Africa and Botswana, Alexander Betts, ‘From
Persecution to Deprivation: How Refugee Norms Adapt at Implementation’ in Alexander Betts and
Phil Orchard (eds), Implementation & World Politics – How Internationa Norms Change Practice
(Implementation & World Politics – How Internationa Norms Change Practice, Oxford University Press
2014).
65
Alexander Betts, Protection by Persuasion: International Cooperation in the Refugee Regime
(Cornell University Press 2009).
66
Jill Goldenziel, ‘Regulating Human Rights: International Organizations, Flexible Standards, and
International Refugee Law’ (2014) Chicago Journal of International Law 14; Dallal Stevens, ‘Rights,
Needs or Assistance? The Role of the UNHCR in Refugee Protection in the Middle East’ (2016) 20 The
International Journal of Human Rights 20.
67
Walter Kälin, ‘Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and
Beyond’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International
Law: UNHCR’s Global Consultations on International Protection (Refugee Protection in International
Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press 2003).

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14 Research handbook on international refugee law

on the interpretation of the 1951 Convention (such as the Handbook on Refugee Status and the
Guidelines on International Protection), but the Convention has neither a reporting nor a com-
plaint mechanism. Academics and practitioners have thus made several proposals aimed at
strengthening supervision of the Convention. Partly modelled after the mechanisms of human
rights treaties, and with different degrees of ‘embedding’ into the UNHCR. These proposals
included regular reporting obligations, a refugee rights committee, or a sub-committee of
UNHCR’s Executive Committee, tasked with monitoring and featuring thematic rapporteurs.68
Most recently, a group of academics and judges proposed the creation of a Special Committee
of Experts within the UNHCR, ‘tasked with issuing Advisory Opinions on the interpretation
and application of the […] Convention.’69
Yet, there has been little appetite on the part of states to make supervisory institutions for the
Convention more robust or to add new legal obligations. This has been apparent not only in the
lack of reform on supervision, but also in the UNHCR’s ‘Convention Plus’ initiative (aimed
at complementing the Convention with multilateral special agreements on the strategic use of
resettlement, more targeted development assistance to facilitate solutions for refugees and on
state obligations in handling irregular secondary movements70 and in the negotiations of the
Global Compact for Refugees, equally facilitated by the UNHCR. For future legal research,
it will be particularly relevant to observe the normative impact of the Global Compact for
Refugees on the 1951 Convention practice and on the global protection regime more broadly –
by states and the UNHCR, but also by other stakeholders that are traditionally not in focus of
legal research. Finally, legal research will have to grapple with how it can contribute to more
burden and responsibility sharing.71

7. CONCLUSION: AT THE CROSSROADS

The 1951 Convention is at a critical juncture, and so is legal research on the Convention.
Looking back, the Convention has undergone a remarkable evolution. It has remained rele-
vant by proving flexible, in particular regarding the use of human rights law as interpretative
guidance for elements of the refugee definition. The changed understanding of jurisdiction in
public international law has expanded the applicability of Convention rights and obligations
owed to refugees under the jurisdiction of a state party (rather than a more demanding form of
physical presence or legal status), in particular non-refoulement. Finally, the Convention has
long overcome the initial post-war, Eurocentric bias.
However, the Convention is also facing challenges that either already hamper its relevance
and effectiveness, or could do so in the future. First, the research debates on the evolutionary
interpretation of the definition and the stretching of the definition have probably reached their

68
James C. Simeon, ‘The Supervision of International Refugee Law’ (International Refugee Law
Seminars, London, 21 February 2012).
69
James C. Hathaway, Anthony M. North, Jason M. Pobjoy, and Rosemary Byrne. ‘Roundtable on
the Future of Refugee Convention Supervision’ (2013) 26(3) Journal of Refugee Studies 323–6.
70
Marjoleine Zieck, ‘Doomed to Fail from the Outset? UNHCR’s Convention Plus Initiative
Revisited’ (2009) 21 International Journal of Refugee Law.
71
On the Convention Plus initiative, this question has been researched by Alexander Betts and
Jean-François Durieux, ‘Convention plus as a norm-setting exercise’ (2007) 20 Journal of Refugee
Studies.

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 At the crossroads: The 1951 Geneva Convention today 15

climax; the Convention cannot and should not lose its distinctive focus on actor-inflicted
human rights harm connected to a Convention ground. From the vantage point of future
refugee law research, material law on the scope of the refugee definition could lose relevance
to the benefit of procedural analysis as the new ‘battleground’ for how a case is decided, in
particular given ‘protection elsewhere’ practices. Second, human rights law is not only a motor
to the evolutionary interpretation of the Convention. It also risks cannibalizing the Convention
should the scope of harm relevant for human rights law non-refoulement obligations under
human rights law be interpreted more broadly than that of the Convention, and if human rights
law continues to evolve more dynamically than the Convention. Third, to endure and maintain
universal appeal, the Convention needs continuous application by a community of practice
committed to objective principle, all the while the Convention is under constant strain of
measures for migration control, and despite imperfect supervisory mechanisms. In this regard,
other developments in international law, such as on complicity and on joint responsibility in
extraterritorial obligations, will continue to be relevant for the 1951 Convention. Finally, some
of the most important challenges, such as non-compliance, climate-induced displacement and
the lack of solidarity in the refugee regime, are unlikely to be solved ‘within’ the Convention,
but need other regulatory frameworks, possibly not even in the form of ‘hard’ law. To some
extent, this may mean that dogmatic legal research becomes less policy-relevant, to the benefit
of research on compliance factors, other disciplinary outlooks and applied research contrib-
uting to functioning institutions of refugee protection. For only if the international protection
regime evolves alongside the Convention, will the instrument continue to be relevant.

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2. The 1969 OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa
Tamara Wood1

INTRODUCTION

There are few parts of the world more associated with refugees than Africa. Violence, per-
secution, political instability, drought and armed conflicts, both protracted and new, have all
contributed to a view of Africa as a continent of windswept refugee camps and populations on
the move. In 2015, the United Nations High Commissioner for Refugees (UNHCR) estimated
the total number of refugees in Africa to be almost 4.8 million,2 amounting to nearly one-third
of all refugees worldwide.3 The vast majority of refugees in Africa come from within the
continent itself. More recently, however, the region has also hosted significant numbers from
elsewhere, notably Yemen.4
Under international law, most African States have signed and ratified the 1951 Convention
Relating to the Status of Refugees (1951 Refugee Convention or 1951 Convention).5 In addi-
tion, Africa has its own regional refugee protection instrument – the 1969 OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa (1969 African Refugee
Convention or 1969 Convention).6 The 1969 African Refugee Convention was drafted at
a time when many African States were struggling against colonial or minority rule and, as its
full title makes clear, it was intended to ‘deal with those aspects of the refugee problem, which
were not covered by the 1951 Refugee Convention, and which were specific to Africa’.7 Chief
among such ‘specific aspects’ were ongoing concerns about security, subversive activities
within refugee host States and the question of whether ‘freedom fighters’ could be refugees.8

1
The author is grateful to Professor Jane McAdam for comments on an earlier draft of this chapter.
2
The estimated total number of refugees in Africa at the end of 2015 was 4,769,513. UNHCR,
‘Global Trends 2015’ (2015) Annex Table 1.
3
The estimated total number of refugees worldwide was 15,483,893, meaning refugees in Africa
comprised approximately 31 per cent of the total refugee population. Ibid.
4
As at 31 October 2016, UNHCR reported a total of 27,145 Yemeni nationals across Djibouti,
Somalia, Ethiopia and Sudan. See UNHCR, ‘Yemen: Regional Refugee and Migrant Response Plan’ (31
October 2016) http://​data​.unhcr​.org/​yemen/​regional​.php accessed 18 November 2016.
5
Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April
1954) 189 UNTS 150 (1951 Convention). For a full list of States Parties to the 1951 Convention see
http://​www​.unhcr​.org/​protection/​basic/​3b73b0d63/​states​-parties​-1951​-convention​-its​-1967​-protocol​
.html accessed 18 November 2016.
6
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10
September 1969, entered into force 20 June 1974) 1001 UNTS 14691 (1969 Convention).
7
Ivor Jackson, The Refugee Concept in Group Situations (Martinus Nijhoff 1999) 180.
8
See generally Jackson, ibid; Marina Sharpe, ‘Organization of African Unity and African Union
Engagement with Refugee Protection: 1963–2011’ (2013) 21(1) African Journal of International and
Comparative Law 50.

16
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 The 1969 OAU Convention in Africa 17

The 1969 Convention has been widely endorsed on the continent, with 45 of the 54 Member
States of the African Union (AU) having ratified it.9
The 1969 Convention proclaims itself to be the ‘regional complement’ to the 1951
Convention and is intended to apply alongside it.10 It defines the term ‘refugee’,11 before
setting out a range of provisions concerning States’ treatment of refugees and management
of refugee affairs. These include provisions relating to non-refoulement,12 the provision of
asylum,13 travel documents,14 non-discrimination,15 voluntary repatriation16 and international
cooperation.17 While some of the 1969 Convention’s provisions are couched in aspirational,
rather than mandatory, terms – States shall use their ‘best endeavours’, for example, to secure
the settlement of refugees18 – States Parties to the Convention nevertheless undertake to
perform them in good faith.19
The 1969 Convention has been widely lauded for its humanitarian approach to refugee
protection20 and for ‘translat[ing] the core meaning of refugee status to the reality of the
developing world’.21 It has been heralded as a model for legal developments in other regions22
and as a ‘lesson for all States in resolving their respective refugee problems’.23 Unfortunately,
however, the high expectations set by the 1969 Refugee Convention have rarely been met in
practice, where implementation by African States has frequently been compromised by a lack

9
The States that have ratified the 1969 Convention are: Algeria, Angola, Benin, Botswana, Burkina
Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Côte d’Ivo-
ire, Democratic Republic of the Congo, Egypt, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana,
Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Malawi, Mali, Mauritania, Mozambique, Niger,
Nigeria, Rwanda, Senegal, Seychelles, Sierra Leone, South Africa, Sudan, Swaziland, Tanzania, Togo,
Tunisia, Uganda, Zambia, and Zimbabwe. A further four states – Djibouti, Madagascar, Mauritius and
Somalia – have signed but not ratified the Convention. For a full list of signatories, including dates of
signature, see http://​www​.achpr​.org/​instruments/​refugee​-convention/​ratification/​ accessed 29 November
2016.
10
1969 Convention, art VIII(2).
11
Ibid., art I.
12
Ibid., art II(3).
13
Ibid., art II.
14
Ibid., art VI.
15
Ibid., art IV.
16
Ibid., art V.
17
Ibid., art II(4).
18
Ibid., art II(1).
19
See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 (VCLT), art 26.
20
See generally George Okoth-Obbo, ‘Thirty Years On: A Legal Review of the 1969 OAU Refugee
Convention Governing the Specific Aspects of Refugee Problems in Africa’ (2001) 20(1) RSQ 79; Anais
Tuepker, ‘On the Threshold of Africa: OAU and UN Definitions in South African Asylum Practice’
(2002) 15(4) JRS 409; Michael Kagan, ‘Legal Refugee Recognition in the Urban South: Formal v. De
Facto Refugee Status’(2007) 24(1) Refuge 11.
21
James C. Hathaway, The Law of Refugee Status (Butterworths 1993) 17.
22
See, e.g., Tunis Declaration on the 1969 OAU Convention Governing the Specific Aspects
of Refugee Problems in Africa, 30th Ordinary Session of the OAU Assembly of Heads of State and
Government, 13–15 June 1994, Tunis, Tunisia; Eduardo Arboleda, ‘Refugee Definition in Africa and
Latin America: The Lessons of Pragmatism’ (1991) 3(2) International Journal of Refugee Law 185.
23
Arboleda, ibid., 205.

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18 Research handbook on international refugee law

of resources, capacity and political will.24 In addition, the limited amount of available case law
or guidance on the 1969 Convention’s terms has hampered understandings of its application
both in theory and in practice.25 Against this background, a better understanding of the 1969
Convention is essential. This chapter will contribute to such an understanding by providing,
first, an overview of some of the Convention’s distinctive features (section I), and second,
some comments on the Convention’s significance for the future of refugee law, both within
and beyond Africa (section II).

I. UNIQUE FEATURES OF THE 1969 AFRICAN REFUGEE

CONVENTION

Scholarly analyses of the 1969 African Refugee Convention are rare, particularly when
compared with the 1951 Refugee Convention. Most major works on international refugee law
only briefly mention the instrument.26 With a few notable exceptions,27 discussion of the 1969
Convention has tended to be general in nature and to be ‘accolades rather than rigorous anal-
yses’.28 A lack of detailed empirical research on the implementation of refugee law in Africa
means that an understanding of how the 1969 Convention operates in practice is virtually
non-existent.29
What literature there is on the 1969 Convention has tended to focus on how it differs from
its international counterpart, the 1951 Convention. The most celebrated of these differences
is in the 1969 Convention’s definition of the term ‘refugee’, which is considered to be more
expansive than its international counterpart, Article 1A(2) of the 1951 Convention.30 However,
the 1969 Convention also has a number of other distinctive features, including strengthened
protections for refugees – in particular, in relation to non-refoulement and the provision of

24
See, e.g., Okoth-Obbo (n 20) 106, who notes the ‘limited extent to which the OAU Convention
has actually and concretely provided the anchor for refugee dialogue and action in Africa’. See also
Tamara Wood, ‘Expanding Protection in Africa? Case Studies of the Implementation of the 1969 African
Refugee Convention’s expanded refugee definition’ (2014) 26(4) IJRL 555. A detailed analysis of the
operation of the 1969 Convention in practice is outside the scope of this chapter.
25
See Okoth-Obbo, ibid., 85–6; Sharpe (n 8) 57.
26
See, e.g., Andreas Zimmerman (ed.), The 1951 Convention Relating to the Status of Refugees and
its 1967 Protocol: A Commentary (OUP 2011), Chapter 6 is entitled ‘Regional Developments: Africa’
and is authored by Jacob van Garderen and Julie Ebenstein; Hathaway (n 21), Chapter 1.4.3 is entitled
‘The Organization of African Unity Definition of Refugee Status’ and consists of three pages; Guy S.
Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007), passing refer-
ences only; Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International
Law: UNHCR’s Global Consultations on International Protection (CUP 2003), passing references only.
27
For some of the most detailed and useful analyses of the 1969 Convention, see Sharpe (n 8);
Marina Sharpe, ‘The 1969 African Refugee Convention: Innovations, Misconceptions, and. Omissions’
(2012) 58 McGill Law Journal 95; Alice Edwards, ‘Refugee Status Determination in Africa’ (2006)
14 African Journal of International and Comparative Law 204; Okoth-Obbo (n 20); Micah Rankin,
‘Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee Definition Thirty
Years On’ (2005) 21 SAJHR 406.
28
Rankin, ibid., 410. See also Edwards, ibid., 208.
29
For an analysis of the practical implementation of the 1969 African Refugee Convention’s
expanded refugee definition in two countries – South Africa and Kenya – see Wood (n 24).
30
For full discussion of Africa’s expanded refugee definition, see below section I(a).

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 The 1969 OAU Convention in Africa 19

asylum – provision for responsibility-sharing among States, and an acknowledgement of the

link between refugee protection and State security.31 Each of these features is considered in
turn below.

a. Expanded Definition of a Refugee

The 1969 Convention is the only binding regional refugee law instrument to expand the defi-
nition of a ‘refugee’ beyond the international definition in the 1951 Convention.32 Paragraph 1
of the 1969 Convention’s Article I definition of the term replicates Article 1A(2) of the 1951
Convention, while paragraph 2 extends the term further. In full, it provides:

BOX 2.1 ARTICLE I OF THE 1969 OAU CONVENTION GOVERNING

THE SPECIFIC ASPECTS OF REFUGEE PROBLEMS IN
AFRICA

Definition of the Term ‘Refugee’

1. For the purposes of this Convention, the term ‘refugee’ shall mean every person who,
owing to a well-founded fear of being persecuted for reasons of race, religion, national-
ity, membership of a particular social group or political opinion, is outside the country
of his nationality and is unable or, owing to such fear, is unwilling to avail himself of
the protection of that country, or who, not having a nationality and being outside the
country of his former habitual residence as a result of such events, is unable or, owing
to such fear, is unwilling to return to it.
2. The term ‘refugee’ shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either
part or the whole of his country of origin or nationality, is compelled to leave his place
of habitual residence in order to seek refuge in another place outside his country of
origin or nationality.33

Paragraph 2 – the ‘expanded refugee definition’ – has been frequently praised for moving
beyond the international definition’s focus on an individual’s well-founded fear of persecu-
tion, to include as refugees people fleeing more widespread and generalized forms of harm,
such as civil war, generalized violence and potentially even natural disaster.34 The expanded

These features will be the subject of section I of this chapter.

31

The Cartagena Declaration, which also includes an expanded refugee definition, is a non-binding
32

instrument. See Cartagena Declaration on Refugees, Colloquium on the International Protection of

Refugees in Central America, Mexico and Panama, adopted by the Colloquium on the International
Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia from
19–22 Nov 1984 (Cartagena Declaration), para III(3).
33
1969 Convention, art 1.
34
On war and generalized violence, see generally, Marina Sharpe, ‘The 1969 OAU Refugee
Convention and the Protection of People fleeing Armed Conflict and Other Situations of Violence in
the Context of Individual Refugee Status Determination’ (2013) UNHCR Legal and Protection Policy
Research Series, January 2013. The inclusion of natural disasters in the expanded refugee definition

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20 Research handbook on international refugee law

refugee definition’s criteria for refugeehood are said to be predominantly objective in nature,
focusing on general conditions or events in the country of origin (external aggression, occupa-
tion, etc.),35 and to include harms not linked to the actions of the State.36 The stipulation that
the relevant harm occur ‘in the whole or part’ of the refugee’s country of origin is further said
to remove the 1951 Convention’s ‘internal flight alternative’ requirement, meaning that the
refugee need not seek protection elsewhere in his or her own country before qualifying for
refugee status outside it.37 Largely owing to these features, the expanded refugee definition is
considered particularly suited to providing protection on a group, or prima facie, basis and in
situations of mass influx.38 Okoth-Obbo summarizes these differences as follows:

Because it focuses on the objective circumstances which have compelled flight; because the fear of
danger is not linked to the individual’s personal subjective reaction to the adversity he perceives;
because the definition includes within its scope even accidental situations not necessarily based on
deliberate State action; and because the source of danger need not be the actions of a State or its
agents; the wideness of the [expanded refugee] definition is thereby clearly established.39

The apparent breadth of Africa’s expanded refugee definition has been questioned by some,
who argue that the definition ‘likely only extends refugee protection incrementally’.40 Indeed,
the precise boundaries of the definition remain unclear and warrant further attention.41
Nevertheless, it remains true that Article I(2) extends refugee protection to people who would
not be covered by Article 1A(2) of the 1951 Convention.42 In doing so, it not only provides
an expanded legal basis for protection of refugees within Africa, but it has also proved influ-
ential on the development of refugee protection mechanisms elsewhere. In Latin America,
for example, the Cartagena Declaration on Refugees’ own expanded refugee definition
draws heavily on the text of Article I(2) of the 1969 Convention.43 In 1977, proposals for an
expanded refugee definition were discussed at the conference of plenipotentiaries for draft-
ing a Convention on Territorial Asylum.44 Though work on the adoption of the Convention

is contentious. See generally, Tamara Wood, ‘Protection and Disasters in the Horn of Africa: Norms
and Practice for Addressing Cross-Border Displacement in Disaster Contexts’ Technical Paper for the
Nansen Initiative Horn of Africa Regional Consultation, January 2013
35
Okoth-Obbo (n 20) 112; van Garderen and Ebenstein (n 26) 190; M. Rwelamira, ‘Two Decades of
the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’ (1989) 1(4)
IJRL 557.
36
Okoth-Obbo, ibid.
37
See UNHCR, Guidelines on International Protection: “Internal Flight or Relocation Alternative
within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status
of Refugees, UN Doc HCR/GIP/03/04, para 5; Hathaway (n 21) 18.
38
Jackson (n 7) 193; Edwards (n 27) 211; Tuepker (n 20) 411.
39
Okoth-Obbo (n 20) 112.
40
Sharpe (n 27) 112.
41
See generally Wood (n 24) 576–8.
42
Sharpe concurs with this, noting that the expanded refugee definition ‘has certainly extended inter-
national protection to individuals who would not otherwise qualify for refugee status’. Sharpe (n 27) 112.
43
The Cartagena Declaration recommends that the term refugee include ‘persons who have fled their
country because their lives, safety or freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or other circumstances which have
seriously disturbed public order’. Cartagena Declaration, para III(3).
44
See generally P. Weis, ‘The Draft United Nations Convention on Territorial Asylum’ (1980) 51(1)
British Yearbook of International Law 151.

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 The 1969 OAU Convention in Africa 21

on Territorial Asylum itself stalled, it is notable that participating States had agreed on an
expanded definition of a refugee that drew on the terminology of Africa’s expanded refugee
definition.45

b. Strengthened Protections

As well as expanding the definition of a refugee, the 1969 Convention has been noted for its
progressive, even ‘revolutionary’, approach to other aspects of refugee protection.46 In particu-
lar, the principle of non-refoulement and the provision of asylum are both developed by the
1969 Convention.

i. Non-refoulement
Fundamental to the protection of refugees is the principle of non-refoulement – that is, the
prohibition on States from returning a refugee to a territory where he or she would be at
risk of certain types of harms. The principle is found in a number of treaties, including the
1951 Convention,47 as well as under customary international law.48 Article II(3) of the 1969
Convention expresses the principle of non-refoulement as follows:

No person shall be subjected by a Member State to measures such as rejection at the frontier, return
or expulsion, which would compel him to return to or remain in a territory where his life, physical
integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.49

This is couched in similar terms to its international counterpart, Article 33 of the 1951
Convention.50 However, it is broader in two respects. First, it does not contain an exception on
the basis of national security. While Article 33(2) of the 1951 Convention prevents a refugee
for whom ‘there are reasonable grounds for regarding as a danger to the security of the country
in which he is’ from claiming the benefit of non-refoulement,51 Article II(3) of the 1969
Convention admits of no exceptions. The 1969 Convention’s exclusion provisions, found

45
The definition provided in the draft Convention on Territorial Asylum included persons fleeing
‘the struggle against colonialism and apartheid, foreign occupation, alien domination and all forms of
racism’. See Hathaway (n 21) 16.
46
Okoth-Obbo asserts that the Convention’s ‘revolutionary character lay principally in the new
and specific concepts it brought into play’. Okoth-Obbo (n 20) 88; see also Medard Rwelamira, ‘Some
Reflections on the OAU Convention on Refugees: Some Pending Issues’ (1983) 16 Comparative and
International Law Journal of Southern Africa 155, 177.
47
1951 Convention, art 33(1). For an analysis of the principle of non-refoulement under other inter-
national and regional human rights treaties, see generally, Jane McAdam, Complementary Protection
(OUP 2007) esp Ch 3–5.
48
See generally, Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the
Principle of Non-refoulement: Opinion’ in Feller et al. (n 26) 87–177.
49
1969 Convention, art II(3).
50
Art 33(1) of the 1951 Convention provides: ‘No Contracting State shall expel or return (“refouler”)
a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group or polit-
ical opinion.’
51
1951 Convention, art 33(2).

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22 Research handbook on international refugee law

in Article I(5), still exclude certain persons from the benefit of the Convention as a whole.52
Nevertheless, the removal of the national security exception makes protection from refoule-
ment stronger under the 1969 Convention than under the 1951 Convention.
Second, the 1969 Convention’s non-refoulement provision explicitly prohibits ‘rejection at
the frontier’ as a means by which refoulement may occur. The extent to which this is an expan-
sion on Article 33 of the 1951 Convention is questionable, given that the latter has generally
been read to prohibit rejection at the frontier in any case.53 However, the explicit prohibition
of the practice is a welcome inclusion in Africa, where those seeking refuge generally arrive
via land.

ii. Asylum
While its exact content is often contested, the principle of asylum is generally considered to
be broader than the mere grant of refugee status.54 Asylum extends beyond protection from
refoulement to encompass ‘admission to residence and lasting protection against the jurisdic-
tion of another State’.55 The failure of the 1951 Convention to provide an individual right to
asylum has been one of the often noted gaps in the international refugee regime.
In contrast, the 1969 Convention has been praised for promoting and strengthening the insti-
tution of asylum.56 Article II of the 1969 Convention, entitled ‘Asylum’, has been described
as ‘among [the Convention’s] most important contributions to refugee jurisprudence in gen-
eral’.57 It provides:

Member States of the OAU shall use their best endeavours consistent with their respective legislations
to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are
unable or unwilling to return to their country of origin or nationality.58

It goes on to assure that the ‘granting of asylum to refugees is a peaceful and humanitarian act
and shall not be regarded as an unfriendly act by any Member State’59 and that ‘[t]he essen-

52
1969 Convention, art I(5), provides:
The provisions of this Convention shall not apply to any person with respect to whom the country
of asylum has serious reasons for considering that: (a) he has committed a crime against peace,
a war crime, or a crime against humanity, as defined in the international instruments drawn up to
make provision in respect of such crimes, (b) he committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee, (c) he has been guilty of
acts contrary to the purposes and principles of the Organisation of African Unity, (d) he has been
guilty of acts contrary to the purposes and principles of the United Nations.
See also Sharpe (n 27) 106.
53
See Goodwin-Gill and McAdam (n 26) 208.
54
See, e.g., María-Teresa Gil-Bazo, ‘Asylum as a General Principle of International Law’ (2015)
27(1) IJRL 3, esp 7–10.
55
Goodwin-Gill and McAdam (n 26) 358. For a general discussion of the content of asylum see
Alice Edwards, ‘Human Rights, Refugees, and The Right ‘To Enjoy’ Asylum’ (2005) 17 IJRL 297.
56
See, e.g., Goodwin-Gill and McAdam, ibid., 368; Rwelamira (n 46) 170.
57
See Okoth-Obbo (n 20) 88, referring to Joe Oloka Onyango, ‘Plugging the Holes: Refugees, OAU
Policy and the Practices of Member States’, USC Issue Brief, Washington DC, October 1986.
58
1969 Convention, art II(1).
59
Ibid., art II(2).

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 The 1969 OAU Convention in Africa 23

tially voluntary character of repatriation shall be respected in all cases and no refugee shall be
repatriated against his will’.60
Despite the relative generosity of these provisions, they stop short of granting an individ-
ual right to asylum per se. The language of ‘best endeavours’ suggests it is merely recom-
mendatory,61 and the exhortation on States to settle refugees ‘consistent with their respective
legislations’ appears to preserve the more conventional view that the granting of asylum is
a right of the State, rather than the individual.62 Nevertheless, as Rwelamira notes, despite
such shortcomings, the 1969 Convention’s asylum provisions ‘provide a foundation for future
elaboration of the right of the individual to be granted asylum’.63 Indeed, such elaboration is
to be found in the African Charter on Human and Peoples’ Rights, which further strengthens
the principle by according every individual ‘the right, when persecuted, to seek and obtain
asylum’.64

c. Responsibility-sharing Among States

As is the case in many other regions, a large proportion of refugees in Africa are hosted by
a small number of countries. In 2015, Kenya and Ethiopia each hosted more than half a million
refugees.65 When refugee numbers are scaled according to gross domestic product (GDP) and
population, the Democratic Republic of Congo (DRC) hosts more refugees than any other
country in the world.66 In this context, the need for cooperation and assistance among States
is clear. While the 1951 Convention espouses the principle of international cooperation in its
preamble,67 the 1969 Convention goes further, including it within its substantive provisions.
Article II(4) of the 1969 Convention states:

Where a member State finds difficulty in continuing to grant asylum to refugees, such Member State
may appeal directly to other Member States and through the OAU and such Member States shall in
the spirit of African solidarity and international co-operation take appropriate measures to lighten the
burden of the Member State granting asylum.68

60
Ibid., art V(1).
61
See Sharpe (n 27) 105.
62
See generally, Goodwin-Gill and McAdam (n 26) 358 ff; Roman Boed, ‘The State of the Right of
Asylum in International Law’ (1994) 5(1) Duke Journal of Comparative & International Law 1, 3–5.
63
Rwelamira (n 46) 170.
64
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) 1520 UNTS 217, art 12(3). Note, however, that this instrument’s further qualification that
asylum be ‘in accordance with laws of those countries and international conventions’ also compromises
the strength of the right, leaving it still potentially within the discretion of individual States. See e.g.,
Sharpe (n 27) 104.
65
According to UNHCR figures, in 2015 Kenya hosted 553,912 refugees and Ethiopia hosted
736,086. UNHCR (n 2).
66
The Democratic Republic of Congo hosts 471 refugees per 1 USD GDP per capita. Ibid.
67
The preamble to the 1951 Convention ‘[c]onsider[s] that the grant of asylum may place unduly
heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United
Nations has recognized the international scope and nature cannot therefore be achieved without interna-
tional co-operation’. 1951 Convention, preambular para 4.
68
1969 Convention, art II(4).

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24 Research handbook on international refugee law

This substantive provision for responsibility-sharing among States is laudable and significant,
as it moves the concept of responsibility-sharing from a mere recommendation to a binding
obligation.69 It has been followed by numerous calls by the OAU, and later the AU, for African
States to establish the necessary institutional arrangements for responsibility-sharing.70
Unfortunately, these calls have gone largely unheeded and mechanisms for inter-State cooper-
ation on refugees in Africa are virtually non-existent.71 Nevertheless, Article II(4) of the 1969
Convention could provide the basis for future cooperation between African States in areas
such as resettlement, financial and/or technical support, and shared political responsibility.72

d. Acknowledgement of the Relationship Between Protection and Security

The 1969 Convention has been noted for its emphasis on the relationship between refugee
protection and security.73 Its preamble describes the refugee problem in Africa as ‘a source of
friction among states’74 and notes the need to discourage ‘subversive elements’ of the refugee
population.75 A number of the Convention’s provisions are concerned with the maintenance
of State security, including obligations on States Parties to prohibit refugees from engaging
in ‘any subversive activities against any Member State of the OAU’,76 to ‘settle refugees at
a reasonable distance from the frontier of their country of origin’77 and to ‘prohibit refugees
residing in their respective territories from attacking any State Member of the OAU, by any
activity likely to cause tension between Member States, and in particular by use of arms,
through the press, or by radio’.78
As has been noted in relation to the 1951 Convention, the desire to provide assistance to
States in solving a problem of mutual concern does not undermine the overarching human
rights purpose of the treaty.79 Indeed ‘[p]rotection works best when it is congruent with other

69
Rwelamira (n 35).
70
For example, the 1979 Arusha Conference had called already for the ‘strengthening and develop-
ment of institutional arrangements for burden-sharing. . .within the framework of African solidarity and
international co-operation’. See Recommendations from the Pan-African Conference on the Situation
of Refugees in Africa, Arusha (Tanzania), adopted at the Pan-African Conference on the situation of
refugees in Africa in Arusha, 7–17 May 1979, para 8.
71
In 1968 the Bureau for the Placement, Education and Resettlement of Refugees (BPEAR) was
created to facilitate the placement of refugees in other African countries. However, despite some suc-
cesses, as Okoth-Obbo notes, ‘the results were limited’. Okoth-Obbo (n 20) 94. See generally Joe Oloka
Onyango, ‘The Place and Role of the OAU Bureau for Refugees in the African Refugee Crisis’ (1994)
6(1) IJRL 34.
72
See Sharpe (n 27) 107.
73
Rutinwa states that the 1969 Convention ‘was specifically intended to meet the security concerns
of states’. Bonaventure Rutinwa, ‘The End of Asylum? The Changing Nature of Refugee Policies in
Africa’ (2002) 21(1) RSQ 12, 16. See also Rankin (n 27) 408.
74
1969 Convention, preambular para 3.
75
Ibid., preambular paras 4 and 5.
76
Ibid., art III.
77
Ibid., art II(6).
78
Ibid., art III(2).
79
See Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from
Deprivation (CUP 2007) 43–5. In any event, the preamble recognizes the need for ‘an essentially
humanitarian approach towards solving the problems of refugees’. 1969 Convention, preambular para 2,

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 The 1969 OAU Convention in Africa 25

policy goals of major State actors, such as bolstering national security’.80 In this light, the 1969
Convention’s explicit recognition of the security dimensions to refugee protection could be
considered one of its major assets.

II. SIGNIFICANCE FOR THE FUTURE OF REFUGEE LAW

The normative significance of the 1969 African Refugee Convention within the field of inter-
national refugee law is considerable. It has been lauded as one of Africa’s chief contributions
to international law-making in the post-colonial era,81 and its expanded refugee definition has
been described as ‘the most influential conceptual standard of refugee status apart from the
[1951] Convention definition itself’.82 Many have advocated for the Convention’s relevance
beyond Africa, arguing that it serves as a model for other regions83 and a viable policy alterna-
tive to the 1951 Convention.84 Indeed, as noted above, the text of the 1969 definition has been
influential in the development of refugee protection mechanisms elsewhere, including Latin
America’s Cartagena Declaration.85
Within Africa itself, the 1969 Convention imposes important protection obligations on
States that have consented to be bound by its terms. These include the obligations related to
non-refoulement and asylum discussed above, as well as other fundamental standards of treat-
ment of refugees, such as non-discrimination,86 voluntary repatriation87 and the right to travel
documents.88 The Convention’s status as the ‘regional complement’ to the 1951 Convention89
means that those recognized as refugees under the 1969 Convention are also entitled to the

emphasis added. Further, art II(2) of the 1969 Convention affirms that ‘[t]he grant of asylum to refugees
is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.’
80
Kate Jastram, ‘Regional Refugee Protection in Comparative Perspective: Lessons Learned from
the Asia-Pacific, the Americas, Africa, and Europe’, Andrew and Renata Kaldor Centre for International
Reufgee Law, Policy Brief 2, November 2015, 3. Crisp also emphasizes that both the 1951 and 1969
Convention were developed and ratified by States ‘with the specific intention of protecting their national
interests and addressing their own security concerns’. Jeff Crisp, ‘Africa’s Refugees: Patterns, Problems
and Policy Challenges’ UNHCR New Issues in Refugee Research Working Paper No. 28, August 2000,
12.
81
See T. Maluwa, ‘International Law-Making in Post-Colonial Africa: The Role of the Organization
of African Unity’ (2002) 49(1) Netherlands International Law Review 81, 99–100.
82
Hathaway (n 21) 19.
83
Joe Oloka-Onyango, ‘The Plight of the Larger Half: Human Rights, Gender Violence and the
Legal Status of Refugee and Internally Displaced Women in Africa’ (1996) 42 Denver Journal of
International Law and Policy 349, 375.
84
Eduardo Arboleda and Ian Hoy, ‘The Convention Definition in the West: Disharmony of
Interpretation and Application’ (1993) 5(1) IJRL 66, 75–6. Even at the time of drafting, there is sug-
gestion that UNHCR saw the 1969 Convention as an opportunity to use a more liberal African refugee
protection initiative to support international efforts to the improve the 1951 Convention. See Jackson (n
7) 181.
85
See above (n 43).
86
1969 Convention, art IV.
87
Ibid., art V.
88
Ibid., art VI.
89
Ibid., art VIII(2).

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26 Research handbook on international refugee law

full regime of refugee rights set out in the 1951 Convention,90 including freedom of religion,91
access to domestic courts,92 rights to employment,93 housing94 and public education.95 In
addition to widespread ratification by African States, the 1969 Convention’s provisions carry
additional force under the domestic law of many African States, either through incorporation
into legislation96 or by the direct application of treaty law under domestic law.97

a. Implementation of the 1969 Convention in Practice

The significance of the 1969 Refugee Convention to the future protection of refugees in Africa
will depend in large part on how the relevant legal principles are translated into action on the
ground. Africa has a strong history of hospitality towards refugees in practice. Many African
States have very generously hosted refugees within their territories, providing sanctuary from
conflict, persecution and political upheaval to often large numbers of people.98 This was
especially true in the immediate post-colonial period, sometimes described as the ‘golden age’
of African asylum policy.99 In recent decades, however, refugee protection in Africa has been
increasingly characterized by its failures, with limitations on refugee rights and instances of
refoulement becoming more common.100
Detailed research on the implementation of the 1969 Refugee Convention in practice is
scarce, owing largely to the paucity of available information on African States’ domestic
refugee status determination procedures and other protection activities. However, a small
number of studies, largely focusing on the implementation of the Convention’s expanded

90
See Sharpe (n 27) 129 ff; Jean-François Durieux and Agnès Hurwitz, ‘How Many is Too Many?
African and European Legal Responses to Mass Influx of Refugees’ (2004) 47 GYBIL 105, 126.
91
1951 Convention, art 4.
92
Ibid., art 16.
93
Ibid., arts 17 and 18.
94
Ibid., art 21.
95
Ibid., art 22.
96
See, e.g., Refugee Act 1996 (Kenya), s 3(2); Refugees Act 1998 (South Africa), s 3(b); Refugee
Law of 1992 (Ghana), s 26(a)(iii); Refugee Proclamation No. 409/2004 (Ethiopia), art 4.
97
This is often the case in those African States following the monist, civil law tradition of previous
colonial powers. According to Killander and Adjolohoun:
[r]elevant provisions of Francophone African constitutions are modelled on, if not couched word
for word in, the terms of the 1958 French Constitution’s article 55: ‘Treaties or agreements duly
ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect
to each agreement of treaty, to its application by the other party.’
Magnus Killander and Horace Adjolohoun, ‘International Law and Domestic Human Rights Litigation
in Africa: An Introduction’ in Magnus Killander (ed.), International Law and Domestic Human Rights
Litigation in Africa (PULP 2010) 5. A number of common law countries also provide for the direct appli-
cation of treaties in certain circumstances. These include ‘Kenya, Namibia, South Africa, Swaziland and
arguably with regard to many human rights treaties, Ghana, Malawi, Uganda and Zimbabwe’. Killander
and Adjolohoun, 16–17.
98
Crisp notes: ‘From the 1960s to the 1980s, Africa established a largely well-deserved reputation as
a continent which treated refugees in a relatively generous manner.’ Crisp (n 80) 4.
99
See Rutinwa (n 73) 16.
100
In 1999, Rutinwa stated that ‘African states now routinely reject refugees at the frontier or
return them to their countries of origin even if the conditions from which they have fled still persist.’
Bonaventure Rutinwa, ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’
UNHCR, New Issues in Refugee Research, No 5, 1. See generally, Crisp, ibid., 4–9.

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 The 1969 OAU Convention in Africa 27

refugee definition in particular African States, suggest that the Convention’s implementa-
tion in practice is fairly weak.101 A 2010 study of South African first instance refugee status
decision-making revealed a universal failure to accurately apply the Convention’s expanded
refugee definition.102 Research by the author in South Africa and Kenya yielded similar
results.103 A 2013 study by UNHCR, which included information relating to refugee status
determination from some 43 African States, ‘did not reveal any jurisprudence interpreting the
1969 Convention’s Article I(2)’.104
Some of the impediments to implementation include a lack of legal and institutional capac-
ity, resources and political will among African States.105 These issues will need to be addressed
in order for the progressive protection envisaged by the 1969 Convention to be realized for
future refugees. While this is primarily the responsibility of States Parties to the Convention
itself, others – including legal advocates, judges, civil society organizations, UNHCR, relevant
organs of the AU and the international community as a whole – also have a role to play in
promoting the Convention and holding States accountable for their obligations therein.

b. Adaptability of the Convention to Future Contexts

The future significance of the 1969 Convention will also depend on its adaptability to future
contexts of refugee movement in Africa. While some of the ‘specific aspects’ of refugee
protection that the Convention was intended to address remain salient in Africa (notably, the
concern to maintain security in host States), others – in particular, the drivers of refugee move-
ment – have changed. Refugees in Africa are no longer fleeing the repressive and discrimina-
tory regimes of the colonial era. Instead, they are leaving independent African States, many of
which are suffering the effects of weak governance, political instability and inter-communal
violence. In addition, natural hazards, disasters and the negative effects of climate change are
increasingly impacting already vulnerable populations, prompting them to leave their homes,
seeking safety and livelihood security elsewhere.106
Against this background, it has been suggested that the 1969 Convention, or at least parts
of it, have become redundant. For example, the Convention’s protection of people fleeing

101
On the implementation of refugee law generally, see on Ethiopia: Kibret Markos, ‘The Treatment
of Somali Refugees in Ethiopia under Ethiopian and International Law’ (1997) 9(3) IJRL 365.
102
Roni Amit, ‘No Refuge: Flawed Status Determination and the Failures of South Africa’s Refugee
System to Provide Protection’ (2011) 23 IJRL 458, 473.
103
Wood (n 24).
104
Sharpe (n 34) 8.
105
For example, a 2005 report on refugee protection in Tanzania noted that the lack of institutional
capacity, both within UNHCR and local government, was insufficient to discharge refugee protection
functions effectively. See Bonaventure Rutinwa, ‘Identifying Gaps in Protection Capacity: Tanzania’,
Report for the UNHCR Strengthening Protection Capacity Project, March 2005, 5–6. A detailed analysis
of the reasons for poor implementation of the 1969 Convention is outside the scope of this chapter. For
some preliminary suggestions see Wood (n 24) 574–8.
106
This reflects the changing nature of displacement at the global level. The IDMC recently reported
that, in 2015, more than twice as many people were displaced by disasters (19.2 million) as were dis-
placed by conflict and violence (8.6 million). See IDMC, ‘Global Report on Internal Displacement’
(2016). On Africa, see generally, Vikram Kolmannskog, ‘Climate change, disaster, displacement and
migration: initial evidence from Africa’ UNHCR New Issues in Refugee Research No. 180, December
2009.

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28 Research handbook on international refugee law

‘external aggression, occupation [and] foreign domination’ is said to have ‘largely ceased to
be relevant’ in post-colonial Africa.107 In contrast, this chapter argues that the Convention can
continue to capture and respond to the myriad issues facing displaced persons and host States
in Africa today and into the future.
To begin with, terms and provisions that were developed in response to colonial rule at
the time of the 1969 Convention’s drafting are not necessarily limited to that context. Many
involved in refugee protection in Africa agree, explaining that terms such as external aggres-
sion, occupation and foreign domination might equally capture a range of situations facing
African States today. Examples include border disputes between North and South Sudan,108
Kenya’s 2012 incursion into Somalia,109 and Morocco’s occupation of Western Sahara.110 In
addition, other aspects of the Convention’s expanded refugee definition – notably the phrase
‘events seriously disturbing public order’ – are particularly suited to capturing the complex
array of human and ‘natural’ forces that can combine to force people from their homes. This
was evidenced in 2011–12 when Kenya granted prima facie refugee status under the 1969
Convention to Somalis fleeing the cumulative impacts of drought, famine and conflict.111
The capacity of the 1969 Convention to respond to current and future refugee movements
on the continent has been recognized at an institutional level as well. In 2012, UNHCR’s
Summary Conclusions on International Protection of Persons Fleeing Armed Conflict and
Other Situations of Violence declared the 1969 Convention to be ‘particularly relevant in the
African context and [in relation to] contemporary forms of non-international armed conflict
and other situations of violence’.112 In 2013, regional consultations in eastern and southern
Africa for the Nansen Initiative on Disaster-Induced Cross-Border Displacement endorsed the
1969 Convention’s potential role in protecting people displaced in the context of disasters and
the impacts of climate change.113 This position was further strengthened in a 2016 statement
by UNHCR’s Assistant High Commissioner for Protection, Volker Türk, who emphasized

107
Sharpe (n 27) 113.
108
Interview with Lee Anne de la Hunt, Barrister at Law, South Africa (Cape Town, South Africa,
19 Sep 2012); Interview with Roni Amit, Research Fellow, African Center for Migration and Society,
University of the Witswatersrand (Johannesburg, South Africa, 10 Sep 2012); Interview with Badu
Katelo, Commissioner for Refugee Affairs, Department of Refugee Affairs, Ministry of Immigration,
Kenya (Nairobi, Kenya, 9 Nov 2012).
109
Amit, ibid.; Interview with Dennis Likule, Assistant Programme Officer, Legal and Social Justice
Programme, Refugee Consortium of Kenya (Nairobi, Kenya, 19 Oct 2012); Interview with Laban
Ngetich, Protection Officer, Department of Refugee Affairs, Government of Kenya (Nairobi, Kenya, 30
Oct 2012).
110
Interview with Abedah Bhamjee, Refugee law consultant, South Africa, Johannesburg, South
Africa, 11 Sep 2012; see also Edwards (n 27) 215, fn 64. Another example is the Ethiopia-Eritrea
conflict between 1998 and 2000, which involved instances of occupation. See Eritrea-Ethiopia Claims
Commission, Partial Award: Central Front – Eritrea’s Claims 2, 4, 6, 7, 8 and 22, 28 April 2004
VOLUME XXVI, 115–53.
111
See Wood (n 24) 572–3. See generally Wood (n 34).
112
UNHCR ‘Summary Conclusions on International Protection of Persons Fleeing Armed Conflict
and Other Situations of Violence’, Roundtable on International Protection of Persons Fleeing Armed
Conflict and Other Situations of Violence, Cape Town, South Africa, 13 and 14 September 2012, para
29.
113
See Nansen Initiative, ‘Conclusions: Nansen Initiative Regional Consultation, Nairobi, Kenya,
21–23 May 2014, Conclusion IV(3); Nansen Initiative, ‘Report for the Nansen Initiative Southern Africa
Consultation, Stellenbosch, South Africa, 4–5 June 2015’, section 3.3.

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 The 1969 OAU Convention in Africa 29

that the phrase ‘events seriously disturbing public order’ is not necessarily limited to human
disturbances such as conflict.114
Ultimately, the application of the 1969 Convention to current and future refugee flows in
Africa will depend upon its being interpreted in a flexible and dynamic manner. This is a clear
requirement of international law on treaty interpretation, which recognizes that a treaty set up
for the protection of human rights, including refugee rights, is a ‘living instrument’115 and must
be interpreted in light of the ever-changing circumstances in which it applies.116 A failure to do
so would result in it becoming anachronistic and an ‘impediment to the achievement of its own
aims’.117 This ‘evolutionary’ approach to treaty interpretation is not exceptional – it derives
from the application of the principles of treaty interpretation set out in the Vienna Convention
on the Law of Treaties (VCLT),118 in particular the requirement to interpret a treaty’s terms in
their context and in light of the treaty’s object and purpose.119 The protection objectives of the
1969 Convention, the clear intention that it continue to apply into the future, and the fact that
key terms and phrases, such as ‘events seriously disturbing public order’, were left undefined,
support an interpretation of the Convention’s terms that evolves as surrounding circumstances
change.120

114
Statement by Volker Türk, Assistant High Commissioner for Protection, UNHCR, to Advisory
Committee Workshop for the Platform on Disaster Displacement, Geneva, Switzerland, 13 October
2016.
115
This term has been used especially in relation to the interpretation of the Charter of Fundamental
Rights of the European Union. See generally, Lukasz Bojarski, Dieter Schindlauer and Katrin Wladasch,
‘The Charter of Fundamental Rights as a Living Instruments: Manual’ (2014).
116
In the refugee context, Lord Bingham in R v Asfaw [2008] UKHL 31, explained in relation to the
1951 Convention, para 54:
It has long been recognised that human rights treaties have a special character. This distinguishes
them from multilateral treaties that are designed to set up reciprocal arrangements between states.
Humanitarian agreements of the kind to which the [1951] Convention belongs are entered into for
a different purpose. Their object is to protect the rights and freedoms of individual human beings
generally or falling within a particular description.
See generally, Foster (n 79) 59ff; Guy S. Goodwin-Gill, ‘The Search for the One, True Meaning…’ in
Guy S. Goodwin-Gill and Hélène Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy
Harmonization and Judicial Dialogue in the European Union (CUP 2010) 231–7.
117
Bruno Simma, ‘Consent: Strains in the Treaty System’ in R.St.J. Macdonald and D.M. Johnston
(eds), The Structure and Process of International Law (Martinus Nijhoff 1986) 497. In the refugee
context, McAdam explains: ‘There is a risk that placing too great a reliance on the original intent of the
drafters may lead to the ‘petrification’ of a particular interpretation that fails to take into account subse-
quent development in international law.’ Jane McAdam, ‘Interpretation of the Refugee Convention’ in
Zimmermann (n 26) 103.
118
VCLT, arts 31–33. The VCLT’s principles of interpretation also reflect customary international
law. See Richard Gardiner, Treaty Interpretation (OUP 2007) 12–19, 142.
119
VCLT, art 31(1), provides: ‘A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.’
120
Similar features of the 1951 Convention – including the fact that the term ‘persecution’ was not
defined – have been used to support the application of an evolutionary approach to the interpretation of
that instrument. See Foster (n 79) 62. The ICJ has endorsed this type of approach, holding that:
[i]t is founded on the idea that, where the parties have used generic terms in a treaty, the parties
necessarily having been aware that the meaning of the terms was likely to evolve over time, and
where the treaty has been entered into for a very long period or is ‘of continuing duration’, the

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30 Research handbook on international refugee law

There will be limits as to how far the 1969 Convention can stretch to include new and dif-
ferent causes of displacement. Indeed, further clarity on how these limits should be determined
might help to promote its use in practice.121 However, it is the responsibility of States Parties
to the Convention, through their domestic refugee status determination procedures and broader
protection activities, to ensure that the 1969 Convention is interpreted and applied in a manner
that is responsive to context and consistent with international law.

CONCLUSION

Despite the passing of time and changes in the African political and legal landscape, the 1969
Convention remains the core instrument for refugee protection in Africa today. The 1969
Convention has been widely ratified by African States and increasingly incorporated into their
domestic law. Its terms reinforce the important role of the 1951 Convention in Africa and
extend the protection provided by the international instrument, both in scope – by expanding
the definition of a refugee – and in substance – by developing key protection principles related
to non-refoulement, asylum, responsibility-sharing and security. The 1969 Convention could,
and should, provide the basis for better protection of refugees by African States both now and
in the future.

parties must be presumed, as a general rule, to have intended those terms to have an evolving
meaning.
ICJ Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) 13 July 2009, para 66.
121
See generally, Wood (n 24) esp 576–8.

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3. Internally displaced persons and international
refugee law
Bríd Ní Ghráinne1

1. INTRODUCTION

Internally Displaced Persons (IDPs) outnumber refugees by almost two to one, amounting to
40.8 million at the end of 2015.2 The most commonly-cited description of IDPs is set out in the
United Nations Guiding Principles on Internal Displacement, a soft law document which has
been described as a ‘standard’3 and an ‘important tool’4 in IDP protection. Principle 1 defines
IDPs as:

Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places
of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict,
situations of generalised violence, violations of human rights or natural or human made disasters, and
who have not crossed an internationally recognised state border.5

Internal displacement has once again been the subject of recent media attention owing
to the crisis in Syria, which had 6.6 million IDPs by the end of 2015.6 In 2015, Yemen
reported the largest number of newly displaced persons (over 2.5 million), followed by Iraq
(808,700), Ukraine (800,000), Sudan (639,500), the Democratic Republic of the Congo
(637,900), and Afghanistan (492,600).7 IDPs are similar to refugees in the sense that their
movement is involuntary; they often flee for similar reasons; and they have similar needs,
wants and fears. However, IDPs and refugees are treated differently in law and in policy.
By virtue of, inter alia, crossing a state border, a refugee receives protection from the 1951
Refugee Convention and comes within the protection mandate of the United Nations High
Commissioner for Refugees (UNHCR).8 In comparison, being categorised as an IDP does
not, ipso facto, entitle a person to any additional rights under international (as opposed to
regional) law. IDPs, as human beings, are protected by human rights and humanitarian law,
but there is no IDP legal ‘status’, no specific international ‘IDP treaty’, and no specific

1
The author would like to thank Dr Hubert Smekal for his feedback on an earlier draft of this
chapter.
2
UNHCR, ‘Facts and Figures about Refugees’, available at http://​www​.unhcr​.ie/​about​-unhcr/​facts​
-and​-figures​-about​-refugees, last accessed 23 August 2016.
3
UNGA Res 58/177 (12 March 2004) UN Doc A/RES/58/177.
4
Ibid.
5
UNHCR ‘Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted
pursuant to Commission resolution 1197/39. Addendum: Guiding Principles on Internal Displacement’
(11 February 1998) UN Doc E/CN.4/1998/53/Add.
6
UNHCR, ‘Facts and Figures about Refugees’ (n 2).
7
Ibid.
8
1951 Convention Relating to the Status of Refugees 189 UNTS 137.

31
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32 Research handbook on international refugee law

international agency to protect them. However, the international community began to focus
more on IDP protection in the 1970s, when the UN Economic and Social Council requested
that the UNHCR coordinate humanitarian assistance required for, both to refugees returning
to southern Sudan and ‘other displaced persons’.9 This was followed over a decade later by
Thailand’s proposal that a study be undertaken on the possible establishment of safety zones
for refugees or IDPs as a way of lessening the burden on the international community.10 More
recently, the completion of the Guiding Principles on Internal Displacement and regional
IDP treaties,11 the appointment of a UN Special Rapporteur on the Human Rights of IDPs,
the involvement of the UNHCR with IDPs, and the creation of ‘safe zones’ within countries
of origin all illustrate a growing willingness of the international community to protect those
displaced within borders.
The aim of this chapter is to give a brief overview of the relationship between IDPs and
international refugee law by mapping out the two key debates in this field: First, whether
IDPs and refugees should be treated differently in law; and second, whether the increase in
IDP protection ‘may be (mis)interpreted as obviating the need for international protection and
asylum’.12 It concludes by arguing that the IDP and refugee categories should remain distinct;
that the increase in IDP protection is a welcome development, and that IDP protection is com-
plementary to, rather than in conflict with, refugee protection.

2. SHOULD THE IDP AND REFUGEE DEFINITIONS BE

MERGED?

IDPs and refugees are similar in the sense that their movement is involuntary and/or coerced. In
addition, as aforementioned, both categories of persons may have fled their places of habitual
residence for similar reasons. These may include war, armed conflict, human rights violations,
political instability and/or internal strife. Many IDPs go on to cross a border and qualify as
refugees. Furthermore, IDPs and refugees often face the same practical problems such as lack
of adequate shelter, food, water, sanitation, and healthcare; risk of sexual and gender-based
violence; vulnerability to human smuggling and trafficking; and inadequate access to justice.

9
UN Economic and Social Council Res 1705 (LIII) (27 July 1972) UN Doc E/RES/1705(LIII).
10
B.S. Chimni, ‘Incarceration of Victims: Deconstruction Safety Zones’, in Najeeb Al-Nauimi and
Richard Meese, International Legal Issues Arising under the United Nations Decade of International
Law: Proceedings of the Qatar International Law Conference ’94 (Martinus Nijhoff 1995), 852.
11
UNHCR ‘Report of the Representative of the Secretary-General, Mr. Francis M. Deng (n 5); 2006
Pact on Security, Stability and Development in the Great Lakes Region (‘Great Lakes Pact’) 46 ILM
175; 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons
in Africa (‘Kampala Convention’) 52 ILM 400.
12
UNHCR ‘Internally Displaced Persons – The Role of the High Commissioner for Refugees’
(2000), 140. See also the address of the former High Commissioner for Refugees, Sadako Ogata, who
stressed that ‘any attempt to develop protection standards for the internally displaced should take care not
to undermine the existing obligations of refugee law, particularly that of asylum and non-refoulement’.
Sadako Ogata, Norwegian Government Roundtable Discussion on United Nations Human Rights
Protection for Internally Displaced Persons (Norwegian Refugee Council, 1993, Nyon Switzerand
February 1993), 84.

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This has led some to label IDPs as ‘internal refugees’,13 and to argue that the crossing of
a border has lost its relevance in the post-Cold War era. Lee, for example, argues that prior to
the conclusion of the Refugee Convention, there had been no agreement to define a refugee
as a person being necessarily outside the country of his nationality and thus makes a case for
‘reconsidering the use of the crossing of international borders as a prerequisite to systematic
international protection and assistance of people forcibly displaced from their homes’.14
Logistically, it can sometimes make sense to treat IDPs in the same way as refugees.
For example, internal conflicts of a secessionist nature may uproot people within national
boundaries, which then become international borders, and IDPs may thus become eligible
for refugee status. Refugees may seek asylum in a state where there are IDPs, and both IDPs
and refugees may be in need of the same type of humanitarian assistance and/or protec-
tion. Further, as refugees are often repatriated to areas where internal displacement exists,
involvement with IDPs is essential for the purposes of maintaining a comprehensive approach
to protection.15
While operationally, it may make little sense to distinguish between IDPs and refugees,
legally, their situations are very different. First, international frontiers regulate the areas of
territorial sovereignty and the practical similarities between the plight of IDPs and refugees do
not change that fact. The importance of the border is paramount, as the crossing of an interna-
tional frontier represents the breaking of the bond between the individual and state and puts
the refugee within the ‘surrogate’ protection of the international community.16 This is reflected
in the travaux préparatoires of the Refugee Convention, which illustrate that its drafters were
not concerned with the provision of protection to those within their country of origin.17 The
responsibility for IDP protection remains with their governments even though these may, but
by no means necessarily, be the very actors that have caused the displacement in the first place.
Secondly, the concept of the refugee is centered on the notion of being persecuted,18
whereas the IDP description is broader. There is no need to show an element of persecution to
be described as an IDP and the list of factors causing displacement is not exhaustive.19 Forced
displacement as a result of natural or man-made disasters, for example, would, ipso facto,
qualify a person as an IDP but not as a refugee. As can be gleaned from many commentators
on this topic, there is little will to broaden the refugee definition to encompass flight for envi-
ronmental reasons, nor would it be legally desirable to do so.20

13
UNHCR, The State of the World’s Refugees: Human Displacement in the New Millenium (Oxford
University Press 2006), 153.
14
Luke Lee, ‘Internally Displaced Persons and Refugees: Toward a Legal Synthesis?’ (1996) 9
Journal of Refugee Studies 27, 27.
15
UNHCR ‘Internally Displaced Persons’ (n 12).
16
Atle Grahl-Madsen, The Status of Refugees in International Law (A.W. Sijthoff 1966) 79; Andrew
Shacknove, ‘Who is a Refugee?’ (1985) 95 Ethics 274, 275.
17
The travaux préparatoires indicate that a proposal to include IDPs in the refugee definition was
rejected on the basis that the delegates viewed the existence of sufficient national protection as incon-
sistent with the concept of a refugee. See James C. Hathaway, The Law of Refugee Status (Butterworths
1991) 29–31; SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (Australia) [49].
18
1951 Convention Relating to the Status of Refugees 189 UNTS 137, Art 1A.
19
UNHCR ‘Report of the Representative of the Secretary-General, Mr. Francis M. Deng (n 5),
Principle 1.
20
Jane McAdam, ‘Swimming against the Tide: Why a Climate Change Displacement Treaty is not
the Answer’ (2011) 23(1) International Journal of Refugee Law 2.

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34 Research handbook on international refugee law

Third, there would be substantial drafting difficulties in merging the IDP and refugee
definitions. It is clear that refugee status begins with the crossing of a border and ends with
the application of the cessation clauses,21 whereas the same cannot be said for IDPs. It is not
clear when a person first becomes internally displaced, as there is no consensus about when
a movement is voluntary or involuntary, nor is it clear whether the element of coercion should
be assessed in objective or subjective terms. Similarly, when a person ceases to become an
IDP is unclear, as often displaced persons will never return to their original place of residence,
notwithstanding the fact that it is safe to do so.
Moreover, the rights accorded to refugees are based on the fact that the refugee is outside
his country of origin and needs basic entitlements to survive in a country where he or she
does not have citizenship. Such rights are granted on the basis of non-discrimination vis-à-vis
aliens (e.g., movable and immovable property rights);22 nationals of the host country (e.g.,
intellectual property rights);23 and nationals of foreign countries (e.g., freedom of associa-
tion).24 These rights would not make sense if granted to an IDP in a domestic context, as an
IDP is usually a citizen of the home state.25 Furthermore, to allocate a legal status to IDPs
could result in further discrimination between IDPs and other human rights victims who
are not displaced. In addition, Barutciski argues that merging the IDP/refugee categories
could result in a watering-down of their respective existing protection standards, and that
‘victims of displacement will be left with a form of protection that reflects the lowest common
denominator’.26
However, that is not to say that the term IDP is not a useful concept. While the term does
not grant legal status in any international (as opposed to regional, specifically African) legally
binding instrument, the concept has succeeded in drawing international attention to a serious
forced migration problem and it assists in identifying and addressing the specific needs of
IDPs. Having argued that IDPs and refugees are (and should remain) treated differently in law
and in policy, our attention must now turn to the effects of maintaining the distinction between
the two categories of individuals.

3. DOES IDP PROTECTION UNDERMINE REFUGEE

LAW? IDP PROTECTION AND THE INTERNAL FLIGHT
ALTERNATIVE
In many ways, the increased protection for IDPs has associated benefits for refugee protection.
It may contribute to ameliorating the push factors of forced migration and thus reduce the need
to seek asylum abroad. It increases understanding of the reasons for flight and can improve

21
1951 Convention Relating to the Status of Refugees 189 UNTS 137, Art 1C.
22
Ibid., Art 13.
23
Ibid., Art 14.
24
Ibid., Art 15.
25
Michael Barutciski, ‘Tensions Between the Refugee Concept and the IDP Debate’ (1998) 3
Forced Migration Review 11, 12; James C. Hathaway, ‘Forced Migration Studies: Could We Agree Just
to ‘Date’?’ (2007) 20 Journal of Refugee Studies 349, 358.
26
Michael Barutciski, ‘The Reinforcement of Non-Admission Policies and the Subversion of
UNHCR: Displacement and Internal Assistance in Bosnia-Herzegovina (1992–94)’ (1996) 8 International
Journal of Refugee Law 49, 95.

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 Internally displaced persons and international refugee law 35

asylum management, especially concerning refugee status determination. Protection of the

internally displaced may be necessary where there is a chance that territorial disputes or ethnic
violence will lead to a break-up of a state and a mass outflow of refugees. Moreover, where
refugees and displaced persons are generated by the same causes and surround a border, often
the refugee problem cannot be addressed without first attending to the needs of the internally
displaced.27
However, the availability of IDP protection could be construed as an ‘Internal Flight
Alternative’ (IFA), a concept which is discussed extensively elsewhere in this volume by
Jessica Schultz, and has been commentated upon in detail in the literature.28 The IFA stems
from the premise that if there is a safe place within a refugee applicant’s country of origin
where he or she can relocate, the refugee definition does not apply. The availability of IDP
protection could be viewed as negating the presence of a ‘well-founded fear of being perse-
cuted’ necessary to qualify as a refugee, and/or result in the conclusion that the asylum-seeker
is unable to show that protection is unavailable to him or her within the whole of his or her
country of origin. Thus, the fear has been expressed that the increase in IDP protection ‘may
be (mis)interpreted as obviating the need for international protection and asylum’, even if such
protection is not effective protection against persecution.29

3.1 IDP Protection Measures and the IFAs – the Creation of ‘Safe Zones’

The IDP issue gained significant momentum in the post-Cold War era, when the recognition
of refugees was no longer seen as a political act highlighting the failure of the country of
origin to protect its nationals.30 The focus turned to issues of containment, and terms such as
‘preventative protection’, ‘the right to remain’, ‘buffer zones’ and ‘relief corridors’ entered
refugee discourse. ‘Preventative protection’ is defined by the UNHCR as ‘[t]he establishment
or undertaking of specific activities inside the country of origin so that people no longer feel
compelled to cross borders in search of protection and assistance’.31 Such operations were
employed relatively frequently in the 1990s, however recent calls to establish a ‘safe zone’ in

27
UNHCR ‘Internally Displaced Persons’ (n 12).
28
For example, J. Eaton, ‘The Internal Protection Alternative under European Union Law:
Examining the Recast Qualification Directive’ (2012) 24 International Journal of Refugee Law 765; Bríd
Ní Ghráinne, ‘The Internal Protection Alternative Inquiry and Human Rights Considerations – Irrelevant
or Indispensable?’ (2015) 27(1) International Journal of Refugee Law 29; Hugo Storey, ‘The Internal
Flight Alternative Test: The Jurisprudence Re-examined’ (1998) 10 International Journal of Refugee
Law 499; Reinhard Marx, ‘The Criteria of Applying the “Internal Flight Alternative” Test in National
Refugee Status Determination Procedures’ (2002) 14 International Journal of Refugee Law 179.
29
UNHCR ‘Internally Displaced Persons’ (n 12), 140. See also the address of the former High
Commissioner for Refugees, Sadako Ogata, who stressed that ‘any attempt to develop protection stand-
ards for the internally displaced should take care not to undermine the existing obligations of refugee law,
particularly that of asylum and non-refoulement.’ Sadako Ogata, Norwegian Government Roundtable
Discussion on United Nations Human Rights Protection for Internally Displaced Persons (n 12), 84.
30
Bill Frelick, ‘Preventing Refugee Flows: Protection or Peril’ (1993) World Refugee Survey 5;
Chimni (n 10), 824.
31
UNHCR ‘Report of the UNHCR Working Group on International Protection’ (6 July 1992),
17–18.

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36 Research handbook on international refugee law

Syria illustrate that states still see ‘preventative protection’ as a potential IFA, which would in
turn protect people within their countries of origin, justifying the rejection of asylum claims.32
Preventative protection may have positive outcomes. It may ameliorate the conditions that
force persons to flee their countries of origin in the first place, and it can also assist those
who have no desire or intention to cross an international frontier and would otherwise not be
within the reach of protection or assistance from an international organisation. For example,
the establishment of Open Relief Centres (ORCs) in Sri Lanka in 1990 was generally seen
as providing meaningful protection, as although safety was not absolute, no one who sought
sanction there is known to have died as a result of military action.33 A second relatively ‘suc-
cessful’ example is ‘Operation Provide Comfort’ in Iraq in 1991, following Turkey’s border
closure. Notwithstanding that the legal basis for the creation of the safe zone was controver-
sial,34 Operation Provide Comfort has been described as the most successful of the security
experiments that took place in the 1990s, as within six weeks of its creation, the majority of
refugees had been able to leave the mountains and return to Iraq where it was easier to provide
humanitarian relief.35
Thus the concept of safe zones, ipso facto, is not problematic where such safe zones can
operate effectively. However, the majority of internal protection experiments that took place
in the 1990s were perceived as failures. Most zones were not demilitarised and many were
established without consent from all the parties involved. In addition, history has shown that
safe zones are ineffective in situations of ethnic conflict as the shared interest in protecting
civilians is absent. A safe zone can make it easier to target civilians, as they are located in
one place, as was the case in Srebrenica. Moreover, the curbing of refugee flows inevitably
worsens an IDP situation, as such IDPs have no choice but to remain displaced within their
states; and the creation of safe zones are a temporary solution which do not actually solve the
root causes of displacement. Most significantly, preventive protection is at least as much about
states’ interests in curbing refugee flows as it is about assisting IDPs.
The creation of safe zones also raises issues under international human rights law. It is
unclear who is in effective control of a safe zone and has consequent responsibility for human
rights protection. Where actions are taken pursuant to a Security Council resolution, the juris-
prudence is inconsistent as to whether the UN has effective control, whether troop-contribut-
ing member states have control, or whether responsibility for human rights protection is
shared between them.36 The existence of a ‘safe’ zone in Kosovo was used by European states

32
‘Merkel calls for refugee “safe zones” in Syria’, Al Jazeera, 24 April 2016, available at http://​www​
.aljazeera​.com/​news/​2016/​04/​merkel​-refugee​-safe​-zones​-syria​-160424065956162​.html, last accessed 23
August 2016.
33
Chimni (n 9), 847.
34
Operation Provide Comfort was controversial because UN Security Council Resolution S/RES/
688 (5 April 2011) which was relied upon to justify intervention reaffirmed the ‘sovereignty, territorial
integrity, and political independence of Iraq and of all states in the area’.
35
Jennifer Hyndman, ‘Preventive, Palliative, or Punitive? Safe Spaces in Bosnia-Herzegovina,
Somalia, and Sri Lanka’ (2003) 16 Journal of Refugee Studies 167, 168; UNHCR Policy Development
and Evaluation Service and Division of Operational Services, Katy Long, ‘No Entry! A Review of
UNHCR’s Response to Border Closures in Situations of Mass Refugee Influx’ (June 2010) UN Doc
PDES/2010/07 [130]; Yves Sandoz, ‘Safety Zones for Internally Displaced Persons,’ in Al- Nauimi and
Meese (n 10), 917.
36
Al-Jedda v the United Kingdom, App no 27021/08 (ECHR, 2 July 2011); Behrami v France and
Saramati v France, Germany, and Norway App nos 71412/01 and 78166/01 (ECHR, 2 May 2007); The

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to justify the rejection of asylum applications, even though it subsequently became clear that
such zones were anything but safe. Moreover, the creation of a safe zone could breach the
freedom of movement rights of those within the zone, and the corresponding right of an indi-
vidual to leave their state as per Article 13 of the UDHR and various international treaties.37
Arguably such restrictions of rights could be justified to protect public order or where a state
had declared a time of emergency, but this would have to be examined on a case-by-case basis.
The literature has also raised questions as to the applicability of Article 14 of the UDHR to
safe zones.38 Article 14 provides for the right of an individual to seek asylum, which is essen-
tially the right of an individual to leave his country of residence in pursuit of asylum. However,
the individual has no ‘general’ right of asylum against the state. Scholars agree that this pro-
vision merely affords the individual a right to seek asylum without specifying whose duty it is
to give effect to that right.39 This is supported by the drafting history of the UDHR, whereby
the original draft provided that ‘everyone had a right to seek and be granted’ asylum.40 This
would have vested individuals with the right of asylum vis-à-vis the state. By substituting the
words ‘to enjoy’ for the words ‘to be granted’, the drafters indicated their desire not to oblige
states to grant asylum for individuals. Thus there cannot be a breach of the right to leave and
seek asylum of these individuals, as this right is not opposable to the state. Moreover, the
right is not one which crystallised as customary in nature because, inter alia, the right has not
been included in the two major human rights treaties, namely the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
The principle of non-refoulement provides that ‘no Contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion’.41 The denial of asylum and return of an indi-
vidual to a safe zone in the country of nationality could be a violation of the prohibition of
refoulement if the protection from persecution inside the safe zone is ineffective, or if there
is a risk that the individual will have to leave the safe zone and face persecution elsewhere.
Where an individual has not left his country of origin but remains in the safe zone, this raises
the issue of possible ‘constructive refoulement’, which occurs when states use indirect means
to carry out refoulement. It is commonly accepted that the prohibition of refoulement applies
at the border. Yet what if approaching the border is futile, e.g., if the border is closed, or if it is
common knowledge that countries of asylum are rejecting asylum applications on the grounds

State of the Netherlands v Hasan Nuhanović, Supreme Court of The Netherlands, Case No. 12/03324, 6
September 2013.
37
1948 Universal Declaration of Human Rights, UN Doc 217 A (III), 10 December 1948. Similar
provisions are found in 1966 International Covenant on Civil and Political Rights 999 UNTS 171; Art
12(1), 1969 American Convention on Human Rights 1144 UNTS 144, Art 22; 1981 African (Banjul)
Charter on Human and Peoples’ Rights 21 ILM 58, Art 12(2).
38
UNHCR Policy Development and Evaluation Service and Division of Operational Services, (n
35), para 122.
39
Roman Boed, ‘The State of the Right to Asylum in International Law’ (1994) 5(1) Duke Journal
of International and Comparative Law 1, 9; Guy S.Goodwin-Gill and Jane McAdam, The Refugee in
International Law (Oxford University Press 2011) 358–65.
40
Boed, ibid. 9.
41
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April
1954) 189 UNTS 137 (Refugee Convention) Art 1A(2).

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38 Research handbook on international refugee law

that there is a ‘safe’ zone within the country of nationality? IDPs would have no option but to
seek safety in the ‘safe’ zone, as an indirect result of the border and/or asylum state’s actions.
If that zone is ultimately not safe, arguably this could constitute constructive refoulement, and
this would be supported by the jurisprudence and academic consensus that establishes that
states can breach refoulement even though an individual is not present at the border or on their
territory.42 However, that authority is contingent on a state exercising effective control outside
its territory, e.g., when conducting pushback operations at sea. In addition, the general applica-
tion of the prohibition of refoulement seems to be premised on the individual reaching a state
border. In the Roma Rights case the House of Lords held that the UK immigration authorities’
denial of boarding of Roma asylum seekers on flights bound from Prague for the UK was not
refoulement because the individuals had not left the Czech Republic.43 Moreover, the drafters
of the Guiding Principles on Internal Displacement have accepted that the prohibition of
refoulement does not apply in an internal context,44 but nonetheless it appears in the Principles
as lex ferenda.45 Perhaps as the international support for and domestic implementation of the
Principles grows, we may one day see ‘internal refoulement’ as a customary norm but at the
time of writing, it remains as soft law.
For the sake of completeness, it is pertinent to note that the establishment of safe zones also
raises questions relating to the relevance (or lack of) consent of the state, the relevance (or lack
of) Security Council authorisation, and international humanitarian law, but these will not be
discussed in detail in this chapter.

3.2 NSAs and the IFA

The issue of whether protection of non-state actors can provide a meaningful alternative to
asylum is controversial. Since the emergence of the doctrine of ‘Responsibility to Protect’46
in the last decade, there has been an increasing acceptance that protection is not solely the
responsibility of the state and that in certain circumstances, the responsibility to protect
a population within a state’s borders may shift to the international community. As state actors
are often the cause of displacement, protection from displacement (if there is any) is usually
provided by non-state actors (NSAs). Clans, militias, and local authorities have been perceived
as providing sufficient protection such that would obviate the need for international protection
as encapsulated in the Refugee Convention.47
Of particular relevance to this chapter is the increased role of one particular NSA, the
UNHCR, in IDP protection. The UNHCR’s primary mandate is the protection of refugees, but

42
Hirsi Jamaa and Others v Italy, application no. 27765/09 (ECHR, 23 February 2012); Haitian
Centre for Human Rights v United States of America, Inter-American Commission of Human Rights,
Report no. 51/96, 13 March 1997.
43
R v Immigration Officer at Prague Airport and another (Respondents), ex parte European Roma
Rights Centre and others [2004] UKHL 55.
44
Walter Kälin, ‘Guiding Principles on Internal Displacement Annotations’ (2008) 38 Studies in
Transnational Legal Policy 69.
45
Principle 15.
46
Ingo Winkelmann, ‘Responsibility to Protect’, Max Planck Encyclopaedia of Public International
Law, October 2010.
47
See Maria O’Sullivan, ‘Acting the Part: Can Non-State Entities Provide Protection Under
International Refugee Law?’ (2012) 24 International Journal of Refugee Law 85.

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 Internally displaced persons and international refugee law 39

in recent years it has taken the lead in managing camp management, protection and emergency
shelter of IDPs within the new ‘cluster approach’ of IDP protection. If such protection were
interpreted by refugee-receiving states as an alternative to granting asylum, the UNHCR could
be undermining its primary mandate. For reasons expanded upon elsewhere,48 I argue that the
term ‘that country’ in the refugee definition refers to protection provided by the authorities of
the state, rather than protection provided by a non-state actor on the territory of the state. It
is not possible to comprehensively define the term ‘protection’, because the meaning of ‘pro-
tection’ in a refugee law context is inextricably linked to the content and form of persecution
feared. Some form of guidance is nonetheless provided by the Qualification Directive and the
House of Lords, which have established that effective protection requires the existence of laws
in the country which made violent attacks by perpetrators punishable by sentences commen-
surate with the gravity of the offences. Furthermore, there must be a reasonable willingness by
law enforcement agencies to prosecute and punish offenders and the victim must not have been
exempt from the protection of the law.49 Thus, it is tentatively suggested that respect for the
rule of law is a good indication of whether the protection from persecution is actually effective.
The UNHCR cannot be capable in fact of constituting ‘an actor of protection’ because the
UNHCR does not have the capacity or legal authority to operate an effective system for the
detection, prosecution, and punishment of persecutory acts.

3.3 Does the Possibility of Becoming an IDP Preclude the Finding of an IFA?

Although there is no explicit prohibition of forced displacement in international law, many

instruments implicitly prohibit forced displacement. For example, Article 12 of the 1966
ICCPR protects freedom of movement and thus forced displacement is prima facie unaccept-
able under that Covenant.50 In General Comment 7, the Committee on Economic, Social and
Cultural Rights was of the view that Article 11 (the right to an adequate standard of living) of
the 1966 ICESCR entails ‘the right to be protected against “arbitrary or unlawful interference”
with one’s home’, and that this right ‘is not qualified by considerations relating to its available
resources’.51 Moreover, General Recommendation XXII of the Committee on the Elimination
of all Forms of Racial Discrimination sets out that Article 5 (prohibition of discrimination)
of the 1965 Convention on the Elimination of All Forms of Racial Discrimination entails the
right of IDPs to voluntary and safe return to their homes and the right to restoration and com-
pensation of property that was seized during displacement.52 Similarly, in examining situations

48
Ní Ghráinne (n 28).
49
Horvath (A.P.) v Secretary of State for the Home Department [2001] 1 AC 489; Art 7(2) Council
Directive (EC) 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on
standards for the qualification of third-country nationals or stateless persons as beneficiaries of interna-
tional protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and
for the content of the protection granted (recast) [2011] OJ L337/9.
50
Martin Scheinin, Forced Displacement and the Covenant on Civil and Political Rights in Anne F.
Bayefsky and Joan Fitzpatrick (eds), Human Rights and Forced Displacement (Martinus Nijhoff 2000),
66.
51
Committee on Economic, Social, and Cultural Rights ‘General Comment No. 7: Article 11.1 (The
Right to Adequate Housing: Forced Evictions)’ (1997) UN Doc E/1998/22, [8].
52
UN Committee on the Elimination of Racial Discrimination ‘General Recommendation XXII
(Article 5 and Refugees and Displaced Persons)’ (1996) UN Doc A/51/18, Annex VIII, [2 (a)], [(c)].

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of forced displacement, the European Court of Human Rights (ECtHR) has found violations
of Article 8 (respect for private and family life, home and correspondence),53 Article 3 (the
prohibition of torture and inhuman or degrading treatment or punishment),54 Article 13 (the
right to an effective remedy),55 and Article 1 of Protocol 1 (the right to peaceful enjoyment of
possessions) of the European Convention on Human Rights (ECHR).56
Although exposure to forced displacement may be a human rights violation, this will not in
itself bring an individual within the refugee definition. However, it can nonetheless preclude
return to an individual’s country of nationality. The ECtHR offers the most well-developed
jurisprudence on this issue, starting with the case of Salah Sheekh v Netherlands.57 This case
involved a Somali national whose application for asylum was refused on the basis that he
could return to Somalia and settle in one of its ‘relatively safe’ areas. The ECtHR found that
without clan ties, it was unlikely that the applicant would be able to settle in these areas, and
that he would end up in ‘miserable settlements for IDPs, with no real chance of proper inte-
gration’.58 IDPs in those so-called ‘relatively safe’ parts of Somalia lived in squalid conditions
below the poverty line. They were vulnerable to crime, sexual and labour exploitation, evic-
tion, and destruction and confiscation of assets. In addition, the ECtHR found that there would
be a real chance that the applicant would be removed, or have no alternative but to go to areas
that both the government and the UNHCR consider unsafe, i.e., there was a risk that indirect
refoulement would occur. Consequently, there had been a violation of Article 3 of the ECHR.
The ECtHR came to a similar conclusion in Sufi and Elmi v the United Kingdom.59 This
case concerned two Somali nationals whose asylum claims were refused by the UK and faced
deportation. The ECtHR examined in detail the conditions imposed upon IDPs in the proposed
relocation area, and found that the conditions for IDPs in southern and central Somalia were
‘dire’.60 Prior to the failure of the rains, over half of Somalia’s population was dependent on
food aid and over a quarter of the population of Somalia faced a humanitarian crisis. The
ECtHR held that it was extremely difficult for aid agencies to access the Afgooye Corridor,
where up to 410,000 IDPs lived. There were also reports that IDPs there were forced to return
to Mogadishu in search of food and water and that IDPs in the camps were vulnerable to

53
Ayder and Others v Turkey App no 23656/94 (ECHR, 8 January 2004); Bilgin v Turkey App
no 23819/94 (ECHR, 16 November 2000); Selcuk and Asker v Turkey App no 12/1997/796/998-999
(ECHR, 24 April 1998); Xenidin-Arestis v Turkey App no 46347/99 (ECHR, 22 December 2005);
Demades v Turkey App no 16219/90 (ECHR, 31 October 2003); Yoyler v Turkey App no 26973/95
(ECHR, 24 July 2003); Mentes and Others v Turkey App no 58/1996/677/867 (ECHR, 28 November
1997).
54
Ayder and Others v Turkey, ibid.; Bilgin v Turkey, ibid.; Selcuk and Asker v Turkey, ibid.; Yoyler v
Turkey, ibid.; Sufi and Elmi v the United Kingdom App nos 8319/07 and 11449/07 (ECHR, 28 November
2011); Salah Sheekh v the Netherlands App no 1948/04 (ECHR, 23 May 2007); Dulas v Turkey App no
25801/94 (ECHR, 30 January 2001).
55
Ayder and Others v Turkey, ibid.; Bilgin v Turkey, ibid.; Selcuk and Asker v Turkey, ibid.; Yoyler
v Turkey, ibid.; Dogan v Turkey App no 29361/07 (ECHR, 27 May 2010); Dulas v Turkey, ibid.
56
Ayder and Others v Turkey, ibid.; Bilgin v Turkey, ibid.; Selcuk and Asker v Turkey, ibid.;
Xenidin-Arestis v Turkey (n 53); Demades v Turkey (n 53); Yoyler v Turkey, ibid.; Dogan v Turkey, ibid.;
Dulas v Turkey, ibid.
57
Salah Sheekh v the Netherlands (n 54).
58
Ibid., [57].
59
Sufi and Elmi v the United Kingdom (n 54).
60
Ibid.

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 Internally displaced persons and international refugee law 41

exploitation, crime, sexual violence, and forced recruitment. In addition, there was little pros-
pect of the situation improving within a reasonable timeframe. Accordingly the ECtHR found
that any returnee forced to find refuge in the Afgooye Corridor would be at real risk of Article
3 ill-treatment on account of the dire humanitarian conditions there, and that the situation was
likely to be the same, if not worse, throughout the country.
Just two years later, in the case of KAB v Sweden, the ECtHR found that the security situa-
tion had improved to such an extent since 2011 that return to Mogadishu would not violate the
ECHR.61 This reflects the current positions of the UK,62 Luxembourg,63 Sweden,64 Norway,65
Denmark,66 and the Netherlands, who all consider that Mogadishu may serve as an IFA.67
This position has been widely criticised and is undermined by recent reports indicating that
conditions in Mogadishu are dire. In their dissenting opinion in KAB, Judges Power-Forde and
Zupančič stated that it was premature to conclude that the situation in Mogadishu had changed
so fundamentally since the Sufi decision in 2011 that Mogadishu could qualify as an IFA,
particularly given the devastating human rights abuses throughout the 20-year civil war and
the ongoing abuses at the time the case was decided. In KAB, the Court only briefly examined
two of the four criteria examined in Sufi,68 namely (i) the general level of violence; and (ii) the
number of civilian casualties, concluding that there was no breach of the ECHR primarily as
a result of Al-Shabaab’s withdrawal from the city in August 2011.69 This was notwithstanding
the Court’s acknowledgement that Al-Shabaab was still carrying out attacks in the city that
affected civilians, that exact figures regarding civilian casualties were not readily available,
and that the human rights and security in Mogadishu was ‘serious’, ‘fragile’ and ‘in many
ways, unpredictable’.70 The ECtHR failed to examine criterion (iii) as examined in Sufi, that

61
KAB v Sweden App no 886/11 (ECHR, 5 September 2013).
62
The UK Home Office’s position is that the ‘scale of internal displacement in the area and the living
conditions of IDPs in the location, as well as the fact that many IDPs are exposed to a range of serious
human rights abuses’ must be ‘taken into account’ by the decision maker but that these conditions do not
necessarily preclude the finding of an IFA. The Home Office further advises that ‘IDPs in the context
of Somalia and Mogadishu are not a homogenous group’ and that ‘the economic-social circumstances
of these people can vary significantly’. The Home Office accepts that the position of some of the most
disadvantaged IDPs could likely lead to a breach of Art 3 on the basis of the threat of gender-based
violence. Yet the Home Office maintains the position that ‘relocation to Mogadishu may be reasonable
depending on the facts of the case’ and thus displacement or indeed the situation in Mogadishu more
generally does not rule out the application of the IFA principle. Home Office Country Information and
Guidance: Somalia, available at http://​www​.refworld​.org/​pdfid/​536754304​.pdf, last accessed 18 March
2016.
63
European Migration Network, Ad-Hoc Query on Asylum Proceedings and Returns to Somalia, 9
June 2015, available at http://​ec​.europa​.eu/​dgs/​home​-affairs/​what​-we​-do/​networks/​european​_migration​
_network/ ​ r eports/ ​ d ocs/ ​ a d ​ - hoc ​ - queries/ ​ p rotection/ ​ 6 82 ​ _ ahq ​ _ asylum ​ _ proceedings ​ _ and ​ _ returns ​ _ to​
_somalia​_wider​_dissemination​.pdf last accessed 23 Augut 2016, 7.
64
Ibid., 10.
65
‘Amnesty International, ‘Returns to South and Central Somalia: A Violation of International
Law’ (15 May 2013) http://​reliefweb​.int/​sites/​reliefweb​.int/​files/​resources/​afr520082013en​_0​.pdf last
accessed 9 July 2014.
66
Amnesty International, ‘Returns to South and Central Somalia: A Violation of International Law’
(15 May 2013) Ibid.
67
Ibid.
68
Sufi and Elmi v United Kingdom Apps no 8319/07 and 11449/07 (ECHR, 28 June 2011) [248].
69
KAB. v Sweden (n 61) [88], [89].
70
Ibid., [91].

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42 Research handbook on international refugee law

is, the widespread displacement in Mogadishu. In fact, at the time of the KAB decision the
number of IDPs had risen from 179,000 in 2011 (when Sufi was decided) to over 360,000.71
Further, the ECtHR did not take into account that the diversion of humanitarian aid within
Mogadishu and insecurity at food distribution sites significantly limited the access of IDPs to
assistance; and that allied militias committed a range of abuses against IDPs in Mogadishu,
including rape, looting of food aid from camps and arbitrary arrests and detention.72 Criterion
(iv) (the nature of the conflict) also received little consideration by the majority. Its decision
focused heavily on the fact that Al-Shabaab lost ground in 2012 but did not take into account
that killings of civilians increased during the same year.73 Thus ‘the situation in the region was
volatile and [could] change from day to day’.74
At the time of writing, the situation in Mogadishu has not improved since the decision
in KAB and has arguably worsened. Amnesty International’s most recent 2015/2016 report
indicates that the humanitarian situation in Somalia remains dire: over 3.2 million people
are in need of assistance and over 855,000 are food insecure, 76 per cent of whom are
IDPs.75 Between January and March 2015, state security forces evicted 46,700 people
without due process in Mogadishu.76 The majority of those who were evicted moved to the
outskirts of Mogadishu, in ‘deplorable’ conditions.77 The European Council for Refugees
and Exiles recommends that the IFA principle should not be applied where a returnee might
find himself in an IDP camp because it would not only endanger the human and social
rights of the returnee, but would also diminish the availability of resources in the region.78
Amnesty International has restated its categorical opposition to any attempts to forcibly return
people to Mogadishu, and/or any other parts of south and central Somalia on the basis that the
humanitarian situation in IDP settlements both in Mogadishu and in south and central Somalia
shows little change, if any, from the situation at the time that the Sufi decision was delivered.79
Similarly, the UNHCR’s position is that protection from the state is generally not available
in Mogadishu for persons fleeing persecution by Al-Shabaab or other militias or armed
groups.80 Finland, France, and the Slovak Republic do not apply the IFA concept in relation to
Mogadishu, precisely for these reasons.81

71
UN Office for the Coordination of Humanitarian Affairs, OCHA Mogadishu Head Office, 11
April 2013.
72
Human Rights Watch, 2013 World Report, Somalia.
73
Ibid. TA \s “Sufi and Elmi v the United Kingdom App nos 8319/07 and 11449/07 (ECHR, 28
November 2011)”
74
Dissenting Opinion of Judges Power-Forde and Zupančič, KAB v Sweden (n 61).
75
Amnesty International Report 2015/2016: Somalia, available at https://​ www​.amnesty​ .org/​
en/​
countries/​africa/​somalia/​report​-somalia/​ last accessed 18 March 2016.
76
Ibid.
77
Ibid.
78
European Council for Refugees and Exiles, ‘Actors of Protection and the Application of the
Internal Protection Alternative: European Comparative Report’ (2014), available at http://​www​.ecre​.org/​
component/​downloads/​downloads/​996​.html, last accessed 18 March 2016.
79
Amnesty International, ‘Returns to South and Central Somalia: A Violation of International
Law’ (15 May 2013) http://​reliefweb​.int/​sites/​reliefweb​.int/​files/​resources/​afr520082013en​_0​.pdf last
accessed 9 July 2014.
80
UNHCR, ‘International Protection Considerations with Regard to People Fleeing Southern and
Central Somalia’, HCR/PC/SOM/14/01, January 2014, 14.
81
European Migration Network, Ad-Hoc Query on Asylum Proceedings and Returns to Somalia, 9
June 2015 (n 63).

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 Internally displaced persons and international refugee law 43

Thus although the ECtHR in KAB purported to apply the same standard as Sufi, in reality,
it did not give sufficient consideration to the latter case and close examination of the KAB
decision and of the information currently available regarding Mogadishu shows that there is
little, if any, change in the conditions there since Sufi was decided. After all, if the conditions
were truly ‘dire’ in 2011, it is difficult to conceive that there could be such a fundamental
change in as little as two years so as to render return to Mogadishu a safe option. It is hoped
that future removal/IFA cases will play close heed to the rather damning dissenting opinion
of Judges Power-Forde and Zupančič, as well as the huge volume of available reports that
paint the situation in Mogadishu (and perhaps IDP camps more generally) as inherently cruel,
inhuman, and degrading.

4. CONCLUSION

State sovereignty has long dominated issues of international law and policy, and the protection
of IDPs is no different. Notwithstanding the fact that IDPs and refugees share similar wants,
needs, and fears, it is only in recent years that we have seen an increase in focus on IDP pro-
tection. However, this does not mean that IDPs should be treated in the same way as refugees.
Rather, the crossing of an international border is the key distinguishing criterion that makes
refugee protection more feasible (and less controversial) from a state sovereignty perspective.
In addition, practically speaking, it is unlikely that the international community would be
willing to provide similar rights to IDPs that currently exist for refugees, and it would not
make sense to grant refugee rights (which are provided on the basis that, inter alia, an individ-
ual is outside his country of nationality) to IDPs. Thus this chapter has argued that IDPs and
refugees should be treated differently in law but that the recent focus on IDP protection does
not, or at least should not, be to the detriment of refugee protection.
To preclude the granting of refugee status, the host state must be satisfied that an
asylum-seeker can avail him/herself of the protection of his/her country. For the availability
of IDP protection to satisfy this criterion, i.e., to constitute an IFA, the standard of protection
must be high. Simply put, the protection available to IDPs must constitute effective protection
from persecution and there must be no danger of refoulement, i.e., there should be no risk of
further internal displacement to face a risk of persecution. In such circumstances, it is appro-
priate that refugee status is not applicable as IDP protection directly addresses the root causes
of refugeehood and reduces the need for people to seek asylum. However, if IDP protection
does not reach this threshold (which is likely to be the case in a ‘safe’ zone, IDP camp, and/
or by an NSA), an interpretation of the 1951 Refugee Convention leads to the conclusion that
refugee status is not precluded. Consequently, IDP protection is complementary to refugee
protection, in law at least, and the increase in IDP protection can only serve to further amelio-
rate the push factors of displacement worldwide.

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4. In-country programs: the procedure and
politics of an additional pathway to protection
Claire Higgins

1. INTRODUCTION

In the midst of record levels of displacement, it is more important than ever to create safe path-
ways to protection for asylum seekers. This chapter will profile in-country programs, which
enable people in refugee-like situations – but who have not yet fled across an international
border – to be processed within their countries of origin and then settled abroad.
Applicants to an in-country program fall outside the refugee definition set out in Art 1A(2)
of the 1951 Convention relating to the Status of Refugees (‘the Convention’), as they are
not outside their country of nationality.1 This reflects the principle of non-interference under
Art 2(7) of the Charter of the United Nations; as Goodwin-Gill has observed, refugees were
‘thought to become an international problem only when they cross[ed] frontiers’.2 At the
Convention’s drafting, States agreed to recognise those who – without the protection of their
own country – ‘required legal protection’ rather than material assistance.3
In-country programs fall under the broader concept of ‘protected entry procedures’, which
are arrangements in which an individual may apply for protection in a particular State while
outside that State’s territory – either from within their country of origin or within a third
country.4 Planned annual resettlement programs, such as those offered each year by Australia
and some 30 other countries, are a common form of protected entry, while humanitarian visas
are another; in the latter, a person’s application for protection may be finalised before travel,
or they may be granted an entry permit allowing them to travel safely to a territory to lodge
a claim within that State’s domestic asylum procedure.5
The pathways listed above are all discretionary acts of the State offering protection.6 In
the case of in-country programs, it is precisely because of this discretion that there is a good

1
Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, Art 1(A)(2).
2
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art 2(7); Guy
S. Goodwin-Gill, ‘Different types of forced migration movements as an international and national
problem’, in Göran Rystad (ed.), The Uprooted: Forced Migration as an International Problem in the
Post-war Era, Lund University Press, Lund, 1990, 20.
3
Goodwin-Gill, ibid., 27. See also: Guy S. Goodwin-Gill and Jane McAdam, The Refugee in
International Law, 3rd edn, OUP, Oxford, 2007, 20–22, 26–8.
4
Protected entry procedures have been defined as those measures ‘offering alternatives’ to irreg-
ular movement for asylum seekers – G. Noll, J. Fagerlund and F. Liebaut, Study on the Feasibility of
Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum
Procedure: Final Report (European Commission 2002) 22.
5
European Parliament, Policy Department for Citizens Rights and Constitutional Affairs, Briefing:
Towards an EU Humanitarian Visa scheme? (2016) 2; Noll, et al., ibid.
6
See further: Liliana Lyra Jubilut, ‘Refugee law and protection in Brazil: a model in South
America?’, Journal of Refugee Studies (2006) 19(1) 29.

44
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 In-country programs: procedure and politics 45

deal of variation in why and how the mechanism has operated. Much of the literature in this
area concerns programs run by the United States over the last three decades, and indicates
that strategic interests have combined with humanitarian imperatives to determine where and
how orderly access to protection is made possible.7 Successive U.S. administrations have
introduced programs in response to a large flow of asylum seekers from a particular country of
origin (and as an attempt to offset restrictive border control measures) and/or for the advance-
ment of foreign policy interests.8 This has informed conclusions about the value of in-country
processing: in an analysis of U.S programs, the Migration Policy Institute has argued that
the mechanism has ‘inherent limitations’, and correctly noted that it cannot be a stand-alone
response to protection needs.9 While Australia and Canada also have a history of in-country
processing, the literature on these programs is small and does not connect the mechanisms
with other protected entry procedures.
In recent years, there has been recurring interest from policy-makers and practitioners
in the potential use of protected entry as a way to address the flow of migrants into the EU
from the Middle East and North Africa, and as a way to remedy restrictive asylum regimes
elsewhere.10 In 2017, the UN Secretary-General’s Special Representative on Migration rec-
ommended that States ‘establish in-country processing for resettlement or humanitarian visa
programmes, allowing those who face an immediate threat to be resettled without the need for
taking dangerous routes to flee their country’.11 In the Australian context the potential use of
in-country processing has been raised in the national asylum policy debate, and recommended
in the Australian Human Rights Commission’s 2016 report Pathways to Protection: a human
rights-based response to the flight of asylum seekers by sea.12
To address this interest in the mechanism it is instructive to reflect on past in-country pro-
grams, including the scope and safety of application procedures and the political rationale for
their implementation. This chapter is based on preliminary historical research into in-country
programs operated by Australia and Canada, combined with existing literature on U.S pro-

7
Andorra Bruno, In-country refugee processing: brief (Congressional Research Service 7 May
2015) 3.
8
Doris Meissner, Testimony to U.S. Senate Committee on the Judiciary, Subcommittee on
Immigration and the National Interest, ‘Eroding the Law and Diverting Taxpayer Resources: An
Examination of the Administration's Central American Minors Refugee/Parole Program’ (U.S. Senate
23 April 2015) 5.
9
Ibid., 11; Faye Hipsman and Doris Meissner, In-Country Processing: a piece of the puzzle
(Migration Policy Institute August 2015) 14.
10
Christopher Hein and Maria de Donato, Exploring Avenues for Protected Entry in Europe:
Report, Italian Council for Refugees and the European Council on Refugees and Exiles, 2012, 74. See
also: Judith Kumin, ‘In-country ‘refugee’ processing arrangements’, in Michael Jandl (ed.), Innovative
Concepts for Alternative Migration Policies: Ten Innovative Approaches to the Challenges of Migration
in the 20th Century (IMISCOE Reports 2007) 79–87.
11
Report of the Special Representative of the Secretary-General on Migration (‘the Sutherland
report’), A/71/728, United Nations General Assembly, Seventy-first session, 3 February 2017, para 55.
12
Australian Human Rights Commission, Pathways to Protection: a human rights-based response to
the flight of asylum seekers by sea, Australian Human Rights Commission, Sydney, 2016, 35. See also:
John Menadue, Arja Keski-Nummi and Kate Gauthier, A New Approach: breaking the stalemate on ref-
ugees and asylum seekers (Centre for Policy Development August 2011) 7; Bob Douglas, Claire Higgins,
Arja Keski-Nummi, Travers MacLeod and Jane McAdam, Beyond the Boats: Building an Asylum and
Refugee Policy for the Long Term (Report Following a High Level Roundtable, Australia21, Centre for
Policy Development and the Andrew & Renata Kaldor Centre for International Refugee Law 2014) 16.

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46 Research handbook on international refugee law

grams; it considers variance in eligibility criteria, the safety of those involved with procedure,
and the role of the country of origin in permitting safe exit.

2. BACKGROUND

2.1 United States: In-country Processing under the Immigration and Nationality Act

Each year the President of the United States is authorised under section 101(a)(42)(B) of the
Immigration and Nationality Act to specify particular groups of people as eligible for pro-
cessing ‘in-country’.13 According to the Act, these are persons who are within their country
of nationality or, if having no nationality, within their country of habitual residence and are
experiencing persecution or have a well-founded fear of persecution based on one of the five
grounds set out under the Convention: race; religion; nationality; membership of a particular
social group; or political opinion.14
The U.S. has used in-country processing for several decades. In the 1990s in-country pro-
grams provided for a majority of the U.S.’ refugee intake, based on a presumption of eligibility
for refugee status for persons who had previously experienced persecution in the Soviet Union
and Indochina, and the direct arrival of religious minorities from the former Soviet Union con-
tinues to be a sizeable component of the annual refugee admissions program today.15 The U.S.
also ran an in-country program in Haiti during the early 1990s, and has maintained a direct
acceptance of Iraqis and Cubans.16 Between 2014 and 2017 the U.S. operated the ‘Central
American Minors’ (CAM) in-country program in Honduras, El Salvador and Guatemala in
response to a large-scale movement of unaccompanied children into the U.S. In August 2017
the Trump administration cancelled the ‘parole’ element of the CAM Program, which had
granted temporary entry to the U.S. to children who were not identified as refugees but who
qualified for entry on broader humanitarian grounds; weeks later, the administration made
clear that the entire CAM Refugee Program would cease to operate by January 2018.17 Other
in-country programs in Eurasia and the Baltics, Iraq and Cuba will continue to operate for
Fiscal Year 2018.18

13
United States: Immigration and Nationality Act (last amended March 2004) [United States of
America], 27 June 1952.
14
Convention relating to the Status of Refugees, Art 1(A)(2). See further: Bruno (n 7) 2.
15
Susan Raufer, ‘In-Country Processing of Refugees’, Georgetown Immigration Law Journal
(1995) 9, 233 f1, 255. The presumption was introduced under the ‘Lautenberg Amendment’ to the
Foreign Operations Appropriations Bill 1990. The Amendment was expanded in 2004 to include particu-
lar minority groups from Iran who were processed for resettlement outside their country of origin – see
further, Bruno (n 7) 7–8; HIAS, Lautenberg Amendment Backgrounder, February 2014 https://​www​
.hias​.org/​sites/​default/​files/​lautenberg​_amendment​_backgrounder​.pdf, accessed 7 June 2018. accessed
7 June 2018; Miriam Jordan, ‘Soviet-era program gives even unoppressed immigrants an edge’, The
New York Times, 26 August 2017, https://​www​.nytimes​.com/​2017/​08/​26/​us/​ukrainian​-christian​-refugees​
.html accessed 7 June 2018.
16
Bruno (n 7) 3–4.
17
United States. Department of State, Department of Homeland Security and Department of Health
and Human Services, Proposed Refugee Admissions for Fiscal Year 2018: Report to the Congress, 2017,
10.
18
Ibid.

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 In-country programs: procedure and politics 47

2.2 Canada: Political Prisoners and Oppressed Persons Designated Class, and the
Source Country Class

Between 1972 and 2011, the Canadian government offered in-country processing in a range
of countries around the world. The first iteration was a response to the expulsion of the
Asian minority population from Uganda in late 1972; around 7,000 people were processed
by Canadian officials in Kampala and flown on chartered aircraft to Canada.19 This expe-
rience laid the groundwork for formalised in-country programs that were introduced under
regulations in 1978, known as the ‘Designated Classes’.20 The classes operated in addition to
the resettlement of refugees under Canada’s Immigration Act 1976, and were for persons in
‘refugee-like’ situations in Indochina, Eastern Europe and Latin America.21 The latter program
became known as the Political Prisoners and Oppressed Persons Designated Class (PPOP).22
During the 1980s the PPOP operated in countries such as Chile, Argentina, El Salvador,
Guatemala, Uruguay and Poland.
In 1997 the PPOP was replaced by the ‘Source Country Class’, which enabled persons
within designated countries to apply directly to Canada for refugee status.23 Designated
countries changed slightly over time, and at various points included Colombia, Guatemala,
El Salvador, Sudan, Sierra Leone, Bosnia-Herzegovina, Croatia, Cambodia, Liberia, and the
Democratic Republic of Congo. According to the Canadian government, countries so desig-
nated were places ‘where persons are in a refugee-like situation, applications can be processed
without endangering the embassy staff or the applicant, and the intervention would be in line
with Canada’s overall humanitarian strategy and the work of the UNHCR’.24 As observed by
Labman, however, the express need to operate in a ‘safe working environment’ ultimately
limited the application of the Class.25 After a review in 2009, Citizenship and Immigration
Canada questioned the flexibility of designation and the accessibility of the application
process. While the Canadian Council of Refugees also noted difficulties in the administration
of the program in a report the following year, it argued that the Class should remain opera-

19
Roger St Vincent, Asian Exodus from Uganda: The role of Canada’s Mission to Kampala
(Perspectives in Canadian Immigration History, The Canadian Immigration Historical Society, no. 3
1993); Ninette Kelley and Michael Trebilcock, The Making of the Mosaic: a history of Canadian immi-
gration policy 2nd edn, University of Toronto Press, 2010, 367.
20
See further: Indochinese Designated Class Regulations, SOR/78-931; Self-Exiled Persons
Designated Class Regulations, SOR/78-933.
21
James Hathaway, ‘Selective concern: an overview of refugee law in Canada’, McGill Law Journal
(1988) 33, 692–3.
22
Political Prisoners and Oppressed Persons Designated Class Regulations (1982), SOR/82-977.
The class was originally known as the Latin American Designated Class.
23
Immigration and Refugee Protection Regulations SOR/2002-227 – see further: Shauna Labman,
‘At Law’s Border: Unsettling Refugee Resettlement’, PhD Thesis, University of British Columbia, 2012,
199–202.
24
Canada Gazette, Regulations Amending the Immigration and Refugee Protection Regulations:
Regulatory Impact Analysis Statement, 19 March 2011 http://​www​.gazette​.gc​.ca/​rp​-pr/​p1/​2011/​2011​-03​
-19/​html/​reg3​-eng​.html accessed 7 September 2016.
25
Labman (n 23) 201–3; Kumin (n 10), 82.

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48 Research handbook on international refugee law

tional because it was ‘one of the few alternatives to smugglers for people who need to flee for
their lives’.26 Nonetheless, the Class was repealed in March 2011.27

2.3 Australia: In-Country Special Humanitarian Program and the Subclass 201 Visa

During the 1980s and early 1990s, the Australian government offered in-country programs in
specific countries, such as Chile, El Salvador and Poland, as a means of resettling trade union-
ists, dissidents and former political prisoners who were at risk of persecution in their home
countries. These operated alongside Australia’s refugee intake, as a small component of the
Special Humanitarian program (SHP). The SHP enabled family or organisations in Australia
to sponsor people for humanitarian resettlement, and provided the Australian government
with a means of providing ‘sympathetic consideration’ for those ineligible under the normal
migration criteria or the strict Convention definition, ‘quasi-refugees with close relatives or
ties in Australia’.28 It was intended to aid those subject to ‘substantial discrimination or human
rights violations’, who would have no comparable claim to resettlement elsewhere, and the
in-country application of the SHP in Latin America was intended to directly address the need
for ‘sanctuary’ for those ‘known to be targets of death squads or victims of torture’.29
Australia maintains an In-country Special Humanitarian visa (subclass 201) under Schedule
1 of the Migration Regulations 1994 (Cth). Usually only a small number of individuals
are resettled under the subclass 201 visa category each year (indeed, this is stated on the
application form), and the number of places is not pre-determined.30 The provenance of
those resettled under this category is generally not specified in government publications; in
2013–14, however, the Australian government announced measures to enable a number of
former locally-engaged Afghan staff within Afghanistan to apply for settlement as a reflection
of ‘Australia’s moral obligation to current and former employees who have provided valuable
support to Australia’s efforts in Afghanistan’.31

26
Canadian Council for Refugees, Proposed Elimination of Source Country Class, 18 April 2011,
http://​ccrweb​.ca/​en/​comments​-proposed​-elimination​-source​-country​-class​#​_ftn2 accessed 24 November
2016; Canadian Council for Refugees, The Future of Colombian Refugees in Canada: are we being
equitable?, Report of the Canadian Council for Refugees delegation to Panama and Ecuador (jointly with
the Refugee Council USA) and to Colombia in November 2010.
27
Canada, Department of Citizenship and Immigration, Regulatory Impact Analysis Statement,
Canada Gazette, 145(12), 19 March 2011, http://​www​.gazette​.gc​.ca/​rp​-pr/​p1/​2011/​2011​-03​-19/​html/​
reg3​-eng​.html accessed 24 November 2016.
28
Australia. Commonwealth Parliamentary Debates, House of Representatives (18 November 1981)
2705.
29
Claire Higgins, ‘Australia’s little-known in-country programme in Latin America’, Refugee
Survey Quarterly (2014) 33(1) 9.
30
Claire Higgins, Factsheet: In-country processing and other protected entry procedures (Kaldor
Centre for International Refugee Law, University of New South Wales, 2016) http://​www​.kaldorcentre​
.unsw​.edu​.au/​publication/​incountry​-processing​-and​-other​-protected​-entry​-procedures accessed 2
December 2016.
31
Ibid.

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 In-country programs: procedure and politics 49

3. CRITERIA

Aside from the requirement that an applicant be within their home country, eligibility for
in-country processing can vary considerably, and is not necessarily confined to those who
would otherwise fall within the Convention definition through well-founded fear of perse-
cution on the basis of race, religion, nationality, membership of a particular social group or
political opinion. Instead, eligibility may be explicitly designed for particular groups, or may
be based on the five grounds under Article 1(a)(2) but with an additional bespoke mix of
geographic designations or limitations and expanded definitions of generalised violence or
discrimination.
For example, Meissner has observed that in addition to operating in designated countries,
U.S. programs have either been broadly drawn with ‘a reduced evidentiary standard for estab-
lishing a fear of persecution’ (such as in the former Soviet Union), or targeted to specific cate-
gories of individuals to the exclusion of others who may be equally at risk.32 The latter model
has attracted some criticism; as Meissner and Frelick have noted, when in-country processing
was set up in Haiti in response to the increased irregular movement of Haitians by boat to the
U.S. in the early 1990s, eligibility criteria was seen as being skewed toward well-educated
elite, such as journalists or former government officials.33 Indeed, Frelick claimed that the
evidentiary standard for Haitians was actually higher than that required under the Convention,
because decision-makers required individuals to show direct experience of persecution (rather
than ‘a well-founded fear’).34
The CAM program was premised on the biological relationship between the young applicant
(unmarried, under 21 years of age and identified to be a refugee through interview with U.S
authorities) and the child’s U.S-based parent. The procedure was triggered when the parent
formally requested the settlement of their child in the U.S, and a DNA test was then completed
in the U.S. to confirm the parental relationship. The determination of status was based on the
definition set out in domestic legislation (and reflected the Convention definition). In evidence
to a U.S. Senate Committee hearing on the CAM program in 2015, experts stated that while
‘membership of a particular social group’ has been applied by U.S. decision-makers to young
Central Americans fleeing gang violence, ‘it is unclear whether the intended beneficiaries of
the CAM Program, when viewed from a categorical perspective, would be able to meet this
definition’.35 The program also required that any family members who wished to accompany
the child to the U.S. should be determined as refugees.

32
Meissner (n 8) 6–7; Hipsman and Meissner (n 9) 15–16; Ruth Ellen Wasem, Cuban migration to
the United States: policy and trends (Congressional Research Service, 2 June 2009) 13–14. See also:
U.S. Embassy in Cuba, Refugee Program, https://​cu​.usembassy​.gov/​embassy/​refugee​-program/​?​_ga​=​1​
.194632040​.473945623​.1474426508 accessed 22 November 2016.
33
Meissner (n 8), 7; Bill Frelick, ‘In-country processing of Haitians: the case against’, Refuge (2003)
21(4), 68.
34
Frelick, ibid.
35
Igor V. Timofeyev, Testimony to U.S. Senate Committee on the Judiciary, Subcommittee on
Immigration and the National Interest, ‘Eroding the Law and Diverting Taxpayer Resources: An
Examination of the Administration's Central American Minors Refugee/Parole Program’ (United
States Senate 23 April 2015), 3–5; Meissner (n 8) 10; Higgins, ‘Factsheet’ (n 30). On 26 July 2016
the Department of Homeland Security announced that eligibility would be extended to siblings, bio-
logical parents and caregivers of a child who qualifies under the program – see further: United States

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50 Research handbook on international refugee law

In comparison, the Canadian Source Country Class offered a broader scope for eligibility,
based on an applicant in a designated country having either a well-founded fear under one of
the five Convention grounds, or having been ‘seriously and personally affected by civil war or
armed conflict in the designated country’, or ‘detained with or without charges or punished in
some form for an act that, if committed in Canada, would be a legitimate exercise of freedom
of expression or a legitimate exercise of civil rights with regard to trade union activity or polit-
ical dissent’.36 Decision-makers were also required to determine, however, that an applicant
had ‘no possibility of another durable solution within a reasonable period of time’.37 The rec-
ognition of those fleeing civil war or armed conflict represented an expansion of the eligibility
criteria originally set out under the PPOP.38
In Australia, the current 201 visa is theoretically open to any person ‘subject to persecution’
in any home country; however, it is intended to be an ‘exceptional measure’, and the applicant
must not have ‘been able to leave that country to seek refuge elsewhere’.39 According to the
Australian Department of Immigration and Border Protection’s guidelines for decision-makers
applying the 201 visa (as well as visa subclasses 200, 203 and 204 for Refugees, ‘Emergency
Rescue’ and ‘Women at Risk’ respectively), the meaning of ‘subject to’ requires an assess-
ment of ‘the available evidence’ ‘as to whether the applicant is open to, or exposed to, or under
the domination of, persecutory acts in their home country’.40
The meaning of ‘refuge elsewhere’ is not specified, and it is unclear whether this means
time spent in a neighbouring or transit country. Furthermore, the Department’s guidelines state
that ‘there may be significant bilateral sensitivities around assessing applicants in their home
country’; decision-makers must be satisfied that the grant of a visa ‘is not against Australia’s
interests’ in that it may ‘possibly harm Australia’s relations with another country’.41 It is not
clear exactly how this potential harm is to be measured, a question that merits further research
on the operation of the 201 visa.42
In-country programs may also be intended for individuals with some connection to the
settling State, either as an additional element to the eligibility criteria (where sponsors are
seen as beneficial for settlement outcomes) or as an express requirement. For example, the

Department of Homeland Security, ‘U.S. expands initiatives to address Central American migration
challenges’, press release, 26 July 2016 https://​www​.dhs​.gov/​news/​2016/​07/​26/​us​-expands​-initiatives​
-address​-central​-american​-migration​-challenges accessed 23 November 2016.
36
Kumin (n 10) 81–2.
37
Debra Pressé, evidence to Subcommittee on International Human Rights of the standing
Committee on Foreign Affairs and International Development, (Parliament of Canada, 9 December
2010).
38
Hathaway (n 21) 695.
39
Australia. Department of Immigration and Border Protection, In-Country Special Humanitarian
Visa (Sub-class 201), https://​www​.border​.gov​.au/​Trav/​Visa​-1/​201​- accessed 7 September 2016.
40
Department of Immigration and Border Protection, Procedures Advice Manual 3: Offshore
Humanitarian program - Visa application and related procedures (2016) 40.
41
Ibid., 26, 45.
42
In Australia, the historical influence of foreign policy considerations on protection claims has
been observed in domestic status determination procedures, and in this context evidence suggests that
decision-makers have sometimes opted to grant an applicant resettlement via another pathway to avoid
any possible offence caused the country of origin by the recognition of refugee status – see further: Claire
Higgins, ‘New evidence on refugee status determination in Australia, 1978 to 1983’, Refugee Survey
Quarterly (2016) 35(3) 71–93.

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 In-country programs: procedure and politics 51

U.S.’ in-country program in Iraq is intended for former employees/associates of U.S. or

multi-national forces in Iraq (including translators) or of organisations contracted by the U.S.
government, or U.S.-based media or NGOs, or families of those persons or of U.S. residents.
Similarly, when the Australian government processed Sri Lankans directly in the aftermath
of communal violence in 1983, applications could be submitted by sponsors within Australia,
in part because the use of the mechanism was designed to address concerns of the Tamil and
Sinhalese communities in Australia.43 Under Australia’s present 201 visa, decision-makers
must consider not only whether the applicant is subject to persecution, but also assess the case
with respect to four ‘compelling reasons’ including ‘the extent of the applicant’s connection
with Australia’, such as family or social ties.44

4. IN-COUNTRY PROGRAMS AND THE PRINCIPLE OF

NON-REFOULEMENT

As Noll et al. have noted, because an applicant for protection under an in-country program has
not crossed an international border they do not fall under Article 1A(2) of the Convention, and
are therefore not entitled to protection from refoulement under Article 33 of that treaty.45 This
is a key criticism within the literature on in-country processing: in commentary on programs
implemented by the U.S and Canada, Churgin, Frelick, Labman and Hathaway have each
argued that closest to home, an asylum seeker is conveniently at arm’s length from the settling
State’s protection obligations.46
Furthermore, Kumin argued in 2007 that there is a danger that in-country processing can
be used to justify a settling State’s restrictive border controls.47 This criticism has been lev-
elled at several U.S. programs that were implemented in response to large asylum flows out
of neighbouring countries: in Haiti during the early to mid-1990s processing out of the U.S.
Embassy in Port-au-Prince, and out of regional offices in Cap-Haitien and Les Cayes (operated
by contracting organisations)48 operated alongside the U.S. practice of intercepting Haitian
asylum seekers at sea and turning them back to their country of origin.49 Similarly, during the
mid-1990s the Clinton administration was accused of using in-country processing as a justifi-
cation for the interdiction and return of thousands of Cubans,50 and Frelick described the recent
CAM program as a ‘pretext’ for the interdiction and return of children who were en route to the

43
See further: Judith Betts and Claire Higgins, ‘The Sri Lankan civil war and Australia’s migration
policy response: a historical case study with contemporary implications’, Asia & the Pacific Policy
Studies (2016) 4(2) 272–85.
44
Australia. Department of Immigration and Border Protection, Procedures (n 40) 43.
45
Noll et al. (n 4) 38.
46
Labman (n 23) 228; Bill Frelick, ‘Haitian boat interdiction and return: first asylum and first
principles of refugee protection’, Cornell International Law Journal (1993) 26 689; Michael J. Churgin,
‘Mass exoduses: the response of the United States’, The International Migration Review (1996) 30(1)
318; James Hathaway, ‘The conundrum of refugee protection in Canada: from control to compliance to
collective deterrence’, Journal of Policy History (1992) 4(1) 78.
47
Kumin (n 10) 80.
48
Raufer (n 15) 250.
49
Frelick (n 46) 689.
50
Churgin (n 46) 322; S. Greenhouse, ‘U.S. will return refugees to Cuba in policy switch’, The
New York Times (3 May 1995); Larry Rohter, ‘U.S., enforcing new policy, turns over 13 boat people to

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52 Research handbook on international refugee law

U.S. through Mexico, arguing that the requirement of a biological relationship and the lengthy
application procedure meant the program failed to address the reasons why these children need
to flee in the first place.51
The very fact that an asylum seeker is still within their country of origin means that the
act of lodging a claim may be conspicuous, potentially compromising an applicant’s safety.52
Labman astutely observed that the risks involved ‘seem no less daunting’ than those associ-
ated with a cross-border journey – exactly the kind of danger that an in-country program is
supposed to mitigate.53 It may be difficult for an applicant to make or sustain contact with
a prospective protecting State or to physically present for interview.54 Representatives of the
settling State may also find it difficult to access prospective applicants who are at serious risk,
thereby limiting a program’s effectiveness.55
Scholars and advocates have proposed a variety of measures to increase and ease access
for applicants. Hipsman and Meissner have suggested that application centres be located in
various places throughout a country of origin so as to limit the distance an applicant needs
to travel, and be located ‘in buildings where other activities are taking place’ so as to mask
an applicant’s reason for entry.56 In 2015, advocates in the U.S. argued for the use of public
education and outreach in Central America and within the U.S. to promote the availability
of the CAM pathway; at the same time they were careful to note that a conspicuous or
less-than-confidential procedure could put applicants or prospective applicants at further
risk.57 And under an early version of Canada’s in-country program in the late 1970s and
early 1980s, Canadian officials visited prisons across Argentina, negotiating their way in to
interview political prisoners referred by family or sponsors back in Canada, thus signalling to
Argentinean authorities that a foreign government was concerned about – and observing – the
fate of that individual.58
In some cases, non-governmental organisations within a country of origin have assisted in
connecting prospective applicants with a State offering protection. In El Salvador and Chile
under the SHP, Australian Immigration officers liaised with local religious organisations to
identify particularly vulnerable individuals in need of protection.59 Under Canada’s Source
Country Class in Colombia these referral arrangements were shown to have distinct benefits
and disadvantages. For example, during a period in which referral was the required method of
application, ‘open trusting relationships’ were built between embassy staff and NGOs, despite

Cuba’, The New York Times (10 May 1995); Azadeh Dastyari, United States Migrant Interdiction and the
Detention of Refugees in Guantánamo Bay (CUP 2015) f209.
51
‘U.S. Refugee Program Ignores Dangers Children Face, Critics Say’, National Public Radio, 27
March 2015 http://​www​.npr​.org/​2015/​03/​27/​395698425/​u​-s​-refugee​-program​-ignores​-dangers​-waiting​
-children​-face​-critics​-say accessed 2 December 2016.
52
Raufer, (n 15) 256; Hipsman and Meissner (n 9) 13–14; Meissner (n 8) 6–7.
53
Labman (n 23) 211.
54
Higgins, ‘Factsheet’ (n 30).
55
Hipsman and Meissner (n 9) 12.
56
Ibid.
57
Anastasia Brown, Testimony to U.S. Senate Committee on the Judiciary, Subcommittee on
Immigration and the National Interest, ‘Eroding the Law and Diverting Taxpayer Resources: An
Examination of the Administration's Central American Minors Refugee/Parole Program’ (United States
Senate, 23 April 2015), 12–13; Hipsman and Meissner (n 9) 14.
58
See further: Kumin (n 10) 81; National Archives of Australia, A1209 1987/150 Part 2.
59
Higgins (n 29) 10–14.

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 In-country programs: procedure and politics 53

occasional cases in which referrals were suspected of being obtained through bribes or other
fraudulent means. When the official referral arrangements were abandoned in favour of direct
submissions, however, the volume of inquiries reportedly increased while the ability to access
the most vulnerable individuals declined.60
Access to a procedure can be further complicated by the potential for delays in processing.
For example, under the U.S.’ program in Haiti in the early 1990s, the submission of appli-
cations in Port-au-Prince and Les Cayes took place within a very short distance of Haitian
government buildings; the majority of applicants were scheduled interviews three to six
months later, and only 5 per cent received immediate processing due to the perceived urgency
or high-profile nature of their claim.61 While the CAM program was instituted in 2014 in direct
response to the movement of tens of thousands of unaccompanied children into the U.S., the
procedures involved (pre-screening interviews, DNA tests, status determination) took time:
news outlets reported that as at September 2017 1,627 children had received protection under
the CAM Refugee Program.62 And while in 2015 the Catholic Bishops’ Migration and Refugee
Services called for processes to be streamlined and speeded up – while praising the program’s
potential – other scholars and advocates concluded that the program had limited capacity and
could not offer an effective alternative pathway to protection.63
Finally, the physical transfer of a successful applicant out of the country of origin raises
questions as to how a settling State can mitigate risk to that individual, and whether or how
a settling State’s obligations under international human rights law may be engaged. The lack
of information about State practice in each instance makes answering these questions difficult,
and demonstrates the need for further detailed historical research.
The challenges of in-country processing – the safety of the procedure and transfer – each
underscore the fact that an in-country program should only be used to complement – and never
replace – other pathways to protection, such as resettlement programs or national asylum
procedures.64 This is important both for the integrity of the international protection regime, but
also as a recognition that processing in-country is not a comprehensive solution to protection
needs; if the capacity of a program cannot keep pace with demand, or if a prospective applicant
does not have confidence in the safety and confidentiality of procedures, that individual may
be forced to cross an international border in search of protection.65
Importantly, while an in-country program is effective if it can aid people fleeing a persecu-
tory or dangerous situation, the feasibility of a program is informed by the safety of conditions
for staff and applicants. This was stated in the designation of countries under the Source
Country Class, and was a genuine concern for the Australian departments of Foreign Affairs

60
Labman (n 23) 213–15.
61
Raufer (n 15) 251.
62
‘The Trump administration plans to end a refugee program for children’, Salon, 25 September
2017 https://​www​.salon​.com/​2017/​09/​24/​the​-trump​-administration​-plans​-to​-end​-a​-refugee​-program​-for​
-children​_partner/​. See also: ‘Frustrated by new US program to take in migrants, Central American
parents turn to smugglers’, LA Times, 21 April 2016 http://​www​.latimes​.com/​nation/​la​-na​-central​
-american​-migrants​-20160420​-story​.html accessed 2 December 2016.
63
Brown (n 57) 12–15; Bill Frelick, ‘New U.S. policy of little help to Central American families who
live in fear’, LA Times (6 July 2015) http://​www​.latimes​.com/​opinion/​op​-ed/​la​-oe​-0706​-frelick​-central​
-american​-refugees​-20150706​-story​.html; Hipsman and Meissner (n 9) 2.
64
Frelick, ‘Haitian Boat Interdiction’ (n 46) 689–91.
65
Meissner (n 8) 7.

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54 Research handbook on international refugee law

and Immigration when embarking on in-country programs in Latin America in the 1980s. ‘We
cannot be sure about security’, Australian officials reported, ‘because clearly an operation
which seemed to be helping one side or other in the Salvadoran civil war would be likely to
provoke reprisals from the other side’; as a result, a larger intake ‘might need to be weighed
against the safety factor’ for Australian staff.66 In an interview with this author, Judith Betts,
a former Migration Officer with Australia’s Department of Immigration and Ethnic Affairs,
recalled that when she travelled to the north of Chile in 1983 to interview striking copper
miners for settlement under the in-country SHP, she and accompanying staff were harassed
by the police and officials from the State-owned mining company.67 While knowing that staff
at other embassies had experienced similar harassment, and ‘constantly wondering’ what
Chilean authorities ‘might do, how they might react to us’, Betts remained committed to the
task: ‘after a while I started thinking that if this was the kind of place where [violence and
harassment] was commonplace, then I really wanted to do the work that I was doing’.68

5. THE QUESTION OF POLITICAL WILL

An in-country program is a statement about the nature of government in the country of origin.
This applies both to situations in which that government is unable to protect its citizens from
the consequences of civil conflict or lawlessness (as in the CAM program), or where the State
is itself the persecutor, which, as Kumin has noted, makes the implementation of an in-country
program particularly sensitive.69
Thus the consent – tacit or otherwise – of the country of origin can be a critical factor.
Noll et al. argued that programs in which the country of origin has veto over departure do
not qualify as protected entry procedures.70 The largest and most well-known example of
this form of settlement, the Orderly Departure Program out of Vietnam, was indeed based on
a Memorandum of Understanding signed between the government of the Socialist Republic of
Vietnam and UNHCR, with the U.S. as an ‘architect’ of the agreement.71 In contrast to Noll’s
argument, Kumin and others have framed the Orderly Departure Program from Vietnam as
a noteworthy example of in-country processing, but have nonetheless observed that it enabled
Vietnam to submit lists of names for emigration and thereby rid itself of ethnic Chinese and
others it did not want.72
The question of encouragement to exile is a perennial dilemma in international debates
on protection, as Goodwin-Gill and McAdam have noted, because States may wish to avoid
relieving ‘the country of origin of its responsibility to establish the conditions permitting

66
National Archives of Australia, A1838 1690/5/8/Part 1; National Archives of Australia, A1838
249/9/1 Part 2.
67
See further: Higgins (n 29), 11; National Archives of Australia, A1838 932/29/1 Part 8.
68
Higgins, ibid., 11.
69
Kumin (n 10) 85.
70
Noll et al. (n 4) 23.
71
Kumin (n 10) 84.
72
Judith Kumin, ‘Orderly departure from Vietnam: cold war anomaly or humanitarian innovation?’,
Refugee Survey Quarterly (2008) 27(1) 107–9; Kumin (n 10) (80–81); Meissner (n 8) 3; Hipsman and
Meissner (n 9) 15.

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 In-country programs: procedure and politics 55

return’.73 In 1981, in light of the mass exodus from Vietnam that inspired the Orderly
Departure Program, Australia and other States argued that the prevention of refugee flows
should be prioritised over remedial actions such as resettlement.74
Encouragement or direct consent to exile has been observed in other cases of in-country pro-
cessing. In 1983 when the government of Álvaro Magaña in El Salvador granted an amnesty
for political prisoners, it asked the Intergovernmental Committee for Migration ‘for help in
finding a refuge abroad for the former prisoners’.75 By mid-year, more than 500 political
prisoners were released from Mariona prison. The governments of Canada and Australia were
aware that prisoners were at risk from paramilitary death squads, and with the assistance of the
Committee, Canadian and Australian immigration officials travelled to San Salvador to inter-
view prospective applicants.76 Yet later, Australian intelligence suggested that ‘the amnesty
had been a cynical ploy to empty prisons to take new inmates ...[and] to improve the image
of the Salvadoran government internationally’.77 Australian Immigration and Foreign Affairs
officials came to understand that the rescue of individuals who would otherwise be subject
to persecution may have rewarded the Salvadoran government’s inability or unwillingness
to protect them, what one former Immigration official described as a removal of dissidents
‘without the bloodshed’.78 Australian officials came to suspect that by accepting political
prisoners they ‘had been “used” by the Salvadoran government’.79
In Poland in the early 1980s the imposition of martial law and repression of the ‘Solidarity’
labour movement led to a situation in which emigration was encouraged for political reasons.80
Polish authorities, under the leadership of General Wojciech Jaruzelski, had announced in
early 1982 that Solidarity activists, including those in political detention camps, were eligible
to emigrate; reports from the time state that passport applications were distributed to detain-
ees.81 While Polish passports at the time usually entitled the holder to ‘cross the border once
and return’, in this case ‘the words “and return” were crossed out’.82 Around 4,300 left by
various means over the course of the early 1980s, and of those several hundred were settled
directly by the U.S., Canada and Australia.83 In fact, it was reported in The Washington Post
that political prisoners were granted release to travel to the U.S embassy to submit an application
for settlement.84

73
Goodwin-Gill and McAdam (n 3) 489.
74
International cooperation to avert new flows of refugees: Report of the Secretary-General,
A/36/582, United Nations General Assembly, 36h session, 23 October 1981, 4–7.
75
Bernard Gwertzman, ‘Salvadorans to gain refugee status’, The New York Times (22 September
1983).
76
Higgins (n 29), 13. The New York Times gave the number of amnestied political prisoners as 554
– see further: Gwertzman, ibid.; National Archives of Australia (n 66).
77
National Archives of Australia, ibid.
78
Higgins (n 29) 15.
79
National Archives of Australia (n 66).
80
Michael S. Teitelbaum, ‘Immigration, refugees and foreign policy’, International Organisation,
(Summer 1984) 38(3) 447–8.
81
Don Oberdorfer and Carin Pratt, ‘U.S. is resettling hundreds of Polish activists, families here’, The
Washington Post (5 May 1983).
82
Patryck Pleskot, ‘Polish political emigration in the 1980s: current research, perspectives and chal-
lenges’, Polish American Studies (Autumn 2015) 72(2) 50.
83
Ibid. See also: National Archives of Australia, A1838 932/29/1 Part 6.
84
Oberdorfer and Pratt (n 81).

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The active involvement of the country of origin did not mean, however, that the
above-mentioned initiatives were well-publicised by either party. When the U.S. State
Department announced in May 1983 that 1,200 Poles (those associated with Solidarity and
their families) had been settled, it denied that it had collaborated with Polish authorities even
though the Polish government’s role in encouraging exit was well-known.85 That same year,
the Reagan administration’s acceptance of 200 Salvadorans (some 50 amnestied prisoners
and their family members), was announced ‘quietly’.86 The administrations of U.S. Presidents
Jimmy Carter and Ronald Reagan had offered support for successive Salvadoran governments
as they struggled against a leftist insurgency, and the State Department considered Salvadorans
attempting to reach the U.S. to be economic migrants.87 The Department argued that taking the
prisoners did not constitute recognition that El Salvador was a refugee-producing country.88 In
the Australian context, former Immigration officials have expressed a belief that diplomatic
sensitivities ensured that the protection and settlement of individuals from El Salvador during
this period was deliberately kept quiet.89

6. CONCLUSION

In-country programs have evident benefits, ensuring that an individual in need of protection
is able to move safely and legally, without taking a dangerous journey over land or sea. The
orderly nature of the mechanism has been promoted by settling States,90 but those who have
worked closely with the protection-seekers in question have instead commended this form
of processing as a highly valuable additional pathway – a ‘lifesaver’ and ‘a last option’ for
vulnerable individuals, and ‘a genuine rescue-mission’.91 The future role of in-country pro-
grams will therefore depend on whether the integrity of the international protection regime
can be assured (and the mechanism is not used to avoid responsibilities), and whether, through
further detailed research, we can expand our understanding of the way that States have and can
mitigate risks to applicants, and argue for the wider use of this mechanism as a complement
to other pathways.

85
Ibid.
86
Gwertzman (n 75).
87
Cynthia Brown (ed.), With Friends Like These: the America’s Watch Report on Human Rights and
U.S. Policy in Latin America, New York, 1985, 117–40; David M. Reimers, Still the Golden Door: the
Third World Comes to America, New York, 1992, 199–205; Higgins (n 29) 7.
88
Gwertzman (n 75).
89
Higgins (n 29) 2.
90
U.S. Department of State, Secretary of State John Kerry, Remarks on the United States Foreign
Policy Agenda for 2016 (13 January 2016).
91
Higgins (n 29) 2.

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5. Temporary protection of forced migrants
Meltem Ineli-Ciger

I. INTRODUCTION

United Nations High Commissioner of Refugees (UNHCR) noted that 68.5 million individuals
were forcibly displaced worldwide as a result of persecution, conflict, generalized violence,
or human rights violations at the end of 2017.1 Today, one in every 110 people globally is
either an asylum seeker, internally displaced or a refugee.2 Ever increasing numbers of forced
migrants3 make it necessary to analyse protection frameworks such as temporary protection
which has long provided refuge to those fleeing conflict and violence.4 Temporary protection
currently affects the lives and the legal status of more than 3.6 million forced migrants in
Turkey5 alone. However, despite this importance, many aspects of temporary protection even
today are not clear: as it is rightly noted by the UNHCR Roundtable assembled in 2012:
‘Temporary protection is not a new concept, yet its content, boundaries and legal foundation
remain largely undefined or unsettled.’6 No international legal instrument provides a clear
definition of temporary protection or reflects consensus on what it entails as a protection
regime.7 This chapter takes a step to clarify some of these undefined and unsettled aspects of
temporary protection and examines temporary protection of forced migrants in the European
Union (EU), Turkey, the United States (US) and Australia.
The chapter has two main parts. The first part addresses a set of questions relating to tem-
porary protection and reviews temporary protection laws and practices in the EU, Turkey, the

1
UNHCR, ‘Global Trends Forced Displacement in 2017’ (2017) https://​www​.unhcr​.org/​statistics/​
unhcrstats/​5b27be547/​unhcr​-global​-trends​-2017​.html accessed 16 May 2019, 1.
2
UNHCR, ‘Refugee Statistics’ (2017)https://​www​.unrefugees​.org/​refugee​-facts/​statistics/​ accessed
16 May 2019
3
Forced migrants, for the purposes of this chapter, are all persons who are forced to leave their
country of origin and who are unable to return to the country of origin due to various reasons including
the existence of non-international or international armed conflict, violence, human rights violations and
natural disasters.
4
UNHCR, ‘Roundtable on Temporary Protection: 19–20 July 2012’ International Institute of
Humanitarian Law, San Remo, Italy: Summary Conclusions on Temporary Protection’ 20 July 2012,
1–3.
5
Turkey has been protecting more than 3.6 million people fleeing the conflict and violence in Syria
since 2011 under a national temporary protection regime. UNHCR, ‘Syria Regional Refugee Response’,
Last updated 16 May 2019 https://​data2​.unhcr​.org/​en/​situations/​syria/​location/​113 accessed 16 May
2019.
6
UNHCR ‘Roundtable on Temporary Protection’ (n 4) 1; M Ineli-Ciger, ‘Revisiting Temporary
Protection as a Protection Option to Respond to Mass Influx Situations’ in J-P Gauci, M Giuffré and L
Tsourdi (eds), Exploring the Boundaries of Refugee Law, Current Protection Challenges (Brill 2015)
197–217.
7
Ineli-Ciger ‘Revisiting Temporary Protection’ (n 6) 198–203; M Ineli-Ciger, ‘A Temporary
Protection in Line with International Law: Utopia or Real Possibility’ (2016) 18 International
Community Law Review 278–316, 281–9.

57
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58 Research handbook on international refugee law

US and Australia with a view to clarifying, to a certain extent, the content and boundaries of
temporary protection. The first part addresses the following questions: ‘Is temporary protec-
tion still relevant for the protection of forced migrants today?’; ‘How is temporary protection
defined in supranational law and national laws?’; ‘Who is eligible for receiving temporary pro-
tection?’; ‘How long is temporary?’; ‘Which rights and entitlements do temporary protection
beneficiaries enjoy?’; and ‘When does temporary protection come to an end?’ Building on this
comparative analysis, the second part discusses the role which temporary protection plays in
protection of forced migrants today.

II. CLARIFYING THE CONTENT AND BOUNDARIES

OF TEMPORARY PROTECTION – AN OVERVIEW OF
TEMPORARY PROTECTION POLICIES IN THE EU,
TURKEY, THE US AND AUSTRALIA

No structured international legal regime governing aspects of temporary protection such as:
precise eligibility conditions for being granted temporary protection; rights and entitlements
of the temporarily protected persons; maximum time limit of protection; and termination of
temporary protection, exists.8 Since an authoritative international instrument governing many
aspects of temporary protection does not exist, States have enjoyed broad discretion with
regard to shaping and implementing their temporary protection policies and this has resulted
in different temporary protection policies existing on supranational and national level.9 This
part reviews temporary protection laws and policies in the EU, Turkey, the US and Australia
and addresses a number of questions related to temporary protection with a view to clarifying
some issues regarding the content and boundaries of temporary protection.

A. Is Temporary Protection still Relevant for the Protection of Forced Migrants

Today?

Well-known examples of temporary protection include refuge offered to Vietnamese refu-

gees in the Southeast Asian States under the Comprehensive Plan of Action10 and protection
of persons fleeing the conflict and violence in Kosovo and Bosnia in European States in
1990s.11 Temporary protection gained additional prominence with the adoption of the Council
Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection
(Temporary Protection Directive)12 in 2001. This Directive, however, to this date has not been
activated, in other words, implemented despite the number refugees and migrants arrived in

8
Ineli-Ciger ‘A Temporary Protection in Line with International Law’, ibid. 282.
9
Ibid.
10
J Fitzpatrick, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’ (2000) 94(2)
AJIL 279–306, 283.
11
Ibid. 280, 286.
12
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary pro-
tection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts
between member states in receiving such persons and bearing the consequences thereof, OJ l.212/12, 7
August 2001 (Temporary Protection Directive).

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 Temporary protection of forced migrants 59

Europe by sea reached more than one million in 2015.13 The Directive remains still unimple-
mented, at the time of writing.14 In the absence of the activation of the Temporary Protection
Directive over the past 18 years, one may question whether temporary protection is still
relevant for the protection of migrants today. However, though the Directive was never imple-
mented, the EU Member States have granted temporary protection to forced migrants includ-
ing those who had fled Iraq and Syria under municipal laws or through ad hoc measures.15 In
addition to this, temporary protection regimes affect the lives and legal status of millions of
forced migrants today: since 2011, Turkey has pursued an open door policy accompanied by
a national temporary protection regime to protect more than 3.6 million Syrians fleeing civil
war.16
Aside from Syrians receiving temporary protection in Turkey, many States including the
US and Australia17 have been implementing various temporary protection schemes to protect
forced migrants although these policies are not implemented as a response to mass influx
situations. For instance, it is estimated in 2019 that more than 419,000 people were holding
the Temporary Protected Status (TPS) in the US.18 A range of temporary protection statuses
have been introduced by the Australian government to offer time limited protection to dif-
ferent groups in need of international protection since 1990s: Australia issued Temporary
Humanitarian Concern Visas (Class UO) and the Humanitarian Temporary Concern Visas
(sub-class 449) to provide temporary refuge to persons who have fled from Kosovo and East
Timor, respectively.19 Temporary Protection Visas (sub-class 785) which were introduced
following the Tampa Incident and abolished in 2008 were reintroduced with the adoption of
the Migration and Maritime Powers Legislation Amendment20 in 2014.21

13
UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean’ http://​ data​
.unhcr​
.org/​
mediterranean/​regional​.php accessed 30 September 2016.
14
M Ineli-Ciger, ‘Time to Activate the Temporary Protection Directive: Why the Directive Can Play
a Key Role in Solving the Migration Crisis in Europe?’ (2016) 18(1) EJML 1–33.
15
ECRE, Five Years on Europe is Still Ignoring its Responsibilities Towards Iraqi Refugees
(March 2008) http://​www​.refworld​.org/​pdfid/​47e1315c2​.pdf accessed 30 September 2016, 5; European
Migration Network (EMN), Synthesis Report, ‘The Different National Practices Concerning Granting
of Non-EU Harmonised Protection Statuses’ (2010) 73; A Skordas, ‘Temporary Protection Directive
2001/55/EC’ in K Hailbronner and D Thym (eds) EU Immigration and Asylum Law. A Commentary
(Beck, Hart, Nomos 2016) 1061, 1062.
16
See for more information on the Turkish temporary protection regime: see Asylum Information
Database (AIDA), Country Report Turkey (2015) http://​ www​ .asylumineurope​.org/​
reports/​
country/​
turkey accessed 30 September 2016, 104–36; M Ineli-Ciger, ‘Implications of the New Turkish Law on
Foreigners and International Protection and Regulation No. 29153 on Temporary Protection for Syrians
Seeking Protection in Turkey’ (2014) 4(2) Oxford Monitor of Forced Migration 28–35.
17
It is noted that approximately 11,000 Temporary Protection Visas were issued by the Australian
government between 1999 and 2007. See UNSW Factsheet, ‘Temporary Protection Visas and Safe
Haven Enterprise Visas’ Last Updated April 2019 http://​www​.kaldorcentre​.unsw​.edu​.au/​publication/​
temporary​-protection​-visas accessed 16 May 2019, 2.
18
Congressional Research Service Report, ‘Temporary Protected Status: Overview and Current
Issues’ (2019) Last Updated 29 March 2019, https://​fas​.org/​sgp/​crs/​homesec/​RS20844​.pdf accessed 16
May 2019.
19
UNSW Factsheet (n 17) 2.
20
Migration Amendment (Protection and Other Measures) Act 2015 (Cth).
21
M Crock and K Bones, ‘Australian Exceptionalism: Temporary Protection and the Rights of
Refugees’ (2015) 16(1) Melbourne Journal of International Law 1–28, 18, 19.

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60 Research handbook on international refugee law

In view of the number of forced migrants receiving temporary protection today and the fact
that Turkey, which at the moment hosts the largest number of refugees in the world,22 has been
implementing a temporary protection regime to manage Syrian influx, it can be concluded
that temporary protection is still a very important and relevant framework for the protection
of forced migrants.

B. How is Temporary Protection Defined in Supranational Law and National

Laws?

Temporary protection regimes are classically implemented as emergency responses to

mass-influx situations and are mostly introduced by first countries of asylum23 and other
host States which cannot cope with large-scale influx situations by implementing individual
refugee status determination.24 For instance, protection of persons fleeing the conflict and vio-
lence in Kosovo and Bosnia in Europe in 1990s, the protection framework established by the
Temporary Protection Directive and protection of Syrians in Turkey since 2011 are examples
of this.25 The Temporary Protection Directive, which harmonized and formalized temporary
protection on supranational level, defines temporary protection as:

a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx
of displaced persons from third countries who are unable to return to their country of origin, immedi-
ate and temporary protection to such persons, in particular if there is also a risk that the asylum system
will be unable to process this influx without adverse effects for its efficient operation, in the interests
of the persons concerned and other persons requesting protection.26

A similar definition can be found in Turkish Law. The current legal framework of Syrians in
Turkey is mainly dealt with by Article 91 of the Turkish Law on Foreigners and International
Protection27 adopted in 2013 and the Temporary Protection Regulation (TPR)28 adopted and
entered in force in 2014. Turkey’s Temporary Protection Regulation defines temporary pro-
tection as:

Protection status granted to foreigners who were forced to leave their countries and are unable to
return to the countries they left and arrived at or crossed our borders in masses to seek urgent and

22
UNHCR, ‘Operational Update 2018 Highlights Turkey’ (2018) https://​ www​ .unhcr​
.org/​tr/​
wp​
-content/​uploads/​sites/​14/​2019/​02/​UNHCR​-Turkey​-Operational​-Highlights​-2018​-Final​.pdf accessed 16
May 2019, 1.
23
‘First asylum states’ or ‘first countries of asylum’ refers to ‘states that permit persons seeking
refuge to enter their territory for purposes of providing asylum’. In mass-influx situations, first coun-
tries of asylum usually are states bordering the country of origin. For a similar definition see US
Legal Dictionary online, ‘First Asylum Country’ http://​definitions​.uslegal​.com/​f/​first​-asylum​-country/​
accessed 30 September 2016.
24
J Thorburn, ‘Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe’
(1995) 7(3) IJRL 459–80, 465; UNHCR ‘Roundtable on Temporary Protection’ (n 4) 1–3.
25
Ineli-Ciger ‘A Temporary Protection in Line with International Law’ (n 7) 282.
26
Art 2 (a) of the Temporary Protection Directive.
27
Turkey, Law No. 6458 on 2013 of Foreigners and International Protection, 4 April 2013, http://​
www​.refworld​.org/​docid/​5167fbb20​.html accessed 16 May 2019.
28
Turkey, Temporary Protection Regulation, 22 October 2014, http://​ www​ .goc​
.gov​
.tr/​
files/​
_dokuman28​.pdf accessed 16 May 2019.

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 Temporary protection of forced migrants 61

temporary protection and whose international protection requests cannot be taken under individual
assessment.29

As has been mentioned, similar to the EU Temporary Protection Directive, Turkish laws
too regard temporary protection as an exceptional measure only to be implemented in mass
influx situations.
It must be noted however, not all temporary protection regimes are implemented in mass
influx situations: unlike the reviewed examples, sometimes temporary protection refers to
national protection status which grant a time-limited protection for humanitarian purposes and
these types of temporary protection status are not associated with a mass influx situation.30
The US Temporary Protected Status31 and national temporary protection status introduced
to protect asylum seekers from Iraq and Syria in Europe32 are examples of this. Section 244
of the US 1990 Act33 regulates TPS; although a clear definition of the TPS is not provided in
this Section, TPS can be defined as a humanitarian protection status which grants relief from
deportation for nationals of countries experiencing non-international armed conflict, natural
disasters, or other extraordinary circumstances that pose a serious threat to personal safety,
who are already present in the US at a certain date.34 As it is noted previously similar to the US,
a form of temporary protection exists in Australia although under Australian law and practice,
Temporary Protection Visas provide temporary resident permits to successful asylum seekers
who have arrived in Australia irregularly.35
In view of the outlined definitions, temporary protection can be defined as an umbrella
concept for all time limited protection policies providing forced migrants immediate protec-
tion from refoulement and basic minimum treatment until durable solutions are available.36

C. Who is Eligible for Receiving Temporary Protection?

Groups or persons eligible for receiving temporary protection are regulated differently in each
State practice though a pattern can be identified when various temporary protection policies
on supranational and national level are reviewed. Under EU law for instance, refugees as well
as persons fleeing armed conflict, endemic violence and systematic human rights violations
can be protected within the Temporary Protection Directive’s framework37 though persons
who will receive temporary protection is to be ultimately decided by the European Council.38

29
Art 3 of the Temporary Protection Directive.
30
Ineli-Ciger ‘A Temporary Protection in Line with International Law’ (n 7) 282.
31
S Martin, A Schoenholtz and D W Meyers, ‘Temporary Protection: Towards a New Regional and
Domestic Framework’ (1997) 12 Georgetown Immigration Journal 543–81, 547–52; A Weitzhandler,
‘Temporary Protected Status: The Congressional Response to the Plight of Salvadoran Aliens’ (1993) 64
University of Colorado Law Review 249–55, 255.
32
See footnote 15.
33
US Immigration Act of 1990, Pub. L. 101-649, Stat. (November 29, 1990).
34
Ibid., Section 244.
35
Crock and Bones (n 21) 8, 19.
36
See for similar definitions G J L Coles, ‘Temporary Refuge and the Large Scale Influx of
Refugees’ (1978) 8 Aust. YBIL 189–212, 199; Thorburn (n 24) 461; UNHCR ‘Roundtable on Temporary
Protection’ (n 4) 3.
37
Arts 2 and 4 of the Temporary Protection Directive.
38
Ibid., Art 5(1).

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62 Research handbook on international refugee law

Whereas in Turkish practice, the Turkish Council of Ministers decides who receives temporary
protection; at the time of writing “all Syrians, Palestinian refugees and Stateless persons living
in Syria” are eligible for receiving temporary protection in Turkey.39 In the US, TPS can be
granted to certain country nationals due to conditions in the country that temporarily prevent
the country’s nationals from returning safely, or in certain circumstances, where the country
is unable to handle the return of its nationals adequately.40 For a person to be granted TPS,
previously the US Attorney General and now the Secretary of the Department of Homeland
Security (SDHS) should designate a certain nationality to be eligible for TPS.41 At the
moment, nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South
Sudan, Syria, and Yemen who were in the US at the time of TPS designation, are eligible for
the TPS.42 As for the controversial Australian practice, asylum seekers who succeed in their
asylum claims and have arrived in Australia irregularly receive Temporary Protection Visas.43
In light of this review, it can be concluded that, with the exception of Australia, temporary
protection is granted not only to refugees as defined under Article 1.A(2) of the Convention
Relating to the Status of Refugees44 (the 1951 Convention) but also to a broader category of
forced migrants.

D. How Long is Temporary?

Despite all their differences, all temporary protection regimes have at least one thing in
common: providing protection on a temporary basis.45 Temporary protection regimes continue
for a limited period of time, although this period changes in each State practice. For example,
according to the Temporary Protection Directive temporary protection should continue
for a maximum of three years.46 Whereas, for now, the Turkish government has yet to set
a maximum time limit on its temporary protection regime implemented for Syrians although
this regime has been going on for more than five years.47 In the US, TPS is granted for six to 18
months48 although, this can be further extended if the situation in the country of origin does not
change.49 However, it must be noted that some TPS holders including nationals of Honduras
have been holding this status for more than 20 years.50 Many commentators argued that the
fact that TPS does not have a maximum time limit and is granted, in some cases, for more than

39
UNHCR, ‘Syrian Refugees in Turkey Frequently Asked Questions’ (January 2015) http://​www​
.unhcr​.org​.tr/​uploads/​root/​frequently​_asked​_questions​.pdf accessed 30 September 2016.
40
USCIS, ‘Temporary Protected Status’ https://​www​.uscis​.gov/​humanitarian/​temporary​-protected​
-status accessed 16 May 2019.
41
US Immigration Act of 1990, Section 244.
42
USCIS ‘Temporary Protected Status’ (n 40).
43
Crock and Bones (n 21) 8, 19.
44
UNGA, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137.
45
S M Akram and T Rempel, ‘Temporary Protection for Palestinian Refugees: A Proposal’ BADIL
Resource Center Working Paper No 5, December 2004, 1–42, 6.
46
Arts 2 and 4 of the Temporary Protection Directive.
47
Ineli-Ciger ‘Implications of the New Turkish Law on Foreigners’ (n 16) 31.
48
US Immigration Act of 1990, Section 244.1/(b)(2).
49
US Immigration Act of 1990, Section 244.1/(b)(3).
50
The termination of TPS for Honduras will not go into effect until further notice. As required by
the court-approved stipulation in Bhattarai v. Nielsen, No. 19-cv-731 (N.D. Cal). USCIS, ‘Temporary

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20 years devalues the status, leaves TPS holders in limbo and runs contrary to the objective
of the introduction of the status which was to provide temporary relief from deportation.51 As
for the practice in Australia, Australian TPVs are valid for three years and could be renewed
after this period.52 This review provides that with the exceptions such as temporary protection
of Hondurans in the US, temporary protection continues for only a limited time until durable
solutions are available.53

E. Which Rights and Entitlements do Temporary Protection Beneficiaries Enjoy?

Temporary protection schemes offer its beneficiaries protection from refoulement and basic
minimum treatment until durable solutions are available.54 This basic minimum treatment
usually consists of shelter, food, emergency medical care and means of subsistence. The
Temporary Protection Directive provides for its beneficiaries temporary residence permits,
emergency health care, shelter, social benefits, education for minors as well as limited access
to the labour market and a limited right to family reunification.55 Whereas, under Turkish law,
temporary protection beneficiaries are entitled to information and advice on the temporary
protection regime in their own language, free access to emergency health care and identity
cards which gives them a right to stay in Turkey as long as the temporary protection regime
continues.56 Temporary protection beneficiaries in Turkey also have the right to education,
the right not to be detained for the sole reason of irregular entry, the right to access to family
unification mechanisms, legal consultation and free access to translation services, rehabilita-
tion and other health services.57 The Turkish government introduced a limited access to labour
market for Syrians in Turkey in 2016.58 Similar to this practice, the US also grants TPS holders
the right to work as long as this status continues.59 TPS holders are also eligible for emergency

Protected Status Designated Country: Honduras https://​www​.uscis​.gov/​humanitarian/​temporary​

-protected​-status/​temporary​-protected​-status​-designated​-country​-honduras accessed 16 May 2019.
51
E Segerblom, ‘Temporary Protected Status: an Immigration Statue that Redefines Traditional
Notions of Status and Temporariness’ (2007) 7 Nevada Law Journal 664–84, 683; C Krombel, ‘The
Prospective Role of Temporary Protected Status: How Discretionary Designation Has Hindered
the United States’ Ability to Protect Those Displaced by Environmental Disaster’ (2012–2013) 28
Connecticut Journal of International Law 153, 163.
52
UNSW Factsheet (n 17) 1.
53
Although each state has the authority to decide how long temporary protection should continue,
as Hathaway and Neve advice, ‘in no situation should temporary protection continue indefinitely’.
J C Hathaway and R A Neve, ‘Making International Refugee Law Relevant Again: A Proposal for
Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115–211,
182.
54
Fitzpatrick (n 10) 280, 291; N Yakoob, ‘Report on the Workshop on Temporary Protection:
Comparative Policies and Practices’ (1998–1999) 13 Georgetown Immigration Law Journal 620.
55
Ineli-Ciger (n 14) 23–8.
56
of the Temporary Protection Regulation (n 28), Arts 19(5), 22, 27 and 38.
57
Ibid. Arts 5, 31, 48, 49 and 53; Ineli-Ciger ‘A Temporary Protection in Line with International
Law’ (n 7) 287.
58
See Art 5 of Regulation concerning work permits of temporary protection beneficiaries, Council
of Ministers Decision No 2016/8375, 11 January 2016, English translation not yet available, Turkish text
is available at http://​www​.resmigazete​.gov​.tr/​eskiler/​2016/​01/​20160115​-23​.pdf accessed 30 September
2016.
59
US Immigration Act of 1990, Section 244.1/(a).

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64 Research handbook on international refugee law

health care, food for women and children, school lunch and breakfast programmes, public
education, unemployment insurance and job training but not family unification.60 As for the
Australian practice, TPV holders have a right to work although they have no right of family
unification.61 This review provides that temporary protection schemes offer forced migrants
protection from refoulement and basic minimum treatment until durable solutions are availa-
ble; although temporary protection beneficiaries usually enjoy a limited set of rights compared
to the rights of refugees as secured under the 1951 Convention.62

F. When does Temporary Protection Come to an End?

The end of temporary protection is regulated differently in each practice although one thing
is common to all practices: State authorities decide when a regime is to be terminated. For
instance, according to the Temporary Protection Directive temporary protection ends when
the maximum duration specified in the Directive has been reached, or any time by a Council
decision adopted by a qualified majority.63 This Council decision must be based on ‘the estab-
lishment of the fact that the situation in the country of origin is such as to permit the safe and
durable return of temporary protection with due respect for human rights and fundamental
freedoms by Member States’ obligations regarding non-refoulement’.64 Under Turkish Law
temporary protection regime ends with a decision by the President (this was initially the
Turkish Council of Ministers but has changed when Turkey’s parliamentary system transi-
tioned into a centralized presidential system), however, the law does not provide any guidance
on issues which the Turkish President need to consider before terminating the temporary
protection regime. In the US, the SDHS has the ability to terminate the designation of TPS
for certain nationalities. This discretion is found to be quite broad since there is no mandatory
criterion for termination of the TPS outlined by the 1990 Immigration Act65 and there is no
judicial review of the SDHS’s decision on the termination.66 In the Australian practice, the
Australian government has the authority to abolish TPVs.67 This review provides that policy
makers enjoy absolute discretion on when temporary protection comes to an end.
Building on the review in this part, the next part considers the role of temporary protection
today in protection of forced migrants.

60
B Frelick and B Kohnen, ‘Filling the Gap: Temporary Protected Status’ (1995) 8(4) Journal of
Refugee Studies 339–63, 352.
61
UNSW Factsheet (n 17) 1, 2; H Esmaeili and B Wells, ‘The Temporary Refugees: Australia’s
Legal Response to the Arrival of Iraqi and Afghan Boat People’ (2000) 23(3) UNSW Law Journal
224–45; F Mansouri and M Leach, ‘The Evolution of Temporary Protection Visa Regime in Australia’
(2009) 47 (2) International Migration 101–26.
62
Yakoob (n 54).
63
Art 6 of the Temporary Protection Directive.
64
Ibid., Art 6(2).
65
1990 Immigration Act, Section 244.1/(b)(3) and Section 244.1/(b)(5).
66
Fitzpatrick (n 10) 285; Krombel (n 51) 164; Frelick and Kohnen (n 60) 354, 355.
67
UNSW Factsheet (n 17) 1–5.

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 Temporary protection of forced migrants 65

III. TEMPORARY PROTECTION AND PROTECTION OF

FORCED MIGRANTS

The question ‘what is the role of temporary protection today in protection of forced migrants?’
does not have one single answer since different temporary protection policies exist on
supranational and national level and these policies serve different purposes and have various
functions. Hence, it might be helpful to adopt inductive reasoning and first, explore the role of
temporary protection in the EU, Turkey, the US and Australia.
What is the role of temporary protection in the EU? As was noted in Part II, the Temporary
Protection Directive, which established an emergency mechanism to provide immediate and
temporary protection to displaced persons from third countries who are unable to return to
their country of origin in mass-influx situations, has not been implemented since its adoption
in 2001. Among the reasons for the non-implementation of this Directive include its complex
activation mechanism, the qualified majority requirement for its activation and the absence
of solidarity in the EU.68 I have argued elsewhere that activation of the Temporary Protection
Directive could have lead to better management of the irregular arrival of forced migrants in
Europe in 2015 and afterwards.69 If the Temporary Protection Directive is activated, for persons
determined as temporary protection beneficiaries, there would be no need for individual status
determination; these persons would have a legal status for up to three years in the Member
States and would be protected from refoulement.70 Temporary protection beneficiaries would
also have access to temporary residence permits, emergency health care, shelter, social assis-
tance, education for minors as well as limited access to the labour market and a limited right
to family reunification.71 Taking into account that certain groups such as Syrians and Iraqis
who arrived in Europe irregularly could have designated as temporary protection beneficiaries,
activation of the Temporary Protection Directive could have provided and still can provide
important benefits to both persons seeking refuge in Europe and the Member States.72
EU Member States, instead of implementing temporary protection under a formalized
regime as foreseen in the Temporary Protection Directive, have so far opted to introduce
national temporary protection status: a European Migration Network (EMN) Study indicated
that Austria, Belgium, Greece, Ireland, Italy, Poland and Spain grant temporary on protection
under national laws and administrative measures.73 Moreover, the European Council on
Refugees and Exiles (ECRE) noted in 2007 that some States granted temporary protection
to Iraqis whose asylum claims were rejected but who could not be returned due to safety
concerns.74 For instance, Sweden granted temporary protection for Iraqi asylum seekers from
northern Iraq whose applications had been rejected but who could not be forcibly returned to

68
See M Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of
the Directive and its Lack of Implementation in view of the Recent Asylum Crisis in the Mediterranean’,
in C Bauloz, M Ineli-Ciger, S Singer and V Stayanova (eds), Seeking Asylum in the European Union:
Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill 2015)
225–46.
69
Ineli-Ciger ‘Time to Activate to Temporary Protection Directive’ (n 14) 1–33.
70
Ibid., 33.
71
Ibid.
72
Ibid.
73
EMN (n 15) 28.
74
ECRE (n 15) 15, 16.

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66 Research handbook on international refugee law

Iraq in 2006.75 This brief review provides that Member States have implemented temporary
protection policies to protect forced migrants, in particular rejected asylum seekers who nev-
ertheless cannot return to the country of origin due to refoulement related concerns. Hence,
the role of temporary protection as implemented by a number of Member States resembles
that of complementary protection and humanitarian protection status. Nevertheless, it can be
concluded that due to non-implementation of the Temporary Protection Directive, temporary
protection does not have a major role in protection of forced migrants in the EU although this
could change if this Directive is activated.
Temporary protection has a different, a more prominent, role in protection of forced migrants
in Turkey. When assessing this role, the fact that Turkey maintains a geographical limitation to
the 1951 Convention should be taken into account. With the standing reservation to the 1951
Convention, Turkey is not obligated to grant refugee status to asylum seekers coming from
outside Europe.76 In line with this reservation, Turkey does not grant refugee status to those
asylum seekers coming from outside Europe who succeed in claiming asylum; instead Turkey
grants them a ‘conditional refugee status’,77 a term invented by the Turkish policy makers,
which provides a lesser protection category compared to the protection available to those
refugees coming from Europe. As was noted in Part II, the Turkish government introduced
a temporary protection regime to protect all persons fleeing armed conflict and violence in
Syria in 2011. Syrians are granted basic minimum treatment as well as access to education,
emergency health care and labour market in Turkey although many Syrians face challenges
exercising those rights and accessing protection standards as prescribed by the Turkish laws.78
Having said that, temporary protection has a crucial role in the protection of Syrians in Turkey:
in view of the reservation which Turkey maintains to the 1951 Convention and the fact that
Turkey does not have the asylum capacity to assess asylum claims of 3.6 million Syrians,79
temporary protection provides a viable way for Turkey to cope with the Syrian influx and to
ensure that Syrians receive basic minimum treatment and protection from refoulement. This is
not to say Turkish temporary protection policy is without its faults80 yet, temporary protection

75
ECRE, ‘Guidelines on Treatment of Iraqi Asylum Seekers and Refugees in Europe’ (2006) 18 (2)
IJRL 463.
76
UNHCR, ‘Convention Relating to the Status of Refugees’ ‘Declarations under section B of article
1 of the Convention’http://​www​.unhcr​.org/​cgibin/​texis/​vtx/​search​?page​=​search​&​docid​=​3d9abe177​&​
query​=​1951​%20Refugee​%20Convention accessed 30 September 2016, 3.
77
Art 62 of the Turkish Law on Foreigners and International Protection defines a conditional refugee
as:
(1) A person who as a result of events occurring outside European countries and owing to
well-founded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or
who, not having a nationality and being outside the country of former habitual residence as a result
of such events, is unable or, owing to such fear, is unwilling to return to it, shall be granted condi-
tional refugee status upon completion of the refugee status determination process.
78
See Amnesty International, ‘No Safe Refuge. Asylum-Seekers and Refugees Denied Effective
Protection in Turkey’ (2016) https://​www​.amnesty​.org/​en/​documents/​eur44/​3825/​2016/​en/​ accessed 30
September 2016.
79
Ibid.
80
See Ineli-Ciger ‘Implications of the New Turkish Law on Foreigners’ (n 16) 28–35.

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at least offers Syrians fleeing conflict and violence access to the Turkish territories hence,
safety as well as basic minimum treatment in addition to some core human rights.
One may question why temporary protection has a pivotal role in protecting forced migrants
in mass-influx situations. This is because temporary protection provides a practical and prag-
matic way to deal with mass-influx situations for host States; it lightens their asylum burden
and enables them to keep their borders to those fleeing conflict and violence.81 Temporary
protection also expands protection to forced migrants who cannot satisfy the criteria under
the 1951 Convention and it promises group-based protection when the determination of an
individual’s status proves impossible.82 Temporary protection does not require individual
status determination, it generally offers a more limited category of rights compared to the
rights of the refugees secured under the 1951 Convention, it continues for only a limited
time and repatriation is the preferred durable solution following termination of a temporary
protection regime.83 Once temporary protection is terminated following the elimination of the
cause of flight, temporarily protected persons can be repatriated as a group and this facilitates
the repatriation process for States.84 These factors make temporary protection a practical
and pragmatic solution to mass-influx situations for host States. Thus, temporary protection
lightens the burden of host States, especially first asylum States such as: Turkey and enables
them to admit forced migrants to their territories and keep their borders open.85 The recent
asylum crisis in the Mediterranean and border closures in Europe86 demonstrate how some
States have closed their borders and implemented non-entreé policies when faced with a large
influx of forced migrants. In light of such harsh reality, the fact that temporary protection and
its practical features enabled Turkey keeping its borders open and admitting forced migrants to
its territories can be accepted as an important feature that makes temporary protection a crucial
framework for the protection of forced migrants.
The US TPS has certain elements in common with other temporary protection frameworks
and these elements are the temporariness, the group protection aspect, the humanitarian char-
acter, and the objective to protect a broader category of persons than the 1951 Convention
refugees. However, TPS neither provides a right to be admitted to the US territories for large
groups in need of international protection nor is it designed to cope with mass influx situa-
tions.87 Instead, TPS is a national status that protects nationals of certain countries who are
in the US at the time of TPS designation, from being returned to their country of origin. In
that sense, TPS functions as a blanket humanitarian protection status which can be invoked
to protect a broad category of people whose countries are experiencing famine, drought, and
natural disasters as well as armed conflict and human rights violations.
Similar to TPS, Australian TPVs are not tailored to cope with mass influx situations though
different from the reviewed policies, TPVs provide protection to only refugees as defined by

81
For an analysis on the reason why temporary protection provides a viable response to mass-influx
situations see Ineli-Ciger ‘Revisiting Temporary Protection’ (n 6) 207–17.
82
Fitzpatrick (n 10) 289; Akram and Rempel (n 45) 14.
83
Ineli-Ciger ‘A Temporary Protection in Line with International Law’ (n 7) 283, 284, 285.
84
Fitzpatrick (n 10) 299.
85
Ineli-Ciger ‘A Temporary Protection in Line with International Law’ (n 7) 283–5.
86
Hurriyet Daily News, ‘European Border Closures ‘Inhumane’: UN Refugee Agency’ 23 May
2016 http://​www​.hurriyetdailynews​.com/​european​-border​-closures​-inhumane​-un​-refugee​-agency​.aspx​
?pageID​=​238​&​nID​=​99574​&​NewsCatID​=​351 accessed 30 September 2016.
87
Martin et al. (n 31) 264.

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68 Research handbook on international refugee law

Article 1 A 2 of the 1951 Convention and not other forced migrants. This changes the rationale
of temporary protection and creates problems with regard to TPVs compatibility with the 1951
Convention: it is noted by many commentators that the main function of temporary protection
visas in Australia is to deter new irregular arrival of asylum seekers to Australia since TPVs
only offer a time limited right to stay in Australia.88 In view of the fact that Australia is a party
to the 1951 Convention and it is obliged to provide rights of refugees which are foreseen in this
Convention to all refugees without discrimination, Australia’s Temporary Protection Visas
are in contrast with the 1951 Convention: in the words of Crock and Bones: ‘Far from being
a management tool for large-scale influxes, temporary protection Australian style has been
designed as a measure at best to deter and at worst to punish asylum seekers.’89 Instead of pro-
viding refuge to those forced migrants who cannot return to the country of origin, Australian
TPVs has become a tool undermining the 1951 Convention and deterring future irregular
arrival of forced migrants to Australia.
Having examined different temporary protection policies and their individual role in pro-
tection of forced migrants, what can be said regarding the role of temporary protection today
in protection of forced migrants? As has been seen, temporary protection serves a number of
purposes today: temporary protection provides an emergency and interim measure enabling
States to accommodate the large-scale arrival of forced migrants to their territories; or as in the
example of European States temporary protection status may enable rejected asylum seekers
and other forced migrants to stay in the host States until it is safe to return to the country of
origin. Unfortunately, in the hands of governments such as Australia, temporary protection
has become a policy to undermine the 1951 Convention and deprive refugees of basic human
rights.
The fact that some States such as Australia introduce and implement temporary protection
regimes not to expand protection to forced migrants who cannot satisfy the criteria under the
1951 Convention90 or to provide refuge to groups fleeing wars and violence but to undermine
the 1951 Convention does not change the principles upon which temporary protection is built:
the principle of temporary refuge and the principle of non-refoulement.91 Therefore, in line
with the noted principles, the main function of temporary protection regimes is and will be
to provide refuge to persons fleeing immediate harm to their life and physical integrity. This
means, regardless of a temporary protection regime being implemented in mass influx situa-
tions or not, temporary protection regimes offer forced migrants protection from refoulement
and basic minimum treatment until durable solutions are available.

88
Crock and Bones (n 43) 21; Esmaeli and Wells (n 61) 224–5; Mansouri and Leach (61) 31.
89
Crock and Bones (n 43) 8; see also UNSW Factsheet (n 17) 7.
90
See Fitzpatrick (n 10) 280.
91
Perluss and Hartman argued in 1985 that ‘the customary norm of temporary refuge prohibits a state
from repatriating foreign nationals who find themselves in its territory after having fled generalized
violence and other threats to their lives and security caused by internal armed conflict within their own
state’. D Perluss, J F Hartman, ‘Temporary Refuge: Emergence of a Customary Norm’ (1985–1986) 26
Virginia Journal of International Law 551–626, 554.

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IV. CONCLUSION

Temporary protection is not a new concept, yet its content and boundaries even today remain
largely undefined or unsettled. This chapter has taken a step to clarify some of these undefined
and unsettled aspects by reviewing temporary protection policies in the EU, Turkey, the US
and Australia.
Temporary protection, which is best known for its practice throughout the refugee crisis in
Bosnia and Kosovo, is still a relevant framework for the protection of forced migrants today.
Turkey has granted temporary protection to Syrians seeking refuge in its territories since 2011;
whereas various temporary protection status in Europe and the Temporary Protection Status in
the US enable forced migrants to remain in host States until it is safe for them to return to their
country of origin. Despite this relevance though, no structured international legal regime gov-
erning aspects of temporary protection such as: precise eligibility conditions for being granted
temporary protection, rights and entitlements of the temporarily protected persons, maximum
time limit of protection and termination of temporary protection, exists. Since an authoritative
international instrument governing many aspects of temporary protection does not exist, States
have enjoyed broad discretion with regard to shaping and implementing their own temporary
protection policies and this has resulted in different temporary protection policies existing on
supranational and national levels.
In the EU, due to non-implementation of the Temporary Protection Directive, temporary
protection is not playing a major role in protection of forced migrants today though some EU
Member States have been implementing temporary protection status to grant humanitarian
protection to those who cannot return to their country of origin due to conflict, violence and
human rights violations. In Turkey temporary protection is the framework which governs
protection of more than 3.6 million Syrians fleeing civil war. As the Turkish example demon-
strates, the most important role of temporary protection in protection of forced migrants today
is: enabling States especially first country of asylum to open their borders and grant refuge
to forced migrants in large-scale influx situations by lightening their burden and providing
a practical and pragmatic way to deal with mass-influx situations. In the US temporary pro-
tection enables nationals of countries experiencing famine, drought, natural disasters, armed
conflict and human rights violations that are already in the US at the TPS designation date to
remain in the US until it is safe to return. Unlike these temporary protection regimes, an excep-
tional and controversial temporary practice exists in Australia. Temporary Protection Visas
serve not to offer refuge or humanitarian protection but to undermine the 1951 Convention.
Although this use of temporary protection should be seen as an exception rather than the rule,
the main role of temporary protection today can be identified as to provide refuge to persons
fleeing immediate harm to their life and physical integrity.

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6. Burden sharing in refugee law
Eddie Bruce-Jones1

This chapter outlines some of the ways in which the concept of ‘burden sharing’ has been
considered within international refugee law. As it would be misleading to insist on too rigid
a genealogy of the term ‘burden sharing’, given the far-reaching application of the concept
within international refugee law theory and practice, the first section identifies the defining
ways in which the concept is used. The second section critically interrogates the logics that
underlie the commonplace notion of ‘the burden’ of burden sharing and postulates a different
framework for understanding the concept.

1. BURDEN SHARING – THE MAIN DEBATES

Both legal scholarship and policy analysis on contemporary challenges in refugee law have
incorporated, explicitly and implicitly, what has come to be known as the concept of burden
sharing. While burden sharing is not a terribly stable term, it has featured explicitly in policy
debates on issues ranging from climate change2 to international military defence campaigns.3
In its most general sense, burden sharing can be thought of as international co-operation for the
purpose of sharing the costs or, with a more ethics-based charge, responsibility for a common
task. However, its deployment as a term of art within refugee law has been concisely described
by Astri Suhrke,4 who notes that early proposals for international co-operation on refugee law
by Grahl-Madsen in 19835 and Hathaway and Neve in 19976 called for collective action that
would ‘strengthen the protection for refugees by reducing inequities among recipient states’.7
Other proposals that we might refer to under the rubric of burden sharing have developed in the
same context as interventions by Grahl-Madesn, Hathaway and Neve, in the form of UNHCR
resettlement schemes and similar interment schemes, which Suhrke refers to as sharing
schemes.8 Important to all of these schemes is the dual purpose that Suhrke identifies—to

1
I would like to thank Romit Bhandari for his insights in the drafting of this chapter.
2
L. Ringius, A. Torvanger and A. Underdal, ‘Burden Sharing and Fairness Principles in
International Climate Policy, International Environmental Agreements: Politics, Law and Economics
2(1), 2002.
3
T. Sandler and J. Forbes, ‘Burden Sharing, Strategy, and the Design of NATO’ (1980) 18(3)
Economic Inquiry 425–444.
4
Astri Suhrke, ‘Burden-sharing during Refugee Emergencies’ (1998) 11(4) Journal of Refugee
Studies 396–415.
5
A. Grahl-Madsen, ‘Ways and Prospects of International Co-operation in Refugee Matters’ (1983)
21(2/3) AWR Bulletin 113–18.
6
J. Hathaway and R. Alexander Neve, ‘Making International Refugee Law Relevant Again:
A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights
Journal.
7
Suhrke (n 4), 397.
8
Ibid., 397–8.

71
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72 Research handbook on international refugee law

establish the financial fairness and feasibility for receiving states to accept and, importantly,
agree to accept refugees as a means to guaranteeing the proper functioning and humanitarian
commitments of the refugee and asylum system.
Aspects of this core logic of burden sharing are pervasive in regional and international
refugee law policy and practice. Notably, notions of the ‘burden’ and the parameters of sharing
it are contingent upon context and political purpose. Despite this, there are a few main aspects
of the debates on the term ‘burden sharing’ that should feature in any summary of its contem-
porary usage.

i. Burden Sharing as Legal Obligation

In a most general way, the idea of burden sharing in the context of refugee law can be under-
stood as having a long trajectory in international law, linked to early calls for the co-ordination
of the administrative, infrastructural and other costs borne by receiving states in their admis-
sion of refugees from abroad. The logic of burden sharing has featured within the United
Nations High Commissioner for Refugees (UNHCR) system since its establishment in the
1950s, even if the term has not. This logic can be identified in the ‘task of persuading states
to co-operate in the pursuit of refugee protection and durable solutions’.9 In its preamble, the
1951 Convention Relating to the Status of Refugees (hereinafter: Refugee Convention) con-
tains language that urges states to co-operate in order to alleviate the ‘unduly heavy burdens’
that certain states may assume when fulfilling their international obligations to take in asylum
applicants. At the time it was written, the Refugee Convention was intended to respond to
refugee migration owing to events that occurred following the two world wars,10 reference to
which was included in the original definition of ‘refugee’ before it was amended by protocol
in the 1960s.11 Juss points out that the early conception of refugee protection was inwardly
focused, orientated towards regional protection that took account of cultural likeness.12 He
recounts the dangers of using cultural difference as a factor in granting asylum and, despite its
being amended, he suggests that the international regime of refugee protection continues to
programmatically exclude groups along the lines of culture and race.13 The post-amendment
formulation of the Refugee Convention, along with the harmonization of European Union
policies on migration and asylum, has marked a shift, in contemporary Europe, from a focus
on Europe’s internal borders to increased resource and investment in Europe’s external border.
Burden sharing is now discussed with emphasis on the need for EU member states to share
the costs of migration experienced most directly by states at the external border of the EU,
particularly along the Mediterranean Sea.
Goodwin-Gill and McAdam emphasize that while a general principle of co-operation exists
in international law to encourage interstate co-operation in assisting or managing the move-
ment of people across borders, such a principle does not imply a positive legal obligation to do

9
A. Betts, G. Loescher and J. Milner, The United Nations High Commissioner for Refugees
(UNHCR): The Politics and Practice of Refugee Protection, 2nd edn, Abingdon: Routledge, 2012.
10
Ibid., 8–9.
11
The pre-amended definition of the ‘refugee’ contained the clause ‘as a result of events occurring
before 1 January 1951.
12
Satvinder Juss, International Migration and Global Justice. Ashgate: Aldershot, 2006, 231–3.
13
Ibid.

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 Burden sharing in refugee law 73

so.14 Furthermore, international refugee law, insofar as it creates obligations or expectations to

uniformly distribute the costs of refugee migration, are ineffective due to lack of compliance.15
Betts and Collier cite the EU’s Common Asylum Policy as disastrous with respect to the dis-
tribution of the costs of asylum across its member states, leaving a handful of Member States
with a disproportionate amount of responsibility, and undercutting the common standards
envisioned by EU legislation.16

ii. Burden Sharing as a Discourse of Marketization

In what has become a key text on burden sharing, Hathaway and Neve establish that refugee
protection should be of a temporary nature, in order to reduce overall costs associated with
long-term migration particularly to states that receive large numbers of refugees and externally
displaced people.17 This limitation on protection operates as a concession to states, on the
presumption that states are so invested in the relative proportionality of any migration-related
increases in population and corresponding costs that, if this proportionality is compromised,
they might not offer protection. This particular rationale seems unreliable as a rule, inasmuch
as there are already great disparities in the numbers of refugees accepted by EU countries, and
although the costs of accepting refugees is not borne evenly, countries have not wholesale
withdrawn from the regimes of protection. However, market reasoning is a most centrally
operant paradigm, particularly in the European context of burden sharing. Some countries on
the Mediterranean border of the EU, which have high costs in terms of the management and
infrastructural expenditure for receiving large numbers of refugees, have at times not been
willing or able to maintain standards of protection that also uphold basic human rights (M.S.S.
v. Belgium and Greece, ECtHR 2011). Additionally, any analysis of the costs of protection
must be weighed against the benefits, and it is difficult to measure the positive effects on
states’ legitimacy that is essentially purchased when individual states agree to take in refugees
in fulfilment of their humanitarian obligations under international law or the impact (or lack
thereof) of programmatic offloading of responsibility on other states in return for financial
sums.18 Juss also points out that, ‘given the North’s history of unilaterally and improperly
off-loading most of its refugee obligations onto the South’, there is no reason to believe that
the pragmatic market analysis of North-North burden sharing will change the global dynamic
of refugee migration and state responses. According to Betts and Collier, almost 90 per cent
of the world’s refugees are in the developing world, and more than 100 times the financial
support of each refugee in the South is afforded to each refugee in the global North.19

14
Here, Goodwin-Gill and McAdam, 502, refer to the Declaration on the Principles of International
Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of
the United Nations, UNGA res. 2625 (XXV), 24 Oct. 1970: G. Goodwin-Gill and Jane McAdams, The
Refugee in International Law, 3rd edn, Oxford: Oxford University Press, 2007.
15
Alexander Betts and Paul Collier. Refuge: Transforming a Broken Refugee System. Milton
Keynes: Allen Lane, 2017, 208–9.
16
Ibid., 211.
17
Hathaway and Neve (n 6), 152–3.
18
See, Juss (n 12), 233.
19
Betts and Collier (n 15), 3.

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74 Research handbook on international refugee law

iii. Burden Sharing as Border Securitization

A third aspect of burden sharing in contemporary international refugee law is its focus
on co-operation for the purposes of integrating refugee protection into the operant border
control, including national and international mandates for peace and security. The discourse
of co-operation for the purpose of greater border security is used in Europe, for example, as
a way to ensure a large degree of free movement for citizens and certain legal residents within
the borders of the Schengen Area. Consolidated resources and attention on the EU’s external
border has, not un-controversially, been thought of as a necessary element of EU citizens’
rights to free movement. Collective refugee policies in Europe have shifted from protection to
containment of refugee migration.20
Goodwin-Gill and McAdam note that the peculiar example of the Cotonou Agreement, the
result of a partnership between the EU and African, Caribbean and Pacific (ACP) countries
aimed partly at normalizing the movement of refugees and regulating undocumented immigra-
tion, return and readmission has constituted, by some accounts, ‘the penalization of emigra-
tion, contrary to article 13(1) of the Universal Declaration of Human Rights’.21 In other words,
a practical reality of state co-operation on management of movement is that co-operation
itself is not necessarily one of legal obligation but political and financial expedience, and that
this co-operation is sometimes oriented towards the slowing of migration as opposed to the
accommodation of movement. Similarly, some argue that the Khartoum Process, an agreement
between the African Union Commission and European Commission that increases interstate
co-operation with the aim of combating irregular migration to Europe, fails to attend to the
‘need for legal migration channels’, thereby restricting freedom of movement in a most crucial
time.22 A further example of this is the EU agreement with Libya aimed at preventing the
passage of migrants across the Mediterranean into Europe, which has, according to leading
academics and activists, created a condition of extreme danger for refugees, with devastating
and fatal consequences.23

iv. Burden Sharing as Crisis Management

Conversations about the nature of burden sharing have been rekindled in the European context
in the midst of increased numbers of refugees entering Europe in what has been dubbed in
Europe a ‘refugee crisis’. In a commentary on the EU Council of Foreign Relations, commen-
tator Susi Dennison argues that, going forward, EU Member States will need to consider the
‘burden’ of burden sharing to be more than simply the size of the refugee population taken in

20
A. Hurwitz, The Collective Responsibility of States to Protect Refugees. Oxford: Oxford University
Press, 2009.
21
Goodwin-Gill and Macadam (n 14) 504 (original emphasis).
22
SOAS Centre for Human Rights Law, “Written evidence submitted by the Centre for Human
Rights Law to the UK All-Party Parliamentary Group on Sudan and South Sudan Inquiry: UK-Sudan
Relations − Consequences of Engagement.” August 2016. Available online at https://​www​.soas​.ac​.uk/​
human​-rights​-law/​file114315​.pdf. Accessed 1 June 2019.
23
Heller, Charles, Lorenzo Pezzani, Itamar Mann, Violeta Moreno-Lax and Eyal Weizman,
“Opinion: ‘It’s an act of murder’: How Europe Outsources Suffering as Migrants Drown”, New
York Times, 26 December 2018. Available online at https://​www​.nytimes​.com/​interactive/​2018/​12/​26/​
opinion/​europe​-migrant​-crisis​-mediterranean​-libya​.html. Accessed 1 June 2019.

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 Burden sharing in refugee law 75

by each state, but rather other financial and resource-intensive commitments in response to the
‘crisis,’ including

financial support and human resources for reception, accommodation and integration to external
border management; long term overseas aid to refugee camps in other regions; scaling up the resettle-
ment of refugees from camps in Syria’s neighbouring countries and diplomatic efforts on the sources
of conflicts that drive refugee flows.

This broadening of the concept of the burden, whilst it does suggest new layers of interstate
co-operation on accommodating refugee migration, does not fundamentally alter the con-
ventional conception of burden sharing—it continues to frame the burden as the net cost of
refugee migration to receiving states, in terms of capital and other resources, and including the
sharpened focus on securing the border.
A specific example of burden sharing in this context is a controversial deal that has resulted
between the EU and Turkey on the resettlement of refugees from Syria. The deal, which
stipulated that the EU would pay the Turkish government up to €6 billion to receive irregu-
lar migrants arriving in Greece, has been criticized as disregarding the question of whether
Turkey is a safe place to resettle refugees in such large numbers, on top of the fact that the deal
seems to be a type of outsourcing of the EU’s international humanitarian obligations towards
refugees.24 The deal raises the question: what is the cost of burden sharing? More specifically,
if we understand that there is a need to distribute and manage the cost of refugee migration,
how do we understand that cost, and how do we really keep the best interests of refugees at the
centre of our analysis if the analysis takes place within the framework of a market rationale?
The EU-Turkey deal is an example that urges us to think perhaps more critically about the
nature of the burden of burden sharing, including who ultimately pays the debt of burden.

v. Burden Sharing as a Commitment to Solidarity

In various contexts, the ‘sharing’ of burden sharing is meant to invest participants of the
sharing in a common project, broadly understood as a form of political solidarity. In the
context of refugee law, this can be seen in discussions around the Dublin Regulations in EU
Law. The Dublin System, which falls within the broader remit of the Common European
Asylum System, was conceived to alleviate the financial and infrastructural costs of receiving
relatively large numbers of asylum applicants on EU Member States along the external border
of the EU. While some commentators believe the most recent set of reforms to the Dublin
System promise to profoundly change the way costs and people are redistributed from border
states to internal states of the EU, mainly by way of a mandatory relocation scheme,25 others

24
See Gogou, Kondylia. ‘The EU-Turkey Deal: Europe’s Year of Shame’ Amnesty international
website, 20 March 2017. Available online at https://​www​.amnesty​.org/​en/​latest/​news/​2017/​03/​the​-eu​
-turkey​-deal​-europes​-year​-of​-shame/​, accessed 1 June 2017.; See also European Commission, Press
Release: ‘Implementing the EU-Turkey Statement’ 15 June 2016, available online at http://​europa​.eu/​
rapid/​press​-releaseMEMO​-16​-1664en​.htm, accessed 1 June 2017.
25
Pierre G. Van Wolleghem, ‘If Dublin were in place during the refugees crisis… A simulation of
the effect of mandatory relocation’ Paper, Fondazione ISMU, January 2018, 4–12. Available online at
www​.ismu​.org/​wp​-content/​uploads/​2018/​01/​VanWolleghem​_January2018​.pdf. Accessed 24 November
2018.

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76 Research handbook on international refugee law

argue that the costs planned to accompany such relocation and, in the case of the European
Commission’s version of the proposed changes, the high threshold for triggering relocation will
exacerbate the efforts to equalize the costs incurred by accommodating refugees.26 Debates on
the Dublin System and the various reforms discussed over the last 15 years have centred upon
principles of equity, though the policies adopted, once refracted through pragmatic considera-
tions and the broader panoply of political considerations, have been understood to fall short of
the aspiration of fair financial distribution and political solidarity among EU Member States,
to the detriment of those at the borders of the region. Of course, the question of solidarity in
this context is primarily one of solidarity between states, not necessarily between citizens of
Europe and people not (yet) regarded as citizens.
The question of solidarity among states points to an inevitable question—one as central to
the concept of citizenship as it is to the question of the refugee, who is excluded from citizen-
ship: to whom is solidarity best paid in the context of refugee law? Further, is resource-centric
state–state solidarity the only or most effective form of solidarity with refugees?

2. CRITICAL PERSPECTIVES ON BURDEN SHARING

4,000 people per day in the Greek islands is of course a big flow. But the number of people displaced
by conflict in the world per day last year was 42,500. We now have one-third of the population in
Lebanon that is Palestinian and Syrian; Syrians are one-fourth of the population. If one looks at other
situations in Africa and in other parts of the world, we see extremely poor countries that open their
borders and provide what they have—and even what they do not have—to support people. I will never
forget, when the Côte d’Ivoire crisis erupted, I went to Liberia to a refugee hosting village. And before
any international assistance had arrived, the people of that Liberian village were giving the refugees
coming from Côte d’Ivoire the seeds of rice that they were going to use for the next planting season.
They were condemning themselves to starve, unless international support would be given, just to allow
for the refugees to survive. This kind of example from very poor people is something that the European
Union should meditate on—with all the economic problems and difficulties and all the crises, by which
my own country was also deeply affected, we still live in a privileged part of the world. And we have
an enormous responsibility when we look around and see what is happening today around Europe,
knowing that sooner or later, if we do not do the right thing, we will pay a heavy price…
Antonio Guterres, former UN High Commissioner for Refugees, 2015
The former UN High Commissioner for Refugees, in an address to the UN, provided a window
into a possible way of thinking that stokes the fires of the imagination. What if burden sharing
were thought to be relevant not only at the point of migration, but well before it? What if
receiving states were to understand their obligations, moral and otherwise, towards those
crossing borders as extending beyond the financial and social surplus and into the depths
of infrastructure and the core of their resources? Guterres recalls an experience in which
a receiving community put itself at some risk in order to provide life-sustaining protection to
an incoming community in need, to avoid paying an even heavier price. That heavy price, in
my interpretation of Guterres’ speech, is not only a financial but a moral one. Failing to put

26
Sophie Capicchiano Young, ‘Dublin IV and EXCOM: Aspirational Blunders and Illusive
Solidarity, European Journal of Migration and Law 19, 2017, 370–95, 372–6.

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 Burden sharing in refugee law 77

refugees and their well-being at the centre of our policies on reception sustains the arbitrary
taxonomy of human lives, bound up in state thinking and the bordering practices of citizenship
and racialization. The burden, to the extent that we can speak of burdens, is not the people who
move, nor is it the cost incurred for their provisions. The burden is the border itself, which
assaults the material, social and political interconnectedness of human beings. In Guterres’
scenario, the Liberians deliberately rejected the distinction that borders imposed, risking
starvation to avoid moral impoverishment. While a conventional burden-sharing perspective
might insist that the Liberian approach is not sustainable, and that international collective
action provides a more durable response to refugee migration, the point remains that a focus
on the costs of migration may detract from the deep-rooted damage of border logic, and the
failure to identify and combat this damage may fatally condemn burden sharing to continue to
address the wrong problem.
In thinking through international co-operation for the assistance of people moving across
borders, combatting the heavy weight of border thinking means providing assurances that
national policies and international co-operation are geared to protect in the first place. The
value of protecting refugees should, accordingly, serve as the primary measure of co-operation.
In discussing the ‘principled limits to temporary protection’, Hathaway and Neve27 argue that
it should not simply become a form of warehousing, as ineffective temporary protection often
does at present. However, it is difficult to imagine what else it would realistically become, if
temporary protection, by its very nature, aims at only limited political, economic and social
integration. To keep newly arrived people separate from the labour economy and other facets
of social citizenship and participation, is ultimately a form of warehousing. Temporary
protection, whilst it arguably coaxes states to provide certain forms of relief up-front, would
trap refugees into lives lived ‘on hold’. The eventual forced return of migrants to countries of
origin would threaten to break apart supportive networks and family bonds accrued in host
countries, which will have, in the meantime, become home for these people.28 Furthermore,
the temporary status and limited opportunities for participation in social and political life
enjoyed by refugees in their new home countries underlines the separation from other citizens
and residents that they are bound to experience when not afforded the opportunity to work and
plan futures. For them, the border, as Balibar29 argues, is reproduced in everyday life, which
certainly must constitute a burden for those on the move.
So, given the violence that takes place in individual receiving states and contours the
harshness of the lives of refugees—in camps, detention centres and in the everyday state of
living lives apart, on perpetual hold—one might wonder what international co-operation is to
look like and whom it is meant to serve. Is it only capable of redoubling local inadequacies on
a global scale? My contention is that, unless we expand the notion of the burden, the moral and
financial debt (obligation) we have to remedy the historical, geopolitical violence of coloni-
alism and global capitalism, sharing the short-term financial costs will simply proliferate and
deepen long-term financial and moral costs—the ‘heavy price’. An example of the price can
be seen in the UK government’s Hostile Environment Policy of 2012, since rebranded as the
Compliant Environment Policy, the aim of which has been to make the UK as unappealing

27
Hathaway and Neve (n 6), 119, 181.
28
Juss (n 12), 235–7.

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78 Research handbook on international refugee law

as possible to those without valid leave to remain status. The policy encompasses a set of
immigration-like regulations embedded into the laws and policies governing domestic social
life in the UK, including in housing, education, health care and other basic human services.30
The policy, its aggressive name and its modus operandi of deterring people from wanting
to move to or remain in the UK by excluding them in some cases to the point of destitution,
severe ill-health and family breakdown, is virtually the opposite of a humanitarian-centric
approach to immigration and asylum policy. The policy exacerbates the violence of bordering,
and results in what Sarah Keenan refers to as ‘a border in every street’.31 This heavy price of
bordering, then, is not only the moral cost that we bear in the global North, but it demonstrates
that if there is a refugee crisis, we have co-designed it—this gradual and quotidian grinding
down of human beings.
In International Migration and Global Justice, Juss offers several critiques of Neve and
Hathaway’s significant article on burden sharing. These critiques centrally ask the question
of whether Neve and Hathaway’s idea of what burden sharing should look like is morally
defensible on that basis that it promotes the marketization of racial and religious preferences32
and allows for states to contract out of their responsibilities precisely because the burden of
migration is understood as an expendable commodity.33 Juss also suggests, in his analysis, that
refugee law should be incorporated into larger frameworks of immigration law and human
rights law in order to re-orient the welfare of the refugee into the central reasoning behind
programmes of international co-operation.34
Alongside the numerous operational and practical criticisms that Juss levies against the
proposal by Hathaway and Neve, he offers a framework critique that is particularly notewor-
thy. This is the idea that it is impossible, and in Juss’ words, impracticable, to distinguish
between the fiscal ‘burdens’ and the human ‘responsibilities’ that must be shared.35 He notes
that Hathaway and Neve presume different modes of analysing the fiscal and human (and
human-rights oriented) issues in the context of international co-operation on asylum. In my
view, such an approach would fail to adequately apprehend the complexity of the issue, since,
as we have seen with the EU-Turkey deal, the apportionment of fiscal costs has real and imme-
diate impacts on human rights and real people’s lives.
An extension of the market rationale of burden sharing is the idea of capacity-generation
in receiving states. The idea is that, as space and resources are limited, states ‘must facilitate
repatriation to regenerate asylum capacity’.36 This implies that states must effectively put

30
UK Parliament, ‘Impact of the Hostile Environment Policy’ UK Parliament Research Briefing, 24
June 2018. Available online at http://​researchbriefings​.files​.parliament​.uk/​documents/​LLN​-2018​-0064/​
LLN​-2018​-0064​.pdf. Accessed 24 November 2018; Liberty. ‘A Guide to the Hostile Environment’.
April 2018. Available online at https://​www​.libertyhumanrights​.org​.uk/​sites/​default/​files/​HE​%20web​
.pdf. Accessed 24 November 2018.
31
S. Keenan, ‘A Border in Every Street.’ The Disorder of Things (Blog). 29 June 2017. Available
online at https://​thedisorderofthings​.com/​2017/​06/​29/​a​-border​-in​-every​-street/​. Accessed 23 November
2018. See also E. Bruce-Jones, ‘Refugee Law in Crisis: Decolonizing the Architecture of Violence, in
Mary Bosworth et al. (eds), Race, Criminal Justice and Migration Control. Oxford: Oxford University
Press, 2018, 176–93.
32
Juss (n 12), 229–30.
33
Ibid., 226.
34
Ibid., 245–6.
35
Ibid.
36
Hathaway and Neve (n 6), 172.

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 Burden sharing in refugee law 79

limits on refugee protection now to ensure the ability to protect later, creating a sustainable
environment for cycles of movement across borders. This type of pragmatism seeks, at its
best, to make the most of the economy of refugee protection by optimizing the potential of
the system to ‘generate capacity’ for the cycles of movement. However, a clear critique of the
assumption that capacity is scarce is that, as a market rationale, capacity is not the issue, but
rather the fear of swamping is the issue. The issue is the fear that movement to the global North
is limitless, and that heightened rates of immigration pose an existential threat to the cultural
integrity of receiving states. The issue, then, is potentially as social as it is financial, and this
further demonstrates the inability to extract fiscal issues from social ones.
Harsha Walia shows us that, beyond the interrelatedness between fiscal policies and lived
realities, there is also a relationship between historical and geopolitical formations of power
and the systematic subjugation of groups of people. In Border Imperialism, Walia describes
how Western regimes ‘create mass displacement’ and deploy border controls within their
territories against those on the move as a result of the ‘ravages of capital and military occu-
pations’.37 She argues that, in this way, and with a view toward colonial relations, Western
borders have generated ‘cycles of mass displacement’.38 Compare this view to the fundamen-
tally different idea promulgated in contemporary refugee policy which would understand
‘push factors’ to mean economic, social and political turmoil that is understood to be histori-
cally and geographically endemic to the global South, rendered in public discourse in isolation
to the trans-historical legacy of Western colonialism; equally, compare this to the concept of
‘pull factors’, a term used in immigration reform around the UK Hostile Environment Policy
to describe the allure of living in the UK, which some argue has overshadowed the reality of
fleeing persecution in the popular focus on so-called illegal immigration.39 Walia and others
note that the investment in borders in Western states is a project that involves policies of polic-
ing, deportation and systemic disenfranchisement, fuelling movement in multiple directions,
and this ‘cycle’ is not a tangential but a central part of the dynamic between border thinking
and migration of vulnerable populations.40
The external border of the EU is a contemporary example of co-operation along interna-
tional borders that leads to sharpened forms of violence in the service of imperial formations.
The EU’s external border is managed by Member States that contribute to Frontex, the
European Border and Coast Guard Agency (Regulation (EU) 2016/1624), which exists as
a way to secure the external border of Europe under the Community Border Code. In some
ways, Frontex represents the apex of burden sharing in a conventional sense—given the five
guiding aspects of legal obligation, market discourse, border securitization, crisis management
and international solidarity. However, it has operated mainly in a space that, in the context of
asylum law, has been synonymous with the constant and deadly peril of the Mediterranean
Sea. The humanitarian assistance of the European Border Agency, while it has improved

37
Walia (n 29), 5; see also Walter Rodney, How Europe Underdeveloped Africa. London:
Bogle-L’Ouverture, 1973.
38
Walia, ibid; see also Christina Sharpe, In the Wake: On Blackness and Being. Chapel Hill: Duke
University Press, 2016.
39
Sally Hamwee, ‘Talking about refugee “pull factors” willfully misses the point’ The Guardian, 10
May 2016. Available online at https://​www​.theguardian​.com/​commentisfree/​2016/​may/​10/​refugee​-pull​
-factors​-uk​-immigrants. Accessed 23 November 2018.
40
S. Mezzadra and B. Neilson, Border as Method, or the Multiplication of Labor. London: Duke
University Press, 2013.

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80 Research handbook on international refugee law

in recent years, is insufficient because of the competing aim of securing the external border
and owing to a failure for co-operative efforts to be oriented towards the larger picture of the
violence faced by refugees whilst on the move and at the border.
It bears considering that, alongside pragmatic policies that attempt to address the failures of
contemporary burden or responsibility sharing approaches in the global North, we must think
creatively about the limits of current regimes of international migration and border-thinking
that generate the extreme precarity of people on the move. In re-evaluating the ethics of burden
sharing and contemplating a shift from inefficient co-operation to more co-operation of better
quality and effectiveness, we must also think about what we understand the aims and content
of the co-operation to be and what the burden is before we can reliably ascertain by what
standard our approaches can be deemed ethically sound.

BIBLIOGRAPHY

Books and Journal Articles

Balibar, E., ‘Outlines of a Topography of Cruelty: Citizenship and Civility in the Era of Global Violence’,
Constellations 8(1), 2001, 15–29.
Betts, A. “Public Goods Theory and the Provision of Refugee Protection: The Role of the Joint-Product
Model in Burden-Sharing Theory” in Journal of Refugee Studies 16(3), 2003.
Betts, Alexander and Paul Collier. Refuge: Transforming a Broken Refugee System. Milton Keynes:
Allen Lane, 2017.
Betts, A., Loescher and Milner, The United Nations High Commissioner for Refugees (UNHCR): The
Politics and Practice of Refugee Protection, 2nd edn, Abingdon: Routledge, 2012.
Bruce-Jones, E. ‘Refugee Law in Crisis: Decolonizing the Architecture of Violence’, in Mary Bosworth
et al. (eds), Race, Criminal Justice and Migration Control. Oxford: Oxford University Press, 2018,
176–93.
Goodwin-Gill, G. and McAdams, J. The Refugee in International Law, 3rd edn, Oxford: Oxford
University Press, 2007.
Grahl-Madsen, A., ‘Ways and Prospects of International Co-operation in Refugee Matters,’ AWR
Bulletin 21(2/3), 1983, 113–18.
Hathaway, J. and R. A. Neve, ‘Making International Refugee Law Relevant Again: A Proposal for
Collectivized and Solution-Oriented Protection’ in (1997) 10 Harvard Human Rights Journal.
Hurwitz, A., The Collective Responsibility of States to Protect Refugees. Oxford: Oxford University
Press, 2009.
Juss, S., International Migration and Global Justice. Ashgate: Aldershot, 2006.
Mezzadra, S. and Neilson, B., Border as Method, or the Multiplication of Labor. London: Duke
University Press, 2013.
Ringius, L., Torvanger, A. and Underdal, A. “Burden Sharing and Fairness Principles in International
Climate Policy,” in International Environmental Agreements: Politics, Law and Economics 2(1), 2002.
Rodney, W., How Europe Underdeveloped Africa. London: Bogle-L’Ouverture, 1973.
Sandler, T. and Forbes, J., ‘Burden Sharing, Strategy, and the Design of NATO’ in Economic Inquiry
18(3), 1980, 425–44.
Sharpe, C., In the Wake: On Blackness and Being. Duke University Press: Chapel Hill, 2016.
Suhrke, A., Burden-sharing during Refugee Emergencies’ in (1998) 11(4) Journal of Refugee Studies
396–415.
Thielemann, E., ‘Why Asylum Policy Harmonisation Undermines Refugee Burden-Sharing’ (2004) 6
European Journal of Migration and Law 47–65.
Walia, H., Undoing Border Imperialism. AK Press: California, 2014.
Young, Sophie Capicchiano. ‘Dublin IV and EXCOM: Aspirational Blunders and Illusive Solidarity’
(2017) 19 European Journal of Migration and Law 370–95.

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 Burden sharing in refugee law 81

Cases

M.S.S. v. Belgium and Greece, European Court of Human Rights Grand Chamber, Application No.
30696/09, 2011.

Legislation

Regulation (EC) No 562/2006 (Community Borders Code).

Regulation (EU) 2016/1624 (European Border and Coast Guard).

Online Materials

Dennison, Susi. Commentary: A new deal on EU burden sharing. European Council on Foreign
Relations website, 3 March 2016, available online at http://​www​​.ecfr​​.eu/​article/​commentary​​_a​​_new​​
_deal​​_on​​_eu​​_burden​​_sharing, Accessed 1 June 2017.
European Commission, Press Release: ‘Implementing the EU-Turkey Statement’ 15 June 2016, avail-
able online at http://​europa​​.eu/​rapid/​press​​-release​​_MEMO​​-16​​-1664​​_en​​.htm, accessed 1 June 2017.
Gogou, Kondylia. ‘The EU-Turkey Deal: Europe’s Year of Shame’ Amnesty international website, 20
March 2017. Available online at https://​www​​.amnesty​​.org/​en/​latest/​news/​2017/​03/​the​​-eu​​-turkey​​-deal​​
-europes​​-year​​-of​​-shame/​, accessed 1 June 2017.
Guterres, Antonio. European Parliament AFET/DROI/LIBE committees – Joint Event on Migration
‘Respecting Human Rights in the Context of Migration Flows in the Mediterranean’, remarks by
António Guterres, United Nations High Commissioner for Refugees, Brussels, 15 September 2015.
Available online at http://​www​​.unhcr​​.org/​afr/​admin/​hcspeeches/​55fbbdbf9/​european​​-parliament​​
-afetdroilibe​​-committees​​-joint​​-event​​-migration​​-respecting​​.html. Accessed 1 June 2017.
Heller, Charles, Lorenzo Pezzani, Itamar Mann, Violeta Moreno-Lax and Eyal Weizman, ‘Opinion:
‘It’s an act of murder’: How Europe Outsources Suffering as Migrants Drown’, New York Times, 26
December 2018. Available online at https://​www​​.nytimes​​.com/​interactive/​2018/​12/​26/​opinion/​europe​​
-migrant​​-crisis​​-mediterranean​​-libya​​.html. Accessed 1 June 2019.
Hamwee, Sally. ‘Talking about refugee “pull factors” willfully misses the point’ The Guardian, 10 May
2016. Available online at https://​www​​.theguardian​​.com/​commentisfree/​2016/​may/​10/​refugee​​-pull​​
-factors​​-uk​​-immigrants. Accessed 23 November 2018.
Keenan, Sarah. ‘A Border in Every Street.’ The Disorder of Things (Blog). 29 June 2017. Available
online at https://​thedisorderofthings​​.com/​2017/​06/​29/​a​​-border​​-in​​-every​​-street/​. Accessed 23
November 2018.
Liberty. ‘A Guide to the Hostile Environment’. April 2018. Available online at https://​ www​​
.libertyhumanrights​​.org​​.uk/​sites/​default/​files/​HE​​%20web​​.pdf. Accessed 24 November 2018.
SOAS Centre for Human Rights Law, ‘Written evidence submitted by the Centre for Human Rights Law
to the UK All-Party Parliamentary Group on Sudan and South Sudan Inquiry: UK-Sudan Relations
− Consequences of Engagement.’ August 2016. Available online at https://​www​​.soas​​.ac​​.uk/​human​​
-rights​​-law/​file114315​​.pdf. Accessed 1 June 2019.
UK Parliament. ‘Impact of the Hostile Environment Policy’. UK Parliament Research Briefing, 24 June
2018. Available online at http://​researchbriefings​​.files​​.parliament​​.uk/​documents/​LLN​​-2018​​-0064/​
LLN​​-2018​​-0064​​.pdf. Accessed 24 November 2018.
Van Wolleghem, Pierre G. ‘If Dublin were in place during the refugees crisis… A simulation of the effect
of mandatory relocation;, Paper, Fondazione ISMU, January 2018. Available online at www​​.ismu​​
.org/​wp​​-content/​uploads/​2018/​01/​VanWolleghem​​_January2018​​.pdf. Accessed 24 November 2018.

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7. The rise of consensual containment:
from ‘contactless control’ to ‘contactless
responsibility’ for migratory flows
Mariagiulia Giuffré and Violeta Moreno-Lax1

1. INTRODUCTION: THE FALL OF THE ‘DETERRENCE

PARADIGM’?

The means through which migratory movements have been ‘managed’ since the fall of the
Berlin wall have been mostly characterised by States of destination’s self-serving interpreta-
tion of sovereignty and national interest. Attempts at internationalising migration governance
on a supra-national scale have failed.2 And this affects also efforts to govern forced displace-
ment and the administration of asylum and refugee protection at the global level. Cooperative
initiatives geared towards the realisation of the ultimate goals of the 1951 Refugee Convention
(CSR51) have been tabled at different instances,3 but, beside episodic exceptions, they have
not crystallised in a new paradigm.4
The promotion of solidarity and responsibility sharing is one of the key tenets of the 2016
Agenda for Humanity,5 underpinning also the New York Declaration for Refugees and
Migrants.6 The latter propounds a change towards a ‘people-centred’ system based on ‘shared
responsibility’ to manage displacement, recognising that there are ‘varying capacities and
resources to respond to these movements…among countries of origin or nationality, transit

1
This chapter was last reviewed on 1 March 2017 and reflects the relevant law, practice, and litera-
ture as it stood at the time. All websites cited were last accessed on that same date. An earlier version was
submitted to UNHCR, as part of the Thematic Discussions leading to the adoption of the Global Compact
on Refugees, at: https://​www​.unhcr​.org/​5a056ca07​.pdf
2
Gosh (ed.), Managing Migration (OUP, 2000); and Betts (ed.), Global Migration Governance
(OUP, 2011).
3
See, e.g., UNHCR, ‘Convention Plus’ initiative at: http://​ www​ .unhcr​.org/​
uk/​
convention​ -plus​
.html. For commentary and further references, see Zieck, ‘Doomed to Fail from the Outset? UNHCR's
Convention Plus Initiative Revisited’ (2009) 21 IJRL 387.
4
See, e.g., Declaration and Comprehensive Plan of Action of the International Conference on
Indo-Chinese Refugees, Report of the Secretary-General (A/44/523), 22 Sept. 1989; UNHCR EXCOM,
The Comprehensive Plan of Action for Indo-Chinese Refugees (EC/46/SC/CRP.44), 19 Aug. 1996. For
a recent analysis, see Ineli-Ciger, ‘An Examination of the Comprehensive Plan of Action as a Response
to Mass Influx of “Boat People”: Lessons Learnt for a Comprehensive Approach to Migration by Sea’, in
Moreno-Lax and Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach
(Brill, 2016) 408.
5
One Humanity: Shared Responsibility, Agenda for Humanity, Annex to the Report of the
Secretary-General for the World Humanitarian Summit (A/70/709), 30 Jan. 2016, p. 1, at: https://​
sustainabledevelopment​.un​.org/​content/​documents/​2282agendaforhumanity​.pdf.
6
New York Declaration for Refugees and Migrants (A/RES/71/1), 3 Oct. 2016, at: http://​www​
.unhcr​.org/​uk/​57e39d987.

82
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 The rise of consensual containment 83

and destination’.7 The objective is to attain a ‘win-win-win’ solution, which benefits not only
countries of destination, but also the other States in the displacement chain as well as the dis-
placed themselves. But, for the time being, this is still aspirational. The definitive shape of the
plan has been moulded into two Global Compacts, one on refugees and another one for safe,
orderly and regular migration, adopted in 2018, in the form of soft-law commitments.8
Meanwhile, international cooperation regarding the movement of refugees has been
piecemeal and ad hoc, especially on the cross-regional scene. Efforts have mostly been
unilateral or intra-regional and concentrated on the preservation of sovereignty and national/
regional interest in what some have called a ‘market of deflection’.9 So, to avoid becoming
comparatively more attractive to protection seekers a form of negative regulatory competition
has taken hold.10 This has been the prevailing approach, especially within the EU, where the
Dublin regime has ignited a race to the bottom in protection levels across Member States,11
making domestic asylum systems just about (if at all) in line with international standards, to
avoid creating a ‘pull factor’.12
The stance is premised on the absence of an obligation on the part of countries of destination
to allow entry into their territories for the purpose of seeking asylum and the lack of a cor-
relative right benefiting the displaced to demand access.13 As a result, States the world over,
including in the EU, have erected barriers to (mixed) migration flows, encompassing measures
of non-entrée,14 such as visas, carrier sanctions, extraterritorial patrolling of blue borders, ‘safe
third country’ devices, and accelerated removal processing, impeding legal arrival, hindering
access to status determination, and fostering return.15 Jointly, these measures have been

7
Ibid., para. 11.
8
UNGA, High-Level Summit to Address Large Movements of Refugees and Migrants, Commitments,
16 Sept. 2016, at: http://​refugeesmigrants​.un​.org/​declaration. See also, The Intergovernmental Conference
to Adopt the Global Compact for Safe, Orderly and Regular Migration, 10–11 December 2018,
Marrakech, Morocco, at: https://​refugeesmigrants​.un​.org/​migration​-compact. On the Global Compact on
Refugees, refer to UNHCR, ‘Global Compact on Refugees’, https://​www​.unhcr​.org/​towards​-a​-global​
-compact​-on​-refugees​.html; Report of the United Nations High Commissioner for Refugees, ‘Global
Compact on Refugees’, General Assembly, Seventy-third Session, Supplement No. 12 (A/73/12 (Part
II), https://​www​.unhcr​.org/​gcr/​GCR​_English​.pdf.
9
Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of
Deflection (Brill, 2000).
10
Barbou des Places and Deffains, ‘Cooperation in the Shadow of Regulatory Competition: The
example of Asylum legislation’ (2004) 23 International Review of Law and Economics 345.
11
Barbou des Places, Evolution of Asylum Legislation in the EU: Insights from Regulatory
Competition Theory, European University Institute Working Paper RSC n° 2003/16.
12
The failings of the Dublin system have prompted several waves of reform. A new Dublin IV
Regulation is currently under negotiation, which, if adopted, will mark a historic turn towards ‘normal-
ised coercion’ within the Common European Asylum System (CEAS). See Guild et al., New Approaches,
Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International
Protection, PE 509.989 (European Parliament, 2014); Guild et al., Enhancing the Common European
Asylum System and Alternatives to Dublin, PE 519.234 (European Parliament, 2015); and Maiani, The
Reform of the Dublin III Regulation, PE 571.360 (European Parliament, 2016).
13
Hailbronner, ‘Comments on the Right to Leave, Return and Remain’, in Gowlland-Debbas (ed.),
The Problem of Refugees in the Light of Contemporary International Law Issues (Martinus Nijhoff,
1996) 109.
14
Hathaway, ‘The Emerging Politics of Non-Entrée’ (1992) 91 Refuge 40.
15
Gammeltoft-Hansen, Access to Asylum (CUP, 2011); Den Heijer, Europe and Extraterritorial
Asylum (Hart, 2012); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017).

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84 Research handbook on international refugee law

deemed to coalesce in a model of ‘cooperative deterrence’,16 whereby countries at different

points of the displacement chain align their policies, more or less formally and directly, to
repeal unwanted flows.
Against this background, this chapter will examine new and different forms of ‘contactless’
control of cross-border migration that are being employed, particularly by the EU and its
Member States, during the so-called ‘refugee/migration crisis’, in seeking not only to deter,
but also to pro-actively restrain the onwards movement of refugees and migrants to European
territory. In so doing, it will assert the emergence of a novel variant of the ‘deterrence par-
adigm’, dominating for the last 30 years,17 characterised by a return to strategies of outright
containment—as witnessed after the Cold War years during the genocidarian conflicts in
Rwanda and Yugoslavia18—but with a ‘deputational twist’, consisting in the inducement by
countries of destination of countries of transit, so that the latter exert the necessary control in
the former’s stead and/or for their benefit. It will be demonstrated how higher levels of sophis-
tication in EU Member States’ responses to unwanted arrivals have given rise to a transition
from the well-documented and thoroughly discussed model of unilateral/passive deterrence
to orchestrated forms of consensual and pro-active containment of trans-boundary flows.
Persuasion, via political and financial promises of fund transfers, visa facilitation, or accession
talks, has been mobilised on a grand scale by the EU Member States so as to ensure the com-
mitment in exchange by key transit countries to the containment of potential asylum seekers
within their jurisdictional domain. Thereby, the global South is being impelled to deal not
only with ‘their own refugees’, but with those unwanted by the North as well—they are being
financed for ‘pull-backs’, detention camps, and pre-emptive rescue at sea, which transform
(pre-)entry controls (by destination countries) into exit vetting (by countries of departure) that
negates the right to leave and forecloses refoulement responsibilities.19 Although this move has
gained traction also in other parts of the world, space constraints dictate an exploration limited
to the European context, as one key illustration of the wider trend.
Whilst in 2016 the number of refugees crossing the sea to reach Europe plunged to
364,000 (by contrast to the one million registered in 201520), the number of those who died
in the Mediterranean (7,495 persons) rose sharply.21 A significant drop in arrivals to Greece
outweighed record migration to Italy, as a consequence of the diversion effect to the Central
Mediterranean route of the EU-Turkey Statement (March 2016) and tighter border controls in

16
Hathaway and Gammeltoft-Hansen, ‘Non-Refoulement in a World of Cooperative Deterrence’
(2014) 53 Columbia Journal of Transnational Law 235.
17
Cf. Gammeltoft-Hansen and Tan, ‘Beyond the Deterrence Paradigm in Global Refugee Policy’
(2016) 39 Suffolk Transnational Law Review 637; and Gammeltoft-Hansen and Tan, ‘The End of the
Deterrence Paradigm? Future Directions for Global Refugee Policy’ (2017) 5 Journal on Migration and
Human Security 28.
18
Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11 Journal of
Refugee Studies 350.
19
Markard, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’
(2016) 27 EJIL 591.
20
UNHCR, ‘Over one million sea arrivals reach Europe in 2015’, 30 Dec. 2015, at: http://​www​
.unhcr​.org/​afr/​news/​latest/​2015/​12/​5683d0b56/​million​-sea​-arrivals​-reach​-europe​-2015​.html.
21
DPA International, ‘2016 saw sharp drop in Mediterranean migrants, surge in deaths’, 6 Jan. 2017,
at: http://​www​.dpa​-international​.com/​topic/​urn:​newsml:​dpa​.com:​20090101:​170106​-99​-774948/​amp.

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 The rise of consensual containment 85

the Western Balkans.22 To address what has been defined as a ‘migration/refugee crisis’, the
EU has opted for a strategy based on the full externalisation of migration and border controls
aimed to eradicate unauthorised access to Europe, mostly through dedicated financial and tech-
nical support to third countries of origin or transit. The so-called EU-Turkey deal to halt the
flow of irregular migrants to Greece, the EU-Libya cooperation at maritime and land borders,
talks on extraterritorial processing camps in neighbouring States, information campaigns
in third countries on the ‘risks’ of irregular migration, and the Italy-Libya Memorandum
of Understanding (MoU)—reviving the Berlusconi-Gaddafi Treaty of Friendship—to train,
equip and fund the Libyan Coastguard (partly through EU resources) are but a few examples of
an outright containment scheme designed to completely outsource controls and thwart depar-
tures. As pointed out above, the focus is no longer on preventing arrivals, impeding access to
determination procedures, or deflecting flows to other destinations, but on forestalling exit.
These are no ordinary measures of non-entrée. Instead, they are targeted means frustrating the
exercise of the right to leave—nullifying the refugee’s flight.
Being often trapped in conflict-ravaged and/or unstable States and exposed to risks of
ill-treatment, persecution, and exploitation, the question arises over how far these newly fash-
ionable policies can reasonably be pursued. These new forms of ‘contactless control’, prac-
ticed on demand by partner countries, far outside the geographical European space, present
novel problems of conformity with international human rights standards and determination of
responsibility for non-compliance. Whilst offshore controls have been in existence in various
guises for some time, the strategy launched by the EU in 2016 represents a powerful shift in
asylum and migration policy and practice. By transferring the coercive management of exiles
to third countries, it aims to eliminate any physical contact, direct or indirect, between refu-
gees and the authorities of would-be destination States. The ultimate goal is thus to sever any
jurisdictional link with EU countries, in an attempt to elude any concomitant responsibility.
In revealing the hidden objective of these new measures, this chapter will first investigate
whether the implementation of transferred means of migration control may hamper refugee
rights. It will then be questioned whether these practices of ‘contactless control’ do indeed
insulate EU countries from accountability for violations suffered by migrants and refugees in
third countries, or rather whether they do engage the international responsibility of European
States for breaches of human rights obligations, such as the principle of non-refoulement and
the right to leave any country. Section 2 will thus map out the different measures of contactless
control, focusing on those instruments whose implementation raises particular concerns for
the impact they might have on the rights of those in need of international protection. Attention
will be placed particularly on the EU-Turkey deal, the Italy-Libya MoU, and the interrelation
between information campaigns in third countries and readmission agreements. Section 3
will briefly analyse the two rights (non-refoulement and the right to leave) against which the
compatibility of ‘contactless controls’ with refugee protection standards should primarily be
appraised. Lastly, while Section 4 will engage in a critical assessment of the key measures of
containment beyond borders, Section 5 will elaborate on extraterritorial ‘contactless jurisdic-
tion’, the role of knowledge, and the extent of State responsibility under international law.

22
EU-Turkey Statement, 18 March 2016, at: http://​www​.consilium​.europa​.eu/​en/​press/​press​
-releases/​2016/​03/​18​-eu​-turkey​-statement/​.

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2. INSTANCES OF (EXTERNALISED) ‘CONTACTLESS

CONTROL’

The European Commission proposal to set up, in June 2016, a new Migration Partnership
Framework (MPF)23 was shortly thereafter endorsed by the European Council.24 The pro-
claimed objective of the MPF is to strengthen relationships with third countries to better
manage migration. Short-term actions are presumably directed to save lives at sea and in the
desert; dismantle traffickers and smugglers’ networks; increase returns of those not entitled to
stay; avoid dangerous journeys; and open up legal pathways to Europe for persons in need of
protection. In the long term, the main goal is to address the root causes of irregular migration
and forced displacement by supporting the economic, social, and political development of
third countries. However, the EU and its Member States also make cooperation on devel-
opment conditional on third countries’ effective implementation of exit controls to prevent
departures to Europe and halt new arrivals on their own territory. As affirmed by the European
Council, the new MPF is based on ‘effective incentives and adequate conditionality’. So,
‘cooperation on readmission and return will be a key test of the partnership between the EU
and [its] partners’.25
Building on the MPF, on 3 February 2017, the European Council has issued a Declaration
(Malta Declaration) concerning the external aspects of migration policy and the
Central-Mediterranean route.26 It states that the EU primary goal is to train and equip the
Libyan Coastguard in order to bolster its capacity to stop people smugglers, increase search
and rescue operations, and prevent the departure of unseaworthy boats heading toward Europe.
If implemented, migrants and refugees will be caught up in a web of ‘consensual contain-
ment’ performed by intermediary countries on behalf of (or, at least, to the advantage of) EU
Member States.
The MPF and the Malta Declaration constitute the background against which the EU strat-
egy of ‘consensual containment’ is taking shape, making financial and political support as
well as cooperation on international development conditional upon third countries’ effective
implementation of exit controls and the acceleration of readmission and return schemes. On
this basis, the following three sub-sections will analyse three main examples of externalised
‘contactless controls’, setting the scene for the assessment of the potential impact of these
practices on the rights of those who intend to leave their countries to seek protection or a better
lot abroad.

23
Establishing a new Partnership Framework with third countries under the European Agenda on
Migration, COM(2016) 385 final, 7 June 2016.
24
European Council Conclusions, 28 June 2016, at: http://​www​.consilium​.europa​.eu/​press​-releases​
-pdf/​2016/​6/​47244643506​_en​.pdf. On the EU Migration partnership Framework and EU cooperation
with Turkey and Libya, see also Giuffré, ‘From Turkey to Libya: The EU Migration Partnership from
Bad to Worse’, Eurojus, 20 Mar. 2017, at: http://​rivista​.eurojus​.it/​from​-turkey​-to​-libya​-the​-eu​-migration​
-partnership​-from​-bad​-to​-worse/​.
25
Council of the EU, External aspects of migration - Monitoring results, 4 Jul 2016, at: http://​data​
.consilium​.europa​.eu/​doc/​document/​ST​-10822​-2016​-INIT/​en/​pdf.
26
Malta Declaration by the members of the European Council on the external aspects of migration:
addressing the Central Mediterranean route, 3 Feb. 2017, at: http://​www​.consilium​.europa​.eu/​en/​press/​
press​-releases/​2017/​01/​03​-malta​-declaration/​.

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2.1 The EU-Turkey Deal

On 18 March 2016, the EU and Turkey reached an agreement—taking the form of a press
‘statement’ intended not to produce legally binding effects—whereby Turkey accepted ‘rapid
return of all migrants not in need of international protection crossing from Turkey to Greece
and to take back all irregular migrants intercepted in Turkish waters’.27 The arrangement
provides that migrants arriving in Greece will be duly registered and their asylum applications
processed in accordance with the EU Asylum Procedures Directive 2013/32/EU.28 Moreover,
it establishes that for every Syrian being readmitted to Turkey from Greece, another Syrian
will be resettled from Turkey to the EU, prioritising those who have not previously entered or
tried to enter the EU irregularly. However, what is highly relevant to our inquiry is that Turkey
ought to take any measures necessary to prevent new irregular arrivals on Greek islands and
to cooperate with the EU to this end. In turn, EU Member States will both accelerate the ful-
filment of the visa liberalisation roadmap with a view to lifting visa requirements for Turkish
citizens and speed up the disbursement of EUR 6 billion to Turkey under a dedicated Facility
for Refugees.
A EU Special Coordinator has been nominated by the President of the European
Commission (Director General Maarten Verwey) to ensure the effective implementation of the
different commitments.29 The EU Coordinator, together with Greece (as main EU country con-
cerned), has put together a Joint Action Plan for the implementation of certain key provisions
of the Statement with the objective of speeding up its application—insisting on shortening
processing times, ‘limiting appeal steps’, increasing safety, security and ‘detention capacities’,
accelerating relocation and returns, and sealing the Greek Northern borders to avoid secondary
movements.30 If fully implemented, Greece would become a pre-removal/return processing
hub for the EU, with the ‘hotspots’ on the islands serving as mass detention sites within that
scheme.31
Turkey, for its part, has already accepted the return of 1,487 persons and blocked the exit
of most migrants since the conclusion of the deal—going from a daily rate of nearly 3,500
arrivals to just 43—although only 3,565 Syrian refugees have been resettled under the ‘one for
one’ formula over the same period.32 The presumption is that Turkey is a ‘safe third country’
for returns from Greece. Nevertheless, Turkey’s geographical limitation to the 1951 Refugee
Convention denies any possibility to request and receive protection qua Convention refugees
to those coming from non-European countries. These persons can only obtain a status of
‘conditional refugee’, granted on a temporary basis under the Turkish Law on Foreigners and

27
EU-Turkey Statement (n 22).
28
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection (recast) (‘APD’), [2013] OJ L 180/60.
29
European Commission Fact Sheet, Implementing the EU-Turkey Statement – Questions and
Answers, 28 Sept. 2016, at: http://​europa​.eu/​rapid/​press​-release​_MEMO​-16​-3204​_en​.htm.
30
Fourth report on the Progress made in the implementation of the EU-Turkey Statement,
COM(2016) 792 final, 8 Dec. 2016, Annex I.
31
Guild et al. Implementation of the 2015 Council Decisions Establishing Provisional Measures
in the Area of International Protection for the Benefit of Italy and Greece, PE 583.132 (European
Parliament, 2017).
32
Fifth report on the Progress made in the implementation of the EU-Turkey Statement, COM(2017)
204 final, 2 Mar. 2017, pp. 2, 5 and 8.

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International Protection,33 in effect since 2014. The Parliamentary Assembly of the Council
of Europe,34 as well as a number of scholars and NGOs,35 have challenged the definition of
Turkey as a ‘safe third country’.36 Nevertheless, on 22 September 2017, the Greek Council of
State concluded on the presumption of safety of Turkey. The decisions are based on the ground
that there is no risk of refoulement in view of the high number of Syrian refugees in Turkey
and by virtue of the diplomatic assurances provided by Erdogan’s government.37
While it should be emphasised that Turkey is currently host to more than 2.9 million regis-
tered Syrian refugees,38 it has also been reported that migrants and refugees are often subject to
arbitrary detention and mistreatment, including in pre-removal centres where they are detained
to avoid their departure to Greece.39 In addition, incidents of illegal mass returns to Syria are
on the rise since the conclusion of the EU-Turkey deal.40 Actually, Turkey has recently con-
cluded 14 readmission agreements with countries of origin of migrants and asylum seekers,
thereby increasing the risk of repatriation and refoulement. Indeed, Turkey is formally and
informally returning people back to Afghanistan, Iraq, Pakistan, and Syria, where people may

33
See, Law on Foreigners and International Protection, Ministry of the Interior, Turkey, at: http://​
www​.goc​.gov​.tr/​files/​files/​eng​_minikanun​_5​_son​.pdf.
34
Parliamentary Assembly of the Council of Europe (PACE), Resolution 2109 (2016) on ‘The
situation of refugees and migrants under the EU–Turkey Agreement of 18 March 2016’, 20 Apr.
2016, at: http://​assembly​.coe​.int/​nw/​xml/​XRef/​Xref​-XML2HTML​-EN​.asp​?fileid​=​22738​&​lang​=​en. In
the aftermath of the failed military coup, Turkey declared a state of emergency and submitted a formal
notice of derogation to the European Convention on Human Rights (ECHR). It also notified the UN
Secretary General that it might take measures, which could entail derogations from obligations under the
International Covenant on Civil and Political Rights (ICCPR).
35
See, e.g., Chetail, ‘Will the EU-Turkey migrant deal work in practice?’, 29 Mar. 2016, at:
http://​graduateinstitute​.ch/​home/​research/​research​-news​.html/​_/​news/​research/​2016/​will​-the​-eu​-turkey​
-migrant​-deal; Favilli, ‘La cooperazione UE-Turchia per contenere il flusso dei migranti e richiedenti
asilo: obiettivo riuscito?’ (2016) 10 Diritti Umani e Diritto Internazionale 405; Labayle and de Bruycker,
‘The EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?’, 1 Apr. 2016,
at: http://​eumigrationlawblog​.eu/​the​-eu​-turkey​-agreement​-on​-migration​-and​-asylum​-false​-pretences​-or​
-a​-fools​-bargain/​; Roman and Peers, ‘The EU, Turkey and the Refugee Crisis: What could possibly go
wrong?’, 5 Feb. 2016, at: http://​eulawanalysis​.blogspot​.co​.uk/​2016/​02/​the​-eu​-turkey​-and​-refugee​-crisis​
-what​.html. See also, Amnesty International, ‘Turkey: Illegal Mass Returns of Syrian Refugees Expose
Fatal Flaws in EU-Turkey Deal’, 1 Apr. 2016, at: https://​www​.amnesty​.org/​en/​press​-releases/​2016/​
04/​turkey​-illegal​-mass​-returns​-of​-syrian​-refugees​-expose​-fatal​-flaws​-in​-eu​-turkey​-deal/​; Human Rights
Watch (HRW), ‘Turkey: Border Guards Kill and Injure Asylum Seekers’, 10 May 2016, at: https://​www​
.hrw​.org/​news/​2016/​05/​10/​turkey​-border​-guards​-kill​-and​-injure​-asylum​-seekers.
36
Pursuant to the Union’s own definition in the Asylum Procedures Directive (n 28), for a third
country to be considered safe, the absence of refoulement/ill-treatment risks and, crucially, ‘the possibil-
ity…to request refugee status and, if found to be a refugee, to receive protection in accordance with the
Geneva Convention’ is essential (Art. 38(1)(e) APD). Qualification of Turkey as ‘first country of asylum’
is unjustified as well, considering the situation of refugees there—far from amounting to ‘sufficient
protection…including benefiting from the principle of non-refoulement’ in substantive and procedural
terms (Art. 35 APD).
37
See, Greek Council of State, Appl 2348/2017 and 2348/2017, 22 Sep 2017.
38
Syrian Regional Refugee Response, Inter-Agency Information Sharing Portal, 16 Feb. 2017, at:
https://​data​.unhcr​.org/​syrianrefugees/​country​.php​?id​=​224.
39
See, ECtHR, Abdolkhani and Karimnia v Turkey, Appl. 30471/08, 22 Sept. 2009.
40
Amnesty International, ‘Turkey: Illegal Mass Returns’ (n 35); and Amnesty International, A blue-
print for despair: Human rights impact of the EU-Turkey deal (Feb. 2017), available at: http://​www​
.statewatch​.org/​news/​2017/​feb/​ai​-eu​-turkey​-deal​-briefing​-blueprint​-for​%20disaster​.pdf.

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face persecution and run extreme danger to their life.41 With Turkey restricting its entry visa
requirements and negotiating readmission agreements with several refugee-producing coun-
tries, as a way to implement its commitments towards the EU to increase ‘border security’ and
assist in the fight against smuggling/trafficking, it thereby decisively contributes to the policy
of containment of migratory flows sponsored by the EU—despite blatant human rights risks.

2.2 The Italy-Libya MoU

Alongside the EU-Turkey Statement, the relationship with Libya represents another prime
example of ‘contactless containment’. The establishment of links with the UN-recognised
government in post-Gaddafi Libya has taken time and it is only recently that the EU, both
independently and through Italy, has resumed relations with its Southern neighbour. The
renewed interest in Libya stems from the fact that, since the sealing off of the Aegean border,
the Central Mediterranean route now concentrates the highest volume of maritime traffic
in terms of unauthorised arrivals. The Mid-Term Report of the EUNAVFOR Med Sophia
Operation confirms that, since the closure of the Greek-Turkish passage, most crossings take
place via Italy-Libya.42
In January 2017, a Commission Communication for the Southern Mediterranean set out
the goals to both step up the training programme of the Libyan Coastguard to autonomously
conduct search and rescue (including disembarkation) in Libyan waters and strengthen Libya’s
Southern border (in the Sahara desert) to hinder irregular movements through Libya and into
Europe.43 The EU has already started a programme to train around 1,000 Libyan Coastguard
officers. The training plan is expected to last four months and focus on rescue at sea and
interdiction of migrant boats. Additionally, on 2 February 2017, the Italian Prime Minister
and the Head of the National Reconciliation Government of the Libya State signed a ‘MoU on
cooperation in the development sector, to combat illegal immigration, human trafficking and
contraband and on reinforcing border security’.44 The 2017 MoU also revives the full array of
old agreements on migration control,45 which had seemingly been suspended during the Arab
Spring and the Libyan civil war.
Despite the chaotic and dangerous situation in Libya following the overthrow of Colonel
Gaddafi in 2011, by the EU’s own account,46 the parties to the MoU agree on the need to find

41
See e.g., Siegfried, ‘What will happen to migrants returned to Turkey?’, IRIN News, 12 Apr.
2016, at: http://​www​.irinnews​.org/​analysis/​2016/​04/​12/​what​-​%E2​%80​%8Bwill​%E2​%80​%8B​-happen​
-migrants​-returned​-turkey.
42
EUNAVFOR MED Op Sophia – Six Monthly Report 1 January – 31 October 2016, Council doc.
14978/16 (EU RESTRICTED), 30 Nov. 2016, pp. 3–4.
43
Joint Communication to the European Parliament, the European Council and the Council,
Migration on the Central Mediterranean route: Managing flows, saving lives, JOIN(2017) 4 final, 25 Jan.
2017.
44
Unofficial translation of the Italy-Libya Memorandum of Understanding by Sandra Uselli, availa-
ble at: http://​www​.statewatch​.org/​news/​2017/​feb/​it​-libya​-memo​-eng​.htm.
45
Giuffré, ‘State Responsibility beyond Borders: What Legal Basis for Italy’s Push-Back to Libya?’
(2012) 24 International Journal of Refugee Law 692.
46
EUBAM Libya Initial Mapping Report Executive Summary, Council doc. 5616/17 (EU Restricted),
25 Jan. 2017, at: http://​statewatch​.org/​news/​2017/​feb/​eu​-eeas​-libya​-assessment​-5616​-17​.pdf. See also
‘Internal EU report exposes Libya turmoil’, EUObserver, 20 Feb. 2017, at: https://​euobserver​.com/​
migration/​136973.

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a rapid solution to the problem of ‘illegal’ migration to Europe in full respect of international
human rights treaties (Preamble and Article 5). Italy accepts it will fund the establishment
of ‘reception’ centres in Libya, where migrants and refugees will be detained while awaiting
voluntary or forced return to their home countries (Preamble and Article 2). To this end,
readmission agreements with States of origin will be concluded. Also relying on funds made
available by the EU, Italy commits to provide (unquantified) technical and economic support
to Libyan bodies and institutions in charge of the fight against ‘illegal’ immigration, including
the Border Guard and the Coast Guard, attached to the Ministry of Defence (Article 1). The
training and assistance provided by the EU and Italy, in particular, aim to enable Libya to
autonomously conduct rescue and ‘pull-back’ operations of all migrants and refugees sailing
off from Libyan shores toward Europe as part of mixed operations to control borders and
‘rescue lives’ at sea.
The EU’s direct involvement in these initiatives will also be facilitated by the EU Border
Assistance Mission to Libya (EUBAM),47 whose mandate has been extended so that, beyond
providing assistance related to ‘border management’ as originally envisaged, it also furnishes
targeted ‘advice and capacity-building in the area of…migration [and] border security’.48 The
extension of the CSPD EUNAVFOR Med Sophia mission is to a similar effect.49 Operation
Sophia has directly delivered training to the Libya Coastguard since October 2016, launch-
ing a second package in January 2017, upon the signature of a dedicated MoU between the
EUNAVFOR Med Operation Commander and the Commander of the Libyan Navy Coast
Guard and Port Security.50 So, the Italian-Libyan cooperation should be inscribed within this
wider, EU-backed framework, ultimately underpinned by the MPF and the Global Approach
to Migration.51

2.3 Information Campaigns and Readmission Agreements

One of the key priorities of the EU externalisation policy, as clearly put by the Heads of State
and Government in the Malta Declaration, is the enhancement of information campaigns
and outreach addressed at migrants in Libya and countries of origin and transit. These prac-
tices are part of the MPF and have already been used by European States in countries such
as Afghanistan, Egypt, Tunisia, Morocco, Albania, Senegal, etc., to discourage would-be
migrants from leaving their home and travelling to Europe.52 They rely on several media
outlets (internet, print materials, billboards videos, special events) to reach potential migrants

47
EU Border Assistance Mission in Libya (EUBAM): https://​ eeas​
.europa​.eu/​
csdp​ -missions​
-operations/​eubam​-libya​_en.
48
‘EUBAM Libya: mission extended, budget approved’, EC Press Release, 4 Aug. 2016, available
at: http://​www​.consilium​.europa​.eu/​en/​press/​press​-releases/​2016/​08/​04​-eubam​-libya​-mission​-extended/​
49
UNSC Res. 2312 (2016), extending UNSC Res. 2240 (2015).
50
‘Operation SOPHIA: package 2 of the Libyan Navy Coast Guard and Libyan Navy training
launched today’, EEAS Press Release, 30 Jan. 2017, at: https://​eeas​.europa​.eu/​headquarters/​headquarters​
-homepage/​19518/​operation​-sophia​-package​-2​-libyan​-navy​-coast​-guard​-and​-libyan​-navy​-training​
-launched​-today​_en.
51
Global Approach to Migration and Mobility, COM(2011) 743 final, 18 Nov. 2011.
52
Cf. Pécoud, ‘Informing Migrants to Manage Migration? An Analysis of IOM’s Information
Campaigns’, in Geiger and Pécoud (eds), The Politics of International Migration Management (Palgrave
Macmillan, 2010) 184.

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and their families to educate and inform them about the dangers associated with traffickers and
smugglers, the risk of removal and deportation, the difficulties of settling in Europe, finding
a job or obtaining asylum, as well as to encourage them to return home to rebuild their lives
in their own countries.
In this line, the European Commission Statement of 3 March 2017 urges Member States to
lower the number of irregular arrivals by making it clear to those not in need of protection and
with no right to stay in the EU that they should not undertake the perilous journey to arrive
in Europe ‘illegally’53—the implication seemingly being that only those in search of refuge
are legitimised (if not forced) to leave and endure the conditions of unauthorised voyages.
‘The external and internal dimensions [of immigration and asylum policy and border control]
go hand in hand if we want to improve return’, the Commission insists. And in so doing, it
stresses the commitment to step up cooperation on return and readmission, address the root
causes of irregular movements, and fight migrant smuggling.
Readmission agreements aim to create a legal framework for forced returns that allow
border authorities to handle transfers of third-country nationals swiftly, without the involve-
ment of diplomatic contacts. Beyond inter-State arrangements by EU Member States with
third countries, Article 79(3) TFEU expressly gives authority to the EU itself to conclude
agreements for the readmission of non-EU citizens who do not, or no longer, fulfil the condi-
tions for entry, presence, or residence in one of the Member States, either as self-standing trea-
ties or as ‘readmission clauses’ in other texts.54 Thus, today, EU readmission policy consists of
a rich network of different interconnected instruments, ranging from development aid to visa
facilitation, from technical cooperation for the externalisation of migration controls to labour
exchange.55 And beside formal arrangements, the EU also favours cooperation through infor-
mal channels, taking the form of ‘working arrangements’ between Frontex and police corps
of third countries, for instance, bolstering joint patrol operations and collaboration regarding
pre-emptive controls.56
As mentioned above, Member States are also directly funding EUBAM to Libya, for it to
better secure and manage its borders (in line with Schengen/EU standards).57 Therefore, it
should come as no surprise that questionable readmission agreements and enhanced cooper-
ation on return be already in operation with other transit States, including Turkey, and with
refugee-producing countries, such as Mali, Afghanistan, Nigeria, Senegal, and Ethiopia,58

53
Remarks by Commissioner Avramopoulos on the migration package adopted by the College ahead
of the March European Council, 2 Mar. 2017, at: http://​europa​.eu/​rapid/​press​-release​_SPEECH​-17​-425​
_en​.htm.
54
See, Giuffré, ‘The Obligation to Readmit and the Relationship between Interstate and EU
Readmission Agreements’, in Ippolito and Trevisanut (eds), Migration in Mare Nostrum: Mechanisms
of International Cooperation (CUP, 2015) 263.
55
See Cassarino, Inventory of the Bilateral Agreements Linked to Readmission, available at: http://​
www​ .jeanpierrecassarino​
.com/​
datasets/​
ra/​
; and Cassarino, ‘A Reappraisal of the EU’s Expanding
Readmission System’ (2014) 49 The International Spectator 130.
56
For the list of 18 Frontex Working Arrangements, see: http://​frontex​.europa​.eu/​partners/​third​
-countries/​.
57
EUBAM Libya (n 46).
58
Second Progress Report: First Deliverables on the Partnership Framework with third countries
under the European Agenda on Migration, COM(2016) 960 final, 14 Dec. 2016.

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with the objective of exchanging financial support for accelerated returns from Europe.59 The
message—conveyed through both actual deportations and information campaigns in those
same countries of origin and transit—is clear: ‘if you come without permission, you will be
deported’.

3. THE CONTINUED RELEVANCE OF INTERNATIONAL

PROTECTION

The compatibility of the above measures of ‘contactless control’ with human rights is usually
taken for granted. After all, EU countries are not directly performing any containment
themselves, but requesting partner States to fulfil their commitments to control migration
from and through their territories towards Europe in exchange for development aid and other
advantages. There is no direct contact with those affected by pre-emptive rescues, denied exit,
or pre-removal detention in Libya, Turkey and elsewhere. Nonetheless, considering that any
action ‘the effect of which is to prevent migrants from reaching the borders of the [would-be
host] State’ may trigger the action of the European Convention on Human Rights (ECHR) and
related instruments,60 it is worth recalling the basic content of the key protections at stake in
situations of deputised containment: the right to protection against refoulement and the right to
leave any country including one’s own.

3.1 The Principle of Non-refoulement

The principle of non-refoulement is paramount to the international protection regime and

remains the cornerstone of international refugee law.61 According to Article 33(1) of the 1951
Refugee Convention (CSR51): ‘No contracting State shall expel or return a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a particular social group or politi-
cal opinion.’ It is the primary obligation that States have to fulfil when dealing with a refugee,
both at the border and beyond. Without it, the international protection regime would become
futile.
This chapter takes the principle of non-refoulement as an overarching standard, which does
not exhaust its meaning in the CSR51. Rather, the principle is constructed and integrated
also by means of other international human rights norms, which either explicitly or implicitly
prohibit the return of a person to a territory where she risks torture or other inhuman and
degrading treatment, and where her life or liberty may be seriously threatened. International
human rights law provides further protection beyond (and in addition to) the one offered by
international refugee law. Indeed, States are bound not to transfer any individual to another
country where they may face serious harm—particularly, arbitrary deprivation of life, torture

59
Giuffré, ‘Readmission Agreements and Refugee Rights: from a Critique to a Proposal’ (2013) 32
Refugee Survey Quarterly 79.
60
ECtHR, Hirsi v Italy, Appl. 27765/09, 23 Feb. 2012, para 180.
61
This section is based on Giuffré, ‘Access to Asylum at Sea? Non-refoulement and a Comprehensive
Approach to Extraterritorial Human Rights Obligations’ in Moreno-Lax and Papastavridis (n 4), 248.

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 The rise of consensual containment 93

or other cruel, inhuman or degrading treatment or punishment—regardless of the limits of

Article 33(2) CSR51.
The issue of the applicability ratione loci of the prohibition of refoulement has fuelled
a vivid doctrinal debate, which cannot be fully addressed within the remit of this chapter.
Although the CSR51 is silent about its extraterritorial application, scholars and the UNHCR
agree that ‘the ordinary meaning of refouler is to drive back, repel, or re-conduct, which does
not presuppose a presence in-country’, thereby supporting the view that Article 33(1) CSR51
encompasses rejection at the border, in transit zones, and on the high seas.62 While specific
territorial limitations have been set forth in other provisions of the Convention, no such restric-
tion is found in paragraph 1 of Article 33.63 Accordingly, the UNHCR has stressed that Article
33(1) applies also beyond the territorial frontiers of a State party to the Convention.64
In some circumstances, national jurisprudence has adopted a restrictive interpretation of
the scope ratione loci of the principle of non-refoulement.65 However, the jurisprudence of
the ECtHR has in a number of cases confirmed the extraterritorial applicability of the relevant
Treaty when States deal with individuals who risk being subjected to torture or degrading
treatment if handed over to the authorities of countries of origin or transit.66 It has also explic-
itly emphasised States’ duty to prevent refoulement from occurring, wherever jurisdiction is
exercised.67 Likewise, the UN Human Rights Committee (HRC) recognises the extraterritorial

62
See, e.g., Lauterpacht and Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement:
Opinion’, in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection (CUP, 2003) 87, 110; Kälin, Caroni and Heim, ‘Article
33 para 1 (Prohibition of Expulsion and Return (Refoulement)’, in Zimmermann et al. (eds), The 1951
Convention Relating to the Status of Refugees and its 1967 Protocol - A Commentary 1327 (OUP,
2011) 1361, 1367; UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26
January 2007) 12, para 24, at: http://​www​.refworld​.org/​docid/​45f17a1a4​.html. See also, Goodwin-Gill
and McAdam, The Refugee in International Law (OUP, 3rd edn, 2007), 246; Hathaway, The Rights of
Refugees under International Law (CUP, 2005), 339; Fischer Lescano and Lohr, Border Control at Sea:
Requirements under International Human Rights and Refugee Law (European Centre for Constitutional
and Human Rights, 2007), 14; Moreno-Lax, ‘(Extraterritorial) Entry Controls and (Extraterritorial)
Non-refoulement’, in De Bruycker et al. (eds), The External Dimension(s) of EU Asylum and Immigration
Policy (Bruylant, 2011) 411; and Moreno-Lax, Accessing Asylum in Europe (n 15) ch 8.
63
See, Bank, ‘Refugees at Sea; Introduction to Art. 11 of the 1951 Convention’, in Zimmermann (n
62) 815, 833, 835.
64
Inter-American Commission on Human Rights, Haitian Centre for Human Rights et al. v United
States of America, Decision of the Commission as to the merits of Case 10.675 United States 13 March
1997, para 157 (‘Haitian Centre Case’). See also, UNHCR, Gene McNary, Commissioner, Immigration
and Naturalization Service, et al (Petitioners) v Haitian Centres Council, Inc et al (Respondents). Brief
Amicus Curiae of the Office of the High Commissioner for Refugees in Support of Respondents, October
1992, 85–102.
65
See, US Supreme Court, Sale, Acting Commissioner, ins v Haitian Centres Council [1993] 113
(USSC) 2549.
66
See, e.g., ECtHR, Medvedyev and Others v France, Appl. 3394/03, 29 Mar. 2010; Women on
Waves and Others v Portugal, Appl. 31276/05, 3 May 2009; Hirsi (n 60). The responsibility of British
authorities in Iraq for extraterritorial violation of the Convention was also recognised by the ECtHR in
Al-Skeini v UK, Appl. 55721/07, 7 Jul. 2011; Al-Jedda v UK, Appl. 27021/08, 7 July 2011; Al-Saadoon
and Mufdhi v UK, Appl. 61498/08, 2 Mar. 2010. See, also, Jaloud v the Netherlands, Appl. 47708/08, 20
Nov. 2014.
67
See, e.g., Hirsi (n 60), which will be discussed in Section 3.2. See also, Xhavara v Italy, Appl.
39473/98, 11 Jan. 2001, p. 5; WM v Denmark, Appl. 17392/90, 14 Oct. 1992.

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scope of Article 7 ICCPR and an implicit non-refoulement obligation therein, regardless of

whether individuals are within or outside the territory of a State party, provided they are
under its control.68 This implies a prohibition to ‘extradite, deport, expel or otherwise remove’
a person where sufficient grounds exist to believe that she will suffer irreparable harm, either in
the readmitting country or in any other country to which she could subsequently be removed.69
More explicitly, Article 3 CAT provides that no State party shall expel, return (‘refouler’) or
extradite a person to another State where there are substantial grounds for believing that she
would be in danger of being subjected to torture.70

3.2 The Right to Leave

The right to leave any country including one’s own complements the right to protection against
refoulement in several respects, as an (active) right of the individual to flee (to seek asylum
or a better life).71 This is not to say that the content or extent of the entitlement is uncontro-
versial. The final wording of Article 12 ICCPR—the first codification of the right to leave in
legally-binding form—is the product of a compromise. The same can be said of Article 2 of
Protocol 4 ECHR, drafted in a similar tenor.
While the provision recognises a right to leave, there is, however, no parallel entitlement to
enter other countries, as control over admission is considered intrinsic to State sovereignty.72
To compensate for the imbalance, a right to return to one’s own country, as reflected in the
UDHR, has been retained in Articles 12(4) ICCPR and 3(2) Protocol 4 ECHR. But this does
not negate the independent substance of the right to leave.

68
Under Article 7 of the ICCPR, ‘no one shall be subjected to torture or to cruel, inhuman or degrad-
ing treatment or punishment’.
69
See, HRC General Comment No. 31: The nature of the general legal obligation imposed on
States parties, (CCPR/C/21/Rev.1/Add. 13), 26 May 2004, para 12. See also, the HRC Concluding
Observations on the United States of America, (CCPR/C/USA/CO/3Rev. 1), 18 Dec. 2006, para 16);
Mohammad Munaf v Romania, 21 Aug. 2009, (CCPR/C/96/D/1539/2006), para 14.2; HRC General
Comment No. 2: The prohibition of torture and cruel treatment or punishment (Article 7), (HRI/HEN/1/
rev.1), 28 Jul. 1994, para. 9; Kindler v Canada, Comm. 470/1991, 11 Nov 1993, para 13.2.
70
On the extraterritorial applicability of the Convention to any territory ‘under the de facto effective
control of the State party’, see ‘Conclusions and Recommendations on the United States of America’,
1–19 May 2006, (CAT/C/USA/C/2), para. 15; JHA v Spain, 21 Nov. 2008, (CAT/C/41/D/323/2007);
see also, General Comment No. 2: Implementation of Article 2 by States parties, 24 Jan. 2008, (CAT/C/
GC/2), para 6; Sonko v Spain, (CAT/ C/47/D/368/2008), 20 Feb. 2012, para 10.3. For a consolidation of
these views, see Draft Revised General Comment on the implementation of article 3 of the Convention
in the context of article 22, to be discussed on 28 Apr. 2017, available at: http://​www​.ohchr​.org/​EN/​
HRBodies/​CAT/​Pages/​GCArticle3​.aspx.
71
On ‘inherent obligations’, see ECtHR, Soering v UK, Appl. 14038/88, 7 Jul. 1989, deducing
a duty on contracting parties not to extradite anyone to a country where there is a ‘real risk’ of exposure
to serious harm as being implicit in Article 3 ECHR. This section is based on Moreno-Lax, Accessing
Asylum in Europe (n 15) chs 8 and 9.
72
On the power of exclusion as part of the reserved domain of domestic jurisdiction, see
Oppenheim’s International Law, Lauterpacht (ed.), (Longmans, 1955) 692; Lillich, The Human Rights
of Aliens in Contemporary International Law (Manchester University Press, 1984) 35; Jean, ‘Le contenu
de la liberté de circulation’, in Flory and Higgins (eds), (Economica, 1988) 33; Plender, International
Immigration Law (Kluwer, 1988) 1–4.

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The freedom of movement recognised in the ICCPR and the ECHR within which the right
to leave is inscribed has been divided into several components. Articles 12(2) ICCPR and 2(2)
Protocol 4 ECHR, as opposed to Articles 12(1) ICCPR and 2(1) Protocol 4 ECHR, proclaim
a right of universal scope.73 Indeed, while liberty to come and go attaches only to those ‘law-
fully within’ the territory of a State, freedom to leave any country and emigrate ‘is available to
everyone, i.e., to nationals and aliens alike, and is not conditioned on lawful residency within
the territory of a State party’.74 The legal status of the person under national law is irrelevant.
Yet, the right to leave has not been conceived of as an absolute entitlement. According to the
final wording of Article 12(3) ICCPR, like that of Article 2(3) Protocol 4 ECHR, restrictions
have to be ‘provided by law, [be] necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others, and [be] consistent with
the other rights recognised in the…Covenant’. Following the pronouncements of the HRC,
‘the application of restrictions in any individual case must be based on clear legal grounds
and meet the test of necessity and the requirements of proportionality’.75 In practice, ‘States
should always be guided by the principle that the restrictions must not impair the essence of the
right’.76 Hence, while limitations are permissible, they must not render the right ineffective––
neither in law nor in practice.77
In light of this, measures of consensual containment shall be classified as direct interfer-
ences with the right to leave,78 which, unless meeting the requirements for permissible restric-
tions, are incompatible with the Covenant/Convention.79 These measures, imposing as they
do a burden on the exercise of the right, must be established by laws (instead of non-legally
binding ‘Statements’ or ‘MoUs’), which are accessible to all and foreseeable in their applica-
tion, providing for adequate certainty and protection against arbitrariness.80 They must pursue
a legitimate objective (of those explicitly listed) and be proportionate in each individual case
(not ‘generally’).81 The measure must be objectively appropriate and be the least intrusive
possible.82 Its imposition should be the result of a balancing act between all interests at stake,
without placing a disproportionate onus on the individual.83 In the words of the HRC, ‘[t]he

73
Higgins, ‘The Right in International Law of an Individual to Enter, Stay in and Leave a Country’
(1973) 49 International Affairs 341.
74
Nowak, U.N. Covenant on Civil and Political Rights (Engel, 1993), at 204.
75
HRC, General Comment No. 27: Article 12 (Freedom of Movement), (CCPR/C/21/Rev.1/Add.9),
para 16.
76
Ibid., para 13.
77
On this point, see Harvey and Barnidge, ‘Human Rights, Free Movement, and the Right to Leave
in International Law’ (2007) 19 IJRL 1, 6.
78
For a similar conclusion in the ECHR framework, see ECtHR, Schmid v Austria, Appl. 10670/83,
9 Jul. 1985; Baumann v France, Appl. 33592/96, 22 May 2001; Napijalo v Croatia, Appl. 66485/01, 13
Nov. 2003; Ignatov v Bulgaria, Appl. 50/02, 2 Jul. 2009; Dzhaksybergenov v Ukraine, Appl. 12343/10,
10 Feb. 2011.
79
Nowak, UN Covenant on Civil and Political Rights (Engel, 2nd edn., 2005) 270.
80
Generally on the principle of legality, see ECtHR, Sunday Times v UK (No. 1), Appl. 6538/74, 26
Apr. 1979, para 49. In the specific context of Art. 2(3) Prot. 4 ECHR, see Dzhaksybergenov (n 78), paras
57–62.
81
ECtHR, Riener v Bulgaria, Appl. 46343/99, 23 May 2006; Bartik v Russia, Appl. 55565/00, 21
Dec. 2006.
82
Partsch, ‘The Right to Leave and to Return in the Countries of the Council of Europe’ (1975) 5
Israel Yearbook on Human Rights 215, 261.
83
HRC, González del Río v Perú, Comm. 263/1987, 28 Oct. 1992, para 5.3.

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laws authorizing the application of restrictions should use precise criteria and may not confer
unfettered discretion on those charged with their execution’.84 National authorities must ‘take
appropriate care to ensure that any interference with the right to leave one’s country remains
justified and proportionate throughout its duration in the individual circumstances of the
case’.85
Otherwise, an interference that entails a complete inability to leave (as the aspiration in the
EU-Turkey and EU-Libya contexts appears to be in the case of irregular migrants) is simply
irreconcilable with the ICCPR/ECHR. Blanket restrictions, for indeterminate reasons or for an
indefinite period of time, amount to de facto punishment and are inadmissible.86 Following the
Strasbourg judges, ‘[t]he Court cannot consider such…blanket and indiscriminate measure[s]
as being proportionate’; ‘the automatic imposition of such…measure[s] without any regard to
the individual circumstances of the person concerned [cannot] be characterised as necessary
in a democratic society’.87

4. PREVENTING ACCESS TO EUROPE: A CRITICAL

ASSESSMENT OF ‘CONTACTLESS CONTROLS’

So what is the red thread that ties in measures of ‘contactless control’ together? They are all
oriented towards curbing migratory flows, reducing human trafficking, and combating migrant
smuggling, through the prevention of departure to (search protection in) Europe. Whilst their
indiscriminate nature hampers access to refuge for those in need of protection, their ignorance
of the right to leave is of particular note.
Information campaigns, however, do not end up in the physical ‘pulling back’ of migrants
onto the territories of the countries they wish to leave—at least, not directly or immediately.
Regardless of warnings, people may still decide to go away. Decisions to emigrate account for
innumerable reasons, including war, insecurity, and persecution or to escape the ‘stagnation’
of everyday life.88 Whatever the impact of information campaigns on migrants’ decisions, they
are unlikely to engage the responsibility of the would-be destination State for any potential
human rights violations. On the contrary, they are designed to shift responsibility (at least
rhetorically) to the migrants themselves who, despite well-advertised dangers, may still make
‘irrational choices’ by ‘knowingly’ deciding to undertake the perilous journey ‘at their own
risk’.89

84
HRC, General Comment No. 27 (n 75 ), para 13.
85
ECtHR, A.E. v Poland, Appl. 14480/04, 31 Mar. 2009, para 49; Bessenyei v Hungary, Appl.
37509/06, 31 Oct. 2008, para 24; Hajlik v Hungary, Appl. 41463/02, 31 Oct. 2006, para 36.
86
Mutatis mutandis, ECtHR, Luordo v Italy, Appl. 32190/96, 17 Jul. 2003, restriction of movement
of a bankrupt beyond the period necessary to secure assets for creditors; Federov and Federova v Russia,
Appl. 31008/02, 13 Oct. 2005, charge of fraud without prosecution for a prolonged period during which
the applicants’ freedom of movement was restricted.
87
ECtHR, Stamose v Bulgaria, Appl. 29713/05, 27 Nov. 2012, paras 34 and 36.
88
Nieuwenhuys and Pécoud, ‘Human trafficking, information campaigns, and strategies of migra-
tion control’ (2007) 50 American Behavioral Scientist 1674.
89
Oeppen, ‘Leaving Afghanistan! Are you Sure?’ European Efforts to deter Potential Migrants
Through Information Campaigns’ (2016) 9 Human Geography 59.

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But, despite the differences between information campaigns and other externalised migra-
tion measures, all ‘contactless controls’ are part of the new toolbox of ‘consensual contain-
ment’ practiced by third countries on behalf of, or for the benefit of, European States to reduce
the number of arrivals in Europe, fomenting logics of migration pre-emption far beyond
physical borders. More than any other externalised measure of ‘contactless control’, infor-
mation campaigns reveal how EU Member States increasingly begin migration management
‘upstream’, by controlling migratory movements through dissuasion, even before they occur.
In a number of different ways, the practices discussed in Section 3 show how the EU is
calling upon third countries to collaborate in discouraging departures, carry out effective
exit controls, and halt new arrivals on their territory. While such a triple goal is not explicitly
stated in the EU-Turkey deal, it is instead clearly put in the Italy-Libya MoU and the Malta
Declaration, which purport to strengthen Libya’s capacity to manage its Southern borders.
In any event, push-backs at the Syrian-Turkish passage have been documented since at least
August 2015,90 with Turkey making systematic recourse to violence against Syrian refugees
attempting to cross the Turkish border, as pointed out above, following the deal with EU
Member States in March 2016.91
Another commonality of all these externalisation policies is that they seem to deviate
attention from their primary objective of ‘contactless control’ towards nobler goals, including
the saving of lives, the prevention of dangerous journeys, or the dismantling of traffickers
and smugglers networks. This is clear, especially, in the agreements between Italy, the EU
and Libya on the training of the Libyan Coastguard as a way to reduce loss of life at sea. The
same applies to the choice to link readmission policy with access to protection in the approach
of the European Council, when stating that reinforced cooperation with key countries of
origin on ‘readmission and returns’ is a ‘necessary complement to enhancing legal avenues
[to Europe]’.92 Equally, by linking readmission of irregular entrants with resettlement, the
EU-Turkey ‘one for one’ programme strives to represent the return of asylum seekers to
a transit country as facilitating refugees’ access to international protection in Europe. The
end result is a conceptualisation of pull-backs, interdiction, and deportation as a (benign)
pre-condition of a functioning asylum system, namely, as a prerequisite (in the logical and
temporal line of policy design) of any measures of (actual access to) refuge in the EU.
The legal nature of ‘contactless controls’ appears to be of little consequence—regardless
of rule of law implications and related human rights concerns. For instance, in March 2017,
the General Court of the CJEU affirmed that it lacks jurisdiction to hear and determine the
actions of annulment brought by three asylum seekers against the EU-Turkey Statement.93 In
its Order, the General Court considered that the press release of 18 March 2016 is solely attrib-
utable to the Heads of State or Government of the Member States of the EU, who met with the
Turkish Prime Minister, and not to the European Council itself. So, in the absence of an act of
a European institution, the Court considered it did not have competence to adjudicate the case.

90
HRW, ‘Turkey: Border Guards Kill and Injure Asylum Seekers’ (n 35).
91
Spijkerboer, ‘Got the Picture?’, Forced Migration Forum, 7 Feb. 2017, at: http://​thomasspijkerboer​
.eu/​thomas​-blogs/​got​-the​-picture​-2017/​.
92
Towards a reform of the Common European Asylum System and enhancing legal avenues to
Europe, COM(2016) 197 final, 6 Apr. 2016.
93
Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council [2017] ECLI:​EU:​
T:​2017:​128.

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But, if this reading is correct, did Member States have the power in the first place to act in
a matter, which was already thoroughly regulated by the EU-Turkey Readmission Agreement?
Does the principle of pre-emption not impede a subsequent parallel regulation of the exact
same subject matter by the Member States acting qua (independent) subjects of international
law, as the General Court appears to imply? And, most importantly, were Member States in
a position to commit the EU to reinvigorate accession negotiations, promise visa facilitation,
or create a Refugee Facility out of EU funds, if they were indeed acting in their autonomous
international law capacity?
The EU is displacing displacement ever closer to points of departure, impeding unwanted
movement also through other means. The EU and its Member States have conditioned finan-
cial and technical support to third countries’ cooperation in proactively preventing irregular
exit, to avoid unauthorised access to Europe—as if there were any means of regular entry
for forced migrants to seek asylum in the Member States94—which, in other words, means
catching them up in a system of outright containment. Although the EU has announced a €200
million plan to finance migration projects in Libya, local authorities in Tripoli and other cities
are mounting resistance to EU plans to curtail migration to Europe. Their main argument
is that the EU should deal with the (forced/voluntary) migration issue themselves, without
passing the burden to Libya, which does not have the capacity to manage all those who will
remain on its territory.95 If the EU and Italy are investing in the ambitious project of training
and equipping the Libyan Coastguard, it should first be asked whether Libya is a safe place for
migrants and refugees ‘pulled back’ there.
As concluded by the ECtHR—which broadly relied on reports of international human rights
organisations and the UNHCR—Libya cannot be considered a ‘place of safety’ (for either
search and rescue or human rights purposes) because of the well-documented inadequacy of its
response to migrants and asylum seekers.96 The situation of migrants and refugees in Libya has
dramatically worsened since Gaddafi was ousted. People rescued in the Mediterranean report
inhuman reception conditions and ill-treatment.97 They claim they would rather die at sea than
go back to Libya. Thus, even if the Coastguard were trained in search and rescue, returns to
Libya would remain inconsistent with international human rights. And this applies to any
action ‘the effect of which is to prevent migrants from reaching the borders of the [would-be

94
Cf. Case C-638/16 PPU X and X [2017] ECLI:​EU:​C:​2017:​173. For commentary, see Moreno-Lax,
‘Asylum Visas as an Obligation Under EU Law: Case PPU C-638/16 X, X v État belge’, EU Migration
Law Blog (Feb. 2017), available at: http://​eumigrationlawblog​.eu/​asylum​-visas​-as​-an​-obligation​-under​
-eu​-law​-case​-ppu​-c​-63816​-x​-x​-v​-etat​-belge/​ (Part I); and http://​eumigrationlawblog​.eu/​asylum​-visas​-as​
-an​-obligation​-under​-eu​-law​-case​-ppu​-c​-63816​-x​-x​-v​-etat​-belge​-part​-ii/​ (Part II).
95
See, ‘Libyan authorities oppose EU migrant plans’, EUObserver, 8 Feb. 2017, at: https://​
euobserver​.com/​migration/​136837. At present, up to 2,000 militias, some of which involved in migrant
smuggling and human trafficking, dispute the control of Libya’s coastline, while the UN-backed govern-
ment has control only over the Eastern region of the country. See, ‘Guide to Key Libyan Militias’, BBC
News, 11 Jan. 2016, at: http://​www​.bbc​.com/​news/​world​-middle​-east​-19744533.
96
Hirsi (n 60).
97
See Joint UNHCR and IOM statement on addressing migration and refugee movements along the
Central Mediterranean route, 2 Feb. 2017, at: http://​www​.unhcr​.org/​news/​press/​2017/​2/​58931ffb4/​joint​
-unhcr​-iom​-statement​-addressing​-migration​-refugee​-movements​-along​.html; ASGI, ‘the EU and Italy
de facto violate the principle of non-refoulement’, 6 Feb. 2017, at: http://​www​.asgi​.it/​english/​libya​-eu​
-italy​-asylum​-migration/​.

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host] State’,98 which, in the case of Libya, likely continues to amount to direct refoulement—as
when Hirsi was decided—since there is a persistent ‘real risk’ of ill-treatment for migrants and
refugees there.
The situation in Turkey is equally problematic. In fact, reliable sources have reported
that ‘Turkish border guards are shooting and beating Syrian asylum seekers trying to reach
Turkey’.99 The Turkish-Syrian frontier is closed and there are plans for a new border wall to
stop crossings.100 Erdogan’s forces have allegedly contributed to the degradation of the situa-
tion in Syria by bombing Kurdish militia, disregarding risks for civilians,101 making Turkey’s
consideration as a ‘safe third country’ for forced migrants unwarranted, given notorious risks
of direct and indirect refoulement.
Action by Libya and Turkey under their respective deals with the EU is/will be (once capac-
itated) also at odds with the right to leave.102 As highlighted in the previous section, there are
several permissible purposes for interference, but the lists in Articles 12(3) ICCPR and 2(3)
Protocol 4 ECHR are exhaustive. Therefore, whether—as the British delegation suggested
during the ICCPR negotiations103—States are allowed to restrict the right to emigrate with
a view to assisting destination countries in controlling unauthorised immigration is doubt-
ful. The proposal was specifically considered during the discussions in the Human Rights
Commission and expressly rejected as being too far-fetched.104 This does not mean that all
measures of exit control constitute necessarily a violation of the right to leave, but it entails
that they must be classified as an interference requiring specific justification to be lawful,
bearing in mind that ‘[t]he restriction may be justified in a given case only if there are clear
indications of a genuine public interest which outweighs the individual’s right to freedom of
movement’.105 Thus, ‘a general measure preventing almost the entire population of a State
from leaving’ cannot be considered ‘necessary’.106 Blanket pull-backs and retention based on
nationality grounds—as those demanded by the EU—can hardly conform to the principles of
proportionality and non-discrimination. Security and a putative protection of human life are no
substitutes for detailed consideration of individual circumstances and other interests at stake.

98
Hirsi (n 60), para 180.
99
HRW, ‘Turkey: Border Guards Kill and Injure Asylum Seekers’ (n 35).
100
HRW, ‘UN: Press Turkey to Open Border’, 20 May 2016, at: https://​www​.hrw​.org/​news/​2016/​05/​
20/​un​-press​-turkey​-open​-border; ‘Turkey’s new border wall to stop Syrian refugees’, Politico, 10 Oct.
2016, available at: http://​www​.politico​.eu/​article/​turkeys​-new​-border​-wall​-will​-stop​-syrian​-refugees​
-immigration​-instanbul/​.
101
‘Turkey bombs Syrian Kurdish militia allied to U.S.-backed force’, Reuters, 20 Oct. 2016, at:
http://​www​.reuters​.com/​article/​us​-mideast​-crisis​-syria​-kurds​-idUSKCN12K0ER.
102
Note that both countries have ratified the ICCPR and Optional Protocol. See UNHCHR, Status of
Ratifications, at: http://​indicators​.ohchr​.org. Turkey, in turn, has also signed Protocol 4 ECHR.
103
E/800, at 21 (Article 11, para 10).
104
On the rejection of restrictions on grounds of ‘general welfare’ or the ‘economic and social
well-being’ of a country, see Vasak, ‘Analytical Examination of Civil and Political Rights’, in Vasak and
Alston (eds), The International Dimensions of Human Rights, Vol. I (UNESCO, 1982), 142, at 148.
105
ECtHR, Hajibeyli v. Azerbaijan, Appl. 16528/05, 10 Jul. 2008, para. 63 (emphasis added). For
commentary on ‘national security’ and ‘public order’ restrictions in this realm, see White and Ovey, The
European Convention on Human Rights (OUP, 5th edn, 2010), at 533 ff.
106
ECtHR, Streletz, Kessler and Krenz v Germany, Appl. 34044/96, 35532/97 and 44801/98, 22 Mar.
2001, para 100 (emphasis added).

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Moreover, the crucial significance of the right to leave for protection seekers requires con-
sideration of all Article 12(3) ICCPR/Article 2(3) Protocol 4 ECHR conditions, and especially
of the clause on ‘other rights recognised in the…Covenant’—alongside the fact that legal
restrictions must be narrowly construed.107 Its intersection with the prohibition of ill-treatment
renders the right of vital importance to those fleeing irreversible harm. Although neither the
ICCPR nor the ECHR recognises a right of aliens to enter another country, in certain circum-
stances they may nonetheless enjoy the protection of the Covenant/Convention in relation to
entry and residence, in particular when considerations of non-discrimination, family unity, or,
indeed, non-refoulement are in issue.108
The Refugee Convention is contingent upon the existence of the right to leave one’s own
country, for without the person being ‘outside the country of his nationality’ she will not
qualify as a refugee under that instrument.109 The right to leave and the right to seek asylum
are intertwined in the case of Convention refugees. As Hannum has noted, ‘[i]n order to “seek”
asylum, a refugee must be able to present himself before the appropriate authorities of the
country of refuge; by definition, this requirement presupposes that he must be able to leave his
own country’.110 In this context, the denial of the right to leave will indirectly entail a denial
of the right to seek asylum too.111 The aggregate right to leave to seek asylum must thus be
accounted for in this context.112
As the ECtHR noted in M.S.S., ‘[t]he fact that…the applicant had been trying to leave
Greece [irregularly] [could not] be held against him’. This was considered to be so, in par-
ticular, because ‘the applicant was attempting to find a solution to a situation the Court con-
sidere[d] contrary to Article 3 [ECHR]’113—like most of those trapped in Turkey and Libya.
The link between the right to leave and the right to seek asylum from persecution was thereby
established in passing, allowing for the conclusion that departure in order to avoid irreversible
harm and seek protection––either through regular or irregular channels––shall be considered
a legitimate ground for one to escape any country (including Libya and Turkey). While both
States of departure and destination ought to take into consideration this element, States of
destination (if Contracting Parties to the ECHR) need, in addition, to also abide by the ‘right
to gain effective access to the procedure for determining refugee status’ implicit in the ECHR,

107
HRC, Peltonen v Finland, Comm. 492/1992, 29 Jul. 1994; Celepli v Sweden, Comm. 456/1991,
2 Aug. 1994; Salah Karker v France, Comm. 833/1998, 30 Oct. 2000. See also General Comment No.
27 (n 75), para 13, according to which ‘the relation between right and restriction, between norm and
exception, must not be reversed’.
108
HRC, General Comment No. 15: The Position of Aliens Under the Covenant, (CCPR/A/41/40),
para 5.
109
Note, however, that Article 14(1) UDHR does not limit its scope of application ratione personae
to Convention refugees, according to its wording: ‘everyone has the right to seek and to enjoy in other
countries asylum from persecution’ (emphasis added).
110
Hannum, The Right to Leave and Return in International Law (Martinus Nijhoff, 1987) 50.
111
On the importance of the right to seek asylum for refugees see UNHCR EXCOM Conclusions No.
53 (1988); No. 71 (1993); No. 75 (1994); No. 77 (1995); No. 82 (1997); No. 94 (2002); No. 97 (2003);
No. 101 (2004); No. 103 (2005).
112
Further on this aggregate right, see Moreno-Lax, Accessing Asylum in Europe (n 15) ch 9.
113
ECtHR, M.S.S. v Belgium and Greece, Appl. 30696/09, 21 Jan. 2011, para 315; and Moreno-Lax,
‘Theorising the (Intersectional) Right to Flee in the ECHR: A Composite Entitlement to Leave to Escape
Irreversible Harm’, in Motoc and Cali (eds), The European Convention on Human Rights and Migration
(OUP, forthcoming).

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adding a procedural dimension to the right to flee (reuniting the right to leave with the right to
non-refoulement).114

5. INSTANCES OF ‘CONTACTLESS RESPONSIBILITY’: THE

ROLE OF KNOWLEDGE

The EU and its Member States, when designing and operating strategies of contactless control,
seem to understand that they are exonerated of all international legal responsibility. Yet,
general principles of customary law appear to point in a different direction. There are, indeed,
at least three instances in which EU countries may be said to incur responsibility of their own:
(1) in situations of complicity; (2) through direction and control of the acts of third countries;
and (3) independently, through actions attributable directly to them.

5.1 Complicity

Derived responsibility for aiding and abetting is regulated in Article 16 of the ILC Articles
on State Responsibility (ASR)115 whereby a State that assists another in the commission of
an international wrong is internationally responsible for doing so ‘to the extent that its own
conduct has caused or contributed to the internationally wrongful act’.116 Two conditions must
be fulfilled in this regard: First, the aiding State ‘must do so with knowledge of the circum-
stances of the internationally wrongful act’. Second, the act perpetrated by the aided State
should have constituted an international wrong also ‘if committed by [the aiding] State’.117 But
Article 16 ASR does not define any of the relevant terms.
A quite wide category of actions can be encompassed within the reach of Article 16 ASR,
such as training, economic assistance, the provision of confidential information,118 as well as
political or legal aid, even in the form of treaties employed to facilitate the performance of the
illicit act.119 As the scope ratione materiae of Article 16 ASR is so vast, the mental element has
been interpreted restrictively.120 If, on the one hand, it can be presumed that a State is aware of
the circumstances making the conduct of the assisted State internationally wrongful, it is also
true that establishing such discernment is no easy task. In fact, the threshold for determining
indirect responsibility is significantly high.121

114
ECtHR, Amuur v France, Appl. 19776/92, 25 Jun. 1996, para 43. See also, Giuffré (n 61).
115
ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), [2001]
YILC Vol. II (Part 2), Annex to UNGA Res. 56/83, 12 Dec. 2001 (A/56/49(Vol. I)/Corr.4).
116
ILC Commentary to ASR (‘ASR Commentary’), [2001] YILC Vol. II (Part 2), (A/56/10), 66–7,
paras 1 and 10.
117
Article 16(a) and (b) ASR. See also ASR Commentary, at 66 ff.
118
Crawford, ‘Second Report on State Responsibility’ (1999) YILC Vol II (Part I), 50, n 349.
119
Graefrath, ‘Complicity in the Law of International State Responsibility’ (1996) 29 RBDI 370, 374.
On the scope of ‘aid and assistance’, see Aust, Complicity and the Law of State Responsibility (CUP,
2011) 192–230.
120
Nolte and Aust, ‘Equivocal Helpers-Complicit States, Mixed Messages and International Law’
(2009) 58 ICLQ 1, 10.
121
On complicity in cases of externalised migration controls, see Giuffré, (n 45).

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The mental element requirement still remains a hotly debated issue, because of the problems
of representing a State as an entity capable of formulating conscious decisions. Moreover,
in order to avoid responsibility, a State could intentionally refrain from making public pro-
nouncements stating its will.122 Taking into account the difficulty in determining the state of
mind of a State, too strict a mental requirement would lead to the exclusion of those cases
where States commit international wrongful acts not from a desire to violate human rights,
but because they implicitly accept the risk that breaches thereof may occur, while pursuing
different and less harmful objectives.123
Therefore, the proposition that the threshold should not be deemed met, unless the relevant
State, by the aid or assistance given, intends to facilitate the wrongful conduct,124 would raise
the bar so much as to render recourse to Article 16 ASR nearly impossible. For our purposes,
however, the fact that the funds, training, and other capacity-building activities delivered by
the EU Member States to Libya and/or Turkey are for the explicit purpose of ‘significantly
reduc[ing] migratory flows’, ‘combat[ing] transit’, and ‘preventing departures’ appears none-
theless to meet this threshold.125
In any event, such stringent approach was expressly discussed in draft versions of Article
16 ASR, but failed to make its way into the final text.126 So, in the absence of specific wording
to that effect, following accepted rules of interpretation, it is posited that ‘knowledge of’
should not be confounded with ‘intent to’ within the ASR complicity framework. This does
not amount to triggering international responsibility any time a State engages in bilateral
cooperation with a third country.127 The ‘eventual possibility’ that a wrongful act could derive
from a State’s assistance is not sufficient to establish the link between the facilitating act and
the wrongful conduct.128 Rather, in line with the ICJ’s pronouncements in the Genocide Case,
it is to be proven that an accomplice State aided another country by accepting, with knowledge
of the facts, the serious risk that wrongful acts would be perpetrated.129
In the instances of the EU-Turkey deal and EU-Libya MoU, the wealth of reliable sources
available to the EU Member States on the prevailing situation in both countries coupled with
the specific demands placed on them to stop irregular migration can be said to reach the mark
of required knowledge. The issue is to ascertain whether the assisting (EU) State(s) were/are
aware that their assistance may, foreseeably, be used to perform wrongful conduct, but it is not
necessary that the aid provided be specifically directed towards, or be essential to, the commis-

122
On the difficulty of inferring intention, and therefore complicity, from public statements, see,
Graefrath (n 119) 375–6.
123
Nahapetian, ‘Confronting State Complicity in International Law’ (2002) 7 UCLA Journal of
International Law 99, 126–7.
124
ASR Commentary, at 66, para 5 (emphasis added).
125
Malta Declaration (n 26), paras 3, 5, 6(j) (emphasis added).
126
Draft Article 25 referred to the intent element of the aiding State as ‘in order to enable’, while Draft
Article 27 spoke of ‘for the commission of’. But none of the formulas were retained in the end.
127
Nolte and Aust (n 120), 14.
128
Report of the ILC on the work of its thirtieth session, (1978) YILC 1978, Vol II (Part II) 49–50,
para 18.
129
Although Article 16 ASR is not strictly relevant for the case, the ICJ takes the opportunity to
make some considerations on the concept of ‘aid or assistance’. See Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), (Judgment), [2007] ICJ Rep. 43, paras 432 and 420–424 (emphasis added).

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sion of the violation, provided it ‘contributed significantly to [it]’.130 So, while it is not for the
complicit State to assume any chance of the harmful use of its aid,131 the plausible likelihood
that the aid will be wrongfully utilised will activate Article 16 ASR. In our case, the fact that
retention (or ‘accommodation’) of those concerned in Turkey and Libya in sub-standard con-
ditions is being presented as life-saving mechanisms sparing the dangers of maritime journeys
is no excuse, where the dangerous situation to which they (will) remain exposed to on dry land
is ‘well-known and easy to verify on the basis of multiple sources’.132
The second condition foreseen in Article 16(b) ASR requires a commonality of obligations
between both cooperating parties for complicity to be established, which may be problematic
in certain respects. The point is to prevent the assisting State from ‘do[ing] by another State
what it cannot do by itself’ without infringing international law.133
In the EU-Turkey case, with both the EU Member States and Turkey having ratified the
ECHR and the ICCPR, obligations ensuing from these instruments would be covered—not
so obligations flowing from Protocol 4 ECHR that neither Turkey nor several EU countries
have ratified, or stemming from the CSR51, as Turkey maintains a geographical limitation
to Article 1. A similar scenario applies to the EU-Libya cooperation. Libya is not a party to
the CSR51 or to the ECHR. But both are subject to the ICCPR. Therefore, as far as duties of
non-refoulement and the right to leave are concerned, as accruing from the ICCPR (and Article
3 ECHR in the EU-Turkey case)—alongside customary international law/jus cogens, as the
case may be—the second condition for the establishment of complicity for provision of aid and
assistance should be fulfilled.

5.2 Direction and Control

Besides complicity scenarios, the existence of ‘direction’ or ‘control’ on the part of one
State restricting the sovereign discretion of another State to the advantage of the directing/
controlling party may trigger responsibility under Article 17 ASR. Such direction or control
may be established de jure or de facto,134 which makes immaterial the nature of the EU rela-
tionship with Turkey and Libya. Yet again, there are two additional conditions to fulfil. First,
as in the case of complicity, the directing/controlling State needs do so ‘with knowledge of the
circumstances of the internationally wrongful act’. Second, the act perpetrated by the directed/
controlled State should constitute an international wrong also ‘if committed by [the directing/
controlling] State’.135
Following the ILC, the term ‘control’ refers to cases of domination over the conduct in
question and not simply the exercise of supervision or oversight. It is necessary to prove that
the controlling State held ‘effective control’ of the relevant operations.136 That control must

130
ASR Commentary, at 66, para. 5. See also Crawford, The International Law Commission’s
Articles on State Responsibility: Introduction, Text, and Commentaries (CUP, 2002) 149.
131
Ibid., para 4.
132
Hirsi (n 60), para 131.
133
ASR Commentary, at 66, para 6.
134
[1973] YILC Vol. II, pp. 171–2, (A/9010/ Rev. 1), para 53.
135
Article 17(a) and (b) ASR.
136
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Merits [1986]
ICJ Rep. 14, 62 and 64–65. Cf. ITFY, Prosecutor v Duško Tadic, Case IT-94-1-A-1999, (1999) 38 ILM
1518, 1541. Cf. Judgment of the Trial Chamber, Case IT-94-1-T-1997, (1997) 112 ILR 1.

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be ‘detailed control’, specifically related to the very actions entailing the international wrong.
Similarly, ‘direction’ connotes a concrete order of an operative kind, not just abstract incite-
ment or suggestion.137 Thus, these conditions make the ‘control’ and ‘direction’ paradigms
difficult to apply in practice.
On the other hand, the ASR Commentary observes that neither term should be understood
as entailing ‘complete power’,138 which leaves the window open for general instructions,
like those reflected in the EU-Turkey deal and the EU-Libya MoU as currently drafted (to
‘pull-back’, readmit or retain/contain migrants and refugees within their own territories in
exchange for funds and other facilities), to be possibly covered by Article 17 ASR as well.139
Although the EU Member States may not exert minute control over the activities carried out
by their Mediterranean partners on the ground, the de facto binding nature of reciprocal com-
mitments does significantly restrict the discretion available to Turkey and Libya to fulfil their
pledges in the terms mutually agreed, in such a way that compliance with the Statement or the
MoU terms by Turkey and Libya cannot, in practice, be performed in accordance with the rights
to leave and/or to non-refoulement. There is, currently, no human rights-conform formula for
Turkey and Libya to systematically block the movement of asylum seekers (against their will)
without infringing upon their rights—especially since neither State recognises the status of
Convention refugees. How can they (forcibly) retain migrants and exiles without prolonged
and widespread detention? And how can they ‘stop’ the flow without sealing off their borders
to additional arrivals in disregard of non-refoulement standards?
Therefore, applying the reasoning deployed by the ILC in its commentary to Article 15
of the Articles on the Responsibility of International Organisations (ARIO)140—which is the
parallel provision to Article 17 ASR applying to the conduct of international organisations and
the possibility of committing a wrong through ‘direction’ or ‘control’—a better conclusion
would be that a reciprocal commitment, such as that underpinning the EU-Turkey Statement
and the EU-Libya MoU (directed towards ‘significantly reduc[ing] migratory flows’, ‘com-
bat[ing] transit’, and ‘preventing departures’141) can constitute a form of direction of the State
concerned, which ‘is not given discretion to carry out conduct that, while complying with the
decision, would not constitute an internationally wrongful act’.142
The fact that the EU and its Member States cannot be ‘unaware’ of the dreadful circum-
stances awaiting migrants in both Turkey and Libya, their insistence in financing ‘reception’
centres, in training Coastguard officers to undertake ‘pull-backs’, and in subordinating
(through ‘adequate conditionality’) fund transfers to effective ‘border control’ that impedes
transit through their territories and exit towards Europe could, if the above is correct, meet the
conditions of Article 17 ASR.

137
ASR Commentary, at 69, para 7.
138
Ibid.
139
Mutatis mutandis, Article 8 ASR, covering the instances of ‘control’, ‘direction’ and ‘instructions’
given by a State to a person or group of persons acting on its behalf/for its advantage.
140
ILC Articles on the Responsibility of International Organisations [2011] YILC Vol. II (Part 2),
(A/66/10) (‘ARIO’).
141
Malta Declaration (n 26), paras 3, 5, 6(j) (emphasis added).
142
See ILC Commentary to ARIO, [2011] YILC Vol. II (Part 2), (A/66/10) (‘ARIO Commentary’)
38–9, para 4.

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5.3 Independent Responsibility for Own Acts (and Omissions)

Finally, on top of instances of derivative responsibility, EU Member States may incur inde-
pendent/principal responsibility for their own acts that are constitutive of a breach of interna-
tional obligations. The general rule under international law (codified in Article 47 ASR) is that
‘each State is separately responsible for the conduct attributable to it and that responsibility
is not diminished or reduced by the fact that one or more other States are also responsible for
the same act’.143 As confirmed by the Strasbourg Court, in cases of inter-State cooperation,
‘[i]n so far as any liability under the [ECHR] is or may be incurred, it is liability incurred by
the Contracting State[s]…’.144 So, the EU-Turkey/EU-Libya agreements do not exonerate EU
countries of their own obligations. Indeed, [w]here States establish…international agreements
to pursue co-operation in certain fields of activities, there may be implications for the pro-
tection of fundamental rights’.145 And, according to the ECtHR, ‘[i]t would be incompatible
with the purpose and object of the [ECHR] if Contracting States were thereby absolved from
their responsibility under the Convention in relation to the field of activity covered by such
[agreements].146 So, ‘responsibility continues even after their having entered into treaty com-
mitments subsequent to the entry into force of the [ECHR]’.147
Adopting an approach similar to that taken in the cases of Illascu or Catan with regard to
the sponsorship of Russia of the violations perpetrated by the local authorities of the separatist
regime of Transinstria,148 it is advanced that EU countries remain accountable for their support
to Libya and Turkey in their actions of ‘consensual containment’. The funding, training, and
equipping dispensed under the EU-Turkey/EU-Libya arrangements, explicitly conditioned on
the Mediterranean partners ‘managing’ migratory flows and impeding exit for transit towards
Europe, can be said to constitute a form of ‘decisive influence’ akin to that at play in Illascu
and Catan.149
In Ilascu, the Court argued that—both before and after 5 May 1998 (when the Convention came
into force with regard to Russia), in the security zone controlled by the Russian peacekeeping
forces—the ‘MRT’ regime (set up in 1991–92) survived only by virtue of the military, eco-
nomic, financial, and political support supplied by Russia — similarly to the situation of the
Libyan Coast Guard, which survives exclusively thanks to EU and Italian funding, equipment,
and support.150 As a result, the applicants were considered to fall under the jurisdiction of the
Russian Federation for the purposes of Article 1 of the Convention, and a continuous and unin-
terrupted link of responsibility on the part of Russia for the applicants’ fate was established.

143
ILC, Commentary to the Draft Articles on State Responsibility, Special Rapporteur Crawford,
Annual Report (2001), Chap. IV, 314, available at: http://​ www​ .lcil​
.cam​
.ac​
.uk/​
Media/​ ILCSR/​
ILC2001chptIV​.pdf. Applying this rule to inter-State cooperation in the context of extraterritorial mari-
time interdiction, see also, Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary
Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 IJRL 174.
144
ECtHR, Saadi v UK, Appl. 37201/06, 28 Feb. 2008, para 126.
145
ECtHR, K.R.S. v UK, Appl. 32733/08, 2 Dec. 2008, 15; T.I. v UK, Appl. 43844/98, 7 Mar. 2000,
15.
146
Ibid.
147
Hirsi (n 60), para 129.
148
ECtHR, Illascu v Moldova and Russia, Appl. 48787/99, 8 Jul. 2004; Catan v Moldova and Russia,
Apps 43370/04, 8252/05 and 18454/06, 19 Oct. 2012.
149
Catan, ibid., para 111; Illascu, ibid., para 392.
150
Illascu, ibid.

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It was of no consequence that since 5 May 1998 the agents of the Russian Federation had not
taken part directly in the actions complained of by the applicants. According to the Court,
Russia had not only made no attempt to put an end to the relevant violations at that point, but
it had also failed to take any measures to prevent such infringments in the first place.151
While the influence exercised by the EU falls short of military occupation or direct control,
it is nonetheless decisive enough to determine the course of events to the extent that, without
the EU-Turkey deal, for example, Turkey would not stop migrants in their way to the EU (to
the EU’s advantage), as was precisely the case before the statement. This is so much so that
the EU Member States had to commit, in exchange, to the liberalisation of visas for Turkish
citizens, the re-opening of accession talks, and the transfer of EUR 6 billion to Erdogan’s
government, to ensure Turkey would reciprocate. The EU-Turkey deal is a sine qua non for
the sustained reduction of irregular maritime traffic through the Aegean border, without which
we would predictably see a rise in flows through that route, as prior to March 2016. It is the
continued support and commitment to the Statement by the EU Member States and Turkey
which enables the significant reduction of arrivals witnessed in Greece through the Eastern
Mediterranean after March 2016, as per the Commission’s own evaluation.152 This ‘decisive
influence’ constitutes, it is posited, a form of indirect but nonetheless effective control that
amounts to ‘jurisdiction’ under Article 1 ECHR, thus triggering the responsibility of Member
States under the Convention in case of human rights violations.
In addition to this, both Article 3 ECHR and Article 2 Protocol 4 ECHR (like their ICCPR
counterparts) also entail positive obligations of due diligence, enjoining State parties not to
engage in action that imperils human rights. What is more, ‘it is not open to a Contracting State
to enter into an agreement with another State which conflicts with its obligations under the
Convention’.153 And ‘[t]his principle carries all the more force [when] the absolute and funda-
mental nature of the right not to be subject to…grave and irreversible harm [is at stake]’—as is
the case in Libya and Turkey.154 But not only acts of (active/passive) wrongdoing are covered,
also the ‘power to prevent’ the abuse in question may lead to responsibility being engaged in
case of an omission to act.155 Against a background of decisive influence, being in a position to
avoid the possibility of ill-treatment from materialising is, therefore, relevant under Article 1
ECHR.156 In these circumstances, the Convention provisions apply ‘to a State wherever it may

151
Ibid., paras 392–394.
152
Fifth report on the Progress made in the implementation of the EU-Turkey Statement (n
32). For an elaboration and partial revision of this argument regarding Libya, see Moreno-Lax and
Lemberg-Pedersen, ‘Border-induced Displacement: The Ethical and Legal Implications of Distance
Creation through Externalization’ (2019) 56 Questions of International Law 5-33, at: http://​www​.qil​
-qdi​.org/​border​-induced​-displacement​-the​-ethical​-and​-legal​-implications​-of​-distance​-creation​-through​
-externalization/​.
153
ECtHR, Al-Saadoon v UK, Appl. 61498/08, 2 March 2010, para 138.
154
Ibid.
155
For this same approach, see The Hague Court of Appeal, Mustafic-Mujic v The Netherlands,
[2011] LJN: BR 5386; and Nuhanovic v The Netherlands, [2011] LJN: BR 5388 (both confirmed by
the Supreme Court, in The Netherlands v. Nuhanovic and The Netherlands v. Mustafic-Mujic, [2014]
53 ILM 512). For analysis, see Dannenbaum, ‘Killings in Srebrenica, Effective Control, and the Power
to Prevent Unlawful Conduct’ (2012) 61 ICLQ 713, pointing out at 723 how the ICJ allows for such an
interpretation in the Genocide Case (n 129), para. 401.
156
Brownlie speaks of ‘the power to take executive action’, in Brownlie, Principles of Public
International Law (OUP, 7th edn, 2008) 299.

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be acting or may be able to act in ways appropriate to meeting the obligations in question’.157
The duty to prevent is activated ‘the instant the State learns of, or should normally have
learned of, the existence of a serious risk’ of a violation.158
Knowingly entering into an agreement with unsafe countries, such as Libya and Turkey,
where risks of (direct and indirect) refoulement, in both its material and procedural facets, are
blatant and reliably documented, with the result of heightening the possibility of an Article 3
ECHR violation, instead of diminishing or avoiding it, should be adjudged to trigger the action
of the ECHR.159 Equally, action that fosters the curtailment of the right to leave—which is
the direct consequence of the EU-Turkey deal/EU-Libya MoU—is incompatible with Article
2 Protocol 4 ECHR and may lead to responsibility on the part of the EU Member States for
unjustifiable/disproportionate interference with the freedom to exit Turkey and/or Libya of
(forced/voluntary) migrants. The eventual violation that may result from the combination
of support delivered by EU countries, on one hand, and direct action in contravention of the
relevant standards by Turkey/Libya, on the other hand, will be jointly attributable to Turkey/
Libya and the EU Member States for their independent contribution to a single harmful
outcome—this would be in line with the Corfu Channel Case, where the damage caused to
British vessels ensued from the concurrent effect of a third State laying underwater mines
(possibly Yugoslavia) and the omission of Albania, which failed to warn about their presence
and ended up responding for the entirety of the composite wrongdoing.160

6. CONCLUDING REMARKS: THE PERSISTENCE OF

RESPONSIBILITY

The technical and financial assistance supplied by the EU and its Member States to Turkey,
Libya, and other key countries of origin and transit is ostensibly designed to curtail migratory
flows to Europe by entirely outsourcing migration controls to third States. The EU policy of
contactless externalisation sets a number of crucial goals, such as addressing the root causes of
migration, preventing life loss, and dismantling the smugglers’ networks. And no one would
deny that there is, for example, a need for a comprehensive search and rescue mission in the
Mediterranean. However, Libya, under the constant threat of violent and armed militias, needs
stabilisation and democratisation before any cooperation impacting on the life of migrants
and refugees can be set up. The same concerns apply to any cooperation initiatives designed
to halt the movement of refugees by strengthening Libya’s Southern border. If migrants and
refugees are to be rescued by a Libyan Coastguard and disembarked in Libya or if they are
forcefully kept in detention centres in Turkey to prevent their departure to Greece, EU States

157
Mutatis mutandis, Genocide Case (n 129) 183 (emphasis added).
158
Ibid., para 431. The rule has been endorsed by the ICJ on several occasions. Beside the Genocide
Case, ibid., see also Order on the Request for the Indication of Provisional Measures, Case Concerning
the Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russia), [2008] ICJ Gen. List No. 140.
159
Hirsi (n 60), para 131; M.S.S. (n 113), paras 366–367.
160
Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep. 4, 17–18 and 22–23. See also
Nollkamper, ‘Introduction’, in Nollkaemper and Plakokefalos (eds), Principles of Shared Responsibility
in International Law (CUP, 2014) 13; and Den Heijer, ‘Issues of Shared Responsibility before the
European Court of Human Rights’ SHARES Research Paper 06 (201 2) ACIL 2012-04, 18–19.

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may engage their international responsibility for breaching the rights of those thus rescued or
retained against their will to leave any country and to non-refoulement.
The role of knowledge in these scenarios of ‘consensual containment’ through ‘contactless
control’ must be carefully appraised by EU Member States before undertaking reciprocal com-
mitments that disregard foreseeable consequences in contravention of international refugee
law and human rights standards. Awareness of facts that are ‘known or ought to have been
known’ at the time of engagement with Turkey, Libya or other third countries will be imputed
by default, and possibly lead to the accrual of international responsibility161—especially if
the exertion of decisive influence amounting to effective control can also be established. The
contrary would amount to allowing EU Member States ‘to do by another State what [they]
cannot do by [themselves]’,162 circumventing the negative and positive duties enshrined in
their obligations to non-refoulement and respect of the right to leave.
While recognising the difficulties attached to global migration management, ‘problems with
[administering] migratory flows cannot justify recourse to practices which are not compatible
with the State’s obligations…’.163 EU Member States do have a sovereign right to control entry
into their territories, but they ought to exercise it within the limits imposed by international
refugee and human rights law.164 Self-serving policies of deputised containment are incompat-
ible with a good faith understanding of State obligations vis-à-vis migrants and those in need
of international protection.

161
Hirsi (n 60), paras 121, 131, 137, 156; M.S.S. (n 113), paras 258–259, 263, 313, 358–359,
366–367.
162
ASR Commentary, at 66, para 6.
163
Hirsi (n 60), para 179.
164
ECtHR, Abdulaziz, Cabales and Balkandali v UK, Appl. 9214/80, 9473/81 and 9474/81, 28 May
1985, para. 67: ‘as a matter of well-established international law and subject to its treaty obligations,
a State has the right to control the entry of non-nationals into its territory’.

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8. Responsibility-sharing in Latin America
Stefania Eugenia Barichello1

1. INTRODUCTION

The present chapter intends to discuss how the main instruments of refugee protection
that have led refugee protection practices toward a shared responsibility evolved in Latin
America. These documents have been reviewed on an ongoing basis since, from the adoption
of Cartagena Declaration, a debate fora was established through regular regional meetings.
Those meetings take place on the occasion of the commemorations and/or celebrations of the
anniversaries of the most relevant documents regarding International refugee law and refugee
protection in Latin America.2
Numerous crises and conflicts worldwide have forced the flight of millions of people from
their countries in recent years. The total number of refugees has increased for the fifth consec-
utive year, from 10.4 million at end-2011 – a 55 per cent rise in just four years. Current events,
such as the conflict in the Syrian Arab Republic that accounted for more than half of new
refugees in 2015,3 seem to show that the international refugee regime faces the global crisis.4
The latest UNHCR Global Trends report finds that, by the end of 2015, the level of world-
wide displacement was higher than ever before, with a record 65.3 million people who became
refugees, or were either internally displaced, or seeking asylum at the end of last year,5 com-
pared to the 51.2 million in 2013, and 37.5 million a decade ago.6
There were 21.3 million refugees worldwide at the end of 2015,7 more than half of them
children, 40.8 million internally displaced people and 3.2 million asylum-seekers, a four-fold
increase in just four years.8 According to a striking report, war, violence, and persecution
have left one out of every 113 people in the world as either a refugee, internally displaced, or
seeking asylum.9 The report warns that the world is failing the victims in an ‘age of unprece-
dented mass displacement’.10

1
This chapter was copy-edited posthumously by Dr. Nadine El-Enany, Senior Lecturer, Birkbeck
Law School, who was Stefania Barichello’s PhD supervisor.
2
L. L. Jubilut, 2014. ‘Fora and programmes for refugees in Latin America’. In: A. Abass and
F. Ippolito (eds) Regional Approaches to the Protection of Asylum Seekers: an International Legal
Perspective. Surrey: Ashgate.
3
UNHCR 2016, UNHCR Global Trends: Forced Displacement in 2015.
4
Ibid.
5
UNHCR 2015, World in War. UNHCR Global Trends. Forced Displacement in 2014.
6
From 2013 to 2014 we found the biggest annual leap ever recorded, there were 8.3 million persons
more than the year before (51.2 million), the highest annual increase in a single year. See: ibid.
7
14.4 million under UNHCR’s mandate 5.1 million Palestinian refugees registered by UNRWA
See: ibid.
8
N. Erakat, 2014. ‘Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap during
Secondary Forced Displacement’ International Journal of Refugee Law, 26, 581–621.
9
UNHCR 2016 (n 3).
10
UNHCR 2015 (n 5).

109
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110 Research handbook on international refugee law

Since 2011, when UNHCR announced a new record of 42.5 million forcibly displaced
people globally, these numbers have risen sharply each year, from 45.2 million in 2012 to 51.2
million in 2013 and 59.5 million in 2014. This is an increase of more than 50 per cent in five
years.11
The global population of forcibly displaced people today is larger than the entire population
of the United Kingdom. If they were a country, the forcibly displaced would be the 21st largest
in the world. Some nationalities were particularly affected by forced displacement. With 4.9
million refugees, 6.6 million IDPs, and nearly 250,000 asylum-seekers, an estimated 11.7
million Syrians were displaced by end-2015, seeking protection within Syria or abroad. Other
large displaced populations – those with over 2 million people displaced, either internally or as
refugees or asylum-seekers – at the end of 2015 were Afghans, Colombians, Congolese, Iraqis,
Nigerians, Somalis, Sudanese, South Sudanese, and Yemenis.12
However, finding protection has become a challenge to the people, as some States have
adopted restrictive measures. This more circumscribed global trend with regard to refugees
and asylum-seekers law and policy has been well-documented since the decade of the 1990s.
However, in recent years, due to higher concerns about State security, terrorism, and economic
recession, this restrictionism has become more noticeable13 and has significantly weakened the
refugee protection enshrined in the 1951 Refugee Convention. A good part of these govern-
mental practices has triggered the development of elaborate policies of prevention and deflec-
tion. In many countries it has restricted access to asylum through introducing impediments to
reaching the country of asylum and also measures in the country of asylum that often have
the effect of reducing access by asylum-seekers to the substantive procedures for determining
the need for international protection.14 The extremely interconnected global scenery acknowl-
edges a widespread network of readmission agreements that take into account the development
of sophisticated border control technology. It permits Northern States an unparalleled facility
to repel refugees.
This lack of protection has left two-thirds of the world’s refugees with no immediate hope
of being granted asylum, confined in situations of protracted exile. The predominance of these
restrictive practices in the global North has also amplified the asymmetrical geography of the
international protection scenery15 an exceptional capacity to deflect refugee movements from
their territories, while the South, ‘which continues to host the vast majority of the world’s
refugees, states are also responding to the mass arrival and prolonged presence of refugees by
placing limits on the quantity and quality of asylum they offer’.16
However, in Latin America this trend in the field of asylum law and policy has been
reversed, overlooking an interestingly distinctive development. Liberalism rather than restric-

11
UNHCR 2016 (n 3).
12
Ibid.
13
S. Kneebone, 2009. ‘Introduction: Refugees and Asylum Seekers in the International Context –
Rights and Realities’. In: S. Kneebone (ed.) Refugees, Asylum Seekers and the Rule of Law: Comparative
Perspectives. Cambridge: Cambridge University Press.
14
A. Betts, 2010. ‘The Refugee Regime Complex’. Refugee Survey Quarterly, 29, 12–37.
15
N. Kelley, 2007. ‘International Refugee Protection Challenges and Opportunities’. International
Journal of Refugee Law, 19, 401.
16
A. Betts, G. Loescher and J. Milner, 2012. UNHCR. The Politics and Practice of Refugee
Protection, New York, Routledge.

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 Responsibility-sharing in Latin America 111

tionism has been the norm over the past three decades. Latin America actually resists the
global trend towards increased restrictiveness in the access to asylum.
For a number of years now, the debate on refugees in Latin America has developed towards
discussions about solidarity and about accepting joint responsibilities. Shifting away from
the burden-sharing approach,17 which currently dominates thinking in this area,18 towards
a responsibility-sharing approach. This discussion about burden-sharing is important but it
involves the risk of facing some of the more difficult but critical issues in this field.
According to the UNHCR, in the Americas, the refugee population remained at approxi-
mately 769,000 refugees. The Americas region hosted the smallest share (5 per cent) of refu-
gees globally, with the Colombians (357,900) continuing to constitute the largest proportion.19
Although Latin America does not have such a significant number of refugees as other
regions of the world, this region is suitable for investigating how the responsibility-sharing
approach has been interpreted and implemented. The region has developed a particular
regional policy approach towards better protection for refugees, through the standards set by
the declarations and action plans, agreed among the countries of the region.
At the end of 2012, the total number of Colombian refugees and persons in a refugee-like
situation in Ecuador was almost 123,000; whilst in Venezuela, the estimated number of
Colombian refugees and persons in a refugee-like situation remained at about 203,000.20
The dynamics of the region have changed significantly in recent years, posing new human-
itarian trends and challenges. In Central America, the scale and depth of violence caused by
transnational, organised, criminal armed groups lay down a major challenge to local popula-
tions, national institutions and regional security. Currently, the Northern Triangle of Central
America and Mexico are a clear example of the protection needs the Americas are facing
today, with new causes for displacement emerging and multiple actors coming into play. And
this is of great concern to governments, civil society, humanitarians, development actors, etc.,
requiring joint action and shared responsibility. The Caribbean’s situation remains as featured
by mixed migratory movements on unseaworthy vessels, culminating in recurring accidents
and deaths at sea.21
The negotiation process for the Colombia peace continues to seek an end to five decades
of armed conflict through talks between the Government of Colombia and the Revolutionary
Armed Forces of Colombia (FARC). It opens new perspectives for the achievement of lasting
solutions for refugees and internally displaced Colombians over the next ten years in a spirit
of solidarity and cooperation. The humanitarian situation in Colombia will also be affected
by the anticipated peace agreement; identifying and consolidating sustainable solutions,

17
Milner defines burden-sharing as the ‘mechanism though which the diverse costs of granting
asylum to refugees are more equitable divided among States’, J. Milner, 2005. ‘Burden Sharing’. In: M.
J. Gibney and R. Hansen (eds) Immigration and Asylum: From 1900 to the Present. Santa Barbara, CA,
USA: ABC-CLIO. See also: J. Milner, 2000. ‘Sharing the Security Burden: Towards the Convergence of
Refugee Protection and State Security’. RSC Working Paper, 4.
18
A. Hurwitz, 2009. The Collective Responsibility of States to Protect Refugees, Oxford, Oxford
University Press.
19
UNHCR 2015 (n 5).
20
UNHCR 2012. UNHCR Statistical Yearbook 2012 (Online). UNHCR. Available: http://​www​
.unhcr​.org/​52a722c49​.html, last accessed 12 February 2014.
21
UNHCR 2015. 2015 UNHCR regional operations profile – Americas (Online). UNHCR.
Available: http://​www​.unhcr​.org/​pages/​4a02da6e6​.html, last accessed 26 March 2015.

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112 Research handbook on international refugee law

including through local integration and possible voluntary repatriation, will need to take
account of the foreseeable impact of demobilised armed groups and new armed actors who are
violating human rights and forcing people to flee their homes, in some areas for a second or
third time, will need to take into account the protection of the most vulnerable populations in
any post-conflict scenario.22 However, the Colombia borders area continues to be distressed
by conflict; monthly arrivals from Colombia to Ecuador, for example, continue to fluctuate
between 900 to 1,000 individuals, but access to asylum continues to be difficult due to leg-
islation introduced in May 2012, and many do not benefit from protection owing to strict
pre-admissibility procedures.23
Latin America has a ‘generous, long-standing tradition of asylum and protection of
refugees’,24 and has helped substantively in advancing and developing the regional policy
approaches, and, as a result, the international refugee laws towards the protection of victims of
forced displacement.25 This comes as a result of the region’s long-established combined and
collective efforts.
Refugee protection has been mostly improved through regional developments, mostly after
the endorsement of the two main international refugee law instruments, which are the 1951
Convention and its Protocol. Latin America, a region that has been regarded as part of this
trend, has demonstrated its commitment to strengthening and extending refugee protection,
created by the universal system, in both theoretical and practical contexts.26
Latin America has been developing a particular regional policy approach towards the better
protection of refugees, through various normative and institutional developments, as well as
a distinct model, from the increasingly restrictive and securitised policies of the European
and North American States. Since the 1984 Cartagena Declaration, Latin American countries
have developed the mechanisms and concepts that sensibly approach contemporary refugee
problems. Initially designed as an answer to the problems of the late 1970s and early 1980s
in Central America, the 1984 Cartagena Declaration influenced the Latin American countries.
The 1984 Declaration goes beyond the definition of ‘refugee’, which appears in the 1951
Geneva Convention, as it includes the people who have left their country of origin because of
war, massive violations of human rights, or because of similar causes that severely disturbed
the public order.
The so-called ‘Spirit of Cartagena’ was settled in Latin America, triggering the resumption
of the debate about the situation of the refugees in the region, from the identification of new
challenges, and the continuous search for the solutions to the effective protection of refugees
and other forced migrants.27

22
UNHCR 2014. Cartagena + 30: Concept Paper (Online). UNHCR. Available: http://​www​.acnur​
.org/​t3/​fileadmin/​Documentos/​BDL/​2014/​9524​.pdf​?view​=​1, last accessed 12 February 2015.
23
Ibid.
24
Expression used by Lavanchy and very much reproduced on the literature on refugees in Latin
America: P. Lavanchy, 2006. ‘The Mexico Declaration and Plan of Action: Reaffirming Latin America’s
Generous Tradition of Asylum and Innovative Solutions’. International Journal of Refugee Law, 450.
25
Ibid.
26
Jubilut (n 2); F. Piovesan and L. L. Jubilut, 2011. ‘Regional Developments: Americas’. In:
A. Zimmermann (ed.) The 1951 Convention Relating to the Status of Refugee and its Protocol.
A Commentary. Oxford: Oxford University Press.
27
L. P. T. F. Barreto and R. Z. R. Leão, 2010. ‘Brazil and the Spirit of Cartagena’. Forced Migration
Review, 35, 45.

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 Responsibility-sharing in Latin America 113

The continuous process of re-evaluation and revision of Cartagena led, in 1994, to the San
Jose Declaration, which reiterated the importance of the earlier declaration, and broadened
its scope, in order to extend protection to the internally displaced, in particular. Further, in
2004, at the 20-year celebration of the Cartagena Declaration, the Mexico Plan of Action
(MPA) was also adopted, in order to deal with the new crisis of refugees and asylum-seekers
from Colombia. Indeed, one of the principal factors in this decision was the intensification
of the armed and socio-political conflict in Colombia, and the resulting humanitarian crises,
which resulted in the displacement of around three to four million displaced persons within
Colombia, and hundreds of thousands of asylum-seekers in other countries of the region.28
The crowded borders29 phenomenon, due to the Colombian armed conflict, was one of the
key concerns of the regional States. As such, the MPA took the form of a regional plan, to
ensure protection and durable solutions for the refugees in Latin America.30 One of its main
strands was the adoption of its three solidarity programmes (that are still in practice through
the Brazil Plan of Action (BPA)) to facilitate the durable solutions for the refugees (predomi-
nantly from Colombia) in the countries of the region.
In November 2014, the 30th Anniversary of the 1984 Cartagena Declaration included con-
sultations with governments, academics and civil society members. The ‘Cartagena +30’ com-
memoration made possible the elaboration of the Brazil Declaration and Plan of Action and
offered a unique opportunity to analyse and strengthen regional protection mechanisms and
drive actions in the Americas for the following ten years. It recognised the progress achieved
so far in the region, especially in relation to the implementation of durable solutions,31 however
the new document introduced a geographically more comprehensive approach (going beyond
the Colombian ‘crowded borders’ phenomenon),32 the recognition of the complex challenges
imposed by organised crime in Latin America and the Caribbean,33 the need to improve the
analysis and understanding of displacement and its causes, a commitment to end statelessness
in the next ten years,34 and an acknowledgment of the challenges posed by climate change and
catastrophes caused by natural disasters.35
The ‘Spirit of Cartagena’s’ idea of solidarity and responsibility-sharing are present in the
new instrument and in many respects ratified the MPA and brought new challenges, using the
previous programmes, seeking to improve them, or, proposing new actions. These are facts
that led to this thesis’ proposal that the practices of Latin America are seen as a new paradigm,
especially as regards the practice of burden-sharing. The first chapter of this plan is expressed

28
Jubilut (n 2).
29
The armed and social-political conflict that Colombia has been through for more than 40 years has
become a permanent worry for human rights organisations, mainly because of generalised violence and
mass violation of human rights perpetrated by networks of guerrilla and parliamentary groups. Colombia
is a typical example of the crowded borders phenomenon, because of the flow of asylum seekers and
also IDPs, fleeing from violence crossing Colombia’s borders in search of international protection in
Venezuela, Panamá, Ecuador, and other States of the region. See: UNHCR 2003. Hacia una visión
compartida de las víctimas del conflicto colombiano en los países vecinos, ACNUR; A. Rangel, 2007.
Colômbia: um país de contrastes. Revista Diplomacia, Estratégia e Política, 8, 111.
30
Jubilut (n 2).
31
2014. Brazil Declaration and Plan of Action. 3 December 2014 ed.
32
Ibid.
33
Ibid.
34
Ibid.
35
Ibid.

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114 Research handbook on international refugee law

in the statement ‘During the last 30 years, solidarity and regional cooperation in Latin America
and the Caribbean have been shown to be effective for the treatment of displacement situa-
tions’.36 However reports that, despite constant political, social and economic advances and
registered cultural, there are still challenges on the subject in Latin America and the Caribbean
and proposes that the innovative approaches within the framework of solutions to refugees are,
in the near future, its consolidation as an instrument of solidarity.
A structure of solidarity and responsibility-sharing in refugee protection has been endorsed
in the past by Latin American countries, as demonstrated by the Cartagena (under the heading
‘Spirit of Cartagena’) and the declarations that followed it, ratifying and deepening the ideas
brought by this statement.
The MPA went even further, by creating a solid plan that would put into motion the ideas
of regional solidarity, which has been reinforced and ratified in 2014 by the BPA. The BPA
is a strategic process, based on the ‘Spirit of Cartagena’, and it considers the current needs for
protection, and the identification solutions in Latin America. Latin America and the Caribbean
countries, more than celebrating their achievements and advances, have committed themselves
to overtake the challenges that still need to be reached, in terms of protection of the refugees
and displaced persons. Through the identification of new mechanisms, they seek to ensure the
effectiveness of the solutions that are already found through the ‘Spirit of Cartagena’, as well
as a range of other solutions, and prevent the restrictive asylum measures in the region. In the
same spirit as the MPA, the BPA emphasises the importance of cooperation and solidarity
between the States, and highlight the shared responsibility strategies.
Brazil’s commitment to the protection of refugees dates from the beginning of the universal-
ization of the rules on this institution in the early 1950s. However, for some two decades, there
were no effective policies for the reception of refugees in Brazil. Such policies only emerged
at the end of the 1970s.37
Since then, and especially with the re-democratisation of Brazil in the 1980s and the
country’s subsequent commitment to human rights at home and abroad, Brazil’s activities on
refugee protection have evolved considerably and the country has been considered a leader in
the region on refugee protection.38
Brazil has been credited with this leadership role for three main reasons: the fact that the
Brazilian Refugee Act39 was the first national law on the matter in the region; Brazil’s political
and economic importance in South America;40 and recently because of the Brazilian response
to the Syrian refugee crisis.
Since 2013, Brazilian diplomatic missions have been authorised to issue the special visa for
those who want to go to Brazil and seek asylum.41 The measure allows victims of the conflict
in the Middle East to go to Brazil and thus seek refuge under Law 9474/199742 and interna-
tional agreements.
I will now consider the development and the effectiveness of these normative resolutions.

36
Ibid.
37
L. L. Jubilut, 2006. ‘Refugee Law And Protection In Brazil: A Model In South America?’ Journal
Of Refugee Studies, 19, 22.
38
Ibid.
39
Law 9.474/97 of 22 July.
40
Jubilut (n 37).
41
Normative resolutions N. 17.
42
Law 9.474/97 of 22 July.

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 Responsibility-sharing in Latin America 115

The search for solutions for people affected by the conflict in Syria, in particular refugees
from Syria itself, requires an immediate and flexible response. The normative resolutions N.
1743 and N. 20,44 which are a generous and exemplary humanitarian gesture, aligned with the
‘Spirit of Cartagena’ and Brazil with the Plan of Action.45 In other words, these two measures
reflect the notion not only of international solidarity and shared responsibility with countries
that currently have the highest number of refugees, not just in Latin America, but also sharing
responsibility of an international character, while dealing with the global crisis, in this case,
particularly addressing the needs of people fleeing violence in Syria.

2. WHY SHARING THE RESPONSIBILITY? REGIONAL

DEVELOPMENT AND BURDEN AND RESPONSIBILITY
SHARING

The idea of international burden-sharing is of vital relevance if the international protection

system for victims of persecution, war or natural disaster ‘is not to break down under the sheer
weight of numbers for lack of proper appreciation of the demands of human solidarity and
international legal obligation’.46
Since not all States can be involved in refugee protection in the same way, Hathaway argues
that ‘interest-convergence groups therefore ought to define obligations on the basis of a theory
of ‘common but differentiated responsibility’ toward refugees’.47
In Latin America, the current developments in the protection of refugees have been influ-
enced by the concepts of responsibility-sharing and the ‘idea of solidarity’, which were rein-
forced by the MPA and recently by the BPA.
The use of the term ‘responsibility’ instead of ‘burden’ embodies much more than just
a simple altering of terminology, but rather it is a complete change in the way refugees and
refugee protection are viewed. Instead of the idea of sharing refugees as a burden, it focuses
on the individual and collective State responsibility for protecting them from violations of
human rights. This idea of responsibility-sharing seems to be associated with the concept of
‘everyone’s responsibility for the privation or needs of any individual or social group’.48
The UNHCR has been at the forefront in the design and development of regional approaches
that respond to specific regional concerns, in order to guarantee burden-sharing and inter-
national solidarity and ensure that there is conformity with universal standards of refugee
protection.49

43
Normative resolutions N. 17.
44
Normative resolutions N. 20.
45
2014. Brazil Declaration and Plan of Action. 3 December 2014 ed.
46
J.-P. L. Fonteyne, 1978–80. ‘Burden-Sharing: An Analysis of the Nature and Function of
International Solidarity in Cases of Mass Influx of Refugees’. Australian Year Book of International
Law, 8, 162, 166–7.
47
J. C. Hathaway and R. A. Neve, 1997. ‘Making International Refugee Law Relevant Again:
A Proposal for Collectivized and Solution-Oriented Protection’. Harvard Human Rights Journal, 10,
115.
48
(Jubilut 2011).
49
S. Kneebone and F. Rawlings-Sanae, 2007. ‘Introduction’. In: S Kneebone and F. Rawlings-Sanae
(eds) New Regionalism and Asylum Seekers. Challenges Ahead. Oxford: Berghahn Books.

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116 Research handbook on international refugee law

Kneebone and Rawlings-Sanaei suggest that, ‘regional responses shore up the international
protection regime by cutting across and perhaps weakening the power of the nation State’.50
Regional responses developed, first, because of restrictive mechanisms developed towards
refugees and asylum seekers over the previous 20 years, including restrictions to entering
a potential asylum State; and secondly, regional interventions provide practical solutions to
a global problem.51
The policies that have been advanced in various regions are intended to overcome weak-
nesses in the 1951 Convention and help international refugee law to apply to the various
regional refugee issues. According to Andrade, ‘regional initiatives need to be carried out in
a cautious manner given their potential impact and “ripple effects” in other regions’ and at no
point should the regional approach reduce the standards that have been accepted and set up at
the international level.52
Regionalism advocates that, while bearing in mind global needs, initiatives should
be embraced by the entire region, as the parties are united by the common spirit and
purpose of the interventions they have developed. According to Hans and Suhrke, regional
responsibility-sharing is more achievable than an elaborated and universalised system of
human responsibility-sharing due to the fact that:

(1) it is difficult for States within a region to insulate themselves from intra-regional refugee flows;
(2) there is likely to be a greater sense of political or other responsibility towards the refugees; (3)
responsibility sharing would build on existing patterns of regional relationships; (4) there is usually
a prevailing sense of regionalism interrelationship.53

Currently, there is no universalised system of responsibility-sharing for hosting refugees. This

is due to the spontaneity of the refugee flows and the responses of the different host States, as
well as States’ interest in maintaining regional security. Furthermore, refugees are more likely
to be welcomed in countries where their social and political cultures are alike.54
According to Schuck, a regionally-structured system retains numerous significant benefits
when compared with the global system, encouraging a ‘tradition of regional responsibility for
localized refugee flows and solutions, the greater cohesion of interests and values that regions
tend to share, and the more intense patterns of interaction that they exhibit’.55
A regionalised system of sharing responsibility allows States in the region ‘that receive
a threat of unmanaged refugee migration to join together in regional grouping to attenuate the
impact of such migration’.56 This ensures that the countries in the region share the responsi-
bility for hosting refugees among themselves. According to Kneebone and Rawlings-Sanaei,

50
Ibid.
51
Ibid.
52
J. H. F. D. Andrade, 1998. ‘Regional Policy Approaches and Harmonization: A Latin American
Perspective’. International Journal of Refugee Law, 10, 389.
53
A. Hans and A. Suhrke, 1997. ‘Responsibility Sharing’. In: J. C. Hathaway (ed.) Reconceiving
International Refugee Law. The Hague, The Netherlands: Martinus Nijhoff Publishers.
54
B. Frelick, 1997. ‘Afterword: Assessing the prospects for reform os International Refugee Law’.
In: Hathaway ibid.
55
P. H. Schuck, 1997. ‘Refugee Burden-Sharing: A Modest Proposal’. Yale Journal of International
Law, 22, 243.
56
Frelick (n 54).

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 Responsibility-sharing in Latin America 117

regional and national approaches are required.57 In the first place, the global refugee movement
trends ought to be acknowledged, along with the influence of regionalism upon such flows.58
Kneebone and Rawlings-Sanaei suggest that in the global context, a dialogue between the
North and the South is necessary. Secondly, regionalism must develop strategies that promote
durable solutions, through joint development-focused projects or joint comprehensive plans.59
Regional initiatives ‘are promoted in the form of harmonisation and burden-sharing by States
within the region’.60
The idea of international burden-sharing is of vital relevance if the international protection
system for victims of persecution, war or natural disaster ‘is not to break down under the sheer
weight of numbers for lack of proper appreciation of the demands of human solidarity and
international legal obligation’.61
The notion of burden-sharing was first documented in Paragraph 4 of the Preamble of the
1951 Convention, which expressly acknowledges that the grant of asylum may place unduly
heavy burdens on certain countries, and that a satisfactory solution of a problem of which the
United Nations has recognised the international scope and nature cannot therefore be achieved
without international cooperation.62
Hathaway and Neve assert that, under the Refugee Convention, each State party assumes
particular obligations and nothing in the current legal regime prevents governments from
cooperating and offering assets to meet those obligations.63 In their opinion, burden-sharing
‘not only makes practical sense as a means to combat the withdrawal of States from the duty to
protect refugees, but is consistent with general norms of international law’.64
The logic behind burden-sharing is motivated by the idea that an equitable distribution
of costs and responsibilities in protection will lead to both maximum fairness among States
and the greatest openness towards protection seekers. Fairness involves the avoidance of
‘peak costs’ and better distribution of available resources.65 However, because not all States
can be involved in refugee protection in the same way, Hathaway and Neve argue that
‘interest-convergence groups therefore ought to define obligations on the basis of a theory of
‘common but differentiated responsibility’ toward refugees’.66
In Latin America, the current developments in the protection of refugees in Latin America
have been influenced by the concepts of responsibility-sharing (or responsible sharing of the
refugee ‘burden’) and the ‘idea of solidarity’, which were reinforced by the MPA and recently
by the BPA.
The term responsibility-sharing is accordingly used as an alternative to ‘burden-sharing’,
which is mostly used to indicate the disparities in the distribution of costs accumulated when
handling displaced persons and refugees. Thielemann et al highlighted that publications
emanating from the mid-1990s favour the reference to responsibility-sharing rather than

57
S. Kneebone, 2007. ‘Conclusions’. In: Kneebone and Rawlings-Sanae (n 49).
58
Ibid.
59
Ibid.
60
Kneebone and Rawlings-Sanae (n 49).
61
Fonteyne (n 46).
62
UN Assembly, 1951. Convention Relating to the Status of Refugees. Geneva ed.
63
Hathaway and Neve (n 47).
64
Ibid.
65
E. R. Thielemann, 2003. ‘Editorial Introduction’. Journal of Refugee Studies, 16, 225.
66
Hathaway and Neve (n 47).

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118 Research handbook on international refugee law

burden-sharing, due to the fact that the latter term advances a negative connotation that the
refugees are themselves a ‘burden’.67
The use of the term ‘responsibility’ instead of ‘burden’ embodies much more than just
a simple altering of terminology, rather it is a complete change in the way refugees and refugee
protection are viewed. Instead of the idea of sharing refugees as a burden, it focuses on the
individual and collective State responsibility for protecting them from violations of human
rights. This idea of responsibility-sharing seems to be associated with the concept of ‘every-
one’s responsibility for the privation or needs of any individual or social group’.68
Due to the complexity of sharing responsibilities in asylum matters, before selecting the most
suitable responsibility-sharing mechanism it is essential for any realistic responsibility-sharing
approach to be founded on ‘reliable, robust and uncontroversial information’ about the States
that are under pressure to receive asylum seekers.69
In 2001, the UNHCR stated in a discussion paper that burden-sharing ‘is a key to the protec-
tion of refugees and the resolution of the refugee problem’.70 Hathaway defends the collectiv-
ised protection approach ‘that allows a balance to be struck between meeting the responsibility
to grant asylum and shouldering the burden of financing protection’.71 This balance is what is
termed ‘common but differentiated responsibility’.72
Given the prerogative that burden-sharing ‘is the key to the protection of refugees’ this
chapter aims to show how the responsibility-sharing in refugee protection practices in Latin
America the proposed actions in Mexico Action Plans and Brazil, represented in this thesis by
the representative case study of the Special (‘Humanitarian’) visas in Brazil, might be signal-
ling a new international solidarity and responsibility-sharing paradigm.

3. WHY LATIN AMERICA? IMPLEMENTATIONS AND THE

SIGNIFICANCE OF THE MPA AND THE CHALLENGE OF BPA

Latin America has helped substantively in advancing and developing the regional model of
refugee protection, based on responsibility-sharing, which is different from the increasingly
restrictive and securitised policies of both European and North American States. As the result
of the region’s long-established generous tradition of refugee protection, Latin America has,
for long, been considered a leader in such matters, by the international community,73 in this
sense, Jan Egeland explains that ‘other continents can learn from Latin America and the

67
E. R. Thielemann, R. Williams and C. Boswell, 2010. ‘What System Of Burden-Sharing Between
Member States For The Reception Of Asylum Seekers?’ European Parliament. Brussels Ed.
68
L. L. Jubilut and W. P. Carneiro, 2011. ‘Resettlement in Solidarity: A New Regional Approach
Towards a More Humane Durable Solution’. Refugee Survey Quarterly, 30, 63.
69
Thielemann, Williams and Boswell (n 67).
70
UNHCR 2001. Burden Sharing: Discussion paper submitted by UNHCR. Fifth Annual Plenary
Meeting of the Intergovernmental Asia-pacific consultations on refugees, displaced persons and
migrants (APC).
71
.
72
Ibid.
73
Lavanchy (n 24).

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 Responsibility-sharing in Latin America 119

Caribbean in how to find regional solidarity for protection and solutions to displacement’.74
António Gutierres states, ‘Latin America should raise its voice as a model for other parts of
the world’.75
Latin America has been developing a regional refugee protection approach, through various
normative and institutional developments, as well as a distinct model, from the increasingly
restrictive and securitised policies of the European and North American States.
Since the 1984 Cartagena Declaration, the so-called ‘Spirit of Cartagena’ was settled in
Latin America, triggering the resumption of the debate about the situation of the refugees in
the region, from the identification of new challenges, and the continuous search for the solu-
tions to the effective protection of refugees and other forced migrants.76
The continuous process of re-evaluation and revision of Cartagena led, in 1994, to the San
Jose Declaration, which reiterated the importance of the earlier declaration, and broadened its
scope, in order to extend protection to the internally displaced, in particular. Further, in 2004,
MPA was adopted, in order to deal with the new crisis of refugees and asylum-seekers from
Colombia. In 2014, the BPA represented a further step forward in strengthening the protection
of human rights, by focusing on the current challenges of Latin America and the Caribbean
and proposing new cooperative approaches to the humanitarian needs of refugees and the
internally displaced.
The 1951 Convention has proved to be a solid instrument that provides international pro-
tection to millions of refugees throughout the world. It continues to have direct relevance to
many, if not most, contemporary refugee situations. However, regional policy approaches to
refugee protection complement and guide actions to resolve, or at least alleviate, the refugee
problem.77
Regional systems should always be examined parallel to the universal, as they are not meant
to replace the universal system, but to complement and supplement it when needed.78 In this
sense, as will be shown below, the Cartagena Declaration not only ensured the minimum
standards of the 1951 Convention, but allowed Latin American States to expand their national
systems with a more humane and humanitarian attitude towards refugee protection.79
Since the 1984 Cartagena Declaration, Latin American countries have developed mech-
anisms and concepts that sensibly approached the contemporary refugee problems. Initially
designed as an answer to the problems of the late 1970s and early 1980s in Central America.
The 1984 Declaration goes beyond the definition of ‘refugee’ that appears in the 1951 Geneva
Convention,80 as it includes people who have left their country of origin because of war,

74
UNHCR. 3 December 2014. Latin America and the Caribbean adopt a common roadmap to
address new displacement trends and end statelessness within the next decade. (Online). UNHCR.
Available: http://​www​.unhcr​.org/​547f31d59​.html, last accessed 27 December 2014.
75
Norwegian Refugee Council, 2014. ‘Displacement in the Wake of Violence in Latina America.
Humanitarian Implications and Protection Needs’.
76
Barreto 2010.
77
Andrade (n 52).
78
Jubilut (n 2).
79
Piovesan and Jubilut (n 26); L. L. Jubilut, and É. P. Ramos, 2014. ‘Regionalism: A Strategy For
Dealing With Crisis Migration’. Forced Migration Review, 45, 66.
80
Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee:
A person who owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of

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massive violations of human rights or because of similar causes that severely disturb public
order.
A continuous process of revaluation and revision led to the San Jose Declaration, MPA and
BPA which reiterated the importance of the earlier Declaration and broadened its scope in
order to extend protection to the internally displaced in particular.
The MPA has its roots in previous initiatives by regional States, such as the 1984 Cartagena
Declaration and the 1994 San Jose Declaration, which sought to address the particularities of
Latin American refugee problems. Within this context, the MPA represents an important new
step in the regional development of refugee law in Latin America.
In 2004, on its 20th anniversary, the Cartagena Declaration provided the principled basis
for the adoption of the ‘Mexico Declaration and Plan of Action to Strengthen the International
Protection of Refugees in Latin America’. The MPA is a regional framework developed in
order to deal with the complex humanitarian crisis resulting from forced displacement in Latin
America.
It responded to a recognition of the urgent need of the Latin American States to update the
framework provided by the declaration as a result of new patterns of conflict in the continent,
as well as the impact of these conflicts on neighbouring countries. Indeed, one of the principal
factors in this decision was the intensification of the armed and social-political conflict in
Colombia and the resulting humanitarian crises, with between three and four million displaced
persons within Colombia and hundreds of thousands of asylum-seekers in other countries in
the region.
Consequently, within a ‘South-South’ approach, this ‘solidarity’ emphasises the importance
of the responsibility-sharing of global southern countries, as well as cooperation with refugees
and displaced people.81
According to Lavanchy, the MPA ‘aimed at better equipping the States to address current
challenges in a spirit of solidarity and cooperation’.82 It defines actions with regard to protec-
tion and proposes an agreement of durable measures for the refugee issue, especially in rela-
tion to two situations that urgently needed an answer: the increasing flow of refugees centred
in the urban cores of Latin America and the phenomenon of the crowded borders.
The durable solution83 component of the MPA has highlighted the significance of the
spread of ‘best practices’ in the area in a bid to enhance the region’s South-South coopera-
tion. As such, one of the main strands of the proposal is the adoption of the three ‘solidarity’
programmes to facilitate durable solutions for refugees (predominantly from Colombia) in
countries in the region.
‘Solidarity Cities’ supports the local integration and self-reliance of people in need of inter-
national protection in urban areas. It intends to avoid, as far as possible, the so-called irregular

that country; or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
See: 1951 Convention Relating to the Status of Refugees. Geneva ed.
81
A. G. White, 2012. ‘A Pillar of Protection: Solidarity Resettlement for Refugees in Latin America’.
New Issues in Refugee Research (UNHCR), 239, 1.
82
Lavanchy (n 24).
83
The chapter on Durable Solutions recognised voluntary repatriation as the best solution for ref-
ugees, however it did not anticipate the need to create specific regional programmes, as if taking into
account the Colombian situation the individual right to be exercised voluntarily, would not be exerted in
conditions of safety and dignity.

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 Responsibility-sharing in Latin America 121

or secondary movements and to offer more effective protection that encompasses the refugee’s
economic and cultural rights and social duties.
‘Borders of Solidarity’ helps UNHCR to address protection concerns between Colombia
and its neighbours, mainly displaced people on the borders with Ecuador, Panamá and
Venezuela who in most part remain ‘invisible’ in irregular migratory conditions. By linking
refugee assistance to national and regional development plans, it intends to stimulate local
integration along the borders.
‘Solidarity Resettlement’ consists of regional resettlement based on principles of interna-
tional solidarity and responsibility sharing, benefiting refugees who face protection risks in
their countries of asylum.
These novel programmes of ‘Solidarity Cities’, ‘Borders of Solidarity’ and ‘Solidarity
Resettlement’ constitute one of the main objects of study of the this chapter. The intention is
to explore their genesis, develop and implementation over the course of ten years, as well as
further developments after the BPA.
The MPA has emphasised the importance of the dissemination of ‘best practices’ in the
region for South-South cooperation, including the need to focus on and address precise sce-
narios with the help of the international community in the durable solution component. Among
the most pertinent commitments of this component is the inclusion of the ‘idea of solidarity in
all of its actions’.84
As applied in Latin America, regional solidarity has emphasised the need for sharing the
responsibility for assisting victims of human rights violation, thereby defining a more positive
strategy in the context of refugees’ reception. By assuming the idea of actions in solidarity, the
MPA introduces a more humane and relatively fresh dialogue in international refugee law, as
it uses the term ‘responsibility-sharing’ instead of ‘burden-sharing’.85 Moreover, it should be
stressed that the MPA embodies not only a change in semantics, but also a reformation in the
manner in which refugees are understood, ‘not as a problem and a situation of sharing refugees
but as a responsibility for protection with victims of violations of human rights’.86
With the adoption of the MPA, Latin American countries improved their refugee protection
instruments for people seeking asylum from persecution. At the regional level, they have
followed new commitments to share the responsibilities to strengthen refugee protection.87
The MPA represents a step forward in strengthening the protection of human rights and
the affirmation of the universality of human dignity. The MPA expresses Latin American
solidarity with countries that currently have the highest number of refugees and are experienc-
ing a larger burden on their protection systems due to the disproportionally large influxes of
Colombian refugees into their territories.
The MPA highlights that regional willingness is enforcing the ‘Spirit of Cartagena’,88
ensuring advancement in both international refugee law and protection, and revising the earlier
commitments by making them stronger and more efficacious to face the ‘new challenges of

84
Jubilut (n 2).
85
S. E. Barichello, 2016. ‘Refugee Protection and Responsibility Sharing in Latin America Solidarity
Programmes and the Mexico Plan of Action’. The International Journal of Human Rights, 20, 191–207.
86
T. Harley, 2014. ‘Regional Cooperation and Refugee Protection in Latin America: A ‘South-South’
Approach’. International Journal of Refugee Law, 26, 22; Jubilut (n 2); Jubilut and Carneiro (n 68).
87
Harley, ibid.; Jubilut, ibid.; Jubilut and Carneiro, ibid.
88
Harley, ibid.

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122 Research handbook on international refugee law

forced migration and refugee crises’.89 The Spirit of Cartagena is reflected through the features
in the MPA, which require Latin American countries to find humane solutions when replying
to the challenges of the humanitarian crises.90
The MPA proposal of solidarity responsibility is ‘built on (i) the regional tradition of
refugee protection in Latin America, (ii) the “re-birth” of resettlement, and (iii) the principle
of solidarity’.91
The consolidation of the objectives and programs of the MPA carries with it a dual respon-
sibility. The first responsibility, which is of regional character, refers to the need for the States
to act together to solve the common problems, reflecting a notion of ‘regional solidarity’ and
shared responsibility. The second responsibility is of an international character. The success of
the regional programme of resettlement in Latin America could encourage similar initiatives
in other parts of the world, revealing the importance of cooperation at regional and intercon-
tinental levels.
The ‘idea of solidarity’ has vast importance in international refugee law, since it encom-
passes one of the main concepts that establish the responsibility of the international com-
munity towards refugees. Both ‘regional solidarity’ and the global acceptance of Southern
countries working together in order to share the responsibilities of protecting refugees are the
two fundamental concepts of establishing such cooperation.92
The meeting in Brasilia was a landmark as the Cartagena+30 Brazil Declaration and Action
Plan to strengthen the international protection for refugees, displaced and Stateless persons
has been adopted and will guide actions in the Americas for the next ten years. It introduces
a number of new elements – a widened scope regarding refugees and forced displacement,
more geographically comprehensive with the integration of the Caribbean, recognition of the
complex challenges posed by organised crime in Latin America and the Caribbean, the need
to improve analysis and understanding of displacement and address its causes, a commitment
to end statelessness in the next ten years, and a recognition of the challenges posed by climate
change and disasters caused by natural hazards. Without doubt, Cartagena+30 is a strategic,
yet practical, framework for regional joint action in the protection of vulnerable individuals
and groups.

4. MOVING BEYOND BURDEN-SHARING PARADIGM:

THE SIGNIFICANCE OF THE HUMANITARIAN VISAS IN
BRAZIL (AN EXEMPLIFYING CASE STUDY)

Why Brazil? Brazil is a strategic country in Latin America to study in current discourse and
action related to refugee protection, as the country has been a pioneer in regulating refugee
law and protecting refugees and has also been recognized as an emerging resettlement country
since the start of the twenty-first century.93 Furthermore, in 2014 Brazil recognised all of the

89
Jubilut and Carneiro (n 68).
90
Ibid.
91
Ibid.
92
Harley (n 86).
93
Brazil was the first country in the region to adopt the UNHCR Convention of 1951 and the second
country in South America to join the Protocol of 1967. Brazil was also the first country in South America

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 Responsibility-sharing in Latin America 123

1,405 Syrians who applied to Brazil for refugee status. In August 2015, Brazil had 2,077
Syrian refugees in the country.94
The speedy recognition of refugee status, the eligibility rate of 100 per cent and the minimal
bureaucracy to obtain a special visa for people affected by the conflict in Syria (numerous
Syrian nationals and foreigners who are affected by conflict) to apply for refuge in Brazil to
made possible by Normative Resolution No 17 passed on 20 September 2013 by the Brazilian
government and extended in 2015.95 Brazilian diplomatic missions are authorised to issue the
special visa for those who wish to come to Brazil and seek asylum here. The measure allows
victims of the conflict in the Middle East to come to Brazil and thus seek refuge under the
9474/1997 Law and related international agreements.
The search for solutions for people affected by the conflict in Syria, particularly refugees
from Syria, requires immediate and flexible responses. The normative resolutions N. 17 and N.
20 are a generous and exemplary humanitarian gesture, aligned with the ‘Spirit of Cartagena’
and Brazil with the Plan of Action (2014).96 In other words, these two measures reflect the
international solidarity and shared responsibility of countries that currently house the highest
number of refugees, not only in Latin America, but also internationally, while dealing with the
global crisis – in this case, addressing the needs of people fleeing violence in Syria.

REFERENCES
2014. Brazil Declaration and Plan of Action. 3 December 2014 ed.
Andrade, J. H. F. D. 1998. ‘Regional Policy Approaches and Harmonization: A Latin American
Perspective’ International Journal of Refugee Law, 10, 389.
Assembly, U. G. 1951. Convention Relating to the Status of Refugees. Geneva ed.
Barichello, S. E. 2016. ‘Refugee protection and responsibility sharing in Latin America solidarity pro-
grammes and the Mexico Plan of Action’ The International Journal of Human Rights, 20, 191–207.
Barreto, L. P. T. F. and R. Z. R. Leão. 2010. ‘Brazil and the spirit of Cartagena’ Forced Migration
Review, 35, 45.
Betts, A. 2010. ‘The Refugee Regime Complex’ Refugee Survey Quarterly, 29, 12–37.
Betts, A., G. Loescher and J. Milner. 2012. UNHCR. The Politics and Practice of Refugee Protection,
New York, Routledge.
Calegari, M. and R. Baeninger. 2016. ‘From Syria to Brazil’ Forced Migration Review, 51.
Erakat, N. 2014. ‘Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap during
Secondary Forced Displacement’ International Journal of Refugee Law, 26, 581–621.
Fonteyne, J.-P. L. 1978–80. ‘Burden-Sharing: An Analysis of the Nature and Function of International
Solidarity in Cases of Mass Influx of Refugees’ Australian Year Book of International Law, 8, 162.
Frelick, B. 1997. ‘Afterword: Assessing the prospects for reform of International Refugee Law’ In: J.
C. Hathaway (ed.) Reconceiving International Refugee Law. The Hague, The Netherlands: Martinus
Nijhoff Publishers.
Hans, A. and A. Suhrke. 1997. Responsibility Sharing. In: J. C. Hathaway (ed.) Reconceiving
International Refugee Law. The Hague, The Netherlands: Martinus Nijhoff Publishers.

to regulate domestic refugee protection, ratifying the United Nations’ main international instruments
of protection. Brazil has applied the Declaration’s expanded definition of ‘refugee’ since 1989. White
(n 81); J. B. Moreira, 2010. Redemocratização e direitos humanos: a política para refugiados no Brasil.
Revista Brasileira de Política Internacional, 53, 111; L. L. Jubilut and S. M. D. O. S. Apolinário, 2008.
‘Refugee Status Determination in Brazil: A Tripartite Enterprise’. Refuge, 25, 29.
94
M. Calegari and R. Baeninger, 2016. ‘From Syria To Brazil.’ Forced Migration Review, 51.
95
Ibid.
96
BPA.

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Harley, T. 2014. ‘Regional Cooperation and Refugee Protection in Latin America: A ‘South-South’
Approach’ International Journal of Refugee Law, 26, 22.
Hathaway, J. C. and R. A. Neve. 1997. ‘Making International Refugee Law Relevant Again: A Proposal
for Collectivized and Solution-Oriented Protection’ Harvard Human Rights Journal, 10, 115.
Hurwitz, A. 2009. The Collective Responsibility of States to Protect Refugees, Oxford, Oxford University
Press.
Jubilut, L. L. 2006. ‘Refugee Law and Protection in Brazil: a Model in South America?’ Journal of
Refugee Studies, 19, 22.
Jubilut, L. L. 2014. ‘Fora and programmes for refugees in Latin America’ In: A. Abass and F. Ippolito
(eds) Regional Approaches to the Protection of Asylum Seekers: an International Legal Perspective.
Surrey: Ashgate.
Jubilut, L. L. and S. M. D. O. S. Apolinário. 2008. ‘Refugee Status Determination in Brazil: A Tripartite
Enterprise’ Refuge, 25, 29.
Jubilut, L. L. and W. P. Carneiro. 2011. ‘Resettlement in Solidarity: A New Regional Approach Towards
a More Humane Durable Solution’ Refugee Survey Quarterly, 30, 63.
Jubilut, L. L. and É. P. Ramos. 2014. ‘Regionalism: A Strategy for Dealing with Crisis Migration’
Forced Migration Review, 45, 66.
Kelley, N. 2007. ‘International Refugee Protection Challenges and Opportunities’ International Journal
of Refugee Law, 19, 401.
Kneebone, S. 2007. Conclusions. In: S. Kneebone and F. Rawlings-Sanae (eds) New Regionalism and
Asylum Seekers. Challenges Ahead. Oxford: Berghahn Books.
Kneebone, S. 2009. ‘Introduction: Refugees and Asylum Seekers in the International Context – Rights
and Realities’ In: S. Kneebone (ed.) Refugees, Asylum Seekers and the Rule of Law: Comparative
Perspectives. Cambridge: Cambridge University Press.
Kneebone, S. and F. Rawlings-Sanae. 2007. ‘Introduction’ In: S. Kneebone and F. Rawlings-Sanae (eds)
New Regionalism and Asylum Seekers. Challenges Ahead. Oxford: Berghahn Books.
Lavanchy, P. 2006. ‘The Mexico Declaration and Plan of Action: Reaffirming Latin America’s Generous
Tradition of Asylum and Innovative Solutions’ International Journal of Refugee Law, 450.
Milner, J. 2000. ‘Sharing the Security Burden: Towards the Convergence of RefugeeProtection and State
Security.’RSC Working Paper, 4.
Milner, J. 2005. ‘Burden Sharing’ In: M. J. Gibney and R. Hansen (eds) Immigration and Asylum: From
1900 to the Present. Santa Barbara, CA, USA: ABC-CLIO.
Moreira, J. B. 2010. Redemocratização e direitos humanos: a política para refugiados no Brasil. Revista
Brasileira de Política Internacional, 53, 111.
Norwegian Refugee Council. 2014. Displacement in the wake of violence in Latina America.
Humanitarian implications and protection needs.
Piovesan, F. and L. L. Jubilut. 2011. ‘Regional Developments: Americas’ In: A. Zimmermann (ed.) The
1951 Convention Relating to the Status of Refugees and its Protocol. A Commentary. Oxford: Oxford
University Press.
Rangel, A. 2007. Colômbia: um país de contrastes. Revista Diplomacia, Estratégia e Política, 8, 111.
Schuck, P. H. 1997. ‘Refugee Burden-Sharing: A Modest Proposal.’ Yale Journal of International Law,
22, 243.
Thielemann, E. R. 2003. ‘Editorial Introduction’ Journal of Refugee Studies, 16, 225.
Thielemann, E. R., R. Williams and C. Boswell. 2010. ‘What System of Burden-Sharing between
Member States for the Reception of Asylum Seekers?’ European Parliament. Brussels ed.
UNHCR. 3 December 2014. Latin America and the Caribbean adopt a common roadmap to address
new displacement trends and end statelessness within the next decade. [Online]. UNHCR. Available:
http://​www​​.unhcr​​.org/​547f31d59​​.html [Accessed 27 December 2014].
UNHCR 2001. Burden Sharing: Discussion paper submitted by UNHCR. Fifth Annual Plenary Meeting
of the Intergovernmental Asia-pacific consultations on refugees, displaced persons and migrants
(APC).
UNHCR 2003. Hacia una visión compartida de las víctimas del conflicto colombiano en los países
vecinos, ACNUR.
UNHCR 2012. UNHCR Statistical Yearbook 2012 [Online]. UNHCR. Available: http://​www​​.unhcr​​.org/​
52a722c49​​.html [Accessed 12 February 2014].
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fileadmin/​Documentos/​BDL/​2014/​9524​​.pdf​​?view​​=​​1 [Accessed 12 February 2015].
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 Responsibility-sharing in Latin America 125

White, A. G. 2012. A pillar of protection: solidarity resettlement for refugees in Latin America. New
Issues in Refugee Research (UNHCR), 239, 1.

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9. The internal protection alternative and its
relation to refugee status1
Jessica Schultz

One of the characteristics of today’s practice of refugee law is the flourishing of policies and
practices designed to deflect claimants towards alternative places of protection. This chapter
addresses one dimension of the ‘protection elsewhere’ dynamic: the application of the ‘inter-
nal protection alternative’ (IPA) to deny refugee status to persons whose risk of persecution
is present in only part of a country. The IPA, also referred to as ‘internal relocation’ or the
‘internal flight alternative’, permits removal of refugee claimants to their home state even if
they cannot safely return to their former residence. The consequence for the claimant is usually
return to internal displacement. An Afghan family targeted by the Taliban in Kunduz, for
example, might be referred to Kabul for protection. A decision-maker may similarly determine
that a woman who escaped forced marriage in her home village could live undetected by her
husband and family in a larger city.
Despite widespread acceptance among state parties to the Refugee Convention of an IPA
limit, debate persists regarding the treaty basis for IPA practice and, as a consequence, its
operational parameters. The focus of UNHCR guidance, and most academic commentary, has
been on establishing safeguards rather than contesting the legality of IPA practice itself. This
chapter, in contrast, critically considers how the IPA relates to the requirements for refugee
status contained in the 1951 Refugee Convention (Convention) and its 1967 Protocol. After
briefly reviewing the development of IPA practice in Part 1, I analyse dominant theories
concerning its legal basis (Part 2). In Part 3 I consider how IPA practice may be reconciled
with the Convention’s refugee concept. The operational parameters that follow from either
alternative confirm—in contrast to current trends in state practice—a narrow scope for IPA
application.

1. THE EVOLUTION OF IPA PRACTICE

1.1 The Origins of IPA Practice

The Refugee Convention and its Protocol are silent with regard to a possible IPA limit. Article
1A(2) defines a ‘refugee’ as someone who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, member-
ship of a particular social group or political opinion, is outside the country of his nationality and is

1
This contribution is based on my book The Internal Protection Alternative in Refugee Law: Treaty
Basis and Scope of Application under the 1951 Convention Relating to the Status of Refugees and Its
1967 Protocol (Brill Nijhoff 2019).

126
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 The internal protection alternative and its relation to refugee status 127

unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence is unable or,
owing to such fear, is unwilling to return to it.2

This provision is satisfied when the claimant is: (1) outside his or her country of origin; (2)
can establish a legitimate fear of persecution for a Convention ground; and (3) is unable or
unwilling, owing to the well-founded fear, to avail him or herself of that country’s protection.
For the first three decades of practice under the Refugee Convention, refugees were found to
satisfy these requirements if a well-founded fear of persecution was established anywhere in
the country of origin. The reference to ‘protection’ historically referred to the kind of diplo-
matic and consular support typically provided by a state to its nationals abroad.
The first IPA cases emerged in the mid-1970s in the Netherlands and Germany, where
decision-makers had begun to apply the concept (without explicitly naming it) in claims
concerning religious minorities in Turkey.3 In its 1979 Handbook, UNHCR responded to
this innovative practice with a clarification that the ‘fear of being persecuted need not always
extend to the whole territory of the refugee’s country of nationality’ to qualify for refugee
status.4 It further stated that:

in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a spe-
cific ethnic or national group may occur in only one part of the country. In such situations, a person
will not be excluded from refugee status merely because he could have sought refuge in another part
of the same country, if under all circumstances it would not have been reasonable to expect him to
do so.5

Based on this language, one could conclude that if a person’s risk of persecution could be rea-
sonably overcome through the act of relocation, there is no ‘well-founded’ fear in the country
of origin.
During the 1980s, the ‘exilic bias’ dominating refugee law from World War II through to
the end of the Cold War shifted to source control measures: support to address ‘root causes’
in areas of refugee origin, temporary protection at discretion, peace-building operations and
facilitation of refugee returns.6 Instead of third-country resettlement, Western states focused
on finding safe alternatives as close as possible to a refugee’s previous residence. Pressure to

2
Article 1A(2) Refugee Convention. The opening phrase of this definition, ‘(a)s a result of events
occurring before 1 January 1951’, was removed in the 1967 Protocol. Because the vast majority of
state parties to the 1951 Convention are also party to the Protocol, the ‘modern’ refugee definition,
which encompasses future refugees from any region of the world, applies in these jurisdictions. As of
November 2016, there were 145 parties to the 1951 Convention and 146 parties to the 1967 Protocol. An
updated list of ratifications is available at https://​treaties​.un​.org, last accessed 24 March 2019.
3
See, e.g., the District Court of Almelo decision of 11 May 1977, Rechtspraacht Vreemdelingenrecht
(RV) 1977 N 21. Cited in Roel Fernhout, Erkenning en toelating als vluchteling I Nederland (Kluwer
1990).
4
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979)
para 91.
5
Ibid.
6
The ‘exilic bias’ refers to the fact that Western countries welcomed refugees from Communist
countries on a permanent basis, with the view that they were better off in the ‘civilized’ West. T.
Alexander Aleinikoff, ‘State-Centered Refugee Law: From Resettlement to Containment’ (1992) 14
Mich J Intl L, 125.

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128 Research handbook on international refugee law

divert refugee flows increased as numbers of claimants in industrialized countries rose from
233,671 from 1975–1979 to 1,495,629 during the years 1985–1989.7 In response, states intro-
duced visa requirements, airline carrier sanctions, safe third country practices, first country
of asylum rules, and extra-territorial processing measures. IPA practice gained legitimacy
as part of this broader legal-political context, but also as a specific response to the greater
number of refugees uprooted by civil conflicts and/or fleeing non-state agents in countries like
Afghanistan, Angola, Bosnia and Herzegovina, Ethiopia, Ghana, Iraq, Mozambique, Somalia,
Sudan, Sri Lanka, and Turkey.

1.2 Expansion of IPA Practice

For over a decade, the IPA occupied a relatively modest place in the asylum practice of
Western states. In 1991, Hathaway wrote two pages on ‘regionalized failures to protect’
in his seminal work The Law of Refugee Status. Drawing on social science theory and the
Convention’s drafting history, Hathaway concludes that the IPA concept is based on the
subsidiary nature of refugee protection: ‘(b)ecause refugee law is intended to meet the needs
of only those who have no alternative to seeking international protection, primary recourse
should always be to one’s own state.’8 During the 1990s, with civil wars displacing millions
of people, states more frequently applied the IPA to divert at least some refugee claimants.
A comparative study in 1997, which investigated the criteria for refugee status among 15 state
parties to the Convention, found evidence of IPA practice in ten.9 Groups subject to the analy-
sis included Christians (Turkey), Kosovars, Kurds (Iraq and Turkey), Lebanese, Salvadorans,
Sikhs (India), Somalis, and Tamils (Sri Lanka). By 2004, the IPA limit was codified in the EU
Qualification Directive as a permissible basis for denying international protection.10 Regional
harmonization efforts have not only entrenched existing IPA practice but also spread it to
new jurisdictions.11 Proposed changes to the recast Qualification Directive announced in July
2016 would make the IPA a mandatory consideration when determining a claimant’s need for
international protection.12

7
UNHCR, Asylum Applications in Industrialized Countries: 1980–1999 (2001) 5.
8
James C. Hathaway, The Law of Refugee Status (Butterworths 1991) 133. It should be noted that
the references to the drafting history relate to the exclusion of internally displaced persons from the
scope of the Convention. Rather than indicating an implied acquiescence to some sort of IPA limit, the
statements in context reflect the fact that protecting people within their borders raises different (and more
controversial) legal issues than those addressed through the new international treaty. See, for example,
Statement of Mrs. Roosevelt of the USA; UNGAOR, 4th Sess., Third Committee, Summary Records,
110 (2 December 1949).
9
Jean-Yves Carlier and others (eds), Who is a Refugee? A Comparative Case Law Study (Kluwer
Law International 1997).
10
Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees
or as Persons Who Otherwise Need International Protection and the Convent of the Protection Granted
(2004 EU Qualification Directive), Article 8.
11
See, e.g., UNHCR, The Internal Flight Practices: A UNHCR Research Study in Central European
Countries (UNHCR Regional Representation for Central Europe 2012).
12
European Commission, Proposal for a Regulation of the European Parliament and of the Council
on standards for the qualification of third-country nationals or stateless persons as beneficiaries of inter-
national protection, for a uniform status for refugees or for persons eligible for subsidiary protection and
for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November

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Today, most states that assess refugee status on an individual basis consider the IPA. This
includes jurisdictions in Europe, Australia, New Zealand, Canada, USA, Mexico, Japan
and South Africa. Despite the increasing prominence of IPA practice, however, its treaty
basis is not clearly resolved. As a consequence, while many jurisdictions formally adhere to
UNHCR’s two-part ‘safety’ and ‘reasonableness’ test for assessing IPA validity, interpre-
tations of both prongs vary among and even within states. Some jurisdictions only consider
risks of persecution and harms of similar severity when assessing a potential IPA.13 Others,
meanwhile, review a broader range of factors, including the possibility to make a living and
the right to family life.14 Such diverging practice threatens regional cooperation measures like
the Dublin Regulation, which depend upon common rules of refugee recognition. For the indi-
vidual claimant, of course, the situation creates legal insecurity, and the possibility of return to
the country of origin without adequate safeguards.
The IPA is also applied in claims to subsidiary protection based on the removing state’s
obligations under human rights law. In cases challenging expulsion orders issued by state
parties to the European Convention on Human Rights (ECHR), the European Court of Human
Rights (ECtHR) has frequently assessed the respondent state’s reference to an IPA.15 The UN
Committee against Torture has done the same.16 In these decisions, the treaty body determines
whether removal to an IPA provides an effective guarantee against the real risk of prohibited
treatment in some part of the country. In Salah Sheekh v the Netherlands, the ECtHR laid out
the following principles for IPA application under Article 3 ECHR:

[A]s a precondition for relying on an internal flight alternative, certain guarantees have to be in place:
the person to be expelled must be able to travel to the area concerned, to gain admittance and be able
to settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such
guarantees there is a possibility of the expellee ending up in a part of the country of origin where he
or she may be subjected to ill-treatment. 17

In other words, removal to an IPA would violate Article 3 if it amounts to direct or indirect
refoulement (return) to the area of immediate risk. This test does not include other factors,
such as the experience of past persecution, lack of a religious community, or livelihood
opportunities, which might make relocation unsustainable for the person involved. UNHCR,

2003 concerning the status of third-country nationals who are long-term residents. COM (2016) 466
final.
13
In Germany, the traditional position was that an IPA may be valid provided that the claimant
would not face a ‘desperate situation’ there. This standard has softened somewhat, but it is still not clear
what the additional requirement of ‘reasonableness’ involves. BVerwG 10 C 11/07 [2008]. Canada and
the UK apply an ‘unduly harsh’ standard that is also very restrictive. Ramanathan v Canada (Minister
of Citizenship and Immigration) [1998] IMM-5091-97 (Federal Court of Canada); Januzi v Secretary of
State for the Home Department [2006] UKHL 5 (UK House of Lords).
14
See, e.g., Migration Court of Appeal judgments MIG 2007:33 and MIG 2009:4 (Swedish
Migration Court of Appeal); Mlle F no 332491 A [2012] (French Council of State).
15
See, e.g., Chahal v the United Kingdom, App no 70/1995/576/662, judgment, 11 November 1996
(Grand Chamber); Salah Sheekh v the Netherlands, App no 1984/04, judgment, 11 January 2007; H. and
B. v the United Kingdom, App nos 70073/10 and 44539/11, judgment, 9 April 2013.
16
See, e.g., UN Committee against Torture, Alan v Switzerland [1996] CAT/C/16/D/21/1995 para
11.4.
17
Salah Sheekh para 141. Article 3 ECHR prohibits torture, inhuman or degrading treatment or
punishment.

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by contrast, considers that the litmus test for IPA practice is whether the claimant can achieve
a ‘normal life’ in the proposed area.18 This requires careful assessment of general conditions
and individual circumstances.
In the absence of an international refugee law court, this ECtHR jurisprudence has arguably
influenced states’ understanding of IPA practice also under the Refugee Convention.19 It is
undisputably an important point of reference in European jurisdictions for IPA application.
In the UK, the House of Lords has acknowledged that the test of ‘reasonableness’ requires
something more than the absence of harm in breach of Article 3 ECHR.20 In Norway, mean-
while, the Government has achieved complete convergence between the IPA test and the
absence of persecution and/or Article 3 harm with its recent amendments to the Immigration
Act.21 The current test of ‘effective protection’ against persecution or serious harm applies
to all claims to international protection whether based on obligations under the Convention
or other human rights instruments. A similar position was endorsed in Australia, where the
Migration and Maritime Powers Legislation Amendment to the Migration Act (2014) specifies
that the well-founded fear requirement for refugee status is only met if the claimant has a ‘real
chance’ of persecution in all areas of the receiving country.22 The accompanying Explanatory
Memorandum clarifies that the intention was to remove the reasonableness test previously
required by law, which was, in the Government’s view, not strictly required under the Refugee
Convention.23 These developments underscore the need to assess critically the relationship of
the IPA test to the refugee concept codified in Article 1 of the Convention.

1.3 The Treaty Basis for IPA Practice: Current Perspectives in Theory and
Practice

The view that refugee law is a regime of ‘surrogate’ protection, providing a back-up remedy
when the country of origin cannot or will not offer protection itself, implicitly underpins the
IPA concept. As Zimmermann and Mahler explain:

...the evolution of the internal flight concept draws heavily on the notion of surrogacy as a basic principle
of refugee law, according to which international protection only comes into play when national protection
within the country of origin is not available. Given that refugee law is intended to protect persons who have no
alternative but to seek international protection, it also seems fair to conlude that a person cannot be said to be
at risk of persecution if he or she can seek protection in some other part or parts of his or her State of origin.24

18
UNHCR, Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’
within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of
Refugees (2003) paras 6 and 29.
19
See, generally, Jessica Schultz, ‘The European Court of Human Rights and Internal Relocation:
An Unduly Harsh Standard?’ in J.-P.Gauci, M. Giuffré, and E. Tsourdi (eds) Exploring the Boundaries
of Refugee Law (Brill 2015).
20
Secretary of State for the Home Department v AH (Sudan) and Others, [2007] UKHL 49 (UK
House of Lords).
21
The Law on Changes to the Immigration Act, LOV-2016-06-17-58 (in force October 1, 2016).
22
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014, 5J(1)(c). This bill amends the Migration Act of 1958.
23
The Parliament of the Commonwealth of Australia, Explanatory Memorandum to the Migration
and Maritime Powers Legislation Amendment, 2.
24
Andreas Zimmermann and Claudia Mahler, ‘Article 1A, para. 2 1951 Convention’ in A.
Zimmermann (ed.) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:

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Table 9.1 Possible treaty bases for IPA practice under the 1951 Refugee Convention

Treaty basis Criteria under Article 1A(2) fulfilled?

Well-founded fear clause/holistic approach No
Protection clause No
Unwritten exclusion clause Yes

The concept of surrogacy supports at least three proposed treaty bases for IPA application
in current theory and practice, although not all are dependent on recognition of a ‘surrogacy
principle’. These proposals focus on the IPA as an element of the ‘well-founded fear’ analy-
sis or a ‘holistic’ reading of Article 1A(2), as a limit on the ‘protection clause’ of that same
provision, or as an unwritten exclusion clause within Article 1. As illustrated in Table 9.1,
the first two bases frame the IPA as an implied limit on the scope of refugee status. That is,
persons for whom a valid IPA exists do not fulfil the conditions set out in Article 1A(2). As an
unwritten exclusion clause, the IPA would be a restriction on the Convention’s application. In
other words, conditions for refugee status are satisfied but the claimant cannot benefit from the
treaty’s protection because he or she has a domestic alternative. The three proposals are further
described in the sections that follow.

1.3.1 A well-founded fear of persecution

Inspired by the language of UNHCR’s Handbook, states and scholars have often linked IPA
practice to the ‘well-founded fear of persecution’ requirement for refugee status. In Januzi, the
UK House of Lords explained this position as follows:

If a person is outside the country of his nationality because he has chosen to leave that country and
seek asylum in a foreign country, rather than move to a place of relocation within his own country
where he would have no well-founded fear of persecution, where the protection of his country would
be available to him and where he could reasonably be expected to relocate, it can properly be said
that he is not outside the country of his nationality owing to a well-founded fear of being persecuted
for a Convention reason.25

As a home for the IPA concept, the well-founded fear approach permits an integrated reading
of Article 1A(2) in the sense that a risk of persecution indicates a lack of state protection.
This basis for IPA practice has been endorsed by a number of states besides the UK, includ-
ing the US, Canada and Australia.26 UNHCR’s position has shifted over time, but in a 1999
paper it stated that the IPA may ‘be a legitimate part of the holistic analysis of whether the

A Commentary (Oxford University Press 2011) 448. See also Canada (Attorney General) v Ward [1993]
2 SCR 689, 709 (Supreme Court of Canada). It should be noted that Ward is not an IPA case, but con-
cerned a member of the Irish National Liberation Army who feared reprisals from members of the group
for helping some hostages facing execution to escape. The issue of surrogacy comes up twice in the judg-
ment. The first time related to whether the UK Government could protect the claimant from persecution
by a non-state actor (in this case the INLA). The second related to whether the claimant´s well-founded
fear of persecution also extended to his other country of nationality, Ireland.
25
Januzi v Secretary of State for the Home Department [2006] UKHL 5, para 7 (UK House of
Lords). Emphasis added. This decision was cited with approval by the High Court of Australia in SZATV
v Minister for Immigration and Citizenship [2007] HCA 40, para 19.
26
See, e.g., US Code of Federal Regulations §208.13(b)(2)(ii) and Rasaratnam v Canada (Minister
of Employment and Immigration) [1992] 1 FC 706 (Federal Court of Canada).

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asylum-seeker’s fear of persecution is in fact well-founded’.27 In its current IPA Guidelines

(2003), UNHCR repeats this view, describing the IPA test as part of the ‘holistic assessment
of refugee status’.28

1.3.2 The protection basis for IPA practice

According to an alternative view, the IPA is implicit in the ‘protection clause’ of Article
1A(2). If the claimant—despite establishing a well-founded fear of persecution in one area of
a country—can nonetheless obtain protection somewhere else, she is neither ‘unable’ nor legit-
imately ‘unwilling to avail’ herself of ‘protection of that country’ as required by the refugee
definition. The 1996 EU Joint Position on the term ‘refugee’ reflects this position,29 as do the
1999 Michigan Guidelines on the Internal Protection Alternative.30 The Guidelines, which
were developed by a group of refugee law experts under the leadership of James Hathaway,
have been endorsed by New Zealand.31 According to Hathaway and Foster, this treaty basis
‘more dependably directs attention to the core question whether affirmative protection is
available, not merely whether a well-founded fear can be avoided in the alternative region’.32

1.3.3 The IPA as an implied exclusion clause

The third potential basis for IPA practice frames the IPA as an exception to refugee status
compelled by the subsidiary character of the international protection regime. As an implied
exclusion clause, the IPA functions in an analogous way to the explicit ones contained in
Articles 1A(2) para 2 (dual/multiple nationals), 1D (Palestinian refugees) and 1F (undeserving
persons). In other words, the claimant meets the criteria for refugee status, but the Convention
does not apply because a domestic alternative is available. This approach facilitates, impor-
tantly, a common IPA test in claims for Convention status and complementary protection. In
such contexts, it is easier to carve out a general exception not explicitly linked to the terms
of any one treaty. For example, the EU Qualification Directive (2011) provides that Member
States may determine that an applicant is ‘not in need of international protection’ if a safe and
reasonable IPA exists.33 Similarly, Norwegian legislation states that the ‘right to international
protection shall not apply’ if effective protection is available in the country of origin.34

27
UNHCR, UNHCR Position Paper on Relocating Internally as a Reasonable Alternative to Seeking
Asylum (the So-Called ‘Internal Flight’ or ‘Internal Relocation Principle’) (1999) para 9.
28
UNHCR, Guidelines on Internal protection: ‘Internal Flight or Relocation Alternative’ within the
Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees
(2003) para 3.
29
Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on
European Union on the harmonized application of the definition of the term ‘refugee’ in Article 1 of the
Geneva Convention of 28 July 1951 relating to the status of refugees, 96/196/JHA para 8.
30
University of Michigan Law School, International Refugee Law: The Michigan Guidelines on the
Internal Protection Alternative, 11 April 1999. Available at: http://​www​.refworld​.org/​docid/​3dca73274​
.html, last accessed 24 March 2019.
31
Refugee Appeal No 71684/99 [2000] (New Zealand Refugee Status Appeals Authority).
32
Hathaway and Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014)
341–2.
33
Article 8 of the EU Qualification Directive (2011 recast).
34
Section 28(5) of the Norwegian Immigration Act (2008).

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2. ANALYSIS

2.1 The IPA as an Integral Aspect of Refugee Status

The core requirement of refugee status is a ‘well-founded fear of persecution’ with a discrimi-
natory intent or effect.35 Because the words of the Convention—and particularly Article 1A(2)
—were the product of intense and detailed negotiations, caution should be exercised not to
attribute a new meaning. As Lord Hope of Craighead in Hoxha remarked:

It is generally to be assumed that the parties included the terms that they wished to include and on
which they were able to agree, omitting other terms which they did not wish to include or on which
they were unable to agree…. It is not open to a court … to expand the limits which the language of
the treaty itself has set for it.36

This argument is even more relevant in the context of the refugee definition because of its
importance as the gateway provision unlocking the other rights and benefits contained in the
Convention. Because state parties may not make reservations to Article 1, any modifications
to the definition should occur through a protocol or other formal procedure.37
Starting with the ordinary meaning of the words in their context, as required by the Vienna
Convention on the Law of Treaties (VCLT), one observes that there is nothing in the language
of Article 1A(2) which indicates that the risk of persecution in a single area is inadequate for
the purpose of establishing refugee status. When a woman fleeing ethnically motivated rebel
attacks in eastern Congo crosses an international border, she is logically outside her country
of origin owing to a well-founded fear of persecution. Battjes observes that ‘this fear is not
removed or otherwise affected by the finding that protection is available for (her) elsewhere
in that country’.38 Inserting a requirement that such fear must be present everywhere, as the
Australian legislation has done, does even greater violence to the natural limits of the treaty
language. It also violates basic norms of due process by imposing a burden on the claimant to
demonstrate the persecutor’s ability and willingness to pursue him or her countrywide.
With regard to the protection clause, meanwhile, a plain reading confirms that even if the
term ‘protection’ is understood to have external and internal dimensions,39 an IPA would only

35
As affirmed by UNHCR, ‘the key to the characterization of a person as a refugee is risk of perse-
cution for a Convention reason.’ UNHCR, ‘Interpreting Article 1 of the 1951 Convention Relating to the
Status of Refugee’ para 7.
36
R (Hoxha) v Special Adjudicator [2005] UKHL 19, para 19 (UK House of Lords).
37
Article 42 of the Refugee Convention.
38
Hemme Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers 2006)
249. Emphasis added. Justice Kirby of the Australian High Court has also commented that anchoring
the IPA in the well-founded fear requirement puts ‘a great deal of strain on the language of the Refugee
Convention’. SZATV v Minister for Immigration and Citizenship, para 62 (High Court of Australia).
39
Although the concept of protection in Article 1A(2) technically and historically refers to protec-
tion available to nationals in third countries, there is increasing authority for the view that the refugee
definition is primarily concerned with the possibility of protection in the claimant’s home country. Even
UNHCR essentially endorses an extended meaning of the protection clause as ‘an additional – though not
necessary – argument in favour of the applicability of the Convention to those threatened by non-state
agents of persecution’. UNHCR, ‘Interpreting Article 1 of the 1951 Convention Relating to the Status of
Refugee’ para 36.

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be available if the claimant is able and willing (despite a well-founded fear of persecution)
to receive such protection. Presuming that most people who leave their country owing to
a well-founded fear of persecution are unwilling to return, any significant scope for IPA
practice depends on inverting the terms: rather than the claimant’s ability or willingness to
receive protection, the relevant point would be the state’s ability and willingness to provide
it. This sleight of hand contradicts the basic rules of treaty interpretation, which require that
meaning be given to every word. It also seems to conflict with the Convention’s overriding
concern with the individual’s perspective. Under the protection approach, for example, the
objective availability of protection somewhere could override the claimant’s subjective but
legitimate fear, or deep-seated apathy towards the home country owing to an experience of
past persecution.
A narrow scope for IPA practice may arguably exist, however, if the claimant’s unwill-
ingness to avail him or herself of home state protection is unreasonable given the nature of
the well-founded fear. In these cases, although the condition of unreasonableness is implied,
it is consistent with the rational approach to interpreting the Convention that runs through
UNHCR’s guidance, especially its Handbook.40 Since refugee status is declaratory not consti-
tutive, it is relevant whether such unwillingness was unreasonable also at the time of flight.41

2.2 The IPA as an Implied Exclusion Clause

Precisely because the IPA notion is absent from the text of the Convention, the principle
expressio unius—‘the expression of one thing is the exclusion of another’—offers a strong
basis for rejecting the ‘unwritten exclusion clause’ theory. Article 1 of the Refugee Convention
provides explicit exceptions to Convention protection in Articles 1D, 1E and 1F. One should
be hesitant, then, to imply an additional exception.
Nevertheless, it could be argued that the Convention’s dynamic nature, responding to
changes in refugee flows, justifies a modified interpretation of Article 1. In contract law gen-
erally, as well as in international treaty law, lawyers and judicial tribunals may accept implied
terms in order to accommodate unforeseen situations or unintended consequences, provide
that the implications are necessary to achieve a just and reasonable result in line with common
contractual objectives.42
Do current patterns of refugee flows satisfy these conditions? Although there was no dis-
cussion of regionally-limited harms during the drafting process, the Convention’s authors did
recognize non-state actors as potential agents of persecution, including in civil war contexts.43
The definition they settled on was intentionally broad in substantive scope, limited only in

40
According to Gilbert Jaeger, who was UNHCR’s Director of Protection when the Handbook was
drafted, para 91 was inserted to contain, as far as possible, the incipient IPA practice emerging in some
member states. Jeager expressed this opinion during an oral hearing before the Dutch Council of State,
Rechtspraak Vreemdelingenrecht 1988, 4 (24 February 1988). Source: email correspondence from
Professor Roel Fernhout, who also discussed this in his published PhD thesis (15 February, 2013).
41
UNHCR Handbook (reissued 2011) para 28.
42
For judicial expressions of this rule, see BP Refinery (Westernport) Pty Ltd v Hastings Shire
Council [1977] (High Court of Australia) para 9; Mediterranean Salvage v Seamar Trading [2009]
EWCA Civ 531 (Court of Appeals for England and Wales).
43
Terje Einarsen, ‘Drafting History of the Convention/New York Protocol’ in Zimmermann (n 24),
67.

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application at the time by geographic and temporal restrictions. These limits were removed by
the Protocol in 1967, making the Convention relevant for refugees from all regions. As a point
of departure, one should be careful then to distinguish between unforeseen situations related
to the nature of refugee flows and unforeseen situations regarding their direction and scope.
The latter, which appears to be the main impetus for IPA practice, cannot be the basis of an
evolved meaning that runs contrary to the spirit of international cooperation upon which the
Convention is premised.44 In fact, parties with no IPA practice are among those that bear the
heaviest responsibility for refugee protection today.
Even if today’s flows are unique, recognition of an IPA limit is hardly necessary to secure
either of the treaty’s main purpose(s): to protect persons from return to the territory where
a well-founded fear of persecution is present, and to ensure the ‘widest possible’ exercise
of rights in the country of refuge.45 Some states, however, consider that the surrogate role of
refugee law in general compels an IPA limit. This argument, given its increasing prominence
in support of (expanded) IPA practice, deserves closer attention.

2.2.1 The surrogate role of refugee law: justification for the IPA concept?
Refugee law regulates the international duty of states to protect persons with a well-founded
fear of persecution in their countries of origin. Article 1 of the Convention sets the parameters
of this protection through inclusion, exclusion, and cessation provisions. While Article 1A(2)
para 1 establishes conditions for refugee status, Article 1A(2) para 2 clarifies that these criteria
must be met with respect to each of the countries of which the claimant is a national. According
to Article 1C(2), meanwhile, the acquisition of a new nationality may be grounds for cessation
of refugee status. The same consequence follows when an individual ‘can no longer, because
the circumstances in connection with which he has been recognized as a refugee have ceased
to exist, continue to refuse to avail himself of the protection of the country of his nationality’
or, in the case of a stateless refugee, is ‘able to return to the country of his former habitual
residence’ (Articles 1C(5) and 1C(6)). In this case the source of persecution has gone, so the
country as a whole is presumably safe for the claimant. Finally, Article 1E clarifies that the
Convention does not apply to ‘a person who is recognized (in the country of residence) as
having the rights and obligations which are attached to the possession of the nationality of that
country’.46 These provisions broadly confirm refugee law’s surrogate role vis-à-vis a state of
nationality (or former habitual residence if the claimant is stateless). When that third state fails
its core duty of protection, as indicated by a claimant’s well-founded fear, Article 1 exceptions
do not clearly apply. In other words, the surrogate role of refugee law does not mandate IPA
practice.47

44
Preamble, para 4.
45
Preamble, para 2.
46
In practice, this provision refers to ethnic Germans, the so-called Volksdeutsche, residing in Germany.
More generally, however, it covers ‘national refugees’ living in a country where their ethnic group dominates.
47
For more discussion, see Jessica Schultz and Terje Einarsen, ‘The Right to Refugee Status and
the Internal Protection Alternative: What Does the Law Say?’ in B. Burson and D. Cantor (eds) Human
Rights and the Refugee Definition: Comparative Legal Practice and Theory (Brill Nijhoff 2016) 282.

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3. THE IPA AS AN IMPLIED LIMIT ON THE RIGHT TO REFUGEE

STATUS

3.1 An Alternative Basis for IPA Practice?

Despite the IPA’s fragile legal footing, common sense suggests that a certain scope for IPA
practice, particularly when the claimant has substantial ties to the return area, may be recon-
ciled with the humanitarian aims of refugee law. This instinct is supported by the weight of
secondary sources—UNHCR, key state parties to the Convention, and refugee law scholars—
who endorse IPA application under certain conditions.
The above analysis identified a narrow opportunity for IPA practice provided that
a well-founded fear of persecution (in a specific area of the home country) retains its central
role in the determination of refugee status. Essentially, the proposal conditions the claimant’s
unwillingness to accept meaningful protection by the home state with a requirement of reason-
ableness. Unlike other readings which emphasize the state’s ability or willingness to protect,
this formulation keeps the individual perspective in focus. As a general rule, one can assume
that a claimant compelled to leave her home to avoid persecution is justified to refuse that
state’s protection. This is clearly so when state authorities are the source of the risk.
As an integrated part of refugee status assessment, this approach has significant draw-
backs. First, it suggests no clear parameters for IPA practice. Under what conditions would
a claimant’s refusal of home state protection be valid? Recourse to a flexible ‘reasonableness’
standard would entrench the same problems that plague current state practice: inconsistency
and a restrictive focus on the risk of (indirect) refoulement. Second, because the IPA is consid-
ered as part of the primary claim, the claimant arguably bears (or at least shares) the burden of
proof. This poses a significant obstacle for those who are unfamiliar with conditions through-
out their countries of origin. These weaknesses suggest the need to explore whether another
treaty basis might better guarantee a principled application of the IPA concept.

3.2 The Doctrine of Implied Limits in Human Rights Law

A final option to consider is whether the IPA can be framed as an implied limit on the right
to refugee status. Regional and national courts have recognized unwritten limits on rights
that are not strictly ‘necessary’ in light of treaty objectives but which are proportionate to
a legitimate state aim.48 The principle of proportionality is a well-known method in many
fields of law for establishing the correct balance between the state´s interference and the
interests that it affects.49 In human rights jurisprudence, the ECtHR maintains that a limit may
not compromise the core of a right (making it de facto disproportionate); a further balancing

48
Mathieu-Mohin and Clerfayt v Belgium, App No 9267/81 (ECtHR 2 March, 1987) para 52.
49
On the origins of the principle in 19th century German administrative law, see Gertrude
Lübbe-Wolff, ‘The Principle of Proportionality in the Case-Law of the German Federal Constitutional
Court’ (2014) 34 Human Rights Law Journal 12. On the current status of proportionality in legal systems
worldwide and in EU law under the Lisbon Treaty, see Aharon Barak, Proportionality: Constitutional
Rights and their Limitations (Cambridge University Press 2012) 145–210.

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of the impact on an individual level against the state interest is also required.50 In Golder v the
UK, the ECtHR determined that a blanket prohibition on legal representation for prisoners was
a disproportionate interference in Article 6 ECHR (the right to a fair trial).51
Can the doctrine of implied rights provide a legitimate treaty basis for IPA practice? While
there is no explicit ‘right’ to refugee status, Article 1A(2) would have no meaning if states
could avoid evaluating a refugee claim.52 It follows that those who are determined to fulfill the
criteria for refugee status are entitled to recognition.53
In terms of identifying a legitimate state aim, human rights bodies like the ECtHR recognize
that a broad range of objectives may be considered.54 In the present context, IPA practice
permits the state to preserve limited resources for privileged international protection for those
without an effective alternative. Importantly, this is not an aim whose importance expands and
contracts in response to refugee flows. It does not accommodate a margin of appreciation for
each individual state party. Rather, it transparently presents a stable interest against which to
assess the impact of IPA application on the particular claimant.
By framing the IPA as an implied limit on the right to refugee status, the validity of IPA
application in each individual case depends on whether the impact on the claimant of losing
refugee status is proportionate to the marginal gains accrued to the state. The principle of
systemic integration expressed in Article 31(3)(c) VCLT permits a broad range of interests
to shape interpretation of the IPA concept.55 These include direct human rights factors related
to physical security, the possibility of sustaining an adequate standard of living, freedom of
movement, and family life. The best interests of any children, special needs based on disa-
bility, age or gender, statelessness and the experience of past persecution are other relevant
factors. The basic question is whether the claimant, despite a well-founded fear of persecution
in the same country, can relocate with minimal negative consequences from a humanitarian
and human rights perspective.
The implied limit approach has some clear benefits over current understandings of the
treaty basis for IPA practice. First, it transparently recognizes that host states have an interest
in preserving limited resources for privileged human rights protection. There is no need to
read additional terms into the text, or for that matter to ignore others. By divorcing the IPA
concept from the question of a well-founded fear, this framework directs the decision-maker

50
See, e.g., Mathieu-Mohin and Clerfayt v Belgium, para 52; Hirst v UK, App no 74025/01 (ECtHR
judgment, 10 June 2005) para 62 (Grand Chamber); Case of Jones and Others v the United Kingdom,
App nos 34356/06 and 40528/06 (ECtHR judgment, 14 January 2014) para 186 (Fourth Section).
51
Case of Golder v the United Kingdom, App no 4451/70 (ECtHR judgment, 21 February 1975).
52
Jens Vedsted-Hansen, UNHCR, Europe’s Response to the Arrival of Asylum Seekers: Refugee
Protection and Immigration Control (New Issues in Refugee Research 1999) 7. The duty to provide
a procedure for determining a claim (on an individual or group basis) is further inferred by the reference
to a well-founded fear (Article 1) and a corresponding duty of non-refoulement (Article 33).
53
The right to recognition as a refugee is explicitly mentioned in the Norwegian Immigration Act,
Section 28(5).
54
In Hirst v the UK, the ECtHR held that because the provision concerned, Article 3 of Protocol No.
1, did not specify or restrict legitimate aims, ‘(a) wide range of purposes may therefore be compatible
with Article 3’. Hirst v UK App no 74025/01, judgment, 6 October 2005 para 74 (Grand Chamber).
55
This provision provides that ‘(t)here shall be taken into account, together with the context …(a)
ny relevant rules of international law applicable in the relations’ when interpreting a treaty—emphasis
added. See, generally, Colin McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of
the Vienna Convention’ (2005) 54 International & Comparative Law Quarterly 279–320.

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138 Research handbook on international refugee law

to consider factors beyond the risk of direct or indirect refoulement. It also has procedural
consequences, in that the burden of proof to demonstrate a valid IPA lies clearly on the state’s
shoulders.56

3.3 Conclusion

In his groundbreaking study on the refugee concept, Grahl-Madsen observed in the 1960s
a tendency by states to overemphasize the ‘protection’ discourse in the determination of
refugee status:

The preoccupation with the refugee´s lack of protection leads to concerning oneself with ambivalent
symptoms rather than with the real issue, namely that it is characteristic for a refugee that his relations
to the authorities of his home country have become the negation of the normal relationship between
a State and its nationals.57

While this statement has broader implications as well, it is strikingly relevant to the current
discussion on IPA practice.
Recently, host states’ efforts to deflect and deter protection seekers have led to an expansion
of IPA practice. For the first time, some states have asserted that IPA application only requires
protection from persecution in the proposed return area. Additional human rights or human-
itarian considerations arising from the fact of internal displacement and/or the experience of
persecution are not, in their view, required by refugee law. While the ‘effective protection’ test
aligns with jurisprudence by human rights bodies examining state compliance with other inter-
national instruments, it is not clearly compatible with the Refugee Convention. Article 1A(2)
directs parties to recognize claimants who, owing to a well-founded fear, are legitimately
unwilling to accept protection by their home states.
This chapter has identified two possible treaty bases for IPA practice. The first introduces
an (implied) condition on refugee status: the claimant’s unwillingness to return must have
a rational basis in the well-founded fear. Alternatively, and perhaps preferably, the IPA
concept may be framed as a limit on the reach of Convention protection. The proportionality
analysis required by the doctrine of ‘implied limits’ in human rights and constitutional law
provides a structured way to contain the adverse impact of internal displacement.

56
According to the doctrine of implied limits in human rights law, the applicant has the burden of
proving the applicability of a right while the state must demonstrate that a limit is justified. See David
Harris and others, Harris, O´Boyle & Warbrick: Law of the European Convention on Human Rights (3rd
edn, Oxford University Press 2014) 148.
57
Atle Grahl-Madsen, The Status of Refugees in International Law (A.W. Sijthoff 1966) 98–9.

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10. Gatekeepers of asylum: UK country guidance,
indiscriminate violence and internal relocation
Satvinder S. Juss and Jeni Mitchell

1. INTRODUCTION

In the United Kingdom, the Home Office routinely deports failed asylum seekers to their
country of origin, including to some of the most dangerous countries in the world, such as
Afghanistan, Iraq and Somalia. The justifications for forcible return vary; caseworkers may
determine that the claimant’s account lacks credibility, or the Home Office may decide that
conditions in the country of origin have improved. Occasionally, particularly egregious cases
percolate into the national media and spur public outrage, such as when asylum was denied
to Afghan interpreters for the UK armed forces.1 Yet the general public seems unaware of an
ongoing and alarming UK policy known as ‘internal relocation’, in which even if it is accepted
that victims of war and persecution cannot be sent back to their hometowns, they can be forci-
bly returned to another area of their home country – even if they have no firm ties to that locale
and its living conditions are dire. The practical result is that asylum seekers are transformed
into internally displaced people in their war-torn homelands.
This policy is facilitated by an under-appreciated element of asylum law and policy: the
country guidance notes produced by the Home Office, which provide country of origin infor-
mation (COI) and legal guidance to assist decision-makers throughout the asylum process.
One of the most important elements of a Country Policy and Information Note (CPIN) is
the determination of whether a state of indiscriminate violence exists in all or part of a given
country. Many war refugees today apply for asylum not based upon the landmark 1951
Refugee Convention (which requires that an individual be at risk of persecution based on
certain protected characteristics) but upon the subsidiary protection criteria in Article 15(c)
of the European Union’s Qualification Directive (QD), which enables the granting of asylum
if return to the state of origin would pose a ‘serious and individual threat to a civilian’s life
or person by reason of indiscriminate violence in situations of international or internal armed
conflict’. Thus, the assessment of indiscriminate violence in the country guidance notes has
become a crucial determinant of whether refugees can obtain asylum in the UK.
If it is determined that a state of indiscriminate violence exists in only part of a war-torn
country, then internal relocation becomes an option. In this case, asylum is refused on the
grounds that the claimant can relocate to a less dangerous area of his or her home country,
even if the claimant does not have any close ties to that area. While each case is meant to be
evaluated on its own merits, the UK’s country guidance notes – which indicate which specific
regions of a country meet the threshold for indiscriminate violence – have become a powerful

1
‘Afghan interpreters working for UK army ‘failed’ by government’, The Guardian, 26 May 2018;
House of Commons Defence Committee, Lost in Translation? Afghan Interpreters and Other Locally
Employed Civilians, 26 May 2018.

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140 Research handbook on international refugee law

determinant of whether a claimant is essentially forced into a state of internal displacement

within his or her home country rather than granted asylum in the UK.
This chapter focuses on this critical yet under-examined element of the asylum process.
The UK Home Office has been subject to considerable criticism over the years regarding the
content and use of its country guidance products, which arguably contribute to its compara-
tively low acceptance rates for asylum seekers. In 2017, for example, the UK rejected nearly
70 per cent of asylum applications (on first decision), one of the highest refusal rates in the
European Union.2 It is therefore imperative to examine the country guidance framework and
its impact, and ask whether it currently conforms to international legal and humanitarian stand-
ards. This chapter proceeds with a two-pronged investigation.
First, we examine the role of UK country guidance notes in the asylum process and their
primary failings. Who contributes to their findings, and what sources are utilised? What are
the main criteria used in determining levels of indiscriminate violence? On what basis is it
concluded that internal relocation is a viable option instead of asylum? What measures of
accountability and transparency exist to bolster the credibility of COI?
Second, we interrogate the conceptual basis underlying ‘indiscriminate violence’ and its
facilitation of internal relocation. Within international refugee law (IRL), indiscriminate vio-
lence remains a nebulous term, and thus vulnerable to differing interpretations across national
jurisdictions. In an influential elaboration derived from the Elgafaji case, the CJEU found that:

[…] the degree of indiscriminate violence characterising the armed conflict taking place … [must
reach] such a high level that substantial grounds are shown for believing that a civilian, returned to
the relevant country or, as the case may be, to the relevant region, would, solely on account of his
presence on the territory of that country or region, face a real risk of being subject to the serious threat
referred in Article 15(c) of the Directive.3

The introduction of this concept of indiscriminate violence, and the decision to evaluate it
on a sub-national basis, has enabled and justified the UK policy of internal relocation. War
refugees must show not only that their home region is subject to extremely high levels of vio-
lence, but that there is nowhere else in their home country where they may safely relocate. For
example, Iraqi asylum seekers from regions overrun by the Islamic State have been instructed
to relocate to Baghdad, a city subject to suicide bombings and sectarian death squads, because
its violence is not considered sufficient to amount to ‘indiscriminate violence’.
There is a robust legal and ethical debate on internal relocation, to which this chapter
contributes in several ways. First, we examine the role of UK country guidance in facilitating
internal relocation, and ask whether determinations of indiscriminate violence are appropri-
ately made and reviewed, given their significant impact on asylum decisions. Second, while
the human rights implications of internal relocation have received substantial attention, there
has been less consideration of whether it also violates key principles of international human-
itarian law (IHL). Applying an IHL lens to forcible return leads us to conclude that current
UK practice not only fails to adhere to fundamental humanitarian principles regarding dis-
placement during armed conflict, but undermines the humanitarian legitimacy of refugee law

2
Eurostat Asylum Statistics (2018), available at: https://​ec​.europa​.eu/​eurostat/​statistics​-explained/​
index​.php​?title​=​Asylum​_statistics.
3
Elgafaji v. Staatssecretaris van Justitie, C-465/07, European Union: Court of Justice of the
European Union, 17 February 2009, para 43.

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 Gatekeepers of asylum 141

itself. Finally, we consider potential reforms that would enhance the humanitarian outcomes
of asylum decision-making in the UK.
The chapter proceeds as follows. Section 2 investigates the production and use of CPINs
and summarises the leading criticisms of them. Section 3 explores the different interpretations
of ‘indiscriminate violence’ in IRL and IHL, and the possibility of convergence between
the legal regimes on this issue. Section 4 explains the role of ‘indiscriminate violence’ and
country guidance in the UK practice of internal relocation, and asks whether it amounts to
forced displacement in violation of key IHL principles. Section 5 concludes the chapter with
a consideration of possible reforms.

2. COUNTRY POLICY AND INFORMATION NOTES: THEIR

ROLE AND THEIR FAILINGS

According to UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status, asylum decision-makers should have sufficient knowledge of conditions in the
country of origin to assess a claimant’s credibility. The UK’s Immigration Rules acknowledge
the importance of COI, clarifying that ‘reliable and up-to-date information shall be obtained
from various sources’ and made available to its asylum decision-makers.4
Asylum claims are the responsibility of the Home Office, specifically the UK Visas and
Immigration directorate (UKVI). Its caseworkers rely upon CPINs produced by the Home
Office’s Country Policy and Information Team (CPIT) on the 20 countries that produce the
most asylum claims. A CPIN provides information on the overall situation in a country, or
on a subset of asylum seekers relevant to that country. It assesses the political and security
situation and includes explicit guidance on the validity of asylum claims, based on case law
and government policy. It may also evaluate whether internal relocation in that country is
a justifiable alternative to granting asylum.
According to UKVI, it assesses COI for ‘relevance, reliability, accuracy, balance, currency,
transparency and traceability’, and its CPINs utilise multiple, publicly available sources ‘to
ensure that the information is accurate, balanced and corroborated’.5 CPINs are publicly
available and feedback from the general public (by email or post) is possible. The Independent
Advisory Group on Country Information (IAGCI) was established in 2009 to review all CPINs
and ensure that their content is as ‘accurate, balanced, impartial and as up to date as possible’.6
To fulfil this oversight function, IAGCI relies on reviews from independent experts (often
academics). The IAGCI advises the Independent Chief Inspector of Borders and Immigration
(ICIBI), who has a broader remit to review the efficacy of all Home Office border and immi-
gration functions.
Yet it is important to note that the creation of this oversight board was due to significant
concerns about the reliability and role of the Home Office’s COI products, and many of these
concerns remain. The following four concerns amount to a substantial critique of Home Office
CPINs and their role in the asylum decision-making process.

4
UK Immigration Rules, para 339JA.
5
These claims are standard language in the CPIN Introductions.
6
Independent Chief Inspector of the UK Border Agency (2011), ‘The Use of Country of Origin
Information in Deciding Asylum Applications’, para 4.9.

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142 Research handbook on international refugee law

2.1 Sourcing and Objectivity

Serious concerns about the accuracy and reliability of the UK’s COI led to the creation of the
IAGCI and its oversight functions in 2009. The IAGCI enjoys a good reputation both in the
UK and among international stakeholders,7 and since its creation the overall quality of COI
products appears to have significantly improved. The minutes of IAGCI board meetings, for
example, indicate that external academic experts have a generally good opinion of the CPINs
they are tasked to review.8
Nevertheless, there are still concerns – especially among refugee aid organisations – about
the use of sources and how information is characterised. For example, some CPINs have used
media reports from countries where the media is state-controlled, a questionable practice
when evaluating violations of human rights by the state. CPIT does not routinely engage with
non-English sources (due to translation costs) or with social media reports (which are difficult
to corroborate).9 In 2018, an ICIBI inspection report found that CPIT sometimes emphasises
that information is ‘unconfirmed’ when it does not support the official policy guidance, yet
does not include this caveat if the information supports the policy guidance.10
Problems with sourcing can create serious problems for claimants, as many Eritrean asylum
seekers found in 2015. In March of that year, new Home Office country guidance determined
that the human rights situation in Eritrea had improved, and that only political activists would
face serious risks upon return.11 The determination was largely based on a 2014 report from
the Danish Immigration Service; the report was quickly discredited by Danish experts and yet
still formed the basis for a significant shift in UK country guidance. As a direct result of the
new guidance, first-instance asylum approvals for Eritreans plummeted from 86 per cent to 42
per cent.12 Many applicants appealed, and roughly 85 per cent of those appeals were successful
(compared to a previous success rate of 43 per cent).13 In October 2016, the Upper Tribunal
rectified the situation in the country guidance case MST and Others, which reaffirmed that the
human rights situation in Eritrea remained sufficiently dire to create a broad risk of persecution
and harm for a significant portion of the population.14
More broadly, while COI products should strive for objectivity, there is an inherent problem
in considering any individual CPIN as completely objective and thus unchallengeable. This
issue was addressed by the UK Asylum and Immigration Tribunal in 2009:

It is still widespread practice for practitioners and judges to refer to ‘objective country evidence’ when
all they mean is background country evidence. In our view, to refer to such evidence as ‘objective’

7
Independent Chief Inspector of Borders and Immigration (2018), ‘An Inspection of the Home
Office’s Production and Use of Country of Origin Information’, paras 10.27 and 28.
8
IAGCI minutes are available online at: https://​www​.gov​.uk/​government/​organisations/​independent​
-chief​-inspector​-of​-borders​-and​-immigration/​about/​research, last accessed 23 April 2019.
9
Independent Chief Inspector of Borders and Immigration (2018), paras 10.39–10.42.
10
Ibid., para 3.23.
11
BBC News, ‘UK Rule Change Dilemma for Eritreans’, 24 April 2015. The March 2015 country
guidance is no longer available online.
12
UK Home Office, National Statistics: Asylum, January to March 2016 (available at: https://​www​
.gov​.uk/​government/​publications/​immigration​-statistics​-january​-to​-march​-2016/​asylum​#nationalities​
-applying​-for​-asylum, last accessed 23 April 2019).
13
Ibid.
14
MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC).

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 Gatekeepers of asylum 143

obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to
the COI standards just noted.15

The source of this problem is the longstanding tendency to distinguish between ‘subjective
evidence’ (evidence relating to the claimant) and ‘objective evidence’ (evidence on conditions
in the country of origin). While CPINs fall within this ‘objective evidence’ category, this alone
does not ensure that they are truly objective. Yet this nuanced distinction can be overlooked by
overworked caseworkers, resulting in insufficient scrutiny of COI products.

2.2 Inappropriate Use of COI

While there are fewer concerns today regarding the accuracy of CPINs, significant concern
remains regarding the manner in which they are used by decision-makers during initial deter-
minations. The 2018 ICIBI inspection report noted several troubling issues:16

●● The number of decision-makers has fallen considerably, and remaining staff have very
difficult targets for interviews and decisions, limiting the amount of background research
that can be conducted.
●● There is ‘limited evidence’ that decision-makers have consulted COI prior to interviews,
or make use of COI during interviews.
●● New staff are given minimal training on using COI. In a significant number of decisions,
outdated COI were referenced.
●● These pressures can generate a ‘cut and paste’ approach to decisions, with insufficient
scrutiny given to the particulars of an individual case. This is particularly troubling given
that many CPINs feature a very general analysis of safety and security.

In essence, while CPINs do emphasise that decision-makers should utilise additional sources
(including other COI products, case law and casework guidance), the inspectors found that
‘this does not match the reality’.17
A perusal of Rashid v. the Secretary of State for the Home Department [2005] offers an
instructive example of the misuse of COI. Prior to the US-led invasion of Iraq in 2003, it was
established UK policy that internal relocation to the Kurdish region of Iraq was limited to
those claimants who had been previously resident there, as the Kurdish authority would not
accept anyone from Iraq’s government-controlled regions due to limited resources. Yet this
policy was not always adhered to by caseworkers, as the government itself admitted in a letter
to the court: ‘[T]he general policy described was not consistently applied, and caseworkers and
presenting officers sometimes argued that internal relocation to the former KAZ for those from
government-controlled Iraq was a reasonable option….’18 Despite internal inquiries, the Home
Office ‘never got to the bottom of how some caseworkers knew [of the policy] and some did

15
TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049.
16
Independent Chief Inspector of Borders and Immigration (2018), paras 11.7–11.18.
17
Ibid., para 3.16.
18
Rashid v. the Secretary of State for the Home Department [2005] EWCA Civ 744, Court of
Appeal, para 5.

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144 Research handbook on international refugee law

not’.19 The Court of Appeal offered a scathing criticism of Home Office failures, attributing
them to ‘flagrant and prolonged incompetence’20 and finding that:

the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the
court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion.
This was far from a single error in an obscure field. A state of affairs was permitted to continue for
a long time and in relation to a country which at the time would have been expected to be in the
forefront of the respondent’s deliberations.21

Finally, there is ongoing concern that CPIT is not adequately resourced. When it was created
from two previously separate units in 2014, its staff was cut by one-third and its access to spe-
cialist research sources slashed, in what the ICIBI later critiqued as ‘aggressive cost-cutting’.22
The net effect is that COI products are not always updated in a timely manner, and requests
for new COI products cannot all be met. This results in decision-makers doing their own inde-
pendent research without any oversight or training, and thus decisions might be made on the
basis of inappropriate and unreliable COI.23

2.3 CPINs Combine Information and Policy

These concerns over the accuracy and use of CPINs could (in theory) be addressed fairly
easily, with more resources devoted to training and research. Yet there is a more substantive
critique of CPINs, which is that they combine country information and explicit policy guid-
ance. The ICIBI’s 2018 inspection report provided an emphatic critique:

In order to achieve the purpose set out by UNHCR and recognised in the Immigration Rules,
COI must be not only ‘reliable and up-to-date’ but must also be presented in a way that permits
decision-makers to reach their own objective judgements and decisions on individual applications. As
currently constructed, the Home Office’s COI products do not do this.
As their title implies, Country Policy and Information Notes (CPINs) combine country information
and ‘Policy’. This is wrong in principle and, whatever the intention, the effect is to direct the user
towards a predetermined outcome, particularly where a significant body of asylum decision makers
are inexperienced, unfamiliar with COI, have insufficient time to master every detail, and are likely
to interpret anything labelled ‘Policy’ as something they are required to follow.24

For example, a CPIN published on Iraq in March 2017 explicitly states, in its Policy Summary
section, ‘In general, humanitarian conditions in Iraq are not so severe as to make return a breach
of Articles 15(a) and (b) of the Qualification Directive/Articles 2 and 3 of the ECHR’.25 It then
notes that while the Upper Tribunal had determined in 2015 that a number of Iraqi locales fea-
tured a level of indiscriminate violence that precluded refoulement, the situation in several of

19
Ibid.
20
Ibid., para 53.
21
Ibid., para 36.
22
Independent Chief Inspector of Borders and Immigration (2018), para 3.5.
23
Ibid., paras 3.7 and 3.8.
24
Ibid., pp. 2–3.
25
Home Office, Iraq: Security and humanitarian situation, Country Policy and Information Note
(March 2017), p. 10.

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 Gatekeepers of asylum 145

these locations had improved and ‘no longer meet the threshold of Article 15(c)’.26 While the
text does instruct decision-makers to judge each case on its own merits, these sorts of explicit
determinations risk interfering with their ‘objective judgement’ of a case, and inspectors have
found that overworked decision-makers often rely exclusively on the CPIN’s policy guidance
and neglect to read the longer and broader context of the country information.27 It is worth
noting that in 2017, the Home Office decided 1,844 cases from Iraqi asylum seekers and
refused asylum in 1,476 of them.28 That same year, more than a third of appeals lodged by Iraqi
asylum seekers were successful in overturning the initial refusal.29
The Independent Chief Inspector concluded that this practice of combining information
and policy is such a significant problem that ‘any assurances I am able to give in relation to
this area of the Home Office’s work must remain heavily qualified’.30 In its response to the
report, the Home Office stated that it would use different language going forward (substituting
‘analysis’ for ‘policy guidance’) but insisted that it would continue to present guidance on
policy ‘to help hard-pressed caseworkers draw appropriate conclusions from the COI’.31 As
noted in the ICIBI report, this inclusion of policy guidance in COI products runs counter to
EU guidelines.32

2.4 Reliance on CPINs Creates a ‘Reverse Burden of Proof’ for Asylum Claimants

A number of jurists and academics have criticised the central role of COI in asylum processes
around the world. Rodger Haines QC, a co-founder of New Zealand’s immigration appeals
system, has observed that there is ‘an inherent limitation on the extent to which COI can assist
the decision maker in making an assessment of the risk faced by the claimant’, because the
‘individualized risk of being persecuted’ gives each claim a unique set of qualifying circum-
stances.33 The idea that COI can predict an individual’s risk of future harm (the very basis for
deciding an asylum claim) is also misguided.
Haines argues that the reliance on evidence that is not specific to the individual claimant
creates an implicit ‘reverse burden of proof’.34 As Sedley LJ once said, ‘immigration judges
are expected to follow the country guidance’, with the exception of when ‘acceptable evidence
is placed before them by either party which shows it to have been incorrect or to be no longer
correct in some significant respects’.35 The evidence challenging established country guidance

26
Ibid., p. 11.
27
Independent Chief Inspector of Borders and Immigration (2018), para 3.17.
28
Refugee Council Asylum Statistics (February 2018), p. 3.
29
Ibid., p. 4.
30
Independent Chief Inspector of Borders and Immigration (2018), p. 3.
31
Home Office Response to the Independent Chief Inspector of Borders and Immigration’s Report,
p. 2.
32
The ICIBI report also noted that the Home Office deviates from EU guidelines in a number of
areas, arbitrarily and without explanation. Independent Chief Inspector of Borders and Immigration
(2018), paras 3.24 and 3.25.
33
Rodger Haines QC, ‘Country Information and Evidence Assessment in New Zealand’, in
Satvinder Juss (ed.) The Ashgate Research Companion to Migration Law, Theory and Policy (Farnham,
Surrey: 2013), p. 162.
34
Ibid., p. 176.
35
KH (Sudan) v. Secretary of State for the Home Department [2008] EWCA Civ 887 at para 8.

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146 Research handbook on international refugee law

must constitute ‘facts of sufficient weight’.36 In essence, the Home Office (itself a party to the
decision) establishes a default and generalised country guidance, with the burden of proof on
individual claimants to challenge any misleading or incorrect information. For this reason,
a number of legal aid organisations publish lengthy guidance on how to assemble sufficient
evidence to challenge COI as part of the appeals process.
Haines has also been critical of how COI is deployed to assess a claimant’s credibility,
a core element of the asylum process. In the UK, most asylum refusals are attributed to
a claimant’s lack of credibility; as the Immigration Appeal Tribunal has explained, findings
of credibility ‘lead to the establishment of much of the factual matrix for the determination
of the case. In some cases, but by no means all, the issue of credibility may be the fulcrum of
the decision as to whether the claim succeeds or fails’.37 Haines argues, ‘[i]n some cases the
question posed is whether the claimant’s account is consistent with COI – and therefore more
likely to be credible, or whether the account is inconsistent with COI – and therefore more
likely to be not credible’.38
According to the Home Office’s Asylum Policy Instruction: Assessing Credibility and
Refugee Status (2015), claimants should be given the opportunity to ‘explain any inconsisten-
cies between their account and the COI’.39 In practice, however, such inconsistences are likely
to doom a claimant’s chances in the initial decision, and the only hope is to provide enough
substantiating evidence to overturn the refusal on appeal. According to the European Council
on Refugees and Exiles, ‘Case analysis in the UK showed cases where the applicant’s assess-
ment of risk, which had been rejected by the Home Office without objective reasons, was later
supported by expert independent evidence. The applicant’s own knowledge of her country was
not given the weight it merited’.40
In sum, there exist serious concerns about CPINs and their role in the asylum decision-making
process. We now turn to an additional area of concern and the focus of this chapter: the treat-
ment of ‘indiscriminate violence’ in CPINs and its impact on internal relocation decisions.

3. INDISCRIMINATE VIOLENCE: COMPETING LEGAL AND

STRATEGIC INTERPRETATIONS

The concepts of indiscriminate violence and internal relocation are interpreted in significantly
different fashion across the regimes of IRL, IHL and international human rights law (IHRL).
In addition, the strategic studies discipline – an important field for understanding the conflict
dynamics generating millions of refugees today – tends to interpret indiscriminate violence
along IHL lines, and this is a potential obstacle for absorbing the findings of conflict scholars
into the asylum decision-making process.41 This section explores these different legal and

36
Ibid., para 4.
37
SW v. Secretary of State for the Home Department (Adjudicator’s questions) Somalia [2005]
UKIAT00037, para. 20.
38
Haines QC (n 33) p. 180.
39
Home Office (2015), Asylum Policy Instruction: Assessing Credibility and Refugee Status, p. 9.
40
European Council on Refugees and Exiles, Actors of Protection and the Application of the Internal
Protection Alternative: European Comparative Report (2014), p. 59.
41
For example, see the Tribunal’s reservations regarding expert testimony in KH (n 35), paras
197–203.

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analytical interpretations, and the following section then considers their implications for the
legitimacy of internal relocation policies.

3.1 Indiscriminate Violence in International Refugee Law

‘Indiscriminate violence’ is a key element of the subsidiary protection frameworks that have
emerged to compensate for significant gaps in asylum law for war refugees. The drafters of
the 1951 Refugee Convention purposefully did not consider ‘fleeing from hostilities’ alone
to be grounds for asylum,42 and this was reaffirmed as late as 1979 by UNHCR’s landmark
Handbook on Procedures and Criteria for Determining Refugee Status, which confirmed that
‘persons compelled to leave their country of origin as a result of international or national armed
conflicts are not normally considered refugees’, except in special cases.43 Yet this became an
increasingly serious issue as global refugee flows related to armed conflict soared in recent
decades. There were more than 25 million refugees worldwide in 2017, with a large majority
fleeing from countries experiencing conflict or ethnic violence; Syria and Afghanistan alone
accounted for about 9 million refugees that year.44 The scale of the problem has led to a number
of regional initiatives that attempt to provide a greater scope for asylum for war refugees. For
the purposes of this chapter, the most relevant is the European Union’s Qualification Directive
of 2004.45 Its Article 15(c) enables the granting of asylum if return to the state of origin would
pose a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate
violence in situations of international or internal armed conflict’.
The term ‘indiscriminate violence’ is not well defined within IRL, but following the
Elgafaji decision cited earlier, it generally refers to a situation in which an individual is at risk
of serious harm simply by being present in a given territory. In practice, it is often equated
with a very high level and intensity of generalised violence, meaning that an individual does
not need to show they are at risk due to a specified characteristic, as they must when seeking
asylum on Refugee Convention grounds.
A significant body of European and UK case law has attempted to graft more substance on to
this nebulous term, with real-world impact on decision-making. For example, the Home Office
has operationalised the findings of the ECJ Elgafaji case and the UK’s QD and AH (Iraq) case
in creating the following test for determining whether a state of indiscriminate violence exists:
‘Is there in [Country] or a material part of it such a high level of indiscriminate violence that
substantial grounds exist for believing that an applicant would, solely by being present there,
face a real risk which threatens their life or person?’46 It has also become common practice
(again, based on Elgafaji) to apply a ‘sliding scale’ approach to asylum decisions, so that ‘the
more an applicant is able to show that he is specifically affected by reason of factors particular

42
T. Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’, in A. Zimmerman
(ed.) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary
(OUP, 2011), pp. 37–73.
43
UNHCR (1979), Handbook on Procedures and Criteria for Determining Refugee Status, para 164.
44
UNHCR, Global Trends: Forced Displacement in 2017 (Geneva, 2018). These numbers are in
addition to the 40 million internally displaced individuals worldwide.
45
It was preceded by the 1969 Organisation of African Unity Convention Governing the Specific
Aspects of Refugee Problems in Africa, and the 1984 Cartagena Declaration on Refugees, both of which
included flight from conflict and aggression as grounds for refugee status.
46
Home Office (2017), Humanitarian Protection, p. 13.

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to his personal circumstances, the lower the level of indiscriminate violence required for him
to be eligible for subsidiary protection’.47
Importantly, UK case law has established that indiscriminate violence and targeted violence
are not mutually exclusive. In HM and Others (Article 15(c)), the Upper Tribunal clarified that
contrary to Home Office arguments, the use of targeted violence in a conflict (in this case, in
Iraq) does not diminish the existence of indiscriminate violence:

We are unable to accept the respondent’s [i.e., the Home Office’s] position (as most forcefully
expressed in the July submissions) that the fact of more targeted violence per se means less indiscrim-
inate violence. As noted earlier, targeted violence encompasses both specific and general targeting. As
both parties acknowledge, some violence, albeit targeted, can harm civilians in significant numbers.48

The Tribunal also quoted its findings in AK (Afghanistan) that ‘it can never be right to
attempt some simple subtraction of targeted violence from the overall sum of indiscriminate
violence’.49
While this clarification is welcome, in the sense that it resists attempts to raise the threshold
for Article 15(c) considerations and limit the scope for asylum, it also serves to make the defi-
nition of indiscriminate violence even more confused (especially compared to the rather clear
and straightforward definition of indiscriminate violence within IHL). Indiscriminate violence
can be targeted and specific, or seemingly random and generalised. In practice, it seems to just
mean ‘an extreme level of violence across a given area’. It is unfortunate that ‘indiscriminate’
was chosen as a modifier in this context, as it seems to have generated more confusion than
clarity; as the legal scholar Jean-François Durieux has lamented, ‘I remain deeply sceptical
about any rational way of resolving the contradictions inherent in the wording of Article
15(c).’50 Unfortunately, this ambiguity can facilitate attempts to restrict the scope of asylum.
On the other hand, as Juss has explained, ‘Article 15(c) can only be understood as a sui generic
provision unique to the special circumstances of “war refugees” that it seeks to address.’51 Juss
bases this on the dictum of Sedley LJ in QD (Iraq)52 a decade ago that the non-refoulement
obligations ‘assumed by all EU member states as part of the Council of Europe’ as well as ‘the
humanitarian practices adopted by many EU states, towards individuals who manifestly need
protection’ apply to those civilians who find themselves ‘imperilled by endemic violence’.53
Otherwise, the application of Article 15(c) provides the challenge that ‘an applicant had to
show a risk that was “individual” to him or her, but one which was at the same time from an
“indiscriminate” source, not specifically directed to the individual’. As Juss explains, ‘[i]t is

47
Elgafaji (n 3) paras 38 and 39.
48
HM and others (Article 15(c)) Iraq CG [2012] UKUT 409 (IAC) (available at http://​www​.bailii​
.org/​uk/​cases/​UKUT/​IAC/​2012/​00409​_ukut​_iac​_2012​_hm​_ors​_iraq​_cg​.html, last accessed 23 April
2019), para 292.
49
AK (Article 15(c)) (Afghanistan) CG [2012] UKUT 163 (IAC)
(available at http://​www​.bailii​.org/​uk/​cases/​UKUT/​IAC/​2012/​163​.html, last accessed 23 April 2019),
para 207.
50
Jean-François Durieux, ‘Of War, Flows, Laws and Flaws: A Reply to Hugo Storey’, (2012) 31(3)
Refugee Survey Quarterly 161–76, 173.
51
Satvinder S. Juss, ‘Problematizing the Protection of ‘War Refugees’: A Rejoinder to Hugo Storey
and Jean François-Durieux’ (2013) 32(1) Refugee Survey Quarterly 122–47, 126.
52
QD (Iraq) v. Secretary of State for the Home Department [2009] EWCA Civ 620.
53
Ibid., at para 9.

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not immediately clear how one can merge a requirement of “individual threat” with the nature
of “indiscriminate violence”. Indeed, “indiscriminate violence” is a misnomer. What we are
looking at is “indiscriminate impact” of the indiscriminate violence’, in his view.54

3.2 Indiscriminate Violence in International Humanitarian Law and Strategic

Studies

The rhetorical and logical convolutions that attend the concept of indiscriminate violence
within IRL are less common when the term is considered within IHL, a distinct legal regime
governing conduct in armed conflicts. Indiscriminate attacks are defined in Additional
Protocol I (1977) to the Geneva Conventions in the following way:

Indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military
objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as
required by this Protocol; and consequently, in each such case, are of a nature to strike military
objectives and civilians or civilian objects without distinction.55

While the scope of Additional Protocol I is limited to international armed conflicts, it is

accepted as a matter of customary international law that the prohibition on indiscriminate
attacks applies in non-international armed conflicts as well.56 The essential IHL principle
of distinction in the use of force (i.e., distinguishing between military and civilian targets,
or between combatants and non-combatants) is the foundation for defining and prohibiting
indiscriminate attacks.
This legal conceptualisation of indiscriminate attacks is the basis for the concept of indis-
criminate violence, which has emerged as an important subject within strategic studies as part
of the post-Cold War focus on intrastate conflicts and irregular warfare. Unlike in international
conflicts, where adversaries generally maintain control over the population in their own sov-
ereign territories, in intrastate conflicts the population is divided upon itself, and violence is
situated ‘amongst the people’.57 The competition for popular support and territorial control
within a sovereign state usually generates much higher levels of civilian victimisation, includ-
ing significant amounts of indiscriminate violence.58
Exact definitions of indiscriminate violence vary among leading scholars. According to
Alexander Downes, it is ‘violence in which people are targeted based not on what they have
done, but rather because of their appearance, race, religion, where they live, or their proximity
to a rebel attack’.59 Stathis Kalyvas explains that indiscriminate violence ‘implies collective
targeting’, wherein ‘the concept of individual guilt is replaced by the concept of guilt by

54
Juss (n 51), 127.
55
Article 51(4) of Additional Protocol I.
56
ICRC ruling: https://​ihl​-databases​.icrc​.org/​customary​-ihl/​eng/​docs/​v1​_rul​_rule12.
57
Rupert Smith (2005), The Utility of Force: The Art of War in the Modern World (London: Allen
Lane).
58
William Eckhardt, ‘Civilian Deaths in Wartime’, (1989) 20(1) Security Dialogue 89–98.
59
Alexander Downes, ‘Draining the Sea by Filling the Graves: Investigating the Effectiveness of
Indiscriminate Violence as a Counterinsurgency Strategy’, (2007) 9(4) Civil Wars 425.

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association’,60 while Jason Lyall supplies a pithy characterisation: ‘collective targeting of the
noncombatant population’.61 Yet the basic contours of the concept are clear. Indiscriminate
violence occurs when combatants either neglect to distinguish between civilian and military
targets, or target a group of people based on some characteristic of identity rather than individ-
ual involvement in the conflict.
Studies of indiscriminate violence usually contrast it with selective violence, and much anal-
ysis has been devoted to which is more effective, and what leads combatants to prefer one to
the other.62 Certain propositions enjoy widespread consensus. Indiscriminate violence is easier
and less costly, for example, because less effort need be expended on identifying appropriate
targets and isolating them from innocent civilians.63 It requires less sophisticated weaponry,
and civilian targets are easier to access than well-defended military targets. For government
actors, it can be difficult to acquire sufficient intelligence to identify insurgents within the
general population.64 Finally, indiscriminate violence can be tempting simply because it is
often rather effective, enabling a government to quickly crush a resistance movement, or
allowing a small insurgent force to acquire territory and resources by provoking thousands
of people to flee their homes.65 The apparent success of barbarism is one of the most critical
factors explaining its widespread occurrence in modern conflict.66
These incentives to engage in indiscriminate violence tend to overshadow the potential
risks, which is why combatants pursue it even when it may turn out to be counterproductive.
Indiscriminate violence violates international law, but perhaps more importantly it also vio-
lates strong social norms – which exist in virtually every society – against the victimisation
of vulnerable people.67 Consequently, combatants that use indiscriminate violence may suffer
an irreversible loss of legitimacy, a crucial resource in insurgencies and civil wars where the

60
Stathis Kalyvas, The Logic of Violence in Civil War (New York: Cambridge University Press:
2006), p. 142.
61
Jason Lyall, ‘Does Indiscriminate Violence Incite Insurgent Attacks? Evidence from Chechnya’,
(2009) 53(3) Journal of Conflict Resolution 331.
62
Downes (n 59); Kalyvas (n 60); Stathis Kalyvas, ‘Wanton and Senseless? The Logic of Massacres
in Algeria’, (1999) 11(3) Rationality and Society 243–63; George Kassimeris (ed.), The Barbarisation
of Warfare (London: Hurst & Co 2006); Stuart Kaufman, ‘Symbolic Politics or Rational Choice?
Testing Theories of Extreme Ethnic Violence’, (2006) 30(4) International Security 45–86; Hugo Slim,
Killing Civilians: Method, Madness and Morality in War (London: Hurst & Company 2007); Benjamin
Valentino, et al., ‘Draining the Sea: Mass Killing and Guerrilla Warfare’, (2004) 58(2) International
Organisation 375–407.
63
Kelly Greenhill, ‘Strategic Engineered Migration as a Weapon of War’, (2008) 10(1) Civil Wars
6–21; Stathis Kalyvas, ‘The Paradox of Terrorism in Civil War’, (2004) 8(1) Journal of Ethics 97–138.
64
This is the central dynamic underlying Kalyvas’ seminal work, The Logic of Violence in Civil War
(n 60).
65
See, e.g., Downes (n 59); Greenhill (n 63). See also: Mary Kaldor, New and Old Wars (Stanford:
Stanford University Press 2007).
66
Downes, ibid; Lyall (n 61); Jeni Mitchell, ‘Civilian Victimisation during the Tajik Civil War:
A Typology and Strategic Assessment’, (2015) 34(3) Central Asia Survey 357–72; Slim (n 62). It is
important to consider short-term vs. long-term success, however; Arreguin-Toft, for example, argues
that barbarism may be effective in the short term but can lead to strategic failure in the long term.
Ivan Arreguin-Toft, ‘How the Weak Win Wars: A Theory of Asymmetric Conflict’, (2001) 26(1)
International Security 93–128.
67
Michael Walzer, Just and Unjust Wars (New York: Basic Books 2006), 42.

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loyalty of the population is at stake.68 Indiscriminate violence also reduces incentives for
civilians to cooperate with and support a conflict actor; there is little incentive to collabo-
rate if victimisation will occur regardless of personal behaviour.69 Indiscriminate violence
on a massive scale can lead to international intervention, at great cost to the perpetrators.70
Finally, the effects of indiscriminate violence – high levels of casualties and mass flight – can
disrupt profitable legal and illegal economic activities, limiting the resources available for
sustaining conflict.
A common thread throughout this consideration of costs and benefits is an understanding
among conflict scholars that, as Kalyvas explains, ‘violence is primarily a resource rather than
the final product; it is intended to shape the behaviour of a targeted audience by altering the
expected value of particular actions’.71 His influential theory of civil war violence suggests
that it is most intense in regions that are heavily contested by a regime and an insurgency,
because it is here that conflict actors have the greatest need for civilian-provided support and
intelligence, and violence is an effective tool for generating compliance and collaboration. It
is not simply an unfortunate by-product of military engagements, but also a useful mechanism
that is intentionally deployed for strategic advantage.
This interpretation of civil war violence is perhaps insufficiently appreciated among schol-
ars and practitioners of refugee law, where civilian victimisation is seen as more of an ‘end’
(and often an unintentional one) than a ‘means’. To the extent that asylum decisions rely upon
an understanding of the aims and intentions of conflict actors, and an estimate of the likelihood
of their perpetuation of civilian victimisation and the potential risk to the claimant, this is
unfortunate.
In short, while there is considerable debate over the drivers and effectiveness of indiscrim-
inate violence, it is clear that the understanding of the term within strategic studies is closely
affiliated with the concept of indiscriminate attacks within IHL. By contrast, the interpretation
of indiscriminate violence within IRL is fairly incomprehensible from a strategic studies
perspective. Within both strategic studies and IHL, determinations of an indiscriminate use of
force do not depend on a certain intensity of violence or a certain number of victims.72 This is
one reason for the considerable gap between the legal regimes, but there are a number of other
factors, to which we now turn.

3.3 The Limits of Convergence Between IRL and IHL

It is clear that the legal regimes of IRL and IHL are very different in content and purpose. IRL
is intended to facilitate the protection of individuals who can no longer obtain such protection

68
Olivier Bangerter, ‘Reasons Why Armed Groups Choose to Respect International Humanitarian
Law or Not’, (2011) 93(882) International Review of the Red Cross 353–84; Martha Crenshaw, ‘The
Logic of Terrorism: Terrorist Behavior as a Product of Strategic Choice’ in Walter Reich (ed.) Origins
of Terrorism (Cambridge: Cambridge University Press 1990); Steven Metz, Rethinking Insurgency
(Carlisle, Penn.: Strategic Studies Institute 2007).
69
Downes (n 59), 421.
70
Examples include the international intervention that deposed Muammar Qaddafi in Libya, and the
international coalition airstrikes against Islamic State in Iraq and Syria.
71
Kalyvas (n 63), 100.
72
Intensity and scope of violence may come into play within international criminal law (ICL) and the
prosecution of war crimes.

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from their home government, while IHL governs the conduct of combatants in situations of
armed conflict. Yet there are important shared elements between the two legal paradigms.
Both emerged from customary norms into a more codified form as a result of the barbarity
of the Second World War; both have relied on case law to spur significant evolutions and
improvements; and both have been significantly affected by the emergence of the human
rights paradigm. Most important, the essential aim of both IRL and IHL is broadly the same:
the protection of civilians subject to persecution and violence. They share a humanitarian
purpose that overshadows the legal and operational boundaries so rigorously policed by their
respective practitioners.73
A robust debate has been conducted about the feasibility and desirability of importing IHL
norms and principles into IRL, especially since the advent of subsidiary protection.74 The jurist
Hugo Storey emerged as the foremost advocate of bringing IHL norms into IRL, arguing in
an influential article:

In order to overcome what has been a longstanding shortcoming of refugee jurisprudence (the
‘war-flaw’), it is time that the international human rights paradigm currently operated by refugee
decision-makers was revised so as to take into account the increasing recognition by international
human rights bodies that IHRL norms are insufficient in order to ensure analysis of situations of
armed conflict fully accords with international law principles.75

Storey noted that IHL has been judged to be lex specialis in situations of armed conflict by the
International Court of Justice, and so it should be the primary reference point for legal matters
related to the victims of conflict. The interpretation of Article 15(c) should be ‘IHL-led’,
although not IHL-exclusive.76 Unfortunately, he explained, asylum decision-makers have
either ‘applied IHRL norms, in line with a prevailing version of the human rights law paradigm
(which largely ignores IHL), or they have sought to develop their own autonomous criteria’.77
This latter point on ‘autonomous criteria’ lies at the heart of Storey’s second and more
compelling argument. National practice in interpreting and applying Article 15(c) has proven
remarkably divergent across the EU. The lack of clarity in the provision’s wording has led
each member state to develop its own criteria for assessing indiscriminate violence and to rely
on case law for evolving understandings. Unfortunately, this is the opposite of the Directive’s
aim of improving the conformity of asylum practice across the EU. Storey argued that if IHL
norms, which are well established within international law and cover a broad range of con-
flict activity, were to be used more often to inform interpretation of Article 15(c), this would
increase reliance on international law rather than national law and thus reduce divergence
across the EU.

73
Jennifer Moore, ‘Protection Against the Forced Return of War Refugees’ in David James
Cantor and Jean-François Durieux (eds), Refuge from Inhumanity? War Refugees and International
Humanitarian Law (Leiden: Brill 2014), 411.
74
The wide-ranging nature of this debate is well captured in Cantor and Durieux, ibid.
75
Hugo Storey, ‘Armed Conflict in Asylum Law: The ‘War-Flaw’, (2012) 31(2) Refugee Survey
Quarterly 32.
76
Ibid., 25.
77
Ibid., 19.

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Finally, Storey argued that the use of IHL norms could help with efforts to assess indiscrim-
inate violence qualitatively as well as quantitatively.78 Rather than relying on brute evaluation
of a certain level and intensity of violence, the character of that violence would be given more
weight (i.e., to what extent are combatants adhering to the law of armed conflict, and abiding
by the principles of necessity, distinction and proportionality?) Storey argued that IHL has
an ‘excellent toolkit’, a real wealth of case law and customary law that would be useful in
interpreting Article 15(c).79 By not drawing upon this, each state essentially develops its own
toolkit and approach. Even UNHCR, which has expressed concerns about national divergence,
promotes its own definitions and interpretations; in its influential Safe at Last report it ‘urges
caution in drawing upon international humanitarian law and international criminal law to
interpret the scope of Article 15 (c)’.80
Storey’s argument for bringing IHL norms into IRL practice met with considerable opposi-
tion. A broad range of scholars and practitioners rejected the very foundation of his suggested
approach, arguing simply that IRL and IHL are distinct legal regimes with very different
purposes. The meaning of key terms – especially indiscriminate violence – varies considerably
between them, and not everyone agrees that the IHL ‘toolkit’ is as robust as Storey argued.81
For some terms, such as armed conflict, IHL lacks a legal definition. There are simply too
many hurdles to bridge in trying to converge such different legal regimes. Even scholars
generally sympathetic to increased convergence between IRL and IHL argued that Storey’s
approach went too far in proposing IHL norms as the primary point of departure.82
Finally, there is a compelling argument that applying IHL norms to IRL may actually
weaken refugee protection.83 It is important to remember that within IHL, unlike IHRL, not all
harm to civilians is unlawful. If combatants adhere to the principles of necessity, distinction
and proportionality, then ‘collateral’ civilian casualties are not unlawful – and, importantly,
they are not considered to be indiscriminate violence (because an effort has been made to
distinguish between military and civilian targets). Paradoxically, therefore, if one interprets
Article 15(c) using IHL definitions, then a substantial amount of violence within a country
may be considered not relevant when evaluating whether there is sufficient indiscriminate
violence to invoke Article 15(c) (i.e., the lawful use of discriminatory force will not fall within
the sphere of indiscriminate violence, even if that violence causes a fair amount of harm to
civilians). This is a compelling argument, and yet we will argue below that this issue may be
addressed via recourse to additional IHL norms.
This debate over convergence between IRL and IHL is not merely an abstraction, but has
intruded into real-world decision-making and case law. Its contours can be well illustrated by
examining the UK Asylum and Immigration Tribunal case KH (Article 15(c) Qualification
Directive) Iraq CG [2008], which was the second time that the Tribunal ‘looked in any depth

78
This intention has been evident in the case law, e.g., Sufi and Elmi v. United Kingdom - 8319/07
[2011] ECHR 1045 (available at http://​www​.bailii​.org/​eu/​cases/​ECHR/​2011/​1045​.html, last accessed 23
Aprip 2019) (see ibid., 24).
79
Ibid., 29.
80
UNHCR (2011), ‘Safe at Last? Law and Practice in Selected EU Member States with Respect to
Asylum-Seekers Fleeing Indiscriminate Violence’, 104.
81
See KH (n 35), para 18.
82
For example, Durieux (n 50).
83
This is well summarised in Céline Bauloz, ‘The (Mis)Use of International Humanitarian Law
under Article 15(c) of the EU Qualification Directive’, in Cantor and Durieux (n 73).

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at Article 15(c)’.84 Storey was a member of the Tribunal, which helps explain the overall
approach taken, as summarised in the initial findings:

(1) Key terms found in Article 15(c) of the Qualification Directive are to be given an inter-
national humanitarian law (IHL) meaning…
(2) Article 15(c)…is limited so as to make eligible for subsidiary protection (humanitarian
protection) only a subset of civilians: those who can show that as civilians they face on
return a real risk of suffering certain types of serious violations of IHL caused by indis-
criminate violence [emphasis added].

This adaptation of the original language of 15(c) is not simply a semantic one. It is an attempt
to give additional clarity to what indiscriminate violence entails, and provide an opening for
drawing upon IHL norms and case law in determining the nature of conflict violence and the
risk of harm to the applicant. This is necessary because:

On any reading Article 15(c) is tortuously worded. Most conspicuously, if it is given an ordinary
language reading then it would appear to contain a near contradiction in terms. On the one hand,
it requires that the threat must be one which is ‘individual’; on the other hand it requires that such
a threat must be by reason of violence which is indiscriminate, meaning, in ordinary language,
random or arbitrary. But if violence is random or arbitrary then it is not individualised and so it is
exceedingly difficult to see how it can ever give rise to an individual threat…
Once one adopts a purposive approach, the reasons for giving as far as possible an IHL meaning to
key terms in Article 15(c) are overwhelming.85

The Tribunal then listed a lengthy list of justifications for adopting an IHL-led approach:

1. A number of other EU courts and tribunals have taken an IHL approach to 15(c).
2. The terminology of 15(c) clearly derives from IHL.
3. The drafting history reveals that IHL ‘was one of two sources of law (along with Strasbourg
case law) of particular relevance in the context of formulating Article 15(c)’.86
4. Applying IHL norms would make interpretations more consistent across the EU, a key aim
of the Directive. IHL norms are already embedded within EU law and national laws.
5. While international obligations under IHRL are emphasised in the QD and IRL generally,
this does not preclude drawing on IHL, especially since IHL and IHRL ‘share the same
underlying principles and overlap’.87 In addition, the ICJ has judged IHL to be lex specialis
in situations of armed conflict.
6. The last reason given is ‘the most compelling’. The aim of the Directive is to expand the
protection of victims of armed conflict, while maintaining some sort of limit so that it does
not apply universally. How can this be done?

In our view the only principled basis that stands scrutiny is this: that it must be wrong to seek to
refoule persons who on return would face a real risk of being the victims of international crimes
caused by a serious threat of indiscriminate violence…Article 15(c) reflects the view that it cannot be

84
KH (n 35), para 27.
85
Ibid., paras 32–33.
86
Ibid., para 38.
87
Ibid., para 48.

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right in principle to return civilians to a situation where they, likewise, would face a realistic threat of
being victims of war crimes or other serious breaches of IHL.88

The Tribunal rejected the government’s argument that IHL and IRL have very different
purposes, stating that ‘both legal regimes have protective purposes’.89 It also disagreed that
IHL lacks useful definitions (for example for ‘armed conflict’) and that the binary structure of
IHL (in which rules may vary depending on whether it is an international or non-international
conflict) would present obstacles.
Finally, the Tribunal defined indiscriminate violence according to IHL norms. It began by
noting criticism of the term, in particular the fact that an ordinary reading of ‘indiscriminate
violence’ would imply that it refers to random, arbitrary and generalised violence. This is
a problem because 15(c) requires the applicant to demonstrate a ‘serious and individual threat’
to his life or person. But the use of IHL norms would help attenuate this problem, because
then ‘the concept of “indiscriminate violence” (affecting a civilian’s life or person) within
Article 15(c) is best understood as denoting violence which, by virtue of failing to discriminate
between military and civilian targets, violates peremptory norms of IHL’.90 This introduces
a seemingly subtle, but in fact quite substantial new approach to 15(c):

….what the above approach requires is that the fact-finder look at the evidence relating to the scale
and frequency and geographical distribution of IV. It is not the overall level and degree of violence in
the country or the relevant area of the country which is key, although that will be a relevant factor. It
is the extent of the violence of a particular kind and… the violence which disproportionately threatens
the life or person of civilians.91

In other words, determinations of indiscriminate violence within IRL are best made by
judging the extent of IHL violations, rather than deciding that a certain level or intensity of
violence suddenly amounts to indiscriminate violence. The former relies on international and
well-supported norms and case law, while the latter invites arbitrary judgments and consider-
able divergence among states.
Nevertheless, the Tribunal rejected the appeal in this case, finding that while the level of
indiscriminate violence in Iraq was ‘indisputably high’, it did not pose a real risk of serious
harm to civilians in general, and the applicant had not demonstrated that his personal circum-
stances put him at greater risk of harm than the general population. Arguably, this decision
supports the objection to IRL/IHL convergence noted earlier: by adopting an IHL definition
of indiscriminate violence, the Tribunal actually narrowed the scope of violence under con-
sideration. Targeted violence (i.e., the lawful use of force) was excluded even if it resulted in
significant civilian harm.
Criticism of this particular element was broadly accepted by the Court of Appeal in a later
case, QD (Iraq), which soundly rejected the IHL approach taken in KH. While expressing
some sympathy with the argumentation, the court found that IHL:

88
Ibid., para 51.
89
Ibid., para 54.
90
Ibid., para 93.
91
Ibid., para 100.

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has a specific area of operation. It also, however, has defined and limited purposes which do not
include the grant of refuge to people who flee armed conflict. This should, we respectfully think,
have sounded a warning bell to the tribunal which decided KH…. We consider that the Directive [the
QD] has to stand on its own legs and to be treated, so far as it does not expressly or manifestly adopt
extraneous sources of law, as autonomous.92

Thus, at first glance, these two cases appear to uphold the arguments of those who object to
a greater appreciation of IHL norms within IRL jurisprudence. Yet there are several reasons to
question whether the IHL-led approach is doomed.
First, as noted earlier, the question of how to assess targeted violence has since been clar-
ified. There is now a general understanding that targeted violence that harms civilians is still
to be considered within the IRL understanding of indiscriminate violence. Yet this does not
have to be incompatible with drawing upon IHL principles. Adopting a synergistic approach,
we could create a definition of indiscriminate violence for IRL purposes as, effectively: (1)
the IHL definition of indiscriminate violence, and (2) the civilian casualties of discriminate
violence. Both of these categories are well understood within IHL, and thus still offer more
clarity than the current IRL approach of some kind of generalised intensity of violence.
Second, one might argue that the Tribunal in the KH case applied IHL norms far too nar-
rowly, simply applying IHL definitions to IRL terminology. This can be seen in their approach
to ‘targeted violence’, which they excluded from their evaluation of indiscriminate violence
in Iraq, stating ‘indiscriminate violence is only part of the overall violence which afflicts Iraq;
it does not include, for example, targeted violence which combatants direct against each other
which is not contrary to IHL norms’.93 Yet their interpretation of ‘not contrary to IHL norms’
appears limited to whether combatants adhered to principles of distinction – in other words, if
they directed force at military targets. This is only one element (albeit an important element)
of the universe of IHL norms that apply to intrastate conflict. There appears to have been
little appreciation, for example, of the fact that a great amount of insurgent violence – even
when directed against military targets – is unlawful due to the violation of other important
IHL principles. For example, insurgents tend not to wear uniforms and distinguish themselves
sufficiently from the civilian population; suicide bombers typically violate the prohibition
on perfidy.94 The fact that it is extremely difficult to conduct a successful insurgency while
adhering to the laws of war does not negate the fact that the character of insurgent violence
– especially its reliance on stealth and concealment within the civilian population – is often
inherently unlawful.
Thus, even targeted violence against military targets may be unlawful for other reasons, and
this is even more reason to include its effects within IRL assessments. This can be done if there
is a broader understanding of IHL norms, and not simply an attempt to use IHL definitions for
IRL concepts.
In conclusion, it is worth remembering that the 1979 UNHCR Handbook passage confirm-
ing that conflict alone is not sufficient grounds for asylum – an argument much cited within
IRL jurisprudence – nevertheless clarifies that war refugees should be afforded the protections

92
QD (Iraq) (n 52), paras 16 and 18.
93
KH (n 35), para 206.
94
Walzer (n 67); Courtney Campbell, ‘Moral Responsibility and Irregular War’, in James Turner
Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in
Western and Islamic Tradition (New York: Greenwood Press 1990).

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of that bedrock of IHL, the 1949 Geneva Conventions (and Additional Protocol I). This con-
firms that IHL is relevant to the treatment of refugees, even if they are refused asylum. Can this
understanding be a potential gateway for the idea that IHL norms should be applied to policies
of internal relocation? This question is the focus of the next section.

4. INTERNAL RELOCATION – OR FORCED DISPLACEMENT?

The debate over the potential for IRL/IHL convergence, and the implications for assessing
indiscriminate violence, have become increasingly important with the emergence of internal
relocation as a critical element within UK asylum decision-making. The determination that
indiscriminate violence exists in some regions and not others is the fundamental basis for
a policy that allows the refusal of asylum in the UK due to the fact that the claimant can
relocate to another region within his or her home country, one that falls below the threshold of
indiscriminate violence necessary to invoke Article 15(c).
Internal relocation policies are in conformance with IRL, provided claims are assessed in
line with current legal standards (in the UK, this means a heavy reliance on the case law and
policy surrounding Article 15(c)). Yet from a broader international law perspective, taking
into account key principles of IHL and IHRL, it is difficult to avoid the conclusion that internal
relocation essentially transforms an asylum seeker into an Internally Displaced Person (IDP).95
The UN Guiding Principles on Internal Displacement define an IDP as:

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places
of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict,
situations of generalized violence, violations of human rights or natural or human-made disasters, and
who have not crossed an internationally recognized State border.96

In short, IDPs have been displaced from their homes, but remain within their country of
origin and thus do not have legal refugee status. This means that the provisions of IRL do not
generally apply to them.97 If their displacement is due to armed conflict, then IHL is the most
relevant legal regime for their protection, along with the general provisions of IHRL.
The UN Guiding Principles are not a legally binding instrument per se, but are ‘consistent
with international human rights law and international humanitarian law’.98 In this section, we
consider how IRL-compliant policies like internal relocation measure up to other international

95
This reality is blurred by the UK choice to use the term ‘internal relocation’ rather than the QD
term ‘internal protection’; as Asylum Aid argues, this ‘obscures the reality that a refugee returning may
be in a position more similar to that of an internally displaced person, rather than someone who has
moved within their country by choice from one region to another’. ‘Even If’: The Use of the Internal
Protection Alternative in Asylum Decisions in the UK (London 2014), 5.
96
UN Guiding Principles on Internal Displacement, para 2.
97
Despite this, UNHCR undertakes a significant amount of assistance to IDPs around the world, as
part of its broader humanitarian mandate. As of 2017, there were more than 40 million IDPs worldwide.
UNHCR, Global Trends (n 44).
98
UN Guiding Principles on Internal Displacement, para 3. The African Union has transposed the
Guiding Principles into treaty law for its member states, with its Convention for the Protection and
Assistance of Internally Displaced Persons in Africa (the Kampala Convention) coming into force in
2012.

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legal norms on humanitarian protection, particularly when an asylum seeker is removed from
the UK to a country experiencing armed conflict. To what extent are UK asylum policies
contributing to forced displacement, and how lawful is this practice within the broader scope
of international law and humanitarian principles?

4.1 IDPs and Forced Displacement in International Law

The Guiding Principles are a useful starting point for understanding international legal norms
with respect to IDPs. Both treaty law and customary law support the general principle that
‘Every human being shall have the right to be protected against being arbitrarily displaced from
his or her home or place of habitual residence’.99 This right endures in cases of armed conflict,
‘unless the security of the civilians involved or imperative military reasons so demand’.100
For example, a government can lawfully evacuate civilians for their own protection. The key
factor in whether displacement is lawful or unlawful is whether there is a humanitarian inten-
tion behind the displacement, and whether civilians are humanely treated during the process.
The Guiding Principles emphasise that ‘Displacement shall not be carried out in a manner that
violates the rights to life, dignity, liberty and security of those affected’.101
The Guiding Principles also include legal norms surrounding the return of displaced civilians,
with a heavy emphasis on voluntary return. A key provision for our purposes is Principle 15:

Internally displaced persons have: (a) The right to seek safety in another part of the country; (b) The
right to leave their country; (c) The right to seek asylum in another country; and (d) The right to be
protected against forcible return to or resettlement in any place where their life, safety, liberty and/
or health would be at risk.102

Principle 15(d) thus provides a different standard for assessing whether displaced civilians can
be forcibly returned to a given area. In contrast to UK policy, where an amorphous level of
indiscriminate violence is necessary before return is ruled out, IHL and IHRL principles would
dictate against involuntary return if a person’s ‘life, safety, liberty and/or health’ is simply
‘at risk’. This concept of ‘humanitarian non-refoulement’ would obligate states to protect
civilians from violations of IHL, without specifying a certain level or intensity of violence.103
The argument has also been advanced that forcibly returning civilians to locations where
they face a real risk of being subjected to acts amounting to war crimes (again, a seemingly
lower threshold than current UK interpretations of ‘indiscriminate violence’) contravenes
Common Article 1 to the Geneva Conventions: ‘The High Contracting Parties undertake
to respect and to ensure respect for the present Convention in all circumstances.’ Common
Article 1 not only requires states to respect the foundational principles of IHL when engaged

99
Ibid., Principle 6, para 1. The most relevant treaty provisions are the Fourth Geneva Convention of
1949 (Art 49), Additional Protocol I of 1977 (Art 85), and Additional Protocol II of 1977 (Art 17), which
clearly states: ‘The displacement of the civilian population shall not be ordered for reasons related to the
conflict unless the security of the civilians involved or imperative military reasons so demand’. Violation
of Art 17 is considered a war crime in the Rome Statute of 1998 (Art 8(2)(e)(viii)).
100
Ibid., Principle 6, para 2(b).
101
Ibid., Principle 8.
102
Ibid., Principle 15. Emphasis added.
103
Moore (n 73), 421.

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in armed conflict, but also demands that third-party states (i.e., countries not involved in a spe-
cific conflict) actively encourage conflict actors to adhere to IHL and, if necessary, take action
to inhibit IHL violations.104 As Durieux argues, ‘There must be, inherent in Common Article
1, an obligation to prevent grave breaches and intolerable violations, or at least the recurrence
or multiplication thereof, by all means – including by refraining from returning individuals to
the risk of same’.105
While there is a need for care in comparing normative principles across different legal
regimes, it is curious that such different standards should apply across legal regimes broadly
concerned with humanitarian protection. If it is well understood within the bounds of IHL that
civilians should not be forced to return to locales where their safety would be at risk, how has it
become routine practice within the UK to forcibly return refugees to all but the most dangerous
places on earth?

4.2 The Logic of Internal Relocation

As UNHCR itself stated in its submissions to QD (Iraq) – a document otherwise critical

of bringing IHL norms into IRL practice – ‘It would be incongruent if refugee law and
non-refoulement law did not protect persons against being returned to places where they
would be at risk of harm caused by breaches of IHL’.106 Yet it is evident that UK asylum
decision-makers, with their reliance on ‘indiscriminate violence’ assessments and internal
relocation, have increasingly forced claimants to return to locations where all sorts of war
crimes – from suicide bombings to militia violence to forced recruitment – are occurring. How
do supporters of internal relocation justify the policy on legal grounds?
Paragraph 339O of the Immigration Rules establishes the parameters of the UK’s internal
relocation policy, and largely mirrors the provisions of Article 8 of the QD. 339O(i) states
that refugee status should not be granted if in some part of the country of origin, ‘a person
would not have a well-founded fear of being persecuted’ (the basis for asylum under the 1951
Refugee Convention); and, humanitarian protection (or subsidiary protection) should not be
granted if in some part of the country, ‘a person would not face a real risk of suffering serious
harm’. In both scenarios, provided the person ‘can reasonably be expected to stay in that part
of the country’, asylum should be denied and the claimant returned to his or her country of
origin. Paragraph 339O(ii) states that in determining whether a part of the country of origin
meets these requirements, the decision-maker ‘will have regard to the general circumstances
prevailing in that part of the country and to the personal circumstances of the person’. Finally,
Paragraph 339O(iii) states that these rules apply regardless of ‘technical obstacles to return’.
The Home Office’s Asylum Policy Instruction entitled Assessing credibility and refugee
status (2015) highlights the importance of ‘sufficiency of protection’ when considering the
possibility of internal relocation.107 It recalls that the validity of an asylum claim is predicated

104
Knut Dörmann and Jose Serralvo (2014), ‘Common Article 1 to the Geneva Conventions and the
Obligation to Prevent International Humanitarian Law Violations’, (2014) 896/896 International Review
of the Red Cross.
105
Durieux (n 50), 176. See also Reuven Ziegler (2014), ‘Non-Refoulement between “Common
Article 1” and “Common Article 3”, in Cantor and Durieux (n 73).
106
UNHCR submissions to QD (Iraq) (n 52), para. 19.
107
Home Office (n 39), 36.

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not only on the risk of persecution or serious harm, but on the claimant not being afforded
protection from his or her own government.108 It states:

The standard of protection to be applied is not one that eliminates all risk to its citizens. It is sufficient
that a country has a system of criminal law which makes attacks by non-state actors (or ‘rogue’ state
actors) punishable and that there is a reasonable willingness and ability to enforce the law…
No country can offer 100 per cent protection and certain levels of ill treatment may still occur even
if a government acts to prevent it. However, seriously discriminatory or other offensive acts commit-
ted by the local populace may constitute persecution if they are knowingly tolerated by the authorities,
or if the authorities refuse, or prove unable, to offer effective protection.109

The link between protection and relocation was elaborated by the Court of Appeal in Robinson
[1997], with its finding that asylum decision-makers must ask: ‘Can the claimant find effective
protection in another part of his own territory to which he or she may reasonably be expected
to move?’110
The essential logic underlying the UK’s internal relocation policy is that if a claimant
can exist in some part of his or her home state, without serious risk of persecution or harm
and with the option to turn to state authorities for protection, then the need for international
protection (in the form of asylum in the UK) does not exist. Absent any grounds for asylum,
the claimant can be forcibly returned to the country of origin. This approach first emerged in
the 1980s but became applied much more frequently by European states in the post-Cold War
era, in response to sizable new refugee flows from war-torn developing states and the rising
threat of non-state armed groups.111 Unlike state actors, non-state groups are presumed to have
more limited territorial and operational reach, thus making internal relocation a more feasible
option.
In short, there is an established legal and policy basis for the UK practice of internal reloca-
tion, and its essential logic is not necessarily unsound. The question, as always, is whether the
UK’s implementation of the policy adheres to the humanitarian ethos that is meant to underlie
refugee law and policy. It is this humanitarian ethos which has led Hathaway and Foster to refer
to the ‘protection-based understanding of IFA’, which would reinforce the fact that ‘once the
applicant has established a well-founded fear in one location, she is entitled to the full weight
of the establishment of a prima facie case’ with the result that ‘the IFA analysis is understood
as akin to an exclusion enquiry such that the evidentiary burden is then on the party asserting
an IFA to establish it exists’.112 New Zealand case law in fact has long been critical of leading

108
This is clarified in the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee
Status (1979, 1992), para 90, which states that a person who can avail himself of his home country’s
protection ‘is not in need of international protection and is therefore not a refugee’.
109
Home Office (n 39), 36.
110
R v. Secretary of State for the Home Department, ex parte Robinson, Court of Appeal, 11 July
1997, para 29.
111
James Hathaway and Michelle Foster, ‘Internal Protection/Relocation/Flight Alternative as an
Aspect of Refugee Status Determination’, in Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection, E. Feller, et al. (eds) (Cambridge: Cambridge University
Press, 2003), 359–60.
112
Ibid., at 370.

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UK cases like Januzi,113 and AH (Sudan)114 and affirmed that ‘[t]he internal flight alternative
or internal relocation is in truth being used to deny refugee status to a person who satisfies the
inclusion clause criteria stipulated by Article 1A(2) of the Convention in part, but not all, of
the country of origin’.115 It has referred to ‘an unbroken line of Authority decisions’ in its case
law,116 emphasising ‘that as a matter of treaty interpretation the proper location of the inquiry
is in the protection element of the Refugee Convention’ so that decision-makers approach ‘the
analysis as a protection inquiry, not one of flight or relocation’, and in this respect it was clear
that ‘we find nothing persuasive to the contrary in Januzi and AH (Sudan)’.117
In short, in New Zealand ‘both in principle and in law’ what a decision-making tribunal
does is ‘to approach the “internal flight” or “relocation” alternative as an issue of protection,
not one of well-foundedness’ [of fear of persecution]. This is because ‘once a refugee claimant
has established a well-founded fear of being persecuted for a Convention reason in relation to
at least part of the country of origin, recognition of that person as a Convention refugee can
only be withheld if that person can genuinely access protection which is meaningful’.118 While
both the UK and Canada ‘diverge as to the location of the “flight” or “relocation” analysis’ on
the basis of ‘the reasonableness test, namely, whether it is reasonable to expect the refugee to
seek his or her safety in a different part of the country of origin or, put another way, whether
it would be unduly harsh to expect the person to relocate within the country of origin before
seeking refugee status abroad’,119 New Zealand jurisprudence does not do so. This is because
the ‘language and concepts’ of ‘“flight”, “relocation” and “reasonableness” [are] extraneous
to the Convention’.120 We may now consider the UK practice of internal relocation against this
background and the impact of COI on it.

4.3 Internal Relocation in Practice and the Role of COI

At first glance, the threshold for internal relocation in the UK appears relatively high: accord-
ing to both the QD and the UK Immigration Rules, a person may be forcibly returned to his
or her home state only if ‘there is no real risk of suffering serious harm’. A generous inter-
pretation of this provision, perhaps influenced by IHL and IHRL norms, would suggest that

113
Januzi v. Secretary of State for the Home Department [2006] UKHL 5 where the House of Lords
suggested that the test of whether a refugee could be subjected to internal relocation was whether an
applicant would face conditions such as utter destitution or exposure to cruel or inhuman treatment,
threatening his most basic human rights.
114
Secretary of State for the Home Department v. AH (Sudan) [2007] UKHL 49 where Buxton LJ (at
para 23) stated that:
This test of reasonableness of relocation has been described, as least in the English jurisprudence,
in terms of whether it would be unduly harsh to expect the persecuted person to relocate. That
formulation underlines the stringency of the test that the persecuted person has to overcome; but
that should not be permitted to conceal that the issue is the reasonableness of requiring relocation
by this persecuted person from the area where he is persecuted to another part of his country of
nationality.
115
Refugee Appeal No. 76044/2008 (11 September 2008) per RPG Haines, at para 117.
116
In particular the decision in Butler v. Attorney-General [1999] NZAR 205 (CA).
117
Refugee Appeal No. 76044/2008 (11 September 2008) per RPG Haines, at para 120.
118
Ibid., at para 110.
119
Ibid., at para 134.
120
Ibid., at para 134.

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forcible return to a state experiencing armed conflict, with significant levels of violence among
the civilian population and limited recourse to protection from the authorities, would not be
justifiable. This would be doubly so in cases where a person has no ties to the locale he or she
is deported to, as this can increase a person’s vulnerability to deprivation and predation.121
Yet it is clear that the UK is not interpreting these provisions generously. In practice,
decision-makers are not determining the risk of ‘serious harm’ in each individual case; rather,
they are relying on Home Office and tribunal assessments of indiscriminate violence in a given
country and its sub-regions. As we have seen, such determinations pivot on whether there is
a high level and intensity of generalised violence in a specific area. Thus, the overall effect of
substituting ‘indiscriminate violence’ for ‘serious harm’ is to substantially lower the threshold
for internal relocation, and make it easier to forcibly return asylum seekers to their country of
origin – where, by definition, they join the internally displaced population in that country, as
they are returning to a region that is not their home region.
This reliance on assessments of indiscriminate violence returns us to the important role of
CPINs in UK asylum decision-making, and a review of recent policy guidance on internal
relocation is instructive. The controversial ‘policy summary’ sections of CPINs explicitly link
internal relocation to determinations of indiscriminate violence.
The 2017 CPIN for Iraq, for example, states that ‘In general, a person can relocate to the
areas which do not meet the threshold of Article 15(c)’ (i.e., to those areas where it is deter-
mined that there is not a ‘serious and individual threat to a civilian’s life or person by reason of
indiscriminate violence’).122 In the same section, these areas are specifically delineated, with
the finding that only Ninewah, most of the Anbar region, and some locales around Kirkuk
and Baghdad now meet the threshold of Arrticle 15(c).123 This list reflects the Home Office’s
own assessment of indiscriminate violence in Iraq, updating the determinations reached in the
Upper Tribunal’s Country Guidance case of AA (Article 15(c)) Iraq CG [2015]; the Home
Office decided that more areas of Iraq were eligible for internal relocation following Islamic
State reversals. The CPIN also reaffirms the Upper Tribunal’s finding in BA (Returns to
Baghdad) Iraq CG [2017] that conditions in Baghdad itself do not constitute indiscriminate
violence, and indeed Baghdad is specified as the city to which returnees (except for Kurdish
returnees) will be sent.124 All of these conclusions are detailed in greater length in the separate
CPIN ‘Iraq: Return/Internal Relocation’ (2017).
The most recent CPIN for Afghanistan (April 2018) reflects the Home Office’s switch in
usage from ‘policy summary’ to ‘analysis’ noted earlier, but otherwise follows the same format
as previous policy summaries. The section upholds a series of tribunal findings that a state of
indiscriminate violence does not exist in Afghanistan, ‘even in the provinces worst affected by
violence’.125 Thus, ‘Internal relocation is generally likely to be reasonable’,126 except for lone
women;127 other vulnerabilities (such as physical and mental health) should also be taken into

121
In contrast to the UK, countries such as Canada, Finland, Switzerland and New Zealand insist that
family or other social networks are a necessary component of relocation. Ibid., 386.
122
Home Office (2017), Iraq: Security and humanitarian situation (CPIN), para 3.2.4.
123
Ibid., para 3.2.1.
124
BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC), para 2.3.19.
125
Home Office (2018), Afghanistan: Security and humanitarian situation (CPIN), para 2.3.12.
126
Ibid., para 2.4.7.
127
Ibid., paras 2.4.2 and 2.4.3. The Upper Tribunal found in the AK and AS cases that internal reloca-
tion for women ‘without the support of a male network’ would be unreasonable.

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consideration.128 The clarity of this finding overshadows additional information in this section
on continuing Taliban violence, the fragile living situation of IDPs, and the danger of roadside
bombs on roads leading out of major cities and towns (not to mention the quick aside, later
in the CPIN, that Afghanistan has been found to be the ‘second least peaceful country in the
world after Syria’129).
It is interesting to contrast this policy guidance with the Afghanistan country guidance note
produced by the European Asylum Support Office (EASO) that same year. First, the EASO
guidance strikes a much more pessimistic note on the ability of the state to offer sufficient pro-
tection (the key determination of the need for international protection). The UK’s CPIN finds
that ‘the Government retains control of Kabul, other major population centres, most key transit
routes, provincial capitals, and a majority of district centres. The Afghan National Defence and
Security Forces (ANDSF) continue to maintain control of, and are generally able to protect,
all major population centres’.130 This yields a rather positive impression of Afghan state capa-
bilities, especially if the reader does not bother to peruse the details of Taliban district control
much later in the report. EASO, on the other hand, states: ‘Taking into consideration that the
Afghan State is in general unable to provide protection which is effective, non-temporary and
accessible, the applicability of IPA [the internal protection alternative, i.e., internal relocation]
would depend on establishing the absence of persecution or serious harm in the area in the
question’.131
Second, the EASO note provides a much more detailed analysis of each Afghan district,
and in contrast to the UK CPIN finds that significant areas of the country are in a state of
indiscriminate violence.132 In seven districts (including Helmand) the level of indiscriminate
violence is such that no additional personal circumstances are necessary to establish a real risk
of serious harm under Article 15(c). In 22 other districts (including Kabul), EASO found that
indiscriminate violence was taking place and that ‘A real risk of serious harm under Article
15(c) QD may be established where the applicant is specifically affected by reason of factors
particular to his or her personal circumstances.’ In only five districts is it judged that a person
would not be at real risk of indiscriminate violence. This is a strikingly different interpretation
than that generated by the UK CPIN’s summary finding that indiscriminate violence does not
generally exist in Afghanistan.
It is not surprising that UK policy guidance might differ from that found elsewhere in
Europe. The influential UNHCR report Safe at Last?, published in 2011, found:

There is a clear divergence between the Member States of focus with regard to the application of the
internal protection concept in the context of Iraq. On the one hand, in Belgium, France and Germany,
the concept is either not accepted or is applied exceptionally….
On the other hand… with the possible exception of Ninewa/Mosul, the rest of Iraq is considered as
a potential internal protection alternative by the UK.133
The authorities of Belgium, France, Germany and Sweden concur with UNHCR that in general
terms there is no internal protection alternative within southern and central Somalia… the levels of
indiscriminate violence in southern and central Somalia are sufficiently high as to pose a real risk of

128
Ibid., para 2.4.4.
129
Ibid., para 6.1.1.
130
Ibid., para 2.3.20.
131
EASO (2018), Country Guidance: Afghanistan, 28.
132
Ibid., 78–91.
133
UNHCR (n 80), 80.

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serious harm to civilians merely on account of their presence on the territory….In contrast, it is the
position of the determining authorities in the Netherlands and the UK that for persons fleeing indis-
criminate violence in Mogadishu, in general terms there may be an internal protection alternative in
the rest of southern and central Somalia.134

Here we see the critical role played by country guidance in determining how European states
implement Articles 8 and 15(c), and how a directive aimed at improving conformity across
the EU falls short due to differing interpretations of ‘indiscriminate violence’ and, thus, the
possibility of internal relocation. It is not surprising that the UK, with its relatively lower rates
of asylum approval, also tends to have a more generous appraisal of when and where internal
relocation is feasible.
It is true that all CPINs and multiple Home Office instruction notes emphasise the impor-
tance of looking at the individual circumstances in each case before determining that internal
relocation is feasible, and UK tribunal decisions reveal careful consideration of a wide range
of factors. In BA (Returns to Baghdad), for example, the Upper Tribunal reversed the Home
Office decision to return an individual to Baghdad, finding that his personal circumstances jus-
tified subsidiary protection even though conditions in Baghdad did not breach Article 15(c).135
Yet this is not necessarily the reality for all asylum decisions, especially first-instance deci-
sions, as documented in the ICIBI inspection report detailed earlier in this chapter. Inspectors
found that overworked and undertrained caseworkers are prone to taking a ‘cut-and-paste
approach’ based on the policy guidance in CPINs, they do not always engage with the more
detailed country guidance in the rest of the report, and they do not necessarily give sufficient
scrutiny to individual circumstances.136 An Asylum Aid investigation found that ‘COI-based
reasons given for considering an internal protection region to be safe were usually sparse. In
the unreported case files read for the research, geographical area or population size were the
main reasons advanced to demonstrate the safety and suitability of an alternative location’.137
Given this reality, one can see the danger in simple policy statements that ‘internal relocation
is generally reasonable’.
These issues of interpretation and implementation with respect to indiscriminate violence
and internal relocation are one reason why a significant movement to reform the QD has
emerged, to improve both harmonisation of European practice and the humanitarian character
of asylum decision-making. Our concluding section considers proposed reforms relevant to
indiscriminate violence and internal relocation, and offers two additional suggestions derived
from our arguments herein.

5. CAN THE QUALIFICATION DIRECTIVE BE REFORMED?

The UK’s interpretation of indiscriminate violence and its implementation of internal relo-
cation are, in effect, contributing to forced displacement in conflict-affected states. However
much UK practice conforms with the letter of refugee law, it is much more questionable when

134
Ibid., 81.
135
BA (Returns to Baghdad) Iraq (n 124).
136
Independent Chief Inspector of Borders and Immigration (2018), paras 11.7–11.18.
137
Asylum Aid (n 95), 19.

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 Gatekeepers of asylum 165

viewed through the lens of IHL and IHRL. This raises the question of whether reform of the
QD, the ultimate source of justification for UK practice, is a possibility.

5.1 Options for Reform

Since 2015, the so-called ‘refugee crisis’ in Europe has exposed the gaps and flaws in
European asylum policy while also sparking a nationalist backlash in many countries. The lack
of conformity among EU member states was evident, leading to two central concerns: first,
that refugees would not be treated equally and fairly across the EU; and second, that asylum
seekers would ‘cherry pick’ preferred destinations where their chances of acceptance seemed
higher. Thus, a number of reform proposals have emerged, most of which aim for greater
harmonisation of policies and a more fair distribution of asylum seekers among member states.
This large portfolio of possible reform includes proposals to alter the practice of internal
relocation and the guidance upon which it relies. An extensive European Commission pro-
posal put forward in 2016 includes provisions that would ‘secure greater convergence between
asylum decisions across the EU’ by obliging member states to use COI promulgated at the EU
level (by a new EU Agency for Asylum) in their assessments of asylum applications, including
in considerations of whether internal relocation is an option.138 During consultations on the
proposal, the European Economic and Social Committee recommended that UNHCR criteria
should be included ‘for assessing the internal flight alternative’.139 This is an interesting rec-
ommendation worth exploring further.
UNHCR criteria are expressed in its Guidelines on International Protection: ‘Internal
Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention
and/or 1967 Protocol Relating to the Status of Refugees (2003), which were promulgated in
response to the rising use of internal relocation and highly divergent practices among states.
The guidelines clarify that international law does not consider asylum to be a ‘last resort’,
to be granted only after individuals have exhausted every possible alternative within their
home state.140 Yet it is difficult to avoid the conclusion, in reading UK case law and country
guidance, that in practice UK decision-makers encourage internal relocation to such an extent
that asylum is indeed a last resort, when there is no legal basis for returning a claimant to his
or her home state.
The UNHCR criteria follow a familiar logic, stating that decision-makers should consider
both the relevance of relocation (i.e., is the proposed area of relocation safely and legally
accessible to the claimant, and would he or she be exposed to persecution or serious harm?)
and its reasonableness (i.e., ‘Can the claimant, in the context of the country concerned, lead
a relatively normal life without facing undue hardship?’141). In general terms, UK policy

138
European Parliamentary Research Service, ‘Reform of the Qualification Directive’ (27 June
2017). The proposal is part of a massive overhaul of European asylum policy that is still wending its way
through EU channels.
139
European Economic and Social Committee, Opinion/Referral Statement on CEAS Reform II, 14
December 2016 (SOC/547-EESC-2016-04410-00-00-ac).
140
UNHCR, Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’
within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status
of Refugees (2003), para 4.
141
Ibid., para 7.

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166 Research handbook on international refugee law

reflects these broad guidelines. Yet the UNHCR criteria include a number of more specific
instructions that are less apparent in UK case law and practice, including:

The claimant must be able to find safety and security and be free from danger and risk of injury. This
must be durable, not illusory or unpredictable. In most cases, countries in the grip of armed conflict
would not be safe for relocation, especially in light of shifting armed fronts which could suddenly
bring insecurity to an area hitherto considered safe.142 [emphasis added]
Where respect for basic human rights standards, including in particular non-derogable rights, is
clearly problematic, the proposed area cannot be considered a reasonable alternative.143
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If
the situation is such that the claimant will be unable to earn a living or to access accommodation, or
where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable
alternative. It would be unreasonable, including from a human rights perspective, to expect a person
to relocate to face economic destitution or existence below at least an adequate level of subsistence...
If, for instance, an individual would be without family links and unable to benefit from an informal
social safety net, relocation may not be reasonable….144

In short, the normative principles established within these criteria would limit internal reloca-
tion for war refugees considerably, in comparison with current UK practice. The key question
to be asked would not be whether indiscriminate violence exists, but rather: ‘Can the claimant,
in the context of the country concerned, lead a relatively normal life without facing undue
hardship?’ The emphasis on durability of conditions is also welcome, especially if one consid-
ers recent events in Iraq. The Home Office has been quick to amend tribunal determinations
of indiscriminate violence in Iraq following Islamic State defeats, thus making forced return
more feasible.145 Yet we might recall how quickly Islamic State emerged in the first place,
capturing large swathes of Iraq and major cities like Mosul in a matter of weeks. Moreover, it
should not be assumed that Islamic State is permanently defeated, with persistent reports of its
resurgence appearing in 2019.
A greater reliance on the UNHCR criteria would alleviate one of the most troubling aspects
of the UK’s internal relocation policy, which is that it usually involves deporting individuals
from the safety of the UK to a generally less safe country. UK case law (notably, AE and FE v.
Secretary of State for the Home Department [2003] has established that in assessing the feasi-
bility of relocation, one must compare the claimant’s home region and the proposed region of
relocation – not the relocation region and the UK (where the claimant is currently residing).146
This finding is a crucial foundation for the policy of forcible return of war refugees, as it would
be unusual for a conflict-affected state to offer more security and safety than the UK.
Yet this approach arguably contravenes the standards of IHL and IHRL, and substantially
diminishes the legitimacy of refugee law as a humanitarian endeavour. As discussed above,
the key factors in whether displacement is lawful under IHL are whether it is driven by
a humanitarian intention and whether displaced individuals are treated humanely. It is difficult

142
Ibid., para 27.
143
Ibid., para 28.
144
Ibid., para 29.
145
See the 2017 Iraq CPIN, para 3.2.2.
146
AE and FE v. Secretary of State for the Home Department [2003] EWCA Civ 1032, paras 24 and
67.

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 Gatekeepers of asylum 167

to accept that forcibly deporting an individual from the safety of the UK to a conflict-affected
state, into a state of internal displacement in a region where he or she may have no existing ties
and living conditions are dire, is driven by a humanitarian intention. The internal relocation
policy is a political choice, not a humanitarian effort. Its growing prominence thus threatens
the humanitarian legitimacy of refugee law and practice in the UK.
Thus, we agree with reform proposals that advocate a greater prominence for the UNHCR
criteria within the practice of refugee law and policy in the EU, and particularly in the
UK. This normative framework would help restore the humanitarian character of asylum
decision-making, while still preserving substantial limits on the number of potential claimants
(an enduring political aim of states whose reality cannot be ignored).

5.2 Shifting Norms and Improving Accountability

The debate over enhancing the UNHCR criteria within EU refugee law is a reminder of the
importance of norm creation and evolution within international law more broadly. As theo-
rised by Martha Finnemore and Kathryn Sikkink in their influential 1998 article ‘International
Norm Dynamics and Political Change’, there is a three-phase ‘life cycle of norms’ that helps
explain how radical changes in political and social attitudes can occur:

The characteristic mechanism of the first stage, norm emergence, is persuasion by norm entrepre-
neurs. Norm entrepreneurs attempt to convince a critical mass of states (norm leaders) to embrace
new norms. The second stage is characterized more by a dynamic of imitation as the norm leaders
attempt to socialize other states to become norm followers. The exact motivation for this second stage
where the norm ‘cascades’ through the rest of the population (in this case, of states) may vary, but
we argue that a combination of pressure for conformity, desire to enhance international legitimation,
and the desire of state leaders to enhance their self-esteem facilitate norm cascades. At the far end of
the norm cascade, norm internalization occurs; norms acquire a taken-for-granted quality and are no
longer a matter of broad public debate.147

The creation of the 1951 Refugee Convention and the 1949 Geneva Conventions – the bed-
rocks of IRL and IHL respectively – are the result of significant normative shifts in the wake of
the Second World War. Their essential principles are not contested today. Yet when it comes
to specific aspects of how the international community should respond to war refugees, we
are stuck squarely in the middle of the life-cycle, as competing normative frameworks jostle
for acceptance. Is internal relocation, as currently practiced, a justifiable policy? The answer
depends on which legal and normative paradigm is given preference.
Our first recommendation is based on the recognition that for UK asylum decision-making
to acquire a more humanitarian character, a substantial normative shift must occur. This is
a prerequisite for the changes in country guidance and case law that would be necessary to
limit the questionable practice of internal relocation for war refugees. Finnemore and Sikkink
suggest that ‘norm cascades’ result from a sort of socialisation process, as states are nudged
into conformity by other actors. Fortunately, there are two sets of actors that might exert some
influence on UK decision-makers. In this chapter, we have focused primarily on the IHL

147
Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’,
(1998) 52(4) International Organization 895.

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168 Research handbook on international refugee law

regime and its practitioners, and the possibility of transposing IHL norms on displacement into
IRL considerations of internal relocation.
Yet there is another source of influence, namely the regional bodies that have already
adopted more expansive protection regimes for war refugees. The African Union’s Refugee
Convention, for example, defines a refugee as:

every person who, owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the whole of his country of origin or nationality, is compelled
to leave his place of habitual residence in order to seek refuge in another place outside his country of
origin or nationality’148 [emphasis added].

In short, there already exist normative frameworks that would produce a more humanitarian
asylum practice in the UK. The question is whether and how these normative frameworks can
become more influential in the UK and the EU more broadly. Our conclusion is that a whole-
sale and rapid conversion of the UK approach is unlikely, and yet it may be possible to encour-
age a normative shift with respect to specific aspects of UK asylum decision-making that are
particularly controversial in terms of their humanitarian character. Indeed, we have already
seen such shifts, as with the creation of subsidiary protection frameworks, and more generous
policies for women at risk of gender-based violence and individuals facing persecution due
to their sexual orientation. These shifts were wholly based in a normative re-evaluation of the
appropriate humanitarian choice in such cases.
We argue that the UK practice of internal relocation to conflict-affected states is sufficiently
questionable on humanitarian grounds to make it vulnerable to a potential normative shift that
would curtail its use. Thus, our first recommendation is for a concerted programme of research
and engagement that would investigate the multiple pathways for normative evolution with
respect to internal relocation, and the likely real-world impact of new approaches. It would
include expansive consultations that would bring together adherents of diverse legal regimes,
with the aim of exploring new cross-boundary understandings. These sorts of discursive and
theoretical efforts have historically been vital in advancing new normative understandings,
and we encourage a broad range of overlapping efforts in order to amplify the effect of this
aspirational programme.
Our second recommendation is to further improve the transparency and accountability of
the country guidance products that, as we have shown, are so critical to decisions on internal
relocation. While the establishment of the IAGCI was a valuable step in providing more pro-
ductive oversight of the CPIN process, its reviews are conducted only after publication, and
there is often a considerable time lag between publication and review. The ICIBI inspection
report was critical of the Home Office’s pre-publication external review, finding the process
overly informal and rushed.149 Thus, we recommend further measures to improve external
review of the CPINs before and after publication. Given their outsized impact upon the fates
of war refugees, they should be subject to more scrutiny at an earlier stage.

148
AU Convention Governing Specific Aspects of Refugee Problems in Africa, Art 1(2).
149
Independent Chief Inspector of Borders and Immigration (2018), paras 10.8–10.19.

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 Gatekeepers of asylum 169

6. CONCLUSION

The legal and policy dilemmas considered in this chapter are the result of the enduring need
to balance the humanitarian aim of refugee protection with the clearly evident insistence by
states that not all victims of persecution and violence can be granted asylum. There must be
some limit, some principled boundary, that keeps asylum numbers manageable while still
honouring the spirit of the 1951 Convention. The effort to define and police that boundary is
an underlying driver of refuge law and policy around the world.
In KH, the tribunal acknowledged the difficulty of finding this boundary and suggested
that states could be asked: ‘Since you have chosen to benefit a subset of civilians affected
by armed conflict, on what principled basis can you do that. Why should some civilians in
situations of armed conflict be excluded whilst others are included?’150 The QD, and especially
Article 15(c), was an attempt to fix the boundary of inclusion in a more humanitarian way, but
it ultimately proved to be so unclear and nebulous that many legitimate claimants have been
left at risk of harm. Even worse, it has facilitated the expansion of internal relocation poli-
cies, sacrificing the humanitarian right of asylum to forced internal displacement. In order to
justify such policies, COI products have become platforms for explicit and generalised policy
guidance, to the disadvantage of individual claimants whose circumstances may not match
a CPIN’s Platonic ideal-type refugee.
In KH, the tribunal argued that the ‘principled basis’ for drawing the asylum boundary was
to incorporate IHL norms into the interpretation and application of Article 15(c), but as we
have seen, this approach has not survived subsequent jurisprudence. While this approach was
construed too narrowly in the specific case of KH, we have also shown that broader efforts to
heighten the influence of IHL norms within IRL show some promise, especially with respect
to internal relocation. It is our hope that greater consultation between practitioners of IRL and
IHL might gradually yield the kind of normative shifts that would improve the humanitarian
character of asylum decision-making in the UK.
In the end, the need to improve the humanitarian outcomes of the asylum process in the UK
is not derived solely from treaty obligations, nor even the fundamental principles of interna-
tional law, but from a broader ethical imperative. As Jennifer Moore argues

For as long as States outside the conflict zone remain stymied in their capacity or will to help end
armed conflict, widespread repression and endemic poverty in other countries, they have a responsi-
bility to shelter and empower those war refugees who have been able to flee violent circumstances,
rather than re-victimizing them through forced return.151

If IRL is to maintain its humanitarian legitimacy, states must pursue asylum policies that
conform not only to the precise legal formulations provided within refugee law, but to the
broader legal and ethical traditions intended to protect the civilian victims of war.

150
KH, para 51.
151
Moore (n 73), 414.

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11. International models of deterrence and the
future of access to asylum1
Nikolas Feith Tan

I. INTRODUCTION

Access to asylum faces extraordinary pressure today in the developed world. While Article 14
of the Universal Declaration of Human Rights (UDHR) famously includes the right to seek
and enjoy asylum, the international community of states only codified an obligation prohib-
iting the forced return of refugees in the 1951 Convention Relating to the Status of Refugees
(the 1951 Convention). The non-refoulement principle found in Article 33(1) falls short of
granting asylum in the sense of permission to enter and remain on the state’s territory, instead
imposing a negative obligation to refrain from returning refugees to a territory where they face
persecution on a Convention ground.2 This duty is expanded upon by human rights law, which
proscribes the return of a person to a real risk of serious harm, irrespective of the grounds for
such harm.3
This gap between a positive right to seek asylum contained in the UDHR and the negative
non-refoulement obligation under the 1951 Convention leaves a significant amount of flexibil-
ity in how states navigate within the framework of international refugee law. While the notion
of jurisdiction within human rights law has expanded significantly to encompass effective
control over persons or territory outside the acting state, there remains a clear gap between the
right to asylum and the obligation of non-refoulement. Put simply, a refugee generally cannot
be refouled if they never arrive. Perhaps because of this, states often seek to avoid interna-
tional responsibility for refugees by operating in the grey areas of international law. While
many states now acknowledge the existence of extraterritorial jurisdiction in certain limited
circumstances, the widespread presumption that extraterritorial actions are less likely to incur
international responsibility remains.

1
This chapter draws on parts of my PhD thesis, International Cooperation on Refugees: Between
Protection and Deterrence (defended at Aarhus University on 26 April 2019).
2
Refugee Convention, art 33; Elihu Lauterpacht and Daniel Bethlehem, ‘The scope and content of
the principle of non-refoulement: Opinion’ in Erika Feller, Volker Türk and Frances Nicholson (eds),
Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection
(Cambridge University Press 2003) 89.
3
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Opened for signature 10 December 1984, 1486 UNTS 85 (entered into force 26 June 1987) art 3;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 7; European Convention for the Protection of Human Rights
and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 art 3.
See further: Colin Harvey, ‘Time for reform? Refugees, asylum-seekers, and protection under interna-
tional human rights law’ (2015) 34 Refugee Survey Quarterly 43; Vincent Chetail, ‘Are refugee rights
human rights? An unorthodox questioning of the relations between refugee law and human rights law’
Human Rights and Immigration, Collected Courses of the Academy of European Law 19.

170
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 International models of deterrence and the future of access to asylum 171

Over the past three decades, developed states have introduced a range of deterrence policies
to prevent asylum seekers reaching their territories or accessing national asylum systems.4
These policies are today widespread and sophisticated, to such an extent that the current era
has been described as a ‘non-entrée regime’5 and a ‘deterrence paradigm’. Rather than forming
an exception to the humanitarian nature of asylum policy, deterrence can today be understood
as the dominant policy paradigm of states in the Global North.6
As a result, there exists today a wide spectrum of deterrence policies, often deployed in
combination. Deterrence policies may be undertaken on a unilateral, bilateral or multilateral
basis, or through private actors contracted by states to carry out migration control functions.7
Non-entrée also falls into a range of categories, ranging from aggressive non-arrival measures
such as boat pushbacks and rejection at the border, to indirect measures intended to make the
asylum country less attractive, such as information campaigns.8 Denmark, for example, took
out advertisements in Lebanese newspapers in 2015 warning potential asylum seekers of its
restrictive policies.
The chapter analyses the rise of one form of deterrence, namely international cooperation
preventing access to asylum – here referred to as ‘international deterrence’. Under these
policies, a developed state undertakes deterrence in cooperation with a regional developing
state ­to prevent asylum in the former state.9 This chapter focuses on bilateral cooperation
arrangements, while noting that cooperation between states at the multilateral and suprana-
tional level is also relevant. This contribution does not analyse the role of the European Union
(EU), a supranational body, as different rules of responsibility apply with respect to the EU
and states.10
This chapter first outlines the emergence and practice of international deterrence policies.
Cooperation falls into four categories: funding, equipment and training; joint patrols and
interdiction; financial incentives; people exchange; and extraterritorial processing. Secondly,
the chapter addresses three key debates arising from deterrence policies: legal challenges; the
allocation of international responsibility in such arrangements; and finally, the potential for
international deterrence policies to contribute to refugee burden-sharing. While international

4
James C. Hathaway, ‘The emerging politics of non-entree’ (1992) 91 Refugees 40.
5
Phil Orchard, A Right to Flee (Cambridge University Press 2014) 203–238.
6
Thomas Gammeltoft-Hansen and Nikolas Feith Tan, ‘The end of the deterrence paradigm? Future
directions for global refugee policy’ (2017) 5(1) Journal on Migration and Human Security 28. There
are some important exceptions to this prevailing policy environment, such as the open-door policies of
Germany and Sweden in 2015.
7
Thomas Gammeltoft-Hansen and James C Hathaway, ‘Non-Refoulement in a World of Cooperative
Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235; Thomas Gammeltoft-Hansen,
Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge
University Press 2011); Frank Mc Namara, ‘Member State Responsibility for Migration Control within
Third States–Externalisation Revisited’ (2013) 15 European Journal of Migration and Law 319.
8
Gammeltoft-Hansen and Tan (n 6).
9
This chapter uses the terms ‘developed’ and ‘developing’ to refer in a general way to countries
with significant disparities in their levels of industrialisation and wealth. For a case study of Australia’s
approach, see Nikolas Feith Tan, ‘State responsibility and migration control: Australia’s international
deterrence model’ in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), Transnational Law
Enforcement and Human Rights (Routledge 2017).
10
That is not to say that the role of the EU in this area is unimportant. The March 2016 deal between
the EU and Turkey indicate that cooperation-based migration control remains highly relevant. See
Moreno-Lax and Giuffré, this volume.

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172 Research handbook on international refugee law

deterrence policies face significant legal challenges, they are likely to endure and evolve.
The key question then becomes how to ensure such policies respect the core principles of the
refugee regime.

II. THE EMERGENCE OF INTERNATIONAL DETERRENCE

Other scholarly work describes and analyses unilateral deterrence measures that emerged
following the end of the Cold War.11 The end of the utility of asylum for ideological leverage
and the rise of mixed migration flows gave rise to a number of restrictive measures on the part
of western states. These measures include visa controls, carrier sanctions, the use of ‘interna-
tional zones’ within airports, excision of territory, and interdiction on the high seas. However,
more recently developed states have begun to reach out to nearby states to assist in carrying
out migration control or protection elsewhere.
The United States (US) may have been the first state to initiate international deterrence
policies through interdiction of Haitians asylum seekers under an agreement with the Haitian
government in 1981.12 Later, US authorities began extraterritorial processing through the
transfer of Cuban asylum seekers to Guantanamo Bay.13 In 2001, Australia also established
offshore processing arrangements, with Nauru and Papua New Guinea. The Australian-led
‘Pacific Solution’ was abandoned in 2008, only to be revived some years later.14 Italy’s inter-
diction treaty with Libya of 2008 was ended with the fall of Muammar Gaddafi’s regime and
was subsequently found to violate Article 3 of the European Convention on Human Rights.15
States initiate such cooperation arrangements for a range of reasons, ranging from human-
itarian concern to save lives at sea to border control. President Reagan referred to the arrival
of Haitians as ‘a serious national problem detrimental to the interests of the United States’,16
while the Italian Minister for the Interior characterised cooperation with Libya as an ‘impor-
tant turning point in the fight against clandestine immigration’.17 Former Australian Prime
Minister Tony Abbott argued that the only way to stop deaths at sea ‘is in fact, to stop the

11
Antonio Cruz, University of London. School of Oriental and African Studies, Shifting Responsibility:
Carriers’ Liability in the Member States of the European Union and North America (Trentham Books
and School of Oriental & African Studies 1995); S. H. Legomsky, ‘The USA and the Caribbean
Interdiction Program’ (2106) 18 International Journal of Refugee Law 677; Gammeltoft-Hansen and
Hathaway (n 7).
12
Exchange of Diplomatic Letters Between E.H. Preeg, US Ambassador to Haiti, and E. Francisque,
Haiti’s Secretary of State for Foreign Affairs, TIAS No. 10241 (23 Sept. 1981), cited in Legomsky 679.
13
Azadeh Dastyari, United States Migrant Interdiction and the Detention of Refugees in Guantánamo
Bay (Cambridge University Press 2015); Orchard (n 5), 216–20; Legomsky (n 11), 683.
14
Tara Magner, ‘A less than ‘Pacific’solution for asylum seekers in Australia’ (2004) 16
International Journal of Refugee Law 53; J. McAdam, ‘Australia and Asylum Seekers’ (2103) 25
International Journal of Refugee Law 435.
15
Hirsi Jamaa and Others v. Italy, App no 27765/09, European Court of Human Rights, Grand
Chamber, 23 February 2012.
16
Presidential Proclamation No. 4865, 3 CFR 50-51 (1981–1983 Comp.) cited in Sale, Acting
Commissioner Immigration and Naturalization Service v. Haitian Center Council, 113 S. Ct. 2549, 509
US 155 (1993), 21 June 1993 p 4.
17
Hirsi Jamaa and Others v. Italy (n 15) para 13.

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 International models of deterrence and the future of access to asylum 173

boats’.18 Notwithstanding the underlying motivation, such policies raise refugee law questions
as they often prevent access to asylum and, with it, international protection.
A number of scholars have sought to categorise deterrence policies. In a typology that
encompassed multilateral cooperation and cooperation between states and private actors,
Gammeltoft-Hansen and Hathaway identify seven forms of non-entrée: diplomatic relations;
direct financial incentives; provision of equipment, machinery, and training; deployment of
immigration officials of the destination state; joint or shared enforcement; direct migration
control role; and use of international agencies to intercept refugees.19 Nicholson compares
extraterritorial migration control policies between the US and Europe, suggesting five uni-
lateral and cooperation-based mechanisms: visa controls; extraterritorial detention; patrol
and maritime interdiction; surveillance and intelligence operations; and diplomatic agree-
ments.20 Markard’s analysis of the right to leave in the context of EU cooperation with North
African and Middle Eastern states puts forward five forms of cooperation: joint operations;
liaison officers; equipment and training; intelligence networks; and contractual obligations.21
Previous work of Gammeltoft-Hansen and this author takes a broad view, including policies
on the territory of destination states and ‘indirect’ deterrence measures that do not restrict
access to asylum, but may negatively impact other rights. Deterrence policies are thus concep-
tualised as comprising: non-admission; non-arrival; offshore asylum processing and protection
elsewhere; criminalisation; and indirect deterrence measures.22
The following section analyses the various forms of international deterrence practices
to highlight categories of cooperation. The most common forms of international deterrence
are focused on migration control, aimed at preventing asylum seekers ever departing for or
arriving at the developed state. Other forms of deterrence are focused on protection elsewhere,
such as offshore asylum processing. Cooperation falls into four categories: funding, equipment
and training; joint patrols and interdiction; people exchange; and extraterritorial processing.

A. Funding, Equipment and Training

This first form of cooperation encompasses the provision of technical support and equipment
to the developing state for the purposes of preventing irregular migration. In Europe, Spain has
entered into bilateral cooperation agreements with, inter alia, Cape Verde, Senegal, Morocco
and Mauritania to prevent irregular migrants leaving from North and West Africa. Under these
agreements, Spain provides equipment and training to partner states for border surveillance
and enforcement, including the donation of seven patrol boats to Senegal and Mauritania.23

18
Paul Farrell, ‘Could Australia’s ‘stop the boats’ policy solve Europe’s migrant crisis?’ The
Guardian 22 April 2015 https://​www​.theguardian​.com/​world/​2015/​apr/​22/​could​-australia​-stop​-the​
-boats​-policy​-solve​-europe​-migrant​-crisis accessed 10 October 2016.
19
Gammeltoft-Hansen and Hathaway (n 7), 251–6.
20
Eleanor Taylor Nicholson, ‘Cutting Off the Flow: Extraterritorial Controls to Prevent Migration’
Issue Brief, the Chief Justice Earl Warren Institute on Law and Social Policy, University of California,
Berkley Law School 6–13.
21
Nora Markard, ‘The right to leave by sea: legal limits on EU migration control by third countries’
(2016) 27 European Journal of International Law 591, 610–13.
22
Gammeltoft-Hansen and Tan (n 6) 34–40.
23
Agreement with Cape Verde on Joint Surveillance of Marine Areas under the Sovereignty and
Jurisdiction of Cape Verde, 21 Feb 2008; Markard (n 21).

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Italy has also sought to equip nearby transit states, gifting six patrol boats to Libya and four to
Tunisia between 2009 and 2011.24 Most recently, Italy has resumed cooperation with Libyan
authorities, providing training and assistance under a 2017 memorandum of understanding.25
In the Asian-Pacific, Australia has entered into bilateral arrangements with regional states
to prevent asylum seekers reaching Australia.26 Since 2011, Australia has given patrol boats
to authorities in Sri Lanka, Malaysia and Indonesia to disrupt irregular migration.27 Australia
provides Sri Lanka, a refugee-producing country, with surveillance and search and rescue
equipment to prevent its citizens leaving by boat. Australia also provides of AUD 2 million
to the Sri Lankan navy every year.28 Australia funds both Indonesia’s immigration detention
network and the Jakarta Centre for Law Enforcement Cooperation, where Indonesian police
receive training in the disruption people-smuggling operations.29

B. Joint Patrols and Interdiction

Secondly, joint patrols and interdiction at sea arrangements provide more direct enforce-
ment of non-entrée. Here the asylum state plays an active role in patrolling or intercepting
asylum seekers on the move. Spain’s bilateral cooperation arrangements with, for example,
Morocco include joint patrols around the Canary Islands and Gibraltar Straits.30 In 2012, the
EU Fundamental Rights Agency reported examples of interception and immediate return of
irregular migrants to Moroccan authorities by Spanish vessels.31
The Italy-Libya Treaty of Friendship, Partnership and Cooperation of 2008 included joint
patrols of the Libyan coastline and interceptions on the high seas. Under the treaty, Libya
agreed to cooperate with Italy on the return of boats, resulting in the turning back of 777
migrants in nine operations in 2009.32 In Hirsi v. Italy the European Court of Human Rights
unanimously struck down the treaty, finding that push-backs on the high seas amounted to
refoulement.

24
European Agency for Fundamental Rights, ‘Fundamental rights at Europe’s southern sea borders’
(2013) 45; Markard, ibid., 612.
25
See Moreno-Lax and Giuffré, this volume.
26
Asher Lazarus Hirsch, ‘The borders beyond the border: Australia’s extraterritorial migration
controls’ (2017) 36(3) Refugee Survey Quarterly 48.
27
Prime Minister of Australia, People smuggling cooperation with Sri Lanka (press release) 17
November 2013, http://​www​.pm​.gov​.au/​media/​2013​-11​-17/​people​-smuggling​-cooperation​-sri​-lanka,
accessed 22 February 2016; Minister for Immigration and Border Protection, ‘50 days of failure for
people smugglers’ (press release) 7 February 2014, http://​www​.minister​.immi​.gov​.au/​search/​cache​
.cgi​?collection​=​immirss​&​doc​=​2014​%2Fsm211571​.xml, accessed 22 February 2016; Antje Missbach,
‘Doors and fences: Controlling Indonesia’s porous borders and policing asylum seekers’ (2014) 35
Singapore Journal of Tropical Geography 228 233.
28
Emily Howie, ‘Asia-Pacific: Australian border control in Sri Lanka’ (2014) 39 Alternative Law
Journal 52.
29
Indonesia is an important transit states for asylum seekers trying to reach Australia. Australian
Government, Department of Immigration and Border Protection, Annual Report 2013–14, p 149, avail-
able at http://​www​.border​.gov​.au/​ReportsandPublications/​Documents/​annual​-reports/​DIBP​_AR​_2013​
-14​.pdf, accessed 22 February 2016.
30
European Agency for Fundamental Rights (n 24), 21.
31
Ibid., 47.
32
Ibid.

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 International models of deterrence and the future of access to asylum 175

In Asia, Australia carries out boat turn-backs on a unilateral basis and in the context of
bilateral cooperation. Despite the protests of neighbouring Indonesia, since 2013 Australia has
turned back 33 boats to Sri Lanka, Indonesia and Vietnam. In 2014, Australia returned two
boats to Sri Lankan authorities after an ‘enhanced screening’ process of those on board.33 In
addition to turn-backs, Australia has also carried out a joint operation with Malaysia on the
Malacca Strait, Operation Kangaroo, in 2014.34

C. People Exchange

Third, international deterrence may involve the transfer of asylum seekers who reach the
territory or the asylum state or who are intercepted at sea or to a third state. The EU–Turkey
Statement includes resettlement of Syrian refugees in Turkey. Under the agreement, for every
Syrian returned from the Greek islands, another Syrian will be resettled from Turkey to the EU.35
The EU­–Turkey Statement echoes an earlier people exchange agreement between Australia
and Malaysia. In July 2011 the Australian government signed a non-binding agreement with
Malaysia to resettle, on an annual basis, 4,000 refugees in exchange for Malaysia accept-
ing 800 asylum seekers intercepted at sea.36 The Malaysia agreement was invalidated by
Australia’s High Court in the M70 case, due to inadequate legal guarantees that refugees in
Malaysia would receive the protection required by Australian law.37

D. Extraterritorial Processing

Finally, the most visible and controversial form of international deterrence is the processing
of asylum seekers in third states. The US first implemented asylum processing at Guantanamo
Bay in 1994, inspiring Australia’s Pacific Solution that was in place between 2001 and 2008.38
In Europe, various proposals have called for the establishment of offshore asylum centres. In
2003, the UK put forward its ‘New Vision for Refugees’ proposal for extraterritorial asylum
processing, followed by a German call for the establishment of asylum centres in North Africa

33
Daniel Hurst, ‘Australia returns asylum seekers to Sri Lanka in sea transfer’, The Guardian (7 July
2014) https://​www​.theguardian​.com/​world/​2014/​jul/​07/​australia​-asylum​-seekers​-sri​-lanka​-sea​-transfer,
accessed 22 February 2016.
34
Joint Press Conference, Scott Morrison – Minister for Immigration and Border Protection, Ahmad
Zahid Bin Hamidi – Minister for Home Affairs, Malaysia and Michael Pezzullo – CEO of Australian
Customs and Border Protection Service, 20 February 2014 http://​www​.minister​.immi​.gov​.au/​media/​sm/​
2014/​sm211967​.htm, accessed 22 February 2016.
35
EU–Turkey statement, 18 March 2016.
36
Arrangement between the Government of Australia and the Government of Malaysia on Transfer
and Resettlement (signed and entered into force 25 July 2011).
37
M70 v. Minister for Immigration and Citizenship, 244 CLR 144 (2011); Michelle Foster, ‘The
implications of the failed “Malaysian Solution”: The Australian High Court and refugee responsibility
sharing at international law’ (2012) 13(1) Melbourne Journal of International Law 422.
38
Dastyari (n 13); Legomsky (n 11), 683.

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176 Research handbook on international refugee law

in 2005.39 Despite renewed interest in offshore processing during the European migrant and
refugee crisis, the approach has thus far been rejected.40
In contrast, Australia has become the leading exponent of offshore processing. Under mem-
oranda of understanding with Pacific states Nauru and Papua New Guinea, asylum seekers
intercepted at sea are transferred to these states for processing, on the basis that these offshore
arrangements deter asylum seekers arriving by boat and prevent deaths at sea.41 The bilateral
agreements formally include the possibility of permanent resettlement for asylum seekers
recognised as refugees, however both Nauru and Papua New Guinea have expressed unwill-
ingness to provide permanent protection to refugees.42
Today, Australia’s approach is increasingly under pressure. A range of human rights issues,
including sexual assault and violence, have arisen in offshore detention.43 Approximately 900

39
UK Home Office, ‘New international approaches to asylum processing and protection’ 10
March 2003; Gregor Noll, ‘Visions of the exceptional: legal and theoretical issues raised by transit
processing centres and protection zones’ (2003) 5(3) European Journal of Migration and Law 303;
Madeline Garlick, ‘The potential and pitfalls of extraterritorial processing of asylum claims’ Migration
Policy Institute, available at: http://​www​.migrationpolicy​.org/​news/​potential​-and​-pitfallsextraterritorial​
-processing​-asylum​-claims accessed 10 October 2016.
40
For example, a Danish parliamentary delegation attempted to visit the Nauru regional processing
centre in August 2016. Paul Farrell, ‘Danish delegation planning visit to Nauru detention centre refused
visas’ 30 August 2016, The Guardian Newspaper https://​www​.theguardian​.com/​australia​-news/​2016/​
aug/​23/​danish​-politicians​-seek​-to​-visit​-nauru​-site​-at​-heart​-of​-offshore​-detention​-outcry accessed 10
October 2016.
41
Trattato di amicizia, partenariato e cooperazione tra il governo della Repubblica italiana e la
Grande Giamahiria Araba Libica Popolare socialista, 30 August 2008, ratified by Italy in law n. 7/2009,
on 6 February 2009, Gazzetta Ufficiale Repubblica Italiana, Serie generale n. 40; Regional Resettlement
Arrangement between Australia and Papua New Guinea 19 July 2013; Memorandum of Understanding
between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and
Assessment of Persons in Nauru, and Related Issues. 18 February 2009. See further Mariagiulia Giuffre,
‘State responsibility beyond borders: what legal basis for Italy’s push-backs to Libya?’ (2012) 4
International Journal of Refugee Law 24.
42
Regional Resettlement Arrangement between Australia and Papua New Guinea, art 5 and the
Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, art
12. Ben Doherty, ‘Papua New Guinea asks Australia for help resettling refugees from Manus Island’ The
Guardian 3 October 2016 https://​www​.theguardian​.com/​australia​-news/​2016/​oct/​04/​papua​-new​-guinea​
-asks​-australia​-for​-help​-resettling​-refugees​-from​-manus​-island accessed 10 October 2016.
43
In relation to the Manus Island detention centre in Papua New Guinea, see Robert Cornell, Review
into the events of 16–18 February 2014 at the Manus Island regional processing centre, Report to the
Secretary of the Department of Immigration and Border Protection, 23 May 2014 67; UNHCR UNHCR
Mission to Manus Island, Papua New Guinea 15–17 January 2013 (2013); Joanne Wallis and Steffen
Dalsgaard, ‘Money, manipulation and misunderstanding on Manus Island’ (2016) The Journal of Pacific
History 1–29. In relation to Nauru, see UNHCR, UNHCR monitoring visit to the Republic of Nauru 7
to 9 October 2013 (2013); Committee Against Torture, Concluding observations on the fourth and fifth
periodic reports of Australia, 26 November 2014, para 17; Azadeh Dastyari, ‘Detention of Australia’s
asylum seekers in Nauru: is deprivation of liberty by any other name just as unlawful?’ (2015) 38
University of New South Wales Law Journal 669; ‘Select Committee on the Recent allegations relating
to conditions and circumstances at the Regional Processing Centre in Nauru’, Taking responsibility:
conditions and circumstances at Australia’s Regional Processing Centre in Nauru (31 August 2015);
Philip Moss, ‘Review into Recent Allegations Relating to Conditions and Circumstances at the Regional
Processing Centre in Nauru’ (2015); Senate Select Committee on the Recent allegations relating to con-
ditions and circumstances at the Regional Processing Centre in Nauru, Parliament of Australia, Taking
responsibility: conditions and circumstances at Australia’s Regional Processing Centre in Nauru (August

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 International models of deterrence and the future of access to asylum 177

asylum seekers remain in Australian-funded detention or accommodation in Nauru and Papua

New Guinea without a clear avenue to a durable solution.44 In April 2016, the Papua New
Guinea Supreme Court found detention of asylum seekers unconstitutional, prompting both
governments to announce the closure of the centre.45

III. THE FUTURE OF ACCESS TO ASYLUM

The catalogue of international deterrence policies suggest that access to asylum is under
threat. International deterrence measures limit access to asylum by diverting refugees to
other states or preventing their departure from states of origin or transit. Today, 84 per cent
of the world’s 20.4 million refugees reside in the developing world, while 20 years ago, this
proportion stood at 70 per cent.46 Given the fundamental importance of asylum to the refugee
regime, arresting this narrowing of access to asylum presents a fundamental challenge. This
final section addresses three debates raised by the emergence of international deterrence pol-
icies: the legal limits of such policies; allocation of international responsibility in cooperative
arrangements; and finally, the potential for international deterrence policies to contribute to
refugee burden-sharing.

A. Legal Challenges

International deterrence policies face challenges – at least to some extent – from human rights
and refugee law. A number of the deterrence policies outlined above have been struck down by
national and regional courts. In Hirsi, the European Court of Human Rights not only author-
itatively held that non-refoulement applies extraterritorially; it also held that Italy could not
avoid the application of the European Convention on Human Rights on the basis of its bilateral
treaty with Libya.47
At the national level, the High Court of Australia struck down the Australia–Malaysia
people exchange on the basis that Malaysia was not bound by national or international law to

2015). In August 2016, The Guardian published 2116 leaked incident reports written by staff the Nauru
centre, known as ‘The Nauru Files’. The reports are available at https://​www​.theguardian​.com/​australia​
-news/​ng​-interactive/​2016/​aug/​10/​the​-nauru​-files​-the​-lives​-of​-asylum​-seekers​-in​-detention​-detailed​-in​
-a​-unique​-database​-interactive.
44
A 2016 agreement between Australia and the US to resettle up to 1250 refugees from Nauru and
Papua New Guinea has thus far seen around 500 refugees transferred to the US.
45
Namah v. Pato (Minister for Foreign Affairs and Immigrations) and ors [2016] PJSC 13 (26
April, 2016); Stephanie Anderson, ‘Manus Island detention centre to close, Peter Dutton and PNG Prime
Minister confirm’ (Australian Broadcasting Corporation), 17 August 2016, http://​www​.abc​.net​.au/​news/​
2016​-08​-17/​manus​-island​-to​-close​-png​-prime​-minister​-confirms/​7759810 accessed 10 October 2016.
46
UNHCR, Global Trends 2016 (2017) 2.
47
The Court held:
Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agree-
ments with Libya. Even if it were to be assumed that those agreements made express provision for
the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility
continues even after their having entered into treaty commitments subsequent to the entry into
force of the Convention or its Protocols.

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178 Research handbook on international refugee law

provide effective refugee protection to asylum seekers transferred under the deal.48 As a result,
the agreement never went into operation. The Supreme Court of Papua New Guinea in Namah
v. Pato held that detention of asylum seekers under Papua New Guinea’s bilateral arrangement
with Australia breach the right to liberty set out in the national constitution.49 Acknowledging
the cooperation element of the policy, the Court ordered both governments to stop the deten-
tion of asylum seekers on Manus Island.50
These judicial interventions are important in curtailing deterrence policies that overstep
refugee and human rights law, however they are unlikely to end them. Instead, non-entrée
approaches will likely continue to evolve in response to legal impositions.51 International
deterrence policies are often designed to avoid legal scrutiny – carried out as they are on the
territories of third states or on the high seas.52 At times those developing states that agree to
cooperate on migration control or protection elsewhere bear fewer human rights obligations
than their partner states.53 For example, Nauru was not a party to the 1951 Convention until
2011, while Malaysia and Libya have never acceded to the Convention or its 1967 Protocol.
As a result, often alleged violations of, for example, non-refoulement or inhuman or degrad-
ing detention conditions are not justiciable outside the domestic legal system of the state in
question.
While human rights and refugee law can limit deterrence policies from time to time, states’
desire to control their borders and prevent spontaneous arrivals will likely trump the human-
itarian exception of asylum. Often deterrence policies do not extinguish access to asylum as
a matter of law, they rather maintain a notional right to asylum while de facto narrowing access
to the greatest possible extent.

B. (Shared) Responsibility

International law generally encourages cooperation between states. The 1951 Convention is
silent on the allocation of responsibility for aspects of refugee protection to other states, requir-
ing only that the principle of non-refoulement be respected.54 As a result, by their very nature,
international deterrence policies raise complex questions about international responsibility for
violations of human rights and refugee law. For example, a purpose of the Protocol against
the Smuggling of Migrants by Land, Sea and Air is to promote cooperation between states.55
However, the Protocol also provides that the non-refoulement principle and other refugee
rights must be respected.56

48
M70 v. Minister for Immigration and Citizenship, 244 CLR 144 (2011).
49
Namah v. Pato (Minister for Foreign Affairs and Immigrations) and ors [2016] PJSC 13 (26 April,
2016).
50
Ibid., para 74.
51
Thomas Gammeltoft-Hansen, ‘International Refugee Law and Policy: The case of deterrence
policies’ (2014) 27(4) Journal of Refugee Studies 574–95.
52
See Moreno-Lax and Giuffré, this volume.
53
Gammeltoft-Hansen and Hathaway (n 7) 256.
54
James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press
2014) 33, 31.
55
UN General Assembly, Protocol against the Smuggling of Migrants by Land, Sea and Air,
Supplementing the United Nations Convention against Transnational Organized Crime, 15 November
2000, available at http://​www​.refworld​.org/​docid/​479dee062​.html, accessed 22 February 2016, art 7.
56
Ibid., art 19.

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 International models of deterrence and the future of access to asylum 179

While international law has long been considered ‘indistinct’ in relation to shared respon-
sibility, a number of scholars are now turning their attention to state responsibility in the
context of bilateral and multilateral activities.57 The Articles on Responsibility of States for
Internationally Wrongful Acts (ASR) provide a useful departure point for establishing state
responsibility for acts that violate states’ international law obligations. Preserving access to
asylum requires far greater attention to the possibility of shared responsibility for violations of
human rights and refugee law in the course of international deterrence policies.
Shared responsibility could conceivably be established for violations of, inter alia,
non-refoulement, in a range of scenarios on the basis of independent, joint and derivative
responsibility.58 However, operationalising shared responsibility requires the engagement of
judiciaries at national and international levels. Cases should focus on testing, where possible,
the shared responsibility of two states involved in carrying out non-entrée, and explore evolv-
ing areas of jurisprudence such as the extraterritorial application of human rights treaties, joint
responsibility and the law of complicity.59

C. Burden Shifting to Burden Sharing?

Given deterrence policies are unlikely to disappear, consideration should be given to learn-
ing how to live with them. The 1951 Convention does not does not include a prescriptive
burden-sharing mechanism, although Recital 4 of the Preamble to the 1951 Convention
expressly recognises that the problem of refugee burden-sharing cannot be solved without
international cooperation.60 Today, the refugee regime is in desperate need of meaningful
displays of solidarity. To this point, deterrence policies have been characterised as burden
shifting: diverting or trading out responsibility of refugee protection to other states. However,
given the crisis of solidarity facing the refugee regime, could deterrence be adapted to become
meaningful burden sharing?
While this approach must be treated with great caution, there may be some potential for
burden sharing to emerge from non-entrée policies. Collaboration in this area, by its nature,
involves one state with a highly developed asylum system entering into cooperation agree-
ments with a state with little or no experience in refugee protection. With legal and operation
guidance from, for example, UNHCR, such cooperation could result in expanded capacity

57
James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press,
Oxford, 2012), 457; Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge
Univeristy Press 2011); André Nollkaemper and Dov Jacobs, ‘Shared responsibility in international law:
a conceptual framework’ (2013) 34 Michigan Journal of International Law 359; André Nollkaemper and
Ilias Plakokefalos, Principles of Shared Responsibility in International Law: An Appraisal of the State of
the Art, vol 1 (Cambridge University Press 2014).
58
United Nations International Law Commission, ‘Draft Articles on Responsibility of States for
Internationally Wrongful Acts’ (2001) GAOR 56th Session Supp 10, 43 arts 1, 16 and 47; Nikolas
Feith Tan, ‘State responsibility and migration control: Australia’s international deterrence model’ in
Gammeltoft-Hansen and Vedsted-Hansen (n 9).
59
In JHA v. Spain, for example, the Committee Against Torture considered a communication
relating to Spanish authorities detaining asylum seekers in Mauritania pursuant to a bilateral agreement.
CAT/C/41/D/323/2007, UN Committee Against Torture (CAT), 21 November 2008.
60
Recital 4 provides: ‘Considering that the grant of asylum may place unduly heavy burdens on
certain countries, and that a satisfactory solution of a problem of which the United Nations has recog-
nized the international scope and nature cannot therefore be achieved without international co-operation’.

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180 Research handbook on international refugee law

within the asylum systems of developing states. Further, such bilateral cooperation models
have the potential to strengthen human rights commitments beyond the existing treaty obliga-
tions of cooperating states. Where, for example, one state is not a party to the ICCPR or CAT
but undertakes to respect the prohibition against torture, inhuman or degrading treatment in the
context of a bilateral treaty on asylum processing.
It is beyond the scope of this contribution to set out a comprehensive proposal in this regard,
but existing scholarship may point the way forward. The Michigan Guidelines on Protection
Elsewhere are a useful departure point to identify minimum standards for accessing asylum
and effective protection in the context of deterrence policies.61 A number of core principles
can be identified. First, and most obviously, cooperation must respect the prohibition against
refoulement. Secondly, refugees transferred elsewhere must receive the benefit of other rights
under the 1951 Convention. Thirdly, and finally, cooperation must respect relevant obligations
under human rights and humanitarian law.62

IV. CONCLUSION

This chapter has analysed one example of deterrence policies employed by states in the Global
North: international cooperation preventing access to asylum. The chapter first set out a typol-
ogy of four categories of international deterrence: funding, equipment and training; joint
patrols and interdiction; financial incentives; people exchange; and extraterritorial processing.
This array of cooperation-based measures, coupled with other forms of deterrence, already
limit access to territory to a significant extent and raise questions about the survival of access
to asylum in the developed world.
The chapter then went on to discuss three fundamental issues relating to deterrence: legal
challenges; the allocation of international responsibility in these arrangements; and the poten-
tial for international deterrence policies to contribute to burden-sharing. While deterrence
policies face the threat of legal challenge and evolving international jurisprudence, policy are
likely to outstrip legal developments in this area. Nevertheless, there is scope to develop the
concepts of shared state responsibility vis-à-vis non-entrée policies. Finally, given migration
control and protection elsewhere policies seem firmly entrenched in the short and medium
term, adapting existing cooperation arrangements to burden share – not merely burden shift –
deserves cautious exploration.

REFERENCES
European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by
Protocols Nos. 11 and 14, 4 November 1950, ETS 5.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR).
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Opened for signature 10 December 1984, 1486 UNTS 85 (entered into force 26 June 1987).
Michigan Guidelines on Protection Elsewhere, Adopted January 3, 2007.
Hirsi Jamaa and Others v. Italy (European Court of Human Rights).

61
Michigan Guidelines on Protection Elsewhere, Adopted January 3, 2007.
62
Ibid., arts 6–11.

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 International models of deterrence and the future of access to asylum 181

European Agency for Fundamental Rights, Fundamental rights at Europe’s southern sea borders (2013).
Aust H. P., Complicity and the Law of State Responsibility (Cambridge 2011).
Chetail V., ‘Are refugee rights human rights? An unorthodox questioning of the relations between
refugee law and human rights law’ Human Rights and Immigration, Collected Courses of the
Academy of European Law 19.
Cruz A., Oriental UoLSo and Studies A, Shifting responsibility: carriers’ liability in the member states of
the European Union and North America (Trentham Books and School of Oriental & African Studies
1995).
Dastyari A., ‘Detention of Australia’s Asylum Seekers in Nauru: Is Deprivation of Liberty by Any Other
Name Just as Unlawful?’ (2015) 38 University of New South Wales Law Journal 669.
Dastyari A., United States Migrant Interdiction and the Detention of Refugees in Guantánamo Bay
(Cambridge University Press 2015).
Gammeltoft-Hansen T., Access to Asylum: International Refugee Law and the Globalisation of
Migration Control (Cambridge University Press 2011).
Gammeltoft-Hansen T. and Hathaway J. C., ‘Non-Refoulement in a World of Cooperative Deterrence’
53 Columbia Journal of Transnational Law 235.
Gammeltoft-Hansen T. and Tan N. F., ‘The End of the Deterrence Paradigm? Future Directions for
Global Refugee Policy’ 5 Journal on Migration and Human Security 28.
Harvey C., ‘Time for Reform? Refugees, Asylum-seekers, and Protection Under. International Human
Rights Law’ (2015) 34 Refugee Survey Quarterly 43.
Hathaway J. C., ‘The emerging politics of non-entree’ (1992) 91 Refugees 40.
Hathaway J. C. and Foster M., The Law of Refugee Status (Cambridge University Press 2014).
Hirsch A. L., ‘The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls’ 36
Refugee Survey Quarterly 48.
Howie E., ‘Asia-Pacific: Australian border control in Sri Lanka’ (2014) 39 Alternative Law Journal 52.
Legomsky S. H., ‘The USA and the Caribbean Interdiction Program’ 18 International Journal of Refugee
Law 677.
Magner T., ‘A less than ‘Pacific’ solution for asylum seekers in Australia’ (2004) 16 International
Journal of Refugee Law 53.
Markard N., ‘The right to leave by sea: legal limits on EU migration control by third countries’ (2016)
27 European Journal of International Law 591.
McNamara F., ‘Member State responsibility for migration control within third states–externalisation
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McAdam J., ‘Australia and asylum seekers’ 25 International Journal of Refugee Law 435.
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(2014) 35 Singapore Journal of Tropical Geography 228.
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Processing Centre in Nauru (31 August 2015).
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12. What is the future of non-refoulement in
international refugee law?
James C. Simeon

The cornerstone of the modern international refugee protection system, it is ofttimes noted, is
the principle of non-refoulement.1 Indeed, the UNHCR has asserted that non-refoulement is
a fundamental principle of international law that is accepted by the international community
of states.2 This is most evident from the legal premise of the principle of non-refoulement
that is found in numerous international instruments.3 It is, of course, enshrined in the 1951
Convention relating to the Status of Refugees at Article 33, the Prohibition of Expulsion or

1
For instance, see Jessica Rodger, ‘Defining the Parameters of the Non-Refoulement Principle’,
LLM Research Paper, International Law (Laws 509), Faculty of Law, Victoria University of Wellington,
2001, http://​www​.refugee​.org​.nz/​JessicaR​.htm, last accessed 13 August 2016. Wherein she states:
This paper will examine the international law regime which has been developed to deal with refu-
gees. The cornerstone of this regime, and the focus of this paper, is the principle of non-refoulement.
Non-refoulement is the idea that it is illegal for states to expel or return (‘refouler’) refugees who
have a well-founded fear of persecution. Over recent years this principle, and the refugee regime
itself, has found itself increasingly under threat.
James Milner, ‘New Challenges in International Refugee Protection: Canada’s Role’, Presentation to the
Canada School of Public Service, Ottawa, Canada, 9 October 2008. canada​.metropolis​.net/​mediacentre/​
new​_challenges​_internat​_refugee​_protection​_e​.doc. last accessed August 2, 2016, who states at p. 4:
Perhaps the most significant right granted to refugees by the 1951 Convention is non-refoulement:
the right of refugees not to be returned to a country where they risk persecution. Non-refoulement
remains the corner-stone of international refugee protection, and is now considered to be a pro-
vision of customary international law, binding even on states not party to the 1951 Convention.
(emphasis added)
See also, the United Nations Office on Drugs and Crime, Toolkit to Combat Trafficking in Persons:
Global Programme in Trafficking in Human Beings (New York: UN, 2008), https://​www​.unodc​.org/​
documents/​human​-trafficking/​HT​_Toolkit08​_English​.pdf, last accessed 2 August 2016, wherein it states
at p. 362:
The principle of non-refoulement is often referred to as the cornerstone of international protec-
tion. This principle, as enshrined in the 1951 Convention relating to the Status of Refugees, has
acquired the status of customary international law, meaning that it has become binding on all
States, regardless of whether or not they are signatories to the 1951 Convention.
See further Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edn,
(Oxford: Oxford University Press, 2007), Chapter 5, Non-Refoulement in the 1951 Refugee Convention.
2
UNHCR, ‘Note on Non-Refoulement (Submitted by the High Commissioner), EC/SCP/2’
23 August 1977, Executive Committee of the High Commissioner’s Programme, 28th session,
Sub-Committee of the Whole on International Protection, http://​www​.unhcr​.org/​excom/​scip/​3ae68ccd10/​
note​-non​-refoulement​-submitted​-high​-commissioner​.html, last accessed 2 August 2016.
3
Take for the instance, the 1966 Principles concerning the Treatment of Refugees adopted
by the Asian-African Legal Consultative Committee at the Eighth Session in Bangkok (Bangkok
Principles), 1969 OAU Convention Governing Specific Aspects of the Refugee Problem in Africa, the
1984 Cartagena Declaration, and the 1984 Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.

183
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184 Research handbook on international refugee law

Return (‘Refoulement’).4 In addition, it is evident in terms of state practice that serves as the
basis on which customary international law is premised.5 There are now very few states in the
world that are not bound by any universal treaty obligation that contains the non-refoulement
principle and, with respect to opinio juris, it is considered by the leading authorities of public
international law as a universal obligation by states whose interests are directly affected.6
Consequently, everyone is protected by the principle of non-refoulement. However, not all
asylum seekers and refugees are protected by the principle of non-refoulement under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol.7 The prohibition of return-
ing anyone to persecution is now a fundamental principle of international law. Nevertheless,
whether the principle of non-refoulement is a peremptory norm from which there can be no
derogation, that is, that the principle of non-refoulement has achieved the status of jus cogens,
is still contested and seemingly less evident.8
The principle of non-refoulement is further reiterated in Article 3 of the 1967 United
Nations Declaration on Territorial Asylum:

(1) No person [seeking asylum from persecution] shall be subjected to measures such as
rejection at the frontier or, if he has already entered the territory in which he seeks
asylum, expulsion or compulsory return to any State where he may be subjected to
persecution.
(2) Exception may be made to the foregoing principle only for overriding reasons of
national security or in order to safeguard the population, as in the case of a mass influx
of persons.

4
1951 Convention relating to the Status of Refugees, 189 UNTS 137, 28 Jul. 1951 (entry into force
22 April 1954).
5
Walter Kalin, Martina Caroni, Lukas Heim, ‘Article 33, para. 1 (Prohibition of Expulsion or
Return (‘Refoulement’)/Defese d’Expulsion et de Refoulement)’ The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary. Andreas Zimmermann, Jonas Dorschner, Felix
Machts (eds), (Oxford: Oxford University Press, 2011), E. Other Relevant Norms of International Law,
1. Non-refoulement as a Principle of Customary International Law, pp. 1343–6.
6
Ibid., p. 1344.
7
It is worth noting the distinction between asylum seeker and refugee. UNESCO (United Nations
Education, Scientific and Cultural Organization) defines the two terms as follows:
Asylum seekers are people who move across borders in search of protection, but who may not fulfil
the strict criteria laid down by the 1951 Convention. Asylum seeker describes someone who has
applied for protection as a refugee and is awaiting the determination of his or her status. Refugee
is the term used to describe a person who has already been granted protection. Asylum seekers can
become refugees if the local immigration or refugee authority deems them as fitting the interna-
tional definition of refugee.
UNESCO, Social and Human Sciences, Learning to Live Together, Asylum Seeker, http://​www​
.unesco​.org/​new/​en/​social​-and​-human​-sciences/​themes/​international​-migration/​glossary/​asylum​-seeker/​
last accessed 6 August 2016.
8
Kalin, Caroni, Heim, in Zimmermann et al The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol: A Commentary (n 5), p. 1346. Andrew Clapham, Human Rights: A Very Short
Introduction (Oxford: Oxford Univeristy Press, 2015) at p. 22 provides a good description of peremptory
or jus cogens norms:
The hierarchy between human (or constitutional) rights law and normal national law is now
mirrored at the international level in the hierarchy between general international law and certain
‘superior’ international law prohibitions (known as ‘peremptory’ or ‘jus cogens’ norms).

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 What is the future of non-refoulement in international refugee law? 185

The well-established principle of non-refoulement is found in many international and regional

instruments: for example, it is also found in: Article II of the 1969 Organization of African
Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa;
Section III of the 1984 Cartagena Declaration on Refugees; Article III of the 1966 Bangkok
Principles on the Status and Treatment of Refugees; Article 21 of the 2011 EU Council
Directive on the minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international protection and
the content of protection granted.
When does the principle of non-refoulement not apply under the 1951 Convention relating
to the Status of Refugees? Clearly, it does not apply when refugee protection is not required.
When Article 1F of the so-called Exclusion Clauses of the 1951 Convention Relating to the
Status of Refugees is made out in a claim for Convention refugee status and the person is found
‘not to be deserving’9 of Convention refugee status by virtue of having committed a crime
against peace, a war crime or a crime against humanity, committed a serious non-political
crime prior to arriving in the host country, or is guilty of actions that are contrary to the pur-
poses and principles of the United Nations.10 Non-refoulement in terms of the 1951 Convention
is also limited by the qualifying clause in Article 33(2) that states that there are ‘reasonable
grounds for regarding as a danger to the security of the country’ or ‘who has been convicted
by a final judgment of a particularly serious crime, constitutes a danger to the community
of that country’.11 States, accordingly, can proscribe those refugees who are deemed to be
a danger to the community and to the security of a country they are in and seeking refugee pro-
tection. However, excluding someone from Convention refugee status or refugee protection
under Article 1F or Article 33(2) is an entirely different matter from expulsion, deportation
or returning someone who has a risk of facing persecution in their country of nationality or
former habitual residence. The person may not qualify for refugee protection but may not be
able to be deported, in some instances, even to another safe third country.12 Those who are in

9
Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Under the
1951 Convention and 1967 Protocol Relating to the Status of Refugees. Reissued Geneva, December
2011. http://​www​.unhcr​.org/​publications/​legal/​3d58e13b4/​handbook​-procedures​-criteria​-determining​
-refugee​ -status​
-under​
-1951​-convention​.html, last accessed 3 August 2016, Chapter IV, Exclusion
Clauses, B. Interpretation of Terms, (3) Persons considered not to be deserving of international protec-
tion. p. 29.
10
1951 Convention relating to the Status of Refugees, 189 UNTS 137, 28 Jul. 1951 (entry into force
22 April 1954), Art 1F.
11
Ibid., Art 33(2), Prohibition of Expulsion or Return (‘Refoulement’).
12
See Refugee Law Initiative, School of Advanced Study, University of London, ‘Undesirable and
Unreturnable? Policy Challenges around Excluded Asylum-Seekers and Migrants Suspected of Serious
Criminality but who cannot be Removed,’ http://​www​.sas​.ac​.uk/​rli/​research​-projects/​undesirable​-and​
-unreturnable​-0, last accessed 28 August 2016, wherein it states:
Impediments to the expulsion of migrants suspected or convicted of serious criminality pose an
increasing challenge for public policy in both the national and international spheres. These obsta-
cles can be ‘practical’, such as the lack of means to send the person to their country of origin, or
‘legal’ in nature, as where human rights standards prevent removal. However, even though such
cases appear comparatively few in number, they tend to attract significant public interest due to
the real concerns that they generate for State migration control, the integrity of the institution of
asylum, the role of human rights in contemporary society, and the bringing to justice of perpetra-
tors of serious crimes.

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186 Research handbook on international refugee law

this situation are considered to be in ‘legal limbo’.13 They have no legal status in their host
state and, hence, have no entitlement to any of the state’s typical social security, education
or public health programs, but, at the same time, cannot be removed. The ‘Undesirable and
Unreturnable?’ research project of the Refugee Law Initiative (RLI), University of London,
and the Center for International Criminal Justice (CICJ), VU University Amsterdam, describes
the classic ‘legal limbo’ scenario in the following terms:

The archetypal expression of this problem is presented by those asylum-seekers excluded from
refugee status due to suspected involvement in serious crimes – as defined by Article 1F of the
Refugee Convention – but who cannot be removed from the host State’s territory on other legal or
practical grounds. The alleged Rwandan genocidaires seeking asylum in the UK are a case in point.
A greater tendency to apply exclusion clauses in the last decade means that such cases are becoming
increasingly common. Moreover, other migrants who have attracted adverse attention as a result
of alleged criminal activities in the host State may end up in a similar situation, including former
refugees such as Abu Qatada. The variety of measures adopted by different countries and their often
ad hoc [manner] suggest that States do not know how to respond effectively to this issue. In the case
of non-removable migrants suspected of having committed serious crimes overseas, the host State is
faced with further uncertainty over whether it should seek to prosecute such individuals. The chal-
lenges here are of a different order, but the response of States is equally hesitant.14

This situation has created difficulties for states as well as UN Special Courts and Tribunals. For
a detailed analysis of the issue of those refugee claimants who are excluded from refugee protection but
cannot be deported or removed from the territory of a state see ‘Conference Report, Undesirable and
Unreturnable?: Policy Challenges Around Excluded Asylum Seekers and Other Migrants Suspected
of Serious Criminality but who Cannot be Removed,’ 27 March 2015, VU University Amsterdam,
http://​www​.​​sas​.ac​.uk/​sites/​default/​files/​files/​Preliminary​%20Workshop​%20Report(2)​.pdf, last accessed
26 August 2016, and for the research project on ‘Undesirable and Unreturnable?’, that is being jointly
led by the Refugee Law Initiative (RLI), University of London, and Centre for International Criminal
Justice (CICJ), VU University Amsterdam, see http://​www​.sas​.ac​.uk/​rli/​research​-projects/​undesirable​
-and​-unreturnable​-0, last accessed 26 August 2016. For those who are acquitted by UN international
courts such as the International Criminal Tribunal for Rwanda, see Benjamin Watson, ‘No Refuge, The
Quandary of Resettling Suspects Acquitted by the ICTR,’ Human Rights Brief, http://​hrbrief​.org/​hearings/​
no​-refuge​-the​-quandary​-of​-resettling​-suspects​-acquitted​-by​-the​-ictr/​, last accessed 26 August 2016, and
UNHCR, ‘Expert Meeting on Complementarities between International Refugee Law, International
Criminal Law and International Human Rights Law,’ Arusha, Tanzania, 11–13 April 2011, Summary
Conclusions, especially, Exclusions and International Criminal Process: Indictments and Acquittals,
para 37–47, http://​www​.unhcr​.org/​protection/​expert/​4e16d0a59/​summary​-conclusions​-expert​-meeting​
-complementarities​-international​-refugee​.html​?query​=​International​%20Criminal​%20Tribunal​%20for​
%20Rwanda, last accessed 26 August 2016. Jessica Joly Hebert, ‘Those acquitted of the international
criminal system – a short commentary on a complex legal void.’ Advocats Hors Quebec, AHQ, Quebec
Lawyers Abroad, 12 June 2015, http://​www​.avocatshorsquebec​.org/​site/​fr/​les​-nouvelles/​articles/​304​
-those​-acquitted​-of​-the​-international​-criminal​-system​-a​-short​-commentary​-on​-a​-complex​-legal​-void​
.html, last accessed 26 August 2016.
13
‘Legal limbo’ can afflict those who have been determined to be a refugee as well. See Tim Coates
and Caitland Hayward, ‘The Costs of Legal Limbo for Refugees in Canada: A Preliminary Study’ (2005)
22(2) Refuge: Canada’s Journal on Refugees 77–87. Andrew Brouwer, ‘Refugees in Legal Limbo,’
The Caledon Institute of Social Policy, October 1998, http://​www​.caledoninst​.org/​Publications/​PDF/​1​
-894159​-21​-7​.pdf, last accessed 26 August 2016.
14
Refugee Law Initiative, School of Advanced Study, University of London, ‘Undesirable and
Unreturnable? Policy Challenges around Excluded Asylum-Seekers and Migrants Suspected of Serious
Criminality but who cannot be removed,’ http://​www​.sas​.ac​.uk/​rli/​research​-projects/​undesirable​-and​
-unreturnable​-0, last accessed 26 August 2016.

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 What is the future of non-refoulement in international refugee law? 187

It is relevant and important to distinguish between those who are excluded from refugee
protection under Article 1F, for past crimes, and those who can be expelled or even possibly
returned to their country of alleged persecution, under special circumstances and assurances,
because they are perceived to be a danger to their host country’s security or community. This
obviously raises some fundamental questions regarding the absolute nature of the principle of
non-refoulement as it is found in the 1951 Convention and whether it is now inconsistent with
what is considered by some legal scholars and, indeed, the UNHCR, to be a peremptory norm
or jus cogens in international law. These difficult and complex questions were, in part, the
subject of the Supreme Court of Canada’s judgment in the 2002 Suresh case.15
In addition to the seminal judgment in Suresh, that will be examined at some length here,
there are also a number of other significant Superior Court judgments and public policies, as
well as regional human rights courts, in other jurisdictions that are worth considering in some
detail such as the 1993 Sale judgment of the US Supreme Court and the European Court of
Human Rights (EctHR) judgments such as Seoring, Hirsi Jamaa and Others v Italy, and M.S.S.
v Belgium and Greece.16 The M V Tampa Affair and Australia’s so-called ‘Pacific Solution’
and subsequent ‘Operation Sovereign Borders’17 will also be considered with the Tampa
Litigation Case, 2001 Ruddock v Vadarlis18 and the 2015 CPCF v Minister for Immigration &
Border Protection19 judgment. A review of the leading jurisprudence among the final courts of
appeal and the public policy initiatives that engage the principle to non-refoulement not only
demarcates the current state of the law with respect to the principle of non-refoulement, but,
it also allows us to draw some reasonable inferences as to the possible evolution and develop-
ment of the principle of non-refoulement for the foreseeable future.
Trying to predict the future course of international refugee law is, of course, highly prob-
lematic and by its very nature an exercise that is wrought with enormous difficulties.20 Khalid
Koser in International Migration: A Very Short Introduction, states that:

15
Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3.
16
Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v Haitian
Centers Council, Inc., et al. 509 U.S. 155; Soering v United Kingdom (1989) 11 EHRR 439, Judgment
of 7 July 1989; Hirsi Jamaa and Others v Italy [GC], App No 27765/09; Case of M.S.S. v Belgium and
Greece [GC] App No 30696/09.
17
Chantal Marie-Jeanne Bostock, ‘The International Legal Obligations owed to the Asylum Seekers
on the MV Tampa,’ (2002) 14 (2 and 3) International Journal of Refugee Law 279–301; Alice Edwards,
‘Tampering with Refugee Protection: The Case of Australia,’ (2003) 15 (2) International Journal
of Refugee Law 192–211 doi:​10​.1093/​ijrl/​15​.2​.192; Ernst Willheim, ‘MV Tampa: The Australian
Response,’ (2003) 15 (2) International Journal of Refugee Law 159–91 doi:​10​.1093/​ijrl/​15​.2​.159.
18
Ruddock v Vadarlis (includes corrigendum dated 20 September 2001) [2001] FCA 1329 (18
September 2001), http://​www​.austlii​.edu​.au/​au/​cases/​cth/​FCA/​2001/​1329​.html, last accessed 24 August,
2016.
19
CPCF v Minister for Immigration and Border Protection, [2015] HCA 1 28 January 2015,
S169/2014. http://​eresources​.hcourt​.gov​.au/​downloadPdf/​2015/​HCA/​1, last accessed 24 August, 2016.
20
Nils Bohr’s, Nobel laureate in Physic, famous quotation is particularly apt here: ‘Prediction is very
difficult, especially if it’s about the future.’ University of Exeter, School of Engineering, Computing
and Mathematics, Famous Forecasting Quotes, http://​www1​.secam​.ex​.ac​.uk/​famous​-forecasting​-quotes​
.dhtml, last accessed 13 August 2016. On the difficulties of predicting the future consider the following:
Ria Misra, ‘Why is it so Hard to predict the Technology of the Future?’ io9 we come from THE FUTURE,
9/11/14, http://​io9​.gizmodo​.com/​why​-is​-it​-so​-hard​-to​-predict​-the​-technology​-of​-the​-futu​-1633706970,
last accessed 13 August 2016; wherein she notes:

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188 Research handbook on international refugee law

Clearly trying to predict the future of international migration is a very unreliable exercise. Conceptual
and data problems mean it can be hard to say just who migrants are and how many they are. Migration
has become inextricably linked with a wider set of global economic and social changes, the dynamics
of which can be subject to sudden changes. Migration and refugee regimes, which have important
implications for the entry and subsequent status of migrants, can be affected by domestic political
agendas that regularly change. The implications of migration for subsequent and third generations
vary between countries and groups and cannot be modelled.21

If the law22 is the application and interpretation of legal norms, principles, statutes and con-
ventions and covenants to ‘real life’ factual situations and if it is extremely difficult, if not
impossible, to know what matters will be litigated in the future, then, it is virtually impossible
to be able to accurately predict the evolution and development of the law. But, if the past is
the prologue for the future then one might be able to make some reasonable forecasts based
on current conditions and trends of what the near future may have in store for the principle of
non-refoulement.
Accordingly, it may be reasonable to surmise that given the present circumstances and
general global trends in the world today, especially, the extent and intensity of war and pro-

Attempting to predict the future is always a roll of the dice — even if we manage to correctly fore-
tell where the winds will shift us, it is impossible to know what unexpected events will detour us
on the way there. But what makes the technology of the future so particularly difficult to imagine?
… Building off the point that our imagining of future technology was based on past technologies,
some commenters pointed out that this led us to imagine bigger or better examples of what we
already had, but made it particularly difficult to imagine true innovation:
Irving Wladawski-Berger, ‘Why is it so Difficult to make Long-term Predictions?’ The Wall Street
Journal, 21 February 2014, http://​blogs​.wsj​.com/​cio/​2014/​02/​21/​why​-is​-it​-so​-difficult​-to​-make​-long​
-term​-predictions/​ , last accessed 13 August 2016; Jeff Stibel, ‘Why we Cannot Predict Financial
Markets,’ Harvard Business Review, 22 January 2009, https://​hbr​.org/​2009/​01/​why​-we​-cant​-predict​
-financial, last accessed 13 August 2016; wherein he states: ‘The future, like any complex problem, has
far too many variables to be predicted’; Daniel W. Rasmus, ‘Back to the Future II: 5 Reasons it is Hard
to Predict the Future,’ Serious Insights, 21 October 2015, http://​www​.seriousinsights​.net/​back​-to​-the​
-future​-ii​-5​-reasons​-it​-is​-hard​-to​-predict​-the​-future/​, last accessed 13 August 2016, states that one of the
five reasons is:
Too Many Variables.Social, technological, environmental, economic and political factors, known
in the scenario planning discipline as STEEP, aren’t independent. They are interwoven, cross pol-
linating and constraint ambiguous. When I say, ‘constraint ambiguous’ it is unclear when looking
at uncertainties about the future, if something is going to fuel the growth of a market, concept or
technology, or constrain its growth. The bottom line is that we don’t have models of the world that
can account for everything going on and predict where it will lead.
21
Khalid Koser, International Migration: A Very Short Introduction (2nd edn, Oxford: Oxford
University Press, 2016), 97.
22
Oxford Dictionaries, ‘law’ (often the law) The system of rules that a particular country or commu-
nity recognizes as regulating the actions of its members and may enforce by the imposition of penalties.
http://​www​.oxforddictionaries​.com/​us/​definition/​american​_english/​law, last accessed 28 August 2016.
Black’s Law Dictionary, What is the Common Law? http://​thelawdictionary​.org/​common​-law/​, last
accessed 28 August 2016:
… As distinguished from equity law, it is a body of rules and principles, written or unwritten,
which are of fixed and immutable authority, and which must be applied to controversies rigorously
and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored
by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished
from any claim to ethical superiority. Klever v. Seawall, 65 Fed. 395, 12 C. C. A. 661. 4.

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 What is the future of non-refoulement in international refugee law? 189

tracted armed conflict,23 the growing threat of terrorism,24 the general level of feelings of inse-
curity due to economic turmoil, and the realpolitik within and across states, the trends seem to
indicate that constraints and restrictions to the principle of non-refoulement will continue and
are likely to grow over the next generation or over the next 25 years. This is a rather negative
and depressing view for the future of the principle of non-refoulement, but, one that is likely to
come about if the current global trends persist. It is questionable, from this vantage point and
perspective, whether the debate regarding whether the principle of non-refoulement is not only
customary international law but jus cogens will likely be settled entirely in the near future. As
the cornerstone of the international refugee protection system this does not augur well either
for those seeking protection from persecution, in all its ever changing forms, or the future of
the current international refugee protection system to be able to cope with the growing trend in
those who are genuinely seeking asylum from persecution.

NON-REFOULEMENT AS A PEREMPTORY NORM IN

INTERNATIONAL LAW

The principle of non-refoulement predates the 1951 Convention relating to the Status of
Refugees. Non-refoulement first appeared in a treaty under the Convention of 28 October, 1933
relating to the International Status of Refugees, League of Nations, Treaty Series Vol. CLIX
No. 3663. Article 3 states:

Each of the Contracting Parties undertakes not to remove or keep from its territory by application of
police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who
have been authorized to reside there regularly, unless the said measures are dictated by reasons of
national security or public order.

The 1951 Convention relating to the Status of Refugees, Article 33, Prohibition of Expulsion
or Return (‘Refoulement’), states as follows:

(1) No Contracting State shall expel or return (‘refouler’) a refugee in any manner what-
soever to the frontiers of territories where his life or freedom would be threatened on

23
UNHCR Global Trends Forced Displacement in 2014, World at War, (Geneva: United Nations
High Commissioner for Refugees, 2015), http://​www​.unhcr​.org/​556725e69​.pdf., and UNHCR Global
Trends in Forced Displacement in 2015, http://​www​.unhcr​.org/​statistics/​unhcrstats/​576408cd7/​unhcr​
-global​-trends​-2015​.html, last accessed 28 August 2015; James C. Simeon, ‘Fleeing from War,’ Peace
Magazine, July–September, 2016, 22–3; James C. Simeon, ‘Endless Wars and the Ever Escalating
‘Global’ Refugee Crisis,’ Canadian Association for Refugees and Forced Migration Studies (CARFMS),
CARFMS/ACERMF Blog, 18 August 2016, http://​carfms​.org/​blog/​endless​-wars​-and​-the​-ever​-escalating​
-global​-refugee​-crisis/​, last accessed 18 August 2016.
24
See for instance, Marvin J. Cetron, ‘The Growing Threat of Terrorism.’ The Futurist, July–
Aug. 1989, 20 http://​go​.galegroup​.com​.ezproxy​.library​.yorku​.ca/​ps/​retrieve​.do​?sort​=​RELEVANCE​
&​docType​=​Article​&​tabID​=​T002​&​prodId​=​EAIM​&​searchId​=​R1​&​resultListType​=​RESULT​_LIST​
&​searchType​=​AdvancedSearchForm​&​contentSegment​=​&​currentPosition​=​9​&​searchResultsType​=​
SingleTab​&​inPS​=​true​&​userGroupName​=​yorku​_main​&​docId​=​GALE​%7CA7698835​&​contentSet​=​
GALE​%7CA7698835, last accessed 28 August 2016. Khusrav Gaibulloev, Todd Sandler, Charlinda
Santifort, ‘Assessing the Evolving Threat of Terrorism,’ (May 2012) 3(2) Global Policy 135–44.

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190 Research handbook on international refugee law

account of his race, religion, nationality, membership of a particular social group or

political opinion.

Article 33(1) is qualified by Article 33(2) that states:

(2) The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country.

Article 33 of the UN 1951 Convention relating to the Status of Refugees mirrors the League
of Nations 1933 Convention relating to the International Status of Refugees. The latter,
1933 Convention relating to the International Status of Refugees, prohibits ‘expulsions or
non-admittance at the frontier (‘refoulement’)’, with the exception of those who pose a threat
to ‘national security or public order’. These same provisions are echoed in Articles 33(1) and
(2) of the 1951 Convention relating to the Status of Refugees. This has led Gilbert Jaeger to
observe that, ‘The Convention of 1933 is a milestone in the protection of refugees and served
as a model for the 1951 Convention.’25
The drafters of the 1951 Convention relating to the Status of Refugees sought to realise the
principle of non-refoulement by situating it at the very heart of the Convention. Gilad Ben-Nun
has argued that, ‘At its core, non-refoulement was about a universal moral imperative, and
an ancient Jewish decree, of not returning refugees back into the hands of their tormentors,
wherever this may take place. The qualifying criterion here was humanity, not geography.’26
Indeed, Reinhard Marx has argued that the ‘principle of non-refoulement is a central element
of human rights’.27 He argues that the ‘core human rights, such as the right to life, the right
to physical integrity, and the right not to be subject to arbitrary detention, limit the power of
the State to the same degree with the same effect as does the principle of non-refoulement’.28
Marx further argues that, ‘Refugee law imposes a clear and firm obligation on States: under
the principle of non-refoulement no refugee should be returned to any country where he or she
is likely to face persecution.’29
Guy S. Goodwin-Gill, at the opening keynote address at the Refugee Law Initiative’s 2016
First Annual Conference, at the University of London, School of Advanced Study, stated
that the non-refoulement principle is now part of customary international law. He went on to
describe the ‘fundamental rules of the international refugee regime are primary in the sense
that, unless there are very exceptional circumstances, they override or trump other important

25
Gilbert Jaeger, ‘On the History of the International Protection of Refugees,’ (September 2001)
83(843) International Review of the Red Cross 730, https://​www​.icrc​.org/​ara/​assets/​files/​other/​727​_738​
_jaeger​.pdf, last accessed 15 August 2016.
26
Gilad Ben-Nun, ‘The British-Jewish Roots of Non-Roulement and its True Meaning for the
Drafters of the 1951 Refugee Convention,’ (2014) 28(1) Journal of Refugee Studies 113.
27
Reinhard Marx, ‘Non-Refoulement, Access to Procedures, and Responsibility for Determining
Refugee Claims,’ (1995) 7(3) International Journal of Refugee Law 388.
28
Ibid.
29
Ibid., 383.

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 What is the future of non-refoulement in international refugee law? 191

interests, commonly expressed in terms of sovereign powers’.30 He goes on to assert that these
fundamental rules:

lay down the conditions for subsequent State conduct (not to return a refugee to where he or she
may be persecuted; not to penalize a refugee by reason of illegal entry; to deal with a person as
a refugee, and within the framework of protection, co-operation and solutions provided by interna-
tional law and its institutions).31

What Guy S. Goodwin-Gill describes as the fundamental rules of the international refugee
implies that the principle of non-refoulement is jus cogens and a peremptory norm of inter-
national law.32 Accordingly, no one, irrespective of the nature of their criminal offence and/
or their continuing risk to reoffend, can be sent to a country where they may face a risk of
persecution.
However, this view has not been accepted universally. For instance, Aoife Duffy has argued that,

Notwithstanding the clear prohibition on refoulement that exists within human rights instruments, the
existence of ‘terrorist’ exceptions to the prohibition of refoulement, either through the use of a bal-
ancing test in some jurisdictions or the current practice of ‘rendition’, alongside Refugee Convention
exceptions, indicates that the goal of acquiring peremptory status for the principle of non-refoulement
in international law has yet to be reached.33

Joan Fitzpatrick has noted, on this point, that ‘irregular rendition without screening for refugee
eligibility may deprive a potential asylum seeker of a fair assessment of his claim to refugee
protection, contrary to the “serious reasons” procedural limitation in Article 1F and the
non-refoulement obligation of Article 33(1)’.34
After a comprehensive and thorough review of the question of whether the principle of
non-refoulement has achieved the status of jus cogens, Michelle Foster and Cathryn Costello
come to the conclusion that:

… on the basis of the evidence reviewed, and applying a rigorous ‘customary international law plus’
approach to identification of jus cogens norms, it is also ripe for recognition as a norm of jus cogens.

30
Guy S. Goodwin-Gill, ‘International Refugee Law: Yesterday, Today, but Tomorrow?’ Refugee
Law Initiative, First Annual Conference, ‘The Future of Refugee Law?’ Human Rights Consortium,
School of Advanced Study, University of London, Senate House, Wednesday, June 29, 2016, p. 7,
(emphasis in the original).
31
Ibid. (emphasis in the original and bold added).
32
Ibid. See also Guy S. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the
Principle of Non-Refoulement,’ (2011) 23(3) International Journal of Refugee Law 444.
33
Aoife Duffy, ‘Expulsion to Face Torture? Non-refoulement in International Law,’ (2008) 20(3)
International Journal of Refugee Law 390.
34
Joan Fitzpatrick, ‘The Post-Exclusion Phase: Extradition, Prosecution and Expulsion,’ (2000) 12
International Journal of Refugee Law, Special Supplementary Issue, Lawyers Committee for Human
Rights, 279. Perhaps the most well-known case of a Canadian who, through the use of ‘extraordinary
rendition,’ was sent to his former country of nationality, Syria, to be tortured was Mahar Arar. See cen-
treforconstitutionalrights, ‘The Story of Maher Arar: Rendition to Torture,’ https://​ccrjustice​​.org/​sites/​
default/​files/​assets/​rendition​%20to​%20torture​%20report​.pdf, last accessed 28 August 2016.

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The crucial question however is whether there is any added utility in ascribing a jus cogens status to
the norm of non-refoulement.35

Michelle Foster and Cathryn Costello go on to argue that jus cogens does add utility to the
principle of non-refoulement beyond its standing as customary international law. They argue
that with the jus cogens standing of non-refoulement that ‘there is genuine potential for the
progressive development of international law concerning jus cogens norms to contribute in
fruitful ways to refugee protection, particularly in the context of international cooperation and
responsibility sharing’.36
On the other hand, in Jean Allain’s examination of this same question: ‘[I]s the norm of
non-refoulement a peremptory norm of international law – a norm of jus cogens?’,37 he goes on
to conclude in the affirmative and notes that a norm of jus cogens does not allow for any dero-
gation or deviation. Jean Allain asserts that, ‘In no circumstances may a State legally transgress
the norms of jus cogens, for they are considered norms so essential to the international system
that their breach places the very existence of that system in question.’38 He goes on to point out
that the Executive Committee of the UNHCR has declared that ‘non-refoulement has acquired
the level of a norm of jus cogens when it determined that the principle of non-refoulement
is not subject to derogation’;39 and further argues that, ‘it is clear that the norm prohibiting
refoulement is part of customary international law, thus binding on all States whether or not
they are party to the 1951 Convention’.40 Moreover, he states that it is evident from state prac-
tice that non-refoulement has achieved the level of a norm of jus cogens.
James C. Hathaway’s legal analysis of the 2001 MV Tampa Affair leads him to observe that:

If the refugees were never lawfully present in Australian territory (including in its territorial waters),
sending them onward to a non-state party is within the bounds of the Refugee Convention so long as
there is no foreseeable risk of direct or indirect refoulement.41

Hence, states may send an individual to a third state, provided steps are taken to assure that the
person would not be at risk of persecution if sent to that third state. Some states are resorting to
these types of measures to avoid, seemingly, their obligation of providing refugee protection
to bona fide refugees; for example, US (Alien Migrant Interdiction),42 Australia (Operation

35
Michelle Foster and Cathryn Castello, ‘Non-refoulement as Custom and Jus Cogens? Putting the
Prohibition to the Test,’ (2016) The Netherland Yearbook of International Law 323.
36
Ibid.
37
Jean Allain, ‘The jus cogens Nature of non-refoulement,’ (2002) 13(4) International Journal of
Refugee Law 534.
38
Ibid., 535.
39
Ibid., 539.
40
Ibid., 538.
41
James C. Hathaway, ‘Refugee Law Is Not Immigration Law,’ (2002) World Refugee Survey,
US Committee for Refugees, 43, http://​repository​.law​.umich​.edu/​cgi/​viewcontent​.cgi​?article​=​2724​&​
context​=​articles, last accessed 5 August 2002.
42
US Department of Homeland Security, United States Coast Guard, ‘Alien Migrant Interdiction,’
https://​www​.uscg​.mil/​hq/​cg5/​cg531/​AMIO/​amio​.asp, last accessed 28 August 2016.

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 What is the future of non-refoulement in international refugee law? 193

Sovereign Borders),43 the EU (Joint Operation Triton),44 and others. Nonetheless, these states
are not in breach of customary international law or the peremptory norm or jus cogens princi-
ple of non-refoulement.
To concisely restate and to summarise the argument here, it is important and pertinent
to note that Article 33 states that no state ‘shall expel or return (‘refouler’) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom would be threatened’
on account of any of the Refugee Convention grounds. Nevertheless, notwithstanding Article
14 of the 1948 Universal Declaration of Human Rights or Article 18 of the 2000 Charter of
Fundamental Rights of the European Union there is no right to asylum per se.
The 1933 League of Nations’ Convention relating to the International Status of Refugees
was the first international instrument to enunciate the principle of non-refoulement limiting
the return of a person to their country of origin. The 1951 Convention’s Article 33 extends
this prohibition to any country in which the individual may be at risk. The 1951 Convention
does not deny the competence of each state to decide who should be admitted to its borders.
However, it prohibits the return of someone to any state where there are reasonable grounds to
suspect that the person will face persecution.

THE NON-APPLICABILITY OF THE PRINCIPLE OF

NON-REFOULEMENT UNDER THE 1951 CONVENTION

A pertinent legal question in international refugee law that is both relevant and interesting
and worth asking with respect to the principle of non-refoulement is, ‘When, if ever, does the
principle of non-refoulement not apply under the 1951 Convention relating to the Status of
Refugees?’
The principle of non-refoulement does not apply when the asylum seeker falls within the
provisions of Article 1(C), (D), and (E); that is, in those instances where Convention refugee
status is not needed or is no longer required.
This also applies to those asylum seekers falling under Article 1F, of the so-called Exclusion
Clauses, although these persons may have a well-founded fear of persecution on one or more
of the five grounds they are excluded from refugee protection.
Article 1F of the 1951 Convention relating to the Status of Refugees reads as follows:

The provisions of this Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admis-
sion to that country as a refugee;

43
Australian Government, Department of Immigration and Border Protection, Operation Sovereign
Borders, https://​www​.border​.gov​.au/​about/​operation​-sovereign​-borders, last accessed 28 August 2016.
‘Operation Sovereign Borders (OSB) is a military-led, border security operation supported and assisted
by a wide range of federal government agencies.’
44
Frontex, Joint Operation Triton, http://​frontex​.europa​.eu/​search​-results/​?q​=​Triton, last accessed 28
August 2016; Frontex, ‘Profiting from Misery: How Smugglers Bring People to Europe,’ http://​frontex​
.europa​.eu/​feature​-stories/​profiting​-from​-misery​-how​-smugglers​-bring​-people​-to​-europe​-tQtYUH, last
accessed 28 August 2016.

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(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.45

The Distinctions Between Article 1F and Article 33(2)

As noted in the previous section of this chapter, non-refoulement is not only customary interna-
tional law but, among some of the leading legal authorities, including the UNHCR, a peremp-
tory norm and, accordingly, states cannot make exceptions to the principle of non-refoulement
under any circumstances. Under Article 1F any refugee claimant who has committed a heinous
international crime such as war crimes, crimes against humanity, crimes against peace; and/or
any serious non-political crime outside the country of refuge prior to their admission to that
country as a refugee; and/or, being guilty of acts contrary to the purposes and principles of
the UN will be excluded from Convention refugee status. Nonetheless, even if they do have
a well-founded fear of persecution they cannot be refouled to any country where there may be
a risk of a well-founded fear of persecution.
Article 33(2), as previously noted, does permit exceptions to the application of the prin-
ciple of non-refoulement for the purposes of determining Convention refugee status. The
non-refoulement provisions, under Article 33(1), cannot be claimed by a person who after
having been either determined to be a refugee or who is still pending determination for whom
there are reasonable grounds for regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgment of a particularly serious crime, con-
stitutes a danger to the community of that country.46 However, this is not to say that the person
can be refouled to any place where he might have a well-founded fear of persecution.
Article 1F and Article 33 can be summarised as follows: Article 1F looks at the past conduct
of the refugee claimant. While Article 33(2) looks at the present and future conduct of the
refugee that would militate against their continued presence of the person in the host country.
In this regard, the US Supreme Court in the 1993 Sale decision notes as follows:

45
1951 Convention relating to the Status of Refugees, 189 UNTS 137, 28 Jul. 1951 (entry into force
22 April 1954). Article 1F (emphasis added).
46
It is worth noting in this regard that many jurisdictions screen refugee claimants in advance or
during the processing of their files to suspend their claims on the basis of criminality. For example,
Section 34 of the Immigration and Refugee Protection Act (IRPA) can result in either a permanent resi-
dent or foreign national being inadmissible to Canada. For a detailed analysis of Section 34 of IRPA on
refugee claimants in Canada, see Angus Grant, ‘Confronting (In)Security: Forging Legitimate Choices
to Security and Exclusion in Migration Law’ (Ph.D. Dissertation, Graduate Programme in Law, Osgoode
Hall Law School, York University, 2016). The US is known for its ‘persecutor’s bar’ to asylum. See
Lori K. Walls, ‘The Persecutor Bar in US Immigration Law: Toward a more Nuanced Understanding of
Modern ‘Persecution’ in the Case of Forced Abortion and Female Genital Cutting,’ (2007) 16(1) Pacific
Rim Law and Policy Journal 227–56. Thomas K. Ragland, ‘Supreme Court Strikes Down Long-Standing
BIA Interpretation of ‘Persecutor Bar’’, American Bar Association, Section of Litigation, Immigration
Litigation, https://​apps​.americanbar​.org/​litigation/​committees/​immigration/​articles/​0309​_rag​land​.html,
last accessed 17 August 2016. The US Supreme Court decision that is the subject of this article is Negusie
v Holder No. 07-499, 555 U.S. ___ (Mar. 3, 2009). For a comprehensive list of the bars to asylum, see
US Citizenship and Immigration Service, CAOB Training, Mandatory Bars to Asylum and Discretion,
Lesson Plan, March 25, 2009, https://​www​.uscis​.gov/​sites/​default/​files/​USCIS/​Humanitarian/​Refugees​
%20​%26​%20Asylum/​Asylum/​Bars​-to​-Asylum​-Discretion​-31aug10​.pdf, last accessed 17 August 2016.

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 What is the future of non-refoulement in international refugee law? 195

First, if Article 33.1 applied on the high seas, Article 33.2 would create an absurd anomaly: dangerous
aliens in extraterritorial waters would be entitled to 33.1's benefits because they would not be in any
‘country’ under 33.2, while dangerous aliens residing in the country that sought to expel them would
not be so entitled. It is more reasonable to assume that 33.2's coverage was limited to those already
in the country because it was understood that 33.1 obligated the signatory state only with respect to
aliens within its territory.47

Article 1F deals with those persons who have yet to be determined Convention refugees,
whereas Article 33(2) deals with those persons who have been recognised as refugees but are
deemed to be a risk to the community of the host country.
Naturally, if an asylum-seeker or a person who has been determined to be a Convention
refugee commits a serious crime, then they would be subject to prosecution under the criminal
law of their host state.
Those who are deemed to be excluded under Article 1F(a) for a crime against humanity may
be subject to prosecution under international criminal law or the domestic law of their home
state. If there is, for example, an outstanding indictment against the person by the International
Criminal Court (ICC) then they would be subject to removal to stand trial.
It is exceedingly expensive to prosecute someone either under domestic law or international
criminal law and, often, with no guarantee of securing a conviction.48 The rules of evidence
and the standard of proof for criminal law and practice are different than refugee law.49
Accordingly, the standard of proof for excluding someone from Convention refugee status is
lower than the standard of proof for convicting someone of a criminal offence. Consequently,
excluding someone from Convention refugee status does not imply that there would be suffi-
cient evidence on which to secure a conviction for a serious criminal offence.50

47
Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian
Centers Council, Inc., et al., 509 U.S. 155; 113 S. Ct. 2549; 125 L.Ed. 2d 128; 61 U.S.L.W. 4684; 93
Cal. Daily Op. Service 4576.93 Daily Journal DAR accessed 7794; 7 Fla. Law W. Fed. S 481, United
States Supreme Court, 21 June 1993, available at: http://​www​.refworld​.org/​docid/​3ae6b7178​.html, last
accessed 19 August 2016.
48
Joseph Rikhof, ‘Prosecution of Persons Excluded for Reasons of 1F,’ Refugee Law Initiative,
Undesirable and Unreturnable, Workshop Papers, March 27, 2015, VU University Amsterdam, http://​
www​.sas​.ac​.uk/​rli/​research​-projects/​undesirable​-and​-unreturnable/​preliminary​-workshop/​workshop​
-papers, last accessed 17 August 2016.
49
The standard of proof in criminal law, of course, is ‘beyond a reasonable doubt’ and the civil law
standard is a ‘balance of probabilities.’
50
Joseph Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal
Background in International and Domestic Law (Dordrecht: Republic of Letters, 2012), 3.1.2: The
Standard of Proof, pp. 109-–14 and 266, where he states: ‘A different standard of proof between the two
systems (beyond reasonable doubt versus serious reasons for considering) is but one reflection of this
difference.’

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SOME LEADING JURISPRUDENCE IN THE FIELD

Council of Europe (CoE)

Soering v. United Kingdom

The principle of non-refoulement was addressed by the ECtHR in its famous 1989 Soering
judgment.51 Jen Soering, a German national, was arrested in the UK with his girlfriend, and
was charged with the murder of his girlfriend’s parents. Both were students at the University of
Virginia at the time. The US sought his extradition in order to stand trial for these two murders
where he would likely face the death penalty.
The appellant alleged that there was sufficient evidence that indicated that in the US prison
system there was extreme stress, psychological deterioration and the risk of homosexual abuse
and physical attack for those who were on death row, commonly known as the ‘death row phe-
nomenon or syndrome’. This constituted inhuman and degrading treatment and punishment
and was contrary to Article 3 of the European Convention on Human Rights and Fundamental
Freedoms (ECHR), ‘No one shall be subjected to torture or to inhuman or degrading treatment
or punishment.’52 The ECtHR ruled that, ‘the Secretary of State’s decision to extradite the
applicant to the United States would, if implemented, give rise to a breach of Article 3’.53
The impact of the Soering case has been far reaching, especially on European asylum law
and practice. Indeed, this legal judgment has been incorporated within the EU Qualifications
Directive. Within the provisions of the EU Qualifications Directive at Chapter V, Qualifications
for Subsidiary Protection, Article 15, ‘Serious harm’ has been defined to consist of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in
situations of international or internal armed conflict.54

Hirsi Jamaa and others v. Italy

This case involved 11 Somali nationals and 13 Eritrean nationals who alleged that the Italian
Government had violated their Article 3 rights under the ECHR, their Article 4 rights under
the Protocol No. 4, of the ECHR that states, ‘Collective expulsion of aliens is prohibited,’ and
a lack of remedy as guaranteed under Article 13 which would have had their complaints exam-
ined.55 The appellants were intercepted en route to Lampedusa, taken back to Tripoli in Libya
and handed over to the Libyan authorities.56 This was all consistent with a bilateral agreement

51
Soering v. United Kingdom (1989) 11 EHRR 439, Judgment of 7 July 1989, http://​hudoc​.echr​.coe​
.int/​fre​?i​=​001​-57619​# last accessed 26 August 2016.
52
Ibid.
53
Ibid.
54
Directive 2011/95/EU of the European Parliament and of the Council, of 13 December 2011, on
standards for the qualification of third-country nationals or stateless persons as beneficiaries of interna-
tional protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and
for the content of the protection granted (recast), http://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​
?uri​=​CELEX:​32011L0095​&​qid​=​1472307116192​&​from​=​en, last accessed 27 August 2016.
55
Case of Hirsi Jamaa and Others v. Italy [GC], App no. 27765/09. file:///​C:/​Users/​esouser/​
Downloads/​001​-109231​.pdf, last accessed 27 August 2016.
56
Ibid., paras 9–14.

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 What is the future of non-refoulement in international refugee law? 197

that had been worked out between the Italian and Libyan Governments. Indeed, the Italian
Minister stated that in 2009 from May 6 to 10, 471 irregular migrants had been intercepted on
the high seas and transferred to Libya in accordance with the bilateral agreement.57
The ECtHR ruled in favour of the appellants and awarded them full costs. The Court ruled
as follows:

The Court has found, inter alia, that the transfer of the applicants exposed them to the risk of being
subjected to ill-treatment in Libya being arbitrarily repatriated to Somalia and Eritrea. Having regard
to the circumstances of the case, the Court considers that the Italian Government must take all possi-
ble steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to
treatment incompatible with Article 3 of the Convention or arbitrarily repatriated.58

In Peter Billing’s review of the Hirsi Jamaa and Others case, he concludes that:

Italy had breached, inter alia, the prohibition on returning a person to a place where there was a real
risk of torture and inhuman and degrading treatment or punishment. This prohibition arises by impli-
cation under Art 3 of the European Convention of Human Rights, and is functionally similar to the
prohibition on the removal of refugees arising under Art 33 of the Refugees Convention.59

M.S.S. v. Belgium and Greece

The appellant was an Afghan national who alleged that Belgium had violated his Article 2
and 3 rights under the ECHR and that his treatment in Greece had violated his Article 3 rights.
He also claimed that his Article 13 rights were violated because he did not have recourse to
a remedy.60 The appellant had come to Belgium to claim asylum after first entering the EU
through Greece. The Belgium Aliens Office decided not to allow the applicant to stay because
the Dublin Regulation required that his asylum claim had to be decided in Greece.
The ECtHR ruled on the case on the breach of human rights as follows:

1. Having regard to the above considerations, the Court finds that the applicant’s transfer by
Belgium to Greece gave rise to a violation of Article 3 of the Convention.
2. Having regard to that conclusion and to the circumstances of the case, the Court finds that
there is no need to examine the applicant’s complaints under Article 2 of the Convention.61

In addition, the European Court of Human Rights ruled:

3. Based on these conclusions and on the obligations incumbent on the States under Article 3
of the Convention in terms of expulsion, the Court considers that by transferring the appli-
cant to Greece the Belgian authorities knowingly exposed him to conditions of detention
and living conditions that amounted to degrading treatment.
4. That being so, there has been a violation of Article 3 of the Convention.62

57
Ibid., para 13.
58
Ibid., para 211.
59
Peter Billings, ‘Operation Sovereign Borders and Interdiction at Sea: CPCF v. Minister
Immigration and Border Protection,’ (2016) 23(1) Australian Journal of Administrative Law 97.
60
Case of M.S.S. v Belgium and Greece [GC] App no 30696/09 http://​hudoc​.echr​.coe​.int/​eng​
#{‘fulltext’:​[‘M​.S​.S​.vBelgium​andGreece’]​,’documentcollectionid2’:​[‘GRANDCHAMBER’​,’CHAM
BER’],’item id’:[‘001-103050’]}, last accessed 27 August 2016.
61
Ibid., paras 360 and 361.
62
Ibid., paras 367 and 368.

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198 Research handbook on international refugee law

And, finally, with respect to Article 13 violations, the European Court for Human Rights ruled:

5. In view of the foregoing, the Court finds that there has been a violation of Article 13
taken in conjunction with Article 3 of the Convention. It follows that the applicant cannot
be faulted for not having properly exhausted the domestic remedies and that the Belgian
Government’s preliminary objection of non-exhaustion (see paragraph 335 above) cannot
be allowed.
6. Having regard to that conclusion and to the circumstances of the case, the Court considers
that there is no need to examine the applicant’s complaints under Article 13 taken in con-
junction with Article 2 of the Convention.63

In light of the court’s ruling on the human rights violations on the part of Belgium and Greece,
it is not the least surprising that the appellant would be awarded costs incurred during his stays
in both Belgium and Greece.64

United Kingdom

Since the recognition of refugee status is declaratory of the asylum seeker’s existing status
as a refugee and not by virtue of state recognition of the person’s status (para 28 of the
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees), all asylum seekers
are protected by the principle of non-refoulement until their claims are decided and they are
determined not to have refugee status.
This has been reinforced in the UK in a number of judgments:

R v. Secretary of State for the Home Department, ex parte Sivakumaran and Conjoined
Appeals (UN High Commissioner for Refugees Intervening) [1988] AC 958
In this case Lord Goff of ChieveIey stated: ‘It is, I consider, plain, as indeed was reinforced in
argument by counsel for the High Commissioner with reference to the travaux praeparatoires,
that the non-refoulement provision in art 33 was intended to apply to all persons determined to be
refugees under art 1 of the convention.’65 This was subsequently reinforced in the following case:

R v. The Secretary of State for the Home Department, Immigration Appeals Tribunal, ex
Parte Anthonypillai Francis Robinson [1997] EWCA Civ 4001
Wherein Lord Justice Brooke opined:

and in any event a refugee may not be expelled or returned ‘in any manner whatsoever’ to the fron-
tiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion (Article 33). In R v Home
Secretary ex p Sivakumaran [1988] AC 958 Lord Goff of Chieveley said at p 1001C that it was plain

63
Ibid., paras 396 and 397.
64
Ibid., B. Article 41 of the Convention, paras 403–424.
65
R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined Appeals
(UN High Commissioner for Refugees Intervening), [1988] 1 All ER 193, [1988] 2 WLR 92, [1988] Imm
AR 147, United Kingdom: House of Lords (Judicial Committee), 16 December 1987.

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 What is the future of non-refoulement in international refugee law? 199

that the non-refoulement provision in Article 33 was intended to apply to all persons determined to be
refugees under Article 1 of the Convention.66

United States

Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al, v.

Haitian Centers Council Inc., et al., 509 US; 113 S. Ct. 2549
The US Supreme Court held, in this famous judgment that:

Neither § 243(h) of the Immigration and Nationality Act of 1952 (INA).nor Article 33 of the United
Nations 1951 Convention Relating to the Status of Refugees limits the President’s power to order the
Coast Guard to repatriate undocumented aliens intercepted on the high seas.67

The US Supreme Court ruled further that:

The District Court denied the application because it concluded that § 243(h) is ‘unavailable as
a source of relief for Haitian aliens in international waters,’ and that such a statutory provision was
necessary because the Protocol's provisions are not ‘self-executing’.68

This case involved the actions of the US in interdicting Haitians as they tried to reach the US
shore and it resulted in the Sale case before the Supreme Court. The US Government argued
before the Court that non-refoulement applies only to refugees once they have been admitted
to a territory. Hence, the US Government’s argument denied the extraterritorial application of
Article 33(1). In the Sale judgment, writing for the majority, Justice Stevens opined:

If Article 33.1 applied extraterritorially, therefore, Article 33.2 would create an absurd anomaly:
dangerous aliens on the high seas would be entitled to the benefits of 33.1 while those residing in the
country that sought to expel them would not. It is more reasonable to assume that the coverage of 33.2
was limited to those already in the country because it was understood that 33.1 obligated the signatory
state only with respect to aliens within its territory.[36]69

Justice Stevens further concluded that:

Although not dispositive, the Convention's negotiating history – which indicates, inter alia, that the
right of non-refoulement applies only to aliens physically present in the host country, that the term
‘refouler’ was included in Article 33 to avoid concern about an inappropriately broad reading of the

66
R v Secretary of State for the Home Department, Immigration Appeals Tribunal, ex Parte
Anthonypillai Francis Robinson, Case No. FC3 96/7394D, Court of Appeal (England and Wales), 11
July 1997, para 8.
67
Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v Haitian
Centers Council, Inc., et al., 509 U.S. 155; 113 S. Ct. 2549; 125 L.Ed. 2d 128; 61 U.S.L.W. 4684; 93 Cal.
Daily Op. Service 4576.93 Daily Journal DAR 7794; 7 Fla. Law W. Fed. S 481, United States Supreme
Court, 21 June 1993, available at: http://​www​.refworld​.org/​docid/​3ae6b7178​.html, last accessed 19
August 2016, 14–32.
68
Ibid.
69
Ibid.

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200 Research handbook on international refugee law

word ‘return,’ and that the Convention’s limited reach resulted from a hard-fought bargain – solidly
supports the foregoing conclusion.70

The Supreme Court accepted the arguments of the US Government and held that the principle
of non-refoulement only applied once the person had gained entry into the US.
This judgment was soundly criticised as being a clear violation of customary international
law. The opposing argument to the US Supreme Court’s judgment being, of course, that the
non-refoulement principle is not so much about the admission to a state, but about returning
refugees to where their lives and freedom may be at risk.

Haitian Centre for Human Rights v. United States, Inter-American Commission of

Human Rights, Report No 51/96, Case No 10.675 (13 March 1997)
However, the US Supreme Court decision in Sale was decided differently by the Inter-American
Commission of Human Rights. In 1997, the Inter-American Commission of Human Rights
decided that the interception and the treatment of Haitian migrants by the US Coast Guard vio-
lated the Convention (Haitian Interdiction case 1997). The Haitian Centre for Human Rights
et al. v. United States, Case 10.675, Report No. 51/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95
Doc. 7 rev. at 550 (1997).

Canada

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Manickavasagam Suresh, a Sri Lankan national, was ordered to be deported from Canada
because he was deemed to be a security risk. The Canadian Security Intelligence Service
(CSIS) claimed that he was a Liberation Tigers of Tamil Eelam (LTTE) fundraiser and sup-
porter. The Federal Court ruled that those falling within the exception of Article 33(2) could be
removed, notwithstanding the likelihood of torture, but only in limited situations.
In a unanimous decision the Supreme Court of Canada (SCC), the Justices stated that the
ambit of Article 33(2) has become restricted with the 1984 Convention Against Torture and
Other Cruel, Degrading Treatment and Punishment and the absolute prohibition on torture.
The decision of the SCC in Suresh noted that, ‘We have examined the argument that from the
perspective of Canadian law to deport a Convention refugee to torture violates the principles
of fundamental justice.’71 However, the SCC took the view that this did not end the inquiry and
that the provisions of the Immigration Act must be considered in their international context.
The SSC then went on to state:

This suggests that barring extraordinary circumstances, deportation to torture will generally violate
the principles of fundamental justice protected by s. 7 of the Charter. To paraphrase Lord Hoffmann
in Rehman, [Secretary of State for the Home Department v Rehman, [2001] 3 WLR 877] at para. 54,
states must find some other way of ensuring national security.72

Nevertheless, the Supreme Court of Canada ruled that persons who face a substantial risk
of torture may still be deported in exceptional cases. The Court was seeking to balance the

70
Ibid.
71
Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1, p. 37.
72
Ibid., p. 45.

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 What is the future of non-refoulement in international refugee law? 201

likelihood of torture with combating terrorism. In Suresh, the SSC ruled that ‘the Immigration
Act leaves open the possibility of deportation to torture, the Minister should generally decline
to deport refugees where on the evidence there is a substantial risk to torture’.73 Astonishingly,
the SCC goes on to assert that:

We do not exclude the possibility that in exceptional circumstances, deportation to face torture might
be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under
s. 1. (A violation of s. 7 will be saved by s. 1 ‘only in cases arising out of exceptional conditions,
such as natural disasters, the outbreak of war, epidemics and the like’: see Re B.C. Motor Vehicle Act,
[[1985] 2 SCR 486] at p. 518; and New Brunswick (Minister of Health and Community Services) v.
G. (J), [1999] 3 SCR 46, at para. 99.) 74

Under the current state of law in Canada, the SCC has found that Article 33(2) establishes an
exception to the non-refoulement principle, albeit under very limited situations, even when
there may be a risk of torture. Nevertheless, the SCC asserts that any person facing deportation
to torture under s. 53(1)(b) must be informed of the case to be met.75 Not only must the refugee
be informed of the case to be met, the refugee must also be given an opportunity to challenge
the information of the Minister where issues as to its validity arise.76
In Tom Clark’s book, Singh to Suresh: Non-Citizens, the Canadian Courts and Human
Rights Obligations, he is quite critical of the SCC’s judgment in Suresh by stating:

The Supreme Court did little to ensure an effective remedy for international rights at issue. Under
Immigration Act s.53.1 the minister could still deport a refugee to torture on grounds of national
security. If there is a court process, it is the judicial review of this administrative decision. In the
review, the Federal Court may only determine that the minister’s opinion was reasonable and the
evidence presented was considered. The minister had to be patently unreasonable for a decision to be
overturned. The American Declaration Art. XVIII right to resort to the courts to ensure respect for
legal rights and to a simple, brief procedure whereby the courts will protect from acts of authority that
violate any fundamental rights seem to have been ignored.77

Likewise, Obiora Chinedu Okafore and Pius Lekwuwa Okoronkwo provide a very detailed
analysis and critique of the Suresh judgment and conclude as follows:

… the court’s reasoning constrained in ways that are, on balance, unsatisfactory. After all, there is no
alchemy – no algebra – that inexorably favours the positions adopted by the court. Even more ethi-
cally and legally credible alternatives were available to it. By ignoring those credible alternatives, the
court stopped far short of constructing a non-refoulement regime that could ensure the protection of
refugees and other persons at risk from being deported to places where they are likely to be tortured.78

73
Ibid., p. 46.
74
Ibid.
75
Ibid., p. 65.
76
Ibid.
77
Tom Clark, Singh to Suresh: Non-Citizens, the Canadian courts and Human Rights Obligations.
(Victoria, BC: Trafford Publishing, 2006), p. 184.
78
Obiora Chinedu Okafor and Pius Lekwuwa Okoronkwo, ‘Re-configuring Non-refoulement? The
Suresh Decision, ‘Security Relativism’, and the International Human Rights Imperative,’ (2003) 15(1)
International Journal of Refugee Law 67.

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202 Research handbook on international refugee law

Australia

MV Tampa Affair and the ‘Pacific Solution’, and ‘Operation Sovereign Borders’
In August 2001, the Howard Government of Australia refused permission for the Norwegian
freighter MV Tampa that was carrying 433 rescued refugees from entering Australian waters.
This triggered a controversy before the Australian federal election and a diplomatic dispute
between Australia and Norway. It also had a dramatic impact on the outcome of the Australian
federal election.79
The Norwegian Captain, Arne Rinnan, of the MV Tampa disobeyed the Australian authori-
ties and took his ship into territorial waters just off the coast of Christmas Island. Subsequently,
some of the refugees were taken to New Zealand and the rest were taken to the island of Nauru,
which was not a signatory to the 1951 Convention at the time, where the rescuees’ asylum
screening took place.80

Ruddock v. Vadarlis (2001) 110 FCR 491 (The Tampa Litigation)

The Victorian Council of Civil Liberties Incorporated and Melbourne legal practitioner
Eric Vadarlis commenced proceedings in the Federal Court in their own names against the
Australian Government and certain Ministers of State regarding the Tampa Affair.81
Simon Evans states that the Full Federal Court raised two constitutional questions in the
2001 Ruddock v. Vadarlis case:

… whether the prerogative or free standing executive power or the Commonwealth extends to stop-
ping non-citizens at the border and excluding them from Australia, detaining them if necessary in
order to exclude them; and, second, whether any such prerogative had been abrogated by legislation.82

Simon Evans argues that the preferred view was that even if the prerogative power existed, it
was abrogated by the detailed provisions of the Migration Act.83 It is important to note that the
applicants initially prevailed before Justice Anthony North of the Australian Federal Court on
a writ of habeas corpus but a week later a majority of the Full Federal Court reversed the order
and affirmed the prerogative power of the Australian Government to act outside the scope of
its own immigration laws.84
James C. Hathaway has argued that the principle of non-refoulement requires that:

This duty not to return refugees directly or indirectly to the risk of being persecuted inheres prior to
the formal verification of refugee status, and continues until and unless those who claim to be refu-
gees are fairly and finally determined not so to qualify. As a simple matter of logic, this must be so.85

79
Mary Crock, ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the
Management of Refugee Flows,’ (2003) 12(1) Pacific Rim Law and Policy Journal Association 53–4.
80
Ibid., 60–61.
81
Simon Evans, ‘Developments – Australia,’ (2003) International Journal of Constitutional Law
124–5.
82
Ibid., 127.
83
Ibid., 130.
84
James C. Hathaway, ‘Refugee Law Is Not Immigration Law,’ (2002) World Refugee Survey
38–45.
85
Ibid., 41.

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 What is the future of non-refoulement in international refugee law? 203

Moreover, Hathaway takes the position that Australia did, in fact, meet its obligations with
respect to the principle of non-refoulement. He notes that:

… refugee law posed no impediment to Australia sending the rescuees from the Tampa onward
to New Zealand: there were clear guarantees made of admission to that country’s highly regarded
status-determination system, and no practice there that would suggest a risk of refoulement. However,
the sending of refugees to Nauru, a non-state party with no history of refugee reception and no gov-
ernment structures in place to oversee refugee protection, was less obviously a legally responsible act.
It nonetheless appears in fact that the refugees sent to Nauru were not thereby subjected by Australia
to the risk of indirect refoulement.86

The Australian Government appeared to be influenced by the US and its interdiction of Haitian
nationals and the US Supreme Court’s judgment in Sale.

In CPCF, the High Court accepted that the interdictees were intending to travel to Christmas Island
and enter Australia without a valid visa, contrary to s 42(1) Migration Act. Accordingly, the intended
contravention of the Migration Act enlivened the use of certain maritime powers in order to ensure
compliance with the Migration Act.87

More recently, Australia has pursued a new policy, ‘Operation Sovereign Borders,’ that is in
many respects more stringent and harsher than its previous policies for interdicting, detaining
and ‘turning back’ those who are attempting to arrive in Australia by sea. Asylum seekers who
attempt to arrive by sea will be intercepted and towed back to the countries they fled from as
refugees. Australian officials undertake so-called ‘enhanced screening’ procedures at sea, via
teleconference, to determine whether they engage Australia’s international obligations with
respect to non-refoulement.88

CPCF v. Minister for Immigration & Border Protection (2015) 89 ALJR 207, [303] (Kiefe J)
The central issues in this appeal were whether the Migration Act 1958 (Cth) has extrater-
ritorial effect and whether the scope of executive power includes the authority to return
asylum seekers intercepted outside Australian waters. Counsel for the applicants argued that
the decision to return asylum seekers was made under the Migration Act, and did not afford
procedural fairness to the applicants. Further, that the Federal Government’s executive power
to detain and return asylum seekers outside Australian waters is limited by customary inter-
national law preventing the refoulement of asylum seekers, and that the Maritime Powers Act
2013 (MPA) does not provide express statutory authority to do so.
The Australian Federal Government submitted that the Migration Act applies only to persons
‘in Australia’ and it has no application to people detained outside Australian waters, and that
both the Commonwealth’s executive power and the statutory power under the MPA support
the government’s actions.
The central issue that emerged was the legality of the asylum seekers’ detention under
the MPA for the period of 1 July to 27 July 2014, and whether they should have been granted

86
Ibid., 43.
87
Peter Billings, ‘Operation Sovereign Borders and Interdiction at Sea: CPCF v. Minister
Immigration and Border Protection,’ (2016) 23(1) Australian Journal of Administrative Law 76–101.
88
Ibid., 79.

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204 Research handbook on international refugee law

a hearing on their detention, and, if the detention under the MPA was unlawful, whether they
were owed damages for the tort of wrongful imprisonment.89
The CFCP case, according to Peter Billings:

afforded the Court an opportunity to answer the divisive question about whether the non-refoulement
obligation, incumbent on state parties under Art. 33(1) of the Refugees Convention, applies extrater-
ritorially. Additionally, reliance on NSEP invited consideration of similar arguments presented to the
Federal Court in habeas corpus proceedings in the well-known Tampa case.90

In Peter Billings’ analysis of the CFCP case he goes on to state:

In summary, it is striking that the Commonwealth’s position is that compliance with the corner-
stone of refugee protection (the prohibition on refoulement) is a matter solely for the Executive
without the usual checks and balances to safeguard the rule of law. Prima facie, domestic law now
authorises administrative actions that are inconsistent with Australia’s non-refoulement obligations.
Additionally, legal safeguards providing independent and impartial (judicial) review over govern-
ment decisions that may breach international law obligations have been, effectively, neutered.91

The Australian Commonwealth Government’s position that there are no non-refoulement

obligations outside the territory of Australia draws its support primarily from the US Supreme
Court’s judgment in the Sale case. As French CJ noted in the CFCP case, ‘the view that the
non-refoulement obligations have no extra-territorial application is a view that enjoys some
support in the decisions of the High Court of Australia and the House of Lords’.92
Peter Billings concludes by noting that:

The law surrounding the extraterritorial application of non-refoulement obligations arising under the
Refugees Convention remains unsettled. The decision in CPCF does not offer a clear perspective on
this divisive question of international refugee law: on when and where the obligations are engaged in
the maritime context.93

The pertinent question worth raising here, then, is whether Australia is actually in compliance
with the requirements of the 1951 Convention? It has been argued that access to asylum was
still permitted whether in Nauru or New Zealand. Again, Peter Billings gives a devastating
critique of Australia’s current state of affairs respecting states’, and in particular, Australia’s,
compliance to their obligations under the principle of non-refoulement in international law.

Research shows that these types of agreements [bilateral ‘take back’] not only impede the right to
access asylum, but also are contrary to other human rights including the principle of non-refoulement.
(Australia High Court judgment). Migratory controls have also proven counter-productive.

89
Ibid., 81.
90
Ibid.
91
Ibid., 94.
92
Ibid., 97.
93
Ibid.

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 What is the future of non-refoulement in international refugee law? 205

Accordingly, the Australian Government is neither answerable to the courts nor, through the
convention of responsible government in Parliament, to the community for its treatment of
irregular maritime arrivals seeking refugee protection.94

CONCLUDING REFLECTIONS ON THE FUTURE OF

NON-REFOULEMENT

Some Concluding Reflections on the Future of Non-Refoulement

The scope and content of the principle of non-refoulement is a treaty right that is derived
from Article 33(1) of the 1951 Convention. However, it has transcended this and is found in
numerous international refugee rights instruments and now is a well-established principle of
customary international law. There are some, including the UNHCR, who have declared that
it is now a peremptory norm of international law. Some of the most recent research and analysis
on this subject have argued that it is on the verge of achieving the status of jus cogens in
public international law.95 A peremptory norm of international law requires that states cannot
derogate or supersede this legal principle. In short, no one, under any circumstances, can be
sent back to persecution.
Under the 1951 Convention relating to the Status of Refugees, however, there are a number
of notable conditions with respect to application of the principle of non-refoulement as it
relates to the granting of refugee protection. It is not absolute, as noted, in both Article 1F and
Article 33(2).
From this review of the leading Supreme Court jurisprudence in a number of states that the
EU, US and Australia have clearly gone the furthest in limiting the geographic boundaries of
non-refoulement. By interdicting asylum seekers and preventing people from landing on EU,
US or Australian soil and, in some instances, even towing these vessels to their countries of
departure they are preventing asylum seekers from making a claim for Convention refugee
status. In some instances, they even have been repatriated to their countries of origin and alleged
persecution. Accordingly, in such instances of ‘push backs’ and ‘tow backs’ some would argue
that none of the EU, US or Australia have honoured the principle of non-refoulement and their
obligations under customary international law or the 1951 Convention and its 1967 Protocol.
This is not only morally reprehensible but fundamentally wrong, legally, as it is contrary to
international refugee law, specifically, and public international law, generally.
Australia has gone as far as the US and a number of EU member states, in preventing ‘access
to asylum’ on their territories. They are processing refugee claims offshore. These refugee
claimants are being forced to live in remote refugee camps for protracted periods of time. This
is clearly cruel, harsh, and unusual treatment. Some would argue that it is not only inhuman
treatment, but, also degrading treatment.
From the jurisprudence noted above, it is evident that the jurisprudence of the ECtHR, in
comparison to the judgments of the US Supreme Court, the Supreme Court of Canada, and
the High Court of Australia, are the most progressive in the protection of asylum seekers with
respect to the principle of non-refoulement. Indeed, the interdiction policies and practices

94
Ibid., 99.
95
Foster and Castello (n 35).

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206 Research handbook on international refugee law

of the US and Australia have been upheld by their highest courts. The astonishing Suresh
judgment of the Supreme Court of Canada, albeit in exceptional circumstances, can allow
those who have been determined to be refugees to be deported because they are deemed to be
national security risks or a risk to their communities to their countries of nationality, even if
they face a risk of torture.
However, even in Europe, as of late with the EU-Turkey deal, asylum seekers are being
held in refugee settlement centres in Greece and then being sent back to Turkey.96 These ‘turn
back’ and ‘tow back’ policies are intended to serve as deterrent measures to discourage asylum
seekers from attempting to travel and enter the EU and not allowing them to travel to Germany
or other EU states to claim asylum.
Given the current circumstances in the world today and the persistent global trends, the
foreseeable future; that is, with the extent and intensity of war and protracted armed conflict,
the threat of terrorism, the general level of feelings of insecurity, and the realpolitik, further
constraints and restrictions will continue and likely grow over the next 25 years. Seen from this
vantage point and perspective, the future of the principle of non-refoulement does not appear
to be bright.

96
Elizabeth Collett, ‘The Paradox of the EU-Turkey Refugee Deal,’ MPI, Migration Policy Institute,
March 2016, http://​www​.migrationpolicy​.org/​news/​paradox​-eu​-turkey​-refugee​-deal, last accessed 27
August 2016.

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13. Constructive refoulement
Penelope Mathew1

1. INTRODUCTION

This chapter explores the concept of constructive refoulement. Refoulement, meaning to force
back or turn away, is a critical term used in the major international instrument governing the
treatment of refugees – the 1951 Convention relating to the Status of Refugees.2 That treaty,
as modified by the 1967 Protocol relating to the Status of Refugees,3 defines a refugee as
someone who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual residence, is unable or,
owing to such fear, is unwilling to return it.4

The cardinal obligation to a refugee is the obligation not to refoule(r) a refugee. Article 33(1)
of the Convention provides that no state party ‘shall expel or return (refouler) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a particular social group or polit-
ical opinion’.
The chapter examines possible breaches of Article 33 of the Refugee Convention when the
state makes life so difficult for a refugee or asylum seeker that he or she ‘decides’ to return
home or, perhaps, that this is a potential consequence of the state’s policies. The term ‘con-
structive refoulement’ is used to describe this situation.5
While the United Nations High Commissioner for Refugees (UNHCR), scholars6 and advo-
cates have been using the term constructive refoulement for over 20 years, it is uncommon

1
I would like to thank Julien Rosendahl for his excellent research assistance in connection with this
chapter, Michelle Foster for reading the chapter and Kees Wouters for pointing me in the direction of
some important materials. Any errors or omissions are my own.
2
Convention relating to the Status of Refugees (signed 28 July 1951, entered into force 22 April
1954) 189 U.N.T.S. 137 (‘Refugee Convention’).
3
Protocol relating to the Status of Refugees (signed 31 January 1967, entered into force 4 October
1967) 606 U.N.T.S. 267 (‘Refugee Protocol’).
4
Refugee Convention, art 1A(2).
5
For the purposes of its work on the expulsion of aliens, the International Law Commission prefers
‘disguised’ over ‘constructive’. International Law Commission, Draft Articles on the Expulsion of
Aliens, A/69/10, 2014, [35]–[45], art 10.
6
Ryszard Cholewinski, ‘Economic and Social Rights of Refugees and Asylum-seekers in Europe’
(2000) 14 Geo Immigr LJ 709; Ryszard Cholewinski, ‘Enforced Destitution of Asylum Seekers in
the United Kingdom’ (1998) 10(3) IJRL 462, 475; Alice Edwards, ‘Article 17 1951 Convention’ in
Andreas Zimmermann (ed) The 1951 Convention Relating to the Status of Refugees and its 1967
Protocol: a Commentary (OUP, 2011) 951, 963; Eve Lester, ‘Article 24 1951 Convention’ in Andreas

207
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208 Research handbook on international refugee law

to find case law that uses the term, and even less common to find case law in which a court
finds a violation that could be described as constructive refoulement. In 2012, the European
Court of Human Rights ruled that Article 3 of the European Convention on Human Rights7
was violated when an asylum seeker returned to his country of origin because he was held in
indefinite detention with no prospect that he would ever be allowed to live freely in Belgium.8
In some other case law, the term ‘constructive refoulement’ has been used, although not
applied.9 It is also unclear exactly what the threshold for a constructive refoulement would be.
The concept appears to be an intuitive idea akin to constructive dismissal in labour law, which
occurs, amongst other situations, when the employer makes life so unpleasant at work that the
employee ‘chooses’ to resign.
The chapter develops as follows. Part 2 sets the scene by discussing state practice that
effectively puts refugees and asylum seekers into a legal black hole,10 and may cause the return
of refugees and asylum seekers to danger. It will focus particularly on Australia’s activities,
including the infamous practice of detaining asylum seekers and (supposedly) resettling recog-
nised refugees in third countries – namely Nauru, Papua New Guinea and Cambodia.
Part 3 examines the intellectual work that constructive refoulement may do. Frequently,
state practice which amounts to constructive refoulement is violative of a number of human
rights. It might therefore be questionable whether constructive refoulement adds value to
the human rights lexicon. This part of the chapter will look closely at the structure of the
Refugee Convention to ascertain whether the concept of constructive refoulement might play
a useful role in filling a textual gap between the obligation of non-refoulement, an obligation
that applies extraterritorially and presumptively to asylum seekers as well as refugees, and
the other rights for refugees set out in the Refugee Convention. Many of these other rights
are contingent on a certain level of attachment to state territory such as ‘lawful stay’ and/or
guarantee a level of treatment on a par with a comparator group such as citizens or certain cat-
egories of foreigners. A prohibition on constructive refoulement would require these rights to
be respected even where refugees have not satisfied the threshold levels of attachment, and it
could ensure that the standard of treatment is consistent with universal human rights standards.
Part 4 will analyse constructive refoulement through some relevant case law. Finally, Part
5 will examine whether an actual return to a place where the refugee or asylum seeker has
a well-founded fear of persecution is necessary, or whether it is simply that return may occur.
It will also examine what legal test should apply for a finding of constructive refoulement.

Zimmermann (ed) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:
a Commentary (OUP, 2011) 1057, 1064; Lori Nessel, ‘Deliberate Destitution as Deterrent: Withholding
the Right to Work and Undermining Asylum Protection’ (2015) 52 San Diego L Rev 313, 340; James
Hathaway, The Rights of Refugees under International Law (CUP, 2005) 464.
7
European Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4
November 1950, entered into force 3 September 1953) 312 E.T.S. 5, art 3 (as amended).
8
M.S. v Belgium (2012) App no 50012/08 (ECHR, 31 January 2012) [122]–[123].
9
JA (and Ors) v Director of Immigration (2011) H.K.C.FI. 10; Human Rights Committee, Warda
Osman Jasin v Denmark¸ Appendix II – Individual opinion of Committee members Yuval Shany and
Konstantine Vardzelashvili (Communication No. 2360/2014) UN document CCRP/C/114/D/2360/2014
[2].
10
This term was famously used by Lord Steyn in relation to Guantanamo Bay. See Lord Johan Steyn,
‘Guantanamo Bay: The Legal Black Hole’ (2004) Int’l & Comp LQ 1.

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 Constructive refoulement 209

2. LEGAL BLACK HOLES AND THE POTENTIAL FOR

RETURN

There are many countries, particularly in the Middle East and Asian regions, which are not
party to the Refugee Convention. Although they may respect the immediate obligations
imposed by non-refoulement as a matter of customary international law, they may not grant
lawful status or important rights such as the right to work or education to refugees and asylum
seekers, even when UNHCR has recognised someone as a refugee.11 This contributes to the
phenomenon of unauthorised arrivals as people search for meaningful protection,12 and it may
cause returns to the country of origin.13
There are also many states parties to the Refugee Convention that impose restrictions,
particularly on the rights of asylum seekers – those persons who have not yet been recognised
as refugees through a national refugee status determination (RSD). Such policies are adopted
as a form of deterrence, often because of the stated fear that ‘economic migrants’ are using
asylum procedures in order to migrate for work or welfare benefits.
Australian practice in recent years has demonstrated not only a concern to deter possibly
abusive asylum claims, but even genuine claims to asylum where the refugee has arrived
visa-less on a boat. In the past, such policies have been justified by labelling unauthorised boat

11
Amarjit Kaur, ‘Migration and the Refugee Regime in Malaysia: Implications for a Regional
Solution’ in Angus Francis and Rowena Maguire (eds) Protection of Refugees and Displaced Persons
in the Asia Pacific Region (Ashgate Publishing, 2013) 114; Bhatara Ibnu Reza, ‘Challenges and
Opportunities in Respecting International Refugee Law’ in Angus Francis and Rowena Maguire (eds)
Protection of Refugees and Displaced Persons in the Asia Pacific Region (Ashgate Publishing, 2013)
130–31; Penelope Mathew and Tristan Harley, Refugee Protection and Regional Cooperation in
Southeast Asia: A Fieldwork Report (ANU, 2014) 5, 13–14, 18–19; Jesuit Refugee Service Asia Pacific,
The Search: Protection Space in Malaysia, Thailand, Indonesia, Cambodia and the Philippines (JRS
Asia-Pacific, 2012) 36, 52; Asylum Access, Refugee Work Rights Report: the Syrian Crisis and Refugee
Access to Lawful Work in Greece, Jordan, Lebanon and Turkey (2017) http://​asylumaccess​.org/​wp​
-content/​uploads/​2017/​09/​Middle​-East​-Refugee​-Work​-Rights​-Syrian​-Crisis​.pdf accessed 3 March 2019;
Maja Janmyr, ‘Precarity in Exile: The Legal Status of Syrian Refugees in Lebanon’ 35(4) RSQ (2016),
58.
12
Harriet Spinks, ‘Destination Anywhere? Factors affecting Asylum Seekers’ Choice of Destination
Country’ (Research Paper No 1, Parliamentary Library, Parliament of Australia, 2013) 6–8; Human
Rights Watch, ‘By Invitation Only’: Australian Asylum Policy’ https://​www​.hrw​.org/​reports/​2002/​
australia/​australia1202​.pdf accessed 16 March 2019; Ariane Rummery and Jonathan Clayton, ‘Loss
of hope and deepening poverty driving Syrians to seek refuge in Europe’ http://​www​.unhcr​.org/​en​-au/​
news/​latest/​2015/​9/​560558b06/​loss​-hope​-deepening​-poverty​-driving​-syrians​-seek​-refuge​-europe​.html
accessed 16 March 2019.
13
Saskia Baas, ‘The Real Reasons Why Syrians Return to Syria’, Refugees Deeply, 6 March 2019
https://​www​.newsdeeply​.com/​refugees/​community/​2018/​03/​06/​the​-real​-reasons​-why​-syrians​-return​-to​
-syria; Norwegian Refugee Council et al, ‘Dangerous Ground – Syria’s refugees face an uncertain
future’, 1 February 2018, 10 https://​www​.nrc​.no/​globalassets/​pdf/​reports/​dangerous​-ground​-​-​-syrias​
-refugees​-face​-an​-uncertain​-future/​dangerous​-ground​-​-​-syrian​-refugees​-face​-an​-uncertain​-future​.pdf
accessed 3 March 2019.

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210 Research handbook on international refugee law

arrivals as ‘queue jumpers’ and ‘forum shoppers’.14 More recently, the stated aim has been the
prevention of deaths at sea.15
There have been various shifts in policies from 2010 to the present, with a freeze on process-
ing,16 followed by application of the so-called ‘no advantage principle’ – a concept pursuant
to which anyone arriving by boat is not supposed to receive an advantage over a refugee who
waits for resettlement in a camp.17 This resulted in a huge backlog that saw the adoption of
a fast-track processing system which is highly likely to result in wrong decisions.18 Asylum
seekers who are not subjected to the mandatory detention policy19 and are released on bridging
visas20 instead are not well supported in the community. Asylum seekers on bridging visas
are entitled to welfare, but generally only at the rate of 89 per cent of the centre link special
benefit (the lowest possible benefit)21 and until December 2014, those who had arrived on
a boat after 13 August 2013 were not permitted to work.22 The limited financial support for
this group has meant that they have lived below the poverty line, unable to find proper housing
and skipping meals.23 Towards the end of 2018, cuts to financial support for asylum seekers
based on assessment of their vulnerability were set to exacerbate the situation.24 The so-called
‘legacy case load’ – that is the unfortunate group of people arriving by boat between 13 August
2012 and 1 January 2014 (a group of around 30,000 asylum seekers) – have been subjected to

14
Penelope Mathew, ‘Safe for Whom? The Safe Third Country Concept Finds a Home in Australia’
in Susan Kneebone (ed) The Refugees Convention 50 Years On, Globalisation and International Law
(Ashgate Publishing, 2003) 133 n1, 134 n3, 141 n35; Penelope Mathew, ‘Australian Refugee Protection
in the Wake of the Tampa’ (2002) 96(3) AJIL 671, 672; Jane McAdam and Fiona Chong, Refugees: Why
Seeking Asylum is Legal and Australia’s Policies Are Not (UNSW Press, 2014) 50.
15
See the terms of reference at 9, Expert Panel on Asylum Seekers, ‘Report of the Expert Panel on
Asylum Seekers, August 2012’ https://​apo​.org​.au/​node/​30608 accessed 16 March 2019.
16
Janet Phillips and Harriet Spinks, ‘Immigration detention in Australia’ (Parliamentary Library
Background Notes, Parliament of Australia, 2013) http://​www​.aph​.gov​.au/​About​_Parliament/​
Parliamentary​_Departments/​Parliamentary​_Library/​pubs/​BN/​2012​-2013/​Detention accessed 16 March
2019.
17
Maria O’Sullivan, ‘Questioning the Australian Refugee Model’, Refugees Deeply, 9 January
2018 https://​www​.newsdeeply​.com/​refugees/​community/​2018/​01/​09/​questioning​-the​-australian​-refugee​
-model accessed 16 March 2019. The term ‘no advantage’ was adopted by the Expert Panel: Expert Panel
on Asylum Seekers, ‘Report’ https://​apo​.org​.au/​node/​30608 accessed 16 March 2019,14, 141.
18
Andrew and Renata Kaldor Centre for International Refugee Law, ‘Factsheet: The ‘Legacy Case
Load’, 16 October 2018 https://​www​.kaldorcentre​.unsw​.edu​.au/​publication/​legacy​-caseload accessed 16
March 2019: Andrew and Renata Kaldor Centre for International Refugee Law, ‘Research Brief: ‘Fast
Tracking’ Refugee Status Determination’, August 2018 https://​www​.kaldorcentre​.unsw​.edu​.au/​sites/​
default/​files/​Research​%20Brief​_Fast​%20track​_final​.pdf accessed 16 March 2019.
19
On which, see s 189 and 196 Migration Act 1958 (Cth).
20
See s 73 Migration Act 1958 (Cth); r2.01, r2.20, r2.24 Migration Regulations 1994 (Cth).
21
Sahar Okhovat, ‘With Empty Hands: How the Australian Government is Forcing People into
Destitution’ (Refugee Council of Australia, June 2018), 10.
22
Refugee Council of Australia, ‘Recent changes in Australian refugee policy’ (7 July 2018) https://​
www​.refugeecouncil​.org​.au/​recent​-changes​-australian​-refugee​-policy/​ accessed 15 March 2019.
23
Jesuit Social Services, ‘The Living Conditions of People Seeking Asylum in Australia’ http://​jss​
.org​.au/​wp​-content/​uploads/​2015/​12/​Asylum​_Seeker​_Position​_Paper​_​-​_December​_2015​.pdf accessed
14 March 2019.
24
John van Kooy, with Tony Ward, ‘An Unnecessary Penalty: Economic Impacts of Changes to
the Status Resolution Support Services’ (policy paper commissioned by ACOSS et al, September 2018)
https://​www​.refugeecouncil​.org​.au/​srss​-economic​-penalty/​2/​ accessed 14 March 2019.

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 Constructive refoulement 211

a particularly high level of uncertainty.25 They often waited for four years for RSD to occur,
with processing beginning only in late 2015.26 By the end of the 2017–18 financial year, the
Department of Home Affairs reported that 65 per cent of the applications had been decided.27
The most these people receive is a temporary protection visa that does not enable them to
sponsor their family to Australia.28 The uncertainty continues.29
In addition to the state of limbo created for unauthorised boat arrivals onshore, unauthorised
boat arrivals have also been sent to Manus Island in Papua New Guinea and Nauru not just for
processing of their claims – which has been subject to enormous delays30 – but resettlement.31
In the case of Nauru, the option of resettlement for large numbers being completely imprac-
tical, there was another option – Cambodia.32 In practice, only a handful people took up the
Cambodia option prior to the expiry of the agreement, with most leaving to return home.33 In
November 2016 then US President Barack Obama reached an agreement with Australia for

25
Mary Anne Kenny, Nicholas Procter, Carol Grech, ‘Mental Health and Legal Representation for
Asylum Seekers in the “Legacy Caseload” ’ (2016) 8 Cosmopolitan Civil Societies: An Interdisciplinary
Journal 4976.
26
Andrew and Renata Kaldor Centre for International Refugee Law, ‘Australia’s Refugee Policy:
an Overview’, October 2018, 2 https://​www​.kaldorcentre​.unsw​.edu​.au/​sites/​default/​files/​Factsheet​
_Australian​%20Refugee​%20Policy​.pdf accessed 14 March 2019.
27
Australian Government, Department of Home Affairs, ‘Annual Report 2017–18’ (Annual Report,
Department of Home Affairs, 2018) 16.
28
Migration Act 1958 (Cth) s 35A(3) (Temporary Protection Visa) and s35(3A) (Safe Haven
Enterprise Visa); Migration Regulations 1994 (Cth) sch II; referring to subclasses 785 (Temporary
Protection visa), 790 (Safe Haven Enterprise visa).
29
Australian Human Rights Commission, ‘Tell me about: Temporary Protection Visas’ https://​www​
.humanrights​.gov​.au/​sites/​default/​files/​document/​publication/​TPV​_FactSheet​.pdf accessed 3 March
2019; Shakeh Momartin et al, ‘A Comparison of the Mental Health of Refugees with Temporary versus
Permanent Protection Visas’ (2006) 185 MJA 357; Don McMaster, ‘Temporary Protection Visas:
Obstructing Refugee Livelihoods’ (2006) 25(2) RSQ 135, 142; Mary Crock, Kate Bones, ‘Temporary
Protection and the Rights of Refugees’ (2015) 16 MJIL 522, 538–40.
30
Commonwealth of Australia, Incident at the Manus Island Detention Centre from 16 to 18
February 2014, Senate Legal and Constitutional Affairs References Committee, 12 June 2014, 8 (Mr.
Cornall); Commonwealth of Australia, Incident at the Manus Island Detention Centre from 16 to 18
February 2014, Senate Legal and Constitutional Affairs References Committee, 11 June 2014, 43 (Mrs.
Playfair); Claire Higgins, ‘Slow refugee processing creates fear and uncertainty on Manus Island’,
The Conversation, 19 June 2014 https://​theconversation​.com/​slow​-refugee​-processing​-creates​-fear​-an​
-uncertainty​-on​-manus​-island​-27823 accessed 16 March 2019; Madeline Gleeson, Offshore: Behind the
wire on Manus and Nauru (NewSouth Publishing, 2016) 111.
31
See Memorandum of Understanding between the Republic of Nauru and the Commonwealth
of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues,
Australia-Nauru, signed and entered into force 3 August 2013; Memorandum of Understanding between
the Government of the Independent State of Papua New Guinea of Certain Persons, and the Government
of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain
persons, and Related Issues, Australia-Nauru, signed and entered into force 6 August 2013. Copies of
these and previous agreements are available at the Andrew and Renata Kaldor Centre for International
Refugee Law: https://​www​.kaldorcentre​.unsw​.edu​.au/​bilateral​-agreements​-offshore​-processing.
32
Memorandum of Understanding between the Government of the Kingdom of Cambodia and the
Government of Australia, Relating to the Settlement of Refugees in Cambodia, Australia-Cambodia,
signed and entered into force 26 September 2014. The initial period of the agreement was four years.
33
Refugee Council of Australia and Asylum Seeker Resource Centre, ‘Australia’s Man-Made Crisis
on Nauru: Six Years On’ (September 2018), 16: https://​www​.refugeecouncil​.org​.au/​nauru​-report/​2/​
accessed 14 March 2019.

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resettlement of some refugees from Nauru and Papua New Guinea, and a concerted advocacy
campaign by civil society resulted in the departure of the last four asylum seeker children from
Nauru.34 However, there are still sizable numbers of refugees and asylum seekers left in both
places.35
There have been many reports on the abuses that have occurred in the detention centres and
beyond their gates, including the UNHCR missions to both places,36 the Moss Review,37 the
Cornall reviews,38 Senate committee inquiries,39 the Australian Human Rights Commission’s
report, The Forgotten Children,40 and investigations by Human Rights Watch and Amnesty.41
Asylum seekers have been accommodated in tents on Nauru; there have been abuses by
detention centre guards and deaths of asylum seekers such as Reza Barati who was murdered
during a riot;42 and medical treatment for the increasingly traumatised people remaining in

34
Isabella Kwai, ‘Australia Says Last Refugee Children Held on Nauru Will Go to U.S.’ New York
Times, 3 February 2019, https://​www​.nytimes​.com/​2019/​02/​03/​world/​australia/​nauru​-asylum​-children​
-us​.html accessed 16 March 2019.
35
See, e.g., Amnesty International and Refugee Council of Australia, ‘Until When? The Forgotten
Men on Manus Island’, 20 November 2018 https://​ www​ .amnesty​ .org/​download/​ Documents/​
ASA3494222018ENGLISH​.PDF accessed 18 March 2019.
36
UNHCR, ‘UNHCR Mission to the Republic of Nauru: 3–5 December 2012’ (14 December 2012);
UNHCR, ‘UNHCR Mission to Manus Island, Papua New Guinea: 15–17 January 2013’ (4 February
2013); UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 11–13 June 2013’ (12
July 2013); UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23–25 October
2013’ (26 November 2013); UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru: 7–9 October
2013’ (26 November 2013).
37
Phillip Moss, ‘Review into Recent Allegations relating to Conditions and Circumstances at the
Regional Processing Centre in Nauru’ (Department of Immigration and Border Protection, 20 March
2015).
38
Robert Cornall AO, ‘Review into Allegations of Sexual and Other Serious Assaults at the Manus
Regional Processing Centre’ (Department of Immigration and Border Protection, September 2013);
Robert Cornall AO, ‘Review into the Events of 16–18 February 2014 at the Manus Regional Processing
Centre’ (Department of Immigration and Border Protection, 23 May 2014).
39
Senate Legal and Constitutional Affairs References Committee, ‘Inquiry into the Incident at the
Manus Island Detention Centre during 16 February to 18 February 2014,’ (Parliament of Australia, Senate
Legal and Constitutional Affairs References Committee, 11 December 2014); Senate Select Committee
on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre
in Nauru, ‘Taking Responsibility’ (Parliament of Australia, Senate Select Committee on the Recent
Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, 31
August 2015); Senate Legal and Constitutional Affairs References Committee, ‘Serious Allegations of
Abuse, Self-harm and Neglect of Asylum Seekers in relation to the Nauru Regional Processing Centre,
and any like allegations in relation to the Manus Regional Processing Centre’ (Parliament of Australia,
Senate Legal and Constitutional Affairs References Committee, 21 April 2017).
40
Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children
in Immigration Detention 2014’ (Australian Human Rights Commission, 11 February 2015).
41
These include, Amnesty International Australia, ‘This is Breaking People’ (Amnesty International
Australia, December 2013); Amnesty International Australia, ‘This is Still Breaking People’ (Amnesty
International Australia, 2 May 2014); Amnesty International Australia, ‘What We Found in Nauru’
(Amnesty International Australia, 17 December 2012); Human Rights Watch, ‘The Pacific Non-Solution’
(Human Rights Watch, July 2015); Amnesty International, ‘Island of Despair: Australia’s “Processing”
of Refugees on Nauru,’ ASA 12/4934/2016, October 2016.
42
State v Efi [2016] PGNC 252; N6454 (19 April 2016).

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 Constructive refoulement 213

both places is inadequate.43 The Medevac legislation passed in order to enable swifter and
sounder processes for transfer of patients to Australia44 was promptly met by the Morrison
government’s decision to reopen the remote detention facility on Christmas Island (which is
Australian territory).
Nauru announced in October 2015 that it would open its detention centre,45 while in March
2016, the Supreme Court of PNG declared detention of asylum seekers unconstitutional.46
Unfortunately, the dangers faced outside the detention centres appear quite formidable, with
physical violence, threats of violence and allegations of rape on Nauru and physical violence
on Manus, for example.47
All of these violations are concerning in and of themselves. The violations within deten-
tion centres attract the legal responsibility of both Australia and PNG, and Australia and
Nauru respectively. While it has been difficult to get any authoritative legal rulings on this
shared responsibility from the High Court of Australia,48 responsibility has been accepted by
Australian parliamentary committees.49 Why then might it be important to invoke the concept
of constructive refoulement?

43
UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23–25 October 2013’
(26 November 2013) 23; UNHCR, UNHCR Monitoring Visit to the Republic of Nauru: 7–9 October
2013 (26 November 2013) 21; Amnesty International, ‘Island of Despair: Australia’s “Processing”
of Refugees on Nauru,’ ASA 12/4934/2016, October 2016, part 3.3: Senate Legal and Constitutional
Affairs References Committee, ‘Serious Allegations of Abuse, Self-harm and Neglect of Asylum
Seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the
Manus Regional Processing Centre’ (Parliament of Australia, Senate Legal and Constitutional Affairs
References Committee, 21 April 2017), [2.36]–[2.65] and [2.87]–[2.98]. For a compelling account of the
circumstances prevailing in both countries, see Madeline Gleeson, Offshore: Behind the Wire on Manus
and Nauru (NewSouth Publishing, 2016) 209–11.
44
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth).
45
Asylum Seekers (Regional Processing Centre) (Amendment) Act 2015 (Nauru) s8.
46
Namah v Pato And Ors [2016] PGSC 13, SC1497.
47
See Amnesty International, ‘Island of Despair: Australia’s “Processing” of Refugees on Nauru,’
ASA 12/4934/2016, October 2016, part 4; Madeline Gleeson, Offshore: Behind the Wire on Manus and
Nauru (NewSouth Publishing, 2016) ch 19, ch 23.
48
See Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1.
49
See, e.g., the Parliamentary Joint Committee on Human Rights, ‘Examination of Legislation
in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011: Migration Legislation
Amendment (Regional Processing and Other Measures) Act 2012 and Related Legislation,’ (Parliamentary
Joint Committee on Human Rights, 9th report of 2013, June 2013) [2.55]–[2.58]; Commonwealth of
Australia, ‘Incident at the Manus Island Detention Centre from 16 to 18 February 2014,’ Senate Legal
and Constitutional Affairs References Committee, 12 June 2014 [8.33]–[8.34]; Senate Committee on
the Recent Allegations relating to conditions and circumstances at the Regional Processing Centre in
Nauru, ‘Taking Responsibility: conditions and circumstances at Australia’s Regional Processing Centre
in Nauru’ (Senate Committee on the Recent Allegations relating to conditions and circumstances at the
Regional Processing Centre in Nauru, August 2015) [5.15]–[5.17]; Senate Legal and Constitutional
Affairs References Committee, ‘Serious Allegations of Abuse, Self-harm and Neglect of Asylum
Seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the
Manus Regional Processing Centre’ (Parliament of Australia, Senate Legal and Constitutional Affairs
References Committee, 21 April 2017) [7.66]. It should be noted that a class action in the Victorian
Supreme Court on behalf of detainees on Manus Island was settled by the government: Kamasee v
Commonwealth of Australia & Ors [2017] VSC 537.

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3. WHAT INTELLECTUAL WORK DOES CONSTRUCTIVE

REFOULEMENT DO?

One reason the concept of constructive refoulement may be important is to acknowledge

forced return as a violation of human rights in and of itself – a violation of one of the most
important rights owed to refugees. The number of ‘voluntary returns’ from Nauru and Manus
suggests that the appalling treatment of refugees and asylum seekers is having the effect of
forcing return to the country of origin. Australia has also been offering financial incentives for
return in the form of reintegration packages.50
The numbers of returns are fairly significant and increasing over time.51 In 2013, UNHCR
argued that both centres were ‘return-orientated’ environments.52 In the Senate inquiry regard-
ing Reza Barati, many submitters argued that constructive refoulement was occurring.53
Practically, the label constructive refoulement might be important as a deterrent to states.
Arguably, however, the fact that states violate other rights as an aspect of constructive refoule-
ment, including another cardinal norm – the prohibition on torture and related forms of harm54
– suggests that any additional deterrent value is slight. Another potential advantage is that the
prohibition on constructive refoulement theoretically catches a larger slice of the international
community than some treaty-based human rights norms, given that it is probably customary
international law.55 On the other hand, enforceability of the prohibition on constructive
refoulement is just as elusive as enforcement of international law more generally – possibly
more so given that if return actually occurs, complaints may have to be lodged by someone
other than the immediate victim.56

50
Josh Butler, ‘Incentives Given for Refugees to Leave Nauru’ https://​www​.huffingtonpost​.com​.au/​
2016/​02/​11/​incentive​-nauru​-refugee​_n​_9215246​.html accessed 17 March 2019.
51
Refugee Council, ‘Offshore Processing Statistics’, 4 March 2019 https://​www​.refugeecouncil​.org​
.au/​operation​-sovereign​-borders​-offshore​-detention​-statistics/​9/​ accessed 14 March 2019.
52
UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23–25 October 2015’
(26 November 2013) 2; UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru: 7–9 October
2013’ (26 November 2013) 25.
53
See Senate Standing Committee on Legal and Constitutional Affairs, ‘Incident at the Manus
Island Detention Centre from 16 February to 18 February 2014’, http://​www​.aph​.gov​.au/​Parliamentary​
_Business/​Committees/​Senate/​Legal​_and​_Constitutional​_Affairs/​Manus​_Island/​Report/​ accessed 16
March 2019 [4.64]–[4.69].
54
Important cases in which policies or practices of destitution have been found to infringe the pro-
hibition on torture and related forms of mistreatment include: M.S.S. v Belgium and Greece (2011) App
no 30696/09 (ECHR 21 January 2011); R (on the application of Limbuela, Tesema, Adam) v Secretary of
State for the Home Department [2005] 3 W.L.R. 1014.
55
Cathryn Costello and Michelle Foster, ‘Non-refoulement as Custom and Jus Cogens? Putting the
Prohibition to the Test,’ in Maarten den Heijer and Harmen van der Wilt (eds) Netherlands Yearbook of
International Law 2015 (T.M.C. Asser Press, 2016), 273. The endorsement of non-refoulement by the
General Assembly in the New York Declaration supports this finding: UNGA, ‘New York Declaration
for Refugees and Migrants,’ A/RES/71/1, 13 September 2016 [67].
56
The decision in M.S. v Belgium is unusual in this regard because the asylum seeker was able to
brief his lawyer in Belgium to sue on his behalf in the European Court of Human Rights: M.S. v Belgium
(n 8) [2], [111]. Ramsden and Marsh argue that there is something paradoxical about reliance on con-
structive refoulement given the likelihood of return and the difficult circumstances in which refugees find
themselves when subjected to a policy of constructive refoulement, but this is true of many human rights
violations. See Michael Ramsden and Luke Marsh, ‘Refugees in Hong Kong: Developing the Legal
Framework for Socio Economic Rights Protection’ (2014) 14 Human Rights Law Review 267, 275–6.

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Another reason to invoke constructive refoulement is the relative and contingent nature
of many of the rights in the Refugee Convention, which may engender a reading of the
Convention that creates a legal black hole: a limbo between non-refoulement and other refugee
rights. This lacuna may be further exploited by the practice of sending a refugee to a third
country. Once a refugee has been removed to a third country, the sending state may try to argue
that the refugee is the third country’s responsibility, and that any violations of rights (beyond
non-refoulement itself, which can apply to a number of states involved in chain refoulement)
is a matter for the third state alone.
The Refugee Convention sets out a bill of rights for refugees. However, unlike documents
such as the Universal Declaration of Human Rights57 or the International Covenant on Civil
and Political Rights (ICCPR),58 the rights in the Refugee Convention are not expressed in
seemingly absolute terms such as ‘everyone has the right to X’.
Few human rights are absolute and they can be limited or derogated from.59 In the Refugee
Convention, however, rights are contingent and relative in a different way. Refugee rights in
the Convention often depend on a certain level of attachment to state territory and may be
relative to the treatment accorded to various categories of foreigners.
The Convention does contain some ‘relatively absolute’ rights, like the obligation of
non-refoulement, which applies extraterritorially and to all refugees regardless of their migra-
tion status under domestic law (although there is a limitation clause in art 33(2) concerning
‘dangerous’ refugees). Indeed, because this obligation is presumptive and refugee status deter-
mination is merely declaratory of the fact that a person is a refugee rather than constitutive, it
also applies to all asylum seekers – those seeking protection but who have not been determined
to be refugees.
Other refugee rights are framed in a different way. For example, the right to engage in
wage-earning employment, which is as fundamental to a refugee or asylum seeker’s survival
as the obligation of non-refoulement, is generally contingent on lawful stay in state territory.60
Further, the extent of refugees’ rights to participate in wage-earning employment is generally
only the same as that for most favoured foreigners – that is, foreigners with some kind of
privileged status through a reciprocal agreement whether bilateral, or multilateral (like the
law governing freedom of movement of EU citizens within the EU), or a status governed by
national law such as permanent residence status. Thus in the Refugee Convention, the right to
work does not appear in the same seemingly absolute terms as Article 6 of the International
Covenant on Economic Social and Cultural Rights which enshrines ‘the right of everyone to
the opportunity to gain his living by work which he freely chooses or accepts’.61 There appears
to be a textual gap between the obligation not to return a refugee, which applies to all refugees

57
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III)
(UDHR).
58
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 U.N.T.S. 171 (ICCPR).
59
See, e.g., UDHR, art 29.
60
Refugee Convention, art 17.
61
International Covenant on Economic Social and Cultural Rights (signed 16 December 1966,
entered into force 3 January 1976) 993 U.N.T.S. 3, art 2. Of course, states’ obligations under the ICESCR
are obligations of progressive implementation commensurate with the available resources of the state
meaning that the right to work in one country may well be more meaningful than the right to work in
another.

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and asylum seekers, and a fundamental survival right – the right to work, which is not phrased
in the same unlimited way.
This opens up possibilities for states to leave refugees and especially asylum seekers in
a state of enforced destitution and hopeless idleness by disallowing the right to work. This risk
is heightened when there are also limitations on social security or public assistance, which in
the Refugee Convention are guaranteed at the same level as applicable to citizens, but only
with respect to refugees lawfully staying.62
The term ‘lawful stay’ is open to interpretation. It certainly applies to a person who is
actively granted permission to stay in state territory pursuant to domestic law and for some
length of time. However, it can and should be read more broadly. States should not be per-
mitted to keep refugees in a limbo of unlawfulness and national law should not be entirely
determinative of whether someone is lawfully present.
A group of experts convened to consider the right to work for refugees under the auspices of
the Michigan Program in Asylum and Refugee Law adopted the following formulation.

7. The meaning of the term ‘lawful’ must be ascertained in accordance with a good faith
interpretation of the Refugee Convention, and in light of human rights treaties that protect
rights on the basis of physical presence and the premise of equality. If a refugee’s presence
in the territory of a state party to the Convention is not unlawful, in that the state is aware,
or should be aware, of the refugee’s presence and the state is unable or unwilling to remove
the refugee, then the refugee’s presence may be regarded as lawful for the purposes of the
Refugee Convention.
8. The term ‘stay’ distinguishes refugees who are present in the state on an ongoing basis
from those in transit or who are merely visiting. Refugees ‘lawfully staying’ in states
party to the Convention include those recognized as refugees through individual refugee
status determinations (RSD) or as prima facie refugees (refugees whose status has been
determined on a group basis) whether by the state or by UNHCR; asylum-seekers in a state
that fails to determine or to comply with an RSD system or where the procedure is unduly
prolonged; and refugees waiting for resettlement in another state.63

If lawful stay is more elastic than permission to stay under domestic law, the potential gap
between the obligation of non-refoulement and the rest of the bill of rights for refugees is
minimised. However, asylum seekers may for a time be lawfully present, though not lawfully
staying64 and if most favoured foreigner status does not provide decent access to paid employ-
ment, even recognised refugees may be denied proper access to employment.
There are a number of ways of filling any gap between non-refoulement and the right
to work, including reliance on Article 6 of ICESCR, and other rights such as equality and
privacy.65 The destitution resulting from withholding the right to work and/or social security
or welfare benefits has been held to amount to inhuman and degrading treatment in key deci-
sions – for example, the European Court of Human Rights decision in M.S.S.. v Belgium and

62
See Refugee Convention, arts 23 and 24.
63
University of Michigan Law School, The Michigan Guidelines on the Right to Work, 16 March
2010 http://​www​.refworld​.org/​docid/​4bbaf1242​.html accessed 16 March 2019.
64
Penelope Mathew, Reworking the Relationship between Asylum and Employment (Routledge
Publishing, 2012) 87.
65
For analysis, see ibid.

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 Constructive refoulement 217

Greece,66 and the House of Lords decision in the Limbuela case.67 The prohibition on torture
and related forms of ill-treatment is recognised as customary international law and jus cogens
and is therefore binding on every state.
This is important because the prohibition on torture goes a long way to filling any gap
between the obligation of non refoulement under refugee law and important economic rights
in the Refugee Convention. On the other hand, perhaps there may be situations where the high
threshold for inhuman and/or degrading treatment – deliberate infliction of a certain level of
suffering (inhuman treatment) or humiliation or debasement (degrading treatment) – is not
met, but asylum seekers are nevertheless being sent a message to return home to persecution.
Constructive refoulement provides a way to deal with such treatment.
Constructive refoulement may also provide an avenue for dealing with the absence of refugee
protection in a third state. It has long been accepted that Article 33 of the Refugee Convention
prohibits chain refoulement given its express reference to ‘return in any manner whatsoever’.
However, it is not accepted that every single human right carries a non-refoulement obligation,
and the Refugee Convention is notoriously silent on the question of entry to any particular
state. It appears open to states to argue that so long as they respect non-refoulement with
respect to persecution, torture, life, disappearances and other similar cases of irreparable harm,
they may send a refugee to another country and it is the responsibility of the receiving state
to comply with obligations concerning all other human rights beyond the corpus of rights to
which a non-refoulement obligation attaches.68
Much effort has been devoted to spelling out the rights protection beyond non-refoulement
that must prevail in a ‘safe third country’.69 A firmer legal footing for the insistence on guaran-
tees of adequate human rights protections for refugees prior to their departure to a supposedly
safe third country or resettlement option may be secured by linking the concepts of chain
refoulement and constructive refoulement. The concept of constructive refoulement may work
hand in hand with the concept of chain refoulement to prevent a sending state from relying
on ‘protection elsewhere’ when meaningful or effective protection is actually absent. The
question is what test should be applied for a finding of constructive refoulement? Is it a simple
matter of arguing that every time human rights are denied to a refugee or asylum seeker, this
amounts to constructive refoulement, or is the matter more complex? Case law may be instruc-
tive here, because adjudicators have to apply the law to particular facts, rather than dealing
with abstractions.

66
M.S.S. v Belgium and Greece (n 54).
67
R (on the application of Limbuela, Tesema, Adam) v Secretary of State for the Home Department
(n 54).
68
Australia’s ‘regional resettlement arrangements’ add a twist to this difficulty, by suggesting that
refugee protection is no longer required because a durable solution has been found. However, it is only
where a refugee has acquired a new citizenship or the rights that attach to possession of citizenship that
they cease to be refugees or are excluded from refugee status. See Refugee Convention, art 1C(3) (cessa-
tion) and 1E (exclusion).
69
University of Michigan Law School, The Michigan Guidelines on Protection Elsewhere http://​
www​.refworld​.org/​docid/​4ae9acd0d​.html accessed 16 March 2019; UNHCR, ‘Summary Conclusions
on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and
Asylum-Seekers’ (Lisbon Expert Roundtable, 9–10 December 2002) http://​www​.refworld​.org/​docid/​
3fe9981e4​.html accessed 16 March 2019.

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Acceptance of the concept of constructive refoulement in case law is also important for
a more fundamental reason – the rule of law. Case law is not necessarily the most authoritative
source of law in the international legal arena. Indeed, cases are only mentioned as a subsidiary
source of law in Article 38(1)(d) of the Statute of the International Court of Justice, although
they can also serve as evidence of state practice (art 38(1)(b)) and contribute to the general
principles of law (art 38(1)(c)).70 However, case law is significant because of the impartiality
and independence of the judiciary and members of human rights treaty bodies (at least in
theory) and the lack of an alternative source of authoritative, or, at least, persuasive, rulings on
the mass of potentially anarchic and self-serving state practice.

4. CONSTRUCTIVE REFOULEMENT IN SOME RELEVANT

CASE LAW

Even though the Refugee Convention is a heavily adjudicated treaty, most of the case law
concerns the definition of a refugee rather than the rights owed to them. Nevertheless, there is
a small body of case law concerning the concept of constructive refoulement.
One early attempt to establish the concept of constructive refoulement was an imperfect
success. In a 1996 case involving the denial of income support by regulation to certain
asylum seekers, the English Court of Appeal shied away from making a finding on the basis
of constructive refoulement, but it did find that the regulations were ultra vires because they
effectively denied the right of asylum seekers to pursue their cases with the authorities.71 In the
lead majority judgment, Simon Brown LJ described ‘a problem’ with the regulations in terms
that sound remarkably like constructive refoulement: ‘A significant number of genuine asylum
seekers now find themselves faced with a bleak choice: whether to remain here destitute and
homeless until their claims are finally determined or whether instead to abandon their claims
and return to face the very persecution they have fled.’72
He acknowledged the possible lacuna between the non-refoulement obligation applicable
to asylum seekers and the provision of the Refugee Convention concerning social security in
Article 24 as follows:

True, no obligation arises under Article 24 of the 1951 Convention until asylum seekers are recog-
nised as refugees. But that is not to say that up to that point their fundamental needs can properly be
ignored. I do not accept they can. Rather I would hold it unlawful to alter the benefit regime so dras-
tically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum
seekers to claim refugee status. If and when that status is recognised, refugees become entitled under
Article 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to
that time their rights are remotely the same; only that some basic provision should be made, sufficient
for genuine claimants to survive and pursue their claims.73

He concluded that the regulations were:

70
Statute of the International Court of Justice (signed 26 June 1946, entered into force 24 October
1945) 33 U.N.T.S. 933, art 38(1).
71
R v Secretary of State for Social Security, exp parte Joint Council for the Welfare of Immigrants;
R v Secretary of State, ex parte B [1996] 4 All E.R. 385.
72
Ibid. 391.
73
Ibid. 401.

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 Constructive refoulement 219

so uncompromisingly draconian in effect that they must indeed be held ultra vires. I would found my
decision not on the narrow ground of constructive refoulement envisaged by the UNHCR and rejected
by the Divisional Court, but rather on the wider ground that rights necessarily implicit in the 1993 Act
are now inevitably being overborne. Parliament cannot have intended a significant number of genuine
asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon
their claims to refugee status or alternatively to maintain them as best they can but in a state of utter
destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs.74

The decision is thus based expressly on the ground that subordinate legislation must be within
the power of the enabling legislation and not in conflict with existing statutory rights in other
primary legislation.
There have been some other nods in the direction of the concept of constructive refoule-
ment. For example, in the course of litigation in Hong Kong, the judge at first instance noted
in obiter, that denial of the right to work to refugees could amount to constructive refoulement
in an extreme case.75 Similarly two members of the Human Rights Committee referred to the
idea in a concurring opinion, saying that:

inability to exercise the most basic economic and social rights, which would enable asylum seekers
to stay in the country of asylum, may eventually leave them no choice but to return to their country of
origin, effectively rendering illusory their right to non-refoulement under international refugee law.76

The Committee against Torture has also stated in a General Comment that states should not
adopt ‘dissuasive measures or policies’ which would ‘compel’ return.77
In 2012, the European Court of Human Rights in the case of M.S. v Belgium found there had
been a case of constructive refoulement, although it did not use this terminology.78 The case is
only available in French, and the translations used here are those of the author and her research
assistant. In this case, the applicant, an Iraqi national, arrived in Belgium in 2000 and claimed
asylum on the basis of persecution by the regime of Saddam Hussein. He was arrested in 2003
for criminal association, fraud and suspicion of links with Al-Qaeda and supply of documents
allowing Islamists into Europe. He served a term of imprisonment and his asylum application
was denied. Following his release from prison, Belgium initiated the process of expulsion
which saw the applicant detained in transit centres and on residence orders for three years. It
was clear that there was a risk of exposure to ill-treatment if M.S. were to be returned to Iraq.
However, at the end of the day M.S. said he was forced to leave because he could not continue
to live confined, with no future and far away from his family.79
The Court decided that the return of M.S. to Iraq was a breach of Article 3 of the European
Convention – which prohibits torture and related forms of ill-treatment and carries an implicit
non-refoulement obligation. It is important to understand that the Court did not find that

74
Ibid. 402.
75
JA (and Ors) v Director of Immigration [2011] HKCFI 10, [82].
76
Human Rights Committee, Warda Osman Jasin v Denmark, Appendix II – Individual opinion of
Committee members Yuval Shany and Konstantine Vardzelashvili (Communication No. 2360/2014) UN
document CCPR/C/114/D/2360/2014, [2].
77
UN Committee against Torture, ‘General Comment No. 4 (2017) on the Implemetation of Article
3 of the Convention in the Context of Article 22’ (4 September 2018) UN Doc CAT/C/GC/4, [14].
78
M.S.S. v Belgium (n 8).
79
Ibid. [117].

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the indefinite detention amounted to inhuman or degrading treatment:80 the ruling is firmly
focused on the fact of return. The Court said that:

[t]he government’s arguments on the issue of the importance of the applicant’s consent do not take
into account the fact that this person … has been deprived of his liberty and that the Belgian authori-
ties had exercised, in this manner, coercion tending to dissuade the applicant, or, at least, discourage
him to stay in Belgium …. The applicant has been faced with the following choices: he could decide
to stay in Belgium without any hope of obtaining, one day, the right to stay legally and without a real
prospect of living freely; another option would be to return to Iraq, knowing of the risks of being
arrested and subjected to ill treatment in prison; one last option would be to go to a third country,
which is not practically feasible. The court is of the opinion that, in these circumstances, the condi-
tions of ‘free consent’ were not met …81

Thus, in this case, where liberty was denied and the applicant actually returned, the Court was
prepared to say there was a violation of the obligation of non-refoulement.

5. THE TEST FOR CONSTRUCTIVE REFOULEMENT

The principle of constructive refoulement has now been accepted and/or applied by some
courts and quasi-judicial bodies. However, the full scope of the principle is unclear. The
International Law Commission’s provision on ‘disguised expulsions’ in the Draft Articles on
the Expulsion of Aliens, though important for in-principle recognition of the concept, which
was resisted by some states, requires intent on the part of states to cause return.82 However,
this may impose too heavy a burden on refugees and asylum seekers, given the proscription of
return ‘in any manner whatsoever’ and in light of states’ ready arsenal of alternative explana-
tions for their behaviour.83
Another issue to consider is whether an actual return needs to have occurred. Under the doc-
trine of constructive dismissal in labour law, suit will be brought once the person has resigned,
but action after the fact is obviously not appropriate for refugees. Non-refoulement is in effect
injunctive relief against return. The standard of proof is not that persecution is a certainty, but
that there is a well-founded fear of persecution – in Australia, the ‘real chance’84 test is used.
It might be arguable that the burden of proof for constructive refoulement where return has not
yet occurred should be a ‘real chance’ or the equivalent test from other jurisdictions:85 is there
a real chance that a person will return if these policies are pursued?86

80
Ibid. [182]–[185].
81
Ibid. [124].
82
International Law Commission, Draft Articles on the Expulsion of Aliens, A/69/10, 2014, [35]–
[45], art 10.
83
For discussion of the Draft Articles and their somewhat fraught relationship with principles
of refugee and human rights law see Won Kidane, ‘Missed Opportunities in the International Law
Commission’s Final Draft Articles on the Expulsion of Aliens’, 30 Harv Hum Rts J 70 (2017).
84
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ at
389.
85
The various tests are described in James C. Hathaway and Michelle Foster, The Law of Refugee
Status (2nd ed, CUP, 2014), 113.
86
Analogously, Hathaway writes that for chain refoulement, the test is whether there is a real
chance that a receiving state may remove the person: James C. Hathaway, The Rights of Refugees under

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 Constructive refoulement 221

Non-refoulement is accepted as carrying obligations of conduct as well as result, proce-

dural as well as substantive rights, positive as well as negative rights.87 For example, the UN
Human Rights Committee held in Ahani v Canada,88 that an unfair hearing is a violation of the
obligation of non-refoulement. The Committee noted that states were required to exercise due
diligence with respect to the prohibition on torture.89 Due diligence is an obligation of conduct
– so non-refoulement is not only about ensuring there is no return to actual harm (an obligation
of result). Arguably, this reasoning could be extended by analogy to policies that have, or may
have, the effect of causing a person to return.
This might then entail a further question as to how severe the measures might have to be
to amount to constructive refoulement. Enforced destitution should be regarded as sufficient,
but does any denial of human rights suffice? This question of threshold appears similar to
the thorny questions asked concerning the internal protection alternative (IPA)90 – a place
within the country of origin where an asylum seeker may be required to return instead
of being granted asylum in a foreign country – or ‘protection elsewhere’ in a ‘safe third
country’. In these situations, one of the issues is the requisite level of rights protection beyond
non-refoulement – an objective measure.91 Similarly to constructive dismissal,92 it would seem
important to have an objective yardstick by which to judge the voluntariness of actual returns
and a fortiori possible returns. As with ‘protection elsewhere’ and the IPA, human rights are
an appropriate and rather obvious objective yardstick. However, academic commentary and
available case law on constructive refoulement suggests that any assessment must take into
account the vulnerabilities of asylum seekers as well.
In M.S. v Belgium, the test applied was that of free consent. The issue appears to have been
framed in this way because M.S. had at one point proposed ‘voluntary’ return for a sum of
money.93 The Court considered whether M.S. had ‘waived’ his right to non-refoulement. The
Court referred to the need for any such revocation of rights to be ‘surrounded by sufficient

International Law (CUP, 2005), 325. With regard to the content of protection in a putative safe third
country, he argues that a fair interpretation of art 33 requires that ‘“effective protection” worthy of the
name’ be available, which he defines as including all refugee rights acquired in the sending state. The
doctrine of constructive refoulement supplies another way of thinking about the content of protection.
87
See Kees Wouters, International Legal Standards for the Protection from Refoulement (Intersentia
Publishers, 2009), 29, 134–78.
88
Human Rights Committee, Mansour Ahani v Canada, (Communication No. 1051/2002), UN
document CCPR/C/80/D/1051/2002. See also Hirsi Jamaa v Italy (2012) App no 27765/09 (ECHR, 23
February 2012) [185]–[186] and [197]–[207].
89
Ibid. [10.7].
90
James Hathaway and Michelle Foster, ‘Internal protection/relocation/flight alternative as an
aspect of refugee status determination,’ in Erika Feller et al, Refugee Protection in International Law:
UNHCR’s Global Consultations on International Protection (CUP, 2003) 357; see also University of
Michigan Law School, Michigan Guidelines on the Internal Protection Alternative, 11 April 1999, http://​
www​.refworld​.org/​docid/​3dca73274​.html accessed 16 March 2019.
91
Unfortunately, most of the jurisprudence in the common law world concerning the IPA has
accepted a test of ‘reasonableness’ rather than an objective test based on human rights protection. See
Hathaway and Foster, ibid., 402–3.
92
See, e.g., Nesbitt v Super Cheap Auto Pty Ltd [2012] FWA 4994, 1. In this case, it was said that
‘what is required is an objective analysis of the employer’s conduct in relation to the employee and not
just the subjective view of the complaining party.’ Ibid [78].
93
M.S.S. v Belgium (n 8) [92]–[97].

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222 Research handbook on international refugee law

guarantees in order to ensure that it is expressed freely for it to be valid’94 and noted that the
Belgian authorities had not sought any diplomatic assurances from Iraq regarding arrest and
ill-treatment. The Court found that there had been ‘coercion that tended to dissuade or discour-
age the applicant from staying in Belgium’.95
The Court appears to endorse a test that examines the pressure applied by the state as well
as the vulnerability of the individual to the pressure exerted. It recalled a paragraph in Kurt
v Turkey, in which the Court said that ‘any form of pressure’ included ‘direct coercion and
flagrant acts of intimidation … but also other improper indirect acts or contacts designed to
dissuade or discourage [people] from pursuing a Convention remedy’, and that ‘regard must
be had to the vulnerability of the complainant and his or her susceptibility to influence exerted
by the authorities’.96
In the context of the IPA, which necessarily involves an assessment as to what might occur
in the future, Foster and Hathaway have argued that any IPA should not pose a risk of indirect
or constructive refoulement to the place of origin. They apply the following test regarding the
likelihood of return to the place of origin:

Where the intensity of the harms specific to the proposed site of internal protection (such as, for
example, famine or violence due to sustained conflict) rises to a particularly high level, even if
not amounting to a risk of persecution, an asylum seeker may in fact be compelled to abandon the
proposed site of protection, even if the only alternative is to return to a known risk of persecution
for a Convention reason elsewhere in the country of origin. … This assessment does not require
a decision-maker to assess what is objectively ‘reasonable’, or what an asylum seeker can reasonably
be expected to tolerate; rather it is a factual assessment of whether this applicant – given who she is,
what she believes, and her essential makeup – would in fact be compelled to return.97

In the case of Australia’s arrangements with Papua New Guinea and Nauru, psychological
distress is likely to impact the decision-making process of refugees and asylum seekers.
Whether by design or not – and it should be noted that much of the decision-making regarding
the establishment of Australia’s offshore processing centres was policy-on-the-run – these
arrangements meet the test suggested here. They entail a real chance of forced return and
should be abandoned.

6. CONCLUSION
It is significant that the concept of constructive refoulement has been accepted in a few
important cases as a legitimate extension of the principle of non-refoulement. It reinforces the

94
Ibid. [124].
95
Ibid.
96
Kurt v Turkey (1998) App No 15/1997/799/1002 (ECHR, 25 May 1998) [160]; the paragraph (but
not the test) is referred to in M.S. v Belgium ibid. [124].
97
Hathaway and Foster, The Law of Refugee Status (n 85) 348–9. UNHCR’s Guidelines also stipu-
late that an area is not a suitable IPA if ‘the conditions there are such that the claimant may be compelled
to go back to the original area of persecution, or indeed to another part of the country where persecution
or other forms of serious harm may be a possibility’: UNHCR, Guidelines on International Protection:
“Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention
and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2013, [21].

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 Constructive refoulement 223

principle that human rights apply to all individuals regardless of their migration status.98 Given
the customary nature of the prohibition on refoulement, it cannot be avoided by reliance on
status as a non-party to human rights treaties. Nor does the contingent and relative nature of
many of the rights in the Refugee Convention provide an avenue for states to escape its reach.
The prohibition on constructive refoulement clearly condemns states’ policies of enforced
destitution and their attempts to create legal black holes, particularly through the extraterrito-
rialisation99 of border control.
Unfortunately, there may be few occasions on which the rights of refugees and asylum
seekers are vindicated using the concept of constructive refoulement. Australia’s wilful dis-
regard of international law in its policies regarding unauthorised boat arrivals illustrates this
point. However, clearly articulating that policies which seek to force the return of refugees
and asylum seekers are unlawful is an important first step. The entire corpus of international
human rights law has been built on the premise that setting expectations is fundamental to pre-
vention. Importantly, too, in situations where an IPA or ‘protection elsewhere’ are involved,
the doctrine of constructive refoulement could be invoked in order to prevent refugees and
asylum seekers from being sent to live in limbo. It remains for practitioners to take up the
challenge of arguing constructive refoulement before the courts.

98
Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18
Inter-American Court of Human Rights Series A No 18 (17 September 2003) dispositif [8]–[11]; UNGA,
‘New York Declaration for Refugees and Migrants,’ A/RES/71/L.1, 13 September 2016 [5].
99
This term is used in Madeline Garlick, ‘EU “Regional Protection Programmes”: Development
and Prospects’ in Marleen Maes et al (eds), External Dimensions of EU Migration and Asylum Law and
Policy (Bruylant, 2011) 356.

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14. The prosecution of asylum seekers
Yewa Holiday

Article 31(1) of the 1951 Refugee Convention is a fundamental principle of non-penalisation1

which prohibits the prosecution of refugees ‘coming directly from a territory where their life
or freedom was threatened in the sense of article 1’ for offences of illegal entry and presence
as long as they ‘present themselves without delay to the authorities’ and ‘show good cause’ for
the illegal entry or presence.2 The focus in this chapter is on the prosecution of asylum seekers.
However, penalisation in article 31(1) may include fines and imprisonment,3 summary depor-
tation (where the person has been denied access to asylum and which may also amount to
non-refoulement).4 Penalties also include delaying, obstructing or denying a person access
to asylum and channelling those who arrive without proper documentation into ‘an inferior
refugee procedure’.5
The chapter analyses article 31(1) drawing on academic writings6 and the travaux prépara-
toires of article 31(1). It applies the combined interpretative approach7 in article 31 of the

1
Other fundamental principles include non-refoulement and non discrimination, UNHCR,
Introductory Note (UNHCR 2010).
2
‘Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April
1954) 189 UNTS 137’ (n 56).
3
Guy S Goodwin-Gill, ‘Article 31 of the 1951 Convention relating to the Status of Refugees:
non- penalization, detention and protection’ in Erika Feller, Volker Turk and Frances Nicholson (eds),
Refugee Protection in International Law (CUP 2003); G Noll, ‘Article 31’ in A Zimmerman (ed.), The
1951 Convention relating to the Status of Refugees and its 1967 Protocol, A Commentary (OUP 2011)
1262-64; Atle Grahl-Madsen, Commentary (rev edn, UNHCR 1997); See also UNHCR, ‘Advisory
Opinion on Criminal Prosecution of Asylum-Seekers for Illegal Entry, 2 March 2006’; and UNHCR,
‘EXCOM Conclusion on Protection Safeguards in Interception Measures’ (2003) Doc No 97 (LIV)’ para
(a)(vi).
4
Goodwin-Gill (n 3) 189, 195–6; Noll (n 3) 1262; Anne T Gallagher and Fiona David, The
International Law of Migrant Smuggling (CUP 2014) 163; ‘Conference of Plenipotentiaries: Summary
Record of Thirty-Fifth Meeting, 3 December 1951, A/CONF.2/SR.35’; ‘Conference of Plenipotentiaries:
Summary Record of Thirteenth Meeting, 22 November 1951, A/CONF.2/SR.13’; Grahl-Madsen,
Commentary (n 3); Geoff Gilbert, ‘Is Europe Living up to Its Obligations to Refugees?’ (2004) 15 EJIL
963, 966.
5
Goodwin-Gill (n 3); Noll (n 3) 1262–4; Gallagher and David (n 4) 163–4; B010 v Canada [2015]
SCC 58 [57].
6
Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents
and Interpretation. A Commentary (Institute of Jewish Affairs, World Jewish Congress 1953); Atle
Grahl-Madsen, Status 1, vol 1 (Sijthoff 1966); Atle Grahl-Madsen, Status 2, vol 2 (Sijthoff 1972);
Grahl-Madsen, Commentary (n 3); Paul Weis, The Refugee Convention – the Travaux Preparatoires
Analysed, with a Commentary (CUP 1995); Goodwin-Gill (n 3); These include Noll (n 3); and Gallagher
and David (n 4).
7
Ian Brownlie, Principles of International Law (5th edn, OUP 2001) 633; Goodwin-Gill (n 3)
185–252; James C Hathaway, The Rights of Refugees (CUP 2005) 48; G S Goodwin-Gill and Jane
McAdam, The Refugee in International Law (3rd edn, Clarendon Press 2007) 366–8; Jane McAdam,

224
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 The prosecution of asylum seekers 225

Vienna Convention on the Law of Treaties 19698 to the interpretation of article 31(1) of
the Convention as well as the adaptation of international law to present-day circumstances,
as exemplified in article 38 of the Statute of the International Court of Justice.9 While the
Convention is not a human rights treaty in the sense that its provisions do not apply to all, its
provisions invoke human rights for asylum seekers and refugees.10 This concurrent approach
combined with a view of the wider context is demanded by the fact that the Convention is of
the normative type and article 31(1) concerns a fundamental principle – of non-penalisation.
The Part 1 – Overview focuses on who is protected by article 31(1), whether article 31(1)
operates as a bar or defence to prosecution and the ‘conditions to entitlement’ to article 31(1)
protection.11 The Part 2 – Point of View highlights the importance of the function of the crim-
inal law in article 31(1) protection and argues that article 31(1) is best seen as a bar to prose-
cution or a limiting principle on the criminal law. It concludes that the protective function of
article 31(1) requires it to be applied to asylum seekers and also requires them to be exempted
from prosecution except where they have obtained protection as refugees or other permanent
protection.

1. OVERVIEW

1.1 Who is Protected?

Refugee status determination is a declaratory process which recognises a status which already
exists.12 ‘The best analogy is with going to the doctor with the ‘flu – if the doctor tells you
that you have the ‘flu, that merely recognises a pre-existing state’.13 Costello, Goodwin-Gill
and Hathaway have observed that this means that the term ‘refugees’ in article 31(1) includes
asylum seekers or presumptive refugees as well as those declared to be refugees.14 A more
limited interpretation would be at odds with the declaratory nature of the refugee definition.
There are four points to be made in relation to article 31(1)’s application to asylum seekers
and refugees. First, although article 31(1) is said to protect asylum seekers, commentators
have also noted that until it is decided in a final decision that a particular asylum seeker is not

‘Interpretation of the 1951 Convention’ in Andreas Zimmerman (ed.), The 1951 Convention (OUP 2011)
82–3; Michael Waibel, ‘Demystifying the Art of Interpretation’ (2011) 22 EJIL 571.
8
‘Vienna Convention on the Law of Treaties 1155 UNTS 331’ arts 31, 32 reflect customary inter-
national law and are used for interpreting treaties predating their conclusion. VCLT is not retroactive in
effect, Brownlie (n 7) 608; Goodwin-Gill (n 3) 188–9.
9
ICJ, The International Court of Justice Handbook (6th edn, ICJ 2014) 99.
10
Vincent Chetail, ‘The Relations between Refugee Law and Human Rights Law – a Systemic
Perspective’ http://​www​.sas​.ac​.uk/​videos​-and​-podcasts/​politics​-development​-human​-rights/​relations​
-between​-refugee​-law​-and​-human​-rights accessed 15 October 2014; Goodwin-Gill (n 3) 187–9.
11
Goodwin-Gill (n 3) 188.
12
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (rev, UNHCR
1992) para 28.
13
Gilbert (n 4) 966, fn 10; see also James C Hathaway, ‘Prosecuting a Refugee for “Smuggling”
Himself’ [2014] U of Michigan Public Law Research Paper No 429 1–2.
14
Costello, C, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (UNHCR
Division of International Protection 2017); Goodwin-Gill (n 3) 193; Noll (n 3) 1252.

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226 Research handbook on international refugee law

a refugee, the benefits of article 31(1) must be accorded.15 This, however, raises the possibility
that article 31(1) will not be extended to asylum seekers who are not recognised by states as
being refugees.16 This contradicts the idea that article 31(1) protects asylum seekers and upsets
the declaratory nature of the refugee definition.17
Secondly, some refugees are excluded from article 31(1)’s protective ambit: those who are
recognised refugees or who have received some other form of permanent protection but who
go on to commit an offence of unlawful entry and presence after being recognised as refugees
or gaining permanent protection.18 The French amendment introducing the phrase ‘coming
directly from a territory where their life or freedom was threatened in the sense of article
1’ was intended to prevent article 31(1) applying to refugees who had found asylum in one
country but who subsequently moved, unlawfully, to another country, for personal reasons.19
Thirdly, due to the deception they are forced to practice, refugees may be confused with
smugglers or traffickers or they may take the role of ‘smuggler’ in assisting fellow refugees to
escape.20 Article 31(1) applies in this situation if the refugees are also escaping themselves.21
The Canadian Supreme Court considered the application of article 31(1) (in addition to inter-
national conventions on organised criminal people smuggling and related activities22) in B010
v Canada and R v Appulonappa. B010 concerned not criminal prosecution but the denial of
the refugee determination procedure to five asylum seekers assisting other asylum seekers to
escape.23 Activities such as people smuggling and trafficking in persons result in a denial of
access to refugee determination procedures under section 37(1)(b) of Canada’s Immigration
and Refugee Protection Act 2001 (IRPA).24 The asylum applications were found to be inad-
missible because section 37(1)(b) IRPA was said to cover any act of assistance and did not
require ‘a profit motive’.25

15
Goodwin-Gill, ibid., 193, 219; Noll, ibid., 1253; Hathaway (n 7) 389.
16
While Landry does not discuss the point, she states that art 31(1) only applies to those recognised
as Convention refugees, Rachel Landry, ‘The “Humanitarian Smuggling” of Refugees. Criminal Offence
or Moral Obligation?’ [2016] RSC Working Paper Series No 119, 12–13, fn 20.
17
Goodwin-Gill (n 3) 189, 193.
18
Hathaway (n 7) 401; Goodwin-Gill (n 3) 189.
19
‘Statement of Rochefort (France), UN Doc. A/CONF.2/SR.22 (1951)’; ‘Statement of van Heuven
Goedhart (UNHCR), UN Doc. A/CONF2/SR.35 (1951)’; Noll (n 3) 1249–50.
20
In R v Makuwa [2006] EWCA Crim 175, a refugee who entered the UK with her children was con-
victed of a false passport offence and two counts of facilitating an illegal entrant (her children) contrary
to Immigration Act 1971, s 25(1).
21
Hathaway (n 13); see also Landry (n 16).
22
‘Convention against Transnational Organized Crime 2225 UNTS 209’; ‘Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United
Nations Convention against Transnational Organized Crime 2237 UNTS 319’; ‘Protocol against the
Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against
Organized Crime 2241 UNTS 480’.
23
A Cuban, recognised as a refugee by the US had later bought a boat and used it to transport 48
Cubans to the US. He was convicted of alien smuggling. On receiving a deportation order, he went to
Canada and claimed asylum. The other four were among a group of 500 Sri Lankan Tamils who boarded
a cargo ship in Thailand. The organisers promised to transport them to Canada for various sums but
the crew abandoned ship after departure; 12 of the asylum seekers took over various duties during the
three-month voyage, B010 (n 5); R v Appulonappa [2015] SCC 59.
24
B010 (n 5) [2]–[3].
25
Ibid., [15].

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 The prosecution of asylum seekers 227

The Supreme Court concluded that section 37(1)(b) IRPA, considered in its broader context,
applied only to people who acted to help the illegal entry of asylum seekers for financial or
other benefit ‘in the context of transnational organized crime’.26 Acts of humanitarian and
mutual aid did not constitute people smuggling under IRPA.27 In R v Appulonappa, a case
which concerned the constitutionality of section 117 IRPA (criminalising the assistance of
entry into Canada), the Supreme Court held the section exceeded Parliament’s purpose and
was therefore ‘overbroad’ and ‘unconstitutional’ and followed that reasoning in B010.28 The
Court interpreted section 37(1)(b) IRPA consistently with article 31(1). It was not Parliament’s
intention to render refugees inadmissible under section 37(1)(b) simply because they provided
mutual assistance to others in the course of their own illegal entry.29 The Supreme Court in
Appulonappa concluded that in order for article 31(1) protection to be effective, ‘the law
must recognize that persons often seek refuge in groups and work together to enter a country
illegally’. To comply with article 31(1), ‘a state cannot impose a criminal sanction on refugees
solely because they have aided others to enter illegally in their collective flight to safety’.30
Fourthly, article 31(1) is not generally understood to extend to family members,31 friends,
organisations, carriers, smugglers, traffickers and agents32 who assist asylum seekers to escape
to seek safety unless they too are asylum seekers and therefore also helping themselves to
escape.33 The travaux préparatoires reveal that Swiss federal laws contained a provision
similar to that in article 31(1) which included any person assisting the refugee for ‘honourable’
motives. The US, France and Venezuela noted the liberal outlook of Switzerland and hoped
that countries would follow the Swiss example.34 While Appulonia seems to extend article
31(1) protection in the Swiss manner, this example is not consistently followed globally.35

1.2 Does Article 31(1) Act as a Bar or Defence to Prosecution?

Goodwin-Gill has observed that article 31(1) does not bar the charging or indicting of
a refugee ‘provided that a conviction is not entered or penalty imposed on any person found
to be a refugee under the Convention who has also met the other requirements’ of article 31.36
A similar point is made by Hathaway, that it is lawful for a government ‘to commence a pros-
ecution, so long as no conviction is entered until and unless a determination is made that the

26
Ibid., [5], [35]–[46].
27
Ibid., [5]; Appulonappa (n 23).
28
B010 (n 5) [39]–[40]; Appulonappa (n 23) [86].
29
B010 (n 5) [67]–[71].
30
Appulonappa (n 23) [42]–[43]; Hathaway (n 13).
31
A Somali man, recognised as a refugee, was charged with facilitating the unlawful entry of his
wife and children. He was eventually found not guilty of the offence, Ana Aliverti, Crimes of Mobility
(Routledge 2013) 82.
32
Noll (n 3) 1253; Hathaway (n 13) 3–4; The Director General of the IOM refers to smugglers as
‘travel agents of death’, see Landry (n 16) 5.
33
B010 (n 5) [5]; Appulonappa (n 23) [35]–[46].
34
UN ECOSOC, ‘Ad Hoc Committee, Second Session: Summary Record of Fortieth Meeting, 22
August 1950, E/AC.32/SR.40’; Goodwin-Gill (n 3) 190.
35
In the European context, see Landry (n 16) 2–3, 13.
36
Goodwin-Gill (n 3); Gallagher and David (n 4) 167–8. See also on this point, Re Zaouche Tahar
[1960] 43 ILR 212, 213.

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individual is not in fact a Convention refugee’.37 According to Goodwin-Gill and Hathaway,

therefore, the refugee determination must precede the prosecution. This must be correct
because an individual’s claim for asylum, which involves the claim of a threat or danger to life,
for that reason, trumps a state’s claim to prosecute. The prior and prompt consideration of the
asylum claim has a protective function. In this sense, article 31(1) would seem to correspond
to a bar to prosecution – at least until the refugee determination has been finalised.
However, Noll prefers to conceptualise article 31(1) protection as a defence to be invoked
by the refugee arguing that this is in conformity with ‘the objective of a speedy and efficient
refugee status determination and therefore mandated by the protective object and purpose’
of the Convention.38 Noll’s view seems to be influenced by the High Court in R v Uxbridge
Magistrates Court and another, ex parte Adimi which stated that article 31(1) should operate
by way of a defence.39 The problem with Noll’s conception is that article 31(1) as a defence
can only protect asylum seekers where the prosecution, in fact, adjourns to await the refugee
determination and the refugee determination is, in fact, ‘speedy and efficient’. Where neither
situation operates, asylum seekers will run the risk of penalisation.
Goodwin-Gill has noted that in such circumstances, for example, where there is a general
policy and/or practice of prosecuting asylum seekers who have committed offences of unlaw-
ful entry and presence without regard to the circumstances of individual cases, and without
allowing an opportunity for any claim for refugee status or asylum to be considered before
prosecution, there will be a breach of article 31(1).40 The refusal by authorities to consider the
merits of claims or the inability to do so due to a general policy on prosecutions, will ‘almost
inevitably’ lead the state into a breach of its international obligations.41 This is supported by
Mr Samuel Hoare, the UK delegate during the negotiations on article 31(1), who was of the
view that the reference to penalties ‘simply precluded the taking of legal proceedings against
[the refugee]’.42 As noted by Goodwin-Gill, article 31(1) means that states parties must amend
their penal codes or the criminal law to ensure that no person entitled to the benefit of article
31(1) runs the risk of being found guilty of an offence. If it becomes clear in criminal proceed-
ings against a refugee that article 31(1) is applicable, ‘the public prosecutor will be duty bound
to withdraw the case or … see to it that the refugee is acquitted. In no case may a judgement
be executed, if the offence is one to which article 31(1) applies’.43
It is important to note however, in keeping with Costello, Goodwin-Gill, Hathaway and
Grahl-Madsen, that prosecution amounts to a penalty only if certain circumstances pertain.
These circumstances include the existence of a policy of prosecution which takes no account
of the asylum claim.44 This would include cases where an individual has not been allowed to

37
Hathaway (n 7) 407; Vladislava Stoyanova, ‘Smuggling of Asylum-Seekers and Criminal Justice’
[2012] Refugee Law Initiative Working Paper No 5, 6.
38
Noll (n 3) 1246.
39
Adimi (2001) QB 667, 683.
40
Goodwin-Gill (n 3) 217.
41
Ibid., 219; Weis (n 6).
42
‘COP: Thirty-Fifth Meeting,’ (n 4).
43
Grahl-Madsen, Commentary (n 3); see also Grahl-Madsen, Status 2 (n 6) 210–11; Weis (n 6) 303;
Goodwin-Gill (n 3) 187.
44
This is argued in my PhD thesis, Yewa Holiday, ‘Article 31(1) of the 1951 Refugee Convention
and the Criminalisation of Refugees in England and Wales’ (Queen Mary University of London 2016)
which considered 100+ cases of asylum seekers prosecuted for offences of unlawful entry and presence

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make a claim for asylum before being prosecuted45 as well as cases where an asylum claim is
lodged but prosecution continues regardless.46

1.3 The Nature of Article 31(1) Protection

The situation which triggers article 31(1) is a flight from persecution or the fear of persecution.
The asylum seeker as a ‘man [or woman] without papers’47 and who, in fleeing persecution, is
forced to endure difficult conditions means that unauthorised entry and presence are a ‘precar-
ious necessity’.48 This was captured by the German Administrative Court in 1960:

An escape cannot be judged by the standards of a normal journey. It must be taken into account that
a flight may lead a person through different countries and that a refugee needs time to inform himself
of his chances for the future. Also, the route he chooses is frequently determined by lack of means of
identification and the most elementary needs to support life, as well as the subjective fear regarding
his subsequent fate.49

While commentators are clear that article 31(1)’s function is protective there is nevertheless
some inconsistency in academic treatment in what is required by the asylum seeker in order
to benefit from its terms, namely ‘coming directly from a territory where their life or freedom
was threatened in the sense of article 1’ and ‘presenting themselves to the authorities without
delay’. The requirement of showing good cause is generally satisfied if the asylum seeker can
show that she or he was reasonably travelling on false papers, had to resort to subterfuge or
there were good reasons for delay.50 The phrase is not further considered here.

who had applied to the Criminal Cases Review Commission (CCRC) for England, Wales and Northern
Ireland for a review of their convictions together with court decisions and the practice and guidance
of police, Crown Prosecution Service (CPS) of England and Wales and the UK Home Office; see also
Goodwin-Gill (n 3).
45
E.g., Adimi (n 39).
46
E.g., ibid.; Abwnawar [2005] Unreport 11 Novemb 2005; R v Mohammed and Osman [2007]
EWCA Crim 2332; R v Asfaw [2008] UK HL 31; R v Tesfagabir (reference to Croydon Crown Court by
the CCRC) [2012] unreported; R v Mateta, Ghavami, Afshar, Bashir and Andukwa [2013] EWCA Crim
1372.
47
P Weis, ‘The International Protection of Refugees’ (1954) 48 AJIL 193, 193–4.
48
Noll (n 3) 1246.
49
Determination of Refugee Status (Germany) Case (Federal Republic of Germany, Federal
Administrative Court) [1960] 32 ILR 227, 229-30.
50
The discussion on good cause was generally considered in the context of ‘coming directly...’,
‘Statement of the President, UN Doc. A/CONF.2/SR.13 (1951)’; ‘Statement of Baron van Boetzalaer
(Netherlands), UN Doc. A/CONF2/SR.35 (1951)’; ‘Statement of Philon (Greece), UN Doc. A/CONF2/
SR.35 (1951)’; ‘Statement of Hoare (UK), Conference of Plenipotentiaries, UN Doc. A/CONF2/
SR.35 (1951)’; ‘Statement of Zutter (Switzerland), UN Doc. A/CONF2/SR.35 (1951)’; During WWII,
Australia was faced with thousands of refugees from Indonesia, the Pacific Islands, New Guinea and the
Malay Peninsula and the Australian delegate was influenced by the fact that the phrase should be given
a wide interpretation, ‘Statement of Shaw (Australia), UN Doc. A/CONF2/SR.35 (1951)’; Goodwin-Gill
(n 3) 193, 196, 217–18.

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1.3.1 Are asylum seekers required to ‘come directly…’?

1.3.1.1 Background
The importance of the background to this phrase has been emphasised by both Hathaway and
Goodwin-Gill who have linked its meaning to the French position in the travaux préparatoires
and the effect of the 1967 Protocol. There were various changes to article 31(1) during the
drafting process.51 In the first three drafts, there was no reference to the ‘coming directly…’
phrase.52 The French amendment introduced the idea of ‘coming directly…’ at a late stage.53
The French concern to exclude those who had already been recognised as refugees by a state
or who had obtained a form of permanent protection has been noted above. France’s second
desire was to limit the application of article 31(1) to those who were refugees as a result of
events occurring before 1 January 1951, thus limiting its effects both temporally and geo-
graphically. This ended with the introduction of the 1967 Protocol54 which provided the first
global refugee definition applicable to all states rather than a definition which depended on the
acceding state.55 It therefore applied article 1 globally to refugees by virtue of events occurring
as a result of events after 1 January 1951.56

1.3.1.2 Debates
Goodwin-Gill has clearly stated, ‘Refugees are not required to have come directly from
their country of origin’ and ‘the real question is whether effective protection is available for
the individual in that country’.57 This clear statement of the legal position is undermined by
the observations of other commentators to the extent that they suggest that the nature of the
route, the length of transit or the number of countries transitted is significant. Grahl-Madsen

51
1st draft (art 24[2]), UN ECOSOC, ‘No Ad Hoc Committee - Memorandum by the Secretary-General,
3 January 1950, E/AC.32/2’; 2nd draft (art 24[2]), UN ECOSOC, ‘Ad Hoc Committee on Statelessness
and Related Problems, Decisions of the Committee on Statelessness and Related Problems (3 February
1950), E/AC.32/L.28’; 3rd draft (art 26[1]), UN ECOSOC, ‘Ad Hoc Committee, Draft Convention
on Refugees: Decisions of Working Group, 9 February 1950, E/AC.32/L.32’; UNGA, ‘Texts of Draft
Convention and Protocol: Note by the Secretary-General, 12 March 1951, A/CONF.2/1’.
52
There were a number of proposed amendments, none of which were agreed, by Pakistan which
suggested exemption should be a matter of state discretion, UNGA, ‘Conference of Plenipotentiaries.
Comments of Governments on Draft Refugee Convention – Pakistan, 11 June 1951, A/CONF.2/6
Add.1’; Columbia, which proposed that a state might grant ‘territorial asylum’ because granting asylum
was not a duty on states. The amendment was withdrawn ‘Statement of Giraldo-Jaramillo (Columbia),
UN Doc. A/CONF.2/SR.19 (1951)’; ‘COP: Thirteenth Meeting’ (n 4); Austria’s amendment to disapply
article 31(1) in relation to a refugee against whom a judicial or administrative expulsion or residence
order had been issued by the state in question was not agreed by the Conference, UNGA, ‘Draft
Convention. Austria: Amendment to Article 26, 9 July 1951, A/CONF.2/58, 1951’.
53
UNGA, ‘Draft Convention. France: Amendment to Article 26, 10 July 1951, A/CONF.2/62,
1951’; ‘Statement of Rochefort (France), UN Doc. A/CONF2/SR.35 (1951)’ The text was adopted by 19
votes with four abstentions; ‘Refugee Convention 189 UNTS 137’ (n 2).
54
The Protocol was initiated by ten African countries and Pakistan, ‘GA Resolution A/RES/21/2198
(Protocol Relating to Status of Refugees), 16 December 1966’; ‘ECOSOC Resolution E/RES/1186 (XLI)
(Annual Report of the UNHCR...), 18 November 1966’.
55
UNHCR, Handbook (n 12) para 8; ‘Protocol Relating to the Status of Refugees 606 UNTS 267’.
56
‘GA Resolution 2039 (XX) (Reports of the UNHCR) 7 December 1965’; and ‘GA Resolution
2040 (XX) (Assistance to Refugees in Africa), 7 December 1965’ refer to the increasingly universal
character of refugees.
57
Goodwin-Gill (n 3) 194, 217–18.

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has stated that article 31(1) is as applicable to a refugee who crosses the frontier ‘direct’
from a country where she or he is threatened with persecution as also to the refugee, who is
‘a seaman, a passenger or a stowaway’ and who uses the first opportunity to jump ship, even
if this is not the ship’s first port of call in a country of refuge, as the refugee can be described
as coming ‘directly’ in the sense that she is coming ‘without [undue] delay’. Weis has noted
that article 31(1) includes those who transit an ‘intermediate country for a short time without
receiving asylum there’.58
It seems reasonably clear that the Conference negotiators intended to include those refugees
who, in the words of the UNHCR delegate ‘entered a country after transit through a second
country in which [she or he] had succeeded in hiding or which had refused him refuge’.59
Grahl-Madsen has observed that those who wanted a more liberal interpretation had to give
in to those delegates whose main concern was to protect states ‘against an influx of refugees
entering clandestinely from intermediate countries’.60 However, to the extent that this might
indicate a restricted meaning to the phrase ‘coming directly…’, this would seem to be a mis-
reading as it does not take into account the consensus of the negotiators. The working papers
reveal that the consensus was that the ‘coming directly…’ phrase was intended to mean that
only those who had no reason to use unlawful methods because they had been granted perma-
nent protection would be unable to benefit from the protection of article 31(1) if they subse-
quently moved to a country using unlawful means. Nor does Grahl-Madsen’s observation take
into account the fact that France wanted to limit refugee movements to those occurring as the
result of events before 1 January 1951 rather than to limit the provision more generally.
Noll has argued that the ordinary meaning of the phrase ‘coming directly…’ is ‘not suf-
ficiently clear yet’.61 He notes the context in which article 31(1) must be interpreted which
include the extension of travel, immigration and border control techniques and domestic legis-
lation which has had an impact on what he notes as the ‘relevance of the historical approach to
the interpretation’ of article 3162 as well as the introduction of the 1967 Protocol. Nevertheless,
he has observed that article 31(1) does not bind the asylum seeker in his or her choice of where
to file an asylum claim63 reflecting what was stated in Adimi64 and has concluded that what is
important is whether or not the refugee receives protection from a state.
The phrase ‘coming directly…’ is said to apply to those in transit or who are unable to find
‘effective protection’ in the countries to which they fled;65 it denotes no strict time limit and
each case must be judged on its merits.66 The court in Adimi referred to three ‘touchstones’
by which ‘coming directly…’ might be measured, the length of stay in the intermediate
country, the reasons for delaying there (even a substantial delay in an unsafe third country
being reasonable were the time spent trying to get the means to travel on) and whether or not
the refugee sought or found there protection de jure or de facto from the persecution they

58
Weis (n 6) Commentary on art 31(1).
59
‘van Heuven Goedhart (UNHCR)’ (n 19); Goodwin-Gill (n 3) 218–19.
60
‘Rochefort (France)’ (n 53).
61
Noll (n 3).
62
Ibid., 1254.
63
Ibid.
64
Adimi (n 39).
65
Goodwin-Gill (n 3) 218–19; UNHCR, ‘Advisory Opinion’ (n 3).
66
Adimi (n 39); Goodwin-Gill, ibid.

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were fleeing.67 Further factors to consider include the intention of the asylum seeker to reach
a particular country of destination, for instance, for family reunification68 or historical, cultural
and linguistic reasons.69

1.3.2 ‘present themselves to the authorities without delay’

Those who have not brought themselves to the attention of the authorities but have been, for
example, stopped by the police after a long time in a country are generally excluded from
the ambit of article 31(1) (subject to there being a good reason for the delay70). There is no
requirement for an exonerating act71 (although the voluntariness of the act must be considered
an exonerating circumstance).72 Importantly, the asylum seeker who has not had a chance to
seek regularisation of his or her status should not lose the protection of article 31.73 If asylum
seekers find their way to the capital or another major city and present themselves to the
authorities there, they have met the requirement.74 Grahl-Madsen noted that the same should
apply if they were unsuccessful, but could prove that such was their intention. If the time spent
in hiding or en route is not unreasonable in view of the particular circumstances (because,
for example, they are in a lorry or shipping container), presenting themselves should still be
considered as ‘without delay’. Smuggled migrants who are intercepted in the territorial waters
of their destination state are protected by article 31(1).75
Various factors ought to be taken into account when assessing ‘without delay’ such as access
to legal advice,76 fear of authority figures due to their experiences, language barriers, advice
from agents, the fear of immediate removal to the country of feared persecution, reunion
with family members first,77 age and any mental deficiency.78 No strict time limit should be
mechanically applied to the phrase ‘without delay’ and it is a matter of fact and degree which
depends on all the circumstances.79
Cases where the phrase has been applied so as to deprive asylum seekers of protection
include In re Ouakli and others80 and Arbaoui.81 These cases may be contrasted with Re

67
Adimi (n 39).
68
Goodwin-Gill (n 3) 218.
69
Richard Dunstan, ‘Playing Human Pinball. The Amnesty International United Kingdom Section
UK Home Office Report on “Safe Third Country” Practice’ (1995) 7 Int’l J Refugee L 606, 607; The
Netherlands representative had misgivings because draft art 31(1) seemed to exclude the possibility of
a refugee being allowed to enter another country where a member of his family was sick, see ‘Baron van
Boetzalaer (Netherlands)’ (n 50).
70
Ministry of the Interior v Felicitas LJ [1982] 86 ILR 504.
71
Adimi (n 39).
72
Grahl-Madsen, Commentary (n 3).
73
Ibid.
74
Ibid.
75
Hathaway (n 7) 391; Gallagher and David (n 4) 166.
76
Goodwin-Gill (n 3) 219.
77
Ibid.
78
R v H [2008] EWCA Crim 3117.
79
UNHCR, ‘Advisory Opinion’ (n 3); Adimi (n 39); Landgericht (Regional Superior Court),
Muenster, Fed Rep Of Germany LG Muenster Ns 39 Js 68886 10888 20 Dec 1988; Goodwin-Gill (n 3)
217.
80
In re Ouakli, Abdi and Zaouche (Belgium, Court of Cassation) [1960] 31 ILR 327, 327–8.
81
Arbaoui v Minister of Justice (Belgium, Conseil d’Etat) [1961] 31 ILR 331.

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Gonzales,82 Felicitas LJ83 and R v H.84 In Felicitas LJ85 the Spanish Supreme Court concluded,
in a case concerning the denial of refugee status, that the fact that aliens had not made an appli-
cation for refugee status earlier could not lead, of itself, to a denial of refugee status ‘provided
the aliens allege well-founded reasons for their late application.’ The Court noted that this
approach was in accordance with article 31(1).

2. POINT OF VIEW

Article 31(1) is an important principle of non-penalisation which often suffers an overly

restrictive interpretation. Although the penalisation or prosecution of asylum seekers and
refugees is achieved via administrative or criminal law, this criminal law dynamic tends to
be ignored in international refugee law, whereas in criminal law, article 31(1) is remarkable
by its absence from academic writings on the criminal law. There is limited criminological
engagement with article 31(1) most notably by Aliverti86and criminal law writings by some
practitioners.87
My PhD research on article 31(1) in the context of England and Wales included analysis of
over 100 cases of asylum seekers convicted of offences of unlawful entry and presence without
any or inadequate reference to article 31(1). It demonstrated the necessity for clarity in under-
lining the importance of protection when interpretating article 31(1).88 There are a number of
areas of concern. First, as has already been noted, there is no exhaustive list of offences to
which article 31(1) is applicable. The term ‘entry or presence’ includes offences involving
the entry to a country using a false passport or offences involving presence where an asylum
seeker is stopped in transit on his or her way elsewhere.89 A refugee who arrives in a state in
the back of a lorry, or on a state’s shores or walks through the Channel Tunnel falls within the
ambit of article 31(1). In France in the 1930s, refugees were penalised with prosecution and
imprisonment because they failed to obey expulsion orders triggered by the commission of

82
Re Gonzales (France, Tribunal correctionnel of the Seine) [1963] 44 ILR 147.
83
Felicitas LJ (n 70).
84
R v H (n 78).
85
Felicitas LJ (n 70).
86
Aliverti (n 31); see also Gary Christie, ‘Prosecuting the Persecuted’ (Scottish Refugee Council
2016).
87
Richard Dunstan, ‘Breaches of Article 31’ (1998) 10 Int’l J Refugee L 205; Richard Thomas, ‘Case
Comment. R v Mateta’ (2013) 27 JIANL 355; Yewa Holiday, ‘Penalising Refugees’ http://​eulawanalysis​
.blogspot​.co​.uk/​2014/​07/​penalising​-refugees​-when​-should​-cjeu​.html accessed 19 July 2014; Colin Yeo,
‘Solicitors Who Failed to Advise Refugee of Defence to Illegal Prosecution Referred to SRA’ https://​
www​.freemovement​.org​.uk/​solicitors​-who​-failed​-to​-advise​-refugee​-of​-defence​-to​-illegal​-prosecution​
-referred​-to​-sra/​accessed 21 July 2016; Yewa Holiday, ‘Syrian Asylum Seekers without Passports
to Appeal UK Convictions’ http://​thejusticegap​.com/​2015/​04/​syrian​-asylum​-seekers​-without​-passports​
-to​-appeal​-uk​-convictions accessed 18 July 2016; Dan Bunting, ‘S31 Defence for Asylum Seekers
- a Practical Guide’ https://​immigrationoffences​.org/​2015/​07/​29/​s31​-defence​-for​-asylum​-seekers​-a​
-practical​-guide/​accessed 21 July 2016.
88
Holiday, ‘Article 31(1)’ (n 44).
89
Adimi (n 39).

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criminal offences.90 These cases were the catalyst for the drafting of article 31(1).91 However,
similar ‘unlawful presence’ cases such as asylum seekers in the UK who have failed to coop-
erate in their own deportation are not analysed in terms of article 31(1).92
Secondly, commentators seem hesitant to conclude unambiguously that article 31(1) applies
to asylum seekers without linking this to the refugee determination procedure. It should be
noted, as Gil-Bazo has analysed, that the concept of asylum is wider and older than the 1951
Refugee Convention.93 If article 31(1) is to be applied so as to protect refugees, the benefit
of article 31(1) should also be accorded to those who are not ultimately accorded refugee
status under the Convention but are, for example, granted subsidiary protection under the EU
Qualifications Directive or protection under the OAU Convention or because the person has
suffered serious human rights violations or asylum in accordance with a state’s constitution.
The differences between states in determining who is or is not a refugee, state inefficiency in
reaching competent and timely decisions coupled with the declaratory nature of the refugee
determination process point to the need to apply article 31(1) to all asylum seekers seeking
international protection, not ony those eventually found to be Convention refugees by a state.
Support for this is to be found in the working papers. The consensus of the negotiators was that
article 31(1) was intended to exclude only those who had obtained some form of permanent
protection and who then went on to commit offences of unlawful entry and presence. The only
group of asylum seekers who are excluded from article 31(1) protection are those who fall
outside its terms, for example, those who remain on a territory for months without aproaching
the authorities (although this is subject to good reason94) or those who have in fact been recog-
nised as refugees elsewhere.
A third point is that academic writings have not considered article 31(1) from the perspec-
tive of the ordinary criminal law or domestic law. The prohibition against penalties and there-
fore of prosecution in article 31(1) is a limiting principle on the criminal law or a principle of
non-criminalisation. This stance therefore takes article 31(1) to be a bar to or exemption from
prosecution. Conceiving of article 31(1) as a defence places the onus of refugee protection on
the refugee when it is the state which is responsible for refugee protection. It also weakens the
presumption against prosecution. A state must ensure that circumstances which might deprive
article 31(1) of its efficacy as a principle of non-penalisation are eliminated. 95
Commentators have argued that prosecution does not amount to a penalty where the prose-
cution is adjourned to await the refugee determination.96 If this is meant to link the question of
penalty to the question of whether a person is a Convention refugee, it goes too far as article

90
Raymond Fatou, ‘Note Sur Le Problem Des Étrangers En France, et Specialement Sur L’inefficacité,
Les Inconvénients et Les Dangers Des Mesures D’expulsion Non Suives D’exécution Effective’ (1934) 1
Nouvelle revue de droit international privé 143; Raymond Fatou, ‘Le Problem Soulevé Par Le Presence
En France Des Étrangers Indésirables’ (1936) 3 Nouvelle revue de droit international privé 263;
Trachtenberg, ‘L’expulsion Des Apatrides’ (1936) XVII Revue de droit international et de législation
comparée 552; These cases are discussed in Holiday, ‘Article 31(1)’ (n 44).
91
UN ECOSOC, ‘A Study on Statelessness’ [1949] E/1112, E/1112/Add.1.
92
E.g., R v Masoud Tabnak [2007] EWCA Crim 380.
93
María-Teresa Gil-Bazo, ‘Asylum as a General Principle of International Law’ (2015) 27 Int J
Refugee L 3.
94
Felicitas LJ (n 70).
95
Goodwin-Gill (n 3) 218.
96
Hathaway (n 7).

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31(1) applies to asylum seekers and therefore applies to all those who require international
protection. If Hathaway is merely stating that the asylum claim is prior to any prosecution
then this supports this author’s argument that the criminal law is in this way limited by the
effect of international refugee law. The circumstances noted by commentators which result in
prosecution becoming a penalty can be expanded to include situations where there is a delay
in the refugee determination which means that prosecution occurs before the asylum claim has
run its course.97 Prosecution would also amount to a penalty where there is a failure to address
the individual circumstances of the asylum seeker, for example, as a result of a policy holding
a particular country to be safe or deciding that an asylum seeker may only benefit from article
31(1) where they have been in transit for a specified period or where the transit is linked to
specific circumstances;98 where there is a failure to interpret article 31(1) in a flexible way
which gives effect to its protective function and which takes account of the way in which
refugees often have to travel in their flight from persecution; or interpreting article 31(1)
in a way which would deprive asylum seekers of any protection, for example, by requiring
asylum seekers to act in the same way as the ordinary traveller;99 a large number of guilty
pleas suggesting a policy of prosecuting without considering the refugee context would also
transform prosecution into penalty.100
A fifth point is that the crucial question for article 31(1) purposes is not the type of journey
or the number of countries transitted but whether or not the asylum seeker has obtained pro-
tection. Article 31(1)’s importance lies in its concern about whether the refugee has found
protection101 and does not seek to limit the kinds of journeys made by refugees in their flight
from persecution. The analysis provided by Gallagher and David is therefore wrong to the
extent that it focuses on journeys ‘involving multiple movements’ rather than whether or not
the refugee was able to obtain protection in transit.102 While some argue that refugee journeys
have become more complex,103 examples from the travaux préparatoires suggest that they
were complex during WWII.104 Further, many of the ‘border control techniques’, such as the
introduction of passports and restrictive visa practices, are not new.105 It is not the extension

97
This was the case in all the CCRC cases considered in Holiday, ‘Article 31(1)’ (n 44).
98
Asfaw (n 46); Mateta (n 46).
99
Holiday, ‘Article 31(1)’ (n 44).
100
This was a feature of all but one of the CCRC cases in ibid.; as well as cases from the 1990s, such
as R v Osmanovic [1997] EWCA Crim J1106-7; R v Osman [1999] 1 Cr App RS 230; Singh (Daljit)
[1999] 1 Cr App RS 490; and Adimi (n 39); and also Mateta (n 46); and R v YY and Nori [2016] EWCA
Crim 18.
101
Goodwin-Gill (n 3) 218, para 4.
102
Gallagher and David (n 4) 166–7.
103
See Noll (n 3); and Gallagher and David (n 4). Noll nevertheless correctly emphasises that the real
question is whether effective protection is available for the refugee in a particular country.
104
‘van Heuven Goedhart (UNHCR)’ (n 19); See also Holocaust Encyclopaedia (US Holocaust
Memorial Museum), ‘Escape from German-Occupied Europe’ http://​www​.ushmm​.org/​wlc/​en/​article​
.php​?ModuleId​=​10005470 accessed 28 January 2016 which states that between 1933 and 1939 German
and Austrian Jews fled to various countries including France, Belgium, the Netherlands, Denmark,
Czechoslovakia and Switzerland and after 1939, when escape became more difficult, to Spain, the US
and South America. Between 193–941, Polish Jews fled to the Soviet Union and eastward into the Asian
parts of the USSR.
105
John Torpey, The Invention of the Passport. Surveillance, Citizenship and the State (CUP 2000);
John Torpey, ‘Passports’ in A Fahrmeir, O Faron and P Weil (eds), Migration Control (Berghahn Books
2005).

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236 Research handbook on international refugee law

of air travel which affects the journey made but the fact of being a refugee who is dependent
on others for escape. Strengthened border controls have led to an increase in smuggling and
trafficking and the concomitant need for agents on whom refugees are dependent. However,
refugee journeys have always been difficult and dependent on the help of others as the travaux
préparatoires and the prosecution of refugees during the UK in WWII demonstrate.
The overriding principle of protection has resulted in some countries dispensing with the
‘coming directly…’ provision in their national law, for example, Spain.106 In Canada, section
133 IRPA states ‘A person who has claimed refugee protection, and who came to Canada
directly or indirectly from the country in respect of which the claim is made, may not be
charged with an offence’ connected to unlawful entry or presence in IRPA or the Canadian
Criminal Code.107 If article 31(1) was to be interpreted so as to require refugees to ‘come
directly’, the result would be absurd: there would be no protection from penalisation for the
vast majority of refugees who arrive in unlawful ways. It is therefore important to bear in
mind that article 31(1) is a tool for protection and is designed to protect all those who do not
have recognised refugee status or some other permanent protection who commit offences of
unlawful entry and stay (and who come within the remaining article 31(1) criteria).
Factors which militate against protection include poor asylum reception and detention con-
ditions such as in Greece,108 Malta109 and Italy,110 if a person cannot gain protection in a state
(whether or not a signatory to the Convention),111 being in transit, fear of return to the country
of persecution112 or dependence on an ‘agent’.113
Finally, it should be noted that the requirement to present themselves to the authorities
without delay has limited, if any, application to those in transit. Where a refugee is in transit
intending to seeking asylum elsewhere, the period spent in transit should be seen in the light

106
Noll (n 3) 1257, fn 62.
107
The offences relate to document offences, misrepresentation, possession, forgery and identity
fraud under IRPA and the Canadian Criminal Code. The emphasis is the author’s.
108
M.S.S. v Belgium and Greece, App no 30696/09, 21 January 2011, European Court of Human
Rights; Joined Cases C-411/10 NS v Secretary of State for the Home Department and C-493/10 ME
and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform,
European Court of Justice, 22 September 2011; R v Jaddi [2012] EWCA Crim 2565; and Mateta (n 46).
109
In January 2015, a German Administrative Court suspended a transfer to Malta under the Dublin
III Regulation because of shortcomings in reception and detention conditions and procedures. The court
concluded that it could not be sure that asylum seekers would be treated in line with the EU Charter of
Fundamental Rights, the Refugee Convention, or the ECHR, Global Detention Project, The Detention of
Asylum Seekers in the Mediterranean Region (GDP 2015) 9.
110
In April 2015, a Belgium court suspended the return to Italy of Iraqi and Congolese nationals
because it held they could face inhuman and degrading treatment, ibid., 5.
111
In R v Mohammed (n 94), one of the intermediate countries was the UAE which is not a signatory
to the Convention; in R v Mateta (n 46), Mr Bashir was unable to obtain protection in Kenya despite the
country being a Convention signatory; in Case C-148/13 Qurbani Eur Court Justice 17 July 2014, Mr
Qurbani, an Afghani refugee, had travelled via Turkey which although a signatory to the Convention has
maintained the geographic restriction to European refugees; and in R v Shuale-Mongue and Djeumeni
(reference to Isleworth Crown Court by the CCRC) [2012] unreported, Mr Shuale-Mongue was unable to
obtain protection in Ivory Coast because although it was a signatory to the Convention, it was undergoing
a civil war; see also COPFS, ‘Policy on Application of Section 31 of Immigration and Asylum Act 1999
in Respect of Refugees or Presumptive Refugees’ 56.
112
Abwnawar (n 46) where two Iranians who had stayed in Austria for over four years left that
country when their asylum claims were rejected. They were later recognised as refugees in the UK.
113
R v Halima Hussain Ma’Alin [2011] EWCA Crim 3304 [28].

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 The prosecution of asylum seekers 237

of whether the asylum seeker is able to obtain protection. If a person is changing planes in
a transit country,114 is trying to find the means to get to another country, is under the control
of an agent who demands more money before the next leg of the journey or if the person has
to work for a trafficker before being allowed to continue, these are all examples of refugees
in mid-journey. As the person is in transit and has not obtained protection, he or she should
benefit from the principle of non-penalisation.
Article 31(1) is thus a fundamental principle of non-penalisation which provides a broad
and flexible means of individual human rights protection for asylum seekers. It exempts all
asylum seekers from penalisation except those who have found permanent protection from
persecution and therefore have no need to resort to irregular methods of travel.

114
As in Asfaw (n 46).

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15. Australia and the Refugee Convention
Savitri Taylor

INTRODUCTION

It was the deposit by Australia of the sixth instrument of ratification that brought the 1951
Convention relating to the Status of Refugees (Refugee Convention) into force.1 Initially,
however, Australia chose to undertake obligations only in respect of people who became refu-
gees as a result of ‘events occurring in Europe before 1 January 1951’.2 It also made reservations
to articles 17 (wage-earning employment), 18 (self-employment), 19 (liberal professions), 26
(freedom of movement), 28(1) (travel documents) and 32 (expulsion).3 Australia withdrew the
geographic limitation on its obligations and the reservations to all articles except article 28(1)
on 1 December 1967.4 It withdrew this last reservation on 11 March 1971. Although the 1967
Protocol relating to the Status of Refugees5 (Refugee Protocol) had been in force generally since
4 October 1967, Australia only became a party to that treaty on 13 December 1973. It remains
a party to both treaties, but renunciation6 is a possibility that is raised from time to time.7
Australia’s historical wariness about undertaking Refugee Convention8 obligations was, and
its current ambivalent attitude towards them is, rooted in the perception that, by constraining
the sovereign right to exclude non-citizens, they tend to undermine national security and the
nation’s cherished ability to determine for itself the composition of its population.9 The anxi-
eties just identified have long been shared by most of the countries in Australia’s geographic
region resulting in most choosing not to undertake Refugee Convention obligations in the first
place.10 Australia’s contrary historical choice was probably necessitated by its political identi-

1
Opened for signature 28 July 1951, 189 UNTS 137. Under art 43, the treaty entered into force
generally on 22 April 1954, i.e., 90 days after the sixth instrument of ratification was deposited.
2
Refugee Convention, art 1B(1)(a). Choosing option (b) (‘Europe or elsewhere’) would have inter-
fered with Australia’s ability to implement the White Australia policy then in force.
3
Refugee Convention, art 42(1).
4
Refugee Convention, arts 1B(2) and 42(2).
5
Opened for signature 31 January 1967, 606 UNTS 267.
6
Refugee Convention, art 44 and Refugee Protocol, art IX.
7
For example, the option of withdrawal was not ruled out by Scott Morrison, the Liberal/
National Coalition’s Immigration spokesperson, when the Coalition was in Opposition: AAP, ‘Refugee
Convention Withdrawal “An Option”’ The Sydney Morning Herald (19 July 2013) http://​www​.smh​.com​
.au/​federal​-politics/​political​-news/​refugee​-convention​-withdrawal​-an​-option​-20130719​-2q7xs​.html
accessed 25 October 2016.
8
Unless the context otherwise indicates, the term ‘Refugee Convention’ will be used hereinafter as
a shorthand reference to the Refugee Convention and Refugee Protocol.
9
Although the Refugee Convention does not impose an obligation to grant asylum to refugees,
doing so is usually the only practical means of complying with the non-refoulement obligation.
10
As at 23 October 2016, there were 145 states parties to the Refugee Convention and 146 states
parties to the Refugee Protocol. Most of the states which are not parties to either treaty are concentrated
in Asia, the Pacific, and the Middle East, i.e., in Australia’s region.

238
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 Australia and the Refugee Convention 239

fication with the United Nations’ informal Western European and Others Group, which tradi-
tionally has had a strong commitment to human rights. Having made the choice, Australia has
felt unable to disregard completely its Refugee Convention obligations because, as a so-called
‘middle power’, it is aware that its national interests are best served by a ‘rules-based global
order’.11 This chapter deals with the strategies which Australia has employed to minimize the
impact of its Refugee Convention obligations on its ability to implement its immigration and
border control agenda. The chapter’s content is of wider relevance because, in the wake of
the Syrian refugee crisis, commitment to human rights is receding and anxieties about uncon-
trolled population movement are coming to the fore in an increasing number of states parties
to the Refugee Convention and Protocol. These states are looking to Australia for lessons on
how to respond.12

AUSTRALIA’S EXTRA-TERRITORIAL IMMIGRATION AND

BORDER CONTROL ACTIVITIES

To enter and remain in Australia, a non-citizen must have authorization to do so in the form
of a visa which must be obtained in advance of travel to Australia.13 This universal visa
regime, which was introduced by the Migration Reform Act 1992 (Cth),14 is the foundation of
Australia’s overall immigration and border control strategy. The Department of Immigration
and Border Protection (DIBP) keeps statistics on the characteristics of people who overstay
their visa and/or apply for a permanent visa after arrival in Australia. Using these statistics, it
creates a list of risk factors against which applicants for visitor visas and other temporary visas
must be assessed. If an applicant is affected by a risk factor their chances of being granted
a visa are reduced. Among other things, this means that potential asylum seekers are unlikely
to be granted visas for travel to Australia. The remainder of Australia’s immigration and
border control activities are directed at dealing with individuals who attempt to travel to, enter,
and/or remain in Australia without a visa.
Since the early 1990s there have been many activities involving Australian officials and/
or Australian funding and directed at disrupting or deterring irregular movement taking place
in countries throughout the Middle East, Asia and the Pacific, including refugee source coun-
tries.15 For example, Australian Federal Police and Australian Border Force officers posted in

11
See for example, Department of Defence (Cth), ‘Defence White Paper 2016’ (2016), http://​www​
.defence​.gov​.au/​whitepaper/​Docs/​2016​-Defence​-White​-Paper​.pdf accessed 25 October 2016.
12
Antony Loewenstein, ‘Australia's Refugee Policies: A Global Inspiration for All the Wrong
Reasons’ The Guardian (18 January 2016) https://​www​.theguardian​.com/​commentisfree/​2016/​jan/​18/​
australias​-refugee​-policies​-a​-global​-inspiration​-for​-all​-the​-wrong​-reasons; ‘Austria’s Foreign Minister
Says Migrants to EU Should Be Kept on Islands, Following Australia’s Example’ Straits Times (5 June
2016) http://​www​.straitstimes​.com/​world/​europe/​austrias​-foreign​-minister​-says​-migrants​-to​-eu​-should​
-be​-kept​-on​-islands​-following accessed 25 October 2016.
13
Migration Act 1958 (Cth) s42(1). An exception is made for New Zealanders who can get a Special
Category Visa by presenting their New Zealand passport to an immigration official upon arrival in
Australia.
14
This Act, which also instituted Australia’s mandatory indefinite immigration detention regime,
was an amending Act to the Migration Act and came into force on 1 September 1994.
15
DIBP, ‘Annual Report 2015–16’ (2016) 55; Savitri Taylor, 'Australia's Border Control and
Refugee Protection Capacity Building Activities in the Asia-Pacific Region' in Alperhan Babacan

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240 Research handbook on international refugee law

Sri Lanka provide information16 and other operational support to their Sri Lankan counterparts
with a view to preventing the irregular departure of Sri Lankan nationals17 and without regard
to whether they may be trying to flee persecution there.
On 19 December 2013,18 Australia reinstituted19 a policy of detecting and intercepting
would-be unauthorized maritime arrivals (UMAs),20 if possible outside Australian territorial
waters. Between 19 December 2013 and 17 October 2016 Australia dealt with 29 boats carry-
ing 740 passengers.21 In most cases, the most recent country of departure was a transit country
(usually Indonesia) and in all but one of those cases the passengers were turned back to the
transit country.22
In cases where intercepted boats have come directly from the passengers’ country of origin,
screening interviews are conducted on the water to identify individuals with prima facie
protection claims. According to the Australian Government, the interviews are conducted ‘by
trained protection officers supported by independent, qualified interpreters [and inform] deci-
sions by senior officers of [DIBP]’.23 Departmental officers have testified that the interviews
run for between 40 minutes and two hours24 and involve ‘[q]uite a few questions’.25 There

and Linda Briskman (eds), Asylum Seekers: International Perspective on Interdiction and Deterrence
(Cambridge Scholars Publishing, 2008).
16
‘Operation Sovereign Borders—Joint Agency Task Force Update’ (Media Release, 7 March 2014)
http://​newsroom​.border​.gov​.au/​channels/​Operation​-Sovereign​-Borders/​releases/​operation​-sovereign​
-borders​-joint​-agency​-task​-force​-update​-8 accessed 25 October 2016.
17
Angus Campbell, Press Conference, Sydney (Transcript, 18 October 2013) http://​webarchive​
.nla​.gov​.au/​gov/​20140128081112/​http://​www​.minister​.immi​.gov​.au/​media/​sm/​2013/​sm208911​.htm;
Minister for Immigration and Border Protection, Australian Federal Police Commissioner and Acting
Commander of Operation Sovereign Borders Joint Agency Task Force, Press Conference, Sydney
(Transcript, 11 October 2013) http://​webarchive​.nla​.gov​.au/​gov/​20140212140511/​http://​www​.customs​
.gov​.au/​site/​131011transcript​_operation​-sovereign​-borders​.asp accessed 25 October 2016.
18
Simon Benson, ‘Revealed: The Secret Mission That Stopped the Asylum Boats from Entering
Australia’ Daily Telegraph (18 September 2014) http://​www​.dailytelegraph​.com​.au/​news/​nsw/​
revealed ​ - the ​ - secret ​ - mission ​ - that ​ - stopped ​ - the ​ - asylum​ - boats​ - from​ - entering​ - australia/​ n ews​ - st​ o ry/​
3d804c2c67133b96b2eb4203a7c86f65 accessed 25 October 2016.
19
A similar policy was in place from October 2001 to November 2003.
20
A person is classified as an UMA if they entered Australia by sea and without a valid visa at an
‘excised offshore place’ or, if after 1 June 2013, at any other place (Migration Act, s 5AA(1)). A person
is also classified as an UMA, if born in Australia’s migration zone or in a regional processing country to
an UMA parent, unless the person is an Australian citizen at birth through their other parent (ss 5AA(1A)
and (1AA)).
21
Senate Legal and Constitutional Affairs Legislation Committee (SLCALC), Proof Committee
Hansard (Supplementary Estimates), 17 October 2016, 45 (Major General Bottrell).
22
The one case involved 157 Sri Lankans who departed from India. They were intercepted in late
June 2014 and were taken to Nauru on 2 August 2014: DIBP, ‘Annual Report 2014–2015’ (2015) 209;
Scott Morrison, ‘Transfer of 157 IMAs from Curtin to Nauru for Offshore Processing’ (Media Release,
2 August 2014) http://​webarchive​.nla​.gov​.au/​gov/​20141215053416/​http://​www​.minister​.immi​.gov​.au/​
media/​sm/​2014/​sm216855​.htm accessed 25 October 2016.
23
Peter Dutton, ‘Minister - People Smuggling Venture Returned to Sri Lanka’ (Media Release,
19 February 2015) http://​webarchive​.nla​.gov​.au/​gov/​20150310062002/​http://​www​.minister​.immi​.gov​
.au/​peterdutton/​2015/​Pages/​People​-smuggling​-venture​-returned​-to​-Sri​-Lanka​.aspx accessed 25 October
2016.
24
SLCALC, Official Committee Hansard (Estimates), 25 May 2015, 117 (Mr Manthorpe).
25
SLCALC, Official Committee Hansard (Additional Estimates), 23 February 2015, 138 (Mr
Kukoc).

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 Australia and the Refugee Convention 241

is evidence to suggest that this official description of the process is somewhat airbrushed.
A passenger on a boat intercepted in late June 2014 has said his interview, which ran for 30 to
45 minutes, was conducted over the phone, that audibility was poor, and that the phone dis-
connected ten to 15 times with reconnection taking up to five minutes each time.26 A passenger
on another boat intercepted in May 2016 has said he was only asked his name, where he had
come from and why he had left, was not given an opportunity to present his asylum request,
and was refused legal assistance even though he requested it.27 Any person who is screened
out, i.e., found not to have prima facie protection claims, is handed over to country of origin
authorities. Any person who is screened in is supposed to be transferred to one of the regional
processing centres which Australia has established in Nauru and Papua New Guinea pursuant
to Memoranda of Understanding with those countries.28
Since 19 December 2013, 113 Vietnamese passengers from three boats have been taken
back to Vietnam29 and 105 passengers from six boats have been taken back to Sri Lanka.30
The evidence suggests that only two people have ever been screened in. One passenger out
of 41 arriving on a boat from Sri Lanka in late June 2014 was screened in but elected to be
repatriated with the others.31 Another single passenger out of 38 arriving by boat from Sri

26
Dave Corlett, ‘Sinhalese Asylum Seekers' On-Water Claims Accepted by UN’ The Saturday Paper
(31 January 2015) http://​www​.thesaturdaypaper​.com​.au/​news/​politics/​2015/​01/​31/​sinhalese​-asylum​
-seekers​-water​-claims​-accepted​-un/​14226228001441​#​.VUbJTY6qpBc accessed 25 October 2016.
27
Ben Doherty, ‘Asylum Seeker Forcibly Returned by Australia Says His Refugee Claim Was
Ignored’ The Guardian (18 May 2016) http://​www​.theguardian​.com/​australia​-news/​2016/​may/​18/​
asylum​-seeker​-forcibly​-returned​-by​-australia​-says​-his​-refugee​-claim​-was​-ignored accessed 25 October
2016.
28
Memorandum of Understanding between the Republic of Nauru and the Commonwealth of
Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (3 August
2013); Memorandum of Understanding between the Government of the Independent State of Papua New
Guinea and the Government of Australia, relating to the Transfer to, and Assessment and Settlement in,
Papua New Guinea of Certain Persons, and Related Issues (6 August 2013). These replaced previous
MoUs signed in late August and early September 2012. The arrangements themselves were a variation of
arrangements, colloquially referred to as the Pacific Solution, that Australia had in place with the same
two countries between September/October 2001 and February 2008.
29
‘Operation Sovereign Borders Monthly Update: April 2015’ (Media Release, 5 May 2015) http://​
newsroom​.customs​.gov​.au/​channels/​media​-releases/​releases/​operation​-sovereign​-borders​-monthly​
-update​-april; Paige Taylor, ‘Failed Vietnam Boat Refugees Face Jail’ The Australian (28 March 2016)
http://​www​.theaustralian​.com​.au/​news/​briefs​-nation/​failed​-vietnam​-boat​-refugees​-face​-jail/​news​-story/​​
992d57d3bec420b172dffe3ecee58f24; Operation Sovereign Borders Monthly Update: June 2016 (Media
Release, 28 July 2016) http://​newsroom​.border​.gov​.au/​channels/​media​-releases/​releases/​operation​
-sovereign​-borders​-monthly​-update​-june​-3 accessed 25 October 2016.
30
Scott Morrison, ‘Australian Government, Returns Sri Lankan People Smuggling Venture’
(Media Release, 7 July 2014) http://​webarchive​.nla​.gov​.au/​gov/​20140801014043/​http://​www​.minister​
.immi​.gov​.au/​media/​sm/​2014/​sm216152​.htm; Scott Morrison, ‘People Smuggling Venture Returned
to Sri Lanka (Media Release, 29 November 2014) http://​webarchive​.nla​.gov​.au/​gov/​20141215053228/​
http://​www​.minister​.immi​.gov​.au/​media/​sm/​2014/​sm219651​.htm; Dutton (n 23); ‘Asylum Seeker Boat
Turned Back to Sri Lanka: Dutton’ SBS News (23 February 2016) http://​www​.sbs​.com​.au/​news/​
article/​2016/​02/​23/​asylum​-seeker​-boat​-turned​-back​-sri​-lanka​-dutton; Peter Dutton, Press Conference,
Brisbane (Transcript, 9 May 2016) http://​www​.peterdutton​.com​.au/​MediaHub/​MediaReleases/​tabid/​
75/​articleType/​ArticleView/​articleId/​604/​Press​-Conference​-​-Brisbane​.aspx; Peter Dutton, People
Smuggling Boat Returned to Sri Lanka (Media Release, 17 August 2016) http://​www​.minister​.border​
.gov​.au/​peterdutton/​Pages/​people​-smuggling​-sri​-lanka​.aspx accessed 25 October 2016.
31
Scott Morrison, ‘Australian Government Returns Sri Lankan People Smuggling Venture’, ibid.

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242 Research handbook on international refugee law

Lanka in mid-November 2014 was also screened in and was to be transferred to a regional
processing country.32 The fact that no transfers to regional processing centres have taken place
since August or November 201433 despite several take backs to Sri Lanka and Vietnam occur-
ring during the same period supports the inference that no one on any of those boats has been
screened in. That does not inspire a great deal of confidence in the reliability of the screening
process. The case of two Sri Lankan families repatriated by Australia after the boat on which
they were travelling was intercepted in late June 2014 provides another reason for doubting
the reliability of the screening process. The two families, consisting of nine individuals, subse-
quently fled to Nepal where they were recognized as refugees by UNHCR.34
The interception activities just described are rendered domestically lawful by the Maritime
Powers Act 2013 (Cth). Under the Act, Australian officials have a range of powers, which can
be exercised for the purpose (among others) of investigating and preventing contravention
of Australian law, including migration law. They include wide powers to detain and search
vessels and the people onboard and to take them to a place within or outside Australia. Since
the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the
Legacy Caseload) Act 2014 (Cth) (RALC Act) in December 2014, the Maritime Powers
Act has expressly provided in relation to both the authorization of the exercise of the powers
and their exercise that inconsistency with Australia’s international legal obligations cannot
result in invalidation.35 The RALC Bill Explanatory Memorandum insists, however, that the
Australian Government ‘takes its international obligations seriously’ and that the amendment
‘merely reflects the intention that the interpretation and application of such obligations is, in
this context, a matter for the executive government’ rather than the judiciary.36

Critical Analysis

By definition, ‘refugees’ are individuals who are outside their country of origin. Therefore, the
most effective strategies that Australia has in place for getting around its Refugee Convention
obligations are the visa refusals and disruption activities which prevent people fleeing their
countries of origin in the first place.37
From an immigration and border control perspective the next best way of overcoming the
obstacle of the Refugee Convention is to implement policies which take advantage of grey

32
Scott Morrison, ‘People Smuggling Venture Returned to Sri Lanka’ (n 30).
33
On 17 October 2016, the Secretary of DIBP testified that no new individuals had been transferred to
a regional processing country for about 2.5 years: SLCALC, Proof Committee Hansard (Supplementary
Estimates), 17 October 2016, 133. This was clearly incorrect: see n 22.
34
Corlett (n 26).
35
Maritime Powers Act ss 22A and 75A. As far as the Australian legal system is concerned, treaties
are not a direct source of enforceable rights and obligations. Moreover, Australia’s federal and state
parliaments are perfectly free to pass legislation which is inconsistent with Australia’s international legal
obligations, if they make the intention to do so clear enough. (Where legislation is ambiguous, the courts
will presume a parliamentary intention to avoid inconsistency with Australia’s international legal obliga-
tions and resolve the ambiguity accordingly.) Domestic decision makers must apply domestic legislation
regardless of any incompatibility with Australia’s international legal obligations.
36
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014, paras 16–17 and 85–86.
37
See the reasoning in R v Immigration Officer at Prague Airport et al, ex parte European Roma
Rights Centre et al [2004] UKHL 55.

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 Australia and the Refugee Convention 243

areas of law and/or can be implemented without external scrutiny or accountability. Such
policies enable plausible denial of allegations that Refugee Convention obligations have been
breached. For political purposes that is good enough. In relation to all its extra-territorial activ-
ities, Australia’s primary defence is to deny that any Refugee Convention obligations have
extra-territorial application.38 Back in 1951, when there was lack of consensus on whether the
non-refoulement obligation even extended to preventing rejection at the border,39 Australia’s
position would have been entirely orthodox. Today, however, there is not much jurisprudential
support for this position.40 Therefore, Australia tries to ensure that its actions are arguably
lawful even if the extra-territorial application of the non-refoulement obligation were to be
conceded. In transit countries, Australia’s support of disruption and deterrence is designed
to avoid asylum seekers coming within the effective control of Australian agents such that
its Refugee Convention non-refoulement obligation would arguably be engaged. Whether it
has correctly judged the placement of the dividing line in all such situations is, however, con-
testable.41 In the case of maritime interceptions, it is impossible to deny that those intercepted
have come within the effective control of Australian agents, but the existence of the on-water
screening process enables Australia to argue that take backs do not involve refoulement. Turn
backs to transit countries and transfers to regional processing countries also give rise to the
possibility of indirect or even direct refoulement. Australia is relying on its arrangements with
Nauru and Papua New Guinea being a safeguard against indirect refoulement.42 However, in
the case of unilateral turn backs to transit countries, which includes all turn backs to Indonesia,
Australia has no such safeguard in place. The only way that Australia could be assured that it
is not engaging in direct refoulement would be to make a case-by-case assessment of the risk
of a person suffering relevant harm in the transit country or regional processing country and to
refrain from turn back or transfer in appropriate cases. It is unclear whether such assessments
are taking place. The opaqueness of extra-territorial action makes it difficult for those who
take issue with such action to prove or prevent refoulement, as opposed to suspecting and
decrying it. The opaqueness is due in part to the physical difficulty of journalists or anyone
else monitoring what the Australian Government does outside Australia’s borders, especially
at sea. Beyond this, though, the opaqueness is deliberately fostered, for example through the
claims of public interest immunity in response to parliamentary or other efforts to obtain
information about the exercise of maritime powers. A lack of meaningful accountability for
executive action goes hand-in-hand with the lack of transparency and is further reinforced by

38
SLCALC, Proof Committee Hansard (Supplementary Estimates), 18 October 2016, 27 (Senator
Brandis).
39
Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007)
206–8.
40
UNHCR, ‘UNHCR Legal Position: Despite Court Ruling on Sri Lankans Detained at Sea,
Australia Bound by International Obligations’ (Media Release, 4 February 2015) http://​www​.unhcr​
.org/​news/​press/​2015/​2/​54d1e4ac9/​unhcr​-legal​-position​-despite​-court​-ruling​-sri​-lankans​-detained​-sea​
-australia​.html accessed 25 October 2016.
41
See, e.g., Savitri Taylor, ‘Offshore Barriers to Asylum Seeker Movement: The Exercise of Power
without Responsibility?’ in Jane McAdam (ed.), Forced Migration, Human Rights and Security (Hart
Publishing 2008).
42
Pursuant to the Memoranda of Understanding, Nauru and Papua New Guinea have agreed to
consider protection claims made by transferees and to provide protection to those found to be in need of
it.

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legislative provisions such as the one mentioned above which frustrate attempts to challenge
the exercise of maritime powers in the domestic courts.

THE PROTECTION VISA REGIME

Australia does not deny that its Refugee Convention obligations are owed to any person within
its territory who falls within the Convention definition of ‘refugee’, regardless of whether they
have been recognized as such. The principal domestic mechanism that Australia has in place
for giving effect to its Refugee Convention obligations is the protection visa.43 The procedural
and evidentiary rules applying to protection visa applicants (or would-be protection visa appli-
cants) differ according to whether or not they are unauthorized arrivals and also according to
whether or not they are UMAs.44 Among other things, the procedural rules can, in specified
circumstances, prevent asylum seekers from making a valid protection visa application,45
channel them into a fast-track merits review process, or prevent them from obtaining merits
review at all.46 Among other things, the evidentiary rules can, in specified circumstances,
require decision makers to disregard evidence put forward by an applicant47 or to draw adverse
inferences from an applicant’s conduct.48 All of these devices serve an immigration control
objective by keeping down the number of protection visa grants and/or a border control objec-
tive by enabling the quick removal from the country of unauthorized arrivals thereby deterring
others from arriving the same way.
In MIAC v SZQRB,49 the Federal Court of Australia held that, in the circumstances of that
case, the unlawful non-citizen50 whom the government was seeking to remove from the country
could not be removed until there had been an assessment, according to law, of Australia’s
non-refoulement obligations in respect of him. In coming to this decision, the Federal Court
relied on the reasoning in the High Court51 case of Plaintiff M61/2010E v The Commonwealth52
and a series of subsequent cases which took as their starting point the observation that the
overall scheme of the Migration Act seemed designed to ensure compliance with Australia’s
obligations under the Refugee Convention. Individual provisions of the Act were interpreted,
therefore, with that overall scheme in mind.

43
Unauthorized arrivals are only eligible for the grant of a Temporary Protection Visa or a Safe
Haven Enterprise Visa (also a class of temporary protection visa), whereas authorized arrivals are eligi-
ble for the grant of a permanent protection visa.
44
There are about 30 500 UMAs in Australia, the so-called ‘legacy caseload’, who have escaped turn
back, take back and regional processing: SLCALC, Official Committee Hansard (Estimates), 25 May
2015, 67 (Mr Kukoc, DIBP).
45
Migration Act, s 46A, Pt 2 Division 3 Subdivisions AI, AJ and AK.
46
Migration Act, Pt 7AA.
47
See, e.g., Migration Act, s 5J(6).
48
See, e.g., Migration Act, s 423A.
49
[2013] FCAFC 33.
50
Migration Act, s 13(1) provides that ‘a non-citizen in the migration zone who holds a visa that is in
effect is a lawful non-citizen’. Section 13(2) defines another tiny category of lawful non-citizen. Section
14(1) provides that ‘a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful
non-citizen’.
51
The High Court of Australia is at the apex of Australia’s state and federal court hierarchies.
52
[2010] HCA 41.

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 Australia and the Refugee Convention 245

Section 197C was inserted into the Migration Act by the RALC Act for the purpose of
overturning that aspect of the decision in SZQRB. It provides:

(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obliga-
tions in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under
section 198 arises irrespective of whether there has been an assessment, according to law, of
Australia’s non-refoulement obligations in respect of the non-citizen.

The RALC Bill Explanatory Memorandum insists that ‘Australia will continue to meet its
non-refoulement obligations’ and states that the purpose of s 197C is ‘to ensure that the
Parliament is able to control how Australia’s non-refoulement obligations will be implemented
domestically’ by undoing the ‘unintended’ judicial interpretation of s 198.53
Australia first legislated to give effect to its Refugee Convention obligations in the 1980s.
The Migration Act has been amended many times since then. However, until recently what
remained constant was that the Act made express reference to the Refugee Convention when
defining the category of person eligible for the grant of a protection visa (or earlier equiv-
alents). The courts were, therefore, called upon to interpret Australia’s treaty obligations
and looked to rules of treaty interpretation and to international jurisprudence in doing so.54
Amendments made to the Migration Act by RALC Act, Sch 5 have changed the situation by
removing all references to the Refugee Convention.55
One of the four alternative core criteria for the grant of a protection visa of any class is
that the applicant is ‘a non-citizen in Australia in respect of whom the Minister is satisfied
Australia has protection obligations because the person is a refugee’.56 The term ‘refugee’ is
defined by Migration Act section 5H as follows:

(1) For the purposes of the application of this Act and the regulations to a particular person in
Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality – is outside the country of his or her nationality
and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or
herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her
former habitual residence and owing to a well-founded fear of persecution, is unable or
unwilling to return to it.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:

53
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014, paras 1132–1142.
54
MIMIA v QAAH of 2004 [2006] HCA 53.
55
These amendments only apply to protection visa applications lodged on or after 16 December
2014.
56
Migration Act, s 36(2)(a). The alternative criteria are that the applicant is:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom
the Minister is satisfied Australia has protection obligations because the Minister has substantial
grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being
removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer
significant harm(Migration Act, s 36(2)(aa))
or is a member of the same family unit as a person covered by s 36(2)(a) or (aa) (Migration Act, s
36(2)(b) and (c)).

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(a) the person has committed a crime against peace, a war crime or a crime against humanity,
as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United
Nations.

Various elements of the s 5H definition are then further defined by other Migration Act
provisions.
Section 5J specifies requirements that must be met for an applicant to be regarded as having
a ‘well-founded fear of persecution’. Section 5J(1)(a) requires the applicant to have a fear of
being persecuted ‘for reasons of race, religion, nationality, membership of a particular social
group or political opinion’. Section 5J(4) and (5) provide mandatory guidance to decision
makers on what counts as ‘persecution’ and on the connection between the persecution and
the specified grounds required by the phrase ‘for reasons of’. Section 5J(4)(b) provides that
‘the persecution must involve serious harm to the person’ and section 5J(5) gives examples
of serious harm. Section 5J(4)(c) provides that ‘the persecution must involve systematic57 and
discriminatory conduct’. Finally, s 5J(4)(a) provides that a reason or reasons specified in it
must constitute ‘the essential and significant reason [or reasons]’58 for the persecution feared
by the applicant. These subsections replace but are almost identical to section 91R(1) and (2)
(repealed) which were inserted into the Migration Act in late 2001. The only difference is
that section 91R referred to Refugee Convention article 1A(2), while section 5J does not. The
reason section 91R(1) and (2) were inserted into the Migration Act was that the government
of the day was alarmed by some Federal Court decisions which it regarded as setting too low
a threshold on what counted as persecution.59 The purpose of the provision was to restore
what the government considered to be the correct interpretation of Refugee Convention article
1A(2).60
Sections 5K and 5L elaborate on how decision makers must approach cases in which an
applicant claims to fear being persecuted for reason of membership of a particular social
group. Section 91S (repealed), the predecessor of section 5K, was inserted into the Migration
Act in 2001 because the government of the day disagreed with a decision made by the Federal
Court earlier that year. In MIMA v Sarrazola (No 2),61 it was held that a Colombian woman,
who feared being killed by criminals if she did not repay a debt owed to them by her brother,
had a well-founded fear of being persecuted for reason of her membership of a particular
social group, that is, her family. Section 91S reversed the decision in Sarrozola, ‘so far as it
permitted claims of persecution by one family member deriving from persecution of another

57
‘Systematic’ in this context simply means non-random: see, for example, VSAI v MIMIA [2004]
FCA 1602.
58
When interpreting this requirement in the context of s 91R, the courts took the view that the exist-
ence of additional motivating factors for the persecution would not be fatal to a claim so long as a speci-
fied reason was a central, non-minor motivating factor: Administrative Appeals Tribunal Migration and
Refugee Division (AAT MRD), ‘Guide to Refugee Law in Australia Chapter 5: Refugee Grounds and
Nexus’ (September 2016) 9–11.
59
Linda Kirk, ‘Island Nation: The lmpact of International Human Rights Law on Australian Refugee
Law’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition:
Comparative Legal Practice and Theory (Brill Nijhoff 2016) 64–5.
60
Kirk (n 59) 65.
61
[2001] FCA 263.

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 Australia and the Refugee Convention 247

for non-Convention reasons’.62 There is no consensus internationally on whether facts such

as those in Sarrozola fall within Refugee Convention article 1A(2) or not. Some states take
the same position as Sarrozola, but others take the same position as section 91S.63 Section
5L, which has no predecessor, deals with membership of a particular social group other than
family. It specifies that all members of the posited group must share a characteristic (other than
a fear of persecution) that distinguishes the group from society, or that is innate or immutable,
or that is fundamental to identity or conscience. This is consistent with UNHCR’s approach.64
Section 5J(1)(b) provides that for a person’s fear of persecution to be well-founded there
must be a ‘real chance’ that if the person returned to the receiving country they would be
persecuted for one or more of the reasons specified in para (a). The ‘real chance’ test was
first articulated by the High Court in Chan v MIEA65 in the context of interpreting Refugee
Convention article 1A(2). It is a test that is consistent with the international jurisprudence
relating to article 1A(2).66
Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the receiving
country. This paragraph was intended to codify the so-called internal relocation principle
while correcting what the government considered to be an unwarranted judicial softening
of the principle. According to the RALC Bill Explanatory Memorandum, the provision still
allows consideration to be given to whether an identified safe area can be accessed safely.
However, the plain words of the provision do not lend themselves to such an interpretation.67
In this and other respects, the codification puts Australia out-of-step with the practice of most
other states.68
Section 5J(2) provides that ‘a person does not have a well-founded fear of persecution if
effective protection measures are available to the person in a receiving country’. Section 5LA,
which is modelled on the recast EU Qualification Directive of 13 December 2011,69 spells out
exactly what is meant by ‘effective protection measures’.
Section 5J(3) provides that ‘a person does not have a well-founded fear of persecution if the
person could take reasonable steps to modify his or her behaviour so as to avoid a real chance
of persecution in a receiving country’. However, there are some behaviour modifications that
are not expected of an applicant as specified in paragraphs (a), (b) and (c). The provision was
intended to limit the applicability of broad statements of principle in the High Court case of
Appellant S395/2002 v MIMA70 but still falls at the more benign end of state practice relating
to the issue.71

62
STCB v MIMIA [2006] HCA 61 [32] (Gleeson CJ, Gummow, Callinan and Heydon JJ).
63
James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University
Press 2014) 447–9.
64
Kirk (n 59) 83.
65
[1989] HCA 62.
66
Andreas Zimmermann and Claudia Mahler, ‘Article 1A, para. 2’ in Andreas Zimmermann (ed.),
The 1951 Convention Relating to the Status of the Refugees and its 1967 Protocol: A Commentary (OUP
2011) 341–2.
67
AAT MRD, ‘Guide to Refugee Law in Australia Chapter 3: Well-founded Fear’ (June 2016) 24–6.
68
Zimmermann and Mahler (n 66) 450–59.
69
Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10330-10331 (Senator Cash,
Assistant Minister for Immigration and Border Protection).
70
[2003] HCA 71.
71
Zimmermann and Mahler (n 66) 343–5.

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Section 5H(2), which mirrors the language of Refugee Convention article 1F, excludes
a person from being a ‘refugee’, even if they meet the requirements of section 5H(1). Since
2001, the term ‘non-political crime’ has been defined for Australian purposes. The definition,
which is now set out in section 5, used to be set out in section 91T (repealed). The only
difference is that the section 91T definition referred to the Refugee Convention, while the
section 5 definition does not. Section 91T was a legislative response to the decision of the
Federal Court in Singh v MIMA,72 which appeared to leave open the possibility that a crime
might escape characterization as ‘non-political’ if even a minor part of the motivation for
committing it was political. Beyond dealing with the Singh case, however, the statutory defi-
nition of ‘non-political crime’ also deems some offences to be ‘non-political offences’ without
permitting further inquiry. When section 91T was inserted into the Migration Act, UNHCR
expressed disquiet about this approach.73
As well as satisfying a criterion in section 36(2), all protection visa applicants must satisfy
the criteria in sections 36(1B) and (1C).74 Section 36(1C) mirrors the language in Refugee
Convention article 33(2). However, the term ‘particularly serious crime’ in section 36(1C)
is partially defined in section 5M. In summary, offences against Migration Act section
197A (escape from immigration detention) or section 197B (manufacture, possession, etc.
of weapons by immigration detainees) are defined as ‘particularly serious crimes’. So too is
an offence against Australian or foreign law which is a ‘serious drug offence’ or an offence
involving violence against the person or serious damage to property and which is punishable
(or, in the case of a foreign offence, would if it had happened in the Australian Capital Territory
be punishable) by life imprisonment or imprisonment for a maximum term of three years or
more. The intention is to ensure that the crimes specified are characterized as ‘particularly
serious crimes’ regardless of the circumstances in which they were committed. At the time
that the insertion of section 5M’s predecessor into the Migration Act was proposed, UNHCR
voiced serious concerns about this deeming approach.75 As interpreted by the Administrative
Appeals Tribunal, however, it is not enough for exclusion under section 36(1C) that a person
has been convicted of a ‘particularly serious crime’; there must also be reasonable grounds to
consider that the person is a danger to the Australian community.76 Section 36(1B) provides
that a criterion for a protection visa is that the applicant ‘is not assessed by the Australian
Security Intelligence Organisation to be directly or indirectly a risk to security’. This criterion
could be used to refuse a protection visa in circumstances where section 36(1C), reflecting
Refugee Convention article 33(2), could not. The Australian Government has indicated,
however, that, if removal of a person who has been refused a protection visa ‘would amount to

72
[2000] FCA 1125.
73
UNHCR, Submission No. 13 to Senate Legal and Constitutional References Committee, Inquiry
into Migration Legislation Amendment Bill (No. 6) 2001, 18 September 2001, https://​web​.archive​.org/​
web/​20080721024915/​http://​unhcr​.org​.au/​pdfs/​inqbill6​_2001​.pdf accessed 28 October 2016.
74
Protection visa applicants must also meet additional criteria set out in Migration Regulations,
Sch 2. In addition, Migration Act, s 501 gives decision makers the power to refuse a visa application by
a person who ‘does not satisfy the Minister that the person passes the character test’.
75
UNHCR (n 73).
76
AAT MRD, ‘Guide to Refugee Law in Australia Chapter 7: Exclusion and Cessation’ (February
2016) 56.

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 Australia and the Refugee Convention 249

a breach of Australia’s non-refoulement obligations, other case management options would be

put into place until removal could be effected’.77
Section 36(3), which has been in the Migration Act since December 1999, provides:

Australia is taken not to have protection obligations in respect of a non-citizen who has not taken
all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or
permanently and however that right arose or is expressed, any country apart from Australia, including
countries of which the non-citizen is a national.

There are exceptions to the application of subsection (3), which basically say that the subsec-
tion does not apply with respect to a country if sending the applicant to that country would
amount to refoulement. Since not many multiple nationality cases would make it to this stage
of the application process,78 what a decision maker is usually trying to work out is whether
an applicant has ‘taken all possible steps to avail [themselves] of a right to enter and reside
in, whether temporarily or permanently’ in a country of which they are not a national. The
courts are very relaxed about what counts as a ‘right’. Among other things, a ‘right’ does not
have to be legally enforceable.79 Further, the phrase ‘whether temporarily or permanently’
has led the courts to give a broad meaning to the term ‘reside’ though the exact parameters of
the term are still uncertain. In SZRTC v MIBP, Tracey and Griffiths JJ noted that there was
‘an obvious tension between the stability which is suggested by the word “reside” and the
transience implied by the word “temporarily”’ and said that tension had to be resolved on the
facts in each case.80 The exclusion in section 36(3) applies if the decision maker is satisfied
that the applicant ‘has not taken all possible steps to avail [themselves] of’ the right that they
have. The courts have not been prepared to read down the phrase in any way, for example by
construing it to mean ‘all reasonably possible’ steps.81 However, in order to be satisfied that
the applicant has not taken all possible steps, the decision maker has to be satisfied that there
is at least one possible step that the applicant could have taken but has not.82 When justifying
section 36(3) in terms of international law, Australia claims to be applying the so-called safe
third-country principle.83 This is a principle with fuzzy parameters but avoidance of refoule-
ment cannot be the only factor relevant to a decision to send a refugee to a third country
because non-refoulement is not the only obligation that states parties have in respect of refu-
gees under the Refugee Convention nor is it likely that the Refugee Convention would be the
only source of international law obligation applicable in a given case.84

77
Explanatory Memorandum, Migration Amendment Bill 2013, Attachment A (Statement of
Compatibility with Human Rights).
78
Migration Act, Part 2 Division 3 Subdivision AK invalidates a protection visa application made
by a non-citizen with two or more nationalities, unless the Minister for Immigration exercises a personal
and non-compellable power to override the invalidation.
79
MIMAC v SZRHU [2013] FCAFC 91.
80
[2014] FCAFC 43 [27].
81
NBLC v MIMIA, NBLB v MIMIA [2005] FCAFC 272.
82
SZRNT v MIBP [2015] FCCA 765.
83
AAT MRD, ‘Guide to Refugee Law in Australia Chapter 9: Third Country Protection’ (July 2016).
84
Hathaway and Foster (n 63) 39–49.

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Critical Analysis

Reservations aside, all states parties to the Refugee Convention have undertaken the same
obligations. In theory, there must be a single true interpretation of those obligations ascertain-
able by applying the internationally accepted rules of treaty interpretation.85 Even within the
confines of those rules, however, there are three main schools of treaty interpretation: textual-
ist (giving primacy to the text); intentionalist (giving primacy to the intention of the drafters);
and teleological (giving primacy to the purpose of the treaty). The approach taken by national
courts, relevant international bodies and legal commentators to the Refugee Convention, as to
other human rights treaties, has tended to be teleological.86 Australian courts have shared this
tendency which has been reinforced by their practice of looking to international jurisprudence
for guidance. This has resulted in Australia’s Refugee Convention obligations effectively
expanding over time much to the chagrin of Australian Governments. Over the last two
decades, Australian Governments have responded to judicial decisions with which they have
disagreed by procuring legislation to overturn them. The RALC Act was the final move.
As discussed above, Australia’s statutorily enshrined interpretations of its Refugee
Convention obligations correspond somewhat but not entirely with international understand-
ings of those obligations. In his second reading speech for the RALC Bill, the Minister for
Immigration said:87

The government remains committed to ensuring it abides by its obligations in respect to the refugees
convention and this change does not in any way compromise this commitment. The new statutory
framework will enable parliament to legislate its understanding of these obligations within certain
sections of the Migration Act without referring directly to the refugees convention and therefore not
being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope
of the refugees convention well beyond what was ever intended by this country or this parliament.
This parliament should decide what our obligations are under these conventions—not those who seek
to direct us otherwise from places outside this country.

The last sentence is concerning. It goes beyond, for example, favouring the intentionalist
school of treaty interpretation over the teleological school. It is an assertion of a right unilat-
erally to determine the content of Australia’s treaty obligations. Such a position is no more
tenable than those subject to Australian domestic law asserting a right unilaterally to determine
the content of that law.

CONCLUSION

The Refugee Convention and Protocol together represent the balance struck by states in 1951
and 1967 between responding to the needs of internationally displaced people and the desire of

85
These rules are set out in the Vienna Convention on the Law of Treaties, opened for signature 23
May 1969, 1155 UNTS 332 (entered into force 27 January 1980). The treaty rules also represent custom-
ary international law and apply to the Refugee Convention and Protocol in the latter guise.
86
Andrew I Schoenholtz, ‘The New Refugees and the Old Treaty: Persecutors and Persecuted in the
Twenty-First Century’ (2015) 16(1) Chicago Journal of International Law 81.
87
Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 10549
(Mr Morrison, Minister for Immigration).

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 Australia and the Refugee Convention 251

states to maintain immigration and border control. However, the world has changed and inter-
pretations of the treaties have changed with it, to the increasing dissatisfaction of many states,
including Australia. There are three related inferences which can be drawn from Australia’s
conduct over the past 25 years. The first is that successive governments have not been politi-
cally committed to achieving the object and purpose of the Refugee Convention. The second
is that they have viewed the Refugee Convention as an obstacle to achieving a policy objective
to which they have been politically committed, that is, exercise of complete control over the
entry and presence in Australia of non-citizens. The third is that they have nevertheless taken
the view that it is politically untenable, internationally if not domestically, to admit to flouting
Refugee Convention obligations while Australia remains a party. This last being the case, the
Refugee Convention continues to have an influence on Australian Government policy for-
mation. It could be argued that asylum seekers are better off for that influence. They are not,
of course, as well off as they would have been, if Australia treated the honouring of Refugee
Convention obligations as an end itself. But are they at least better off than they would have
been, if Australia did not try to maintain even the appearance of honouring those obligations?
The most insidious thing about every retrograde step taken by Australia in the past 25 years
has been that it became the new normal and brought the next step into the realm of conceiv-
able – not just for Australia but for the rest of the world. What have other countries learned
from watching Australia? They have learned that Australia is willing to go to extraordinary
lengths to prevent and deter people from seeking its protection. The many countries with fewer
resources and greater problems than Australia are left wondering why they should not also say
to asylum seekers ‘anywhere but here’, especially if they, unlike Australia, are not parties to
the Refugee Convention. As for countries that are parties to the Refugee Convention, every
Australian policy development has provided them with a new lesson in how to skirt those
obligations. Of course, if no other country is prepared to behave better than Australia behaves,
there will no longer be any protection to be found anywhere in the world. That is a scenario in
which it could be argued that asylum seekers may have been better off, if Australia, rather than
being a grudging party to the Refugee Convention, was not a party at all.

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16. The rights to refugee family reunion
Emily Darling

INTRODUCTION

Refugees are often separated from family members as a result of the refugee experience. After
obtaining residence rights in the new host country, refugees may seek to reunite with family
members they have been able to locate. An essential part of the process of resettlement in the
new country includes reuniting with close family members. This chapter will examine the
international obligations and standards that apply in the context of refugee family reunion.
The chapter will begin with a brief description of the main terms used to refer to reunification
for refugees. The relevant obligations at international level relating to family unity and family
reunification will then be explained. The level of protection that these standards offer in reality
will be examined, along with the limitations on access to family reunification. Limitations
on family reunification include the need for implementation of the rights at domestic level,
narrow definitions of family members who are eligible for reunification and barriers created
from ineffective administrative processing.
There is debate whether there is a universal right to family reunification for refugees or
whether the obligation on states only extends to an obligation to maintain family unity. This
chapter will conclude that while there is a well-established right to family unity at international
level, it is more difficult to show that there is a universal and legally enforceable right to family
reunification for refugees. States retain a wide discretion to limit family reunification for the
purposes of border control and state sovereignty. This chapter will show that there is a stronger
case for reunification for refugees and children under the international instruments, compared
with migrants generally. The refusal to allow reunification with a family member can result in
an interference with the right to family unity, demonstrating the interrelationship between the
concepts of family unity and family reunification.

DEFINITIONS

There are several different terms used in the international literature to refer to refugee family
reunion. The terms that will be examined in this chapter are family unity, refugee family
reunification and refugee family reunion. Family unity and refugee family reunification both
have specific meanings under the international instruments. These will be examined under the
relevant headings relating to each convention. Generally, the term family unity refers to the
right to maintain the unity of the family without interference from the state. Family reunifi-
cation refers to positive action requiring the act of facilitating reunion for families who have
been separated. The term ‘refugee family reunion’ is often used interchangeably with refugee
family reunification.

253
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INTERNATIONAL STANDARDS AND OBLIGATIONS

There are several areas of international law that govern the right to refugee family reunion.
Most relevant are international human rights law,1 refugee law2 and the law concerning chil-
dren and the rights of the child.3 One problem that has been identified with the recognition
of human rights is the tendency for economic, social and cultural rights to receive less rec-
ognition by states than civil and political rights.4 The right to family unity is both a civil and
political right and an economic, social and cultural right, being specifically provided for in
both the International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR). The rights and principles
relating to family unity and family reunification are found in international human rights law
and international humanitarian law. The Refugee Convention does not contain a right to family
reunion which is the subject of much discussion in the literature.
As already outlined above, there are two different terms commonly used under the interna-
tional instruments – family unity and family reunification. These concepts will both now be
considered in turn.

The Principle of Family Unity

International human rights instruments

The broadest formulation of the principle of family unity is found in Article 16 (3) of the
Universal Declaration of Human Rights (UDHR) which states that the family is entitled to
protection by the State as the fundamental group of society. This provision is replicated in
Article 23 of the ICCPR. The principle is worded as a group right as an obligation owed to the
family unit rather than to an individual.
Article 10 (1) of the ICESCR appears to provide more protection than the UDHR and the
ICCPR in requiring the state to take more positive action to assist in stating that the widest
possible protection and assistance should be provided to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while it is responsible
for the care and education of dependent children. Whilst this formulation of the principle of
family unity appears to offer stronger support to refugee families, as Staver notes, the positive
rights codified in the ICESCR are in fact weaker rights since the ICESCR rights are progres-
sive rights, rather than rights requiring immediate realization.5

1
These rights can be found in the Universal Declaration of Human Rights 1948 UNGA Resolution
217A(III), UN Doc A/810 (10 December 1948) (UDHR); the International Covenant on Civil and
Political Rights 1966, 999 UNTS 171 (ICCPR); the International Covenant on Economic, Social and
Cultural Rights 1966, UNGA Res. 220 A (XXI), 19 Dec. 1996, 993 UNTS 3 (ICESCR).
2
Convention Relating to the Status of Refugees 1951, UNGA Resolution 2198 (XXI), 189 UNTS
137.
3
Convention on the Rights of the Child (CRC) 1989, UNGA Res. 44/25, 20 Dec. 1989.
4
See e.g., A. Clarke, ‘The Potential of the Human Rights-Based Approach for the Evolution of the
United Nations as a System’, (2012) 13 Human Rights Review 225 at 230.
5
A. Staver, ‘Family Reunification: A Right for Forced Migrants?’, (2008) Working Paper Series
no. 51 – Refugee Studies Centre, University of Oxford at 13; UNICEF, Implementation Handbook for the
Convention on the Rights of the Child, 3rd Edition, September 2007, www​.unicef​.org/​publications/​files/​

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It must be noted that the principle of family unity outlined in these instruments does not
refer specifically to the case of refugees but is expressed in general terms to apply universally
to the family.

Refugee law
Surprisingly, the 1951 Convention on the Status of Refugees does not contain a specific ref-
erence to family unity or family reunification for refugees.6 Hathaway notes that the intention
of the drafters of the Convention was to include such a right, as evidenced by the statement in
Recommendation B of the Final Act of the Conference of Plenipotentiaries in recommending
governments take the necessary measures to protect the refugee’s family, especially with the
view to ensuring the refugee’s family is maintained.7 This is consistent with the 1981 UN High
Commissioner for Refugees (UNHCR) Executive Committee Conclusion No. 24 on Family
Reunification which states that host countries should apply liberal criteria to identifying family
members for comprehensive reunification of the family and support the efforts of the High
Commissioner to ensure the reunification of separated refugee families occurs with the least
possible delay.8 Hathaway states his belief that the reason the Refugee Convention does not
contain a specific provision requiring family unity, is because at the time of drafting, the draft-
ers assumed that immediate family members would also be recognized as refugees if the head
of the family was recognized as a refugee.9 The immediate refugee context at the time lends
support to this view as refugee families often travelled together. The current refugee context
may be considered more complex than the post-World War II situation and now involves
refugee flows from multiple causes which may result in extended periods of separation from
family members. At the time of the drafting of the Convention, this situation was unforeseen
and it was assumed that family members of refugees would be able to follow existing family
and eventually reunite. Based on this assumption, the drafters did not see a need to insert
a specific provision into the Convention, however the words of the Final Act emphasise the
importance of family unity in the minds of the Council of Plenipotentiaries.10 The UNHCR has
encouraged all states to facilitate measures implementing a right to family unity and family
reunification for all refugees.11

Implementation​_Handbook​_for​_the​_Convention​_on​_the​_Rights​_of​_the​_Child​.pdf (accessed 19 August

2012) at 135.
6
K. Jastram and K. Newland, ‘Family Unity and Refugee Protection’ in E. Feller, V. Turk and
F. Nicholson (eds) Refugee Protection in International Law – UNHCR’s Global Consultations on
International Protection, (2003), Cambridge University Press at 569.
7
J. Hathaway, The Rights of Refugees under International Law (2005), Cambridge University Press
at 542; UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Final Act of
the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25
July 1951, A?CONF.2/108/Rev.1, http://​www​.unhcr​.org/​refworld/​docid/​40a8a7394​.html (accessed 19
August 2012).
8
No. 24 (XXXII) 1981.
9
Hathaway (n 7) at 541.
10
Ibid.
11
UNHCR Global Consultations on International Protection, Summary Conclusions on Family
Unity, Geneva Expert Roundtable, 8–9 November 2001, and ibid. at 571. See also Council of Europe:
Committee of Ministers, Recommendation R (1999) 23 of the Committee of Ministers to Member States
on Family Reunion for Refugees and other Persons in Need of International Protection, 15 December
1999, R (1999) 23, http://​www​.unhcr​.org/​refworld/​docid/​3ae6b39110​.html (accessed 19 August 2012).

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256 Research handbook on international refugee law

While the right to family unity is not included in the 1951 Convention, the Summary
Conclusions on Family Unity decided during the UNHCR Global Consultations on International
Protection in 2001 emphasize that as the right is found in universal and regional human
rights instruments, it applies universally, including in the refugee context.12 The Summary
Conclusions go a step further than scholarly commentators and the instruments, in saying
that states are also required to take measures to maintain family unity and reunite separated
family members.13 The Summary Conclusions also reinforce the ‘essential right’ of family
unity for refugees, as promoted by the Recommendation in the Final Act of the Conference of
the Plenipotentiaries.14 According to the conclusions, which reflect the general understandings
of the expert roundtable discussion, a refusal to allow family reunification can amount to an
interference with the right to family life or to family unity, particularly where the family has no
realistic possibility of enjoying the right elsewhere.15 In addition, the conclusions refer to the
tendency of family unity to enhance refugee self-sufficiency, and the potential to play a role in
reducing the number of unauthorized or spontaneous arrivals by providing a safer method of
reunification.16 The idea that refusal to allow reunification with a family member can result in
an interference with the right to family unity demonstrates the interrelation between the con-
cepts of family unity and family reunification. A right to family reunification is more difficult
to establish, as it requires positive steps by the state to allow family reunification.

UNHCR support for family reunification

The UNHCR has consistently encouraged states to facilitate refugee family reunification.
Although the UNHCR guidelines are non-binding, in highlighting the universality of the prin-
ciple of family unity, the UNHCR has made it clear that reunifying refugee families after sep-
aration as a result of the refugee process is essential and places an obligation on states to assist.
UNHCR Executive Committee Conclusions, beginning with Executive Committee
Conclusion No. 9 (XXVIII) of 1977, expressly reiterate the fundamental importance of the
principle of family reunion (No. 9 (a)). Executive Committee Conclusion No. 24 (XXXII)
of 1981 urges countries of asylum to be supportive of UNHCR efforts to ensure reunifica-
tion occurs with the least possible delay.17 Ensuring the reunification of separated refugee
families is promoted as aligning with the principle of family unity.18 Paragraph 1 of the 1981
Conclusions on Family Reunification states that in application of the principle of the unity
of the family, and for obvious humanitarian reasons, every effort shall be made to ensure the
reunification of separated refugee families. Paragraph 2 of the same conclusions specifies that
it is desirable that countries of origin and asylum support reunification with the least possible
delay.
In the 1981 Conclusion, UNHCR also encourages host countries to apply liberal criteria in
determining which family members are able to be admitted, with a view to a comprehensive
reunification of the family.19 The 1983 UNHCR Guidelines on Reunification of Refugee

12
Ibid., Summary Conclusions, General Consideration No. 1.
13
Ibid., Consideration No. 5 at 605.
14
Ibid., Consideration No. 3.
15
Ibid., Consideration No. 5.
16
Ibid., at 606, Consideration No. 6.
17
Paras 2 and 3.
18
Executive Committee Conclusion No. 24 (XXXII, 1).
19
Ibid., para 5.

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 The rights to refugee family reunion 257

Families restated the UNHCR view and commitment to promoting and ensuring family
reunification for refugees.20 The Guidelines emphasize an inclusive view of family and the
possibility that family reunification should be extended not only to immediate family, but also
to dependent children of any age, dependent parents of adult refugees (where the parent had
resided in the same household as the refugee or would otherwise be left alone or destitute), and
in some cases other dependent members of the family unit such as friends or foster children.21
Lewis notes that the purpose of the UNHCR Executive Committee Conclusions is to artic-
ulate the position of the UNHCR and expand on the organization’s doctrine.22 In her work,
she outlines the numerous Executive Committee Conclusions on family unity and family
reunification and highlights the fact that the conclusions have assisted in elaborating on the
principle of family unity, in the same way that it has formulated its doctrinal position on other
issues not specifically covered in the 1951 Refugee Convention.23 The Conclusions elaborate
on the principle of family unity and consistently reiterate the importance of the right to family
reunification. The Executive Committee Conclusion No. 88 of 1999 again seeks to underline
the need for the refugee’s family to be protected by measures to reunify family members sep-
arated as a result of refugee flight, and once again repeats the 1981 Conclusion request for the
consideration of liberal criteria in identifying family members who can be admitted with the
view to the comprehensive reunification of the family.24
While the UNHCR Executive Committee Conclusions are not binding but are more in the
nature of guidelines and recommendations, the repeated commitment to the encouragement of
states to ensuring family reunification is facilitated adds more force to the principle of family
unity.

The Convention on the Rights of the Child

At international law, the strongest support for a right to refugee family reunification is the
principle of family unity25 and the rules governing family reunification under Article 10 of the
Convention on the Rights of the Child (CRC).26 As Crock has highlighted, the rights under the
CRC are applicable to all children, irrespective of their status under domestic law.27 In addi-
tion, the paramount importance of the ‘best interests’ principle provides additional protections
for the rights of children to reunification with family members.
The right to family reunification under the CRC is generally viewed to afford more pro-
tection of family rights than other instruments.28 Article 9.3 provides that state parties shall
respect the right of the child who is separated from one or both parents to maintain personal

20
Guidelines at 1.
21
Part III. Types of Family Reunification Promoted by UNHCR.
22
C. Lewis, UNHCR and International Refugee Law: From Treaties to Innovation (2012) Routledge,
Oxford at 69.
23
Ibid.
24
No. 88 (L), 1999.
25
UDHR, art 16(3) and ICCPR, art 23.
26
Convention on the Rights of the Child 1989; C. Anderfuhren-Wayne, ‘Family Unity in Immigration
and Refugee Matters: United States and European Approaches’, (1996) 8(3) International Journal of
Refugee Law 347 at 349 and 351.
27
M. Crock, ‘Of Relative Rights and Putative Children: Rethinking the Critical Framework for the
Protection of Refugee Children and Youth’, (2013) 20 Australian International Law Journal 33–53 at 38.
28
Staver (n 5), 14.

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relations and direct contact with both parents on a regular basis, except where this is contrary
to the child’s best interests.29 Article 10 of the CRC provides that family reunification applica-
tions involving children should be dealt with in a positive, humane and expeditious manner.30
Nastic and Drew state that Article 9 sets out a substantive standard to be obtained, while
Article 10 outlines the manner for dealing with family reunification.31 This is consistent with
the statement of the chairman of the working group drafting the CRC who stated that Article
10 is designed to apply to separations across different countries whereas Article 9 applies in
a domestic situation.32
The Committee on the Rights of the Child has specified that when family reunification in
the origin country is not possible, the obligations under Articles 9 and 10 should govern the
host country’s decision on family reunification.33 It is accepted that family reunification should
generally be regarded as being in the best interests of the child.34 This commentary indicates
that it is accepted (at international level) that family reunification is desirable and necessary
and in many cases, to satisfy the best interests of the child principle. The right is still limited
in its scope, despite the more positive wording than the other international human rights refer-
ring to family unity. Despite the stronger and more positive wording in the CRC in relation
to family reunification, UNICEF has stated that Article 10 does not extend to an expressly
guaranteed right of family reunion.35
UNHCR has referred to the provisions of the CRC to lend support to Executive Committee
Conclusions on Family Reunification, particularly in the case of family reunification for
minors and the need to take into consideration the best interests of the child. Executive
Committee Conclusion No. 47 (XXXVIII) of 1987 stresses that ‘all action taken on behalf of
refugee children must be guided by the principle of the best interests of the child as well as by
the principle of family unity’ (d). The provisions of the CRC relevant to refugee family reuni-
fication apply to situations where children are involved, either as sponsors or family members
seeking to join parents. The fact that the relevant rights under the CRC are also expressed in
general terms means that states are able to interpret these rights differently and the protections
afforded by the international obligations may be eroded.
Desai states that the right of the child to family reunification under the CRC is one of the
rights to family care that exist under the CRC. Desai relates these to Article 4 of the CRC

29
Convention on the Rights of the Child 1989, art 9(3).
30
Ibid., art 10(1).
31
S. Nastic and D. Drew, ‘The Immigration Reservation to the Convention on the Rights of the
Child: an insuperable difficulty no more’ (2009) 23(2) Journal of Immigration Asylum and Nationality
Law 119 at 133.
32
UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Final Act of
the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25
July 1951, A?CONF.2/108/Rev.1, http://​www​.unhcr​.org/​refworld/​docid/​40a8a7394​.html (accessed 19
August 2012).
33
Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside Their Country of Origin, www2​.ohchr​.org/​English/​
bodies/​crc/​docs/​GC6​_en​.doc (accessed again 19 August 2012) at [83].
34
UNHCR, Guidelines on Determining the Best Interests of the Child, May 2008, www​.unhcr​.org/​
cgi​-bin/​texis/​vtx/​refworld/​rwmain​?docid​=​48480c342​.html (accessed again 19 August 2012) at 31.
35
UNICEF, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn,
September 2007, www​.unicef​.org/​publications/​files/​Implementation​_Handbook​_for​_the​_Convention​
_on​_the​_Rights​_of​_the​_Child​.pdf (accessed again 19 August 2012) at 135.

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which highlights the obligation on state parties to undertake measures to fulfil these economic,
social and cultural rights to the maximum extent of their available resources.36 This Article
however also allows for a justification for states unable to meet the obligations where the state
considers that its available resources do not extend to allowing entry to family members of
a minor, to provide one example. While these rights are set out in the international instruments,
academic commentators differ on whether the principles amount to a right to family unity obli-
gating the member state to permit entry of family members or are more in the nature of guiding
principles. The view taken in this chapter is that while family unity for separated families does
not amount to an enforceable right at international law, it is an essential human right and can be
implemented or protected at domestic level through measures similar to those at the European
supranational level. A consistent theme in the literature on international human rights law is
the difficulty in ensuring state compliance with the relevant obligations.37 Dai considers com-
pliance to be the degree to which a state’s practice complies with the relevant provision of an
international obligation.38 While the rights/principles of family unity exist at international law,
the main problem lies in state compliance with these obligations and the degree of discretion
the relevant provision allows. Often states can justify the restriction of individual human
rights in the national interest through the balancing of individual rights against the right to
state sovereignty. This is reflected in the literature on international human rights law and in
state practice. An example in the context of the European Union is the concept of the margin
of appreciation and the classification of some rights under the European Council Directive on
Family Reunification as ‘qualified rights’.39
As this chapter will examine, the difficulties arise in the implementation of the right at
domestic level, as the international standards allow states a wide discretion in the way the entry
of family members may be restricted.

FAMILY UNITY V FAMILY REUNIFICATION

The international literature on family reunion tends to focus on defining the scope of family
reunification and whether or not refugees have a right to be reunified with family members
after separation. The majority of academic writers on the issue conclude that while there is
a right to family unity and to maintain contact with family members, this does not extend to
a right (for separated refugees) to family reunification which is enforceable against states.40
Hathaway and Anderfuhren-Wayne have emphasized that the difficulty lies in determining to

36
M. Desai, ‘The Child Rights Perspective’ in Desai, A Rights-Based Preventative Approach for
Psychosocial Well-being in Childhood (2010) Dordrecht 29–46 at 34.
37
T. Risse, S. Ropp and K. Sikkink (eds), The Persistent Power of Human Rights: From Commitment
to Compliance (2013) Cambridge University Press, Croydon, 87.
38
X. Dai, ‘The “Compliance Gap” and the Efficacy of International Human Rights Institutions’ in
ibid., 85.
39
Council of the European Union Directive 2003/86/EC (22 September 2003).
40
I. Honohan, ‘Reconsidering the Claim to Family Reunification in Migration’, (2009) 57(4)
Political Studies 768–87 at 780.

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what extent these rights place obligations on state parties to facilitate family reunification by
granting entry or residence to family members of refugees.41
Jastram explains the distinction between the terms ‘family unity’ and ‘family reunification’.
She sees the right to ‘family unity’ as a set of ‘interlocking rights’ drawn from different
sources and encompassed in the same definition that is found in both the UDHR and the
ICCPR.42 Jastram highlights the universal nature of the notion that as the fundamental unit of
society, the family is entitled to respect, protection, assistance and support (Jastram’s word-
ing).43 In comparison, she describes ‘family reunification’ or ‘family reunion’ as a concept
which is directed towards separated family members who are seeking to reunite and therefore
requiring discretion on the behalf of the state. The distinction Jastram makes highlights the
main tension in family reunification – between individual interests to be reunited with family
and state interests in restricting entry of family members.
Anderfuhren-Wayne has defined family unity as ‘a right of recognition of a legal relation-
ship between family members’.44 She has also contrasted the right of family unity with the
right to family reunification. Anderfuhren-Wayne specifies that the latter extends to protecting
families seeking to reunite after a period of separation.45 This distinction is reflected in the
relevant provisions of the CRC.
Often the work of Hathaway and Lambert is considered the starting point for an examination
of the right to family unity and whether a right to family reunification exists. Helene Lambert
has examined the implementation of the right to family unity in the European context. In the
EU, additional supranational standards apply to member states. These are contained in the
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(ECHR) and the EC Directive on Family Reunification.46 In examining the related right under
Article 8 of the ECHR, which obliges state parties to the Convention to respect the family
life of individuals within the jurisdiction of the state, Lambert observes that while Article 8
involves a negative obligation not to interfere with family life, it also involves a positive obli-
gation to ensure the right to family life is guaranteed.47 Lambert argues that there is a subjective
right to family at international law but it is less clear whether family reunification is a right.48
She emphasizes the two main reasons that impact on family reunification are the fact there is
no universal definition of family and that implementing family reunification requires the state
to take positive steps.49 As already discussed, these issues are commonly raised by scholars as

41
Hathaway (n 7) 546 and C. Anderfuhren-Wayne, ‘Family Unity in Immigration and Refugee
Matters: United States and European Approaches’, (1996) 8(3) International Journal of Refugee Law
347 at 349.
42
K. Jastram, ‘Family Unity’, in T. Aleinikoff and V. Chetail (eds), Migration and International
Legal Norms (2003) T.M.C. Asser Press, The Hague, 185–201 at 186.
43
Ibid.
44
Anderfuhren-Wayne (n 41) 349.
45
Ibid.
46
(1950), Council of Europe, ETS No. 5; All EU member states, apart from the UK, Ireland and
Denmark which opted out of the Directive, are required to follow the Directive.
47
H. Lambert, ‘The European Court of Human Rights and the Right of Refugees and Other Persons
in Need of Protection to Family Reunion’, (1999) 11(3) International Journal of Refugee Law 440 at 487.
48
H. Lambert, ‘Family Unity in Migration Law: The Evolution of a More Unified Approach in
Europe’, in V. Chetail (ed.) Research Handbook on International Law and Migration (2013) Edward
Elgar Publishing, Cheltenham, UK, 194–215, 195.
49
Ibid., 196.

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 The rights to refugee family reunion 261

barriers preventing the right to family reunification being an enforceable right at international
law. While there is no specific right to family reunification under the international instruments,
Lambert argues that family reunification is facilitated by international human rights law in
order to give effect to the principle of family unity.50 She also states that a strong argument
can be made in favour of a right to family reunification.51 Lambert’s work provides a clear for-
mulation of the difference between the two concepts of family unity and family reunification.
However she suggests that one of the main reasons states can avoid fulfilling duties towards
refugee families is the use of various terms used in this area, further creating uncertainty.
Lambert implies that a consistent definition of family in international law would assist in the
enforcement of the right to family unity.52 She also suggests that it may be more beneficial to
view family reunification as a group right rather than an individual right, due to the require-
ment for the family to be respected as an entity for the right to be meaningful.53

FAMILY UNITY AND REUNIFICATION AS A CUSTOMARY RIGHT

While there is considerable discussion in the literature about the content of the principle of
family unity and whether a right to family reunification exists, there is less written on the issue
of whether a customary right exists. Jastram and Newland highlight the sovereign right of
states to limit entry, which acts as a qualifier on the rights to family unity and family reunifica-
tion.54 The authors also say there are extensive rights provided under the ICCPR, ICESCR and
CRC, as well as a strong argument that the right to family unity has become part of customary
international law.55 In Hathaway’s opinion, there is sufficient evidence to demonstrate opinio
juris for a customary legal norm to protect refugee family unity.56 In reaching this conclusion,
he refers to the numerous restatements of the principle of family unity by the UNHCR particu-
larly in the Executive Committee Conclusions which reinforce the view promoted by the Final
Act and replicated in the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status.57 Hathaway states the problem is more in the lack of any agreement as to the
content of any affirmative right to family unity.58 In his view, the legal obligation can only
be clearly identified as a duty not to engage in unlawful or arbitrary interference with family
unity.59 The legal obligation not to engage in such arbitrary interference is reflected in Article
17 of the ICCPR requiring states to refrain from arbitrary interference with the family. The
arbitrary nature is generally viewed as unreasonableness or some form of rigidity and is more
likely to be demonstrated in cases of removal of family members.60

50
Ibid.
51
Ibid.
52
Ibid. at 201.
53
Ibid. at 215.
54
Jastram and Newland (n 6), 568.
55
Ibid., 567–8.
56
Hathaway (n 7), 545.
57
Ibid., 542–3.
58
Ibid., 545.
59
Ibid.
60
Ibid., 546.

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262 Research handbook on international refugee law

Hathaway argues that Article 23 of the ICCPR may in fact provide more of an affirmative
right to family unity than Article 17.61 In stating that there is a right for ‘men and women
of a marriageable age to marry and found a family’, he refers to the UN Human Rights
Committee General Comment No. 19 which implies the adoption of appropriate measures
to ensure the unity or reunification of families, particularly where they have been separated
for political, economic or similar reasons.62 Hathaway sees this statement by the UNHRC as
referring to refugees, given the reasons for which they are separated are often for political or
similar reasons. He also argues that the duty on states to act reasonably (and not in an arbitrary
manner) means that any delay in providing access to family reunification for refugees would
have to be attributed to rational and substantial considerations. He contrasts this with a delay
attributed merely to formal status the refugee has been assigned which would not be sufficient
justification. In examining this situation, Hathaway gives the example of the lack of access to
family reunification for Temporary Protection Visa holders in Australia during the Howard
years.63 He concludes the issue by saying that a state which refuses to admit or facilitate the
admission and reunification of a refugee’s family will therefore breach its international obli-
gations. The limitation on this obligation however, as noted by Hathaway, is that ‘family’ in
this context is defined by reference to the domestic legal definition of family which may be
limited to immediate family.64
However, there is insufficient evidence in the literature that the right to family reunification
has reached the status of a customary international law right, and commentators, such as
Hathaway, state there is a high threshold to establish that a right has become a customary law
right.65 The lack of customary protection means states are able to interpret these rights differ-
ently. From the literature, the conclusion is that the standards under the various international
instruments can provide support for refugee family reunion, however the main difficulties
are in interpretation of the rights and implementation of the rights due to state discretion.66
A frequent topic in the literature, particularly in the European context, is the concept of state
sovereignty and the wide margin of appreciation member states retain in complying with
the additional human rights standards and the Family Reunification Directive. Other authors
have discussed the difficulty in enforcing international human rights standards.67 The need for
access to family reunification needs to be balanced against the sovereign right of the state to
restrict entry.

THE DEFINITION OF ‘FAMILY’

The concept of family and the importance of refugees being reunited with family members to
assist in the resettlement process have been recognized by many scholars and practitioners.

61
Ibid., 551.
62
Ibid.
63
Ibid., 559.
64
Ibid.
65
Ibid., 23, 363.
66
Jastram and Newland (n 6) at 571 and 592 and UNHCR Recommendation that the rights to family
unity and family reunification need to be implemented in domestic legislation.
67
For example, see E. Hafner-Burton, Making Human Rights a Reality, 2013, Princeton University
Press, New Jersey.

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 The rights to refugee family reunion 263

This is an interdisciplinary issue which incorporates sociology, anthropology and psychology.

The right to family reunion has often been promoted as enhancing the well-being of refugees
and integration into the host society.68 One of the issues frequently identified is that immi-
gration law tends to recognize the family unit as the traditional Western concept of a nuclear
family, not always relevant to the different cultures to which refugees belong, and not always
consistently with modern formulations in family law.69 The Western ideal of the nuclear
family or ‘immediate family’ as it is often referred to in the immigration context, usually only
includes a husband, wife and dependent minor children. The definition does not extend to
cover adult siblings or elderly parents. Relatives considered more distant under the Western
nuclear family definition, such as grandparents, aunts and uncles or cousins, will rarely be
eligible for family reunion as they fall outside the priority provided to immediate family
members. Such a restriction on the definition of family is controversial given the realities of
refugee families, particularly after the refugee experience when families reform with any exist-
ing family members they can locate and re-establish contact with. These ties with extended
family members can become close knit after the refugee experience and cultural norms may
dictate that orphaned children be adopted (often informally) by remaining adult relatives. To
maintain that these family members cannot access the right to family reunification because
they do not meet the definition of the Western nuclear family is unnecessarily restrictive and
impractical.
There is general consensus from experts that the definition of family under the relevant
international standards should be expanded. The 1983 UNHCR Guidelines on Reunification
of Refugee Families also states that the UNHCR position is that the principle of family unity
requires reunification of dependent parents of adult refugees, other dependent relatives such
as siblings, aunts and cousins where they were living with the family unit as dependants in
the country of origin, and other dependent members of the family unit who may not be blood
relatives but have been brought into the family unit. The 2001 UNHCR Annual Tripartite
Consultations on Resettlement highlight the need for a broader definition of the family unit,
stating that while the focus is on the nuclear family, it is necessary to adopt a definition of
family which can meet the peculiarities of the refugee situation and encompass any dependent
family members.70 This approach is explained by UNHCR as the principle of dependency
which recognizes family as more than the nuclear family members and takes a culturally
sensitive approach.71
Staver highlights the problem of the definition of the family as a means of state control
over any existing family reunification rights, making the right conditional.72 Often the right
is specified to be limited to reunification with ‘immediate family’ members only. This is
reflected in the domestic legislation of many states, often restricting or allocating priority in

68
E. Stasser, A. Kraler, S. Bonjour and V. Bilger, ‘Doing Family Responses to the Constructions of
‘the migrant family across Europe’, (2009) 14(2) The History of the Family 166.
69
A. Holland, ‘The Modern Family Unit: Toward a More Inclusive Vision of the Family in
Immigration Law’, (2008) 96(4) California Law Review 1059; S. King, ‘U.S. Immigration Law and
the Traditional Nuclear Conception of Family: Toward a Functional Definition of Family that Protects
Children’s Fundamental Human Rights’, (2010) 41 Columbia Human Rights Law Review 509 at 510.
70
UNHCR Annual Tripartite Consultations on Resettlement, Background Note for the Agenda Item:
Family Reunification in the Context of Resettlement and Integration, June 2001, Geneva at 2.
71
Ibid. at 1–2.
72
Staver (n 5), 23–4.

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264 Research handbook on international refugee law

family reunion or reunification to members of the nuclear family. In Australia, for example,
immediate family for the purposes of refugee family reunion is defined under the Migration
Regulations 1994 as a spouse or de facto partner, dependent child or parent if the sponsor is
under 18 years old.73 In some states, other family members may be granted residence permits,
where they are able to establish exceptional, compelling or compassionate circumstances.74
Jastram and Newland have discussed the need for the development of a ‘culturally sensi-
tive and situation-specific’ definition of family for the purposes of family unity and family
reunification.75
They also recommend that the vulnerability of elderly refugee family members be recog-
nized in the relevant criteria for family reunification.76 Honohan notes that while ascending
relatives (parents and grandparents) play an important role in society, they are often excluded
from family reunification or given low priority in being granted entry to join family mem-
bers.77 While sometimes elderly parents may benefit more from remaining in their home
country and continuing to receive remittances from family members,78 once again this may
not be the case for the family members of refugees who are not able to remain comfortably in
a transit country.
Honohan argues that rather than restricting family reunification to nuclear family, the pri-
ority should be on reunifying family members who have what he refers to as ‘relationships of
care at “critical times”’.79 These are explained as relationships where there may also be a rela-
tionship of care at certain times – including the very young and elderly, meaning these family
members may also have valid claims to be admitted on the basis of family reunification.80
These relatives are dependent on other family members for care during childhood and in later
years and would experience severe hardship if they continued to remain separated from family
members caring for them. Honohan also sees the main problems with the recognition of a right
to family reunification as being the tendency for states to restrict admission to the members of
the nuclear family. He considers that discriminating between immediate and non-immediate
family members for the purposes of reunification is culturally-biased towards the Western
ideal of the nuclear family.81 The point that the nuclear family model is often irrelevant to
refugee family formations has been made by many commentators.
As highlighted repeatedly in studies of refugee health and resettlement, refugee families
tend to vary in the types of relationships which constitute ‘family’.82 The members included
in an individual refugee’s concept of their family will depend on cultural views as well as the
pattern of resettlement post-conflict. Families separated as a result of conflict may form new
arrangements with extended family where required for support. This is often demonstrated
in the case of orphaned children being customarily adopted by aunts or uncles who support

73
Migration Regulations 1994 (Cth), Regulation 1.12AA (1).
74
For example, Appendix FM, Immigration Rules.
75
Jastram and Newland (n 6), 564–5.
76
Ibid., 563.
77
Honohan (n 40), 781.
78
Ibid., 782.
79
Ibid., 768.
80
Ibid., 777.
81
Ibid., 780.
82
B. Wilmsen, B., ‘Family Separation: The Policies, Procedures, and Consequences for Refugee
Background Families’, Refugee Survey Quarterly (2011), 30(1), 44; Staver (n 5).

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 The rights to refugee family reunion 265

their niece or nephew as they would support their own children. This is a phenomenon in the
cultures of many refugee populations, for example Afghan Hazara families.83
Extending the definition of family would assist refugees in the post-settlement phase with
the dual purpose of allowing other vulnerable groups to access protection and leave dangerous
and unsuitable conditions. This is essential for dependent children and the elderly, even where
they do not meet the standard definition of family.

BALANCING STATE INTERESTS AGAINST INDIVIDUAL HUMAN

RIGHTS

The sovereignty of the state is often raised as an argument for restricting family reunification.84
The need to control entry and borders is often provided by states as a justification for limiting
the definition of family for the purposes of family reunion. However the point can also be
made that states have obligations towards refugees who have become permanent residents or
citizens. The host state also has an obligation to meet the resident or citizen’s right to family
unity and the best interests of the child to be reunited with their parents.85
There is a significant amount of literature on the benefit to an individual of reunification
with family members in assisting the individual to integrate into the host society. The UNHCR
view is that the family can assist a refugee in adjusting to the new society and meeting their
long-term needs by strengthening the capacity of the individual to function in their new
country through providing emotional, social and economic support networks.86 In addition,
Honohan also notes that the state benefits from allowing entry to family members as they
may be more likely to integrate than other migrants.87 The UNHCR promotes the view that
the efficient resettlement and reunification of family members also benefits the state through
increased social and economic self-sufficiency of the individual.88 In Honohan’s view the state
may also benefit from reduced childcare costs where family members are allowed entry.89 He
also considers counter-arguments to allowing entry for family members – including the per-
ceived voluntary nature of migration and the prevalence for families to be dispersed today.90
These arguments however have less force when considering the case for refugee family
reunification as the circumstances leading to departure are not voluntary and it is not usually
possible for refugee families to return to the home country or transit country to visit remaining
family members.

83
This was observed by the author in practice as an immigration lawyer and Refugee Family
Reunion caseworker at the Refugee and Immigration Legal Service (RAILS). If a child is left without
parental support, extended family will often assist and take the role of parents and guardians where child
are left as orphans or where the child’s parents have been missing for an extended period of time.
84
See, e.g., D. Stevens, ‘Asylum-seeking Families in Current Legal Discourse: A UK perspective’,
(2010) 32(1), Journal of Social Welfare and Family 5–22, 11.
85
See, e.g., the principle of family unity under the UDHR, ICCPR and family reunification in art 10
of the CRC.
86
UNHCR Annual Tripartite Consultations on Resettlement (n 70), 2.
87
Honohan (n 40), 772.
88
UNHCR Annual Tripartite Consultations on Resettlement (n 70), 2.
89
Honohan (n 40), 772.
90
Ibid., 776.

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266 Research handbook on international refugee law

IMPLEMENTATION OF THE RIGHTS OF FAMILY UNITY AND

REUNIFICATION

While there may be agreement by many scholars that a right to family unity exists, the main
hurdle for refugees seeking to reunite with family members is the lack of implementation of
the right at the domestic level. Apart from the limitations on family reunification as a result
of the restricted definition of family, there are also other administrative and procedural issues
that commonly cause delays or frustrate family reunification. Staver has described the right
to reunite as a conditional right, dependent on other factors such as the residence status of
the sponsoring family member.91 Often only refugees who have been granted permanent
residence or citizenship status are allowed to apply for family reunification with remaining
family members. The residence requirement is usually the first barrier to a refugee seeking
to be reunited with family members after arriving in the host country. Many states prevent
refugees who have only been granted temporary residence from being granted access to family
reunification.
Hathaway sees the difficulties encountered in family reunification as usually being admin-
istrative in nature.92 He provides as examples the consideration of which types of family
members are to be admitted, relevant criteria to be met (by both applicants and sponsors)
and at what point in time a refugee is able to sponsor family members.93 He provides further
examples of common difficulties refugees encounter in sponsoring family members includ-
ing meeting the definition of ‘family’, particularly where the applicants are not immediate
family members, and meeting other criteria such as requiring the sponsor to demonstrate
sufficient financial ability to sponsor family through onerous income and accommodation
requirements.94 Another difficulty Hathaway highlights which can have a significant impact
on reunification with family members is the often prolonged delays in the processing of family
reunification applications.95 He states that sometimes these can be so onerous that they can
have the effect of defeating the purpose of family reunification where children have reached
the age of majority and are no longer eligible, where marital breakdown occurs as a result
of the breakdown or where parents pass away before being reunited with family members.96
Bhabha refers to the ‘inherent ambivalence’ of the protection of family unity at international
law.97 She supports the view taken by Hathaway in highlighting the lack of affirmative obliga-
tion on states to protect family unity, which allows states to apply domestic procedures which
may pose serious obstacles to family reunification.98
Other administrative difficulties often experienced in seeking to reunite with family include
delays in processing applications and limited annual quotas for visas granted to family mem-
bers.99 The priority accorded to immediate family members can also mean that where a state

91
Staver (n 5), 23.
92
Hathaway (n 7), 35.
93
Ibid.
94
Ibid., 537.
95
Ibid.
96
Ibid.
97
J. Bhabha, Child Migration & Human Rights in a Global Age (2014) Princeton University Press,
27.
98
Ibid., 28.
99
Wilmsen (n 82), 57–8.

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 The rights to refugee family reunion 267

only grants a limited number of visas for family reunion, other family members are not able to
obtain a visa, even if they are deemed eligible to apply. Other problems which are also raised
in the literature on family reunification from various jurisdictions include prohibitive costs in
applying or meeting the eligibility requirements as a sponsor100 and difficulties in obtaining
the required documentary evidence.101 Often refugees flee from situations of civil disturbance
and are unable to take anything with them, even being separated from family members during
the process. It is unreasonable to require refugees to provide documentary evidence such as
birth and marriage certificates, photographs, or affidavits. Bhabha makes the point that often
the applicants and sponsors come from cultures and situations where illiteracy may not be
uncommon, or where births are not registered and the Western calendar is not used.102 These
differences can provide further obstacles to reunification for refugee families including cre-
ating delays in processing where applicants or sponsors try to obtain these documents where
possible.

CONCLUSION

While there is debate in the literature as to the degree of the obligation placed on states in
allowing entry to family members for the purposes of family reunification, it is widely recog-
nized that the principle of family unity is universal. Although it is more difficult to establish
a right to family reunification, there is a stronger case for refugees and children to be granted
the right. Family reunification is an essential part of the resettlement process for refugees start-
ing a new life in another country. Family reunification involves the balancing of state interests
to control entry and state borders with individual human rights. While there is guidance at the
international level, and at regional level, as to the content of these rights, there is still a wide
discretion available to states to allow or restrict the right to family reunification. Supporting
statements from the UNHCR and during the drafting of the 1951 Convention point to the exist-
ence of a right to family reunification, but without a clear obligation under the universal human
rights instruments, individual states are required to maintain family unity but can still seek to
prevent or limit the entry of family members for the purposes of family reunification.103 States
limit the type of entrants eligible for family reunion through narrow definitions of ‘family’
and restrictions on eligibility to sponsor family members due to residence status. To protect
the right to family unity for refugees, it is necessary to work towards measures that facilitate
family reunification for refugees to allow refugees to resettle effectively.

100
Bhabha (n 97), 32.
101
Ibid., 40.
102
Ibid.
103
As discussed in this chapter, additional standards may apply to certain states, such as member
states of the European Union under the ECHR obligations. See articles including H. Lambert, ‘The
European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to
Family Reunion’, (1999) 11(3), International Journal of Refugee Law, 440, for an examination of how
the right may still be limited under the supranational standards.

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17. The art of drawing lines: future behaviour and
refugee status
Janna Wessels1

INTRODUCTION

In 2010, the United Kingdom Supreme Court passed an important judgment for refugee law
doctrine. The case of HJ and HT concerned two gay men, from Iran and Cameroon respec-
tively, who claimed asylum based on their sexual orientation. The intention of the judgment
was to settle a doctrinal dispute that had been lingering for many years: the question of ‘discre-
tion’ reasoning, or in other words, of the claimant’s future behaviour. The Court had to decide
whether claims to international protection could be denied on the basis that claimants could
reasonably be required to behave discreetly upon return to their country of origin in order to
avoid persecution. The UK Supreme Court ruled that any such behaviour modification cannot
be required, reasonably or otherwise, of a claimant. The unanimous decision also intended to
provide clear guidance for judges and decision-makers on how the claimant’s future behaviour
should be assessed in refugee status determinations.2
But rather than providing a final answer, the UK Supreme Court’s judgment inspired a fierce
debate among refugee law scholars on the role of a claimant’s acts, identity and rights.3 James
Hathaway and Jason Pobjoy prominently and severely criticised the judgments in HJ (Iran)
and HT (Cameroon) as well as the previous Australian High Court judgment in S395,4 upon
which the UK Supreme Court built, for departing ‘in critical ways from accepted refugee law
doctrine’,5 causing ‘collateral damage for applicants claiming status on grounds of religion and
political opinion engendered by the confusing reasoning in these decisions’ and thus risking

1
Janna Wessels, PhD, MSc (Oxford), Dipl-Soz (Münster), Diplôme Sciences Po (Lille), Researcher
and Senior Lecturer, Faculty of Law, University of Giessen. The questions raised and the argument
advanced in this chapter are more fully explored in the author’s PhD entitled ‘The Concealment
Controversy. Sexual Orientation, “Discretion” Reasoning and the Scope of Refugee Protection’, sub-
mitted as a joint degree at the University of Technology Sydney and Vrije Universiteit Amsterdam. The
research was supported by a Quentin Bryce Law Doctoral Scholarship.
2
HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department, [2010] UKSC 31,
UK Supreme Court, 7 July 2010.
3
See Jeffrey D. Stein (2012) ‘A Brief Introduction to the Conversation’, 44(2) New York University
Journal of International Law and Politics, 313–4, and the other articles of this issue as well as the con-
tributions to the online symposium that accompanied it at http://​opiniojuris​.org/​2012/​03/​07/​new​-york​
-university​-journal​-of​-international​-law​-and​-politics​-vol​-442​-opinio​-juris​-online​-symposium/​ accessed
10 July 2019.
4
S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister
for Immigration and Multicultural Affairs, [2003] HCA 71, Australian High Court, 9 Dec 2003, involv-
ing a gay couple from Bangladesh and a reasonable requirement to be discreet.
5
James Hathaway and Jason Pobjoy (2012) ‘Queer Cases Make Bad Law’, 44(2) New York
University Journal of International Law and Politics 315–89, 331.

268
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 The art of drawing lines: future behaviour and refugee status 269

‘doctrinal distortion’.6 While receiving praise and support from some,7 this reaction and the
alternative approach they propose was in turn met with strong criticism and described as ‘both
wrong in principle and dangerous in practice’,8 and ‘on its own steam ... weaken[ing] the
normative consensus that supposedly holds the regime together’9 – or more mildly, ‘a rather
curious response ..., which will hardly have done protection much good’.10 The tone of the
debate indicates that the stakes are high: The role of future behaviour concerns a wider legal
principle of profound significance11 – and it is one where very different approaches clash.
This chapter argues that the judgment in HJ (Iran) and HT (Cameroon)12 and the reaction
to it by Hathaway and Pobjoy13 crystallise a broader dispute concerning the claimant’s future
conduct in refugee law at the heart of refugee protection. It systematises the two broad trends
that literature and case law reveal in this debate, which are represented by the judgment and
the article. The chapter then reflects on the reasons why the claimant’s future behaviour causes
such trouble and suggests that the refugee law community might in fact be fighting over the
‘right’ solution to a different puzzle.

THE DISPUTE

What will the claimant do if returned to their country of origin? And does the question of how
they will behave matter for whether they are entitled to refugee protection? If so, in which
ways? According to Art 1(A)2 of the Refugee Convention,

the term ‘refugee’ shall apply to any person who … owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country.14

6
Ibid., 338.
7
Guglielmo Verdirame commends Hathaway and Pobjoy’s approach as being based on clarity
of principle and analytical rigor, Guglielmo Verdirame (2012) ‘A Friendly Act of Socio-cultural
Contestation: Asylum and the Big Cultural Divide’, 44(2) New York University Journal of International
Law and Politics, 559–72, 567; and Richard Buxton thinks that the ‘ways in which the outcome of HJ
(Iran) appears difficult to reconcile with orthodox principles of asylum law have been set out in full
and, with respect, convincing detail by Professor Hathaway and Mr Pobjoy’, Richard Buxton (2012)
‘A History from Across the Pond’, 44(2) New York University Journal of International Law and Politics,
391–406, 406.
8
Jenni Millbank (2012) ‘The Right of Lesbians and Gay Men to Live Freely, Openly, and on
Equal Terms is not Bad Law: A Reply to Hathaway and Pobjoy’, 44(2) New York University Journal of
International Law and Politics, 497–527, 501.
9
Ryan Goodman (2012) ‘Asylum and the Concealment of Sexual Orientation: Where not to Draw
the Line’, 44(2) New York University Journal of International Law and Politics, 407–46, 446.
10
Guy S Goodwin-Gill (2014) ‘Editorial – The Dynamic of International Refugee Law’, 25(4)
International Journal of Refugee Law, 651–66.
11
See Garden Court Chambers (2010) ‘Future Behaviour and the Refugee Convention’, Free
Movement, 12 July 2010, available at: https://​www​.freemovement​.org​.uk/​future​-behaviour​-and​-the​
-refugee​-convention/​(last accessed 2 September 2016).
12
HJ (Iran) and HT (Cameroon) (n 2).
13
Hathaway and Pobjoy (n 5).
14
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS
137.

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270 Research handbook on international refugee law

The reasons for persecution (the ‘Convention grounds’) are not necessarily immediately
visible. Political opinion, religion, ethnicity in some cases, need to be expressed in one way or
another to become discernible. This also goes for certain particular social groups, and has been
vigorously discussed for sexual orientation.15 Any person therefore has at least some discretion
regarding what others know about such characteristics.16 This creates a dilemma for refugee
status determination: It is based on a future-focused analysis, but claimants can influence that
future to some extent. Does this mean that claimants can be expected to hide their persecuted
characteristics? If not, can claimants at the very least be required to exercise some restraint in
their expression?
Judges and refugee lawyers have grappled with these questions for many years. In his
groundbreaking 1966 book The Status of Refugees in International Law, Atle Grahl-Madsen
spent 34 pages on the attempt of conceptualising the different types of ‘realizations’ of politi-
cal opinion – without coming to a clear-cut conclusive answer.17 In the UK, asylum judgments
have been cyclically returning to struggling with the role of the claimant’s future behaviour
about every decade: The 1989 judgment in Mendis expressly left the question open,18 the 1999
judgment in Danian was puzzled finding that the ‘learned commentaries, to the extent that
they have addressed the issue, do not speak with one voice’, and that ‘such case-law as exists,
both in this jurisdiction and abroad, ... again does not point in a single direction’.19 This had not

15
See e.g., Catherine Dauvergne and Jenni Millbank (2003) ‘Before the High Court: Applicants
S396/2002 and S395/2002, a Gay Refugee Couple from Bangladesh’, 25 Sydney Law Review 97; Jenni
Millbank (2009) ‘From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis
of Sexual Orientation in Australia and the United Kingdom’, 13(2/3) International Journal of Human
Rights 391; Christopher N Kendall (2003) ‘Lesbian and Gay Refugees in Australia: Now that “Acting
Discreetly” Is no Longer an Option, Will Equality Be Forthcoming?’ 15 International Journal of
Refugee Law 715; Janna Wessels (2012) ‘HJ (Iran) and HT (Cameroon) – Reflections on a new test for
sexuality-based asylum claims in Britain’, 24(4) International Journal of Refugee Law 815.
16
See Eve Kosofski Sedgwick (1990) Epistemology of the Closet, Berkeley/Los Angeles: University
of California Press, 75.
17
Grahl-Madsen (1966) The Status of Refugees in International Law – Volume I: Refugee Character,
Leiden: Sijthoff, 220–53; he concludes at 248–9 that three types of ‘Realizations’ are relevant: (1)
‘simply because he holds – or is alleged to hold – certain political opinions’; (2) ‘only because of
their exercise of their right to freedom of opinion and expression and the similar rights set forth in the
Universal Declaration of Human Rights; (3) ‘actions which go beyond the mere expression of political
opinion’.
18
Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department, [1989]
Imm AR 6, UK Court of Appeal (England and Wales), 17 June 1988. The case concerned a Sri Lankan
man claiming asylum on the grounds of political opinion, because of his engagement for the Tamil cause
while in the UK. The judges were split on the matter: Neill LJ preferred to leave the matter open for
future argument, to establish ‘whether there may not be cases where a man of settled conviction may
be able to claim refugee status because it would be quite unrealistic to expect him, if her were returned
to a foreign country, to refrain from expressing his political views forever’, whereas Balcombe LJ
rejected the proposition on the basis that in his judgment ‘a person is not at risk of being persecuted for
his political opinions, if no events which would attract such persecution have yet taken place’ as that ‘is
tantamount to saying that a person who says he proposes to invite persecution is entitled to claim refugee
status’ and ‘could become a refugee as a matter of his own choice’. Staughton LJ in contrast thought that
in certain cases such a person would qualify for refugee status, because if they had such strong convic-
tions that they would inevitably speak out, ‘it could be questioned whether the future conduct would be
voluntary in any real sense’.
19
Danian v Secretary of State for the Home Department (Appeal), [2000] Imm AR 96, UK Court of
Appeal (England and Wales), 28 October 1999, per Buxton LJ. The case of Danian concerned a Nigerian

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 The art of drawing lines: future behaviour and refugee status 271

changed much by 2010, when the UK Supreme Court noted in its judgment in HJ (Iran) and
HT (Cameroon) that the cases reviewed revealed ‘no consistent line of authority that indicates
that there is an approach which is universally accepted internationally’.20 So courts and schol-
ars have been struggling to come to terms with the role of a claimant’s behaviour for decades.
The latest controversy is but the culmination of these long-standing struggles.

The UK Supreme Court’s 2010 Judgment

The position that has triggered the controversy was developed by the UK Supreme Court in the
case of HJ (Iran) and HT (Cameroon).21 The case focused on the so-called ‘discretion require-
ment’. It involved two gay men – HJ from Iran and HT from Cameroon – whose asylum claims
had been rejected by the lower courts on the basis that they could reasonably be expected to
tolerate a measure of self-restraint in order to avoid persecution. The ‘discretion requirement’
was widely used in decisions related to asylum claims based on sexual orientation, particularly
in Australia22 and in the UK.23 It consists of a ‘reasonable expectation that persons should, to
the extent that it is possible, co-operate in their own protection’.24 The Supreme Court unan-
imously ruled that the ‘reasonably tolerable test’ was contrary to the Convention and should
not be followed in the future. Instead, the judges developed a new test to be applied by lower
courts and tribunals when dealing with sexuality-based claims. According to the test, whereas
a claimant cannot be ‘reasonably expected’ to behave one way or another, it is relevant to
assess what the applicant would ‘in fact’ do.25 The enquiry moved from a normative require-
ment to a factual assessment of future behaviour. In that sense, the refugee status determina-
tion procedure remains constructed around a classification of future conduct, distinguishing

man who claimed protection on the basis of political opinion, specifically his opposition to the military
regime in Nigeria which was dominated by people from Northern Nigeria. The claimant was accused of
‘bad faith’, as he had engaged in visible political activities in the course of his asylum application, which
brought him to the attention of the Nigerian authorities. The lower court had found that his ‘conduct had
been wholly unreasonable and contrary to the spirit of the Geneva Convention’, and was described as
‘insincere’, a ‘charade’, ‘invented’ and a ‘sham’. The issue for the Court of Appeal was then, whether
those who voluntarily ‘invited persecution’ and ‘engaged in activity in the UK in bad faith but who none-
theless genuinely feared what would happen to [them] as a result of that activity’ were protected under
the 1951 Refugee Convention. In this case, the Court unanimously decided that there was no ‘bad faith’
exception to the Convention protection and that a fear of persecution may be well-founded irrespective
of whether it followed from voluntary activity: ‘[T]he essential factual issue in the case [is] whether at
the time of the tribunal’s assessment Mr Danian, having taken the steps referred to, was then at risk of
persecution, whether by reason of those steps or otherwise.’
20
HJ (Iran) and HT (Cameroon) (n 2), per Lord Hope at para 30.
21
Ibid.
22
See, e.g., G Kassisieh (2008) ‘From Lives of Fear to Lives of Freedom: A review of Australian
refugee decisions on the basis of sexual orientation’ (Gay and Lesbian Rights Lobby), 64–70.
23
See e.g., Millbank (2005)‘A Preoccupation with Perversion: the British Response to Refugee
Claims on the Basis of Sexual Orientation 1989–2003’ 14 Social Legal Studies 115–38, at 133–4.
24
RRT Case No V95/03527, [1998] RRTA 246, Australia: Refugee Review Tribunal, 9 Feb 1996.
25
HJ (Iran) and HT (Cameroon) (n 2), Lord Rodger at para 82, emphasis added:
The tribunal must [...] consider what the individual applicant would do if he were returned to
[his] country. If the applicant would in fact live openly and thereby be exposed to a real risk of
persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by
living ‘discreetly’. If, on the other hand, the tribunal concludes that the applicant would in fact live
discreetly and so avoid persecution, it must go on to ask itself why he would do so.

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between ‘living openly’ and ‘living discreetly’. According to the Court, those who will ‘in fact
live openly’ cannot be required to change their behaviour to avoid persecution. But in cases
where the decision-maker is satisfied that applicants will in fact conceal their sexual identity,
it is necessary to inquire into the motives for such discretion. Claimants are only entitled to
protection if their concealment is due to fear of persecution. If the motives for their discreet
behaviour are other than fear of persecution, such as a personal choice or social pressures, they
are not entitled to international protection.26 As such, the analysis is made dependent on the
assumed future conduct of the applicant – and hinges on the motives for that conduct.
The rejection of the reasonable requirement standard brought sexuality-based claims in line
with claims based on the other persecution grounds.27 In fact, the approach advanced by the
UK Supreme Court was explicitly distilled from previous UK and also Australian case law
concerning religion and political opinion. This line of cases reveals that the claimants’ future
conduct has been dealt with for decades, each time in more refined and ever more differenti-
ated ways. In the first notable pair of judgments from 1988 and 1989, Mendis28 and Ahmad and
Others,29 there was uncertainty as to whether it was acceptable to require a claimant to abstain
from certain political or religious acts, with considerable disagreement amongst judges. It took
ten years before the Court of Appeal was again faced with the issue in a pair of decisions from
1999 in which it basically developed the standard that was subsequently adopted and trans-
ferred to sexuality-based claims by the UK Supreme Court in the 2010 judgment. The case
of Danian established that fear of harm arising from past behaviour does not forfeit a claim
to protection, even if that behaviour was engaged in in order to enhance prospects for asylum
(‘bad faith’), if it led in fact to a genuine fear of persecution.30 Just a few weeks after the deci-
sion in Danian, the Court of Appeal developed this approach further, extending it also to future
behaviour (i.e., what the claimant ‘will in fact do’) in the context of the case of Iftikhar Ahmed.
The Court here for the first time distinguished between a reasonable requirement to behave in
a certain way on the one hand, and a factual assessment that a claimant would act in such a way

26
Ibid.:
If the tribunal concludes that the applicant would choose to live discreetly simply because that
was how he himself would wish to live, or because of social pressures, e g, not wanting to distress
his parents or embarrass his friends, then his application should be rejected. Social pressures of
that kind do not amount to persecution and the Convention does not offer protection against them.
Such a person has no well-founded fear of persecution because, for reasons that have nothing to do
with any fear of persecution, he himself chooses to adopt a way of life which means that he is not
in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that
a material reason for the applicant living discreetly on his return would be a fear of the persecution
which would follow if he were to live openly as a gay man, then, other things being equal, his
application should be accepted. Such a person has a well-founded fear of persecution. To reject
his application on the ground that he could avoid the persecution by living discreetly would be to
defeat the very right which the Convention exists to protect – his right to live freely and openly
as a gay man without fear of persecution. By admitting him to asylum and allowing him to live
freely and openly as a gay man without fear of persecution, the receiving state gives effect to that
right by affording the applicant a surrogate for the protection from persecution which his country
of nationality should have afforded him.
27
See e.g., Millbank (n 8), 500.
28
Mendis (n 18).
29
Ahmad and Others v Secretary of State for the Home Department, [1990] Imm AR 61, UK Court
of Appeal (England and Wales), 6 October 1989.
30
Danian (n 19).

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 The art of drawing lines: future behaviour and refugee status 273

(however unreasonable that would appear to be) on the other, finding that the latter situation
would warrant protection if it led to a well-founded fear of persecution.31
But the situation the UK Supreme Court faced in HJ and HT differed in that a factual
assumption was made that the claimants would in fact not live ‘openly’. None of the previ-
ous British asylum judgments had addressed this scenario. On this issue, the UK Supreme
Court Judges sought guidance from the 2003 Australian High Court decision in Appellant
S395/2002,32 and in particular, the subsequent decision in NABD.33 The judgment in S395,
concerning a gay couple from Bangladesh, had established that in case a claimant would in
fact behave ‘discreetly’, it was necessary to inquire into why they would do so34 – i.e., it was
not sufficient to make a finding that a person would behave ‘discreetly’, and stop the analysis
at that, assuming that there was no risk of persecution for that matter and that ‘discretion’
was uninfluenced by fear. This ‘why question’ acquired the quality of a test in the subsequent
judgment in NABD of 2002, which applied S395 to a case concerning a Christian man from
Iran.35 Here, the Australian High Court established two alternatives in response to the ‘why
question’: If the change of conduct was due to the fear of harm that would otherwise accrue,
it would warrant protection, whereas if the changed conduct was due to personal choice that
would not warrant protection. The latter applied to the applicant in NABD, for whom the
Court concluded that the restraint in the expression of his faith, which did not put him at risk,
was freely chosen.36 That is, while S395 introduced the ‘why question’, NABD developed the
answers to that question.
The UK Supreme Court’s judgment in HJ and HT is clearly derived from and in line with
these previous UK and Australian judgments concerning a claimant’s future behaviour in
cases of religion and political opinion. It is entirely based on what can be termed a factual
assessment of the claimant’s future behaviour. Though it does not prescribe certain types
of conduct as protected and others as not, the assessment depends on the classification of
behaviour as ‘open’ or ‘discreet’ – and in some de facto ‘discreet’ situations, refugee status is
granted, and in others it is not.37

31
The case involved a Pakistani national of Ahmadi faith, who had been persecuted in his local area
for proselytising his faith. The Secretary of State argued that he could relocate and avoid further perse-
cution since it was ‘not unreasonable for him to make some allowances for the situation in Pakistan and
the sensitivities of others and to exercise a measure of discretion in his conduct and in the profession of
his faith’. Writing for the court, Lord Justice Simon Brown concludes that ‘[e]ven assuming, therefore,
that it would be unreasonable for this appellant on return to Pakistan to carry on where he left off ... that
still does not defeat his claim to asylum’. Ahmed (Iftikhar) v Secretary of State for the Home Department,
[2000] INLR 1, UK Court of Appeal (England and Wales), 5 November 1999.
32
Appellant S395/2002 (n 4) and see on this case, Dauvergne and Millbank (n 15).
33
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous
Affairs, [2005] HCA 29, Australia: High Court, 26 May 2005.
34
Appellant S395/2002 (n 2), per McHugh and Kirby JJ at 51 and per Gummow and Hayne JJ at 88;
see also, equally deploring the failure to ask why: Jenni Millbank (2009) ‘From Discretion to Disbelief:
Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United
Kingdom’, 13 International Journal of Human Rights 2/3, 392 and 395–6.
35
Applicant NABD of 2002 (n 33).
36
Ibid., per Hayne and Heydon JJ at 168.
37
Wessels (n 15).

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Hathaway and Pobjoy’s Response

Hathaway and Pobjoy take issue with the UK Supreme Court judgment for failing to provide
a standard of protected acts, such that any type of conduct could lead to protection (if it triggers
persecution). They argue that the decision ignores the ‘protective limits built into the nexus
clause of the Refugee Convention’38 by taking an ‘all-embracing formulation’ to action-based
risks.39 Such an ‘essentially boundless’40 concept is unsustainable and there must be limits on
the claimant’s activities. Their concern is essentially that on the basis of the Supreme Court’s
ruling, claimants could invite persecution with what they consider relatively trivial things,
such as a certain way to dress or going to a particular kind of social event. In their view, the
approach put forward by the UK Supreme Court in HJ (Iran) and HT (Cameroon) – as well as
the Australian High Court in its 2003 decision in S395 – is over-inclusive in suggesting that
there are no limits to the range of ‘activity-based risks’ associated with sexual orientation.
In their understanding, this would come down to the Refugee Convention protecting the full
range of available freedoms rather than protecting from persecution. In order to avoid this,
according to the authors, ‘there [is] a duty on the courts to grapple with the scope of activities
properly understood to be inherent in, and an integral part of, [the protected] status’.41 They
call for a distinction between ‘protected activities that are fairly deemed to be required to
express the identity’ and unprotected activities, which are trivial or marginal to the identity.
To carry out this exercise, they advocate an approach based on the core and margins of rights.
They suggest that only those acts that are reasonably necessary to reveal the sexual orientation
will lead to protection. Thus, they explicitly argue in favour of restraint, based on an external
standard. This is in line with Hathaway’s earlier work in which he has proposed and defended
the position that not all future activities might be protected by the Convention, but rather that
a line should be drawn in order to define the core and the margins of the ‘protected interest’.
For example, he claims that where the relevant right (such as freedom of religion) encom-
passes no public dimension, the denial of public exercise is unlikely to be within the ambit of
a fear of ‘being persecuted’.42
The core/margins approach put forth by Hathaway and Pobjoy bears many parallels with
that developed by the New Zealand Refugee Status Appeals Authority, most notably in its
2004 decision in Refugee Appeal No 74665/03 on sexual orientation.43 In this judgment, in
which he explicitly refers to Hathaway’s work, Haines QC grapples with the application of the
‘human rights approach to “being persecuted”’ to ‘voluntary but legally protected action’.44
He criticises the judgment of the Australian High Court in S395 for failing to offer a principled

38
Hathaway and Pobjoy (n 5), 339.
39
Ibid., 374.
40
Ibid.
41
Ibid., 335.
42
Rodger P G Haines, James C Hathaway, and Michelle Foster (2002) ‘Claims to Refugee Status
based on Voluntary but Protected Actions – Discussion Paper No. 1, Advanced Refugee Law Workshop,
International Association of Refugee Law Judges, Auckland, New Zealand, October 2002’, 15(3)
International Journal of Refugee Law 430, 438–40.
43
Refugee Appeal No. 74665, No. 74665, New Zealand: Refugee Status Appeals Authority, 7 July
2004.
44
Ibid., at 81–91.

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 The art of drawing lines: future behaviour and refugee status 275

explanation as to why behaviour should not have to be modified or hidden,45 and argues that
the focus must be on the minimum core entitlement conferred by the relevant right: ‘Under this
approach, where the risk is only that activity at the margin of a protected interest is prohibited,
it is not logically encompassed by the notion of “being persecuted”.’46
At the heart of both Hathaway and Pobjoy’s as well as the New Zealand Refugee Status
Appeals Authority’s approach lies the concern not to protect triviality. The risk they see in the
UK and Australian approaches is that it would provide protection to claimants whose situation
was actually not that serious. The idea of ‘refugees by choice’ has overshadowed discussions
on the claimant’s behaviour since the beginning.47
The reactions among scholars to Hathaway and Pobjoy’s critique of HJ and HT were
remarkably split, in particular on the aspect of future behaviour – while receiving whole-
hearted support from some, they were faced with severe criticism from others.48 Some schol-
ars, such as Guglielmo Verdirame49 and Richard Buxton,50 but also Deborah Anker and Sabi
Ardalan in more general terms,51 explicitly support their analysis and conclusions. Supportive
reactions generally centre on the severity argument. According to Richard Buxton, formerly
Lord Justice of Appeal at the Court of Appeal of England and Wales, and involved in the
litigation of HJ (his judgment was overturned on appeal), the UK Supreme Court adopted an
approach to the Convention reasons that ‘changed the nature of the protection against persecu-
tion hitherto understood in asylum law, and undervalued the serious level of feared harm that
that law requires before the harm can be made the subject of international protection’.52 He
agrees with Hathaway and Pobjoy in that a ‘critical assessment of a home state’s limitations on
the behaviour of the members of a protected group’ must be undertaken ‘if the enquiry [starts]
from the proper place, by asking whether the limitations on behaviour were persecutory in

45
Ibid., at 116.
46
Ibid., at 90.
47
In Mendis (n 18), Balcombe LJ was of the view that granting refugee status based on future
conduct ‘is tantamount to saying that a person who says he proposes to invite persecution is entitled to
claim refugee status’ and ‘could become a refugee as a matter of his own choice’. Note that Staughton
LJ in contrast thought that in certain cases such a person would qualify for refugee status, because if they
had such strong convictions that they would inevitably speak out, ‘it could be questioned whether the
future conduct would be voluntary in any real sense’.
48
See in particular the contributions to the 2012 special issue of the New York University Journal of
International Law and Politics, addressing questions around the scope of protection and human rights.
Note that David John Frank’s contribution is neither critical, nor supportive of the approach, advanced
by Hathaway & Pobjoy but rather a broader comment on the evolving nature of LGBT rights: David John
Frank (2012) ‘Making Sense of LGBT Asylum Claim: Change and Variation in Institutional Contexts’,
44(2) New York University Journal of International Law and Politics, 485–95.
49
Verdirame (n 7), 572: ‘Hathaway and Pobjoy in their article (and, to a far lesser extent, I, in my
comment) have tried to show that it is possible to draw these boundaries in a principled and coherent way
that accords with the legal framework of refugee law’.
50
Buxton (n 7), 406; ‘The ways in which the outcome of HJ (Iran) appears difficult to reconcile
with orthodox principles of asylum law have been set out in full and, with respect, convincing detail by
Professor Hathaway and Mr. Pobjoy’.
51
Deborah Anker and Sabi Ardalan (2012) ‘Escalating Persecution of Gays and Refugee Protection:
Comment on Queer Cases Make Bad Law’, 44(2) New York University Journal of International Law and
Politics, 529–57.
52
Buxton (n 7), 392.

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the sense of being something that the applicant could not be expected to tolerate’.53 Similarly,
Guglielmo Verdiarme argues that the inability to openly express affection for another man
involves ‘no harm-inducing or authenticity-threatening modifications or social conduct, but
reasonably tolerable inconveniences’.54
More critical scholars take issue with the construction of core and marginal acts. Jenni
Millbank argues that ‘acts and identities in the context of sexual orientation refugee claims
cannot be separated and categorized in that way’.55 She sees a ‘very real danger’ that this ‘call
to circumscription’ would ‘end up as another version of discretion’.56 Her criticism is echoed
by Ryan Goodman, who considers the distinction between protected and unprotected activities
to be vague, lacking legal foundations and overlooking social realities.57 John Tobin critically
engages with the capacity of human rights law to provide clarity on the issue of protected and
unprotected activities in refugee law.58 Most importantly, human rights law knows no test to
rank the seriousness of breaches, such that despite their explicit intention and call to frame
refugee law in terms of human rights, the test proposed by Hathaway and Pobjoy to distinguish
between protected and unprotected activities is in fact unknown to human rights law.59
Moreover, the critical pieces suggest that Hathaway and Pobjoy’s concern with the
‘over-inclusiveness’ of the reasoning in HJ (Iran) and HT (Cameroon) might in fact be an
overreaction to a misunderstood (or misread) section of Lord Rodger’s opinion, in which he
illustrates what equality between gay and straight people means

with stereotypical examples from British society: just as male heterosexuals are free to enjoy them-
selves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals
are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and
talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adapta-
tions would obviously be great – the same must apply to other societies. In other words, gay men are
to be as free as their straight equivalents in the society concerned to live their lives in the way that is
natural to them as gay men, without fear of persecution.60

Hathaway and Pobjoy represented this section as meaning that trivial activities such as
drinking cocktails would entitle to refugee status and were concerned to ‘draw a line’ that
would exclude such conclusions. Therefore, Millbank,61 Goodman,62 Anker and Ardalan63 as
well as Tobin64 suggest that the whole controversy might in fact be a ‘tempest in a cocktail
glass’.65 Much speaks to the fact that they are right about this particular example, but this does

53
Ibid., 406.
54
Verdirame (n 7), 572.
55
Millbank (n 8), 512–13.
56
Ibid., 517.
57
Goodman (n 9), 442.
58
John Tobin (2012) ‘Assessing GLBTI Refugee Claims: Using Human Rights Law to Shift the
Narrative of Persecution Within Refugee Law’, 44(2) New York University Journal of International Law
and Politics, 447–84.
59
Ibid., 473.
60
HJ (Iran) and HT (Cameroon) (n 2), per Lord Rodger at para 78.
61
Millbank (n 8), 522–5.
62
Goodman (n 9), 439.
63
Anker and Ardalan (n 51), 552–3.
64
Tobin (n 58), 474.
65
Millbank (n 8), 522.

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 The art of drawing lines: future behaviour and refugee status 277

not solve the situation that the role of conduct, identity and rights remain highly controversial
and contested in refugee status determination – the vigorous, sometimes even somewhat
harsh, tone of the academic debate on the issue is indicative of that, but also the fact that it
has been resurfacing for decades. It would in turn trivialise the broader implications of the
debate to reduce it to an overreaction to this one section. Notably, not only did HJ (Iran) and
HT (Cameroon) fail to settle the issue of ‘discretion’ reasoning for the common law jurisdic-
tions and legal scholars, it also didn’t prevent Germany from making a referral to the CJEU
for a preliminary ruling on the same issue, only six months after the UK Supreme Court had
handed down its judgment.66 The continuing contentious nature of the claimant’s behaviour
is further evidenced by the fact that during the following years, essentially the same question,
each time a little more refined, was referred to the CJEU on three further occasions,67 with two
judgments having been passed.68

APPROACHING THE PUZZLE

So judges as well as scholars have grappled with the ‘conundrum of concealment’69 for many
years. Time and again, Courts are required to rule on the issue, without, apparently, being able
to settle it – it stubbornly reasserts itself. The HJ and HT vs Hathaway and Pobjoy debate is
but one expression of this long-standing riddle. Rather than dismissing the debate as much ado
about nothing, it may therefore be helpful to try and unravel the knot. The following sketches
avenues for such an analysis. First, it suggests that the core of the dispute is in fact a different

66
Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land
Nordrhein-Westfalen (Germany) lodged on 1 December 2010 – Kashayar Khavand v. Federal Republic
of Germany (Case C-563/10). Note that the UK Supreme Court (in HJ (Iran) and HT (Cameroon) (n 2))
did not, for its part, consider it necessary to refer the question, as Lord Hope noted at para 39:
It was suggested by the appellants that this court should make a reference of a question arising
under the Qualification Directive to the Court of Justice of the European Union under article 267
TFEU (formerly article 234 EC). But the point that was said to require a reference was not clearly
identified, and I would reject that suggestion…
67
Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18
February 2011 – Federal Republic of Germany v. Y (Case C-71/11); Reference for a preliminary ruling
from the Raad van State (Netherlands) lodged on 27 April 2012 – Minister voor Immigratie en Asiel v X
(Case C-199/12); and Reference for a preliminary ruling from the Sächsisches Oberverwaltungsgericht
(Germany) lodged on 30 March 2015 – Federal Commissioner for Asylum Affairs v. N (Case C-150/15).
Two referrals (Kashayar Khavand and X, Y and Z) related to asylum claims based on sexual orientation,
and two related to religion (Y and Z, and N), and notably N was a follow-up asking for clarification on
the Court’s ruling in Y and Z. The referrals in Kashayar Khavaand and in N were however withdrawn
before a decision was handed down by the CJEU, because the national authorities had granted status to
the claimant in the meantime.
68
Federal Republic of Germany v. Y (C-71/11) and Z (C-99/11), (C-71/11 and C-99/11), CJEU,
5 September 2012; and X, Y, Z v Minister voor Immigratie en Asiel (C‑199/12 - C‑201/12), CJEU, 7
November 2013.
69
Term borrowed from James Hathaway (2014) ‘The Conundrum of Concealment: Minister for
Immigration and Border Protection v SZSCA [2013] FCAFC 155’, Melbourne Law School High Court
Blog: Opinions on High, 9 November 2014, available at: https://​blogs​.unimelb​.edu​.au/​opinionsonhigh/​
2014/​11/​09/​hathaway​-szsca​-fcafc/​ (accessed 10 July 2019).

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puzzle. Second, it suggests that the positions put forth represent different ways of handling
that puzzle.
The dispute on the ways in which the claimant’s future behaviour should be assessed,
and limited, regularly draws on two equally accepted but somewhat contradictory notions
of refugee law. The first such notion is the general acceptance that the Convention grounds
are so ‘fundamental to human identity that one should not be compelled to hide, change or
renounce them in order to avoid persecution’.70 The rationale is that to do so would ‘undermine
one of the basic tenets of refugee law – that the Convention protects persons who possess
a well-founded fear of being persecuted on account of their attributes or opinions’.71 The logic
is clear: If it were required to hide the reasons for persecution, then there would be no need
for refugee law. Precisely because the Convention reasons can (for the most part) be hidden, it
cannot be an answer to persecution to tell claimants to forego them. This position clashes with
the equally accepted notion that the Refugee Convention is not there to provide a ‘world wide
guarantee’ of freedoms72 and therefore, claimants cannot expect to be able to ‘live as freely
and openly’ as they could in the country of asylum.73 This is encapsulated in the notion of
‘surrogate’ protection:74 The country of asylum steps in only if the country of origin is unable
or unwilling to protect a person from persecution, defined as ‘serious violations’ of ‘core’ or
‘basic’ human rights.75

70
UNHCR (2004) Guidelines on International Protection No. 6: Religion-Based Refugee Claims
under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees,
28 April 2004, HCR/GIP/04/06, at [13]. See also, UNHCR (2002) Guidelines on International
Protection No. 2: ‘Membership of a Particular Social Group’ Within the Context of Article 1A(2) of
the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/
GIP/02/02, para 6. Similarly, in internal flight or relocation cases, the claimant should not be expected
or required to suppress his or her religious views to avoid persecution in the internal flight or relocation
area. See UNHCR (2003) Guidelines on International Protection No. 4: ‘Internal Flight or Relocation
Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating
to the Status of Refugees, 23 July 2003, HCR/GIP/03/04, paras 19, 25.
71
Alice Edwards (2012) ‘Distinction, Discretion, Discrimination: The new frontiers of gender-related
claims to asylum’, (2012) paper presented at the Gender, Migration and Human Rights Conference at
the European University Institute, Florence, Italy, 19 June 2012, 9. See also McHugh and Kirby JJ
in their joint submission in the Australian High Court case of Appellant S395/2002 v. Minister for
Immigration & Multicultural Affairs [2003] HCA 71, 9 December 2003 at [13]:
The object of the signatories to the Convention was to protect the holding of such beliefs, opin-
ions, membership and origins by giving the persons concerned refuge in the signatory countries
when their country of nationality would not protect them. It would undermine the object of the
Convention if the signatory countries required them to modify their beliefs or opinions or to hide
their race, nationality or membership of particular social groups before those countries would give
them protection under the Convention.
72
Ahmad and Others (n 29), per Farquharson LJ.
73
HJ (Iran) and HT (Cameroon) (n 2), per Lord Hope at para 35: ‘it would be wrong to approach the
issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he
can live as freely and as openly as a gay person as he would be able to do if he were not returned’.
74
See James C. Hathaway (1990) The Law of Refugee Status, Toronto: Butterworths.
75
See ibid., pp. 104–12 and Art 3 of the EU Qualification Directive, Directive 2011/95/EU of the
European Parliament and of the Council of 13 December 2011 on standards for the qualification of
third-country nationals or stateless persons as beneficiaries of international protection, for a uniform
status for refugees or for persons eligible for subsidiary protection, and for the content of the protection
granted (recast), 20 December 2011, OJ L. 337/9-337/26; 20.12.2011, 2011/95/EU.

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That is, while on the one hand, claimants cannot be required to hide the characteristic they
are persecuted for,76 on the other hand they are not entitled to the same level of rights and
freedoms as might be available elsewhere.77 This creates a dilemma: Where does it leave the
claimant and their capacity to express or draw attention to their religion, political opinion or
sexual orientation?
It may be that this is in fact the central conflict of the debates, with the focus on the claim-
ants’ conduct merely being an expression of that clash. The UK Supreme Court judgment as
well as Hathaway and Pobjoy’s approach can both be analysed in light of the tension between
the fundamental characteristics and the surrogacy approach. They equally subscribe to both
principles, but each side slightly prefers one over the other in a situation of conflict. Whereas
both the UK Supreme Court and Hathaway and Pobjoy seek to draw lines, the difference lies
in the limitation. The UK Supreme Court – and, as it seems, the Australian High Court – pri-
oritise the fundamental characteristics approach: a claimant cannot be required to forego their
characteristic in order to avoid persecution. It would allow those claims where the changed
behaviour is due to fear of persecution (and not merely a ‘choice’ flowing from other personal
considerations). Here, the limitation lies in the claimant’s motives. In line with this, the UK
Supreme Court undertakes a factual assessment of what the claimant will do and only accepts
limitations that are not motivated by the avoidance of persecution, but rather by what they term
personal choice. On its face, the UK Supreme Court thus avoids any requirement of ‘discre-
tion’, though – as I have argued elsewhere – it can be questioned to what extent ‘discretion’
can be voluntary in any real sense in a persecutory environment.78 In contrast, Hathaway and
Pobjoy and the New Zealand Refugee Appeals Authority draw on the surrogacy argument:
They agree in that those claims should not be allowed which entail a change of behaviour on
the ‘margins’ of the ‘relevant right’. Marginal – or ‘trivial’ – activity cannot lead to protection,
precisely because refugee law is not to guarantee the same standard of rights and freedoms to
all. Therefore, Hathaway and Pobjoy call for some restraint on the part of the claimants to be
in line with the severity standard of the Convention.
Thus the clash of two fundamental notions of refugee law doctrine materialises in the debate
on the place of the claimant’s conduct in refugee status determination. The two approaches
have certain things in common on one level, but are difficult to reconcile on another. In both
approaches, a sense of a need to somehow ‘limit’ the scope of protection in order to avoid
refugees ‘by choice’ prevails.79 The approaches of the UK Supreme Court and Hathaway and
Pobjoy have in common that they focus on the claimants’ future behaviour to achieve this. As
such, they both rely on the assumption that secrecy is synonymous with safety: the rationale
is that if the claimant does not behave in a particular way, they are not at risk. The difference
lies in the conclusions drawn from this situation. The Hathaway/Pobjoy solution considers it
legitimate to prescribe conduct by classifying protected and unprotected activities, effectively
excluding persecution arising from unprotected conduct from protection – and therefore,
requiring restraint (or ‘discretion’). The UK Supreme Court in contrast refuses to exclude per-

76
S395/2002 (n 4) at 489.
77
HJ (Iran) and HT (Cameroon) (n 2) per Lord Hope at para 35.
78
Such that the UK Supreme Court might in effect still be imposing ‘discretion’ without acknowl-
edging it, see Janna Wessels (2012) ‘HJ (Iran) and HT (Cameroon) – Reflections on a New Test for
Sexuality-based Asylum Claims in Britain’, 24(4) International Journal of Refugee Law 815.
79
Mendis (n 18).

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secution arising from certain types of conduct (and therefore, to require ‘discretion’), focusing
on the harm the claimant would face rather than the way it was triggered. But in case it finds
that a claimant will in fact abstain from acts triggering persecution, it distinguishes by the
motives behind that abstention (fear vs choice).
As such, the HJ (Iran) and HT (Cameroon) vs Hathaway & Pobjoy dispute suggests that
‘discretion’ reasoning is an eternal paradox for refugee law – because of the future-oriented
nature of the refugee definition, the difficulty of predicting the future and the fact that the
applicant can influence that future to some extent by regulating the reason for persecution.

CONCLUSION

HJ (Iran) and HT (Cameroon) and Hathaway and Pobjoy’s article represent two different
positions on the claimant’s future conduct in a long-standing debate. This chapter has argued
that the relevance of future behaviour is an eternal dilemma for refugee law, because of the
future-oriented nature of the refugee definition, the difficulty of predicting the future and the
fact that the applicant can influence the future to some extent. This dilemma is debated within
a context shaped by two principled positions: The idea that refugee law protects fundamental
characteristics, reflected in the Convention grounds, and the idea that it is surrogate protection
for a very serious situation, i.e. persecution. Both sides to the debate share both positions, but
favour one slightly more than the other. As a consequence of that clash, the claimant and their
capacity to exercise restraint (or ‘discretion’) becomes the focus of the analysis, whereas the
persecutor is lost from view. Framing the issue of future behaviour as a materialisation of the
clash of two fundamental notions of accepted refugee law doctrine sheds light on the persis-
tence of the long-standing debate; the harsh tone of the latest controversy and the formation
of opposing ‘camps’; as well as the perplexity as to how to deal with behaviour doctrinally.
But while analysing the dispute as part of a broader discussion in refugee law doctrine helps
situate and untangle the different positions, it cannot ‘solve’ it. Quite the contrary: Everyone
will go on subscribing to the two fundamental ideas, which are in tension, so there is bound
to be no stable solution. If the debate moves elsewhere, the instability will move along. This
has happened in the past and will continue to happen in the future. At the same time, the
unresolved controversy around the claimant’s future behaviour points to the larger issue of the
scope of refugee protection. It raises the question of what refugee law protects and why. What
is it that refugee law is designed to protect? More specifically, what is the role and place of the
Convention grounds in the refugee definition? Further research is needed to shed light on these
fundamental questions at the heart of refugee law.

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18. Some other(ed) ‘refugees’?: women seeking
asylum under refugee and human rights law1
Catherine Briddick

INTRODUCTION

This chapter explores three issues that arise from a consideration of women’s claims for
recognition as refugees under international refugee law (IRL), subsidiary protection and/or
protection from refoulement under international human rights law (IHRL).
The first issue I consider is women’s access to protection. Whilst it remains the case that
men are more likely than women to leave their country of origin and seek protection in Europe,
I draw attention to the increasing numbers of women seeking protection, and the gendered
impacts that Europe’s ‘re-bordering’2 has on those women who are forced to undertake ‘ille-
galised’3 and, therefore, ever-more dangerous journeys. Having examined the ability of both
IRL and IHRL to challenge Europe’s re-bordering, I argue that jurisprudence on violence
against women and sex discrimination should be relied upon to challenge specific instances of
re-bordering that impact disproportionately on women.
The second issue I consider is the scope of protection offered to women seeking protection
from gender-based violence under IRL and IHRL. Whilst much attention has been (rightly)
paid to the positive impact that IHRL has had on IRL, I argue that broad assertions of IHRL’s
primacy when it comes to affording women protection from violence are overly simplistic.
Instead I highlight the value of recourse to a multiplicity of legal sources, particularly the
specialist regimes developed to respond to violence and discrimination against women.
I conclude this chapter with a consideration of a recent success: developments in IHRL
that seek to improve the way that women’s claims for protection are determined. In exam-
ining these developments, I ask whether advocacy that focuses (again, rightly) on securing
procedural protections for women, when coupled with the attack on women’s ability to access
asylum, risks contributing to the denuding of the substantive right, the right to seek and enjoy
asylum from persecution, by equating it, in effect, to compliance with a set of procedures that
comparatively few women are able to benefit from.

1
This chapter is based on a paper given at the ICON-S conference in Berlin and the Refugee Law
Initiative conference in London in June 2016. I would like to thank all those who attended these panels,
as well as my fellow panel members, for all their helpful comments and suggestions. Particular thanks
are due to Professor Cathryn Costello who also commented on a draft of this chapter.
2
Term developed with Professor Costello and Stephanie Motz in discussion.
3
I use this term to draw attention to and problematise the legal processes that render different
migration routes either legal/safe or illegal/unsafe, see Harald Bauder, ‘Why We Should Use the Term
‘Illegalized’ Refugee or Immigrant: A Commentary’ (2014) 26(3) International Journal of Refugee Law
327.

281
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282 Research handbook on international refugee law

ACCESS TO PROTECTION

Access to protection depends on being able to access a jurisdiction in which a protection-seeker

may be recognised as a refugee, be granted subsidiary protection and/or be protected from
refoulement. Asylum’s ‘proximity bias’, that it is only available to those who are able to leave
their own State and enter one that does provide protection, has meant that women have found
it significantly harder than men to seek, never mind obtain, international protection.4 Less
than one-third of protection-seekers in Europe, for example, are women.5 Irregular migration
is predominantly undertaken by men, women either remaining in their countries of origin or
migrating shorter distances, generally only gaining entry to European jurisdictions when and
if family reunion, in one form or another, is possible.6
Women are, however, increasingly undertaking travel to Europe to seek protection, a devel-
opment that has particular gendered consequences when those journeys are illegalised. 45
per cent of first-time asylum applicants in Europe are now women.7 Women make up a sig-
nificant proportion of asylum-seekers from Syria as a substantial number of Syrian families
are migrating together, potentially as a result of the further deterioration in conditions there
and concern about the adoption, by a number of European States, of more restrictive family
reunion policies.8 As Syrians are the largest group currently seeking protection in Europe, this
gender balance is significant statistically, as well as, as we shall see, practically and legally.9
Europe has responded to increased migration flows with a ‘re-bordering’ that is both legal
and physical. I am using the term ‘re-bordering’ to denote the response adopted by the EU and
some, but not all, European States from 2015 to those seeking protection here.10 Of course,
border control (rather than simply management) and the use by States of deterrence policies
(with varying degrees of ‘success’) are not recent phenomena and the re-borderings described

4
Matthew E Price, Rethinking Asylum: History, Purpose and Limits (Cambridge University Press
2009), 164.
5
Between 2008–15 the highest proportion of women claiming asylum was 28 per cent (in 2008),
the lowest 21 per cent (in 2015), Eurostat, ‘Asylum and new asylum applicants by citizenship, age
and sex, annual aggregated data (rounded)’ (Eurostat, 2015) http://​appsso​.eurostat​.ec​.europa​.eu/​nui/​
submitViewTableAction​.do accessed 19 March 2015.
6
Resettlement and humanitarian admission programmes often privilege women/female-headed
households; however, these benefit only very small numbers. For a critique which highlights the instru-
mentalisation of women’s protection needs in this context see Lewis Turner, ‘On Encampment and
Gendered Vulnerabilities: A Critical Analysis of the UK’s Vulnerable Persons Relocation Scheme for
Syrian refugees’ [2015] 5(2) Oxford Monitor of Forced Migration 21.
7
Eurostat, Asylum Statistics (11 May 2016).
8
European Asylum Support Office (EASO), Quarterly Asylum Report: Quarter 3, 2015 (2015).
9
In 2015 the number of first-time asylum applicants in Europe from Syria rose to 363,000, 29
per cent of the total – 14 per cent of applicants are Afghani, 10 per cent Iraqi, 5 per cent Kosovan and
Albanian and 4 per cent Pakistani, Eurostat (n7) 1.
10
The terms ‘refugee crisis’ or ‘migration crisis’ are avoided here as it is not the arrival of
protection-seekers, even in significant numbers, that is productive of ‘crisis’ but the response, or lack
thereof, of the EU and some of its members to them.

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 Some other(ed) ‘refugees’? 283

here need to be considered within this broader context.11 What is apparent is the extension and
intensification of these policies, with deadly effect, from 2015.12
Legal re-bordering involves the removal of lawful migration opportunities in combination
with the strengthening and deepening of the territorial border through enhanced immigration
controls. It is not just that legal migration routes are curtailed, but that this curtailment occurs
in direct and inverse proportion to the need for them.13 Denied lawful entry, those seeking
protection face a strengthening of the border outside Europe through the use of carrier sanc-
tions, juxtaposed immigration controls and the increasing use of security arrangements that
radiate south into North Africa.14 Also apparent is the use of an increasing array of criminal
penalties against those who assist protection-seekers to gain entry to a particular jurisdiction,
as well as the increasing deployment of the criminal law and the coercive power of the State
(for example, through detention followed by deportation under the EU-Turkey deal) against
those who actually manage to gain entry. The border is also deepened, reaching within States
as migration status becomes determinative of an ever increasing array of social rights.15
Examples of physical re-bordering at Europe’s external borders include naval block-
ades, interception at sea and push-backs as well as the militarisation of land borders (for
example at the Moroccan-Spanish borders at Ceuta and Melilla and on the border between
Turkey-Bulgaria and Turkey-Greece).16 Borders between European States have also been mil-
itarised, as the British border in Calais and the Hungarian and Slovenian border walls/fences
illustrate. Movement within Europe has also been curtailed by the reintroduction of border
controls between a number of Schengen States.17
The effect of this re-bordering on those seeking asylum is considerable, and indeed, lethal.
The different facets of legal and physical re-bordering described have been shown to increase

11
Deterrence policies adopted by European States in the 1990s did reduce ‘in-flows’; their effects,
however, were relatively small compared with other migration determinants, Mathias Czaika and Hein
De Haas, ‘The Effectiveness of Immigration Policies’ (2013) 39(3) Population and Development Review
487, 502–503.
12
The closure of the Balkan route started on 17 Nov. 2015 as Slovenia stopped allowing
protection-seekers from countries such as Iran, Eritrea and Somalia to cross its border. The next day
similar restrictions were imposed by Macedonia, Serbia and Croatia. Further restrictions followed in
these and other countries and by 9 March 2016 the route was completely closed with Macedonia’s border
closure.
13
The number of Schengen visas given to Syrian nationals before and during the conflict demon-
strates this; the total number granted dropping from over 30,000 in 2010 to almost none in 2013, EU
Agency for Fundemental Rights (FRA), Legal Entry Channels to the EU For Persons In Need of
International Protection: A Toolbox (FRA Focus, February 2015). The increasingly restrictive policies
adopted by some European States to family reunion is a further example.
14
For a detailed examination of the latter see Ruben Andersson, Illegality, inc.: Clandestine
Migration and the Business of Bordering Europe (Oakland, CA: University of California Press 2014).
15
Including in the UK, the ability to hold or renew a driving licence or rent private accommodation,
Immigration Act 2016.
16
Repeated allegations of the use of lethal force have accompanied this militarisation, Human Rights
Watch, Bulgaria: Pushbacks, Abuse at Borders (20 Jan 2016) and http://​bulgaria​.bordermonitoring​.eu,
accessed 19 March 2019.
17
For a detailed discussion of these phenomena and their implications see Cathryn Costello and
Minos Mouzourakis, ‘The CEAS – Where did it all go Wrong?’ in Maria Fletcher, Ester Herlin Karnell
and Claudio Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge
2017 (forthcoming)).

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284 Research handbook on international refugee law

the number and proportion of attempts to enter territory unlawfully and in ever more danger-
ous ways, thus increasing the numbers of those seeking protection dying as a result.18 Whilst
a consideration of gender has been noticeably absent from debates on Europe’s re-bordering,
the increasing numbers of women seeking protection makes engaging in such an analysis
legally and politically necessary. The question that arises, therefore, is how do women expe-
rience Europe’s re-bordering and the illegalised journeys they are compelled to undertake as
a consequence?
A cursory analysis of the available evidence reveals that at every stage of the journey from
country of origin to country of destination/protection, women are at particular and heightened
risk of experiencing violence, including fatal violence. Externalised border controls have
been implicated in the gender-based violence experienced by women in transit.19 Whilst men
face a higher risk of death at internal border sites (such as in detention) a greater proportion
of women than men die at frontiers.20 Drowning is the leading cause of border-related death
and women are more likely than men to drown/die at sea.21 Being pregnant is particularly
associated with drowning and with dying at a frontier.22 Women die, Sharon Pickering and
Brandy Cochrane conclude, as a result of border control practices, in combination with the
gendered practices of both smugglers/traffickers and families/communities.23 Once within
Europe, women remain subject to violence and particular gendered forms of it, as re-bordering
has been linked with increases in the numbers of women and children being trafficked into and
within Europe, primarily for sexual exploitation.24 The increased use of detention in Greece
following the EU-Turkey deal, a general lack of appropriate reception facilities and failures
in, or the withdrawal of, financial support for protection-seekers, have also been identified as
increasing women’s insecurity and risk of experiencing violence.25
Europe’s re-bordering has clear, adverse consequences for all those seeking to access
protection. For women, however, these consequences include an increased risk of experi-
encing gender-based violence, both within and without Europe, and an increased risk of
dying at a frontier. To draw on Pickering and Cochrane’s research, it matters where, how
and why women experience violence or die because the site of violence or death determines

18
Mathias Czaika and Mogens Hobolth, ‘Do Restrictive Asylum and Visa Policies Increase
Irregular Migration into Europe?’ (2016) 17(3) European Union Politics 345, which showed that a
10 per cent increase in short-stay visa rejections leads to a 4–7 per cent increase in irregular border
entries and Thomas Spijkerboer, ‘Moving Migrants, States, and Rights Human Rights and Border
Deaths’ (2013) 7(2) The Law & Ethics of Human Rights (213). See also www​.borderdeaths​.org; http://​
unitedagainstrefugeedeaths​.eu; and http://​fortresseurope​.blogspot​.co​.uk, accessed 19 March 2019.
19
Alison Gerard and Sharon Pickering, ‘Gender, Securitization and Transit: Refugee Women and the
Journey to the EU’ 27(3) Journal of Refugee Studies 338, 348–9.
20
Sharon Pickering and Brandy Cochrane, ‘Irregular Border-Crossing Deaths and Gender: Where,
How and Why Women Die Crossing Borders’ (2013) 17(1) Theoretical Criminology 27, 39 and 44.
21
Ibid., 37.
22
Ibid., 33 and 39.
23
Ibid., 28 and 45.
24
European Commission, Report On The Progress Made in the Fight Against Trafficking in
Human Beings (Brussels, COM(2016) 267 final, 19 May 2016) and Sylvia Walby and others, Study
on the Gender Dimension of Trafficking in Human Beings (Migration and Home Affairs, European
Commission, 2016).
25
Women’s Refugee Commission, EU-Turkey Agreement Failing Refugee Women and Girls
(August 2016) and Jane Freedman, ‘Engendering Security at the Borders of Europe: Women Migrants
and the Mediterranean “Crisis”’ (2016) 29(4) Journal of Refugee Studies 568–82.

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 Some other(ed) ‘refugees’? 285

the legal response to it, as the Committee that oversees the Convention on the Elimination of
Discrimination Against Women (CEDAW)26 has recognised:

… the experiences of women during displacement, from asylum to integration, return or settlement
in a third country, in addition to those of stateless women, are shaped by the action or inaction
of various actors. States’ parties bear the primary responsibility for ensuring that asylum-seeking
women, refugee women, women nationality applicants and stateless women within their territory or
under their effective control or jurisdiction, even if not situated within their territory, are not exposed
to violations of their rights under the Convention, including when such violations are committed by
private persons and non-State actors.27

One limitation on both IRL and IHRL’s ability to counter Europe’s re-bordering is, therefore,
that many of the facets of it described here occur as a consequence of State action, but outside
the territory or effective control of the relevant State. Such acts also do not always involve
the direct exercise of public powers. Consequently, whilst the Committee Against Torture has
found migrants in a transit country to be within the jurisdiction of the European State which
had intercepted and detained them,28 much of the violence that women experience in transit
which can be causally linked with the re-bordering practice of a particular European State
(gender-based violence experienced in an Italian-funded Libyan detention centre, for example)
has not occurred within the jurisdiction of that European State.29 European States may be
liable for such acts under IHRL where, as Thomas Gammeltoft-Hansen and James Hathaway
argue (also using the example of Italian-Libyan cooperation), such acts can be characterised
as aiding or assisting in the commission of an internationally wrongful act.30 A violation of the
right to life or the failure to act with due diligence to protect women from violence are both
internationally wrongful acts.31 However, as Gammeltoft-Hansen and Hathaway conclude,
the content of the duty not to aid or abet another State to breach international law is not yet
fully developed in IHRL.32 Consequently, whilst the deaths of men in detention centres may
be investigated and those responsible held accountable, there are no such responses to the
violence, even fatal violence, that women experience in transit countries or, in some cases, at
frontiers.

26
Convention on the Elimination of All Forms of Discrimination against Women (New York, 18
Dec 1979) UNTS Vol 1249 (CEDAW).
27
General Recommendation No. 32 on the Gender-Related Dimensions of Refugee Status, Asylum,
Nationality and Statelessness of Women (CEDAW/C/GC/32) (CEDAW’s GR 32), para 7.
28
JHA v Spain UN Committee Against Torture, CAT/C/41/D/323/2007, 21 Nov 2008. In Xhavara
and Fifteen Others v Italy and Albania App no 39473/98 (ECtHR, 11 Jan 2001) jurisdiction was found
in relation to an extra-territorial act which had extra-territorial effects.
29
Example taken from Gerard and Pickering (n 19) 348–9. Italian-Libyan collaboration on migration
can be traced to a 2008 ‘Friendship Pact’ which involved the payment of $5 billion to Libya, Andersson
(n 14) 14.
30
Thomas Gammeltoft-Hansen and James C Hathaway, ‘Non-Refoulement in a World of Cooperative
Deterrence’ (2015) 53(2) Columbia Journal of Transnational Law 235, 276–82.
31
Art 2, European Convention on Human Rights and Fundemental Freedoms (4 November 1950)
ETS 5 (ECHR) and Velasquez Rodriguez v Honduras Series C no 4 (IACtHR, 29 July 1988). See also
Rashida Manjoo, ‘State Responsibility to act with Due Diligence in the Elimination of Violence against
Women’ (2013) 2 International Human Rights Law Review 240.
32
Gammeltoft-Hansen and Hathaway (n 30) 282.

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286 Research handbook on international refugee law

Jurisdiction is not the only factor which limits IRL or IHRL’s ability to challenge Europe’s
re-bordering. The ability of States to deny access to their jurisdiction, even to refugees
(refugee status being declaratory, not constitutive) arises because the 1951 Convention on the
Status of Refugees (the CSR) does not require States to admit protection-seekers, although it
does prevent States from penalising those who do gain entry.33 Whilst border walls, border
closures and the interception and return of migrant vessels at sea have been identified as giving
rise to refoulement, the modality of IRL (as a system of law which in practice has no interna-
tional body charged with its enforcement) means that relying on its prohibition of refoulement,
or provision on non-penalisation, is challenging.34 The Council of Europe Convention on
Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul
Convention) may be of assistance here; it does have a supervisory body and mechanism.35 The
Istanbul Convention’s protection from refoulement (which is based on the CSR and Art 3 of
the European Convention on Human Rights (the ECHR)36) includes ‘not prohibiting access
to the territory of a country to asylum seekers who have arrived at its borders or who are pre-
vented to access its borders’.37 Protection from refoulement under both the CSR and Istanbul
Convention may, therefore, be of assistance in challenging some of the instances of physical
re-bordering described above.
Whilst domestic human rights protections in some jurisdictions have been relied on to
contest particular deterrence policies, the ability of IHRL to do so has, so far, proven lim-
ited.38 Although there are international supervisory bodies charged with the monitoring and
enforcement of human rights treaties, its exclusionary premise and deference to the ‘rights’
of States to exercise immigration control makes relying on IHRL to secure the rights of
protection-seekers challenging.39 The European Court of Human Rights (the ECtHR) has, for
example, repeatedly reiterated that:

States have the right, as a matter of well-established international law and subject to their treaty
obligations, to control the entry, residence and expulsion of aliens, and that the Convention does not
guarantee, as such, any right to enter, reside or remain in a State of which one is not a national.40

33
Convention Relating to the Status of Refugees (Geneva, 22 April 1954) UNTS Vol 189 (CSR), Art
31.
34
See, e.g., the CJEU’s unprincipled decision in C‑481/13 Qurbani ECLI:​EU:​C:​2014:​2101 [2014].
35
Council of Europe Convention on Preventing and Combating Violence Against Women and
Domestic Violence (Istanbul, 11th Oct 2011) CETS 210 (Istanbul Convention).
36
ECHR (n 31).
37
Council of Europe, Council of Europe Convention on Preventing and Combating Violence Against
Women and Domestic Violence: Explanatory Report (2011), commentary to Art 61.
38
R v Appulonappa 2015 SCC 59, [2015] 3 SCR 754, a Canadian case, involved a successful
challenge to smuggling offences deemed over-broad and unconstitutional because they criminalised
‘humanitarian’ acts.
39
It is accepted in IHRL that States can deny access to their territory. Whilst Art 13 of the Universal
Declaration of Human Rights recognises a right of residence and movement within a State, as well as the
right to leave it, no corresponding right of entry into another country exists. In Art 14, the ‘right to seek
and to enjoy in other countries asylum from persecution’ is not met with a corresponding duty to receive
such ‘right-holders’.
40
Bonger v The Netherlands, App 10154/04 (ECtHR, 15 Sept 2005), first set out in Abdulaziz,
Cabales and Balkandali v UK App nos 9214/80; 9473/81; 9474/81 (ECtHR, 28 May 1985), paras 66–69.

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 Some other(ed) ‘refugees’? 287

What limited jurisprudence there is on border walls/fences similarly indicates IHRL’s accept-
ance of the premise that these physical manifestations of re-bordering are legitimate; they just
cannot be (too) violent or used to annex territory.41 The ECtHR, has of course, been relied
on to challenge both refoulement and collective expulsions as occurred in the notable case
of Hirsi Jamaa and Others (2012); women applicants are, however, conspicuously absent or
underrepresented in these cases.42
Whilst this brief analysis has not considered who might have the standing to bring legal
challenges or issues relating to shared responsibility (whether between States or where the
re-bordering practice stems from the EU) it has shown that IRL and IHRL may be relied on
to challenge some of the re-bordering practices described above, specifically those that con-
stitute refoulement or which involve the exercise of jurisdiction.43 However, some instances
of re-bordering appear to remain immune to challenge (legally and/or practically) even where
they contribute to women’s deaths or experiences of gender-based violence. In the final
part of this section, I consider two cases which may be relied upon to challenge particular
re-borderings that adversely impact on women: Opuz v Turkey (2009) and Rantsev v Cyrpus
and Russia (2010).44
The applicant in Opuz brought a case complaining that her rights had been breached by
Turkey’s repeated failure to protect her and her mother from domestic violence perpetrated by
her husband/ex-husband; violence that in the applicant’s mother’s case proved fatal. In a land-
mark ruling the ECtHR made a number of conclusions about domestic violence and discrim-
ination against women. Drawing on its own jurisprudence and CEDAW the Court found that
domestic violence, as a form of violence against women, constituted discrimination against
women. The failure to investigate and adequately protect women from such discriminatory
violence breached their right to the equal protection of the law, even though the relevant laws
appeared to be gender-neutral. It was irrelevant whether or not that failure was intentional.45
Significantly, the failure to protect women from domestic violence and accord them equal pro-
tection under the law was attributed to the criminal justice system in Turkey as a whole.46 The
Court consequently found breaches of Articles 2 and 3 ECHR, in conjunction with Article 14.
The second case I draw on concerned Oxana Rantseva, a 21-year-old woman from Russia
who died within two weeks of arriving in Cyprus. Ms Rantseva was in Cyprus on an ‘artiste’
visa, a visa that existed to facilitate the movement of women into Cyprus for the purposes of
sexual exploitation. Holders of artiste visas were subject to a number of rights-restrictions
and placed in a relationship of forced dependency on their employer.47 In Ms Rantseva’s case
these restrictions resulted in her being returned by the police, just hours before she died, to
an ‘employer’ she had sought to leave. The ECtHR held that the artiste visa regime violated
the positive obligations of Article 4 ECHR by not affording their holders sufficient protection

41
Streletz, Kessley and Krenz v Germany and K-H W v Germany App nos 34044/96, 35532/97 and
44801/98 (ECtHR GC, 22 March 2001) and Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory Advisory Opinion (ICJ, 9 July 2004).
42
Hirsi Jamaa and others v Italy App no 27765/09 (ECtHR GC, 23 Feb 2012).
43
Per Gammeltoft-Hansen and Hathaway (n 30) understood as arising extra-territorially where
a State has effective control or is, under certain circumstances, exercising public powers.
44
Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 Jan 2010).
45
Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009), paras 184–191 and 200.
46
Ibid., paras 192–202.
47
Rantsev v Cyprus and Russia (n 44) paras 291–293.

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against trafficking.48 Whilst the Court stopped well short of requiring States to enable or
facilitate migration that is safe and lawful, the judgment affirms that those routes that States
do choose to provide must afford migrants practical and effective protection from trafficking,
or, one may surmise, other conduct that violates an individual’s Convention rights, such as the
right to be free from inhuman and degrading treatment and the right to life.
The steps the Court has taken in Opuz and Rantsev to expound upon the obligations on
States not to discriminate against women (directly or indirectly, intentionally or otherwise)
and to protect women from violence that results from both State action and inaction can be
drawn upon to challenge legal re-bordering practices which impact disproportionately on
women, even where these impacts are experienced outside of the relevant State’s territory.49
The adoption of a more restrictive family reunion policy could, for example, be argued to dis-
criminate against women because women continue to make up the majority of family reunion
beneficiaries. Other legal re-borderings, such as a reduction in the number of Schengen visas
granted or the imposition of carrier sanctions, may impact on women and men, but women
may be more likely than men to be trafficked or experience other forms of violence as a con-
sequence. The question that arises in relation to a particular re-bordering practice is, therefore,
whether or not it breaches the positive obligations in the right to life and the prohibitions on
inhuman and degrading treatment, slavery and servitude, in conjunction with the negative
obligation not to unlawfully discriminate. A full consideration of the nature and scope of the
legal obligations owed by States to women outside their territory is beyond the scope of this
chapter.50 However, following Opuz and Rantsev such obligations include ensuring that the
migration routes States do provide do not discriminate against women or expose women to the
risk of harm, including trafficking, violence or death. States also have an obligation to inves-
tigate and respond to violence, including that which is fatal and gender-based.51 Women have
the right to be protected from gender-based violence. Particular immigration rules or practices,
as well as, potentially, immigration law as a whole, may be impugned if it is unable to offer
women protection from such violence.
Of course, in engaging in such hypothesising, I am presuming, with foundation, that the
connections drawn above between, for example, a decrease in legal migration routes and
an increase in women undertaking dangerous journeys could be made sufficiently to satisfy
a court.52 Being able to draw on the Court’s jurisprudence on discrimination is crucial here:
the ECtHR does not have procedural rules which limit the admissibility of evidence that
may demonstrate the differential impact of a particular rule or practice on women and men;
nor is there any restrictive formula which states how such evidence should be assessed.53
Applicants can draw on a range of different sources to show disparate treatment and, when
they have done so, the onus is on the State to justify that treatment.54 Justifications for dif-

48
Ibid., paras 292–293.
49
States can be held responsible for the effects of immigration controls which are experienced
outside their territory, X and Y v Switzerland (1977) 9 DR 57.
50
See Spijkerboer (n 18) for a general account in relation to the right to life.
51
In Xhavara and Fifteen Others v Italy and Albania (n 28) the duty to investigate was found to
apply extra-territorially.
52
Spijkerboer (n 18) establishes a link between re-bordering practices and the increasing numbers of
deaths of protection-seekers.
53
DH and others v Czech Republic App no 57325/00 (ECtHR GC, 13 November 2007).
54
Opuz v Turkey (n 45).

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 Some other(ed) ‘refugees’? 289

ferential treatment are evaluated by reference to relevant international standards.55 CEDAW

General Recommendations, as well as other specialist sources, can be drawn upon to demon-
strate that particular forms of violence, such as domestic violence or trafficking, are indeed
gender-related and that particular rules/practices, such as apparently gender-neutral immigra-
tion rules, are discriminatory.56
This section has argued that Europe is re-bordering and this has particular and under-examined
consequences for women seeking to access protection. Whilst some instances of physical
re-bordering can and have been successfully challenged, I have demonstrated that legal
measures, which restrict lawful migration, are as implicated in re-bordering as a phenomenon
as those which constitute refoulement, and have argued that the ECtHR’s jurisprudence on
violence and discrimination against women can be drawn on to challenge these. The use of
IHRL to vindicate the rights of protection-seekers should not be limited to challenging those
re-borderings which are physical. If law can be used to create and sustain conditions which
result in women undertaking unsafe journeys, it should also be capable of challenging them.

SCOPE OF PROTECTION

As the previous section has shown, IHRL and IRL interact with each other in a number of
different ways and at a number of different levels. Human rights instruments are used to define
‘persecution’ in the CSR, elaborate on the CSR grounds and inform a consideration of whether
or not a State is able to offer a ‘sufficiency of protection’ to its citizens. This section considers
the relationship between IHRL and IRL in relation to women’s claims for protection from
gender-based violence.
Whilst refugee law has been interpreted ‘properly’ to enable women fleeing domestic
violence to obtain refugee status, the way in which such cases have been decided has been,
in some instances, troubling.57 In Shah and Islam (1999)58 and Khawar (2002),59 for example,
domestic violence is essentially seen as a private matter, the nexus between such violence and
a CSR ground not lying in the violence itself, but the failure of the relevant States to offer
protection from it. This is problematic because, as discussed in the preceding section, domestic
violence is discrimination against women. The nexus between domestic violence and a con-
vention ground lies, therefore, in both the discriminatory/persecutory nature of the violence
itself and the failure of the State to offer women protection from it. Similarly, in Kasinga
(1996) it is resistance to FGM that is held to create the relevant particular social group (PSG),
not fearing or undergoing FGM itself, FGM being another form of violence and discrimination
against women.60

55
Biao v Denmark App no 38590/10 (ECtHR GC, 24 May 2016).
56
General Recommendation 19 Violence Against Women (11th session, 1992) (CEDAW’s GR 19)
and CEDAW’s GR 32.
57
UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution Within the
Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of
Refugees, (HCR/GIP/02/01, 7 May 2002) para 6.
58
Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, ex parte
Shah [1999] UKHL 20.
59
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
60
In re Fauziya Kasinga 3278, US Board of Immigration Appeals, 13 June 1996.

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IHRL has, therefore, been looked to to both improve IRL’s response to violence against
women and to offer subsidiary protection to women at risk of it. Debora Anker, for example,
has argued that the interpretation of refugee law should be grounded within a human rights
paradigm for women’s benefit.61 Catherine Dauvergne and Jenni Millbank have similarly
argued that one of the problems with refugee law is its persistent failure to ‘fully embrace
human rights norms, especially as they relate to gender and sexuality’.62
There are a number of shortcomings to this analysis that I want to highlight. The first is
that whilst some refugee cases have treated violence against women that occurs in the private
sphere as not in and of itself giving rise to a claim for protection, this is not uniformly the case.
In Olimpia Lazo-Majano v INS (1987) (a US case on domestic violence) and Refugee Appeal
No 76044 (2008) (a New Zealand case on domestic violence and so-called ‘honour’ killings)
the private sphere harms experienced/risked were found to be persecution on the grounds of
political opinion.63 In Fornah (2006) (a UK case on FGM) and Refugee Appeal No 71427
(2000) (another New Zealand case on domestic violence) the persecution the applicant expe-
rienced/risked was found to be because she was a woman from Sierra Leone, or in the latter
case, simply a woman.64
IHRL is also not immune to the criticisms that Dauvergne and Millbank level at IRL, as
a consideration of the ECtHR’s jurisprudence on forced marriage, Dauvergne and Millbank’s
concern, illustrates. AA and Others v Sweden (2012) concerned a Yemeni woman and her six
children who had fled violence perpetrated by AA’s husband.65 AA had been forced into the
marriage. AA’s husband had subjected his eldest daughter to a forced marriage and planned
the same for his younger daughters. AA had tried and failed to obtain a divorce; she and her
family subsequently fled to Sweden where they claimed and were refused asylum. The ECtHR
held that the applicants’ deportation to Yemen would not breach Article 3. This decision was
based on a combination of disbelief of the applicants themselves and belief in the availability
of alternative protection via male family members.66 Surprisingly the Court also found that the
risk of forced marriage to a child did not reach the required threshold to breach Article 3.67 The
Court’s judgment is, as Thomas Spijkerboer oberves, shameful:

The Court takes as given, and thereby reproduces the assumption that seems to be dominant in
Yemenite family relations that women need a male relative (father, husband, brother, son) in order to
be protected against violence of other men. The judgement assumes and thereby reproduces the social
system of female dependency on male relatives, of which forced marriage forms a part. Article 3
ECHR apparently does not protect women against patriarchy even in its most violent form. It requires

61
Deborah Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard
Human Rights Journal 133.
62
Catherine Dauvergne and Jenni Millbank, ‘Forced Marriage as a Harm in Domestic and
International Law’ (2010) 73(1) Modern Law Review 57, 58.
63
Olimpia Lazo-Majano v INS No 85-7384, USCA 9th Circuit, 2 April 1987 and Refugee Appeal No
76044 (RSAA, 11 Sep 2008).
64
Fornah v Secretary of State for the Home Department [2006] UKHL 46 and Refugee Appeal No
71427 (RSAA, 16 Aug 2000). See also Michelle Foster, ‘Why We Are Not There Yet: The Particular
Challenge of “Particular Social Group”’ in Efrat Arbel, Catherine Dauvergne and Jenni Millbank (eds),
Gender in Refugee Law, From the Margins to the Centre (Routledge, 2014).
65
AA and others v Sweden App no 14499/09 (ECtHR, 28 June 2012).
66
Ibid., paras 77–94.
67
Ibid., 93.

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 Some other(ed) ‘refugees’? 291

women to play by its rules – try to pay back the dowry, try to identify nicer men to protect you and
hope that alternative dependency will not turn violent as well.68

This approach is similar to that adopted by the ECtHR in two other cases: F v UK (2004)69 and
Z and T v UK (2006).70 F v UK concerned the criminalisation of consensual same-sex sexual
activity; in that case the Court found that such laws breached the applicant’s Article 8 right
to a private and family life but that the gravity of this breach was not sufficient to prevent
removal. Similarly, in Z and T v UK, which concerned the ability of Christians in Pakistan
to manifest their religious beliefs, the Court held that Article 9 was engaged but could not
be relied on to prevent removal. AA was based on Article 3;71 F v UK and Z and T v UK con-
cerned ‘flagrant breaches’ of Articles 8 and 9 ECHR. Whilst deportation is prohibited if there
are substantial grounds for believing that, if returned, an applicant would face a real risk of
experiencing any treatment contrary to Article 2 or 3 ECHR, deportation is only precluded if
an applicant faces a ‘flagrant breach’ of the other rights protected by the Convention. What is
similar about these cases is, however, the Spikerboer ‘play the game’ point. The applicants are
all held to be able to avoid discriminatory/persecutory treatment by conforming with the very
structures that oppress them: to go to their male relatives for protection from other men; to
hide their sexual orientation or religious beliefs.72 In contrast, in HJ Iran (2011)73 and Y and Z
(2012),74 IRL has clearly and comprehensively vindicated the rights of those who do not want
to collude with a persecutory system in order to avoid persecution.75
Discussion about the role that IHRL has in relation to defining persecution often rests on
a prior assumption: that persecution can only be determined by reference to (certain, often
limited) human rights standards. Cases like Refugee Appeal No 76044 and HJ Iran demon-
strate that this is not the case and that there is enormous potential for women’s different
experiences of violence, patriarchy and subordination to be recognised as persecution in and
of themselves. Breaches of human rights norms may be illustrative of that conduct which is
persecutory, but they are not and should not be thought to be determinative of it. The question
that arises is, therefore, how this illustration might be improved. As the preceding section’s
discussion of Opuz indicates, both human rights and IRL would benefit from an engagement
with the instruments developed to respond to violence against women and discrimination.
Articles 60 and 61 of the Istanbul Convention are specifically concerned with women’s pro-
tection claims. States are required to:

68
Thomas Spijkerboer, ‘European Sexual Nationalism: Refugee Law After the Gender and Sexuality
Critiques’ (Nordic Asylum Seminar, University of Uppsala, 8 May 2015), 4.
69
F v UK App no 17341/03 (ECtHR, 22 June 2004).
70
Z and T v UK App no 27034/05 (ECtHR, 28 Feb 2006).
71
Potentially because in N v Sweden App no 23505/09 (ECtHR, 20 Oct 2010) an inability to divorce
was held to breach Art 3.
72
This may also explain EM (Lebanon) v Secretary of State For The Home Department [2008]
UKHL 64 which concerned a ‘flagrant breach’ of Art 8 ECHR. Here there was simply no way in which
the successful applicant, a woman who was to be separated from her child by Lebanese family law, could
‘play the game’.
73
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31.
74
Joined Cases C-71/11 and C-99/11 Bundesrepublik Deutschland v Y and Z ECLI:​EU:​C:​2012:​518
[2012].
75
HJ (Iran) (n 73).

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take the necessary legislative or other measures to ensure that gender-based violence against women
may be recognised as a form of persecution within the meaning of Article 1, A (2), of the 1951
Convention relating to the Status of Refugees and as a form of serious harm giving rise to comple-
mentary/subsidiary protection.76

Article 60(2) turns to the CSR grounds themselves and requires States to ensure that they are
interpreted gender-sensitively, something that may assist in ‘shifting’ women’s claims from
PSG to the other CSR grounds, where relevant. What is significant about these provisions is
that while they do not purport to develop IRL, they require States to be actively involved in
ensuring that women’s claims for asylum are treated ‘properly’, rather than simply leaving
these issues to decision-makers to determine. CEDAW’s General Recommendation 32 also
speaks to both IHRL and IRL on issues pertaining to asylum and non-refoulement.77 The
recommendation is useful in a number of respects, including acknowledging that women’s
persecution may arise through the accumulation of different forms of discrimination, recog-
nising the continuum of violence against women.78 The recommendation rejects the lens of
‘male experience’ through which women’s claims for protection are often viewed. It encour-
ages States to add sex/gender as a ‘ground’ in their national law (for the benefit of women
and LGBTI applicants) in addition to requiring States to take proactive measures to ensure
a gender-sensitive interpretation of all the CSR grounds.
In this section I have explored IRL and IHRL’s response to women’s claims for protection
from violence. In doing so I have argued that assertions of IHRL’s primacy, when it comes to
affording women protection from violence, fail to capture both the complexity of the relation-
ship between it and IRL and the weaknesses of the former in relation to such violence.79 Rather
than positing a hierarchical relationship between these bodies of law, I have highlighted the
value of reference to a multiplicity of sources and particularly the importance to both IRL and
IHRL of recourse to the specialist regimes developed to respond to violence and discrimina-
tion against women.

THE PROCEDURALISATION OF A SUBSTANTIVE RIGHT?

IHRL has been used to speak to the CSR’s silence on status determination, providing important
procedural safeguards and guarantees.80 Both the Istanbul Convention and, to a greater extent,
CEDAW’s General Recommendation 32 continue in this vein, the latter detailing circum-

76
Istanbul Convention (n 35), Art 60(1).
77
CEDAW’s GR 32 (n 27).
78
Ibid., para 14; see also Ulrike Krause, ‘A Continuum of Violence? Linking Sexual and
Gender-based Violence during Conflict, Flight, and Encampment’ (2015) 34 Refugee Survey Quarterly
1.
79
See Heaven Crawley, ‘[En]gendering International Refugee Protection: Are We There Yet?’ in
Bruce Burson and David James Cantor (eds), Human Rights and the Refuge Definition (Boston: Brill
Nijhoff 2016) on these points.
80
David James Cantor, ‘Reframing Relationships: Revisiting the Procedural Standards for Refugee
Status Determination in Light of Recent Human Rights Treaty Body Jurisprudence’ (2015) 34 Refugee
Survey Quarterly 79.

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 Some other(ed) ‘refugees’? 293

stances in which States should provide legal information and advice, childcare for interviews,
access to female interviewers and interpreters and a host of other important protections.81
It is, of course, vital that procedures designed to ascertain who does, and does not, require
protection are gender-sensitive. A woman will not disclose an experience of sexual violence,
for example, if she is not given the proper opportunity to do so (without her children being
present, following the receipt of legal advice/information, in an appropriate environment and
to a female interviewer through a female interpreter).82 Whilst developments that improve
status determination are, therefore, to be welcomed, I want to end this chapter by sounding
a note of caution and asking whether or not a focus on such procedures risks reducing the
substantive right to seek and enjoy asylum to a set of procedures that, given the re-bordering
described earlier, fewer and fewer women are able to avail themselves of. The question of
whether or not a State is upholding their protection obligations cannot be equated with, or
ascertained by reference to, whether or not it has a particular set of procedures in place. This
question can only be answered through a consideration of whether or not protection-seekers
can access the jurisdiction in question, are accorded procedural protections during status deter-
mination and, where required, are recognised as refugees, granted subsidiary protection and/
or protected from refoulement. Process is not the same as outcome. Positive developments in
status determination processes need to be secured alongside the ability of women to actually
access and benefit from them.

CONCLUSION

The relationship between refugee and human rights law is highly contested.83 In this chapter
I have engaged with these debates through a consideration of three issues that arise in rela-
tion to women’s claims for protection under IRL and IHRL. In doing so I have sought to
highlight two recent additions to the panoply of IHRL which have the potential to improve
both systems: the Istanbul Convention and CEDAW’s General Recommendation 32. Overall,
I have argued that whilst the process of ‘adding in gender’ to both IRL and IHRL has indeed
been ‘transformative’,84 a consideration of each system’s response to the three elements of
women’s claims considered here – access, scope and status determination – reveals that this
transformation remains far from complete.

81
CEDAW’s GR 32 (n 27) paras 42–50.
82
Helen Baillot, Sharon Cowan and Vanessa E Munro ‘‘Hearing the Right Gaps’: Enabling and
Responding to Disclosures of Sexual Violence within the UK Asylum Process’ (2012) 21(3) Social &
Legal Studies 269.
83
Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee and Human Rights Law’ in Ruth Rubio-Marín (ed), Human Rights and
Immigration (Oxford: OUP 2014) and, in response Cathryn Costello, ‘The Search for the Outer Edges of
Non-refoulement in Europe: Exceptionality and Flagrant Breaches’ in Burson and Cantor (n 79).
84
Siobhán Mullally, ‘Migration, Gender, and the Limits of Rights’ in Ruth Rubio-Marín, ibid., 175.

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294 Research handbook on international refugee law

SELECTED REFERENCES
Anker D, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights
Journal 133.
Bauder H, ‘Why We Should Use the Term ‘Illegalized’ Refugee or Immigrant: A Commentary’ (2014)
26(3) International Journal of Refugee Law 327.
Chetail V, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between
Refugee and Human Rights Law’ in R Rubio-Marín (ed), Human Rights and Immigration (Oxford:
OUP 2014).
Costello C, ‘The Search for the Outer Edges of Non-refoulement in Europe: Exceptionality and Flagrant
Breaches’ in B Burson and D J Cantor (eds), Human Rights and the Refugee Defintion (Boston: Brill
Nijoff 2016).
Costello C and M Mouzourakis, ‘The CEAS – Where did it all go wrong?’ in Maria Fletcher, Ester Herlin
Karnell and Claudio Matera (eds), The European Union as an Area of Freedom, Security and Justice
(Routledge 2017).
Crawley H, ‘[En]gendering International Refugee Protection: Are We There Yet?’ in B Burson and D J
Cantor (eds), Human Rights and the Refuge Definition (Boston: Brill Nijhoff 2016).
Czaika M and H De Haas, ‘The Effectiveness of Immigration Policies’ (2013) 39 Population and
Development Review 487.
Czaika M and M Hobolth, ‘Do Restrictive Asylum and Visa Policies Increase Irregular Migration into
Europe?’ (2016) 17(3) European Union Politics 345.
Dauvergne C and J Millbank, ‘Forced Marriage as a Harm in Domestic and International Law’ (2010)
73(1) Modern Law Review 57.
Foster M, ‘Why We Are Not There Yet: the Particular Challenge of “Particular Social Group”’ in E
Arbel, C Dauvergne and J Millbank (eds), Gender in Refugee Law, From the Margins to the Centre
(Routledge 2014).
Freedman J, ‘Engendering Security at the Borders of Europe: Women Migrants and the Mediterranean
‘Crisis’’ (2016) 29(4) Journal of Refugee Studies 568.
Gammeltoft-Hansen T and J C Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’
(2015) 53(2) Columbia Journal of Transnational Law 235.
Gerard A and S Pickering, ‘Gender, Securitization and Transit: Refugee Women and the Journey to the
EU’ (2013) 27(3) Journal of Refugee Studies 338.
Mullally S, ‘Migration, Gender, and the Limits of Rights’ in R Rubio-Marín (ed), Human Rights and
Immigration (Oxford: OUP 2014).
Pickering S and B Cochrane, ‘Irregular Border-Crossing Deaths and Gender: Where, How and Why
Women Die Crossing Borders’ (2013) 17(1) Theoretical Criminology 27.
Spijkerboer T, ‘Moving Migrants, States, and Rights Human Rights and Border Deaths’ (2013) 7(2) The
Law and Ethics of Human Rights 213.
Spijkerboer T, ‘European Sexual Nationalism: Refugee Law After the Gender and Sexuality Critiques’
(Nordic Asylum Seminar, University of Uppsala, 8 May 2015).

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19. The rights of women seeking asylum:
procedural and evidential barriers to protection
Nora Honkala

It has long been recognised that women face specific challenges in having their claims recog-
nised under the Refugee Convention. Although women can, of course, suffer from the same
kinds of human rights abuses as men, women may experience them in different ways. Women
may be persecuted for the same reasons, for instance because of their religion or ethnic back-
ground, but their persecution is more likely to include sexual violence or rape. Persecution of
women is also more likely to occur in the so-called private sphere and at the hands of non-state
actors.
In the absence of gender as a Convention ground, the Refugee Convention has been tradi-
tionally interpreted through the male perspective, leaving the specific gender-based concerns
of women’s claims unacknowledged.1 Feminist scholarship has brought to bear the importance
of understanding the experiences of refugee women within the gendered context in which
persecution takes place.2 This growing body of feminist critiques has challenged the ways in
which the gendered interpretations of the Convention continue to marginalise women’s expe-
riences, as well as how women asylum seekers face particular practical challenges within the
refugee determination context.
In 1985, in an effort to try to address the gendered interpretations of the Refugee Convention,
the UNHCR offered guidance to state parties suggesting that women’s gender-based claims
could be considered under the membership of a particular social group ground.3 Over the
years, the UNHCR has developed a range of Guidelines and conclusions that have consistently
referred to international human rights law instruments to assist recognition of the need for
gender-sensitive approaches.4 These references underscore the advances made in the recogni-

1
See UNHCR, Guidelines on International Protection: Gender-Related Persecution Within the
Context of Article 1 A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of
Refugees, 7 May 2002, UN Doc. HCR/GIP/02/01 (hereinafter UNHCR Gender Guidelines); Alice
Edwards, ‘Age and Gender Dimensions in International Refugee Law’ in Erika Feller, Volker Türk and
Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on
International Protection (CUP, 2003), 46–80; Efrat Arbel, Catherine Dauvergne and Jenni Millbank
(eds) Gender in Refugee Law: From the Margins to the Centre (Routledge, 2014).
2
See Audrey Macklin, ‘Refugee Women and the Imperative of Categories’ (1995) 17 Human
Rights Quarterly 213; Heaven Crawley, Gender and Refugees: Law and Process (Jordans, 2001);
Thomas Spijkerboer, Gender and Refugee Status (Ashgate, 2000); Jane Freedman, Gendering the
International Asylum and Refugee Debate (Palgrave Macmillan, 2007); Alice Edwards, ‘Transitioning
Gender: Feminist Engagement With International Refugee law and Policy 1950–2010’ (2010) 29(2)
Refugee Survey Quarterly 21.
3
UNHCR, Executive Committee Conclusion No.39 (XXXVI): Refugee Women and International
Protection (1985), UN Doc. A/40/12/Add.1.
4
See UNHCR Gender Guidelines (2002), UNHCR: Guidelines on the Protection of Refugee
Women (Geneva, July 1991), UN Doc. ES/SCP/67. For repeated calls to develop and implement guide-

295
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tion of women’s human rights under international human rights law, international criminal law
as well as under domestic initiatives.5
Significant recent developments in international human rights law evidence the growing
recognition of these specific concerns of refugee women and the challenges to the protection of
their rights. For instance, on the anniversary of the Refugee Convention, in 2011, the CEDAW
Committee adopted a statement that addressed the issue of gender equality for refugees. The
CEDAW Committee called on states to recognise gender-related forms of persecution and
stressed that ‘gender-sensitive registration, reception, interview and adjudication processes
also need to be in place to ensure women’s equal access to asylum’.6 In a further call on
gender equality and non-discrimination obligations of state parties in respect of asylum seeker
women and refugees, in 2014, the CEDAW Committee in their General Recommendation
No. 32, makes the link of violence against women and asylum, as well as providing a range
of measures that state parties are obliged to provide to women claiming asylum.7 Lastly,
the Istanbul Convention addresses directly the rights of asylum seeker women by requiring
that gender-sensitive interpretation be given to each of the Refugee Convention grounds.8
The Istanbul Convention also addresses practical challenges to protection by requiring the
provision of gender-sensitive reception procedures, support services and asylum procedures,
including refugee status determinations.
These developments are undoubtedly significant in the recognition of the rights of asylum
seeker women at the international level but to what extent are they reflected in practice? This
chapter examines some of the procedural and evidential barriers to the protection of the rights
of asylum seeker women within the refugee determination context in the UK. It begins by first
outlining some of the practical barriers to gender-sensitive interview procedures and discusses
some of the obstacles to being heard at the asylum screening and interview. Secondly, focusing
on the nature of gender-based persecution, the specific issues relating to trauma, memory and
disclosure are discussed. The third section focuses on the challenge of lack of country specific
knowledge and information relating to gender issues before outlining the challenges of the
problematic approaches to credibility in many women’s cases.

lines that recognise gender-related claims, see UNHCR Executive Committee, ‘General Conclusion on
International Protection’, Conclusions No. 77 (XLVI) (1995); No. 79 (XLVII) (1996), No. 81 (XLVII)
(1997), No. 87 (L) (1999), http://​www​.unhcr​.org/​578371524​.pdf accessed 23 September 2016.
5
Audrey Macklin, ‘Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian
and Australian Approaches to Gender-Related Asylum Claims’ (1998) 13(1) Georgetown Immigration
Law Journal 25, 29.
6
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW
Statement on the Anniversaries of the 1951 Convention Relating to the Status of Refugees and the
1961 Convention on the Reduction of Statelessness, 19 October 2011, http://​www​.refworld​.org/​docid/​
4ea13f012​.html accessed 9 September 2016.
7
CEDAW Committee, ‘General Recommendation No. 32 on the Gender-Related Dimensions
of Refugee Status, Asylum, Nationality and Statelessness of Women’, 14 November 2014, UN Doc.
CEDAW/C/GC/32.
8
Council of Europe Convention on Preventing and Combating Violence Against Women and
Domestic Violence, Art 60(2) (hereinafter the Istanbul Convention).

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 The rights of women seeking asylum 297

1. PRACTICAL BARRIERS TO GENDER-SENSITIVE

INTERVIEW PROCESSES

When an asylum seeker applies for refugee or humanitarian protection status, the decision is
made by a ‘case owner’ at the UK Visas and Immigration (previously UKBA), an official of
the Home Office.9 Initially, an asylum seeker attends an ‘asylum screening’ where she will be
assigned a case owner and a substantive interview is arranged where a decision is made. If the
case owner rejects her claim, as is often the case,10 an asylum seeker has the right to appeal
to the Immigration and Asylum Chamber of the First-tier Tribunal, and thereafter an onward
appeal to the Upper Tribunal. Criticisms about poor first-instance decision-making have
been widely reported by refugee organisations11 and acknowledged by the UNHCR’s Quality
Initiative Reports reviewing the work of the Home Office decision-makers.12 The combina-
tion of poor quality initial decision-making, arising in particular from negative credibility
assessments, and the complex nature of women’s gender-based persecution claims means that
women’s cases are more likely to be overturned on appeal.13
For many women asylum seekers, the process of the asylum screening and interviews is
the first point at which difficulties arise. It is of crucial importance that the asylum interviews
are conducted in an appropriate way. As this might be the first time for many of the asylum
seekers to tell their story, special attention needs to be placed on the vulnerable situation in
which most asylum seekers find themselves when being interviewed by an official.14 Any

9
After years of sustained criticism of the United Kingdom Border Agency’s (UKBA), on 26 March
2013, the then Home Secretary Theresa May announced that the UKBA’s performance was ‘not good
enough’ and that it was to be scrapped, https://​www​.gov​.uk/​government/​speeches/​home​-secretary​-uk​
-border​-agency​-oral​-statement. As the UKBA was abolished, its functions were divided into two sec-
tions, namely the ‘Visas and Immigration’ and ‘Law Enforcement’ sections. Though, in a leaked memo
to staff, Permanent Secretary Mark Sedwill said that ‘most staff would ‘still be doing the same job in
the same place with the same colleagues for the same boss’, http://​www​.bbc​.co​.uk/​news/​uk​-politics​
-21941395 both accessed 11 September 2016.
10
Rejection rate of 62 per cent. Home Office, ‘National Statistics: Asylum’, 26 August 2016, https://​
www​.gov​.uk/​government/​publications/​immigration​-statistics​-april​-to​-june​-2016/​asylum, accessed 11
September 2016.
11
Amnesty International UK: Get it Right – How Home Office Decision Making Fails Refugees
(2004), available at https://​www​.amnesty​.org​.uk/​sites/​default/​files/​get​_it​_right​_0​.pdf, Independent
Asylum Commission, Fit For Purpose Yet?: The Independent Asylum Commission’s Interim Findings
(2008), http://​ www​ .independentasylumcommission​ .org​
.uk/​
, Helen Muggeridge and Chen Maman,
Unsustainable: The Quality of Initial Decision-making in Women’s Asylum Claims (Asylum Aid,
January 2011) accessed 11 September 2016.
12
The Quality Initiative Project ran from 2005 till 2009 aiming to ‘positively influence first instance
decision-making’, their findings highlighting a number of causes of concern, particularly relating to the
application of the refugee definition, approaches to credibility and the conduct of interviews. See specif-
ically, UNHCR, ‘Quality Initiative Project: Second Report to the Minister, 2005’ http://​www​.unhcr​.org/​
uk/​quality​-initiative​-and​-integration​.html accessed 23 September 2016.
13
Asylum Aid examined 45 women’s asylum claims at the initial decision-making stage, of the
87 per cent of claims that were refused by the case owners, 50 per cent were overturned on appeal.
Muggeridge and Maman (2011), 31.
14
Nienke Doornbos, ‘On Being Heard in Asylum Cases: Evidentiary Assessment Through Asylum
Interviews’ in Gregor Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Procedures
(Martinus Nijhoff, 2005), 103–22, 104.

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meaningful disclosure requires a non-judgemental environment and an establishment of trust

between the interviewee and the case owner.15
CEDAW Committee’s General Recommendation 32 includes the provision of information,
trained interviewers and decision-makers, the right to a female interviewer on request, child-
care and counselling. The right to a female interviewer on request is important for women in
order to create an environment that is conducive to disclosure. Women may prefer to have
a female case owner/interviewer and/or interpreter when speaking about experiences of
gender-based persecution, such as rape, sexual violence or domestic violence. After consistent
advocacy efforts by refugee NGOs, applicants are now being asked at the asylum screening if
they would like a male or female interviewer.16 However, based on their research interviews
with asylum seeker women, Asylum Aid concluded that one of the reasons for many women
expressing no preference was the result of an environment in which women were not able
to give an informed response to the question. Some women described feeling intimidated;
having their interviews held via glass window and having felt hurried, confused and unin-
formed.17 The majority of women said that with hindsight they would have requested a female
interviewer.18 However, as Baillot, Cowan and Munro have noted, there is a risk that female
interviewers would be regarded as a panacea in this context, particularly if the assumption is
made that women would necessarily make for more receptive listeners.19
Even if a woman requests a female interviewer, operational time constraints mean that this
does not always happen.20 This is also the case with regard to childcare. Although the Home
Office Asylum Policy Instruction recognises that the presence of children would be stressful
for them, as well as potentially inhibiting disclosure, the provision of childcare remains piece-
meal, which can result in some women being interviewed in front of their children.21
As noted above, international gender guidelines now exist outlining recommendations for
gender-sensitive refugee determination procedures. National gender guidelines for Home
Office caseworkers were introduced 2004 in the UK22 though research found very little evi-
dence of them being used in practice,23 knowledge of their content or even their existence.24

15
Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘Seen but not Heard? Parallels and
Dissonances in the Treatment of Rape Narratives Across the Asylum and Criminal Justice Contexts’
(2009) 36(2) Journal of Law and Society 195, 207.
16
Asylum Aid (2011), 36. See also, Home Office, ‘Asylum Policy Instruction: Asylum Interviews’,
4 March 2015, para 3.7, https://​www​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​
410098/​Asylum​_Interviews​_AI​.pdf accessed 23 September 2016.
17
Asylum Aid (2011), 36.
18
Ibid.
19
Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘Second-hand Emotion? Exploring the
Contagion and Impact of Trauma and Distress in the Asylum Law Context’ (2013) 40(4) Journal of Law
and Society 509, 521.
20
Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘Reason to Disbelief: Evaluating the Rape
Claims of Women Seeking Asylum in the UK’ (2014) 10(1) International Journal of Law in Context 105,
117.
21
Asylum Aid (2011), 40.
22
See Home Office, ‘Asylum Policy Instruction: Gender Issues in the Asylum Claim’ (2004,
updated 2006) https://​www​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​257386/​
gender​-issue​-in​-the​-asylum​.pdf accessed 23 September 2016.
23
Sophia Ceneda and Claire Palmer, ‘ “Lip Service” or Implementation? Home Office Gender
Guidance and Women’s Asylum Claims in the UK’ (Refugee Women’s Resource Project, 2006).
24
Baillot, Cowan and Munro (2013), 521.

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Furthermore, gender guidelines that were adopted at an appeal level in 2000 were removed
during the restructuring of the Tribunals system with a denial that the guidelines were ever
official policy.25 Therefore, as Freedman has noted, the advancements that have been made in
jurisprudence recognising gender-based persecution remain ‘undermined by the operation of
random and discretionary exercises of power by bureaucrats and decision-makers’.26

2. OBSTACLES TO BEING HEARD IN THE ASYLUM

SCREENING AND INTERVIEWS

The narrative of the asylum seeker is central to her claim, yet there are several structural, pro-
cedural and ideological barriers that restrict the ability of the asylum seekers’ narrative to be
told, to be heard, and to be understood. The UNHCR has published guidance on the process of
refugee status determination under the Refugee Convention, titled Handbook on Procedures
and Criteria for Determining Refugee Status (UNHCR Handbook).27 Though it recognises that
each country has to produce its own guidelines and procedures the UNHCR has always pleaded
for a generous asylum policy in the spirit of the Universal Declaration of Human Rights. The
UNHCR Handbook states that the examiner ‘must apply the criteria in a spirit of justice and
understanding’.28 Equally, adjudicators must have the required knowledge and experience of
an applicant’s particular difficulties and needs.29 The Handbook acknowledges that, according
to the general legal principle, the burden of proof rests on the applicant, but it also stresses
that ‘the duty to ascertain and evaluate all the relevant facts is shared between the applicant
and the examiner’.30 Repeatedly, the Handbook emphasises that the applicant should be given
the ‘benefit of doubt’ at all stages of the process.31 The impossibility of ‘proving’ everything
in the applicant’s story is recognised and it is stated that it might sometimes be necessary for
the examiner to use ‘all the possible means at his disposal to produce the necessary evidence
in support of the application’.32 Importantly, the UNHCR states that ‘untrue statements by
themselves are not a reason for refusal of refugee status’ and that it ‘is the responsibility of the
examiner to evaluate those statements in light of all the circumstances’.33
However, in practice, the structure of the process of refugee determination creates obsta-
cles from the beginning. The conceptual framework for the interviews is premised on an

25
Baillot, Cowan and Munro (2009), 202.
26
Jane Freedman, ‘Women’s Right to Asylum: Protecting the Rights of Female Asylum Seekers in
Europe?’ (2008) 9 Human Rights Review 413, 414. For lack of consistency in the American context, see
Sara L. Zeigler and Kendra B. Stewart, ‘Positioning Women’s Rights Within Asylum Policy: A Feminist
Analysis of Political Persecution’ (2009) 30(2) Frontiers: A Journal of Women’s Studies 115.
27
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, HRC/IP/4/Eng/REV.1, Reedited
Geneva,1992, UNHCR 1979, Reissued 2011 (hereinafter UNHCR Handbook).
28
Ibid., para 202.
29
Ibid., para 190.
30
Ibid., para 196. (Emphasis added).
31
Ibid., paras 196, 203.
32
Ibid., para 196.
33
Ibid., para 199. (Emphasis added).

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‘androcentric and eurocentric basis of ideology, theory and method’.34 Emphasis is placed on
‘knowledge’ and its gathering. This is done through decisions made by the official about what
is important in the asylum seeker’s narrative, the questions asked, the language used and inter-
pretations made to elicit this knowledge.35 The method of extracting this knowledge is based
on a traditional interviewing practice, which prioritises ‘value-free objectivity’ and detach-
ment, thus establishing a subject-object hierarchy between the interviewer and interviewee.36
The focus is on finding out ‘attributes of the object in order to assign it to categories’ and
further to ‘use rules about the categories to explain and predict the object’s behavior’.37 This is
problematic because refugee experiences can often defy general preconceptions of ‘common
sense’ amongst decision-makers. How a person acts in a situation of extreme violence, conflict
or persecution challenges any ‘normal’ analysis of risk taking for instance.38 The experiences
can be so horrific that the tendency to think them unbelievable seems to be often present. Yet
this form of doubt should not be used as a signifier of the ‘truthfulness’ of the refugee story.
This being the case, the opportunities for an asylum seeker to voice her personal narrative
of her experiences remain limited. She must respond to the official’s questions without scope
for expansion on other factors that the official does not consider relevant or important.39 This
process risks reducing the asylum seekers’ story to the portion of her life that can be written
in the shape of a ‘travelogue’ which is ‘documented by means of place descriptions and time-
frames’.40 This portion is repeatedly re-moulded and re-narrated by various people, including
interpreters, lawyers, experts and adjudicators during the refugee determination process.41
But it is this portion that might not be intelligible, even to the applicant herself, against which
her credibility and any inconsistencies are measured as if it was her own free narrative of
her experiences and she was the central author.42 At this point, the applicant has already lost
control of her narrative.
Yet what is expected of her is to produce her statement in a coherent narrative form rather
than in a fragmented manner.43 A number of obstacles can be present: some claimants will
experience discomfort and shame, which can be amplified by their cultural and personal back-
ground; difficulties in recording, recollecting and recounting traumatic events are common.44
Within the criminal justice systems, it has been identified that rigid, interrogative, closed ques-

34
Deborah Cheney, ‘Valued Judgments?: A Reading of Immigration Cases’ (1993) 20 Journal of
Law and Society 23, 25.
35
Ibid.
36
Ibid.
37
Richard Nisbett as cited in Ilene Durst, ‘Lost in Translation: Why Due Process Demands
Deference to the Refugee’s Narrative’ (2000–2001) 53 Rutgers Law Review 127, 153.
38
Jane Herlily, Kate Gleeson and Stuart Turner, ‘What Assumptions About Human Behaviour
Underlie Asylum Judgments?’ (2010) 22(3) International Journal of Refugee Law 351, 355–6.
39
Walter Kälin, ‘Trouble Communication: Cross-Cultural Misunderstandings in the Asylum
Hearing’ (1986) 20(2) International Migration Review 230, 232.
40
Jan Blommaert, ‘Investigating Narrative Inequality: African Asylum Seekers’ Stories in Belgium’
(2001) 12(4) Discourse and Society 413, 442.
41
Baillot, Cowan and Munro (2009), 209.
42
Blommaert (2001), 438.
43
Kälin (1986), 232. For Australian context, see Trish Luker, ‘Decision Making Conditioned by
Radical Uncertainty: Credibility Assessment at the Australian Refugee Review Tribunal’ (2013) 25(3)
International Journal of Refugee Law 502.
44
Baillot, Cowan and Munro (2009), 209.

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tions and a direct answer format of testimony, as well as the adversarial environment of the
courtroom, are all obstacles to victims of rape.45 Asylum seekers may face similar problems
during the refugee determination process and the parallels to the criminal justice system are
evident in many women’s asylum cases. A significant proportion of women seeking asylum
will have experienced rape in the country of origin, and for many this will form a part of their
narrative. An understanding of trauma and its effect on asylum seekers is thus a necessary part
of a gender-sensitive approach.

3. TRAUMA, MEMORY AND BARRIERS TO DISCLOSURE

The difficulties with the process of the interview are exacerbated by the psychological factors
involved. Most asylum seekers have gone through traumatic experiences, with in many cases
gender-based persecution, sexual violence or rape as part of their experience. A common
assumption during this ‘knowledge’ finding process is that an experience of severe violence is
so important that it will be remembered very clearly over a period of time.46 The expectation
of a coherent narrative is but an extension of this assumption. This assumption is based on the
belief that all memories are the same. How we think memory operates is commonly based on
autobiographical memory. This memory is of a ‘normal’ event and it presents itself by being
verbal and sequenced (having a beginning, middle and an end).47 It is recognised as being in
the past and may be recalled voluntarily, for instance when asked.48 Yet studies of autobio-
graphical memory have confirmed their variability.49 Furthermore, memories of traumatic
events do not operate in the same way. They may include incomplete accounts and flashbacks
that are experienced in the present and are often triggered by external or internal cues rather
than being subject to conscious recall.50 This means that there are serious obstacles to answer-
ing officials’ questions in a coherent or consistent manner.
Psychologists and psychiatrists have shown that both depression and post-traumatic stress
disorder (PTSD) are associated with a pattern of overgeneral memory, in which individuals
have difficulty retrieving memories of specific events.51 Both depression and PTSD are highly
common in asylum seekers. Thus, trauma can alter the account of the asylum seeker in various
ways. For a traumatised person, time and space perceptions are altered, memory blocks can
occur and disassociation is common.52 Herlily notes that ‘people suffering from PTSD due to

45
Ibid.
46
Jane Herlily and Stuart W. Turner, ‘Asylum Claims and Memory of Trauma: Sharing our
Knowledge’ (2007) 191 British Journal of Psychiatry 3, 3.
47
Ibid.
48
Ibid.
49
See Stephen J. Anderson et al ‘Rewriting the Past: Some Factors Affecting the Variability of
Personal Memories (2000) 14 Applied Cognitive Psychology 435; Juliet Cohen, ‘Errors of Recall
and Credibility: Can Omission and Discrepancies in Successive Statements Reasonably Be Said to
Undermine Credibility of Testimony?’ (2001) 69(1) Medico-Legal Journal 25, 27.
50
Ibid. See also, Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’
(2010) 22(4) International Journal of Refugee Law 469.
51
Richard McNally, Remembering Trauma (Harvard University Press, 2005) 131.
52
Cecile Rousseau et al ‘The Complexity of Determining Refugeehood: A Multidisciplinary
Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board’ (2002)
15(1) Journal of Refugee Studies 43, 49. For a study in the Australian context, see Zachary Steel, Naomi

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experiences of sexual violence will be more likely to be prioritizing above all other consider-
ations the avoidance of thoughts, feelings, and conversations about their experiences’ as well
as having potential gaps in their memory about the details of those experiences.53 This is of
course extremely difficult for an asylum seeker as the official is expecting a detailed account
of times and dates to fit into the ‘travelogue’. Furthermore, difficulties in concentrating,
common for traumatised people, can be responsible for numerous little mistakes, which in
a legal setting are interpreted easily as lack of credibility.54
At the time of the interview, two phenomena are operating: the influence of traumatic
experiences on the claimant’s testimony and the impact of her stories on the officials.55 This
means that disclosure by the applicant is influenced by the traumatic experiences. But it also
means that the impact of exposure to traumatic experiences on the listener, the official, can be
serious. This in turn can mean that the officials may restrict disclosure by avoiding asking for
more details of the most traumatic events.
A study by Bögner, Herlily and Brewin, on the impact of sexual violence on disclosure
during Home Office interviews found that, in a sample of 27 participants, all those who
disclosed a history of sexual violence, reported being prevented from talking about it further
in the interview by the Home Office official.56 The authors concluded that one explanation
for this could be vicarious traumatisation suffered by the interviewers working with trauma
survivors.57 This supports previous research by Rousseau et al. that analysed the operation of
the Canadian Immigration and Refugee Board. This multidisciplinary research team found that
vicarious traumatisation and uncontrolled emotional reactions were among the factors having
a negative impact on the Board members’ ability to evaluate credibility and on the overall
conduct of the hearing.58
Research from the psychological and psychiatric fields supports these conclusions.
Psychodynamic analyses have demonstrated that traumatic histories can evoke ‘voyeuristic
and sadistic impulses in the listener’.59 Over-exposure to traumatic accounts often produces
defensive reactions in the listener, which can lead to trivialisation of horror, cynicism, and
lack of empathy.60 Likewise, these defensive reactions can result in dismissal or demonisation
of the ‘other’.61 This may go some way in shedding light on the troubling allegation, made
by a whistleblower named Louise Perrett, how one official ‘boasted to her that he tested the
claims of boys from African countries who said they had been forcibly conscripted as child

Frommer and Derrick Silove, ‘The Mental Health Impacts of Migration: The Law and its Effects- Failing
to Understand: Refugee Determination and the Traumatised Applicant’ (2004) 27 International Journal
of Law and Psychiatry 511.
53
Jane Herlily, ‘Psychological Barriers to Fair Refugee Status Determination Relating to our
Understanding and Expression of Gender’ in Arbel, Dauvergne and Millbank (2014), 116–35, 123.
(emphasis in original text).
54
Ibid.
55
Ibid., 48.
56
Diana Bögner, Jane Herlily, and Chris R. Brewin, ‘Impact of Sexual Violence on Disclosure
During Home Office Interviews’ (2007) 191 British Journal of Psychiatry 75, 79.
57
Ibid.
58
Rousseau et al (2002), 53.
59
Ibid., 49 citing the work of Maren Vinar and Marcelo Vinar, Exit et Torture (Éditions Denoël,
1989).
60
Rousseau et al (2002), 49.
61
Ibid.

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soldiers by making them lie down on the floor and demonstrate how they shot at people in the
bush’.62
As Rousseau et al. have pointed out, even though there is increasing evidence of the signif-
icance of vicarious traumatisation, this has not been studied in the immigration court setting;
yet it can be hypothesised that they are likely to have a major influence on the decision-making
process.63 Indeed, UNHCR’s report suggested that the Home Office’s culture of disbelief
could be a result of stress in the form of compassion fatigue and disillusionment.64
Consequently, it is clear how significant impact trauma can have within the refugee determi-
nation process. Trauma plays a weighty role in limiting the possibility of narrating a coherent
story, which can impact negatively on the asylum seekers’ case because of the expectations
that the quasi-legal and legal settings impose. This shows the restricted boundaries of narrow
legal processes, which have limited space for taking into account the complexity of the human
story. Crucially, there exists no national referral mechanisms for the provision of psychologi-
cal assistance, trauma support or counselling for asylum-seeker women fleeing gender-based
persecution.
On the institutional side, assessments of gender-based persecution claims require a trained
interviewer that understands that shame, fear of authorities, trauma and not understanding what
may be relevant to an asylum claim are some of the reasons behind late disclosure.65 Because
of the prevalence of trauma within this context, it is necessary that the decision-makers are
aware of its possible consequences not only on the applicant but also on themselves. In turn,
this requires service provisions to be provided to ensure decision-makers’ are well supported,
particularly in order to limit the negative impact of vicarious traumatisation. It ought to be
noted, however, that without substantial changes to organisational culture, the effectiveness of
service provisions in this context remain unclear.66

4. LACK OF COUNTRY SPECIFIC INFORMATION AND

KNOWLEDGE OF GENDER ISSUES

Each year, the Independent Chief Inspector of Borders and Immigration monitors the work
of the UKVI. The Chief Inspector is appointed to provide independent scrutiny of the UK’s
border and immigration functions reporting to the Home Secretary. The reports are placed
before Parliament and are available publicly. Each of the Chief Inspector’s reports deals with
different areas of the work of the UKVI, and the criticisms have been robust.

62
Diane Taylor and Hugh Muir, ‘Border Staff Humiliate and Trick Asylum Seekers-Whistleblower’,
The Guardian, 2 February 2010, https://​www​.theguardian​.com/​uk/​2010/​feb/​02/​border​-staff​-asylum​
-seekers​-whistleblower accessed 11 September 2016.
63
Rousseau et al (2002), 49.
64
UNHCR, Quality Initiative Project Report (2005), 12.
65
Hana Cheikh Ali, Christel Querton and Elodie Soulard, ‘Gender Related Asylum Claims in
Europe: A Comparative Analysis of Law, Policies and Practice Focusing on Women in Nine European
Union Member States’ (European Parliament, Directorate General for Internal Policies, Department of
Citizens’ Rights and Constitutional Affairs, 2012) http://​www​.europarl​.europa​.eu/​meetdocs/​2009​_2014/​
documents/​femm/​dv/​asylum​_claims​_/​asylum​_claims​_en​.pdf accessed 23 September 2016.
66
Baillot, Cowan and Munro (2013), 539.

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One of the reports is particularly relevant to initial decision-making. In his 2011 thematic
report, the Chief Inspector at the time John Vine, addressed the problems with regard to the
use of country of origin information in deciding asylum applications. The Chief Inspector
found that the primary sources of country of origin information were the reports produced by
the Country of Origin Information Services (COIS) and that case owners rarely conducted
any further research.67 At the time of writing there are COIS for 39 countries, those countries
from which there are most asylum applications. This of course creates another problem: what
do case owners do when there is no COIS? The Chief Inspector found that there exists great
variability in case owners’ approach in these circumstances. Some regions encouraged case
owners to do their own research while others discouraged this based on grounds such as time
limitations.68 The Chief Inspector also noticed that in one region there was an unofficial list of
‘objective sources’ while others simply referred to the United States State Department (USSD)
Reports.69
It is arguably impossible to compile wholly ‘objective’ country of origin evidence on issues
of culture, norms and conditions where the asylum seekers are fleeing from.70 This is exac-
erbated by the staff compiling them lacking research training and skills. Country of Origin
reports produced by the Home Office staff have been repeatedly criticised for containing basic
inaccuracies, for being partisan, for being out of date and for being insufficiently sensitive
to gender issues.71 Of particular note to asylum seeker women’s cases is the problem of COI
often being too generic. While COI about the general human rights situation may be available,
information about the status and treatment of women is commonly limited. This particularly
affects women because gender-based persecution often occurs in the so-called private sphere,
which means violations of women’s rights are less widely reported. Crawley’s thematic review
on the coverage of women in COI reports found that, contrary to the recommendation of the
UNHCR Gender Guidelines,72 little or no information was found in many of the reports on
the risks women may face if returned to their country of origin.73 Lack of this information
therefore creates a significant challenge for the evaluation of the availability of internal relo-
cation option. Similar challenges are faced by asylum seekers fleeing persecution on account

67
UNHCR Quality Initiative Project Report (2005), 12.
68
Ibid., 13.
69
Ibid. Most commonly seen non-country specific sources included the USSD, the Refugee
Documentation Centre (Ireland), Human Rights Watch, the Immigration and Refugee Board of Canada,
Danish Immigration Service reports and the Red Cross, as cited in Independent Chief Inspector of the
UK Border Agency, ‘The Use of Country of Origin Information in Deciding Asylum Applications:
A Thematic Inspection’ (London, October 2010- May 2011), http://​icinspector​.independent​.gov​.uk/​
inspections/​inspection​-reports/​2011​-inspection​-reports​-2/​, accessed 11 September 2016.
70
Robert Thomas, ‘Assessing the Credibility of Asylum Claims: EU and UK Approaches Examined’
(2006) 8 European Journal of Migration and Law 79, 85.
71
Ibid. See also Natasha Carver, Home Office Country Assessments: An Analysis (London:
Immigration Advisory Service Research & Information Unit, 2003), Bethany Collier: Country of Origin
Information and Women: Researching Gender and Persecution in the Context of Asylum and Human
Rights Claims (London, Asylum Aid, 2007).
72
UNHCR Gender Guidelines (2002), para 36x.
73
Heaven Crawley, ‘Thematic Review on the Coverage of Women in Country of Origin Reports’,
prepared for the Independent Advisory Group on Country Information (IAGCI), September 2011, http://​
icinspector​.independent​.gov​.uk/​wp​-content/​uploads/​2011/​02/​Evaluation​-of​-the​-Country​-of​-Origin​
-Report​-on​-Women3​.pdf, 136, accessed 11 September 2016.

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of sexual orientation as information about the specific experiences and living situation in the
country of origin is commonly limited if not non-existent.74
A further subject of critique has been the lack of ability and/or willingness of many case
owners to differentiate between information from an independent source and politically
based policy information from their own state or that of other states, i.e., between COIS and
the country of origin information that is included in the Operational Guidance Notes. The
Operational Guidance Notes include recent case law and set out the Agency’s overall policy
in respect of types of asylum claim from nationals of particular countries.75 They also contain
country information, and although the Operational Guidance Notes refer case owners to COI
reports, this inclusion of country information in policy documents serves to hide policy as
information. This type of COI information in the policy documents should not be seen as
country of origin information or as objective evidence; it is merely policy from the govern-
mental side of the adversarial system of refugee determination process.76 The Chief Inspector
found that the inclusion of country information in Operational Guidance Notes means that
case owners ‘will use information selectively in individual decisions based on overall policy
position and will use this information as the primary source of country information rather
than referring to the Country of Origin Services report or other available sources’. Similarly,
the UNHCR Quality Initiative Project found that country of origin research was inadequately
conducted or misapplied regularly, with relevant information overlooked and not tested.77
The problems involving country of origin information and policy information highlight
broader concerns over institutional competencies. In 2011, Webber noted that the training for
UKBA officials, to learn the relevant case law, interviewing, assessment of evidence and rea-
soning decisions was just 25 days.78 Furthermore, the UNHCR’s file assessment and feedback
process suggested ‘some established caseworkers and a number of senior case workers may
lack, or not be equipped with, the necessary skills and knowledge for refugee status determina-
tions’.79 Through investigation of initial decision-making, the UNHCR found ‘widespread use
of weak analysis, poor written English, and limited or non-existent research’. In addition, the
feedback sessions that UNHCR held with individual caseworkers ‘lead UNHCR to conclude
that a number of caseworkers have a limited interest in, and understanding of, global affairs’.80

5. PROBLEMATIC CREDIBILITY APPROACHES

In determining refugee claims the question of credibility is both everything and nothing.81

74
See e.g., Sabine Jansen and Thomas Spijkerboer, ‘Fleeing Homophobia: Asylum Claims Related
to Sexual Orientation and Gender Identity in Europe’, September 2011, http://​www​.refworld​.org/​docid/​
4ebba7852​.html, 71–6, accessed 22 September 2016.
75
Chief Inspector Report (2010–2011), para 8.1.
76
Jo Pettitt, Laurel Townhead and Stephanie Huber, ‘The Use of COI in the Refugee Status
Determination Process in the UK: Looking Back, Reaching Forward’ (2008) 25(2) Refuge 182, 184.
77
UNHCR, Quality Initiative Project Report (2005),11.
78
Frances Webber, Borderline Justice: The Fight for Refugee and Migrant Rights (Pluto Press,
2012) 54.
79
UNHCR, Quality Initiative Project Report (2005), 11.
80
Ibid.
81
Gina Clayton, Immigration and Asylum Law (OUP, 2012), 423.

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It is under the rubric of credibility that issues relating to the Home Office’s culture of disbelief,
trauma and vicarious traumatisation and the inadequacy of country of origin information as
well as its interpretation, combines. This combination undermines the protection of asylum
seeker women’s rights. This is due to the nature of many asylum claims and the particular
ways in which decision-makers approach credibility assessments. The nature of many asylum
claims, i.e., the circumstances surrounding fleeing persecution and the nature of the persecu-
tion itself, means that many asylum claimants cannot produce documentary evidence for their
claim. This is particularly so for women whose experience of gender-based persecution is
difficult to corroborate with documentary evidence.82 Therefore asylum decisions are heavily
dependent upon assessments of credibility of the applicant’s account as well the applicant
herself.
Assessment of credibility has been described as ‘often the single most important step’ in
determining refugee status.83 Credibility, however, can mean different things, as it remains
‘conceptually elusive and adjudicatively influential’.84 With regard to administrative and
criminal proceedings, credibility has long been criticised as a vehicle for gender and cultural
bias in addition to producing unreliable results.85
Although credibility is not an element found in the Refugee Convention or principles of
non-refoulement, the UNHCR nevertheless uses the term. This is due to the issue mentioned
above, that asylum claimants are rarely in a position to provide external corroborative evi-
dence for their claim. The object and purpose of the Refugee Convention can nevertheless be
used to guide credibility assessments. Considering that the Convention promotes the principle
‘that human beings shall enjoy fundamental rights and freedoms without discrimination’ in
theory its interpretation ought to be made in order to promote protection from human rights
violations.86
In practice, however, decision-makers doubt the credibility of at least part of almost every
applicant’s story and in the opinion of many lawyers, the Home Office’s presumption is that all
applications are ‘bogus’.87 In Baillot, Cowan and Munro’s study, some case owners suggested
that ‘it was the role of the UKBA to seek out inconsistencies within the asylum narrative,
which could then be used as a basis to refuse claimants, or “catch them out” while remaining
“blinkered” to the plausible’.88 This ‘catching out’ echoes findings from the US, where the
obsession for internal consistency was said to become more of a game rather than an attempt

82
Deborah Singer, ‘Falling at Each Hurdle: Assessing the Credibility of Women’s Asylum Claims
in Europe’ in Arbel, Dauvergne and Millbank (2014), 98–115, 104.
83
Michael Kagan, ‘Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee
Status Determination’ (2003) 17 Georgetown Immigration Law Journal 367, 367.
84
Guy Coffey, ‘The Credibility of Credibility Evidence at the Refugee Review Tribunal’ (2003) 15
International Journal of Refugee Law 377, 377.
85
See for e.g., Deb Tyler and Patricia Easteal, ‘The Credibility Gap’ (1998) 23 Alternative Law
Review 211 and Mary Childs, ‘The Character of the Accused’ in Mary Childs and Louise Ellison (eds)
Feminist Perspectives on Evidence (Cavendish, 2000), 211–35.
86
Preamble Refugee Convention.
87
Anthony Good, ‘Witness Statements and Credibility in the UK Asylum Courts’ in Livia Holden
(ed.), Cultural Expertise and Litigation: Patterns, Conflicts, Narratives (Routledge, 2011), 94–122, 99.
88
Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘Research Briefing: Rape Narratives
and Credibility Assessment (of female applicants) at the AIT’, Edinburgh Law School, University
of Edinburgh, 2012, https://​www​.stmaryscentre​.org/​wp​-content/​uploads/​2012/​05/​FINAL​-BRIEFING​
-REPORT​-PDF​-April​-2012​.pdf accessed 23 September 2016, 5.

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to understand the applicant’s narratives and experiences.89 Given the issues discussed earlier
in relation to trauma and narrative consistency, an approach that expects a coherent narrative
each time and on every single detail is too stringent a test in the asylum context.
According to the UNHCR Handbook, the basic requirement is that the asylum seeker’s
account should be ‘coherent and plausible’ and ‘not run counter to generally known facts’.90
In a Note on the Standard of the Burden of Proof, the UNHCR adds the phrase of ‘capable
of being believed’.91 This move is important as it signifies that what is in question is ‘could a
“reasonable person” believe this testimony’ rather than the decision-maker’s subjective ques-
tion ‘do I believe the applicant’.92 Kagan has argued that this provides a more objective test.93
Although this test on its own does not remove problems with ‘objective’ criteria still being
able to mask gender and cultural bias, it goes towards stressing that decision-makers need to
evaluate their credibility assessments in this context in a more justifiable way. This is because
the UNHCR approach suggests using credibility ‘as an alternative to proof’ in that a credible
account should be given the benefit of doubt in circumstances where proof has not been possi-
ble.94 This is shown in the UNHCR stating that ‘there is no necessity for the applicant to prove
all facts to such a standard that the adjudicator is fully convinced that all assertions are true’
and acknowledging that ‘there would normally be an element of doubt in the mind of the adju-
dicator’.95 Where an adjudicator considers the applicant’s story on the whole as coherent and
plausible, any element of doubt should not prejudice the applicant’s claim.96 In these circum-
stances, benefit of doubt should be given to the applicant’s narrative.97 As Sweeney argues, in
the UNHCR’s recommendations ‘being credible’ is different both to ‘being proven’ and ‘to
being true’.98 This means that the threshold of being credible, under these recommendations
is ‘lower than the low standard of proof’, which ‘should caution decision-makers against too
readily equating minor inconsistencies to lack of internal or external credibility’.99
Because of the nature of refugee claims and the gravity of a negative decision it is necessary
that the issue of burden of proof needs to be taken seriously. Established law does not require
asylum seekers to corroborate their claims, yet the practice of the Home Office shows that
the decision-makers often behave as though it does.100 There are several reasons why women
are disproportionally affected by this practice. The lack of COI on the specific status and
treatment of women and the different types of persecution they may face creates difficulties

89
Sarah Ignatius: National Asylum Study Project: An Assessment of the Asylum Procedures of
the Immigration and Naturalization Service (1993) as cited in B. J. Chisholm: ‘Credible Definitions:
A Critique of U.S. Asylum Law’s Treatment of Gender-Related Claims’ (2000–2001) 44 Howard Law
Journal 427, 471.
90
UNHCR Handbook (2011), para 204.
91
UNHCR, ‘Note on the Standard of Proof’, 16 December 1998, available at http://​www​.refworld​
.org/​cgi​-bin/​texis/​vtx/​rwmain​?docid​=​3ae6b3338 accessed 23 September 2016, para 11.
92
Kagan (2003), 381.
93
Ibid.
94
James Sweeney, ‘Credibility, Proof and Refugee Law’ (2009) 21(4) International Journal of
Refugee Law 700, 707.
95
UNHCR (1998), para 12.
96
Ibid.
97
Ibid.
98
Sweeney (2009), 707.
99
Ibid.
100
Good (2011), 99.

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for many women to evidence their claim and may mean a negative decision on their credi-
bility.101 Freedman also notes that in particular in claims involving rape or sexual violence,
some decision-makers seem to assume that ‘all women say they have been raped’.102 Despite
evidence that late disclosure should not be taken as evidence of incredibility, including an
acknowledgement of this in the Asylum Policy Instruction, stakeholder interviews conducted
by Baillot, Cowan and Munro showed that a number of case owners still opined that disclosure
was likely to occur at an early stage in the asylum process.103 Consequently, the respondents
felt that where rape was not disclosed early, both the claim of rape and the credibility of the
claimant could be legitimately doubted.104 It is the interaction of the lack of corroborative
evidence, high standard of proof and the impact of trauma on disclosure that create significant
challenges for positive credibility findings for many women that can lead to failure of protec-
tion from persecution.105

CONCLUSION

Despite several developments with regard to recognition of the importance of gender-sensitive

procedures within refugee determination contexts, the practical reality of the rights protection
on the ground remains bleak. Significant concerns have been voiced by refugee organisations,
academics, the Independent Chief Inspector and the UNHCR over the competencies of the
UKBA’s first-instance decision-making. It remains to be seen whether the UKVI will take
seriously these concerns. The asylum processes have remained largely the same, however, and
there seems to be little evidence of any significant organisational shifts. Significant procedural
and evidential barriers remain to the protection of the rights of women seeking asylum in the
UK. Gender-sensitive procedures require interviewers who are adequately and appropriately
trained and who recognise the specific challenges that asylum-seeker women face within the
refugee determination context.
For asylum seeker women, the process provides little opportunity to have their voices heard.
The complex nature of many gender-based persecution claims and the environment in which
women are questioned poses obstacles to full disclosure and this can impact negatively on
their cases. Barriers to the protection of the rights of women range from practical issues, such
as the operational constraints on the provision of female interviewers and child care to the
interaction of trauma, disclosure, lack of country of origin information and problematic cred-
ibility assessments. Given the gravity of a negative decision to individual lives, the processes
are in need of significant improvement. Asylum seeker women continue to claim their rights
within a complex political climate that has seen the tightening of both immigration and asylum
policies, cuts to legal aid, and, the raising of appeals fees. The continued detention of women

101
Collier (2007), 11. See also, Christel Querton, ‘“I Feel Like As A Woman I’m Not Welcome”:
A Gender Analysis of UK Asylum Law, Policy and Practice’ (London, Asylum Aid, 2012), 48–9.
102
Freedman (2008), 423.
103
Helen Baillot, Sharon Cowan and Vanessa E. Munro, ‘“Hearing the Right Gaps”: Enabling and
Responding to Disclosures of Sexual Violence within the UK Asylum Process’ (2012) 21 Social & Legal
Studies 269, 276.
104
Ibid.
105
Singer (2014), 113. Singer also discusses the significance of demeanor in this context.

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 The rights of women seeking asylum 309

fleeing gender-based persecution, including pregnant women,106 rather than evidencing signs of
improvement, demonstrate the continued erosion of asylum seeker women’s rights in the UK.

106
The government did not follow the Ombudsman Stephen Shaw’s recommendation of providing
an absolute exclusion on detaining pregnant women, see Stephen Shaw, ‘Review into the Welfare
in Detention of Vulnerable Persons: A Report to the Home Office’, January 2016, para 4.34, https://​
www​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​490782/​52532​_Shaw​_Review ​
_Accessible​.pdf accessed 23 September 2016. See also, Commons Select Committee: Home Affairs
Committee, ‘The Work of the Immigration Directorates (Q4 2015): Government Response to the
Committee’s Second Report of Session 2016–17’ http://​www​.publications​.parliament​.uk/​pa/​cm​201617/​
cmselect/​cmhaff/​675/​67504​.htm​#​_idTextAnchor006 accessed 23 September 2016.

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20. Sexual orientation and refugee law: how do
legal sanctions criminalizing homosexuality
engage the definition of persecution?
Tawseef Khan

1. INTRODUCTION

One of the quirks of the Refugee Convention is that it was drafted and ratified by states
without certain essential terms of the refugee definition being pre-defined.1 For example,
the term ‘persecution’ was undefined and left without any guidance on its interpretation in
the travaux préparatoires. There are several plausible reasons as to why the Convention
drafters left such terms undefined: providing a correct definition was impossible, doing so
was dangerous, for allowing its prescriptive application to exclude deserving claimants, or
perhaps, they feared that a definition would become outdated and prevent the Convention
from serving its humanitarian purpose.2 Consequently, asylum-granting jurisdictions engaged
in developing an appropriately expansive and workable definition of persecution. Eventually,
they also addressed how persecution could be identified in cases involving lesbian, gay and
bisexual (LGB) (and suitably non-identifying) individuals fleeing violence on the basis of their
sexual orientations. This challenge has rested on recognizing the complexity and diversity of
sexuality; that LGB individuals eligible to receive refugee protection experience persecution
in unique and nuanced ways. Indeed, the UNHCR guidelines emphasize the intricacy of such
claims,3 stating that an assessment of persecution in a sexual identity-based asylum claim is
a complex determination, incorporating ‘the circumstances of the case, including the age,
gender, opinions, feelings and psychological makeup’ of the applicant.4
Several debates persist on how the key terms of the refugee definition apply in the context
of LGB asylum claims. For example, identifying whether the thresholds of persecution
have been met when the maltreatment experienced by LGB persons is often distinctive is
particularly challenging. Consequently, this chapter will focus on one of the most pressing
of these debates, namely the status and assessment of legal sanctions that criminalize sexual
acts between same-sex partners. First, the chapter will outline the development of a working

1
Convention Relating to the Status of Refugees (Refugee Convention) (adopted 28 July 1951,
entered into force 22 April 1954) 189 UNTS 137, art 1(A), which describes a ‘refugee’ as a person who
has a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a par-
ticular social group or political opinion’.
2
Hugo Storey, ‘What Constitutes Persecution? Towards a Working Definition’ (2014) 26(2)
International Journal of Refugee Law 272, 273.
3
Home Office, ‘Asylum Policy Instruction: Sexual Identity Issues in the Asylum Claim’ (February
2015).
4
UNHCR, ‘Guidelines on International Protection No. 9: Claims to Refugee Status Based on
Sexual Orientation and/or Gender Identity within the Context of Article 1A (2) of the 1951 Convention
and/or Its 1967 Protocol Relating to the Status of Refugees’ (23 October 2012) HCR/GIP/12/09, para 16.

310
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 Sexual orientation and refugee law 311

definition of persecution across asylum-granting jurisdictions. Following this, it will give

a brief overview of the prevailing treatment of criminal sanctions across many traditional
asylum-receiving states, with explicit reference to British asylum policy and the Court of
Justice of the European Union (CJEU) case of X, Y and Z.5 Finally, the chapter will advance
the author’s viewpoint on the serious and, thereby, persecutory nature of the ‘mere existence’
of such legal sanctions. In this final section, the author will refer to empirical data conducted
for a recent PhD thesis on LGB asylum claims in the United Kingdom (UK).

2. PERSECUTION: A DEFINITION IN DEVELOPMENT

One of the earliest attempts by asylum-receiving jurisdictions to furnish persecution with

meaning was related to the advancement of an ‘ordinary’ or ‘dictionary’ definition. This
was based on the principle enshrined in Article 31 of the Vienna Convention on the Law of
Treaties, which states that words and phrases within international treaties should be treated
‘in accordance with the ordinary meaning…in their context and in the light of its object and
purpose’.6 Thus, the definitions that arose were undoubtedly based on the Latin meaning of
‘persequi’, ‘to follow with hostile intent’, from which persecution is derived.7 For example, in
the Australian case of Jonah, the tribunal defined persecution as ‘to pursue with malignancy
or injurious action’.8
Whilst these ‘dictionary’ definitions gained traction and the ‘ordinary’ approach was
followed across jurisdictions, it was, nonetheless, unsatisfactory. The divergent definitions
of persecution across different linguistic traditions meant that a universal understanding of
the concept could not be developed.9 This resulted in the development of the ‘human rights’
approach to the persecution definition, which has become the ‘dominant’ approach towards
understanding persecution within refugee law and in practical decision-making.10 A human
rights approach provides clarity by attaching the concept of persecution to identifiable (and
arguably, universal) standards, whilst offering scope for elasticity and pragmatism.
The human rights approach developed the concept of persecution in two notable ways. First,
Hathaway, the leading proponent of the human rights formulation, describes persecution as
existing only where a state has breached its basic obligation to protect its citizens, forcing them
to seek alternative protection abroad.11 If the state provided protection, persecution would not
exist. Thereupon, it is essential for a claimant to establish, within the analysis on persecution,
the complicity of the state in the mistreatment experienced and/or feared. Secondly, as the
duties owed by a state to its subjects are central here, a decision-maker should determine
whether the state has actually failed to meet its obligations.12 For Hathaway, the standards pro-

5
Cases C-199/12, C-200/12 and C-201/12 X, Y and Z v. Minister voor Immigratie, Integratie en
Asiel [2013].
6
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331, art 31.
7
Storey (n 2) 275.
8
Jonah v. Secretary of State for the Home Department [1985] Imm AR 7.
9
Storey (n 2) 275.
10
Ibid., 276.
11
James C. Hathaway, The Law of Refugee Status (1st edn, Butterworths, 1991) 106–8.
12
Ibid.

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312 Research handbook on international refugee law

vided by international human rights law were the best tools for this assessment. Both refugee
law and international human rights law shared the purpose of protecting individuals against
actions depriving them of their core dignity.13
In summary, Hathaway argued that persecution would only exist where the maltreatment
relates to a violation of one’s fundamental human rights.14 The appropriate standard could
therefore be abbreviated as ‘the sustained or systemic denial of core human rights’.15 This
conception expands the decision-maker’s duty in the refugee status determination (RSD).
From initially applying a set and plain definition, a decision-maker must identify persecution
as a human rights violation from a set of circumstances, an exercise of increased complexity.16
Additionally, Hathaway explained what would constitute the denial of ‘core human
rights’, attaching persecution to international human rights standards. With reference to the
International Bill of Rights, he argued that there was a hierarchy consisting of four categories
of rights.17 Depending upon the category infringed, there would be different consequences
for the thresholds of persecution. The first category of rights consists of those contained in
the Universal Declaration on Human Rights (UDHR) (and made binding by the International
Covenant on Civil and Political Rights (ICCPR)), from which no derogation is possible. An
example would be the right to be protected from torture or inhuman and degrading treatment.
If the state fails to protect against a breach of the rights in this tier, the thresholds of persecution
are met immediately and protection warranted. The second category concerns those rights that
are found in the UDHR and ICCPR, but from which derogation would be permitted in times
of ‘public emergency’.18 This incorporates rights such as the freedom from arbitrary arrest or
detention, the right to a fair and public hearing in criminal proceedings, and the protection
of person and family, private life and integrity. Here, the failure to protect these rights only
constitutes persecution if the derogation is not mandated by the state for reasons of emergency.
These grounds are, nonetheless, subject to conditions contained within the basic principles of
international law and non-discrimination. The third category covers the rights from the UDHR
that are incorporated into the International Covenant on Economic, Social and Cultural Rights
(ICESCR), which codifies a state’s obligation to ensure that basic resources are equally acces-
sible, free of discrimination. These basic values include the right to work, housing, medical
care, food and clothing. A state would violate these rights where it either failed to apply these
rights, or excluded a minority from access to them.19 The deprivation would need to be extreme
in order to meet the persecutory thresholds. Finally, the fourth category consists of rights
contained in the UDHR, which were not carried forward into any of the covenants, such as
the right to own or to be free from arbitrary deprivation of property. The infringement of these
rights would not amount to persecution.
Hathaway’s exposition of the human rights approach to persecution has been supported by
many academics and asylum-granting jurisdictions. Within the British courts, for example,

13
Ibid.
14
James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP, 2014) 193–6.
15
Hathaway (n 11) 108.
16
Hathaway and Foster (n 14) 186.
17
Hathaway (n 11) 108–10.
18
Ibid.
19
Ibid., 111.

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 Sexual orientation and refugee law 313

the Court of Appeal first adopted the ‘human rights’ approach in the case of Ravichandran,20
believing Hathaway’s work to be ‘instructive’.21 This was reinforced in the case of Blanusa.22
Schiemann LJ underscored the need for decision-makers to focus their analysis on the gravity
of the invasion into a person’s fundamental rights, examining the nature of the invasion and its
length of time, for example.23
The adoption of the human rights approach within the UK was confirmed by the House of
Lords decision in Shah and Islam.24 Here, Lord Hoffmann relied on Hathaway in directing
assessments on persecution to be based on the ‘seriousness’ of the harm feared.25 Also, he
stripped Hathaway’s definition to its most essential components: ‘Persecution = Serious
Harm + Failure of State Protection’.26 As the agents of mistreatment in this case were not the
Pakistani state, but the appellants’ husbands, Lord Hoffmann argued that the serious harm
feared was only transformed into persecution by the state’s failure to protect them.27 In the
same case, albeit obiter dicta, the House of Lords recognized the possibility of LGB persons
being the recipients of refugee protection based on grounds of their sexual orientation.28
This remains the current position within the British asylum system, in conjunction with the
guidance provided on persecution by Article 9 of the Qualification Directive.29 The Directive
not only replicates Hathaway’s definition in Article 9(1)(a), but has also clarified that persecu-
tion can also exist where less serious, derogable rights have been infringed, and the accumula-
tion of those infringements is sufficiently severe to meet the thresholds of persecution.30 Article
9(2) provides a non-exhaustive list of the generalized kinds of acts that could constitute perse-
cution, ensuring substantive clarity for decision-makers on how the thresholds could be met.
Having established how the definition of persecution has developed, the subsequent section
will provide a brief overview of the debate around how legal sanctions criminalizing sexual
conduct between consenting same-sex partners are interpreted as meeting the thresholds of
persecution. Following this, the section will critically analyse this debate, whilst advancing the
argument that the ‘mere existence’ of such criminal sanctions should be enough to constitute
persecution in the LGB context, without needing to examine the legislation further.

20
R v. Secretary of State for the Home Department, ex parte Ravichandran (No.1) [1996] Imm AR
97.
21
Ibid. (Simon Brown LJ).
22
R v. Secretary of State for the Home Department, ex parte Blanusa [1999] All ER (D) 499.
23
Ibid. (Schiemann LJ).
24
Shah and Islam v. Secretary of State for the Home Department [1999] 2 AC 629 [651] (Lord
Hoffmann).
25
Ibid., [653].
26
Ibid.
27
Ibid., [654].
28
Ibid., [645] (Lord Steyn), [652] (Lord Hoffmann) and [663] (Lord Millet).
29
Storey (n 2) 279.
30
Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification
and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise
Need International Protection and the Content of the Protection Granted (Qualification Directive) (30
September 2004) OJ L. 304/12-304/23, art 9(1)(b).

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3. PERSECUTION AND THE CRIMINALIZATION OF

SAME-SEX SEXUAL CONDUCT

A common experience within LGB narratives of persecution is the escape from societies that
criminalize certain expressions of minority sexual identity. Studies indicate that some 76
jurisdictions across the world maintain criminal sanctions against consensual same-sex sexual
relationships.31 Of these states, the death penalty is instituted within approximately seven
states.32 Other sanctions have also been instituted against LGB citizens by some states, e.g.,
outlawing same-sex marriages or homosexual propaganda.33 The result is that legal sanctions
are a pervasive tool by which many states systematically ‘other’ and cause harm to their LGB
citizens. How such legal sanctions are to be determined as meeting the thresholds of perse-
cution in the sexual orientation-based asylum claims is, therefore, a critical question, as the
following sub-sections highlight.

3.1 The Current Debate on the Persecutory Impact of Criminal Sanctions in the
LGB Context

The current debate on the seriousness of sanctions criminalizing same-sex sexual conduct
for the purposes of the RSD can be summarized as a dialogue for supremacy between the
‘enforcement’ and ‘mere existence’ approaches, which this section will elucidate through the
current case authority on this particular issue across the European Union.
In the case of X, Y and Z, the Court of Justice of the European Union (CJEU) was tasked
with providing interpretive guidance on three asylum claims relating to a well-founded fear of
persecution on grounds of sexual orientation. The applicants concerned were Sierra Leonean,
Ugandan and Senegalese citizens, respectively. In each case, the applicant appealed against
the refusal of claims lodged in the Netherlands. Although X and Y’s appeals were successful,
Z’s appeal failed, leading the Dutch state to lodge appeals against the successful outcomes of
X and Y, and Z to appeal against his refusal. The Dutch court referred a number of questions
to the CJEU, including whether the ‘criminalisation of homosexual activities and the threat of
imprisonment’ would constitute persecution under the Qualification Directive.
In giving her opinion prior to the CJEU’s decision, Advocate-General Sharpston acknowl-
edged that criminal sanctions against homosexual sexual acts instituted within EU Member
States were considered contrary to the ECHR and would infringe the fundamental rights
of LGB persons, regardless of whether they were applied.34 As it was not the goal of the
Refugee Convention to export such standards, however, it was not the case that the ‘mere
existence’ of such laws in asylum-original countries would constitute persecution. When
examining whether criminal sanctions met the thresholds of persecution, Sharpston advised

31
Aengus Carroll and Lucas Paoli Itaborahy (International Lesbian and Gay Association (ILGA)),
‘State- Sponsored Homophobia. A World Survey of Laws: Criminalisation, Protection and Recognition
of Same-Sex Love’ (ILGA, 8 May 2015) http://​old​.ilga​.org/​Statehomophobia/​ILGA​_State​_Sponsored​
_Homophobia​_2015​.pdf accessed 21 May 2015.
32
Ibid., 28. Brunei Darussalam will also introduce the death penalty in 2016.
33
Ibid., 66, regarding Ugandan criminalization of same-sex marriage and 32, regarding propaganda
laws.
34
X, Y and Z (n 5) opinion of Advocate-General Sharpston [41].

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decision-makers to consider evidence on the application of criminal laws in an asylum-origin

country, i.e., whether states charge and prosecute persons under such laws, the enforcement
of the accompanying sanctions and their severity and, information concerning the cultural
mores of the society concerned.35 Consequently, Sharpston concluded that criminal sanctions
resulting in a long period of imprisonment would be severe enough to constitute persecution.36
The CJEU also addressed the question by confirming that ‘the mere existence of legisla-
tion criminalising homosexual acts’ would not be serious enough to meet the thresholds of
persecution.37 If a term of imprisonment accompanying the law was actually applied in the
country of concern, however, the legislation would be regarded as persecutory.38 Therefore,
decision-makers were guided towards making an ‘enforcement-centric’ analysis, focusing on
the legislation’s implementation.39 Highlighting the ‘enforcement’ versus ‘mere existence’
arguments as the site of the debate on criminal sanctions, the Opinion of Advocate-General
Sharpston and the CJEU decision were subject to significant academic scrutiny criticizing the
viability and justification for an enforcement- based approach.40
Nevertheless, the CJEU decision merely reinforced and gave greater traction to the opera-
tion of the ‘enforcement’ approach already being employed in some asylum-granting states.
For example, the CJEU’s argument has been integrated into the British asylum system’s
consideration of claims made on sexual identity grounds. Within the 2015 asylum policy
instructions on ‘sexual identity issues’, the X, Y and Z case is cited, alongside the approach of
the CJEU.41 Caseworkers are advised to focus on ‘whether these legal provisions are applied
in practice’. It is highlighted clearly that, first, the sanctions themselves must be of particular
severity in order to meet the thresholds, ‘namely imprisonment rather than simply a fine’,
and second, actual implementation is essential.42 As a result, if sanctions are ‘never, or hardly
ever imposed, a claimant cannot demonstrate a real risk on this basis’.43 The instructions also
acknowledge that sanctions could be part of a list of fundamental rights violations that cumu-
latively meet the thresholds of persecution.44
Moreover, this has been the broad approach within the UK even before the X, Y and Z
decision. In the second of two Freedom of Information requests made as part of the author’s
empirical research in 2014, the Home Office was queried about its position on criminal sanc-
tions in cases based on sexual identity grounds. Although the response pre-dates the CJEU
decision and subsequent policy guidance, it reflects the consistency of the Home Office’s
attitude towards legal sanctions against LGB expressions of identity:

35
Ibid. [45].
36
Ibid. [47]–[50].
37
Ibid. [55].
38
Ibid. [61].
39
Ibid. [58]–[59].
40
S. Chelvan, ‘Case Comment: X, Y and Z v. Minister voor Immigratie en Asiel. A Missed Opportunity
or a New Dawn?’ (No5 Chambers, 8 November 2013); Karon Monaghan QC, ‘Case Comment: AG’s
Opinion in X, Y and Z v. Minister Voor Integratie En Asiel (C-199/12, C-200/12 and C-201/12)’ (24
July 2013) http://​eutopialaw​.com/​2013/​07/​24/​case​-comment​-ags​-opinion​-in​-x​-y​-and​-z​-v​-mini​ster​-voor​
-immigratie​- integratie-en-asiel-c%E2%80%9119912-c%E2%80%9120012-and-c%E2%80%9120112/
accessed 21 May 2015.
41
API: Sexual Identity Issues (n 3) 10.
42
Ibid.
43
Ibid., 11.
44
Ibid.

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An individual could be removed to a country where, technically, homosexuality is a criminal offence

but where, in reality, there is no real risk of persecution or of the authorities taking action against LGB
people. However, if those laws are implemented and persecution results, then it would be likely that
protection would be granted – if it is also accepted that the individual is LGB as claimed.45

Thus, having outlined the terms of the debate on assessing sanctions criminalising same-sex
sexual acts, as to which of the ‘enforcement’ or ‘mere existence’ approaches is the most appro-
priate, the chapter proceeds to outline the author’s critical analysis of this debate.

3.2 The Problem with Conducting an ‘Enforcement-Centric’ Analysis

This author believes that the ‘enforcement’ oriented approach is a flawed one for three main
reasons. First, advocating for such an approach reflects a poor understanding of the relation-
ship between law and society. Secondly, the approach is evidentially unviable.
Thirdly, the approach overlooks the real impact upon the LGB persons living under such
laws. If, as Advocate-General Sharpston states, refugee status is conferred to protect those
subjected to intolerable living conditions, then the ‘enforcement’ approach overlooks how
criminal sanctions against same-sex identity or sexual behaviour make life intolerable for LGB
persons. These arguments are explored in further detail below.
The ‘enforcement’ approach is problematic because it fails to appreciate the connection
between criminal laws and society with regard to persecutory treatment. In most countries,
criminal laws, even if unenforced, reflect the society’s fundamental intolerance of LGBT
rights, as explained by Monaghan’s comment on the opinion of Advocate-General Sharpston
in X, Y and Z:

Criminal laws are connectedly both normative and punitive. They tell society what is acceptable
and tell individuals what is not acceptable – they operate as a legal and social imperative not to do
something, or, to be someone and license society to express its disapproval through stigmatisation,
prejudice and discrimination.46

Consequently, criminal sanctions, regardless of enforcement, provide state and non-state

agents with the necessary legitimacy to persecute individuals of minority sexual identities.
Superficially, state-imposed penalties merely provide agents with the direct tools of persecu-
tion. Indivisible from such legislation, however, is the transformation of the LGB individual
into a culprit. Through this transformed status, state agents gain tacit approval to persecute
individuals under the cover of ‘investigation’, using blackmail, harassment, extortion and
arbitrary detention.47 Moreover, the law grants non-state agents, such as families, peers and
community members, permission to persecute, having perpetuated the ideology that sexual
minorities are social and legal pariahs. For this reason, any abuse is seen to be deserved and

45
‘Freedom of Information (FOI) Request 31669’, Home Office, Gender and Sexual Orientation
Team (13 June 2014) 6–7 (question 26).
46
Monaghan QC (n 40).
47
Sabine Jansen and Thomas P. Spijkerboer, ‘Fleeing Homophobia. Asylum Claims Related to
Sexual Orientation and Gender Identity in Europe’ (COC Nederland/VU University Amsterdam, 2011)
26.

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 Sexual orientation and refugee law 317

will not be redressed by the state.48 By fuelling this culture of hatred and impunity, the state is
additionally complicit in the persecution of LGB people by agents that are not directly under
its influence and control. The influence of the existence of criminal laws on the conduct of
non-state agents, and the contribution of this to a persecutory environment, was raised by one
of the participants interviewed for the author’s PhD thesis:

But criminalization is enough because this means that individuals in case of need cannot turn to the
state or to state officials for their protection even if it is happening, the persecution or the violation of
their fundamental rights by non-state actors, when their behavior would be criminalized. So that this
breeds an atmosphere of homophobia so that criminalisation is enough… (Lilian Tsourdi).

Indeed, if unenforced criminal laws did not reflect societal opinion, they would be challenged
and repealed. After all, between 2006 and 2015, 16 states decriminalized same-sex sexual
acts.49
Furthermore, whilst criminal sanctions are unenforced, their mere existence maintains
the danger that a change in government policy or societal attitude could reintroduce their
application.50 For example, in Malawi, colonial era laws were unenforced until January 2010,
when two individuals were arrested and sentenced to 14 years of hard labour for ‘gross inde-
cency’.51 Similarly, Ugandan sodomy laws were unenforced until 2012, when the Ugandan
parliament oversaw the introduction and passing of a bill seeking to increase the penalties for
same-sex sexual activity and to introduce sanctions for those failing to report such activity.52
In Zimbabwe, similar laws were also unenforced until President Mugabe’s increasingly hom-
ophobic rhetoric from 1998 onwards, which, amongst a litany of abuses, resulted in sexual
minorities being arrested on exaggerated charges.53
A second problem is that an enforcement-oriented analysis is constrained by evidentiary
difficulties. Decision-makers regularly struggle to establish whether enforcement takes place.
There is a problem of scarce objective information regarding the practice of certain states
in matters pertaining to the rights violations of LGB individuals.54 Thereupon, the practices
of states are obviously incompatible with the evidentiary demands of the asylum system.
For example, a state may not record its prosecutions under the norms against sexual minori-
ties.55 It may prosecute individuals through alternative legislation to prevent the matter from

48
ILGA Europe, ‘Statement on Pending Preliminary Rulings by CJEU Regarding Alleged
Persecution on the Ground of Sexual Orientation’ (2 August 2012) http://​www​.ilga​-europe​.org/​home/​
news/​latest/​statement​_cjeu​_august​_2012 accessed 21 May 2015.
49
Carroll and Itaborahy (n 31) 25–6.
50
Amnesty International, ‘Observations by Amnesty International and the International Commission
of Jurists on the Case X, Y and Z v. Minister Voor Immigratie, Integratie En Asiel (C-199/12, C-200/12
and C-201/12) Following the Opinion of Advocate General Sharpston of 11 July 2013’ (2 October 2013)
POL 33/003/2013, 7.
51
Amnesty International, ‘Malawian Couple Sentenced to 14 Years Hard Labour for “Gross
Indecency”’ (20 May 2010) http://​www​.amnesty​.org/​en/​news​-and​-updates/​malawian​-couple​-sentenced​
-14​-years​-hard​-labour​- gross-indecency-2010-05-20 accessed 12 December 2013.
52
Carroll and Itaborahy (n 31) 66.
53
Human Rights Watch, ‘Letter to UN Human Rights Defenders Special Rapporteur Regarding Raid
and Prosecution of Defenders in Zimbabwe’ (30 May 2010) http://​www​.hrw​.org/​news/​2010/​05/​29/​letter​
-special​-procedures accessed 12 December 2013.
54
Jansen and Spijkerboer (n 47) 71.
55
Ibid., 26; UNHCR, ‘Sexual Orientation Guidelines’ (n 4) paras 20–21.

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coming to international attention. It may also use different court systems (such as military or
sharia courts) to facilitate prosecutions. By overlooking these issues, an enforcement-centric
approach engenders the use of an imprecise and unmanageable approach, which ultimately
invites inconsistency and unfairness into the RSD.
The practical and conceptual limitations of this approach arose within the empirical data
conducted for the author’s PhD thesis. On several occasions, asylum-seeker participants were
denied refugee protection in connection to the British decision-making authorities failing to
recognise the persecutory nature of criminal sanctions, in part, due to insufficient analysis:
‘They said the law in my country did not say gay or homosexual; the law said unnatural contact.
This is the reason why they said the law is not valid [didn’t apply to gay men] (MASY003).’
The (UK) Home Office refused the asylum claim of MASY003, a Ghanaian gay man,
contending that the laws in Ghana did not criminalize same-sex relations between two men. In
Ghana, Chapter 6 of the Criminal Code 1960, as amended by the Criminal Code (Amendment)
Act 2003, outlaws ‘unnatural carnal knowledge’.56 In MASY003’s case, expert evidence was
required at the appeal stage to identify the impact of this legislation upon LGB individuals.
From one perspective, the decision-maker’s reasoning in this case exemplifies the aforemen-
tioned evidentiary difficulties of establishing the use made of a law in a particular state. From
another perspective, it exemplifies ignorant decision-making as the legislation is a remnant of
British colonialism, which remains in force across the Commonwealth.57 It is common knowl-
edge that such laws apply to gay men.
Arguably, another consequence of such evidentiary difficulties is the shallow analysis of
country situations by decision-makers. This is also demonstrated in the case of MASY005, an
Indian national whose claim for asylum in the UK was lodged and refused in 2013. From an
assessment of the refusal letter that he provided for analysis, the Home Office’s consideration
of the criminal sanctions in India raises concerns about the quality of the decision-maker’s
investigation:

Background information indicates that the Indian government did not oppose the Supreme Court
ruling decriminalizing homosexuality within the Union territory of New Delhi, and actively distanced
itself from statements made on their behalf calling for the ruling to be overturned (para 22.04 COIR
India 30 March 2012). Furthermore, whilst Section 377 officially remains in force, background
information confirms that it is rarely applied except when child abuse or rape is alleged. On this basis
it is considered that any harm that you may fear on account of being gay is neither state sponsored
nor state condoned, and therefore does not amount to persecution as per para 13 of HJ (Iran) [2010]
UKSC 31.58

The Home Office cited information from Human Rights Watch that the decision to decrim-
inalize homosexuality affected Delhi only.59 It also cited the International Lesbian and Gay
Human Rights Commission (ILGHRC), which explained that the Supreme Court would

56
See also, Carroll and Itaborahy (n 31) 55.
57
Corinne Lennox and Matthew Waites, ‘Human Rights, Sexual Orientation and Gender Identity
in the Commonwealth: from History and Law to Developing Activism and Transnational Dialogues’ in
Corinne Lennox and Matthew Waites (eds), Human Rights, Sexual Orientation and Gender Identity in
The Commonwealth: Struggles for Decriminalisation and Change (Human Rights Consortium, Institute
of Commonwealth Studies, University of London, 2013) 1.
58
MASY005, Reasons for Refusal Letter, 15, para 97.
59
Ibid., 12, para 95.

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 Sexual orientation and refugee law 319

review the legality of the Delhi High Court’s decision.60 Despite the citation of such infor-
mation, the caseworker treats the decision as decriminalizing homosexuality across India.61
Furthermore, the decision-maker treats the matter as settled, despite acknowledging that the
Indian Supreme Court would review the legality of the decision. The caseworker is, therefore,
unclear as to how to treat the developing legal situation in India with respect to the legal sanc-
tions. As a safeguard of sorts, the caseworker emphasizes that the law is rarely implemented,
which simultaneously and implicitly acknowledges that it is sometimes implemented. This
determination is confused.
The assertion that the risk of persecution was negated by the Indian government’s lack of
opposition to the decriminalization by the Delhi High Court is naive.62 It fails to acknowl-
edge the role played by non-state actors in the maltreatment of LGB people, as sanctioned
by the prevailing legislation. It is notable that the caseworker copied and pasted substantial
swathes of background information, but produced a small paragraph of analysis in relation to
MASY005’s circumstances, which is unsatisfactory in the light of the complexity of India’s
treatment of LGB people. The volume of objective information reproduced by the caseworker
suggests that there are problems with the application of such information. As a result of the
caseworker’s analysis, MASY005 was returned to India.
Subsequently, the Indian Supreme Court reinforced the legitimacy of the legislation crimi-
nalizing homosexuality.63 NGOs have documented the increase in attacks against LGB people,
establishing the clear connection between the legislation and mistreatment.64 The Humsafar
Trust indicated that reports of abuse have trebled since the reinstatement of the law.65 By way
of example, two policemen raped a gay man in Ahmedabad only weeks after the criminalization
was reinstated.66 The decision in MASY005’s case under the British system contrasts starkly
with the American approach. In the US, a gay Indian couple were granted asylum, having
credibly established the threat of violence they faced in India, a decision bolstered by the
Indian Supreme Court’s position.67 Although the American decision took place after the Indian
Supreme Court’s decision, whereas MASY005’s took place before, this comparison is still

60
Ibid., 13.
61
Ibid., 12–14, paras 95–97.
62
Ibid., 15, para 97.
63
Jason Burke, ‘Indian LGBT activists outraged as supreme court reinstates gay sex ban’ The
Guardian (12 December 2013) http://​www​.theguardian​.com/​world/​2013/​dec/​11/​india​-supreme​-court​
-reinstates​-gay​-sex​-ban accessed 20 November 2015.
64
Nita Bhalla, ‘Feature - Blackmail and Abuse: Gay Sex Ban in India Stirs Violence’ (Reuters, 6
April 2015) http://​www​.reuters​.com/​article/​2015/​04/​07/​gay​-rights​-india​-idUSL3N0WX28Y20​150407
accessed 21 May 2015.
65
Ibid.
66
Anonymous, ‘Gujarat Policemen Rape Gay Man in Ahmedabad’ (Gaylaxy Magazine, 09 February
2014) http://​www​.gaylaxymag​.com/​latest​-news/​gujarat​-policemen​-rape​-gay​-man​​-in​-ahmedabad/​
accessed 21 May 2015. The rape, taking place on 9 February 2014, is emblematic of the violence and
harassment faced by the LGBT community in India. It is pertinent that the victim was allegedly recog-
nized by the police from his participation in Ahmedabad Pride in December 2012, where the policemen
had been stationed.
67
Sandip Roy, ‘Asylum in USA for Indian Gay Couple: Sec 377 Ruling Swung Their Case’ (First
Post, 3 January 2014) http://​www​.firstpost​.com/​world/​asylum​-in​-usa​-for​-indian​-gay​-couple​-sec​-377​
-ruling​-swung​-their​-case​-1320969​.html accessed 21 May 2015.

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important, as the UK still refuses to acknowledge the persecutory nature of these criminal sanc-
tions.68 Thus, Indian LGB asylum-seekers are still deprived of refugee protection in the UK.
Finally, the problem with the ‘enforcement’ approach to the criminalization of minority
sexual identities is its broad disregard for and/or failure to understand the human cost of
criminal sanctions. The approach lacks fairness. It entrenches the discrimination faced by LGB
asylum-seekers by neglecting to understand the practical realities for sexual minorities living
under criminal sanctions. Regardless of their enforcement, the legacy of these sanctions is an
atmosphere of subjugation and stigmatization for LGB people. As a result, sexual minorities
are forced to suppress the expression and exercise of numerous fundamental rights. These
rights include those articulated by the Yogyakarta Principles, such as the right to security for
sexual minorities and the right to be protected by the state against harm.69
Decision-makers remain ignorant of the fact that criminal sanctions do not solely restrict
the sexual behaviour of LGB individuals. In the LGB context, criminal sanctions are unique
due to their extensive and devastating impact upon countless basic and essential freedoms of
sexual minorities. These laws influence the safety of LGB individuals in forming relationships
and friendships, and finding community support.70 They heighten the fear of being caught or
identified, and leave people vulnerable to violence and extortion, compounded by the fear of
reporting such matters to the police.71 LGB individuals must exercise restraint in many ways
because of the threat posed by legislation criminalizing their identities. This refers directly
to the consensus within refugee law that expecting individuals to exercise discretion to
avoid maltreatment is wrong, particularly given the psychological harm it causes.72 Outside
refugee law, international case law has acknowledged the impact of criminal sanctions on the
fundamental rights of LGB people, infringing their rights to private and family life.73 Thus,
regardless of their enforcement (or not), the legacy of these sanctions facilitates an intolerable
climate in which LGB people must live.
The human cost of criminal sanctions is pertinently identified by MASY005, a research
participant of the author’s PhD thesis who had lived under legislation criminalizing same-sex
sexual relations. He identified the struggle to accept his sexuality whilst living under stifling
conditions where his identity was stigmatized and where his core freedoms were suppressed:

[They say that gay sex is legal in India,] but the way that you can feel yourself, express yourself, you
know, be open in public, you don’t have that freedom. That’s the main problem and for me, I took ten
years to deal with my sexuality, to come to terms with the fact that I am gay (MASY005).

68
DV, ‘I went straight way to UK home office for claim asylum. But got seven-month prison’
(Detained Voices, 21 March 2015) https://​detainedvoices​.wordpress​.com/​2015/​03/​21/​i​-went​-straight​
-way​-to​-uk​-home​-office​-for​-claim​-asylum​-but​-got​-7​-month​-prison/​ accessed 22 October 2015.
69
International Commission of Jurists (ICJ), ‘Yogyakarta Principles - Principles on the Application
of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’ (March 2007)
principle 5.
70
UNHCR, ‘Sexual Orientation Guidelines’ (n 4) paras 26–27.
71
Ibid.
72
The National Coalition for Gay and Lesbian Equality et al v. the Minister of Justice et al, CCT
11/98 (9 October 1998) (USA) [28] (Majority Opinion) and [107] (Concurring Opinion of Sachs J).
73
Dudgeon v. United Kingdom (1983) 5 EHRR 573; Norris v. Ireland (1991) 13 EHRR 186; and
Modinos v. Cyprus (1993) 16 EHRR 485.

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 Sexual orientation and refugee law 321

Moreover, living under criminal sanctions has a significant impact on the mental health of
LGB persons. Psychological harm emanates from the climate that LGB persons are forced to
live under; the suppression of their rights to express themselves freely and the constant fear of
mistreatment, if identified. It is also a product of the physical maltreatment commonly experi-
enced by LGB individuals in such climates, such as arbitrary arrest and imprisonment, police
beatings, rape and involuntary medical interventions, for example, which would normally
meet the ‘sufficient seriousness’ requirement of the persecutory thresholds.
For the purposes of understanding the maltreatment of LGB people in the asylum context, it
is essential to link together the stigmatization of minority sexual identities and psychological
violence. Outside the asylum paradigm, this has been widely researched and documented
within Western countries. Generally, non-heterosexual identities are either ‘othered’ or
considered ‘deviant’ in many societies across the world.74 There are several reasons for this,
including the minority status afforded by virtue of their population size, the gradual but slow
recognition of the rights of sexual minorities, and the way in which LGB people defy stringent
norms relating to the roles and duties of men and women.75 Although societal reaction to
non-conformity may differ according to the culture in question, LGB individuals recognize
their difference and experience stigma in relation to it. After all, LGB individuals develop
their identities within their society’s heteronormative value-system.76 This stigmatization is
documented in Western countries. Experiences of ‘oppression, rejection, discrimination, har-
assment and violence have been shown to have negative physical and mental health effects’ on
the lives of LGBT youth and adults regardless of whether they are raised in asylum-receiving
or producing societies.77 For example, LGBT youth are considerably more likely to attempt
suicide, carry weapons, engage in substance abuse, and adopt risky sexual behaviour.78 By
way of further example, a study of gay men has highlighted the link between stigma and psy-
chological harm, as internalized homophobia, stigmatization and experiences of homophobic
violence and discrimination have a deleterious impact on their mental well-being.79
The experiences of stigma are compounded in the refugee context and in particular, where
state criminalises LGB identities and expressions. In many states traditionally producing LGB
asylum-seekers, oppressive restrictions are imposed upon the daily lives of sexual minorities.
Social spaces where they associate are subjected to regular police raids, they are denied access
to basic services unless they mask their identities and behaviour, and medical interventions can
be used to ‘cure’ their sexualities.80 Criminal sanctions can dictate the extent to which one can

74
UNHCR, ‘Sexual Orientation Guidelines’ (n 4) para 21.
75
James D. Wilets, ‘Conceptualizing Private Violence against Sexual Minorities as Gendered
Violence: An International and Comparative Law Perspective’ (1996) 60 Alb. L. Rev. 989, 991 and 1011.
76
Sari H. Dworkin and Huso Yi, ‘LGBT Identity, Violence, and Social Justice: The Psychological Is
Political’(2003) 25(4) International Journal for the Advancement of Counselling 269–79, 272.
77
Anthony R. D’Augelli, ‘Developmental Implications of Victimization of Lesbian, Gay and
Bisexual Youth’ in Gregory M. Herek (ed), Stigma and Sexual Orientation: Understanding Prejudice
against Lesbians, Gay Men, and Bisexuals (Sage, 1998) 187–210.
78
Ian Rivers and Daniel J. Carragher, ‘Social-Development Factors Affecting Lesbian and Gay
Youth: A Review of Cross-National Research Findings’ (November 2003) 17(5) Children & Society 374,
377.
79
Ilan H. Meyer, ‘Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual
Populations: Conceptual Issues and Research Evidence’ (September 2003) 129(5) Psychological
Bulletin 674–97.
80
Dworkin and Yi (n 76) 271.

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express an identity freely, framed by the constant fear of being identified as LGB and being
mistreated on this basis. There are psychological harms caused by verbal, emotional, physical
and sexual abuse, such as forced prostitution, forced heterosexual marriage, ‘corrective rape’,
coercion and blackmail.81 Shidlo and Ahola have documented the psychological impact of
such suffering, highlighting that many LGBT asylum seekers suffer from substantial mental
health problems: ‘common diagnoses are depression, dissociative disorders, panel disorder,
generalized anxiety disorder, social anxiety, traumatic brain injury and substance abuse’.82
Thus, it is critical that decision-makers have a proper understanding and give due consider-
ation within the asylum determination to the psychological harm that is caused by the mere
existence of sanctions criminalising aspects of LGB identity and expression.
It is testament to the seriousness with which psychological violence should be taken that,
within the author’s PhD thesis, a female asylum-seeker from Morocco explained how psycho-
logical violence was her primary cause and motivation for seeking refuge in the UK:

Because I didn’t, in some circumstances, I didn’t feel myself. I didn’t feel safe, not 100 per cent, you
know. I am not talking about physical abuse, but it was more like, well, psychologies, you know,
psychology (FASY004).83

The seriousness of the psychological harms experienced amongst the empirical research par-
ticipants was further demonstrated by the fact that their conditions had been medically diag-
nosed or were being treated by healthcare professionals. For example, FASY005, a woman
from Uganda, identified that she was ‘under mental health’ and attended a hospital where she
received ongoing care. FASY007, a lesbian also from Uganda, explained that she had been
diagnosed with PTSD and depression. FASY001, a Gambian woman, described her first con-
sultation with a GP in the UK. Worrying for her poor mental health, he immediately referred
her for counselling. Amongst the participants, two acknowledged that they had attempted
suicide and that this was a part of their narratives of persecution.84 Furthermore, eight par-
ticipants stated that they provided specialist medical evidence of the psychological harms
experienced.85 It is no coincidence that each of the states that these participants originated from
had instituted sanctions that criminalized homosexuality.
Therefore, from this analysis it is not only clear that an enforcement-centric approach is
unworkable, but that a ‘mere existence’ approach should be enough for the experiences of
LGB asylum-seekers fleeing such legal regimes to meet the thresholds of persecution.

4. CONCLUSION

This chapter sought to reexamine an essential question relating to the claims for refugee protec-
tion by LGB asylum-seekers and to a key concept of refugee law, namely how legal sanctions
criminalizing homosexuality engage the thresholds of persecution. To do so, section 1 charted

81
Ariel Shidlo and Joanne Ahola, ‘Mental Health Challenges of LGBT Forced Migrants’ (2013) 42
Forced Migration Review 9.
82
Ibid.
83
MASY004.
84
MASY003 and MASY005.
85
FASY002; FASY003; FASY005; FASY007; MASY004; MASY005; MASY006; and MASY008.

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 Sexual orientation and refugee law 323

the development of a working definition of persecution and section 2 outlined the current
debate between the ‘enforcement’ and ‘mere existence’ approaches to the question using
the CJEU case of X, Y and Z. Finally, in section 3, the author critically analysed this debate,
describing the deficiencies of an enforcement-centric approach in favour of an approach
rooted in recognizing the serious impact of the ‘mere existence’ of criminal sanctions on LGB
persons for the purposes of the thresholds of persecution, i.e., the ‘mere existence’ of criminal
sanctions against LGB persons should constitute persecution.
This analysis has shown the enforcement approach of analysing the implementation of
criminal sanctions to be a stubborn and outdated relic of refugee law. It may have been
given traction and relevance by the CJEU decision in the case of X, Y and Z, but the validity
of the approach is weakened by its procedural and evidentiary limitations and the failure to
understand the symbiotic relationship between a particular society and the legal framework
governing it. Finally, and most critically, however, the continued prioritization of the enforce-
ment approach is surely reflective of decision-makers’ wilful and persistent ignorance of the
suppressive daily realities for LGB persons forced to live under such legal regimes, where the
restrictions relate to areas much broader than simply one’s sexual conduct. For this reason,
the enforcement-based approach is an unfair approach towards the determination of LGB
asylum claims. It would be fairer and more evidentially consistent to treat the thresholds of
persecution pragmatically, recognizing that the mere existence of sanctions criminalizing
same-sex identity or consensual sexual behaviour constitutes evidence of persecution that
is actively pursued or promoted by the state. This would recognize appropriately the unique
role that even unenforced legal sanctions possess within the persecutory experiences of LGB
asylum-seekers.

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21. Human trafficking and refugee law
Vladislava Stoyanova

1. MAIN POINTS OF INTERACTION BETWEEN THE LAW ON

HUMAN TRAFFICKING AND REFUGEE LAW

For the last decade and a half the problem of human trafficking has become a focal point for
a political debate and an object of law-making. This has resulted in the adoption of various
anti-trafficking instruments at global and regional levels. These operate in parallel with inter-
national refugee law and other human rights norms that protect individuals from refoulement.
It is thus important to investigate how the two regimes, i.e., the anti-trafficking regime and the
protection regime, relate to each other. There are certainly many ways in which refugee law
and the law on human trafficking interact with and influence each other. Here I will outline the
points of interaction; in the following sections I will elaborate upon them.
First, victims of human trafficking may qualify for refugee status or forms of complemen-
tary protection.1 Importantly, their qualification for international protection may or may not
be connected with their trafficking experience.2 Second, in the context of the EU legislation,

1
Human trafficking is defined in the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children, supplementing the United Nations Convention Against
Transnational Organized Crime, 2237 UNTS 319 (UN Trafficking Protocol) as:
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat
or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs.
The definition also adds that the consent of a victim of trafficking in persons to the intended exploita-
tion shall be irrelevant where any of the means have been used. This definition has been reproduced
in the Council of Europe Convention on Action against Trafficking in Human Beings, ETS No. 197
(Coe Trafficking Convention). With some additions, this definition has been also reproduced in the EU
2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting
its victims [2011] OJ L 101/1 (the EU Trafficking Directive). For an analysis of the definition, see
V Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States' Positive
Obligations in European Law (Cambridge University Press, 2017) 32.
2
For application of the principle of non-refoulement to victims of human trafficking see The
Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of
Refugees to Victims of Trafficking and Persons in Risk of Being Trafficked, UNHCR Guidelines on
International Protection (2006) (UNHCR Trafficking Guidelines); V Stoyanova, ‘Complementary
Protection for Victims of Human Trafficking under the European Convention on Human Rights’ 3(2)
Göttingen Journal of International Law (2011) 777; R Piotrowicz, ‘Victims of People Trafficking
and Entitlement to International Protection’ 24 Australian Yearbook of International Law (2005)
159; A Dorevitch and M Foster, ‘Obstacles on the Road to Protection: Assessing the Treatment of
Sex-Trafficking Victims under Australian’s Migration and Refugee Law’ 9 Melbourne Journal of
International Law (2008) 1.

324
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 Human trafficking and refugee law 325

victims of human trafficking have been designated as vulnerable persons and as applicants for
international protection with special reception needs or in need of special procedural guaran-
tees, as these concepts are defined in the EU Reception Conditions Directive (recast)3 and in
the EU Procedures Directive (recast).4 This designation is important because asylum seekers
are often particularly vulnerable to human trafficking and to the related crime of human
smuggling.5
Third, in a way similar to refugee law, the regional European law on human trafficking6
has challenged states’ immigration control prerogatives. As a consequence, victims of human
trafficking might avert deportation not only due to risk of refoulement,7 but also due to confer-
ral of recovery and reflection period or due to granting of a residence permit linked with their
status as victims of human trafficking.8 It is of significance that both possibilities for averting
deportation, i.e., the operation of the principle of non-refoulement and the possibilities offered
by the human trafficking legal framework, are used in parallel and in a non-conflictual way.9
The specific circumstances of children need to be distinguished in this context for various
reasons. An important one is that those identified as victims of human trafficking cannot be
deported prior to risk assessment initiated by the responsible state authorities.
Fourth, similarly to asylum seekers, victims of human trafficking are eligible to certain
assistance measures. If an asylum seeker is also determined to be a victim of human traffick-

3
Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for
international protection (recast) [2013] OJ L 180/96 (EU Qualification Directive (recast)).
4
Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing
international protection (recast) [2013] OJ L 180/60 (EU Asylum Procedures Directive (recast)). See
V. Stoyanova, ‘Victims of Human Trafficking, A Legal Analysis of the Guarantees for “Vulnerable
Persons” under the Second Phase of the EU Asylum Legislation’ in C. Bauloz, M. Ineli-Ciger, S. Singer
and V. Stoyanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by
the Second Phase of the Common European Asylum System (Martinus Nijhoff Publishers, 2015) 58–108.
5
Human smuggling is defined as ‘the procurement, in order to obtain, directly or indirectly, a finan-
cial or other material benefit, of the illegal entry of a person into a State Party of which the person is not
a national or a permanent resident’; art 3(a), Protocol against the Smuggling of Migrants by Land, Sea
and Air, supplementing the United Nations Convention Against Transnational Organized Crime, 2241
UNTS 480.
6
In particular, the CoE Trafficking Convention and the relevant EU law, i.e., Directive 2004/81/EC
of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking
in human beings or who have been the subject of an action to facilitate illegal immigration, who cooper-
ate with the competent authorities [2004] OJ L 262/19 (the EU Residence Permit Directive).
7
See art 33(1), Convention relating to the Status of Refugees, 189 UNTS 150, entered into force
22 April 1954 (Refugee Convention); art 3, Convention for the Protection of Human Rights and
Fundamental Freedoms, CETS No.005 (ECHR). See also Guiding Principles on Human Rights in the
Return of Trafficked Persons (Organization for Security and Cooperation in Europe, 2014) http://​www​
.osce​.org/​odihr/​124268​?download​=​true accessed 12 April 2019.
8
States might be also prohibited from deporting migrants since deportation might be contrary to
the migrants’ right to private and family life. See D Thym, ‘Respect for Private and Family Life under
Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’ 57(1) International
and Comparative Law Quarterly (2008) 87. This scenario, i.e., prevention of deportation due to breach
of private and family life, is not further discussed in this chapter.
9
A conflict might arise, e.g., if the initiation of the procedure for being recognized as a victim of
human trafficking is considered not compatible with initiation of a refugee status determination proce-
dure. See, e.g., Asylum Seeking Victims of Human Trafficking in Ireland: Legal and Practical Challenges
(Immigrant Council of Ireland, 2011).

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ing, these assistance measures should complement those available in the course of the refugee
status determination procedure. Fifth and related to the assistance measures mentioned above,
asylum seekers who are victims of human trafficking are entitled to non-punishment not only
on account of their illegal entry or presence on the territory of the host state.10 They are also
entitled not to be punished in relation to any other unlawful activity, including breach of
immigration rules, related to the trafficking which they were compelled to do.11 It is essential
that asylum seekers who are victims of human trafficking benefit from both non-punishment
provisions.12
Another way in which the two regimes interact concerns procedural issues. For an asylum
seeker to benefit from the protection and assistance measures under the human trafficking legal
framework, he/she should be identified as a victim. Therefore, it is crucial that in the course of
the refugee status determination procedure, victims are identified and referred to the national
authorities mandated to assist victims of human trafficking. At the same time, the national
authorities responsible for identification and assistance of victims of human trafficking (very
likely these are the police, crime investigation authorities or prosecutors) should refer to the
asylum procedures those victims who wish to submit claims for international protection.
The above outlined examples reflect ways in which the law on human trafficking and
refugee law positively complement and reinforce each other so that migrants who fall within
the two regimes can benefit from both at the same time. However, there are also ways in which
the two regimes might conflict. An example to this effect is the application of the ‘safe third
country’ rule or the Dublin mechanism13 to applicants for international protection who might
be presumed victims of human trafficking and/or who might be conclusively identified as
victims of human trafficking.14 The application of the ‘safe third country’ rule might demand
their transfer to another state, while the law on human trafficking might prevent such transfers.
Another much more disturbing way in which the two regimes might clash relates to the
issue of access to territory by asylum seekers. In particular, the law on human trafficking in its
global and regional manifestations is a regime whose main objective is enhancement of border
control and repressive criminal law measures.15 This carries the risk of hampering access to the
territory of potential countries of protection and thus frustrating access to international protec-
tion.16 This also carries the risk of diversion of refugee movements to more precarious routes,

10
Art 31(1), Refugee Convention.
11
Art 26, CoE Trafficking Convention; art 8, EU Trafficking Directive.
12
See V Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’
Positive Obligations in European Law (Cambridge University Press, 2017) 142.
13
Regulation No. 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determin-
ing the Member State responsible for examining an application for international protection lodged in one
of the Member States by a third-country national or a stateless person (recast) [2013] OJ L 180/31 (the
Dublin III Regulation (recast)).
14
For the distinction between the two categories (presumed victims and individuals conclu-
sively identified as victims of human trafficking), see V Stoyanova, Human Trafficking and Slavery
Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge
University Press, 2017) 101.
15
See arts 11 and 12, UN Trafficking Protocol; arts 7 and 8, CoE Trafficking Convention. See also E
Guild and V Stoyanova, ‘The Human Right to Leave Any Country: A Right to be Delivered’ European
Yearbook on Human Rights (2018) 373.
16
J Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ 49(1) Virginia Journal of
International Law (2008) 1.

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exposing refugees to the mercy of smugglers and transforming smuggling from a service
provided against a fee into an exploitative situation amounting to trafficking.17 Respectively,
efforts to combat human trafficking and human smuggling might exacerbate the plight of
refugees who do not have safe and regular pathways to international protection.18 Their only
alternative might be human smuggling.
True, it is a problem inherent in international refugee law that it does not address the crucial
question of how refugees can have access to the territory of countries where they can find
protection.19 However, it is not only the failure to provide safe routes to asylum countries that
exposes refugees to the risk of human trafficking. Failures and deficiencies in the refugee
status determination procedure and in the access to basic reception conditions might also
make asylum seekers more vulnerable to trafficking and to exploitation. Failures to register
migrants as asylum seekers and absence of basic subsistence can push refugees underground.20
Therefore, it is crucial that the international protection regime operates efficiently in terms of
reception conditions and procedures, so that asylum seekers do not become victims of human
trafficking.
Finally, a comparison between the two regimes must not avoid the observation that human
trafficking is a criminal law regime underpinned by the assumption that victims will be
repatriated. This is reflected in Article 8(1) of the UN Trafficking Protocol and Article 16(1)
of the CoE Trafficking Convention that are repatriation provisions. These have the effect of
a readmission agreement between the state parties.21 Involuntary return of victims of human
trafficking is thus not prevented. It needs to be acknowledged here that CoE Trafficking
Convention and the EU law on human trafficking have built a protection regime for victims of
human trafficking, which demands their identification, provision of immediate assistance and
granting of a recovery and reflection period. However, eventually if the victim is not useful for
the criminal proceedings, he/she might be deported.22 In contrast, the refugee regime is a pro-

17
On the distinction between human smuggling and human trafficking see J Bhabha ‘Border Rights
and Rites: Generalisations, Stereotypes and Gendered Migration’ in S van Walsum and T Spijkerboer
(eds), Women and Immigration Law. New Variations on Classical Feminist Themes (Routledge, 2007)
15, 27.
18
See G Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’ 17(3)
International Journal of Refugee Law (2005) 542.
19
Even worse states of destination try to prevent the arrival of asylum seekers. T Gammeltoft-Hansen
and J Hathaway, ‘Non-refoulement in a World of Cooperative Deterrence’ 53(1) Columbia Journal of
Transnational Law (2015).
20
Perhaps children are the most vulnerable in the context. The EUROPOL has reported that at least
10 000 unaccompanied child refugees have disappeared after arriving in Europe. Many are feared to have
fallen into the hands of organized trafficking syndicates. See https://​www​.theguardian​.com/​world/​2016/​
jan/​30/​fears​-for​-missing​-child​-refugees accessed 12 April 2019.
21
Stoyanova (n 14) 132.
22
Thus Piotrowicz has correctly evaluated the regime as a ‘witness inducement scheme’ and
explained that the residence permit is meant to induce the victim to cooperate with the competent
authorities in the criminal proceedings. R Piotrowicz, ‘European Initiatives in the Protection of Victims
of Trafficking who Give Evidence against Their Traffickers’ 14 International Journal of Refugee Law
(2002) 263, 267; see also J Vernier, ‘French Criminal and Administrative Law concerning Smuggling
of Migrants and Trafficking in Human Beings: Punishing Trafficked People for their Protection?’ in
E Guild and P Minderhoud (eds), Immigration and Criminal Law in the European Union, The Legal
Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in
Human Beings (Martinus Nijhoff Publishers, 2006) 7, 35.

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tection framework underpinned by the assumption that those eligible for protection under its
precepts are allowed to stay and certain rights attach to their status as protected persons.23 Very
importantly in this context, the UN Trafficking Protocol and the CoE Trafficking Convention
contain saving clauses to the effect that these treaties do not

affect the rights, obligations and responsibilities of States and individuals under international law,
including international humanitarian law and international human rights law, and in particular, where
applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the
principle of non-refoulement as contained therein.24

The repatriation dimension of the anti-trafficking framework cannot therefore affect the pro-
tection afforded by international refugee law and human rights law. The binding obligation not
to return accrues to trafficking persons when they become eligible for refugee status or other
forms of complementary protection.

2. VICTIMS OF HUMAN TRAFFICKING AS PERSONS

ELIGIBLE FOR INTERNATIONAL PROTECTION

2.1 Refugee Status

When could victims of human trafficking be eligible for refugee status? Certainly, refugee law
does not provide protection to every victim simply because he or she has been a victim or is at
risk of being re-trafficked. All the elements of the refugee definition as indicated in Article 1A
of the 1951 Refugee Convention have to be fulfilled:

well-founded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the country of his nationality and is unable, or
owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual residence as a result of such events,
is unable or, owing to such fear, is unwilling to return to it.

Prior to considering the requirements inherent to this definition,25 the types of claims that
victims of human trafficking might raise can be outlined. Danger of re-trafficking, fear of
retaliation by the members of the trafficking organizations, fear of being found by the traffick-
ing organization since the victim has not earned the targeted amount of money, lack of social

23
See generally J Hathaway, The Rights of Refugees under International Law (Cambridge
University Press, 2005). Once the country of origin is able and willing to protect and there is no reason
for the refugees to fear persecution, they can be repatriated. J Hathaway, ‘The Meaning of Repatriation’
9(4) International Journal of Refugee Law (1997) 551.
24
Art 14(1), UN Trafficking Protocol; Art 40(4), CoE Trafficking Convention.
25
The issues of exclusion from refugee status (art 1(F), the Refugee Convention) and exceptions
from refoulement (art 33(2), the Refugee Convention) are not likely to arise. Even if victims of human
trafficking commit crimes (e.g., soliciting for the purposes of prostitution, cannabis production or other
criminal activities for which they have been trafficked) the threshold of exclusion might not be met. In
addition, under the CoE Trafficking Convention and the EU Trafficking Directive victims are entitled
to non-punishment under certain circumstances, which should also be taken note of in this context. See
section 5 below.

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and/or medical assistance in the country of origin, rejection and stigmatization by the local
community and/or by the victim’s family in the destination state are some examples.26 Another
possible type of claim might involve circumstances when the person has not suffered harm in
the form of human trafficking, but submits a claim that upon return he/she faces the danger of
human trafficking.
As required by the refugee definition, in addition to demonstrating prospective risk of
harm,27 certain severity threshold needs to be demonstrated so that the harm can be regarded
as persecution.28 When the risk is one of trafficking or re-trafficking and given the ambiguity
of the definition of human trafficking29 and the uncertainty surrounding the meaning of such
terms as ‘exploitation’ and ‘abuse of power or position of vulnerability’,30 the severity thresh-
old might cause some controversies. However, generally human trafficking is perceived as
a serious crime, which means that the threshold of harm could be met for the purposes of the
refugee definition. When the risk concerns other of the above mentioned circumstances, e.g.,
stigmatization by the community in the country of origin, assessment has to be made in light of
the particular claim for the purpose of determining whether the severity threshold has been met.
To qualify for a refugee status, it has to be demonstrated that the country of origin will fail
to protect the individual. There might be cases when the country of origin is involved in human
trafficking through its state agents; however, generally, as the above outlined claims reveal,
the prospective harm will emanate from non-state actors of persecution. This necessitates con-
sideration of whether failure of state protection can be demonstrated.31 It has to be established
that the state is unable or unwilling to provide protection. In light of the difficulties faced by
many countries of origin to tackle human trafficking and to protect victims, evidence demon-
strating inability to protect might not be difficult to advance. The protection measures envi-
sioned by the human trafficking legal instruments can be used as guidance when evaluating the
adequacy of state protection. Essentially, these measures are not limited to criminalization and
effective application of the criminal law.32 Rather, states have more far-reaching obligations

26
The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the
Status of Refugees to Victims of Trafficking and Persons in Risk of Being Trafficked, UNHCR Guidelines
on International Protection (2006), paras 17 and 18.
27
J Hathaway and M Foster, The Law of Refugee Status (Cambridge University Press, 2014) 110.
28
Ibid., 182.
29
Stoyanova (n 14) 32–72.
30
See V Stoyanova, ‘Dancing on the Borders of Article 4: Human Trafficking and the European
Court of Human Rights in the Rantsev case’ 30(2) Netherlands Quarterly of Human Rights (2012) 163;
V Stoyanova, ‘Sweet Taste with Bitter Roots: Forced Labour and Chowdury and Others v Greece’ 1
European Human Rights Law Review (2018); G Noll,‘The Insecurity of Trafficking in International
Law’ in V Chetail (ed.), Mondialisation, Migration et Droits de L’homme : le Droit International
en Question, (Bruylant, 2007) 343; J Allain, ‘No Effective Trafficking Definition Exists: Domestic
Implementation of the Palermo Protocol’ 7 Albany Governmental Law Review (2014) 111. See also
Abuse of a position of vulnerability and other ‘means’ within the definition of trafficking in persons (UN
Office on Drug and Crime Issue Paper, 2013); The concept of ‘exploitation’ in the Trafficking in Persons
Protocol (UN Office on Drug and Crime Issue Paper, 2015).
31
Hathaway and Foster (n 27) 288; see also art 6, EU Directive 2011/95/EU of 13 December 2011
on standards for the qualification of third-country nationals or stateless persons as beneficiaries of inter-
national protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and
for the content of the protection granted (recast) [2011] OJ L 337/9 (EU Qualification Directive (recast)).
32
See V Stoyanova, ‘Article 4 of the ECHR and the Obligation of Criminalising Slavery, Servitude,
Forced Labour and Human Trafficking’ 3(2) Cambridge Journal of International and Comparative Law

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to protect and assist victims.33 In addition, these measures have to be also viewed in light of
states’ positive obligations under human rights law.34
The most likely ground substantiating a claim for refugee status by victims of human traf-
ficking is membership of a particular social group.35 This raises the challenging question of
how to apply the concept of particular social group to victims of human trafficking.36 Former
victims may be considered a social group based on the unchangeable, common and historic
characteristic of having been trafficked.37 A challenge also arises when it has to be determined
whether the risk of harm is ‘for reasons of’ membership in the group.38 Here it has to be empha-
sized that the Convention ground need only be a relevant factor contributing to the risk, not the
sole or the dominant cause for the risk.39 As Hathaway has suggested, the nexus requirement
can be fulfilled even where the persecutor is not motivated to harm by a Convention ground or
even where the state of origin is not motivated to withhold protection by a Convention ground,
because the risk may still be for reasons of a Convention ground ‘where the Convention
characteristic – sex, age, class – puts the victim in harm’s way’. The refugee definition is thus
satisfied ‘where sex, age, or class made the applicant vulnerable to trafficking’.40

2.2 Complementary Protection

As opposed to refugee status, for a person to be eligible to complementary protection no nexus

requirement needs to be met and no Convention ground need to be demonstrated.41 Rather

(2014) 407.
33
In the context of the UN Trafficking Protocol the provisions concerning victim protection and
assistance are hortatory (see arts 6 and 7). See A Gallagher, The International Law of Human Trafficking
(Cambridge University Press, 2010) 276.
34
For further elaboration on this argument see Stoyanova (n 2), 807. For the positive human
rights obligations corresponding to the right not to be held in slavery, servitude and forced labour see
Stoyanova (n 14) 319–424 and V Stoyanova, ‘United Nations against Slavery. Unravelling Concepts,
Institutions and Obligations’ 28(3) Michigan Journal of International Law (2017) 359.
35
National courts have accepted that ‘former victims of human trafficking’ could comprise a particu-
lar social group in the sense of the refugee definition. SB (PSG/Protection Regulations – Regulation 6)
Moldova CG [2008] UKAIT 00002; AZ (Trafficking Women) Thailand CG [2010] UKUT 118.
36
There is a wealth of literature on the meaning of particular social group. See, e.g., UNHCR
Guidelines on International Protection: ‘Membership of a particular social group’ within the context of
Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to Status of Refugees (2002).
37
The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the
Status of Refugees to Victims of Trafficking and Persons in Risk of Being Trafficked, UNHCR Guidelines
on International Protection (2006), para 39. For a deeper discussion about how victims of human traffick-
ing can constitute a particular social group and about the challenges raised by the requirements under the
EU Qualification Directive, see S Juss, ‘Recognizing Refugee Status for Victims of Trafficking and the
Myth of Progress’ 34 Refugee Survey Quarterly (2015) 107.
38
J Hathaway, ‘Are Trafficked Persons Convention Refugees?’ in Forced Migration and the
Advancement of International Protection (International Association of Refugee Law Judges, 2006) 97
https://​www​.iarmj​.org/​images/​stories/​WorldConferences/​7​-2006​-mexico​.pdf accessed 12 April 2019.
39
Michigan Nexus Guidelines, para 13; UNHCR Trafficking Guidelines, para 29. See also art 9(3),
EU Qualification Directive (recast) which only demands a connection between the Convention grounds
and the persecution.
40
Hathaway (n 38) 101.
41
See J McAdam, Complementary Protection in International Refugee Law (Oxford University
Press, 2007).

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the issue here is whether upon return the person faces a real risk of ill-treatment.42 Thus the
non-refoulement guarantee has been extended,43 in particular by Article 7 of the International
Covenant on Civil and Political Rights (ICCPR)44 and Article 3 of the European Convention
on Human Rights (ECHR).45 Importantly, ill-treatment caused by private actors could still
trigger complementary protection, if the authorities of the receiving state are not able to
obviate the risk by providing adequate protection.46 As mentioned in the previous section,
the positive obligations which states have undertaken regarding victims of human trafficking,
who can be designated as a vulnerable group,47 could be taken into account in the assessment
whether state protection is adequate.48
The EU Qualification Directive (recast) has established the separate status of subsidiary
protection that while in some respects converges with the protection against refoulement under
Article 3 of the ECHR, in other respects it diverges. A divergence of particular relevance
to victims of human trafficking relates to cases where applicants argue that deportation to
their country of origin will place them in conditions of severe socio-economic deprivation
amounting to inhuman and degrading treatment (i.e., absence of health care, shelter or more
generally assistance measures supporting the recovery of the victim). The ECtHR has ruled
that under exceptional circumstances such cases fall within the protective scope of Article 3
of the ECHR in its extraterritorial effect, i.e., the prohibition on refoulement.49 As opposed to
the ECHR, Article 15(b) of the EU Qualification Directive (recast) appears to exclude such
types of claims.50 Therefore, it is less likely that victims of human trafficking who fear ` form

42
For a comprehensive analysis how victim of human trafficking could qualify for complementary
protection see Stoyanova (n 2) 777.
43
For the key contrasts between the Refugee Convention and the protection against refoulement
offered by art 3 of the ECHR, see C Costello, The Human Rights of Migrants and Refugees in European
Law (Oxford University Press, 2016) 176–80.
44
Human Rights Committee, General Comment No.20, para 9.
45
E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Reofulement’
in E Feller, V Türk, and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection (Cambridge University Press, 2003) 78.
46
H.L.R. v. France, App.No. 24573/94; Salah Sheekh v. the Netherlands, App.No. 1948/04, 11
January 2007, para 136; Auad v. Bulgaria, App.No.46390/10, 11 October 2011, para 96.
47
L Peroni and A Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European
Human Rights Convention Law’ 11(4) International Journal of Constitutional Law (2013) 1056.
48
Costello (n 43) 184.
49
N. v. United Kingdom, [GC] App.No. 26565/05, 17 May 2008; Poposhvili v. Belgium, [GC] App.
No. 41738/10, 17 April 2014, 13 December 2016. See V Stoyanova, ‘How Exceptional must “Very
Exceptional” Be? Non-Refoulement, Socio-Economic Deprivation and Paposhvili v Belgium’ 29(4)
International Journal of Refugee Law (2017) 580; K Greenman, ‘A Castle Built on Sand? Article 3
ECHR and the Source of Risk in Non-Refoulement Obligations in International Law’ 27(2) International
Journal of Refugee Law (2015) 264.
50
H Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers, 2006)
235–6, where he explains that ‘[t]he requirement in Article 15(b) QD that the ill-treatment occur “in
the country of origin however excludes “humanitarian grounds” cases from the scope of [subsidiary
protection]”’. This has been confirmed by the CJEU in Case C-542/13 M’Bodj [2015] OJ C 65/12, para
35, where it was stated that ‘such harm must take the form of conduct on the part of a third party and that
it cannot therefore simply be the result of general shortcomings in the health system of the country of
origin.’ See see C Bauloz, ‘Foreigners: Wanted Dead or Alive? Medical Cases before European Courts
and the Need for an Integrated Approach to Non-Refoulement’ 18 European Journal of Migration and
Law (2016) 409, 427.

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of socio-economic deprivation upon return will be eligible to subsidiary protection as circum-

scribed under EU law.
Another clarification in relation to the scope of complementary protection pertinent to
victims of human trafficking is that Article 4 of the ECHR can also trigger the obligation not
to refoule. The case of Ould Barar v. Sweden shows that the ECtHR can rule that Article 4
of the ECHR that enshrines the right not to be held in slavery, servitude or forced labour, can
imply prohibition on deportation upon risk of treatment contrary to Article 4.51 Importantly, in
Rantsev v. Cyprus and Russia, the ECtHR ruled that human trafficking falls within the material
scope of Article 4 of the ECHR.52 Therefore, not only Article 3, but Article 4 of the ECHR can
be invoked for the purpose of averting deportation when there is a real risk that the person will
experience harm in the form of trafficking or re-trafficking.

3. RECEPTION AND PROCEDURAL GUARANTEES FOR

VICTIMS OF HUMAN TRAFFICKING DURING THE
INTERNATIONAL PROTECTION PROCEDURE

It is important that the asylum applications submitted by victims of human trafficking are
given due consideration with regard to the specificities of their claims as outlined above. It is
as much important that victims are afforded certain procedural guarantees and reception con-
ditions that might facilitate the assessment of their asylum applications. The objective of this
section is thus to describe what specific guarantees victims of human trafficking are entitled to
in the course of the procedure for determining their international protection needs. The focus
of the enquiry will be placed on the EU Reception Conditions Directive (recast) and the EU
Procedures Directive (recast) since these instruments distinguish the situation of victims of
human trafficking who are also applicants for international protection.53 More specifically, the
first of the above mentioned instruments defines victims of human trafficking as vulnerable
persons54 and requires EU member states to assess whether they are applicants ‘with special
reception needs’. The nature of these needs should be also determined.55 The support provided
to applicants with special reception needs has to take into account these needs.56 In parallel
with the reception conditions required under the EU Reception Conditions Directive (recast),
the EU Trafficking Directive imposes obligations upon the EU Member States to assist victims

51
Ould Barar v. Sweden, App.No.42367/98, 19 January 1999. In the particular case, the Court found
no risk of ill-treatment contrary to art 4 of the ECHR.
52
Rantsev v. Cyprus and Russia, App.No. 25965/04, 7 January 2010. For an assessment of this
extension of the material scope of art 4 see V Stoyanova, ‘Dancing on the Borders of Article 4: Human
Trafficking and the European Court of Human Rights in the Rantsev case’ 30(2) Netherlands Quarterly
of Human Rights (2012) 163; V Stoyanova, ‘L.E. v Greece: Human Trafficking and the Scope of States’
Positive Obligations under the ECHR’ 3 European Human Rights Law Review (2016).
53
For a detailed analysis see V Stoyanova, ‘Victims of Human Trafficking, A Legal Analysis of
the Guarantees for ‘Vulnerable Persons’ under the Second Phase of the EU Asylum Legislation’ in C
Bauloz, M Ineli-Ciger, S Singer and V Stoyanova (eds), Seeking Asylum in the European Union: Selected
Protection Issues Raised by the Second Phase of the Common European Asylum System (Martinus
Nijhoff Publishers, 2015) 58–108.
54
Art 21, EU Reception Conditions Directive (recast).
55
Art 22(1), EU Reception Conditions Directive (recast).
56
Ibid.

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of human trafficking.57 It is important that these two assistance frameworks are applied simul-
taneously and conjunctively to the benefit of victims.
It is as much important that victims of human trafficking, who are also applicants for inter-
national protection, are afforded specific procedural guarantees. The EU Procedures Directive
(recast) has introduced the category of ‘applicant in need of special procedural guarantees’,
defined as ‘an applicant whose ability to benefit from the rights and comply with the obli-
gations provided for in this Directive is limited due to individual circumstances’.58 Human
trafficking is not explicitly mentioned as a factor in the assessment of whether an applicant
has special procedural guarantees. Rather, Recital 29 of the preamble of the EU Asylum
Procedures Directive (recast) simply states that:

Certain applicants may be in need of special procedural guarantees due, inter alia, to their age, gender,
sexual orientation, gender identity, disability, serious illness, mental disorders or as a consequence of
torture, rape or other serious forms of psychological, physical or sexual violence.

As individuals who have undergone ‘serious forms of psychological, physical or sexual

violence’, victims of human trafficking can be identified as applicants for international pro-
tection in need of special procedural guarantees. Pursuant to Article 24(3) of the EU Asylum
Procedures Directive (recast), the benefit from this identification is that victims have to be
provided with ‘adequate support in order to allow them to benefit from the rights and comply
with the obligations’ in the directive during the asylum procedure.59
Since the EU Reception Conditions Directive (recast) and the EU Asylum Procedures
Directive (recast) oblige member states to assess whether applicants for international pro-
tection belong to the categories of applicants with special reception needs or are in need of
special procedural guarantees, it is important that there is a structured coordination between
the asylum procedure and the procedure for identifying migrants as victims of human traffick-
ing.60 To this effect, the EU Trafficking Directive ensures that victims of human trafficking are
provided with information about the possibility to apply for international protection.61 The EU
asylum legislation does not contain a provision requiring the national authorities responsible
for refugee status determination to refer potential victims of human trafficking to the national
body responsible for victim identification. The failure to make such referrals could result in
failures to assist and protect victims, as exposed by the ECtHR judgment of L.E. v. Greece.62
The case was about a Nigerian woman born in 1982 who was trafficked in Greece. Without
going into any further detail into the factual substratum of the case, it is important to note for

57
Art 11, EU Trafficking Directive. See also art 12, CoE Trafficking Convention.
58
Art 2(d), EU Procedures Directive (recast).
59
Overall, the actual meaning and significance of this provision and the meaning of ‘adequate
support’ is hard to determine Stoyanova in Bauloz et al. (n 53) 58, 95; See also C Costello and E Hancox,
‘The Recast Asylum Procedures Directive 2013/32/EU: Caught between the Stereotypes of the Abusive
Asylum Seeker and the Vulnerable Refugee’ in V Chetail, P De Bruycker and F Maiani (eds), Reforming
the Common European Asylum System: The New European Refugee Law (Martinus Nijhoff, 2015).
60
See Identification of Victims of Trafficking in Human Beings in International Protection and
Forced Return Procedures, European Migration Network Study (2014), the report can be found by going
on to the website of the European migration network.
61
Art 11(6), EU Trafficking Directive. There is, however, a qualifier in this provision since it says
that such information shall be provided ‘where relevant’.
62
L.E. v. Greece, App.No.71545/12, 21 January 2016.

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present purposes that she submitted asylum applications. Despite the suspicious circumstances
surrounding her case, the national authorities responsible for reviewing these applications
never referred her to other national bodies that could have assisted her as a victim of human
trafficking.63 This exposes the importance of effective referral mechanisms between the differ-
ent national procedures, i.e., refugee status determination procedure and victim identification
procedure.

4. VICTIMS OF HUMAN TRAFFICKING AND THE SAFE

THIRD COUNTRY CONCEPT

Victims of human trafficking who seek asylum can be negatively affected not only by deficient
procedural guarantees and inadequate reception conditions, but also by the operation of certain
rules intended to prevent the substantive determination of their international protection needs.
More specifically, domestic and regional rules have emerged to the effect that asylum seekers
might be required to seek protection in some country other than that to which they have trav-
elled and applied for asylum. These are usually framed as ‘safe third country’ or ‘protection
elsewhere’ rules.64 The Dublin mechanism established with the Dublin Regulation which oper-
ates within the EU is also an expression of these rules. Its objective is to lay down the criteria
and the mechanism for determining the member state responsible for examining an application
for international protection lodged in one of the member states.65 The objective of this section
is to examine whether there are any specificities concerning the application of the ‘safe third
country’ rules in the context of applicants for international protection who are also victims of
human trafficking. Such specificities might be expected because despite the operation of the
‘safe third country’ rule, states might have adopted separate obligations concerning victims of
human trafficking. These obligations might prevent the transfer of victims.
At global level, no obligations accrue to states in terms of not deporting victims. Article 7(1)
of the UN Trafficking Protocol stipulates that ‘[…] each State Party shall consider adopting
legislative or other appropriate measures that permit victims of trafficking in persons to remain
in its territory, temporary or permanently, in appropriate cases [emphasis added]’. This is
a provision which expresses nothing more than a recommendation. Thus, it is not likely that
the UN Trafficking Protocol has any transformative potential to positive influence the general
standards under international refugee law as to the deportation of victims, including in the
context of their return to ‘safe third countries’.66
The situation is, however, materially different in the context of Council of Europe and
EU law. The CoE Trafficking Convention is quite clear to the effect that ‘upon reasonable
grounds to believe that a person has been victim of trafficking in human beings, that person
shall not be removed from its territory’ until the identification process is completed.67 The
Convention also adds that upon reasonable grounds to believe that the person is a victim, he

63
V Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States’ Positive Obligations
under the ECHR’ 3 European Human Rights Law Review (2016) 290, 297.
64
Hathaway and Foster (n 27) 30.
65
Art 1, Dublin III Regulation (recast).
66
For such standards, see Hathaway and Foster (n 27) 30.
67
Art 10(2), CoE Trafficking Convention; for detailed analysis see V Stoyanova (n 14) 101.

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 Human trafficking and refugee law 335

or she is to be granted a recovery and reflection period of at least 30 days. During this period
removal shall be prevented.68 Finally, victims of human trafficking are entitled to a residence
permit when their stay is necessary ‘owing to their personal situation’ or ‘for the purpose of
their co-operation with the competent authorities in investigation and criminal proceedings’.69
Although with some nuanced differences, the EU law contains similar provisions.70 These can
certainly come in conflict with the ‘safe third country’ rule, including the Dublin mechanism.71
One can imagine a scenario where a person has entered the EU through, say, Greece, and then
been trafficked and subjected to exploitation in, say Germany. Under the Dublin mechanism
Greece might be responsible for reviewing that person’s application for international protec-
tion. However, any transfer from Germany will have to be subjected to the above outlined
rules from the European human trafficking law, including non-removal until completion of the
identification process and extension of a reflection period.72
Even if it is eventually determined that the victim of human trafficking shall not to be granted
a residence permit since he or she is not useful in the course of any criminal proceedings and
there are not particular individual circumstances that warrant non-removal,73 Dublin transfers
might be averted for further reasons. In M.S.S. v. Belgium and France, a case involving
a Dublin transfer of an asylum seeker from Belgium back to Greece, the ECtHR had to address
the question whether Belgium was responsible under Article 3 of the ECHR for exposing the
applicant to degrading living conditions by sending him back to Greece.74 The Court answered
in the affirmative by emphasizing that Belgium had knowledge about the conditions in Greece,
which were assessed as degrading for inter alia the following reasons: the applicant’s status
as ‘an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable
population group in need of special protection’; the existence of a broad consensus concerning
the special protection for asylum seekers;75 the insecurity and vulnerability of asylum seekers76
and the fact that he was in circumstances wholly dependent on state support.77 By way of an
analogy with this reasoning, the assessment whether there is a risk of exposing the applicant to
degrading conditions, as described above, upon return has to be influenced by his or her status
as a victim of human trafficking. This implies an assessment of whether there is sufficient
support in the country tailored to the specific situation and needs of victims of human traffick-

68
Art 13, CoE Trafficking Convention; for detailed analysis see V Stoyanova (n 14) 101.
69
The state parties to the CoE Trafficking Convention are also under the obligation to issue residence
permits when the competent authorities considers that victims’ stay is necessary owing to their personal
situation (art 14(1)(a)). The ambiguity of the term ‘personal situation’ leaves wide scope of discretion to
states in terms of determining the circumstances when victims are to be granted permits under this limb;
for detailed analysis see V Stoyanova (n 14) 131.
70
Arts 6 and 8, EU Residence Permit Directive. For the differences between the CoE and the EU
legal regimes for protection of victims of human trafficking see Stoyanova (n 2) 448 see V Stoyanova (n
14) 136.
71
Importantly, the Dublin III Regulation (recast) has increased the possibility of detecting and
potentially identifying victim of human trafficking with its provision requiring the conduction of a person
interview with the applicant (see art 5 of the regulation).
72
For a detailed analysis see Stoyanova in Bauloz et al. (n 53) 58, 100–107.
73
Art 14(1), CoE Trafficking Convention; art 8, EU Residence Permit Directive.
74
M.S.S.v. Belgium and Greece, [GC] App.No. 30696/09, 21 January 2011, paras 365–8.
75
Ibid., para 251.
76
Ibid., para 259.
77
Ibid., para 253.

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ing. The ECtHR judgment in Tarakhel v. Switzerland further supports this line of reasoning.78
In Tarakhel v. Switzerland, the Strasbourg court took into account the specific situation of the
applicant and held that in light of their particular circumstances their transfer back to Italy
could be in violation of Article 3 of the ECHR.79

5. NON-PUNISHMENT

The 1951 Refugee Convention contains a catalogue of rights that attach to the refugee status.80
One of these is the right not to be punished for certain activities under certain circumstances.
In particular, Article 31(1) of the Refugee Convention stipulates that:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on
refugees who, coming directly from a territory where their life or freedom was threatened in the
sense of article 1, enter or are present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their illegal entry or presence.

Victims of human trafficking who apply for international protection can benefit from the
above quoted provision provided that the necessary requirements are met (coming directly
from the territory where their life or freedom was threatened, present themselves to the
authorities without delay, etc.).81 Importantly, victims can also benefit from non-punishment
concerning other crimes related to the harm that they have suffered as victims of human traf-
ficking. It is essential that asylum seekers who are victims of human trafficking benefit from
both non-punishment provisions.
Although at global level there has been a general agreement that victims should not be
punished for crimes that they might have committed in relation to their trafficking (breaches of
immigration control rules, use of false passport or other documents, soliciting for the purposes
of prostitution if criminalized at national level, etc.),82 the UN Trafficking Protocol does not
contain a legally binding provision to this effect.83 In contrast, the CoE Trafficking Convention
and the EU Trafficking Directive contain relevant provisions. Article 26 of the CoE treaty
stipulates that

78
Tarakhel v. Switzerland, [GC] App.No.29217/12, 4 November 2014.
79
Ibid., para 122.
80
See generally Hathaway (n 23).
81
For a detailed analysis see G Noll, ‘Article 31 (Refugees Unlawful in the Country of Refuge)’
in A Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
A Commentary (Oxford University Press, 2011) 1243.
82
Guideline 4, Recommended Principles and Guidelines on Human Rights and Human Trafficking,
UN Office of the High Commissioners for Human Rights, E/2002/68/Add.1.
83
Creative arguments might be developed to the effect that punishing victims for crimes related to
the trafficking is contrary victims’ rights under human rights law. For example, subjecting victims to
criminal punishment for crime which they were coerced to committee in relation to their victimization,
could be in violation to the right to private and family life and/or to the right not to be subjected to
inhuman or degrading treatment. There have, e.g., been unsuccessful attempts to argue that prosecuting
an asylum seeker for possession of a false document constitutes an unjustified interference with private
life. See SXH v. Crown Prosecution Service [2014] EWCA Civ 90, 6 February 2014.

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Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility
of not imposing penalties on victims for their involvement in unlawful activities, to the extent that
they have been compelled to do so.84

Article 8 of the EU Trafficking Directive resembles the above quoted provision from the CoE
treaty.85
For asylum seekers who are also victims of human trafficking to benefit from the two
legal frameworks which require non-punishment, it is essential to take note of the differences
between Article 31(1) of the Refugee Convention and Article 26 of the CoE Trafficking
Convention.86 The first one is limited to specific crimes, i.e., illegal entry or presence. The
second of the above mentioned provisions can be also applied to the crimes of illegal entry
or presence; at the same time, however, it has wider application since it could be of relevance
to any crime related to the fact that the person has been a victim of human trafficking. Such
a crime could be, for example, cannabis production (when the person has been trafficked for
the purpose of cannabis production).
Another point of diversion between the two norms is that Article 31(1) of the Refugee
Convention does not require coercion. It is, in fact, acknowledged that refugees flee their
countries and breach other countries’ immigration rules related to entry and presence to escape
persecution.87 In comparison, Article 26 of the CoE Trafficking Convention does require coer-
cion so that the person concerned can benefit from non-punishment.88 Accordingly, depending
on the particular circumstances of the case, the specific requirements of each norm need to be
carefully considered.

6. CHILDREN VICTIMS OF HUMAN TRAFFICKING

So far the analysis was focused generally on victims of human trafficking who apply for inter-
national protection. This analysis is certainly relevant to children; at the same time, however,
it has to be observed that international law confers special protection to children. This is man-
ifested in the UN Convention on the Rights of the Child.89 The EU asylum law also confers
special protection to children, including unaccompanied children.90 The anti-trafficking legal
framework also takes note of the special circumstances of children. There is a separate defi-

84
See R Piotowicz and L Sorrentino, ‘Human Trafficking and the Emergence of the Non-Punishment
Principle’ 16 Human Rights Law Review (2016) 669; see also Stoyanova (n 14) 142.
85
For an analysis of the differences between Article 26 of the CoE Trafficking Convention and
Article 8 of the EU Trafficking Directive see Stoyanova (n 14) 142.
86
For detailed analysis see Stoyanova (n 2) 158; see also Stoyanova (n 14) 158.
87
R. v. Uxbridge Magistrates Court & Another, ex parte Adimi [1999] EWHC Admin 765.
88
For interpretation of the meaning of coercion in this context see Explanatory Report to
the CoE Trafficking Convention, para 273 https://​rm​.coe​.int/​CoERMPublicC​ommonSearchServices/​
DisplayDCTMContent​?documentId​=​09000016800d3812 accessed 12 April 2019.
89
Art 22(1), Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp.
(No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990. See J Pobjoy, The Child in
International Refugee Law (Cambridge University Press, 2017).
90
Art 20(3), EU Qualification Directive (recast); arts 14, 21, 23, 24, EU Reception Conditions
Directive (recast); arts 10(3)(d), 15(3)(e), 25, EU Asylum Procedures Directive (recast); arts 6, 8, 16, EU
Dublin Regulation III (recast).

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nition of trafficking of children in international law91 and specific provisions addressing chil-
dren, including unaccompanied children.92 Moreover, there are separate instruments at global
and regional levels addressing the exploitation of children more generally.93 At this junction
it should be also added that the International Labour Organization has adopted specific
instruments addressing exploitation of child labour.94 Space does not permit an elaborate dis-
cussion of all these instruments and their interactions. It suffices to mention that the European
anti-trafficking legal framework contains a robust provision to the effect that when the age of
the victim of human trafficking is uncertain and there are reasons to believe that the victim
is a child, ‘he or she shall be presumed to be a child and shall be accorded special protection
pending verification of his/her age’.95 Similar automatic presumption does not operate in the
EU asylum legislation,96 which might result in the following paradoxical situation. A person
is presumed as a child for the purposes of his assistance and protection as a victim of human
trafficking; and, at the same time, not necessary presumed as a child in the course of determi-
nation of his or her international protection needs.
The CoE Trafficking Convention is also very clear to the effect that ‘[c]hild victims shall
not be returned to a state, if there is indication, following a risk and security assessment, that
such return would not be in the best interest of the child’.97 The significance of this provision
lies in the requirement upon states for conducting automatic risk and security assessment prior
to any return. It is the national authorities that have to initiative such an assessment in relation
to children victims of human trafficking.

7. ANTI-TRAFFICKING MEASURES IN CONFLICT WITH

REFUGEE RIGHTS?

In contrast to the previous sections that primary aimed at reading of the pertinent legal norms
in a way that steers away from practices that lock migrants into one regime, i.e., refugee
law or human trafficking law, denying them benefits potentially available in the other, the
objective of this section is to look at the frictions between the regimes. In particular, a source

91
Art 3(c), UN Trafficking Protocol; art 4(c), CoE Trafficking Convention; art 2(5), EU Trafficking
Directive.
92
Art 6(4), UN Trafficking Protocol; art 10(3) and (4), art 14(2), art 16(7), CoE Trafficking
Convention; arts 13, 14, 15, 16, EU Trafficking Directive.
93
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, GA Res A/Res/54/263 of 25 May 2000, entered into force 18
January 2002; CoE Convention on the Protection of Children against Sexual Exploitation and Sexual
Abuse CETS No.201, entered into force 1 July 2010; Directive 2011/92 of 13 December 2011 on com-
bating the sexual abuse and sexual exploitation of children and child pornography [2011] OJ L 335/1.
94
Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst
Forms of Child Labour (ILO No. 182) entry into force 19 November 2000.
95
Art 13(3), CoE Trafficking Convention; see also art 13(2), EU Trafficking Directive. See also art
8(2) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography which is framed in a much weaker way.
96
Art 15(5), EU Asylum Procedures Directive (recast). For an analysis see G Noll, ‘Junk Science?
Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum’
28(2) International Journal of Refugee Law (2016) 234.
97
Art 16(7), CoE Trafficking Convention.

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of clash is that efforts to combat human trafficking and human smuggling might exacerbate
the plight of refugees who do not have safe and regular pathways to international protection.98
In addition, countries of origin are under pressure to control the irregular movement of their
own nationals.99 More specifically, it has been reported that countries of origin and transit
use anti-trafficking as a pretext to hamper departure and onward travel of individuals.100 As
a consequence, concerns have arisen that ‘the antitrafficking campaign has […] resulted in
significant collateral human rights damage by providing a context for developed states to
pursue a border control agenda under the cover of promoting human rights’.101 These concerns
are ever so poignant in the light of what has been framed as a world of ‘cooperative deterrence’
in which refugees are prevented from reaching safe haven.102
The UN Trafficking Protocol and the UN Smuggling Protocol criminalize certain forms of
migration and have prominent migration control agendas. Both protocols impose obligations
upon the state parties to ‘strengthen, to the extent possible, such border controls as may be
necessary to prevent and detect’ respectively the smuggling of migrants and the trafficking in
persons.103 The question thus arises whether these measures are compatible with refugee law
and with international human rights law. The discussion in this section will focus on the right
to leave as enshrined in Article 12(2) of the ICCPR and regional human rights instruments.104
Could the anti-trafficking and the anti-smuggling measures be contrary to the right to leave?
My engagement with this question is without prejudice to other rights that might be at stake
(e.g., the right not to be subjected to refoulement). However, to make the analysis manageable
I will limit it to the right to leave under human rights law.
The right to leave is not framed in absolute terms. It can be restricted when the restriction
is provided by law, serves some of the purposes indicated in Article 12(3) of the ICCPR and
is necessary and proportionate. The purposes for which limitations can be imposed are framed
very vaguely (national security, public order, etc.) and it can be easily argued that any limita-
tion achieves some of these purposes.105 Although the purpose of preventing human smuggling
and human trafficking is not explicitly indicated in the text of Article 12(3), this purpose
could be read into ‘public order’. The core of the analysis thus is on the proportionately of
any limitation on the right to leave. This allows a wide scope for qualitative reasoning since

98
See Security Council Resolution 2240 (2015), 9 October 2015, which authorizes states to exercise
exceptional powers with respect to ships suspected of being engaged in human trafficking and migrant
smuggling on the high seas off the costs of Libya.
99
The Right to Leave, Commissioner for Human Rights Issue Paper (Council of Europe, 2013) 53
(‘[…] the authorities of third states change their rules, regulations and practices in order to assist the EU
in its objectives regarding controls on persons.’); see also E Guild and V Stoyanova, ‘The Human Right
to Leave Any Country: A Right to be Delivered’ European Yearbook on Human Rights (2018) 373.
100
See K Kampadoo (ed), Trafficking and Prostitution Reconsidered. New Perspectives on Migration,
Sex Work, and Human Rights (Paradigm Publishers, 2005); L Augustin, Sex at the Margins (Zed Books,
2007).
101
Hathaway (n 16), 26. For a response see A Gallagher, ‘Human Rights and Human Trafficking:
Quagmire or Firm Ground? A Response to James Hathaway’ 49(4) Virginia Journal of International
Law (2009) 789.
102
Gammeltoft-Hansen and Hathaway (n 19).
103
Art 11(1) of both protocols.
104
See, e.g., Art 2, Protocol 4 of the European Convention on Human Rights.
105
D Kochenov, ‘The Right to Leave any Country’ in R Pender (ed) International Migration Law
(Martinus Nijhoff, 2012).

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whether a limitation is proportionate depends on the particular factual circumstances. The

Human Rights Committee (HRC) has not been helpful in terms of elucidating us as to what
might weight in the proportionality assessment in the specific context that is of interest for
this chapter.106 However, in its General Comment No.27: Article 12 (Freedom of Movement)
the HRC has used very strong words. Not only any restriction on the right to leave has to be
proportionate, but states have to use the ‘least intrusive instrument amongst those which might
achieve the desired result’.107 As a consequence, any limitations have to be construed very
strictly and in a way that does not undermine the essence of the right. In other words, ‘the
relation between right and restriction, between norm and exception, must not be reversed’.108
Do the UN Trafficking and Smuggling Protocols modify the above analysis by making it
easier for countries justify measures designed to prevent leaving? In other words, do these
protocols shift the proportionality analysis in favour of states interests? In alternative, are these
protocols inherently suspect in light of the above proposed analysis? The protocols have two
objectives that are relevant to the present discussion: (i) criminalization of human smuggling
and trafficking and enablement of inter-state cooperation for the suppression of these two
crimes by ensuring double criminality;109 (ii) strengthening of border control measures. How
does each one of these affect the right to leave?
The Smuggling Protocol permits and even requires from states to prevent leaving when this
involves smuggling.110 Although on face value it targets the smugglers, it has real and serious
implications for the right to leave for those, including refugees, who use the services of smug-
glers. In relation to the UN Trafficking Protocol, arguments that countries of origin have to
protect their nationals from trafficking and thus from migrating towards future ‘exploitation’
(whatever ‘exploitation’ might mean),111 can weight in the proportionality assessment and
eventually more easily justify limiting the right to leave.112

106
See General Comment 27 Freedom of movement (art 12), U.N. Doc. CCPR/C/21/Rev.1/Add.9
(1999), para 11-18, where some general guidelines as to the application of the restrictions are provided.
107
General Comment 27, para.14. An important caveat has to be acknowledged here. Despite the
strong language used in text of General Comment 27, in its communications the HRC does not apply
the ‘least intrusive’ test. For example, in Lauri Peltonen v. Finland, Communication No.492/1992, U.N.
Doc. CCPR/C/51/D/492/1992 (1994), the HRC simply held that the state could ‘impose reasonable
restrictions on the rights of individuals who have not yet performed such [mandatory national] service to
leave the country until service is completed’. In Ismet Celepli v. Sweden, Communication No.456/1991,
U.N. Doc. CCPR/C/51/D/456/1991 (1994), the HRC did not expressly engage in a balancing between
the significance of the person’s right to freedom of movement and the security concern of the govern-
ment. In Mrs Samira Karker on Behalf of her Husband Mr. Salah Karker v. France, Communication
No.833/1998, U.N. Doc. CCPR/C/70/D/833/1998 (2000), para 9.2, at no point did the HRC ask the
question whether any less intrusive measures could have been applied by the government.
108
General Comment 27, para 13.
109
N Boister, Introduction to Transnational Criminal Law (Oxford University Press, 2012), 14.
110
See, e.g., art 11(1), UN Smuggling Protocol.
111
On the ambiguity of the definition of human trafficking and the term ‘exploitation’ in international
law see Noll (n 30), 343, 347–9; J O’Connell Davidson and B Anderson, ‘The Trouble with Trafficking’
in C van den Anker and J Doomernik (eds), Trafficking and Women’s Rights, (Palgrave McMillan, 2006)
11, 17.
112
See Rantsev v. Cyprus and Russia (n 52), para 260, where one of the respondent governments,
i.e., Russia, argued that any system of preventing measures to protect citizens going abroad from human
trafficking, could come into conflict with art 2 of Protocol 4 of the ECHR, which enshrines the right
to leave any country. Russia argued that there has to be a fair balance between any measures aimed at

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At this juncture, we should remind ourselves of the saving clauses in the protocols.113 These
suggest that human rights law, including the right to leave, trump the UN Smuggling Protocol
and the UN Trafficking Protocol. Does this mean that states cannot impose restrictions on the
right to leave even if leaving implies using smugglers and traffickers? The answer to this ques-
tion is not necessarily positive. The issue comes down to whether the requirements, including
the proportionality and necessity test, for legitimate restrictions on the right to leave are met. In
this proportionality assessment, factors favoring anti-smuggling and anti-trafficking measures
might have to be balanced against other factors.
Finally, how do the above mentioned saving clauses interact with the 1951 Refugee
Convention?114 Although the convention does not address the issue of how refugees leave
their countries of origin and come within the jurisdiction of countries of surrogate protec-
tion,115 Article 31(1) of the Refugee Convention clearly recognizes that refugees can resort
to illegal entry, which can be interpreted as an acknowledgment that refugees can use human
smuggling. However, Article 31(1) of the Refugee Convention does not refer to smuggling; it
rather refers to illegal entry. Therefore, this provision is not concerned with the organization
of the refugees’ illegal entry by third parties (i.e., the smugglers). In this sense, on a textual
interpretation, the Smuggling Protocol appears to be in harmony with the text of Article 31(1)
of the Refugee Convention. Importantly, the Smuggling Protocol does not aim to target the
migrants who use the services of smugglers, but rather the smugglers.
In conclusion, international law does not give us easy answers to the question posed in
the beginning of this section. The Smuggling and the Trafficking Protocols have conscripted
countries of origin and transit to control irregular movement. By virtue of the safeguarding
clauses in the protocols, human rights law trumps. However, human rights law does not
provide us with hard rules when it comes to the parameters of the right to leave. Limitations on
the right are allowed provided that they comply with certain requirements. The most salient of
these is that any limitation has to be necessary and proportionate. It is doubtful whether sweep-
ing measures of preventing people from leaving, as those envisioned by the protocols, with
severe consequence for refugees, who are in fact allowed to use illegal means of migration,
can be regarded as proportionate.

8. CONCLUSION
In many respects, the law on human trafficking and refugee law converge in terms of enhanc-
ing the protection standards. Victims of human trafficking can qualify for refugee status and
other forms of protection against refoulement, which complements the possibilities offered
under the human trafficking regime for averting deportation. Victims of human trafficking
who have applied for international protection might be eligible for special reception and
procedural guarantees due to their particular vulnerabilities. In the context of determining
their international protection needs, victims of human trafficking might be shielded from the

protection of individuals from potential trafficking and the right to leave any country. Unfortunately, the
ECtHR did not address the issue raised by Russia.
113
Art 14(1), UN Trafficking Protocol; art 19, UN Smuggling Protocol.
114
Convention relating to the Status of Refugees, 189 UNTS 150, entered into force April 22, 1954.
115
Hathaway (n 23).

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application of such restrictive rules as the ‘safe third country’ rule. They might be also shielded
from punishment not only on account of their illegal entry or presence, a guarantee provided
by refugee law, but also in relation to crimes correlated with their trafficking. Finally, special
consideration is due to asylum-seeking children who are victims of human trafficking. Both
refugee law and the law on human trafficking acknowledge their special situation and contain
norms to this effect.
As this chapter has demonstrated, however, many of the protection measures emerging
from the human trafficking legal framework are limited to its regional, i.e., Council of Europe
and EU, manifestation. It is the European anti-trafficking framework that contains binding
obligations to assist and protection victims of human trafficking. In contrast, the universal
framework is very weak in this respect, which is a reason for concern. There are further
reasons for concerns related to the disturbing effects of the anti-trafficking regime on the rights
of refugees. In particular, the anti-trafficking and the interrelated anti-smuggling measures
adopted by states have a negative impact on the refugees in terms of their possibilities to leave
countries of origin and to access the territory of countries of asylum. As my short analysis
had demonstrated, there are no secure, easy and unqualified arguments that in this respect the
international law on human trafficking and smuggling is necessary contrary to refugee law and
human rights law. Ultimately, however, all the protection and assistance measures discussed
in sections 1–7 of this chapter will be almost meaningless, if individuals in need of protection
cannot reach safe shores.

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22. Climate refugees and the 1951 Convention
Matthew Scott

This chapter discusses the relevance of the 1951 Convention relating to the Status of Refugees
(the Refugee Convention) in the context of disasters and climate change. It begins with an
overview of the literature on the phenomenon itself, noting the shift around 2011 from a focus
on climate change towards contextualisation within wider processes relating to disaster risk
reduction.
The chapter then turns to the legal literature addressing the application of the Refugee
Convention. After noting some early efforts to articulate inclusive arguments, attention
focuses on three primary doctrinal reasons why the Refugee Convention has been considered
to generally not apply in the context of disasters and climate change, namely the difficulties
in establishing: (1) a well-founded fear: (2) of being persecuted; (3) for a Convention reason.
Proposals for addressing the ‘protection’ gap are then canvassed, with particular emphasis on
the Nansen Initiative’s Protection Agenda.1
The final section of the chapter revisits the Refugee Convention and, drawing on recent
jurisprudence from the New Zealand Immigration and Protection Tribunal (NZIPT) and
insights from the fields of disaster risk reduction and disaster anthropology, articulates an
approach to the determination of refugee status in which disasters are understood as social phe-
nomena, where harm is conceived in relation to states’ positive obligations under international
law, including the obligation of non-discrimination, and where vulnerability and exposure to
disaster-related harm is recognised as being differential, at times for reasons of a person’s race,
religion, nationality, membership of a particular social group or political opinion.

1. CONCEPTUALISATION OF THE PHENOMENON OVER TIME

This chapter is concerned with the application of the Refugee Convention in relation to
‘climate refugees’. The term itself is politically resonant,2 but its use has declined owing to its
rejection by UNHCR3 and refugee law academics,4 who emphasise the distinctiveness of the
word ‘refugee’ as a legal term of art. Before turning to the Refugee Convention, however, it
is important to trace the evolution of understanding of the phenomenon from its emergence

1
Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of
Disasters and Climate Change, December 2015, www​.disasterdisplacement​.org, accessed 21 September
2016.
2
François Gemenne, ‘One good reason to speak of ‘climate refugees’, (May 2015) Forced
Migration Review Disasters and Displacement 49.
3
UNHCR, “Summary of deliberations on climate change and displacement”, (2011) Int’l J. Refugee
L. 23, 561.
4
Jane McAdam, Climate Change, Forced Migration and International Law (Oxford University
Press, 2012).

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in international policy circles from around 19855 to the present, some 30 years later. How the
phenomenon is conceptualised has implications for how the law is applied.
The International Organisation for Migration was among the first to discuss the link between
climate change and cross-border displacement, noting in a 1992 report that: ‘Large numbers of
people are moving as a result of environmental degradation that has increased dramatically in
recent years. The number of such migrants could rise subtantially as larger areas of the earth
become uninhabitable as a result of climate change.’6
‘Maximalist’ predictions anticipating massive numbers of climate refugees seeking entry
into states in the Global North captured the attention of policymakers.7 Norman Myers
briefed the Organization on Security and Cooperation in Europe in 2005 with the message
that ‘already there are sizeable numbers of environmental refugees who have made their way,
usually illegally, into OSCE countries – and today’s stream will surely come to be regarded as
a trickle when compared with the floods that will ensue in decades ahead’.8
Internalising this message, the European Commission warned in 2008 that ‘there will be
millions of “environmental” migrants by 2020 with climate change as one of the major drivers
of this phenomenon… Europe must expect substantially increased migratory pressure’.9
However, early critics of the notion of the ‘climate refugee’ asked precisely what the rela-
tionship is between climate change, adverse environmental conditions and human mobility,
and questioned the methodology behind such ‘maximalist’ predictions. In particular, the
simple causality underpinning these early approaches has been robustly challenged. An early
and influential intervention by Richard Black argued that ‘although environmental degradation
and catastrophe may be important factors in the decision to migrate… their conceptualisation
as a primary cause of forced displacement is unhelpful...’.10
Empirical research on contemporary patterns of displacement in the context of environ-
mental pressures11 suggested that most people who move in this connection do so over short
distances, temporarily and generally within the boundaries of their own countries. Where
international borders are crossed, movement nevertheless tends to be within the same region,

5
Essam El-Hinnawi, Environmental refugees (Nairobi: United Nations Environment Programme,
1985) cited in Diane C. Bates, ‘Environmental refugees? classifying human migrations caused by envi-
ronmental change’ (2002) Population and Environment, 23:5, 466. For a detailed discussion of earlier
approaches to the environment-human mobility nexus, stretching back to the late 1800s, see Etienne
Piguet, ‘From “primitive migration” to “climate refugees”: the curious fate of the natural environment in
migration studies’ (2013) Annals of the Association of American Geographers, 103:1.
6
Cited in Frank Laczko and Christine Aghazarm, ‘Introduction and overview: enhancing the
knowledge base’, in Frank Laczko and Christine Aghazarm (eds), Migration, Environment and Climate
Change: Assessing the Evidence (IOM, 2009), 13, citing IOM, Migration and the Environment (IOM and
the Refugee Policy Group (RPG), 1992).
7
For a detailed discussion of the minimalist/maximalist debate see Fanny Thornton, ‘Climate
change, displacement and international law: between crisis and ambiguity’ (2012) Aust. YBIL 30, 147.
8
Norman Myers, Environmental Refugees: An Emergent Security Issue, 13th OSCE Economic
Forum, Prague, 23–27 May 2005, EF​.NGO/​4/​05, Organization for Security and Cooperation in Europe,
2005, 3–4.
9
European Commission, Climate Change and International Security: Paper from the High
Representative and the European Commission to the European Council, S113/08 14 March 2008.
10
Richard Black, Environmental refugees: myth or reality? New Issues in Refugee Research,
Working Paper No. 34 (UNHCR, 2001).
11
IOM curates a collection of empirical research at http://​www​.environmentalmigration​.iom​.int,
accessed 15 April 2019.

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 Climate refugees and the 1951 Convention 345

rather than more widely. This perspective was already becoming mainstream at the time of
the European Commission’s communication, as reflected in the 2008 Climate change and
displacement edition of Forced Migration Review.12
Commissioned by the UK Government Office for Science, the Foresight Report represented
a significant milestone in communicating understanding of the relationship between climate
change, existing ‘drivers’ and displacement.13 Based on the findings from over 70 commis-
sioned reports, the Foresight Report demonstrated how political, demographic, economic
and social factors combine with environmental factors to constitute the macro level ‘drivers’
behind individual decisions to migrate. Climate change was understood to have an impact on
migration by amplifying existing drivers.
Reflecting this understanding of climate change as an amplifier of existing ‘drivers’, the
2011 Nansen Conference on Climate Change and Displacement in the 21st Century brought
together 230 delegates including the UN High Commissioner for Refugees, the UN Special
Representative of the Secretary-General for Disaster Risk Reduction and the Chair of the
Intergovernmental Panel on Climate Change. The Nansen Principles, one outcome of the
Conference, represent an important articulation of the contemporary understanding of the
relationship between climate change, disasters and displacement.14
In sum, by 2011 the notion of the ‘climate refugee’ was now widely regarded as inaccurate,
both as a matter of international law, as well as reflecting a limited understanding of the
many factors contributing to displacement and its subsequent characteristics. Nonetheless,
the evidence was clear that millions of people were being displaced annually in the context
of disasters, as revealed in annual reports by the Internal Displacement Monitoring Centre15
and disaster databases such as EM-DAT,16 and that disasters were expected to increase in
frequency and intensity, in part owing to changes in the global climate.
With the focus in the literature clearly shifting from ‘maximalist’ concerns about climate
refugees engulfing European states and others in the Global North towards the majority of
people who move within their own borders or across borders into adjacent countries, attention
fell instead on developing cooperative, managerial approaches to addressing cross-border
displacement within the context of disaster risk reduction and climate change adaptation. The
European Commission, for example, explained in its 2013 Staff Working Document that,
notwithstanding a call from the European Council to analyse the effects of climate change on
international migration, including to the European Union, focus should instead lie on devel-
opment and adaptation assistance, ‘given the strong evidence that most migration which is
primarily driven by environmental change is likely to occur within the Global South’.17
These developments in understanding the relationship between climate change, disasters and
displacement have influenced how approaches to the legal status of people displaced across borders

12
Forced Migration Review, Climate change and displacement, issue 31, October 2008. See also
follow-up edition Disasters and displacement, issue 49, May 2015.
13
Foresight: Migration and Global Environmental Change (2011) Final Project Report,
The Government Office for Science, London, 11.
14
Available at http://​www​.unhcr​.org/​4ea969729​.pdf, accessed 19 September 2016.
15
See http://​www​.internal​-displacement​.org, accessed 19 September 2016.
16
EM-DAT, the international disaster database, University of Louvain, Centre for Research on the
Epidemiology of Disasters (CRED), http://​www​.emdat​.be, accessed 19 September 2016.
17
European Commission, Commission Staff Working Document: Climate Change, Environmental
Degradation, and Migration, SWD(2013) 138 final, 2013, 3.

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346 Research handbook on international refugee law

in this connection is addressed. The following section traces the fate of the climate refugee in the
legal literature and in practice.

2. LEGAL RESPONSE

The notion that potentially millions of climate refugees would cross borders in the context of the
increasing adversity and conflict brought about by anthropogenic climate change encouraged an
early contingent of legal scholars to engage with the question of whether, and if so, how, such
people might satisfy the requirements of Article 1A(2) of the Refugee Convention. Although
Cooper’s argument that ‘environmental refugees experience persecution because they are
members of a “social group” of people who are politically powerless to protect their environ-
ment’18 has been criticised,19 other approaches20 considered specific scenarios, drawing more
convincingly on established principles of international refugee law. However, the relevance of
these approaches was reduced by their focus on scenarios involving state collusion in natural
resources extraction, rather than disasters and climate change. Looking more closely at state
failures to protect populations in disasters, Juss argued that ‘we should seek to find the answer in
the existing Refugee Convention of 1951…[understood against] the expanding canvas of human
rights law’.21 Further development of a human rights approach to determining refugee status in
the context of disasters and climate change was triggered by the pioneering work of the NZIPT
from 2013.22 However, doctrinal and conceptual work looking at the limits of the Refugee
Convention would first have to be carried out before more nuanced approaches to determining
refugee status would be articulated. In order to drive global responses to cross-border displace-
ment in the context of disasters and climate change, the limits of the existing international pro-
tection framework needed to be made very clear. Thus, the inclusive arguments canvassed above
made way for policy papers, round tables and academic treatises highlighting ‘protection gaps’.

2.1 Protection Gaps

The Refugee Convention has been recognised as potentially applying in some circumstances,
but these have tended to relate overwhelmingly to scenarios involving the manifestation of
different forms of violence. Such scenarios include:
●● discriminatory denial of disaster relief;23

18
Jessica Cooper, ‘Environmental refugees: meeting the requirements of the refugee definition’
(1997) NYU Envtl. LJ 6, 526.
19
Dana Zartner Falstrom, ‘Stemming the flow of environmental displacement: creating a convention
to protect persons and preserve the environment.’ (2001) Colo. J. Int’l Envtl. L. & Pol’y 1. See also
McAdam, Climate Change, n 4, 43.
20
Christopher Kozoll, ‘Poisoning the well: persecution, the environment, and refugee status.’ (2004)
Colo. J. Int’l Envtl. L. & Pol’y 15; Carly Marcs, “Spoiling Movi’s river: towards recognition of persecu-
tory environmental harm within the meaning of the Refugee Convention” (2008) Am. U. Int’l L. Rev. 24
21
Satvinder Singh Juss, International Migration and Global Justice (Ashgate, 2006), 172.
22
See section 4 below.
23
See, e.g., McAdam, Climate Change, n 4, 47. This scenario has also been considered in the case
law, including in RN (Returnees) Zimbabwe CG, [2008] UKAIT 00083; AF (Kiribati) [2013] NZIPT
800413 with reference to Refugee Appeal No 74665 (7 July 2004).

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 Climate refugees and the 1951 Convention 347

●● obstructing international humanitarian assistance;24

●● using the disaster as a pretext for persecution;25
●● where people flee in the context of disaster but the well-founded fear of being persecuted exists
independently;26
●● the state causing environmental damage or allowing it to be caused.27

By contrast, the predicament of people exposed to adversity in this connection is widely regarded
as falling outside of the scope of the Refugee Convention and people who suffer injury, illness, loss
of possessions, shelter and livelihoods, and who are displaced across international borders are seen
as falling through what has been described as a ‘protection gap’.28 Indeed, apart from the earlier
attempts, the limits of the Convention have been generally accepted, and there are few systematic
doctrinal analyses of the scope of application of the Convention in the context of disasters and
climate change.29
This consensus view is expressed unequivocally by the Nansen Initiative, the successor to the
Nansen Conference, described as ‘a state-led, bottom-up consultative process intended to identify
effective practices and build consensus on key principles and elements to address the protection
and assistance needs of persons displaced across borders in the context of disasters, including
the adverse effects of climate change’:30 ‘… a serious legal gap exists with regard to cross-border
movements in the context of disasters and the effects of climate change. These people are in most
cases not refugees under international refugee law...’.31
24
McAdam, Climate Change, n 4, 47, makes reference to the International Law Commission,
Protection of Persons in the Event of Disasters: Texts and Titles of the Draft Articles Adopted by the
Drafting Committee on First Reading, A/CN.4/L.831. This example is also explored in detail in relation
to the application of the non-refoulement obligation under Article 6 ICCPR in AC (Tuvalu) [2014]
NZIPT 800517 (4 June 2014) [87–97].
25
See, e.g., Nansen Initiative, Agenda, above n 1, 27. Reference is often made to the decision of the
New Zealand case of Refugee Appeal No 76374 [2009] RSAA relating to persecution of a person who
assisted in the relief effort in the aftermath of Cyclone Nargis in Myanmar.
26
Vikram Kolmannskog, ‘Climate change, environmental displacement and international law’
(2012) J. Int. Dev. 24:1075.
27
See AF (Kiribati), n 23; McAdam, Climate Change, n 4, fn 47 citing SERAC and CESR v Nigeria,
Decision regarding Communication No 155/96, ACHPR/ COMM/A044/1.
28
See, e.g., UNHCR, High Commissioner’s Dialogue on Protection Challenges (8–9 December
2010); Vikram Kolmannskog and Lisetta Trebbi, ‘Climate change, natural disasters and displacement:
a multi-track approach to filling the protection gaps’ (2010) International Review of the Red Cross
92:879, 724; Roberta Cohen and Megan Bradley, ‘Disasters and displacement: gaps in protection’ (2010)
International Humanitarian Legal Studies 1; Albert Kraler, Tatiana Cernei, Marion Noack, ‘Climate
refugees’: legal and policy responses to environmentally induced migration, European Parliament,
Directorate General for Internal Policies, PE 462.422, 2011; Walter Kälin and Nina Schrepfer, Protecting
People Crossing Borders in the Context of Climate Change Normative Gaps and Possible Approaches,
UNHCR Legal and Protection Policy Research Series, PPLA/2012/01, 2012.
29
Matthew Scott addresses this gap in the literature by systematically reviewing hundreds of cases
relating to claims for recognition of refugee status in the context of natural hazard events and climate
change impacts, developing a taxonomy of the kinds of circumstances in which a person may establish
eligibility. See Matthew Scott, Climate Change, Disasters and the Refugee Convention (Cambridge
University Press, forthcoming).
30
Nansen Initiative, Global Consultation, https://​www​.nanseninitiative​.org/​global​-consultations/​,
accessed 5 September 2016.
31
Nansen Initiative, Towards a Protection Agenda for People Displaced Across Borders in the
Context of Disasters and the Effects of Climate Change, https://​www​.nanseninitiative​.org/​secretariat/​,
accessed 5 September 2016.

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348 Research handbook on international refugee law

The legal literature emphasises three doctrinal reasons why the Refugee Convention tends
not to apply to people displaced across international borders in the context of disasters and
climate change. First, although individuals may be exposed to serious harm, their predicament
is seen generally as not being related to the experience of being persecuted, but is more directly
attributable to the forces of nature, such as cyclones, earthquakes, droughts and sea level rise.
Second, even if the harm to which people are exposed amounted to persecution, it would
be difficult to establish that such persecution was for reasons of a person’s race, religion,
nationality, membership of a particular social group or political opinion. Third, assessments of
risk on return are complicated, particularly in the case of so-called ‘anticipatory flight’. Each
argument is set out in more detail below.

2.1.1 The absence of persecution

The argument that cross-border displacement in the context of disasters and climate change
does not indicate the presence of persecution is built on two premises. First, the requirement to
identify a human actor of persecution, which is fundamental to the legal understanding of the
concept, appears not to be met in most scenarios.32An early determination relating to a claim
for refugee status by a citizen of the low-lying Pacific island state of Tuvalu concluded: ‘the
appellants are unfortunate victims, like all other Tuvaluan citizens, of the forces of nature
leading to the erosion of coastland and the family property being partially submerged at high
tide’.33
The view that ‘the forces of nature’ are responsible for the harm to which individuals are
exposed in disasters, described as the ‘hazard paradigm’ in the disaster risk reduction litera-
ture,34 presents a powerful obstacle to recognition of refugee status. It precludes the identifica-
tion of the requisite human agency upon which the legal concept of being persecuted rests.35
Second, states do not generally covet disaster and the associated harm that befalls segments
of the population, and they tend also to make efforts to protect populations within their juris-
diction. This ex ante lack of animus and ex post facto humanitarianism is contrasted with the
malignity that is reflected in many persecution scenarios. In other words, the lack of intention
on the part of state actors to cause harm, along with the state’s willingness to help victims,
appears to distinguish disaster-related adversity from persecution.36 In relation to the former,
Renaud et al. argue:

32
See, e.g., Tracey King, ‘Environmental displacement: coordinating efforts to find solutions’
(2005) Geo. Int’l Envtl. L. Rev. 18, 551.
33
Refugee Appeal No 72189/2000 – 72195/2000, RSAA, 17 August 2000.
34
See, e.g., Kenneth Hewitt, ‘Excluded perspectives in the social construction of disas-
ter (1995) International Journal of Mass Emergencies and Disasters, 13:3, 320; Anthony
Oliver-Smith, ‘“What is a disaster?”: anthropological perspectives on a persistent question’, in
Anthony Oliver-Smith and Susanna Hoffman (eds), The Angry Earth: Disaster in Anthropological
Perspective (Routledge, 1999), 20; Dorothea Hilhorst, Unlocking disaster paradigms:
an actor-oriented focus on disaster response, Abstract submitted for session 3 of the Disaster Research
and Social Crisis Network panels of the 6th European Sociological Conference, 23–26 September,
Murcia, Spain, 2003, 2, available at ipcc​-wg2​.gov/​njlite​_download​.php​?id​=​6263, accessed 16 August
2016.
35
AF (Kiribati), n 23, [54].
36
Kälin and Schrepfer, Protecting People Crossing Borders, n 28, 32.

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 Climate refugees and the 1951 Convention 349

The grounds for persecution are important in the definition. The factors ‘nature’ or ‘the environment’
or ‘the climate’ do not seem to be grounds for persecution and are not entities which can have an
intent to harm, which is often considered part of the definition of persecution.37

The continued operation of the hazard paradigm is quite evident here.

As the notion that the Refugee Convention exists to provide ‘surrogate international pro-
tection’ to people in situations where the ‘bond of trust, loyalty, protection, and assistance
between the citizen and the state’38 has broken down, humanitarianism, rather than interna-
tional legal obligation, appears best suited to the adversity that arises in the context of disasters
and climate change. This view is expressed very clearly by senior courts in Australia,39 the
UK40 and Canada.41
These arguments have a particular character when applied in the context of climate change,
where any attempt to link anthropogenic greenhouse gas emissions with persecution would
be doomed to failure.42 In Teitiota,43 for example, the claimant argued that the requirement
to establish a fear of ‘being persecuted’ was capable of being satisfied with reference to
the ‘general worldwide human agency’ responsible for producing greenhouse gases ‘which
promoted rising sea levels and changing weather patterns inherent in climate change’.44 Such
an argument was described judicially as an attempt to ‘stand the Convention on its head’,45
a notion articulated earlier by McAdam.46

2.1.2 The lack of a nexus to one or more of the Convention reasons

Closely related is the argument that displacement in the context of disasters and climate change
does not engage the nexus clause. Two factors support this view. First, there is the notion that
disasters have an indiscriminate impact.47 Second, the extent to which nexus presents an
obstacle in this connection depends on the doctrinal approach to its normative content. Where
intention-based approaches dominate, as they implicitly have in the literature, then evidence
of targeting will be required, thereby precluding the kind of ‘adversity’ claims being discussed
here. However, as Marcs notes, the wider bifurcated and predicament approaches enable less
obvious claims to be made out.48

37
Fabrice G. Renaud et al., ‘A decision framework for environmentally induced migration’ (2011)
International Migration 49:1, 12.
38
Andrew Shacknove, ‘Who is a refugee?’ (1985) Ethics 95:2, 277–8.
39
A and Another v MIEA & Anor [1997] HCA 4.
40
Horvath v Secretary of State for the Home Department [2000] UKHL 37.
41
Canada (Attorney General) v Ward [1993] 2 S.C.R. 689.
42
For a detailed discussion of this case law, see Matthew Scott, ‘Refuge from climate change related
harm: Evaluating the scope of international protection within the Common European Asylum System’ in
Céline Bauloz et al. (eds.) Seeking Asylum in the European Union: Critical Perspectives on the Second
Phase of the Common European Asylum System (Brill/Martinus Nijhoff, 2015).
43
Ioane Teitiota v the Chief Executive of the Mistry of Business Innovation and Employment [2013]
NZHC 3125.
44
Ibid., [57].
45
Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA
173, [40].
46
McAdam, Climate Change, n 4, 45.
47
Ibid., 46.
48
Marcs, Movi’s river, n 20.

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350 Research handbook on international refugee law

2.1.3 The question of timing

Finally, owing to the requirement that a person’s fear of being persecuted be well-founded,
the Refugee Convention is not considered to address the predicament of people who would
seek to leave their home countries in anticipation of future environmentally-related adversity.
Although a person facing ‘imminent’ harm on return may satisfy the Convention requirement
that her fear of being persecuted be ‘well-founded’, those, for example, who are left destitute
by the last drought and who now fear that further hazards may be around the corner would
struggle to establish that their fear was well-founded. Equally, the more gradual environmental
degradation that makes certain ecosystems increasingly uninhabitable may not entail a suffi-
ciently proximate risk of harm.49

2.2 Policy Concerns

In addition to these doctrinal challenges to the application of the Refugee Convention in the
context of environmental pressures, the literature also reflects policy concerns.
First, there is the concern that incorporating climate refugees under the narrower refugee
umbrella would water down the distinctiveness of the refugee phenomenon.50 Second, such
inclusiveness would potentially place too great a strain on the already stretched operational
capacity of UNHCR, and would test the willingness of states to accept refugees on their ter-
ritory.51 Finally, it is argued that protecting people displaced in the context of environmental
pressures was not contemplated by the drafters of the Convention and does not reflect the spirit
and intent of the instrument.52

3. FROM PROTECTION GAPS TO THE PROTECTION AGENDA

These doctrinal challenges have not always precluded the recognition of refugee status, even
in situations more readily described as ‘adversity’ than ‘violence’. Wood, for example, con-
firms that Kenya granted prima facie refugee status under the expanded 1969 African Refugee
Convention definition to individuals crossing into their territory from Somalia during the 2011
drought.53 Kolmannskog reports on a similar situation appertaining in relation to Somalis in
Yemen, although the situation for Ethiopians also affected by the drought was more compli-

49
McAdam, Climate Change, n 4, 60. For a critical discussion of the role of ‘imminence’ in interna-
tional refugee law, consider Adrienne Anderson and others, ‘Imminence in Refugee and Human Rights
Law: A Misplaced Notion for International Protection’ (2019) 68 ICLQ 111.
50
See for example UNHCR, “A critical time for the environment”, (2002) Refugees, no 127; King,
Environmental Displacement, n 32, 551; Angela Williams, ‘Turning the tide: recognizing climate change
refugees in international law’ (2008) Law & Policy 30:4; Frank Bierman and Ingrid Boas, ‘Protecting
climate refugees: the case for a global protocol’ (2008) Environment 50:6, 11; Renaud et al., A decision
framework, n 37, 12.
51
King, Environmental Displacement, n 32, 551.
52
David Keane, ‘Environmental causes and consequences of migration: a search for the meaning of
environmental refugees’ (2003) Geo. Int’l Envtl. L. Rev. 16, 215.
53
Tamara Wood, Protection and Disasters in the Horn of Africa: Norms and Practice for Addressing
Cross-Border Displacement in Disaster Contexts, Technical Paper prepared for the Nansen Initiative,
January 2013, 25, fn 145.

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 Climate refugees and the 1951 Convention 351

cated, with local custom and Islamic law appearing more helpful than the 1951 Convention.54
Similarly, Cantor identifies a number of countries in Latin America where refugee status,
both under the Refugee Convention as well as under the expanded Cartagena Declaration
definition, has been granted in the context of the 2010 Haitian earthquake. He notes that ‘the
basis of their recognition as individual refugees was not the earthquake directly but rather
a well-founded fear of persecution by non-State actors that arose from the vacuum of govern-
mental authority after the earthquake in Haiti’,55 thus falling within the ‘violence’ rather than
the ‘adversity’ frame.
These limited examples notwithstanding, and recognising that the Refugee Convention is
indeed ‘by and large, an inappropriate normative framework for responding to the needs of
those forced to move on account of environmental or climate change impacts’,56 a range of
proposals have been advanced for addressing the ‘protection gap’. Whilst these proposals
include calls for the adoption of new instruments57 or the amendment of existing instruments,58
a more pragmatic ‘effective practices’ approach was adopted by the Nansen Initiative’s
Protection Agenda. 59
Notwithstanding ongoing work under the UNFCCC Warsaw Mechanism on Loss and
Damage,60 there appears to be very limited interest amongst states to introduce global ‘solu-
tions’ at this stage,61 with focus clearly placed on regional approaches. The Nansen Initiative’s

54
Vikram Kolmannskog, ‘Disasters and refugee protection: a socio-legal case study from Yemen’
(2015) Oslo Law Review 2:3.
55
David Cantor, Law, Policy and Practice Concerning the Humanitarian Protection of Aliens on
A Temporary Basis in the Context of Disasters, Background Paper, States of the Regional Conference
on Migration and Others in the Americas Regional workshop on Temporary Protection Status and/or
Humanitarian Visas in Situations of Disaster, San José, Costa Rica, 10–11 February 2015, 17–18.
56
McAdam, Climate Change, n 4, 39.
57
See, e.g., the initiative from the University of Limoges at http://​intergenlaw​.com/​wp​-content/​
uploads/​2015/​02/​Draft​-Convention​-on​-the​-International​-Status​-on​-environmentally​-displaced​-persons​
-third​-version​.pdf accessed 15 April 2019. See also David Hodgkinson et al., ‘“The hour when the
ship comes in”: a convention for persons displaced by climate change’ (2010) Monash University
Law Review 36:1; Fabrice G. Renaud et al., Control, Adapt or Flee: How to Face Environmental
Migration? UNU-EHS, 2007; Kara Moberg, ‘Extending refugee definitions to cover environmentally
displaced persons displaces necessary protection’ (2008) Iowa L. Rev. 94, 1135; King, Environmental
Displacement: n 32; Bierman and Boas, Global protocol, n 50; Oliver Milman, ‘UN drops plan to help
move climate-change affected people’ The Guardian, 7 October 2015, https://​www​.theguardian​.com/​
environment/​2015/​oct/​07/​un​-drops​-plan​-to​-create​-group​-to​-relocate​-climate​-change​-affected​-people,
accessed 21 September 2016.
58
Minister of Environment for Bangladesh, Dr. Hasan Mahmud, quoted in ‘Durban Climate Summit:
Dhaka to Seek Amendment to Refugee Convention’ Jubilee South (4 November 2011).
59
Nansen Initiative, Agenda, n 1.
60
See UNFCCC Executive Committee of the Warsaw International Mechanism for Loss and Damage
associated with Climate Change Impacts, Technical Meeting Concept Note: Action Area 6: Migration,
Displacement and Human Mobility, 27–29 July 2016, Casablanca, Kingdom of Morocco, https://​
environmentalmigration​.iom​.int/​sites/​default/​files/​EXCOM​%20IOM​_Technical​%20Meeting​_AA6​%20​
%28migration​%29​%20Concept​%20Note​%20​%2829July2016​%29​.pdf, accessed 13 September 2016.
61
Indeed, the wording that would include a Climate Change Displacement Coordination Facility
under the Paris Climate Agreement was dropped due to states’ unwillingness to be bound by such lan-
guage. See Milman, UN drops plan, n 57.

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352 Research handbook on international refugee law

Protection Agenda, endorsed by 109 states at a Global Consultation in October 2015,62 epito-
mises this spirit:

Rather than calling for a new binding international convention on cross-border disaster- displace-
ment, this agenda supports an approach that focuses on the integration of effective practices by States
and (sub-) regional organizations into their own normative frameworks in accordance with their
specific situations and challenges.63

UNHCR has also drafted specific guidelines on temporary protection or stay arrangements,64
and a recent UNFCCC synthesis paper provides an overview of the many ‘mechanisms,
frameworks, processes, and entities that promote dialogue, coordination, coherence and
synergies on human mobility in the context of the adverse effects of climate change’.65 The
Regional Conference on Migration (for the Americas) has welcomed the production of the
regionally-specific Protection for Persons Moving across Borders in the Context of Disasters:
A Guide to Effective Practices for RCM Member Countries,66 indicating significant willing-
ness in some regions to address the phenomenon collaboratively.

4. REVISITING THE REFUGEE CONVENTION

In contrast, at the same time as the Nansen Initiative consultations were underway, the
European Union was engulfed in an internal crisis over how to respond to a significant
increase in arrivals of asylum seekers from numerous states in the Middle East and Africa. One
conclusion from a European Council meeting in February 2016 stated:

In response to the migration crisis facing the EU, the objective must be to rapidly stem the flows,
protect our external borders, reduce illegal migration and safeguard the integrity of the Schengen
area.67

In light of this position and similar approaches taken in other states of the Global North, it
would be optimistic to hope for a significant commitment to protecting people displaced in the
context of disasters and climate change in countries that currently actively seek to prevent the
entry of even persons for which a clear legal obligation exists.
Although clearly an exceptionally small minority at present, individuals displaced in the
context of disasters and climate change have sought international protection in a number of
countries of the Global North, at times because no other lawful means of remaining in the

62
Nansen Initiative, Global consultation conference report, December 2015, available at www​
.disasterdisplacement​.org, accessed 28 September 2016.
63
Nansen Initiative, Agenda, n 1, 7.
64
UNHCR, Guidelines on temporary protection or stay arrangements, February 2014.
65
UNFCCC, Technical Meeting, n 60.
66
See www​.rcmvs​.org/​Eventos/​CRM​_GRCM/​RCGM​_Con​_Rec​_Jun16​.docx for a record of the
meeting where states welcomed production of the Guide. Accessed 21 September 2016.
67
European Council, Conclusions on Migration (18 February 2016), http://​www​.consilium​.europa​
.eu/​en/​press/​press​-releases/​2016/​02/​18​-euco​-conclusions​-migration/​, accessed 21 September 2016. With
thanks to Marie Nygren for bringing this conclusion to my attention.

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 Climate refugees and the 1951 Convention 353

territory of a host state was available to them.68 In most cases, the claim for refugee status
turns on more conventional grounds, such as exposure to religious or politically-motivated
violence. In such cases the disaster is raised either by the claimant or the court as ‘relevant
background’, but which is generally not explored at all in the determination.69 Other cases
are more directly related to the disaster, but focus on the violent conduct of the state in this
context.70 Claims focusing specifically on disaster-related adversity have also been advanced,
including in relation to:

●● adverse conditions of existence engendered by rising sea levels on small island states in
the Pacific;71
●● socio-economic deprivation in the aftermath of the Indian Ocean tsunami;72
●● loss of home and livelihood in the aftermath of a hurricane in the Caribbean.73

In light of the foregoing, there is cause to consider the circumstances in which the inclusion
criteria may be satisfied where individuals seek recognition of refugee status in the context of
disaster-related adversity.
In what follows, a sketch of central features of a more nuanced approach to the inclusion
criteria at Article 1A(2) is provided. The approach builds on three central arguments.74 First,
in certain circumstances, the adversity to which individuals may be exposed in the context of
disasters and climate change may entail serious violations of economic and social rights and,
together with breaches of states’ positive non-discrimination obligations, could amount to per-
secution. Second, owing to the deeply social context in which disasters unfold, such adversity
will often have a differential impact, at times according to race, religion, nationality, member-
ship of a particular social group or political opinion. Thus, the nexus requirement is capable
of being satisfied in jurisdictions where bifurcated or predicament approaches are applied.
Finally, assessing risk on return entails consideration of past exposure to disaster-related harm,
contemporary and historical patterns of discrimination relevant to a claimant’s predicament,

68
Consider, e.g., the predicament of Ioane Teitiota in AF (Kiribati), n 23, who was unable to rely on
New Zealand’s humanitarian provisions. Similarly, consider the situation of the many Haitians deported
from Canada and the USA, having fallen outside domestic legal protections owing to at times minor
criminal convictions. See Human Rights Council, Report of the Independent Expert on the situation
of human rights in Haiti, Michel Forst, Addendum: Forced returns of Haitians from third states, A/
HRC/20/35/Add.1.
69
See, e.g., Refugee Appeal No. 71404, RSAA, (29 October 1999), violence against ethnic Chinese
in Indonesia in the context of unrest relating to economic instability connected to drought.
70
See, e.g., Y.C., v Holder, Attorney General, 11-2749-ag, 11-3217-ag, US Court of Appeals for the
Second Circuit, 18 December 2013, violence in relation to protest against distribution of disaster relief
in the aftermath of a typhoon; A.L. v Austria, Application No. 7788/11, ECHR, 10 May 2012, violence
in relation to protests against distribution of disaster relief in the aftermath of a flood; Y (Sri Lanka) v
Secretary of State for the Home department; Z (Sri Lanka) v Secretary of State for the Home Department
[2009] EWCA Civ 362, mental health implications of return in the aftermath of the Indian Ocean
tsunami.
71
Scott, Refuge, n 42.
72
RRT Case No. 0910215, [2010] RRTA 181; RRT Case No. 071295385, [2007] RRTA 109.
73
Ferguson and Others v Minister of Citizenship and Immigration, 2008 FC 903.
74
For a detailed elaboration of this approach, see Matthew Scott, ‘Finding agency in adversity:
applying the 1951 Refugee Convention in the context of disasters and climate change’ (2016) Refugee
Survey Quarterly 35:4, 26–57.

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354 Research handbook on international refugee law

current conditions in the claimant’s country of origin and the likelihood of exposure to serious
harm, including as a consequence of a subsequent disaster, within the foreseeable future.

4.1 Being Persecuted in Disasters

The NZIPT has articulated a clear and principled method for determining claims in the
context of disasters and climate change that reflects the human rights approach to the Refugee
Convention, with particular emphasis on the relevance of economic and social rights to the
understanding of the notion of being persecuted. In two cases concerning claims for refugee
status and complementary protection advanced by citizens of low-lying Pacific island states,
the tribunal articulates an approach to determining eligibility for international protection that
is firmly grounded in a human rights approach.
First, there is nothing special about determining claims in the context of disasters and
climate change. A claimant must establish a well-founded fear of being persecuted for
a Convention reason in the same way as other claimants. The methodology developed in
relation to claims based on economic and social rights, in particular the reference to standards
such as the ‘minimum core’ of a right beneath which states must not allow people within their
jurisdiction to fall, even in disasters, articulated by the Committee on Economic, Social and
Cultural Rights, along with views of that and other Committees regarding the claimant’s home
country’s fulfilment of obligations under international human rights law, is equally applicable
in the context of disasters and climate change.75
The tribunal could, however, have gone further. Its approach focuses predominantly on
intentional ex-post facto state conduct, such as the discriminatory denial of disaster assistance,
or the targeting of individuals involved in disaster relief. As to disaster related adversity, the
tribunal follows the reasoning of the European Court of Human Rights in Budayeva,76 recog-
nising the need to be realistic about the difficulties that states face in addressing disaster risk.77
Consequently, even exposure to serious disaster-related harm may not amount to persecution.
In this regard, the possibility that persecution may arise from a combination of state failure
to fulfil its obligations of non-discrimination under Article 2(2) ICESCR and 26 ICCPR with
failures to fulfil positive obligations under the substantive rights warrants further exploration.

4.2 Discrimination and Disasters

In the context of a disaster, a breach of the non-discrimination obligation that contributes

to serious harm may simultaneously amount to (1) persecution (2) for a Convention reason.
Foster identifies two ways in which courts have recognised persecution for a Convention
reason in the context of discrimination. First, there are cases where courts have considered
evidence that certain forms of harm are experienced by particular groups, such as women,
disproportionately and been prepared to find persecution for a Convention reason.78 Second,
courts have enquired into the factors that ‘led to or contributed to the person’s vulnerability,

75
AF (Kiribati), n 23, [65].
76
Budayeva v Russian Federation, App No. 15339/02, ECHR, 20 March 2008.
77
AC (Tuvalu), n 24, [74]–[75].
78
Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation
(Cambridge University Press, 2007), 282–3.

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 Climate refugees and the 1951 Convention 355

concluding that if those factors can be related to a Convention ground… then nexus is estab-
lished’.79 How do such dynamics play out in the context of disasters?
In accordance with what Cedervall-Lauta has termed the ‘social turn’ in disaster studies,80
disasters require the interaction of a natural hazard event or process with vulnerable social
conditions. Vulnerability in this connection arises both as a consequence of where people live,
as well as factors such as limited financial and social capital, poor health, language difficulties
and discrimination that collectively reduce resilience.81
Whereas discrimination in everyday life may not entail sufficient adversity as to attain the
high persecution threshold, it is contended that where disasters lead to serious harm, and where
(cumulative) discrimination has engendered differential exposure and vulnerability to serious
harm, a person may establish the elements of persecution for a Convention reason.
Thus, there is reason to revisit assumptions reflected in earlier literature about the ‘indis-
criminate’ nature of disasters, including the effects of climate change, and to rethink the
relationship between being persecuted and the five Convention reasons in this connection.

4.3 Risk on Return

Finally, the issue of ‘timing’ remains challenging. People seeking recognition as refugees
during or in the immediate aftermath of a disaster may be able to establish a well-founded fear
of being persecuted for a Convention reason, for example by adducing evidence generated
by international humanitarian organisations in concert with anthropological accounts and
UN treaty monitoring body reports highlighting the predicament of certain groups who face
systemic discrimination within the affected society. However, what of the anticipatory flight
that concerned McAdam?
In AC (Tuvalu), the NZIPT recognised that evidence of past exposure to disaster-related
harm, particularly in situations where the state has failed to fulfil its obligations under inter-
national law, may support a presumption of future risk.82 Considering the risk assessment
under Articles 6 and 7 ICCPR, the tribunal considered that a claimant would need to establish
that the risk of being exposed to disaster related harm was imminent in order to engage the
non-refoulement obligation under that instrument.83 It did not consider the risk assessment
under the Refugee Convention.
It is contended here that no such imminence requirement exists under international refugee
law. Rather, as the Federal Court of Australia observed in NAGT of 2002 v Minister for
Immigration and Multicultural and Indigenous Affairs [2002]:

79
Ibid., 283.
80
Kristian Cedervall-Lauta, Disaster Law (Routledge, 2015), Ch 2.
81
This approach to understanding the progression of vulnerability in the context of disasters was
developed in particular in Ben Wisner et al., At Risk: Natural Hazards, People’s Vulnerability and
Disasters (2nd edn, Routledge 2004). The approach has been described as ‘the most widely cited theo-
retical model’ – see Susan L. Cutter et al., Social Vulnerability to Climate Variability Hazards: A Review
of the Literature, Final Report to Oxfam America, 2009, 5, available at http://​adapt​.oxfamamerica​.org/​
resources/​Literature​_Review​.pdf, accessed 16 August 2016.
82
AC (Tuvalu), n 24, [69].
83
Ibid., [90]–[91].

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356 Research handbook on international refugee law

It is true that a finding that there is no real chance that an applicant will suffer persecution for
some time after his or her return to the country of nationality may make it difficult to persuade the
[decision-maker] that there is a real chance that the applicant will suffer persecution in the more
distant future. But if the [decision-maker] is to apply the correct test… it may be necessary to consider
whether the applicant’s fear of being persecuted in the more distant future (and not necessarily in the
period shortly after his or her return) is well-founded.84

As climate change continues to exacerbate existing drivers, the relevance of this distinction
between imminence and foreseeability may prove decisive to the outcome of individual claims.

5. CONCLUSION
The political resonance of the ‘climate refugee’ idea does not translate readily into the inclu-
sion clause at Article 1A(2) of the Refugee Convention, for the reasons outlined above. For
proponents of climate justice, this conclusion may be unsatisfactory. However, the legal argu-
ments for inclusion are more persuasive than the moral arguments, even if the former would
only see a very small minority of individuals recognised as refugees.
Refugee status determination should proceed from an appreciation of individual circum-
stances understood in relation to wider social patterns, and ought not be conducted with
a narrow focus on disasters and climate change. The ultimate question, as the NZIPT recog-
nised, remains whether a person seeking refugee status is able to demonstrate a well-founded
fear of being persecuted for a Convention reason. A risk of being exposed to a denial of
human rights in the context of a disaster may be a significant factor in an individual claim, but
it may not be the only factor. However, as climate change brings more frequent and intense
natural hazard events and processes to increasingly exposed and vulnerable societies, groups
and individuals, the risk of being persecuted in this connection is sure to increase in coming
years. Although most people displaced in the context of disasters and climate change are not
refugees, it is important that refugee status determination is conducted with an awareness of
the relevance of economic and social rights in the persecution enquiry and is grounded in
a theoretical perspective that detects agency in adversity.

84
NAGT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002]
FCAFC 319 at [22], cited in James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn,
Butterworths, 2014), 123.

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23. New directions in article 1D jurisprudence:
greater barriers for Palestinian refugees
seeking the benefits of the Refugee Convention
Kate Ogg

INTRODUCTION

This chapter investigates new issues that have arisen in relation to article 1D of the Convention
relating to the Status of Refugees (Refugee Convention),1 resulting from decisions by the
Court of Justice of the European Union (CJEU)2 and New Zealand Immigration and Protection
Tribunal (NZIPT).3 These judgments break away from earlier article 1D jurisprudence but
there has been little analysis of the alternative approaches adopted. In this chapter, I seek
to initiate discussion of these new directions in article 1D jurisprudence through a critical
examination of the CJEU’s and NZIPT’s decisions. I argue that in theory these precedents
provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee
Convention but in fact threaten the principle of continuity of international protection for
Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding
of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox
by necessitating that Palestinian refugees prove that their decision to flee was involuntary.
Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this
can serve to disadvantage Palestinian women and girls. Consequently, these decisions create
additional and often-insurmountable barriers to Palestinian refugees seeking the benefits
of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee
Convention’s object and purpose.

ARTICLE 1D’S DRAFTING HISTORY

Article 1D of the Refugee Convention states:

This Convention shall not apply to persons who are at present receiving from organs or agencies of
the United Nations other than the United Nations High Commissioner for Refugees protection or
assistance.

1
UN Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 137 as amended by the 1967 Protocol relating to the Status of Refugees (adopted
31 January 1967, entered into force 4 October 1967) 606 UNTS 267.
2
Case C-364/11 Mostafa Abed El Karem El Kott and Others v Bevándorlási és Állampolgársági
Hivatal (CJEU, 19 December 2012).
3
AD (Palestine) [2015] NZIPT 800693-695, 23 December 2015.

358
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 New directions in article 1D jurisprudence 359

When such protection or assistance has ceased for any reason, without the position of such persons
being definitively settled in accordance with the relevant resolutions adopted by the General Assembly
of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

Comprehensive examinations of article 1D’s drafting history have been undertaken else-
where.4 By way of summary, while article 1D’s text does not specifically mention Palestinian
refugees, the travaux préparatoires indicate that the drafters intended for this clause to apply
to Palestinian refugees displaced as a result of the creation of Israel.5 Representatives from
Arab nations took the view that Palestinian refugees were a special group that could not
be treated in the same way as other refugee populations.6 In particular, the UN itself was
responsible for the Palestinians’ ‘tragic fate’ and thus bore direct responsibility for Palestinian
refugees.7 Also, the goal was for Palestinian refugees to repatriate and it was assumed that
an early solution would be achieved.8 Further, at the time of drafting, Palestinian refugees
were already being assisted by special UN bodies and there was a desire to avoid duplicating
responsibilities within the UN.9 European and North American states were reticent to include
Palestinian refugees in the Refugee Convention on the grounds that they did not want to accept
‘a new, large group of refugees’.10 Therefore, as a result of an ‘uneasy and ironic conformity’,11
Arab, European and North American states supported the exclusion of Palestinian refugees
from the Refugee Convention.
The Egyptian delegate suggested that Palestinian refugees should automatically receive the
benefits of the Refugee Convention if UN protection or assistance ceases without the position

4
Guy Goodwin-Gill and Susan Akram, ‘Brief ­Amicus Curiae on the Status of Palestinian
Refugees under International Law’ (2000–2001) 11 Palestine Yearbook of International Law 187; Guy
Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press
2007); James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University
Press 2014); Mutaz Qafisheh and Valentina Azarov, ‘Article 1D’ in Andreas Zimmermann, Jonas
Dörschner and Felix Machts (eds), The 1951 Convention Relating to the Status of Refugees and its 1967
Protocol: A Commentary (Oxford University Press 2011); Lex Takkenburg, The Status of Palestinians
in Refugee Law (Oxford University Press 1998).
5
Goodwin-Gill and McAdam (n 4) 152; Hathaway and Foster (n 4) 510; Qafisheh and Azarov (n 4)
para 2, 8; El-Ali v Secretary of State for the Home Department [2003] EWCA Civ 1103 [22]; Minister
for Immigration and Multicultural Affairs v WABQ (2002) 197 ALR 35 [69].
6
Goodwin-Gill and McAdam (n 4) 154; El-Ali (n 5) [15]; Statement of Saudi Representative,
UNGA Third Committee, 328th Meeting, UNGOAR 5th Session (27 November 1950) para 52.
7
Statement of Egyptian representative, ‘UN Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons’ (19 July 1951) UN Doc A.CONF.2.SR.29; See also Statement by
Representative of Lebanon, UNGA Third Committee, 328th Meeting, UNGOAR 5th Session (27
November 1950) para 47. For further discussion see Susan Akram, ‘Palestinian Refugees and their Legal
Status: Rights, Politics and Implications for a Just Solution’ (2002) 31 Journal of Palestine Studies 36,
40 and Goodwin-Gill and Akram (n 4) 201–2.
8
Statement of Egyptian representative, ‘UN Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons’ (13 July 1951) UN Doc A/CONF.2/SR.19, 16; Statement of Saudi
Representative (n 6) para 52; Goodwin-Gill and McAdam (n 4) 153.
9
Qafisheh and Azarov (n 4) para 8.
10
Statement of French representative, ‘UN Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons’ (13 July 1951) UN Doc A/CONF.2.SR.19, 11; See also Statement of
US representative, ‘UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,
Summary Record of the 19th Meeting’ (26 November 1951) UN Doc A/CONF.2/SR.19.
11
El-Ali (n 5) [16].

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of Palestinian refugees being definitely settled.12 The drafters agreed with this proposal on
the grounds that it would ensure that Palestinian refugees receive continuity of international
protection.13 As a result, article 1D is best viewed not as an exclusion but as a ‘contingent
inclusion clause’ – if the protection and assistance provided by the UN ceases for any reason
without a permanent solution having been achieved, Palestinian refugees are ipso facto entitled
to the benefits of the Refugee Convention.14

CUSTOMARY DEBATES ON THE INTERPRETATION OF

ARTICLE 1D

One central debate on article 1D’s meaning, is whether it applies only to those receiving UN
protection and assistance when the Refugee Convention was adopted in 1951 or whether it
also includes their descendants as well as Palestinians displaced as a result of subsequent
hostilities. If the former interpretation is adopted, the group of Palestinian refugees excluded
from the Refugee Convention will get smaller over time and article 1D will eventually become
redundant.15 Palestinian refugees not part of this group will not be excluded from the Refugee
Convention and can become Convention refugees if they meet the refugee definition in article
1A(2).16 If the latter approach is preferred, article 1D continues to operate. This means that
Palestinian refugees continue to be excluded from the Refugee Convention but retain ipso
facto entitlement to the benefits of the Refugee Convention in the event that the UN’s protec-
tion or assistance ceases for any reason. Pursuant to this interpretation, the question of when
and on what grounds UN protection or assistance may cease becomes crucial. Accordingly,
another significant debate is: does ‘cease for any reason’ mean that the UN agencies set up
to provide protection and assistance to Palestinian refugees must cease to exist or can UN
protection or assistance cease for individual Palestinian refugees?17
One of the leading cases on these questions is Amer Mohhamed Eli-Ali v SSHD.18 The UK
Court of Appeal held that article 1D only applies to Palestinian refugees in receipt of UN
protection or assistance in 1951.19 The court reasons that a continuative interpretation of article
1D is inconsistent with its plain language: ‘at present’ cannot be read to mean those who later
receive assistance or those who are now receiving assistance.20 Further, the ipso facto entitle-
ment to the benefits of the Refugee Convention confers on Palestinian refugees ‘highly pref-

12
Statement of Egyptian representative, ‘UN Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons’ (19 July 1951) UN Doc A.CONF.2.SR.29, 6.
13
Goodwin-Gill and Akram (n 4) 201; Goodwin-Gill and McAdam (n 4) 154.
14
Akram (n 7) 39; Goodwin-Gill and Akram (n 4) 191; Goodwin-Gill and McAdam (n 4) 153;
Qafisheh and Azarov, (n 4) para 25.
15
El-Ali (n 5) [24].
16
Ibid., [24]. However, see Akram (n 7) 44–5 for a discussion of the difficulties Palestinian face in
satisfying each element of the refugee definition.
17
El-Ali (n 5) [25].
18
Ibid.
19
Ibid., [28].
20
Ibid., [33].

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 New directions in article 1D jurisprudence 361

erential and special treatment’ and therefore ‘the class of persons caught by the first sentence
should be identified and fixed by reference to a particular date’.21
In relation to the meaning of ‘ceased for any reason’, the court held that this refers to the UN
Relief and Works Agency for Palestinians in the Near East (UNRWA), the UN body responsi-
ble for Palestinian refugees, ceasing to function as an institution.22 This is because the drafters
did not intend for article 1D’s inclusionary paragraph to apply ‘piecemeal and haphazardly’.23
UNRWA’s protection or assistance cannot cease for an individual Palestinian refugee except
in exceptional circumstances such as where the refugee would be prevented from returning to
UNRWA’s area of operations.24
Another significant decision is Minister for Immigration and Multicultural Affairs v
WABQ.25 The Federal Court of Australia held that the term ‘at present’ refers to the class
of Palestinian refugees eligible to receive UN protection or assistance in 1951.26 The court
was satisfied that the drafters’ intention was that article 1D was only to apply to Palestinian
refugees.27 However, if the article had continuative effect then it would apply to any refugee
population where the UN set up alternative agencies for protection, which would be antithet-
ical to the drafters’ intent.28 Further, article 1D was intended to be a ‘temporary measure’ that
applied until a permanent solution could be found and the drafters did not contemplate that the
situation would become ‘so intractable’.29
The Federal Court of Australia also held that article 1D’s second paragraph does not apply
on a case-by-case basis.30 The court reasoned that the prospect of an individual Palestinian
refugee being ipso facto entitled to the benefits of the Refugee Convention by simply leaving
UNRWA’s area of operation, was inconsistent with the travaux préparatoires which indicate
that European states were concerned about the prospect of ‘a flood of Palestinian refugees’.31
Also, article 1D was never intended to give Palestinian refugees the choice between special
UN protection or assistance or protection as Convention refugees.32
Hathaway and Foster support this ‘historically bounded’ interpretation of article 1D.33
They highlight that the Refugee Convention was drafted simultaneously with the UN High
Commissioner for Refugees’ (UNHCR) statute, which uses the language ‘continues to receive
from other organs or agencies of the United Nations protection or assistance’.34 However, the
Refugee Convention’s drafters rejected the language ‘continue to receive’ and adopted ‘at

21
Ibid., [36].
22
Ibid., [47].
23
Ibid.
24
Ibid., [48].
25
MIMA v WABQ (n 5).
26
Ibid., [69], [162]–[163].
27
Ibid., [69].
28
Ibid.
29
Ibid.
30
Ibid.
31
Ibid.
32
Ibid.
33
Hathaway and Foster (n 4) 513–14.
34
UNGA ‘Statute of the Office of the United Nations High Commissioner for Refugees’ Annex to
UNGA Res 428 (V) (14 December 1950) UN Doc A/1775, art 7(c).

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present receiving’ which indicates a historically bounded interpretation is to be preferred.35

Hathaway and Foster explain that:

the ultimate demise of Art. 1(D) exclusion is, in our view, a result that is not only legally correct, but
also deeply principled, as it will restore Palestinians to the position of all other groups who are entitled
to protection as refugees so long as they meet the requirements of the refugee definition.36

Hathaway and Foster also argue that an individual Palestinian refugee cannot claim ipso
facto refugee status because article 1D is a group clause where all other parts of the Refugee
Convention are framed in individuated terms.37 Further, the drafters were unlikely to agree to
automatic entitlement to refugee status for anything other than a ‘narrowly defined class of
known size’.38
However, the CJEU, NZIPT, UNHCR and Goodwin-Gill and McAdam adopt a different
interpretation of article 1D. The CJEU has held that article 1D applies to anyone who is pres-
ently entitled to UNRWA’s protection and assistance as long as they have availed themselves
of that protection.39 The NZIPT similarly rejects the historically bounded interpretation of
article 1D.40 In relation to Hathaway and Foster’s argument regarding the different language
between the Refugee Convention and UNHCR statute, it held that these instruments ‘did not
proceed entirely in tandem, with the Refugee Convention being subjected to further review
at the Conference of Plenipotentiaries’ and ‘the difference in language may reflect no more
than this’.41 Also, the NZIPT reasons that the proposition that the drafters were only prepared
to give automatic refugee status to a narrowly defined and ascertainable group of refugees is
inconsistent with the fact that while the Refugee Convention was being drafted ‘the actual
beneficiary class scope of UNRWA assistance was uncertain and in a state of flux’.42 Finally,
the NZIPT highlights that the drafting materials indicated that the treatment of Palestinians as
a sui generis class of refugees would continue until a definitive solution could be achieved.43
Therefore, the NZIPT concludes that the eligibility approach is to be preferred because it is
consistent with the drafters’ intent that Palestinian refugees continue to receive protection as
a special class and ‘avoid overlapping agency competence for the protection of Palestinian
refugees’.44
The CJEU’s and NZIPT’s decisions are consistent with the UNHCR’s position that article
1D applies to Palestinian refugees displaced from Israel in 1948 and subsequent hostilities as
well as their descendants.45 Similarly, Goodwin-Gill and McAdam argue that article 1D should
be interpreted as ‘persons who were and/or are now receiving protection and assistance’.46

35
Hathaway and Foster (n 4) 514.
36
Ibid., 515.
37
Ibid., 516.
38
Ibid., 514.
39
Case C-31/09 Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] ECR I-05572 [51].
40
AD (Palestine) (n 3) [133], [148].
41
Ibid., [139].
42
Ibid., [141].
43
Ibid., [143].
44
Ibid., [159].
45
UNHCR, ‘Guidelines on International Protection No 13: Applicability of Article 1D of the 1951
Convention relating to the Status of Refugees to Palestinian Refugees’, December 2017, [8].
46
Goodwin-Gill and McAdam (n 4) 157.

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 New directions in article 1D jurisprudence 363

This is based on a purposive approach to article 1D – its objective is to ensure that Palestinians
are treated as a special and distinct group of refugees and not merged into the general refugee
problem.47
Both the UNHCR and Goodwin-Gill and McAdam further state that UNRWA’s protection
and assistance can cease for individual Palestinian refugees. Goodwin-Gill and McAdam’s
position is that the phrase ‘ceased for any reason’ is broad and can encompass a number of
reasons why protection or assistance has come to an end including ‘persecution, violation of
human rights, or violence’.48 They further explain that ‘the question whether such protection
or assistance has ceased is a matter of fact to be decided in light of the individual’s personal
history’.49 The UNHCR’s position is that UNRWA’s protection or assistance may cease if
a Palestinian refugee faces a threat to her life, physical security or liberty or other serious
protection concerns such as ‘sexual or gender‑based violence, torture, inhuman or degrading
treatment or punishment, human trafficking and exploitation, forced recruitment, severe dis-
crimination, or arbitrary arrest or detention’ or there is a situation of ‘civil unrest, widespread
insecurity or events seriously disturbing public order’.50
This chapter does not seek to resolve or even weigh in on the well-established debates on
whether article 1D only applies to those eligible for UN protection or assistance in 1951 or
has continuative effect or whether UN protection or assistance ceases on an institutional or
individual basis. Rather, this chapter’s purpose is to initiate discussion on a question that
has received far less attention: if it is accepted that article 1D has continuative effect and UN
protection or assistance can cease for individual Palestinian refugees, what is the nature and
scope of the protection and assistance and what factors determine that a Palestinian refugee is
not in receipt of either? As noted above, the UNHCR and Goodwin-Gill and McAdam have
indicated circumstances where this can occur but the question only received judicial attention
in recent judgments from the CJEU and NZIPT. These precedents propose different tests as to
when UN protection or assistance may cease for an individual refugee and both tests deviate
from the ones outlined by the UNHCR and Goodwin-Gill and McAdam.

EU JURISPRUDENCE ON WHEN UNRWA’S PROTECTION AND

ASSISTANCE IS DEEMED TO HAVE CEASED FOR INDIVIDUAL
PALESTINIAN REFUGEES
In December 2012, the CJEU handed down its decision in Mostafa Abed El Karem El Kott.51
The case concerns three stateless Palestinian men who lodged their protection claim in
Hungary. They claimed ipso facto entitlement to the benefits of the Refugee Convention on the
grounds that they were Palestinian refugees for whom UNRWA’s protection or assistance had

47
Ibid., 158.
48
Ibid., 159.
49
Ibid., 158.
50
UNHCR, ‘Guidelines on International Protection No 13’ (n 45) 10–11. The UNHCR also stipu-
lates that protection and assistance ceases if UNRWA’s mandate is terminated, if UNRWA discontinues
its protection and assistance for all Palestinian refugees or a refugee faces practical, legal or safety barri-
ers in re-availing herself of UNRWA’s protection: UNHCR, ‘Guidelines on International Protection No
13’ (n 45) 9–12.
51
Mostafa Abed El Karem El Kott and Others (n 2).

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ceased. The first, Abed Al Karem El Kott, lived in Ein El-Hilweh camp in ‘difficult material
circumstances’ and left the camp after his house had been burnt down and his safety threat-
ened. The second, A Radi, lived in Nahr el Bared camp. His home was destroyed as a result of
clashes between the Lebanese army and the Islamic Fatah. The third, Kamel Israel, also lived
in Ein El-Hilweh camp. He left after receiving death threats for refusing to allow the roof of
his house to be used in clashes between the Islamic Fatah and the Jund el-Sham.
The Budapest Municipal Court referred two questions to the CJEU. One of these was: what
is meant by UNRWA’s protection or assistance having ‘ceased’? The CJEU rules that ‘ceased
for any reason’ can mean one of three scenarios.52 First, UNRWA ceases to exist as an organ-
isation.53 Second, an event or events occur that make it impossible for UNRWA to carry out
its mission.54 Third, circumstances beyond a person’s control have forced that person to leave
the relevant UNRWA area of operation.55 In explaining when the third scenario will occur, the
CJEU states that a mere voluntary decision to leave cannot amount to cessation of protection
or assistance.56 However, being ‘forced to leave for reasons unconnected with that person’s
will’ may mean that UNRWA’s protection or assistance has ceased.57 It rules that an involun-
tary departure will arise when UNRWA cannot guarantee the living conditions ‘commensurate
with [its] mission’ and the Palestinian refugee’s personal safety is threatened.58
The CJEU’s test for when article 1D’s inclusionary paragraph can be triggered, adopts
a narrow understanding of the terms ‘protection’ and ‘assistance’. At no point in the judgment
does the CJEU consider what the words ‘protection’ and ‘assistance’ in article 1D mean.
Article 1D’s text and purpose indicate that these terms refer to the protection and assistance
provided to Palestinian refugees by UN agencies. The exclusionary paragraph in article 1D
states that the Refugee Convention does not apply to those ‘receiving from organs or agencies
of the United Nations other than the United Nations High Commissioner for Refugees pro-
tection and assistance’. The inclusionary paragraph reads ‘when such protection or assistance
ceases for any reason…’. In relation to article 1D’s purpose, the inclusionary paragraph was
inserted to ensure continuity of international protection for Palestinian refugees. Therefore,
to determine the nature and scope of the protection and assistance embedded in article 1D,
reference must be had to the protection and assistance the UN has stipulated must be provided
to Palestinian refugees.
This first necessitates a consideration of the history of UN bodies mandated to address
the situation of displaced Palestinians. In 1948, the UNGA established the United Nations
Conciliation Commission for Palestine (UNCCP). Its mandate included assisting the relevant
governments and authorities in achieving a final settlement in relation to Palestinian refugees59
as well as assisting Palestinian refugees to return to their homes or seek compensation for
property loss or damage.60 The UNCCP still exists and reports annually to the UNGA but has

52
Ibid., [58].
53
Ibid.
54
Ibid.
55
Ibid.
56
Ibid., [59].
57
Ibid.
58
Ibid., [63].
59
UNGA ‘Palestine – Progress Report of the United Nations Mediator’, UNGA Res 194 (III) (11
December 1948) UN Doc A/RES/194 (III) [6].
60
Ibid., [11].

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 New directions in article 1D jurisprudence 365

been inactive since the mid-1960s.61 The UNGA established UNRWA in 1949 with a mandate
to carry out direct relief and works programmes for Palestinian refugees and its mandate is
extended by the UNGA every three years.62
Initially, the view taken was that UNCCP had a mandate for the protection of Palestinian
refugees whereas UNRWA’s mandate was to provide humanitarian assistance.63 UNRWA
does provide humanitarian assistance – its mandate extends to the provision of ‘basic subsist-
ence support’ including food aid and healthcare, improving health conditions in camps (in par-
ticular safe water and sanitation systems), addressing the needs of poor Palestinian refugees64
and providing housing.65 However, such a distinction is no longer tenable in light of UNCCP
becoming inactive and UNRWA’s mandate expanding to include individualised protection
activity.66 Indeed, the Chief of UNRWA’s Department of Legal Affairs insists that UNRWA
‘has a very clear mandate for protection’.67 The first UNGA resolution to specifically use the
word ‘protection’ was Resolution 37/120 of 1982 which urges UNRWA to both protect and
provide assistance to Palestinian refugees.68 UNRWA’s mandate extends beyond provision
of humanitarian assistance to wider human rights protection. For example, UNRWA is man-
dated to provide education to Palestinian refugees. It runs primary, secondary, vocational
and higher education to Palestinian refugees69 and awards university scholarships.70 While
UNRWA’s protection mandate is usually seen in terms of protection of economic and social
rights, scholars highlight that it also extends to protection of civil and political rights such as
physical security. While UNRWA is not responsible for security and law and order in camp
settings,71 UNGA has resolved that UNRWA ‘undertake effective measures to guarantee the
safety and security and the legal and human rights of the Palestinian refugees in the occupied
territories’.72 Another important aspect of UNRWA’s protection mandate is that it extends to
addressing the needs and rights of children, women and people with disabilities in accordance

61
Terry Rempel, ‘From Beneficiary to Stakeholder: An Overview of UNRWA’s approach to
Refugee Participation’ in Sari Hanafi, Leila Hlal and Lex Takkenberg (eds), UNRWA and Palestinian
Refugees: From Relief Works to Human Development (Routledge 2014) 145.
62
UNGA ‘Assistance to Palestinian Refugees’, UNGA Res 302 (IV) (8 December 1949) UN Doc A/
RES/302 (IV) [7].
63
AD (Palestine) (n 3) [113].
64
Lance Bartholomeusz, ‘The Mandate of UNRWA at Sixty’ (2009) 28(2–3) Refugee Survey
Quarterly 452, 462–3.
65
UNGA Res 38/83 (15 December 1983) Part (I), para 6; UNGA Res 44/47 (8 December 1989) Part
(I), para 6.
66
Bartholomeusz (n 64) 466; Hathaway and Foster (n 4) 520; Qafisheh and Azarov (n 4) para 13.
However, see Akram (n 7) 41–5 for a discussion of the protection gap faced by Palestinian refugees due
to UNCCP’s demise and UNRWA’s ‘virtually non-existent’ protection mandate. Also see Goodwin-Gill
and Akram (n 4) 192–201 for arguments as to the why ‘UNRWA’s mandate never envisioned a protec-
tion role’.
67
Bartholomeusz, ibid.
68
UNGA Res A/37/120 (16 December 1982) [J], [K]; Qafisheh and Azarov (n 4) para 13.
69
UNRWA, ‘What We Do’ http://​www​.unrwa​.org/​what​-we​-do/​education accessed 13 January
2016.
70
UNGA Res 51/127 (13 December 1996).
71
The host country remains responsible for these issues. See UNRWA, ‘Frequently Asked
Questions’ http://​www​.unrwa​.org/​who​-we​-are/​frequently​-asked​-questions accessed 17 May 2016.
72
UNGA res 37/120, 16 Dec 1982, (J)[1].

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with the Convention on the Rights of the Child,73 Convention on the Elimination of all forms
of Discrimination against Women74 (CEDAW) and Convention on the Rights of Persons with
Disabilities.75 These Conventions contain civil and political as well as economic, social and
cultural rights.
Further, UNRWA also has a human development mandate that includes the ‘provision of
services for the well-being and human development of the Palestine refugees’.76 For example,
UNRWA is mandated to engage in ‘indirect credit provision through community based
lending’, the ‘provision of credit for enterprise, household consumption, and housing needs
that will…provide income-generating opportunities for Palestinian refugees’ and to cover
the costs of business administration training.77 Also, UNRWA’s 1993 Peace Implementation
Program includes ‘encouraging a greater degree of self-reliance among refugees, increasing
income generation opportunities to help alleviate poverty, expanding [refugees’] participa-
tion in developing and implementing programmes, supporting the private sector through the
revolving loan fund and training for Palestinian businesses’.78
In limiting the test to living conditions and physical safety, the CJEU provides a narrow and
skewed understanding of the meaning of the words ‘protection’ and ‘assistance’ in article 1D.
By focussing only on living conditions and personal safety, the meaning of the phrase ‘pro-
tection and assistance’ in article 1D is restricted to physical survival. This curtails the broader
aspects of international protection and assistance for Palestinian refugees such as gaining an
education and building a career in exile. The CJEU does not discuss why protection or assis-
tance is deemed to cease when basic living conditions and physical safety are not guaranteed
as opposed to the other forms of protection or assistance UNRWA is mandated to provide.
With respect to personal safety, threats to life and the security of the person are, of course,
serious human rights issues covered by articles 6 and 9 of the International Covenant on Civil
and Political Rights79 and, more relevantly for the CJEU, articles 2 and 6 of the Charter of
Fundamental Rights of the EU.80 However, the CJEU does not reflect on why these rights
should be prioritised above others, for example rights to liberty, freedom of religion, freedom
of movement, education, healthcare and work rights.
In its recent guidance on article 1D, the UNHCR also adopts a narrow interpretation of the
phrase ‘protection and assistance’ in article 1D. Similar to the CJEU, the UNHCR does not
define the words ‘protection and assistance’. Instead, in considering when article 1D’s inclu-
sionary paragraph is triggered, the UNHCR moves directly to when protection and assistance

73
UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3.
74
UN Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18
December 1979, entered into force 3 September 1981) 1249 UNTS 13.
75
UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered
into force 3 May 2008) 2515 UNTS 3.
76
UNGA Res 63/91 (5 December 2008) [3]; UNGA Res 62/102 (17 December 2007) [3];
Bartholomeusz (n 64) 464–5.
77
Bartholomeusz, ibid., 463.
78
UNRWA, ‘Report of the Commissioner-General of [UNRWA]’ (1 July 1993–30 June 1994) UN
Doc A/49/13 [5].
79
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171.
80
Charter of Fundamental Rights of the European Union [2012] OJ C 326/02.

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 New directions in article 1D jurisprudence 367

can ‘cease for any reason’.81 Accordingly, it does not consider the nature and extent of protec-
tion and assistance Palestinian refugees are entitled to under international law. The UNHCR
does reach out to human rights concepts in its guidelines on article 1D’s contingent inclusion
clause,82 but its reference to harms such as torture and civil unrest, while not exhaustive, is
much narrower than the protection and assistance UNRWA is mandated to provide, including
provisions of socio-economic rights such as health and education.
The CJEU’s focus on personal safety and living conditions obscures a consideration of the
breadth of protection and assistance Palestinian refugees are entitled to under international
law in way that has gendered consequences. This is evident in a 2013 Belgian decision.83 The
case concerns a stateless Palestinian woman who had spent most of her life in Lebanon’s Burj
el-Shemali Camp. She claimed refugee status in Belgium on the grounds that she was facing
forced marriage in Lebanon but, being a Palestinian refugee, was excluded from the Refugee
Convention. After reviewing the reasoning in Mostafa Abed El Karem El Kott, the Belgian
Council for Alien Law Litigation (Council) stipulates that article 1D’s inclusionary paragraph
will only be triggered when ‘the asylum seeker personally finds himself [or herself] in grave
danger’ and UNRWA ‘was unable to offer him [or her] living conditions in that area that met
the objective it was tasked with’. The Council acknowledges the harsh living conditions in
the camp. However, the applicant could not evidence that she was personally in grave danger.
Accordingly, the Council concludes that ‘the applicant has not demonstrated that she left
Lebanon for reasons beyond her control and against her will, thus preventing her from enjoy-
ing the support provided by UNRWA’.
This decision can be critiqued on the ground that forced marriage raises the prospect of
sexual intercourse without consent, which is a threat to security of the person in line with the
CJEU’s decision in Mostafa Abed El Karem El Kott. But more fundamentally, UNRWA is
responsible for addressing women’s human rights in accordance with the CEDAW84 which
includes prohibition of forced marriage.85 By not being able to protect her from forced mar-
riage, UNRWA was not providing her with the protection it is mandated to provide. However,
she was unable to trigger the inclusionary paragraph in article 1D because she could not satisfy
the Belgian authorities that she was personally in grave danger. Thus, the European Union
approach to article 1D sets a very low threshold for the protection and assistance Palestinian
refugees can expect and jeopardises the principle of continuity of international protection for
Palestinian refugees.
The CJEU’s test for when the inclusionary paragraph in article 1D can be triggered is further
complicated by the requirement for Palestinian refugees to prove that they were compelled
against their will to leave UNRWA’s areas of operation. Involuntary departure is almost
impossible for a Palestinian refugee to prove. Most scholars agree that the concept of forced
migration is a misnomer.86 No matter how serious the danger a person is fleeing from, he

81
UNHCR, ‘Guidelines on International Protection No 13’ (n 45) 8.
82
Ibid., 10–11.
83
Belgium, Council for Alien Law Litigation, 2 May 2013, No.102283 (unofficial translation).
84
UN General Assembly (UNGA) Resolution 69/88.
85
CEDAW, art 16(1)(b).
86
For example see Kathy Burrell, Moving Lives: Narratives of Nation and Migration among
Europeans in Post-War Britain (Ashgate, 2006) 24; Stephen Castles, ‘Towards a Sociology of
Forced Migration and Social Transformation’ (2003) 37 Sociology 13, 13, 30; Dawn Chatty and
Philip Mafleet, ‘Conceptual Problems in Forced Migration’ (2013) 32(2) Refugee Survey Quarterly 1,

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or she exercises agency when crossing a border to escape.87 This is even truer in the case of
Palestinian refugees. While life in, for example, a Palestinian refugee camp can be very diffi-
cult, continuing to live in the region and resist local integration lends at least symbolic strength
to Palestinians’ assertion of the right to return. Also, Palestinian refugees who are stateless
face a number of hurdles in gaining documentation that would enable them to travel to Europe.
Further, due to the fact that many Palestinians cannot access employment, obtaining the funds
to undertake such a journey would be difficult. Thus, a decision by Palestinian refugee to
leave an UNRWA field of operation and travel to Europe to seek protection as a Convention
Refugee is a significant and burdensome one.
Despite the conundrum of the concept of ‘forced migration’ being heavily discussed in
refugee studies literature, it has never been of serious concern to refugee law judges and
scholars. This is because the refugee definition is prospective. Article 1A(2) of the Refugee
Convention asks whether a person would have a well-founded fear of persecution if returned
to their country of nationality or habitual residence. At no point must a decision-maker enquire
as to whether a person’s departure from their country of nationality or habitual residence was
involuntary. The CJEU’s requirement of involuntariness has introduced such a consideration
into refugee law for the first time. (In its earlier guidance, the UNHCR did not adopt a com-
pulsion test88 but has done so in its most recent interpretation of article 1D.89) The compulsion
requirement places Palestinian refugees seeking the benefits of the Refugee Convention
in a double bind: the inclusionary aspect of article 1D can only be triggered by leaving
UNRWA’s areas of operations, an act that is inherently an exhibition of agency, and yet to
obtain the benefits of the Refugee Convention Palestinian refugees must prove that departure
was involuntary. This legal fiction erases the difficult and often distressing choices that must
be made when leaving a home (albeit for Palestinian refugees a temporary one), family and
community in search of sanctuary in unfamiliar territory.

10–11; B.S. Chimni, ‘The Birth of a “Discipline”: From Refugee to Forced Migration Studies’ (2009)
22 Journal of Refugee Studies 11, 12; Finn Stepputat and Ninna Nyberg Sorenson, ‘Sociology and
Forced Migration’ in Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long and Nando Sigona (eds),
Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press 2014) 88; David
Turton, ‘Conceptualising Forced Migration’ (2003) Refugee Studies Centre, University of Oxford
Working Paper Series, 12/2003, 10 http://​www​.rsc​.ox​.ac​.uk/​files/​publications/​working​-paper​-series/​
wp12​-conceptualising​-forced​-migration​-2003​.pdf accessed 14 September 2015.
87
Perhaps the only exception would be a person who is forcibly trafficked across an international
border.
88
In its 2013 guidance on art 1D it suggested that rather than enquiring why a Palestinian refugee
has left an UNRWA area of operation and considering whether or not it was involuntary, the relevant
question is whether there is ‘any objective reason outside the control of the person concerned such that
the person is unable to (re-)avail themselves of the protection or assistance of UNRWA’: UNHCR, ‘Note
on UNHCR’s Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees
and Article 12(1)(a) of the EU Qualification Directive in the context of Palestinian refugees seeking
international protection’, May 2013, 4. This is similar to the prospective test in art 1A(2) of the Refugee
Convention.
89
In its most recent guidance the UNHCR suggests that decision-makers consider the threats that
‘may compel a Palestinian to leave UNRWA’s area of operation’: UNHCR, ‘Guidelines on International
Protection No 13’ (n 45) 10.

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The concepts of autonomy and involuntariness are often manipulated by stakeholders in

refugee law and policy to achieve certain ends.90 What are the reasons for and ramifications of
insisting that a Palestinian refugee’s departure from an UNRWA field of operation be invol-
untary? It is perhaps a way in which to limit the circumstances in which Palestinian refugees
can trigger the inclusionary clause in article 1D. If one accepts that a person can be ‘forced to
leave for reasons unconnected with that person’s will’91 then the circumstances giving rise to
that involuntary departure must be exceptional or extreme. Requiring that a Palestinian refugee
be compelled to leave an UNRWA field of operation independent of her or his own volition
may mean that only those who can demonstrate dramatic and heroic narratives can make use
of the inclusionary clause in article 1D. This can be seen through comparing the outcome of
the above Belgian case to a subsequent Belgian decision concerning a Palestinian refugee who
worked as a photojournalist in Gaza.92 While working as a photojournalist he was injured by
live fire from the Israeli army and received threats both from the Israeli army and Hamas. The
Council reasons that, due to these attacks and threats, he left Gaza for reasons independent of
his will. The Council notes that he should not be required to retreat from informing the public
about the human rights violations occurring in Gaza to avoid these threats to his life. While
the Council accepts that a person injured by live fire was compelled against his will to leave
an UNRWA field of operation, the same result is not reached with respect to a woman subject
to forced marriage. Both the right to physical security and the right to be free from forced
marriage are protected by international human rights law and covered by UNRWA’s mandate.
However, it is perhaps easier to persuade a decision-maker that potentially lethal physical
harm occurring in a public space would lead to involuntary departure than the prospect of
forced marriage which involves unknown future harms that would most probably occur behind
closed doors.
Another way in which the EU is restricting the circumstances in which article 1D’s
exclusionary paragraph can be triggered is through the introduction of a relocation test. In a
2014 decision of the Federal Administrative Court in Austria, the test from Mostafa Abed El
Karem El Kott is applied and expounded.93 This case concerns a stateless Palestinian man who
formerly received UNRWA protection and assistance in Syria. The Court holds that it is not
enough to prove that UNRWA’s protection or assistance in Syria had ceased, the refugee also
had to establish that he could not reasonably avail himself of UNRWA’s protection outside of
Syria. Relocation will be deemed reasonable if:
(1) there is no real risk to life and there is freedom from torture and inhuman or degrading
treatment or punishment;
(2) there is no threat to life or physical integrity resulting from indiscriminate violence due
to armed conflict;
(3) there is the possibility of satisfying basic needs (in particular, nutrition, accommodation
and health care); and
(4) there is the possibility of reaching that area upon return.

90
See Matthew Zagor, ‘The Struggle of Autonomy and Authenticity: Framing the Savage Refugee’
(2015) 21(4) Social Identities 373.
91
Mostafa Abed El Karem El Kott and Others (n 2) [59].
92
Belgium, Council for Alien Law Litigation, 7 August 2015, No. 150535 (unofficial translation).
93
Applicant v Austrian Federal Office for Immigration and Asylum W170 1420086-1
Bundesverwaltungsgericht, 24 March 2014 (Federal Administrative Court of Austria).

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The introduction of a relocation test is not consistent with the article 1D’s ordinary meaning
and purpose. The text provides that ‘when such protection and assistance has ceased for any
reason…these persons shall ipso facto be entitled to the benefits of the Refugee Convention’.
This means that the Palestinian refugee is automatically entitled to the protections in the
Refugee Convention. A relocation test would result in international protection being sus-
pended for the period of time between the refugee leaving the original UNRWA field of oper-
ation, travelling to a European country and then making another journey back to an UNRWA
area of operation.94 This is also inconsistent with article ID’s purpose which is to guarantee
continuity of international protection for Palestinian refugees.
This decision is not binding on other EU member states and I have not found any examples
of this approach being followed. Nevertheless, requiring a Palestinian refugee to establish that
she cannot obtain UNRWA’s protection or assistance in any of the other five areas in which
UNRWA operates imposes a very difficult evidentiary burden and one not supported by the
UNHCR.95 Thus, if this test is adopted in other EU member states, it will further restrict the cir-
cumstances in which a Palestinian refugee can leave an UNRWA field of operation and obtain
international protection in the EU on the grounds that UN protection and assistance has ceased.

NEW ZEALAND JURISPRUDENCE ON WHEN UNRWA’S

PROTECTION AND ASSISTANCE IS DEEMED TO HAVE CEASED
FOR INDIVIDUAL PALESTINIAN REFUGEES

The CJEU’s decision in Mostafa Abed El Karem El Kott is cited with approval by the NZIPT
in AD (Palestine).96 The decision concerns three Christian Palestinians, formerly resident in
the Gaza Strip. Each faced ostracism and ‘regular low-level beatings’ due to their Christian
beliefs.97 At school, they were forced to take classes in Islam and pressured to change their
religion.98 They were also subject to harassment when participating in religious festivals99 and
faced discrimination in employment.100 All were registered with UNRWA, went to UNRWA
schools, attended UNRWA medical clinics and received UNRWA food aid packages.101
Unlike the CJEU, the NZIPT considers the scope of UNRWA’s protection and assistance
mandate in detail.102 In particular, it highlights that UNRWA ‘has over time been given
a mandate to become involved in more individualised protection activity’.103 The example
given is UN General Assembly (UNGA) Resolution 69/88 which encourages UNRWA to

94
Goodwin-Gill and Akram make a similar argument in relation to the suggestion that Palestinian
refugees have to prove that they cannot return to an UNRWA area of operation: Goodwin-Gill and
Akram (n 4) 240–41.
95
The UNHCR states that ‘it cannot be expected that [a Palestinian refugee] relocate (or be returned)
to a different country or territory where he or she has no previous connection’: UNHCR, ‘Guidelines on
International Protection No 13’ (n 45) [25].
96
AD (Palestine) (n 3) [176]–[177].
97
Ibid., [65].
98
Ibid.
99
Ibid., [66].
100
Ibid., [68].
101
Ibid., [70].
102
Ibid., [113]–[117].
103
Ibid., [114].

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‘continue making progress in addressing the needs and rights of children, women and persons
with disabilities in its operations…in accordance with The Convention on the Rights of the
Child, The Convention on the Elimination of all Forms of Discrimination against Women and
the Convention on the Rights of Persons with Disabilities’.104 The NZIPT also concludes that
UNRWA’s humanitarian assistance mandate has a protection element on the grounds that
rights in the International Covenant on Economic, Cultural and Social Rights105 (ICESCR)
‘are not merely aspirational in nature, but are fully fledged rights with both duty bearers and
beneficiaries’.106 On this basis, the NZIPT reasons that ‘UNRWA’s provision of education and
health services and activities thus directly and necessarily involves the protection of the right
of Palestinian refugees to the highest standard of health and to education under articles 12 and
13 of the ICESCR’.107 Taking all of this into account, the tribunal accepts that protection for
Palestinian refugees has both class-based and individual elements.108 On this basis, the NZIPT
rules that UN protection and assistance can cease for individual Palestinian refugees.109
The tribunal’s appreciation of the extent of UN protection and assistance for Palestinian ref-
ugees had the potential to provide broader grounds for Palestinian refugees to trigger the inclu-
sionary paragraph in article 1D. However, in determining when UN protection and assistance
cease for an individual Palestinian refugee, the NZIPT (similarly to the CJEU) concentrates
on the circumstances leading up to the refugee leaving the UNRWA field of operation and
insists that departure by involuntary. The tribunal states that: ‘the individual circumstances
of a claimant giving rise to a lack of effective protection or assistance may also, in principle,
constitute a de facto cessation under the inclusionary second paragraph to Article 1D in cases
of involuntary departures or stay from an UNRWA field of operation’.110 At another part of the
judgment the tribunal explains:

the ‘ipso facto’ transferal of responsibility under Article 1D from UNRWA as an organ or agency of
the United Nations, to a State as a party to the Refugee Convention requires that the factors giving rise
to an involuntary or forced departure from an UNRWA field of operations…111

The NZIPT further states that the circumstances leading to an involuntary departure ‘must
have some enduring quality and be of a sufficiently serious character so as to perpetuate the
claimant’s refugee-like character’. The NZIPT adopts this test even though it agrees that by
virtue of the phrase ‘ipso facto’ in article 1D, Palestinian refugees seeking the benefits of the
Refugee Convention are not required to satisfy the refuge definition in article 1A(2).112 While
the tribunal does not specify what circumstances would perpetuate a refugee-like character,
the application of the test to the facts indicates that Palestinian refugees have to demonstrate

104
Ibid., [115]; UNGA ‘Operations of the United Nations Relief and Works Agency for Palestine
Refugees in the Near East’, UNGA Res 69/88 (16 December 2014) 69th Session (2014) Un Doc A/
RES/69/88 [14].
105
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 January 1976) 993 UNTS 3.
106
AD (Palestine) (n 3) [116].
107
Ibid.
108
Ibid., [177]–[179].
109
Ibid., [177].
110
Ibid.
111
Ibid., [186], italics in original.
112
Ibid., [183].

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discriminatory denial of human rights. In this case, the claimants were successful but only
because they could establish that they were discriminated against because of their religion. The
tribunal summarises evidence about the general humanitarian circumstances in Gaza includ-
ing high unemployment,113 poverty,114 lack of infrastructure,115 civil unrest,116 high levels of
violence117 and restrictions on freedom of movement.118 The Tribunal also notes that UNRWA
was facing ‘its most serious financial crisis ever’ and that it ‘expected to run out of funding
by September 2015’.119 However, these circumstances were not sufficient for the claimants to
establish that UNRWA’s protection and assistance had ceased. The tribunal considers the situ-
ation for Christians in Gaza, particularly discrimination in employment120 and risks to physical
security for Christians who publicly practice their religion.121 The tribunal holds that ‘[e]ach
of the appellants has felt compelled to leave Gaza, an UNRWA field of operation, because of
fears for their safety if they were to practice their religion’.122
The requirement to establish involuntary departure for reasons that perpetuate a refugee-like
character restricts the situations in which Palestinian refugees can trigger the inclusionary
clause in article 1D. It does this by asking them to prove that their suffering is distinct from or
worse than the rest of the Palestinian population in the relevant UNRWA field of operation.
Requiring evidence of discriminatory denial of human rights is similar to the definition of
a refugee in article 1A(2) of the Refugee Convention where there must be a well-founded
fear of persecution for reasons of race, religion, nationality, membership of a particular social
group or political opinion. While needing to demonstrate discriminatory denial of human
rights when seeking confirmation of refugee status under article 1A(2) is consistent with the
Refugee Convention’s text, context and purpose,123 this is not the case for the inclusionary par-
agraph in article 1D. The ordinary meaning of the words ‘when such protection or assistance
has ceased for any reason’ indicates that a Palestinian refugee should not have to establish
that protection and assistance have ceased for reasons of, for example, their religion, gender
or political opinion. Further, as Goodwin-Gill and Akram argue, article 1D uses the word
‘persons’ as opposed to refugees indicates that Palestinian refugees not in receipt of UN pro-
tection or assistance do not have to prove that they meet the definition of a refugee in article
1A(2).124 Also, the purpose of article 1D is to ensure the continuity of international protection

113
Ibid., [219], [222].
114
Ibid.
115
Ibid., [219], [220], [222].
116
Ibid., [221].
117
Ibid., [222].
118
Ibid., [219].
119
Ibid., [223].
120
Ibid., [224].
121
Ibid., [225]–[229].
122
Ibid., [230].
123
Hathaway argues that the requirement that a refugee have a well-founded fear of being persecuted
for reasons of one of the enumerated grounds is justified. While two people may fear deprivation of
fundamental human rights, if one fears it for reasons of, for example, their political opinion, the latter
person is more likely to be socially marginalised and less likely to be able to obtain state protection:
James Hathaway, ‘Is Refugee Status Really Elitist? An Answer to the Ethical Challenge’ in Jean Yves
Carlier and Dirk Vanheule (eds), Europe and Refugees: A Challenge? (Kluwer Law International, 1997)
79–88, 86.
124
Goodwin-Gill and Akram (n 4) 231.

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 New directions in article 1D jurisprudence 373

for Palestinian refugees. This would be defeated if the inclusionary paragraph could only be
triggered by Palestinian refugees who can establish that denial of their fundamental human
rights has a discriminatory element.

CONCLUSION

This chapter has explored an under-examined issue in article 1D jurisprudence: if article 1D

has continuative effect and UN protection or assistance can cease for individual Palestinian
refugees, what is the scope of that protection and assistance and on what grounds will either
be deemed to have ceased? The salience of this question has arisen due to relatively recent
CJEU and NZIPT decisions that provide different tests as to when UN protection or assistance
will cease for individual Palestinian refugees and new UNHCR guidance on article 1D. In
this chapter I demonstrated that while accepting that UN protection or assistance can cease on
a case-by-case basis may in theory provide greater opportunities for Palestinian refugees to
access the benefits of the Refugee Convention, the CJEU’s and NZIPT’s tests will allow for
very few Palestinian refugees to trigger article 1D’s inclusionary paragraph. The CJEU adopts
a narrow interpretation of ‘protection and assistance’ and insists that a Palestinian refugee’s
departure from an UNRWA area of operation be involuntary. This favours heroic narratives
and has served to disadvantage Palestinian women and girls. While the NZIPT takes account
of UNRWA’s broad assistance and protection mandates, it requires the factors compelling
departure to have refugee like character and similarly insists on involuntary departure. The
CJEU’s and NZIPT’s approaches to when the inclusionary clause in article 1D can be trig-
gered impose burdensome legal obstacles not supported by a textual or purposive interpreta-
tion of article 1D.
Overall, the ramifications of the above approaches to article 1D’s inclusionary paragraph
is that many Palestinian refugees not enjoying the breadth of protection or assistance that
UNRWA is mandated to provide will also not be able to access the benefits of the Refugee
Convention. This is the exact situation that the Egyptian delegate intended to prevent through
the introduction of what would become article 1D’s inclusionary paragraph. In proposing and
justifying the inclusionary second paragraph, the Egyptian delegate stressed the imperative
to avoid creating ‘a class of human beings who would enjoy no protection at all’.125 The
interpretation of article 1D in the EU and New Zealand means that Palestinian refugees con-
tinue to be excluded from the Refugee Convention because it is deemed to have continuative
effect, but can only trigger the inclusionary second paragraph in very limited circumstances.
Consequently, some Palestinian refugees may be in the position where they are unable to enjoy
either form of international protection. Thus, this new direction in article 1D jurisprudence
threatens the principle of continuity of international protection for Palestinian refugees.

125
Statement of Egyptian Representative (n 7).

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24. The war on terror and refugee law
Sarah Singer

1. INTRODUCTION

In the past two decades, as the international community has increasingly focused on the threat
posed by international terrorism, so too have States begun to focus their anti-terrorist efforts
on those seeking international protection. This has played out in a number of areas relating to
refugee protection, although for the purpose of international refugee law it is most prominent
in the exclusion from refugee status or loss of protection against refoulement for those sus-
pected of serious criminality. This chapter explores the manner in which the global ‘War on
Terror’ has influenced the interpretation and application of these provisions contained in the
1951 Convention relating to the Status of Refugees (the 1951 Refugee Convention), particu-
larly focusing on regional protection in Europe.1
Section 2 of this chapter examines how asylum seekers and refugees have been equated with
the threat posed by international terrorism in the context of the ‘War on Terror’ in international
and domestic legal and political discourse. In Section 3, the influence of this discourse on
international refugee law – particularly exclusion from refugee status and loss of protection
against refoulement – is explored, drawing primarily on the practice and jurisprudence of the
UK and EU. Finally, Section 4 provides some concluding comments on the consequences of
these developments for both State security and the protection of asylum seekers and refugees
themselves.

2. THE ASYLUM SEEKER AND THE TERRORIST: POLITICAL

DISCOURSE IN A FEARFUL WORLD

The image of the refugee is one which has long attracted suspicion and mistrust. As far back
as the 18th century, refugees fleeing revolutionary France for the UK were framed as insur-
rectionists intending to overthrow the UK government.2 In the post-World War II period,
the Constitution of the International Refugee Organisation itself excluded from its mandate
those who had participated in any organisation hostile to the government of a member of the
United Nations, or had participated in any terrorist organisation.3 However, language explic-
itly connecting refugees with the threat posed by international terrorism really began to take
shape towards the end of the 20th century. The UN General Assembly’s 1994 Declaration on
Measures to Eliminate International Terrorism (the 1994 Declaration) and 1996 Declaration

1
Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137.
2
D. Stevens, UK Asylum Law and Policy: Historical and contemporary perspectives (Sweet &
Maxwell, 2004), 17–21.
3
Constitution of the International Refugee Organisation’ (15 December 1946) 18 UNTS 3, Annex
I Part II. Annex to UNGA Resolution 62 (I), UN Doc A/PV.67.

374
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 The war on terror and refugee law 375

to Supplement the 1994 Declaration, contain several paragraphs that concern refugees and
asylum seekers. For example, States are called on to ‘take appropriate measures … before
granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated
in terrorist acts’.4 This language became more forceful and entrenched following the 9/11
terrorist attacks on the US in 2001, and President Bush’s response of a purported ‘War on
Terror’.5 UN Security Council (UNSC) Resolutions 1373 and 1377, adopted immediately
following the 9/11 terror attacks, called on Member States to ‘[e]nsure … that refugee status
is not abused by the perpetrators, organizers or facilitators of terrorist acts’.6 Both resolutions
firmly declare that ‘acts, methods, and practices of terrorism are contrary to the purposes and
principles of the United Nations and that knowingly financing, planning and inciting terrorist
acts are also contrary to the purposes and principles of the United Nations’.7 As will be consid-
ered in more detail below, these latter statements echo the wording of the ‘exclusion clause’ of
the 1951 Refugee Convention, and have influenced the interpretation of this term by including
terrorism within its scope.
Although included in the non-mandatory sections of these resolutions, the call on States to
consider asylum applicants to be potential terrorist threats was firmly implanted. Immediately
following UNSC Resolutions 1373 and 1377, a number of States adopted ‘pre-emptive’ prac-
tices of closing borders, denial of political rights and detention, citing the UNSC resolutions
as justification for their actions.8 As will be considered below, these resolutions – and later
similar enunciations by the UN Security Council, including the adoption of the adoption of
UNSC Resolution 1624 following the 7/7 terror attacks on London in 20059 – prompted legis-
lative changes in refugee frameworks of a number of countries and regions. Yet the inclusion
of such language relating to refugees in these resolutions is curious, since not one of the 9/11
hijackers was a refugee or seeking refugee status in the US.10 Similarly, the 7/7 bombings in
London were a classic case of ‘home grown’ terrorism: all the 7/7 bombers were born and/
or raised in the UK.11 Nevertheless, language entrenching the asylum-terrorism connection
and stressing the need to exclude suspected terrorists from refugee status has continued to
permeate a number of UN General Assembly and Security Council resolutions relating to

4
United Nations General Assembly (UNGA) ‘Declaration on Measures to Eliminate International
Terrorism’ (9 December 1994), annexed to United Nations General Assembly, Resolution 49/60 (17
February 1995) UN Doc A/Res/49/60, paras 2 and 5(f); UNGA ‘Declaration to Supplement the 1994
Declaration on Measures to Eliminate International Terrorism’ (17 December 1996), annexed to United
Nations General Assembly, Resolution 51/210 (16 January 1997) UN Doc A/Res/51/210, paras 2 and 3.
5
The White House, ‘Address to a Joint Session of Congress and the American People’, 20th
September 2001, available here https://​georgewbush​-whitehouse​.archives​.gov/​news/​releases/​2001/​09/​
20010920​-8​.html (last accessed 4 August 2017).
6
UN Security Council resolution (UNSC Res) 1373, 28 September 2001, UN Doc S/RES/1373,
para 3(g).
7
UNSC Res 1373, para 5; UNSC Res 1377, 12 November 2001, UN Doc S/RES/1377, preamble
para 5.
8
P. Mathew, ‘Resolution 1373 – A Call to Pre-empt Asylum Seekers?’ in J. McAdam (ed) Forced
Migration, Human Rights and Security (Portland 2008) 49–58, with particular reference to China and
Iran’s closure of their borders with Afghanistan.
9
UNSC Res 1624 (14 September 2005), UN Doc S/RES/1624, preamble paras 7 and 8.
10
All of the hijackers who committed the September 11 terrorist attacks entered the US legally on
a temporary visa, mostly tourist visas with entry permits for six months.
11
Three of the bombers were British-born sons of Pakistani immigrants, one was born in Jamaica.

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376 Research handbook on international refugee law

international terrorism, albeit language relating to the protection of human rights has also
gradually became more pronounced.12
More recent developments on the global stage have heightened the connection between
refugees and terrorism in public consciousness. Europe’s ‘refugee crisis’ and the terrorist
attacks on Paris in November 2015 led to a public outcry over the perceived threat posed by
irregular arrivals in Europe.13 Syrian passports found near the bodies of two of the perpetrators
of the Paris attacks led to speculation that terrorists were infiltrating refugee flows to Europe,
and fuelled fears concerning the threats posed by these migrants to the national security of
EU Member States.14 For example, following the Paris attacks then UK Home Secretary
Theresa May announced enhanced screening of Syrian refugees coming to the UK.15 Similar
outcry followed the terror attacks on Brussels and Nice in 2016.16 Mass sexual assaults against
women on New Year’s Eve in Germany in 2015 were also linked to the influx of refugees
in the country,17 and a swathe of terror attacks on the UK in 2017 further fuelled fears over
Islamic radicalisation, violence and the threat posed by migrants and refugees.18
Across the Atlantic, US President Trump’s infamous ‘Muslim Ban’ Executive Orders of 27
January and 6 March 201719 have temporarily banned entry to the US from six Muslim-majority
countries (Syria, Sudan, Iran, Somalia, Libya and Yemen).20 Refugee resettlement to the US
was also suspended for 120 days and the number of refugees that the US Refugee Assistance

12
As noted by G. Goodwin-Gill, ‘Forced Migration: Refugees, Rights and Security’, in J. McAdam
(ed) Forced Migration Human Rights and Security (Portland 2008) 1–17.
13
C. Deliso, Migration, Terrorism, and the Future of a Divided Europe: A Continent Transformed
(Praeger, 2017).
14
Of the passports, one was damaged beyond recognition and the other has subsequently turned out
to be falsified. M. Funk and R. Parkes, ‘Refugees versus terrorists’, (2016) 6 European Union Institute
for Security Studies (EUISS) Alert 1–2. Indeed, given the invasive nature of the asylum process it might
be thought unlikely that individuals wishing to perpetrate terror attacks would seek entry to States via this
channel. As noted by Goodwin-Gill (n 12 above).
15
B. Riley-Smith, ‘Britain will not let terrorists exploit Syrian migrant crisis, Theresa May vows
as she promises refugees to be vetted twice’ The Telegraph, 15 November 2015, available at http://​
www​.telegraph​.co​.uk/​news/​uknews/​terrorism​-in​-the​-uk/​11996925/​Britain​-will​-not​-let​-terrorists​-exploit​
-Syrian​-migrant​-crisis​-Theresa​-May​-vows​-as​-she​-promises​-refugees​-to​-be​-vetted​-twice​.html (last
accessed 4 August 2017).
16
J. Grierson, ‘Isis recruiters targeting refugees in Europe, say counter-terror experts’, The
Guardian, 2 December 2016, available at https://​www​.theguardian​.com/​uk​-news/​2016/​dec/​02/​islamic​
-state​-recruiters​-targeting​-refugees​-in​-europe​-counter​-terror​-experts​-warn (last accessed 4 August
2017).
17
R. Noack, 2,000 men ‘sexually assaulted 1,200 women’ at Cologne New Year’s Eve party’, The
Independent, 11 July 2016, available at http://​www​.independent​.co​.uk/​news/​world/​europe/​cologne​-new​
-years​-eve​-mass​-sex​-attacks​-leaked​-document​-a7130476​.html (last accessed 4 August 2017).
18
H. Agerholm, ‘Polish PM: London terror attack is about Britain’s refugee policy’, The Independent,
24 March 2017, available at http://​www​.independent​.co​.uk/​news/​world/​europe/​polish​-prime​-minister​
-london​-terror​-attack​-szydlo​-uk​-refugee​-policy​-britain​-immigration​-a7648391​.html (last accessed 4
August 2017).
19
White House, ‘Executive Order Protecting The Nation From Foreign Terrorist Entry Into The
United States’, 27 January 2017, para 3, available at https://​www​.whitehouse​.gov/​the​-press​-office/​2017/​
01/​27/​executive​-order​-protecting​-nation​-foreign​-terrorist​-entry​-united​-states (last accessed 4 August
2017); White House, ‘Executive Order Protecting The Nation From Foreign Terrorist Entry Into The
United States’, 6 March 2017, available at https://​www​.whitehouse​.gov/​the​-press​-office/​2017/​03/​06/​
executive​-order​-protecting​-nation​-foreign​-terrorist​-entry​-united​-states (last accessed 4 August 2017).
20
Iran was also included in the list in the Executive Order of 27 January 2017.

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 The war on terror and refugee law 377

Program (USRAP) will resettle in 2017 was drastically reduced. The justification for these
measures is the purported terrorist threat posed by nationals of the targeted countries and refu-
gees seeking resettlement in the US. As noted in the Executive Order of 27 January:

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes

since September 11, 2001, including foreign nationals who entered the United States after receiving
visitor, student, or employment visas, or who entered through the United States refugee resettlement
program.21

Indeed, President Trump claims that more than 300 refugees are the subject of counterterror-
ism investigations in the US.22
Ramji-Nogales notes the clear links between President Trump’s policy and the 2015
Paris terror attacks which were inaccurately attributed to Syrian refugees, and prompted
then-candidate Trump’s proposal of a bar on Muslims entering the US.23 However, Crisp
points out that, in reality (as demonstrated by an exhaustive study by the Cato Institute), the
number of refugees who have committed terrorist acts is negligible.24 Indeed, it has been
argued that the main terrorist threat to Western countries does not emanate from recently
arrived refugees, but rather from ‘home-grown’ extremists.25
Nevertheless, security concerns have permeated refugee frameworks across the globe. Even
prior to the above-mentioned executive action by President Trump, the US has long held a bar
on asylum for any person considered to have provided ‘material support to terrorism’, a phrase
which has been extensively criticised as being so obscurely defined and widely interpreted
as to result in ‘absurd and often, perverse’ determinations, excluding from refugee protection
many who are in fact fleeing terrorist persecution.26 Australia’s enhanced security screening

21
Executive Order of 27 January 2017 (n 19 above), para 3.
22
Yet it has been noted that the ambiguity surrounding this statement makes it difficult to analyse,
and would at generous estimates represent one-fifteenth of 1 per cent of refugees admitted from those
six countries since 9/11. M. Ye Hee Lee, ‘Trump’s claim that ‘more than 300’ refugees are subjects
of counterterrorism investigations’, The Washington Post, 6 March 2017, available at https://​www​
.washingtonpost​.com/​news/​fact​-checker/​wp/​2017/​03/​06/​trumps​-claim​-that​-more​-than​-300​-refugees​
-are​-the​-subject​-of​-counterterrorism​-investigations/​?utm​_term​=​.c2c46c8bf526 (last accessed 4 August
2017).
23
J. Ramji-Nogales, ‘The Imaginary of Mass Influx: Responses to Large-scale Movements in US
Law and Policy’, RLI Blog on Refugee Law and Forced Migration, 8 May 2017, available at https://​
rli​.blogs​.sas​.ac​.uk/​2017/​05/​08/​the​-imaginary​-of​-mass​-influx​-responses​-to​-large​-scale​-movements​-in​-us​
-law​-and​-policy/​(last accessed 4 August 2017).
24
J. Crisp, ‘Refugees: the Trojan horse of terrorism?’, Open Democracy, 5 June 2017, available at
https://​www​.opendemocracy​.net/​can​-europe​-make​-it/​jeff​-crisp/​refugees​-trojan​-horse​-of​-terrorism (last
accessed 4 August 2017) citing A. Nowrasteh, ‘Syrian Refugees and the Precautionary Principle’,
Cato Institute, 28th January 2017, available at https://​www​.cato​.org/​blog/​syrian​-refugees​-precationary​
-principle (last accessed 4 August 2017). Nowrasteh states that ‘Each year an American had a
0.000000028 percent chance of being murdered by a refugee terrorist.’
25
M. do Céu Pinto Arena, ‘Islamic Terrorism in the West and International Migrations: The “Far” or
“Near” Enemy Within? What is the Evidence’, EUI Working Paper RSCAS 2017/28, available at http://​
cadmus​.eui​.eu/​bitstream/​handle/​1814/​46604/​RSCAS​_2017​_28​.pdf​?sequence​=​1 (last accessed 4 August
2017) cited by Crisp (n 24).
26
N. Bhat, ‘My Name is Khan’ and I am not a Terrorist: Intersections of Counter Terrorism Measures
and the International Framework for Refugee Protection’ (2013–2014) 15 San Diego International Law
Journal 302.

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of asylum applicants, including the ability to indefinitely detain those considered to pose
a security threat to the country, is another example of an aggressive stance towards refugees
grounded in strong political rhetoric framing irregular arrivals as serious security/terrorist
threats.27 Anti-terrorism mechanisms adopted by Canada in the aftermath of 9/11, such as the
‘security certificate’ mechanism, have also been heavily criticised.28 Interestingly, Crepeau
notes that the primary objective of these measures in Canada has primarily been one of trying
to dispel the idea that the country is a ‘soft spot’ for terrorism and that Canadian borders are
porous, as ‘[p]olitically, the main threat was less the risk of a terrorist act in Canada than the
closure of the border by American authorities if another major terrorist act occurred in the
US’.29 Refugee protection in this security-conscious era has been heavily overshadowed by
political rhetoric framing asylum seekers and other irregular migrants as potential terrorist
threats, yet without a clear justification or grounding in realities on the ground.30
What consequences then for international refugee law? The 1951 Refugee Convention
includes an arsenal of provisions by which States can address asylum seekers and refugees
with a criminal profile or considered to pose a security threat to the host State. Under its
Article 1F, States are mandated to exclude from refugee protection anyone for whom there are
‘serious reasons for considering’ has committed a serious crime. Article 2 of the Convention
states that every refugee has a duty to conform to the laws and regulations of the host country,
as well as ‘any measures taken for the maintenance of public order’. Article 9 permits States
to detain refugees ‘for the purpose of national security’, while Article 32 allows for refugees
to be expelled and for due process to be suspended ‘when compelling reasons of national
security exist’. Furthermore, Article 33(2) entails loss of protection against refoulement for
those considered to pose a serious security risk to the host State. The following sections will
focus on two of these key areas: exclusion from refugee status under Article 1F and loss of
protection again refoulement under Article 33(2), and how these areas of refugee law have
been influenced by the political rhetoric emanating from the ‘War on Terror’.

3. THE TRANSFORMATION OF INTERNATIONAL REFUGEE

LAW: EXCLUSION FROM REFUGEE PROTECTION FOR
SUSPECTED TERRORIST ACTIVITY
As noted above, a number of UN resolutions call on States to ensure that terrorists do not
benefit from refugee protection, and further state that ‘acts, methods, and practices of terrorism
are contrary to the purposes and principles of the United Nations and that knowingly financ-
ing, planning and inciting terrorist acts are also contrary to the purposes and principles of the

27
S. S. Juss, ‘Detention and Delusion in Australia’s Kafkaesque Refugee Law’ (2017) 36(1) Refugee
Survey Quarterly, 151–5.
28
By both academic commentators and the Canadian judiciary. F. Crepeau, ‘Anti-terrorism Mesures
and Refugee Law Challenges in Canada’ (2011) 29(4) Refugee Survey Quarterly, 31–44.
29
Ibid.
30
As Farmer notes, ‘Since September 11, 2001, national security has become an increasingly impor-
tant issue for host states, many of whom have promulgated counter-terror policies that negatively impact
protection offered to refugees and asylum seekers.’ A. Farmer, ‘Non-Refoulement and Jus Cogens:
Limiting Anti-Terror Measures that Threaten Refugee Protection’ (2008) 23 Georgia Immigration Law
Journal 13.

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 The war on terror and refugee law 379

United Nations’. This language echoes the wording of Article 1F, the ‘exclusion clause’ of the
1951 Refugee Convention.
Article 1F of the 1951 Refugee Convention provides that the Convention shall not apply to
any person with respect to whom there are ‘serious reasons for considering’ has committed
a crime against peace, war crime or crime against humanity (Art 1F(a)); a serious non-political
crime (Art 1F(b)), or; under paragraph (c), ‘been guilty of acts contrary to the purposes and
principles of the United Nations’.31 In declaring that ‘acts, methods and practices of terrorism
are contrary to the purposes and principles of the United Nations’ these resolutions appear to
be attempting to influence the interpretation of Article 1F(c) by including terrorism within this
ground of exclusion. These provisions in the 1996 Declaration stemmed from a UK proposal,
the aim of which was to make clear that ‘those who financed, planned and incited terrorist
deeds were acting contrary to the purposes and principles of the United Nations and therefore
could not claim protection under the 1951 Convention’.32 It is important to note that in these
resolutions (and indeed the same is true of the Security Council resolutions that followed) the
General Assembly did not attempt to define ‘terrorism’ for the purpose of the exclusion clause,
nor refer to an existing definition of the term.
Although the term ‘terrorism’ does not appear in the text of Article 1F itself, it would appear
that under this approach those who are suspected of committing terrorist acts may be excluded
from refugee status under Article 1F(c). Indeed, certain acts of terrorism have long been
considered capable of falling within the scope of Article 1F. Although Article 1F(b) refers to
serious non-political crimes,33 terrorist acts may fall within the scope of this provision despite
being committed with political objectives when the act in question is disproportionate to the
alleged objective.34 Many terrorist acts will also be considered sufficiently ‘serious’ to fall
within the scope of the provision.35 A terrorist act could also be considered to amount to a war
crime or crime against humanity under Article 1F(a). Provided they take place in the context
of an armed conflict, the concept of ‘war crime’ includes many acts that would be considered
terrorist in nature, such as intentionally directing attacks against civilians and civilian objects,

31
An individual who falls within the scope of Art 1F is excluded from the scope of the 1951 Refugee
Convention per se, and all rights and privileges contained therein, notwithstanding a well-founded fear
of persecution. This does not mean, however, that an excluded individual will cease to benefit from the
rights and benefits contained in other international instruments, human rights treaties in particular.
32
UNGA, Summary Record of the 10th Meeting, UN Doc A/C.6/51/SR.10, 3 October 1996, p.5, para
19 (Ms Wilmshurst). See Mathew (n 8) for more detailed consideration of drafting of this declaration.
33
‘… outside the country of refuge prior to his admission as a refugee’.
34
T v Secretary of State for the Home Department [1996] UKHL 8. UNHCR ‘Guidelines on
International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention
Relating to the Status of Refugees (UNHCR Guidelines)’ (4 September 2003) HCR/GIP/03/05UNHCR
5; UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook)’ (January
1992) HCR/IP/4/Eng/REV.1 para 152.
35
For more on this see S. Singer, Terrorism and Exclusion from Refugee Status in the UK: Asylum
Seekers Suspected of Serious Criminality (Brill, 2015), Ch 3. It must also be pointed out that many
individuals suspected of committing terrorists acts will not qualify as refugees under Art 1A of the 1951
Refugee Convention at all, since they may not be fleeing persecution but legitimate prosecution in a third
state. J. Hathaway and C. Harvey, ‘Framing Refugee Protection in the New World Disorder’ (2001) 34
Cornell International Law Journal 284–5. However, illegitimate or irregular prosecution may amount to
persecution where relevant forms of discrimination result in selective prosecution, denial of procedural
or adjudicative fairness, or differential punishment.

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using indiscriminate means of warfare, and taking hostages.36 Massive attacks on a civilian
population may also constitute a ‘crime against humanity’ under Article 1F(a).37 Certain cat-
egories of terrorist offences will therefore mandate exclusion from refugee protection under
the first two limbs of Article 1F. In these UN resolutions however we see the extension of
‘terrorism’ (undefined) as a ground of exclusion under the third limb of Article 1F.
As an exception to a humanitarian treaty, it has been stressed that Article 1F should be
interpreted restrictively, particularly as regards the vague nature of the phrase ‘acts contrary
to the purposes and principles of the United Nations’.38 In this context, these UN resolutions
are problematic in that they promote the exclusion of asylum seekers from refugee status on
grounds of ‘terrorism’ without reference to a legal definition of the term. A number of com-
mentators have expressed concern that this ambiguity leaves the 1951 Convention’s exclusion
clause open to abuse by Member States seeking to exclude genuine asylum seekers from
refugee status.39 Nevertheless, the connection between refugees and terrorism, and the expan-
sion of the 1951 Convention’s exclusion clause to include terrorism (undefined), may now be
seen as entrenched in UN dialogue. The following sections consider how these developments
have influenced refugee law, focusing particularly on practice and jurisprudence of the UK
and EU.

3.1 UNSC Resolutions become Refugee Law

That terrorism is included within the scope of Article 1F(c) of the 1951 Refugee Convention
has been recognised in the EU’s Qualification Directive (QD), which forms part of the
EU’s Common European Asylum System, and the domestic jurisprudence of a number of
States Parties to the 1951 Convention.40 The UK government in particular has been explicit
in stressing its desire to exclude terrorists from refugee status. In 2001, following the 9/11
terrorist attacks on the US, UK Prime Minister Tony Blair announced new legislation which
would ‘increase our ability to exclude and remove those whom we suspect of terrorism and
who are seeking to abuse our asylum procedures’.41 The legislation which resulted was the
2001 Anti-terrorism Crime and Security Act (ATCSA), for which the UK government had to
declare a ‘state of emergency’ and derogate from Article 5(1) of the European Convention on

36
Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 3, Art 8.
37
Ibid., Art 7; Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) ICTY-94-1 (2 October 1995) [140]–[141].
38
UNHCR Handbook (n 34), para 149. UNHCR Background Note (n 34), 17.
39
M. Zard, ‘Exclusion, Terrorism and the Refugee Convention’ (2002) 13 Forced Migration Review
32–4; B. Saul, ‘Protecting Refugees in the Global “War on Terror”’ (2008) University of Sydney, Legal
Studies Research Paper No. 08/130; P. Mathew (n 8); G. Goodwin-Gill (n 12).
40
Other jurisdictions include the US (see n 26), Germany, Canada, Australia and the Netherlands.
Council Directive 2004/83/EC on the minimum standards for the qualification and status of third-country
nationals or stateless persons as refugees or as persons who otherwise need international protection
and the content of the protection granted. [2004] OJ L304/12. The 2004 Qualification Directive was
recast in 2011. This did not, however, affect the provisions on exclusion from refugee status. Council
Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification
of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform
status for refugees or for persons eligible for subsidiary protection, and for the content of the protection
granted (recast). [2011] OJ L337/9.
41
HC Debs, vol 372, col 675, 4 October 2001.

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Human Rights (ECHR) concerning the right to liberty. This legislation allowed the Secretary
of State to certify a person as a suspected international terrorist, upon which the individual
could be denied any kind of (further) stay in the country and could be kept in detention indef-
initely.42 The Act furthermore provided for new procedures for asylum applications where the
Secretary of State considered Article 1F or Article 33(2) (concerning loss of protection against
non-refoulement on grounds of national security) of the 1951 Convention applied. In addition
to empowering the Secretary of State to certify that an asylum applicant was not entitled to
protection under the 1951 Refugee Convention because Article 1F or 33(2) applied,43 the Act
also provided that the exclusion decision should be taken before the inclusion decision, and
that there was no room for striking a balance between the gravity of the fear of persecution
upon return on one side, and the gravity of the Article 1F or Article 33(2) allegation on the
other.44
This connection between asylum seekers and terrorism continued in later years. The White
Paper on which the 2006 UK Immigration Asylum and Nationality Act was based proposed
‘much tougher rules to deny asylum to those who have committed serious crimes, on top of
excluding terrorists’.45 Despite this proposition, provisions concerning terrorism were not
included in the original Bill. Two provisions were, however, hastily added to the Immigration
Bill following the 7/7 terrorist attacks on London in 2005. One of these, section 54, provides:

In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts
contrary to the purposes and principles of the United Nations shall be taken as including ... (a) acts
of committing, preparing or instigating terrorism ... and (b) acts of encouraging or inducing others to
commit, prepare or instigate terrorism.46

That acts of terrorism fall within the scope of Article 1F(c) was therefore formally set out in
statute in the UK.47
That acts of terrorism fall within the scope of Article 1F(c) is also recognised in the EU QD.
Article 12(2) of the Directive essentially mirrors, with some minor amendments, Article 1F
of the 1951 Convention,48 and paragraph (c) here excludes those ‘guilty of acts contrary to the
purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2
of the Charter of the United Nations’. Furthermore, the Preamble to the Directive provides:

42
ATCSA, ss 21–23. This part of the legislation was declared incompatible with the ECHR by the
UK House of Lords in A and Others v Secretary of State for the Home Department [2004] UKHL 56.
43
This has now been repealed but replaced by Immigration Asylum and Nationality Act 2006, s 55.
44
ATCSA, ss 33 and 34.
45
UK Home Office, ‘Controlling our Borders: Making Migration Work for Britain’, February 2005,
Cm 6472, p 18, available at: https://​www​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​
file/​251091/​6472​.pdf (last accessed 4 August 2017).
46
Whether or not these acts amount to amount to an actual or inchoate offence. The second provi-
sion, s 55, essentially repeats and replaced s 33 of the ATCSA in empowering the Secretary of State to
certify that Art 1F or 33(2) applies to an asylum applicant, and requiring the decision maker to begin sub-
stantive consideration by referring to the exclusion decision before consideration is given to inclusion.
47
Art 1F(c) represents one of the very few provisions of the 1951 Convention that are the subject of
primary legislation in the UK.
48
See Guild and Garlick for consideration of the differences between these provisions. E. Guild and
M. Garlick, ‘Refugee Protection, Counter-terrorism, and Exclusion in the European Union’ (2010) 29(4)
Refugee Survey Quarterly 63–82.

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Acts contrary to the purposes and principles of the United Nations are set out in the Preamble and
Articles 1 and 2 of the Charter of the United Nations and are, amongst others, embodied in the United
Nations Resolutions relating to measures combating terrorism, which declare that ‘acts, methods
and practices of terrorism are contrary to the purposes and principles of the United Nations’ and
that ‘knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and
principles of the United Nations.49

The Directive thus refers directly to the above-mentioned UN resolutions relating to measures
combating terrorism when interpreting the phrase ‘acts contrary to the purposes and principles
of the United Nations’.50 However, in the absence of a universally accepted definition of
‘terrorism’ it has largely fallen to the courts to define the parameters of this phrase and the
meaning of the term for the purpose of the refugee definition. Equally, attention has focused
on the degree of participation or complicity in the commission of such acts required to bring
an individual within the scope of the provision.

3.2 The Narrowing of ‘Terrorism’ and Clarifications on Complicity

In recent years, a number of prominent decisions have helped flesh out the contours of the
‘exclusion clause’ and its relationship to those suspected of terrorist activity and/or belonging
to an organisation characterised as ‘terrorist’.
As noted above, that acts of terrorism fall within the scope of Article 1F(c) of the 1951
Convention is set out in statute in the UK. ‘Terrorism’ here has the meaning given by the UK’s
domestic definition of terrorism contained in the Terrorism Act 2000, which is extremely
broad.51 While it has long been recognised by courts and tribunals in the UK that acts of ter-
rorism are capable of falling within the scope of Article 1F(c),52 the UK judiciary has rejected
the applicability of the UK’s domestic definition of terrorism for this purpose. It has repeatedly
been held that terrorism, for the purpose of Article 1F(c), does not extend to military action
against government armed forces.53 The UK Supreme Court in Al-Sirri held that, in order to
fall within the scope of the provision, acts of terrorism must have an ‘international dimension’,
a factor not required by the UK’s domestic definition of the term.54 In particular, the Supreme
Court endorsed the approach adopted by the High Commissioner on Refugees (UNHCR):

49
2004 QD, recital 22; 2011 QD, recital 31.
50
Furthermore, in the aftermath of the 9/11 terrorist attacks on the US, an additional exclusion clause
was introduced to the equivalent provision which relates to exclusion from subsidiary protection under
the QD. Art 17(1)(d) aims to prevent any person suspected of terrorist activities from being granted
subsidiary protection in the EU.
51
Immigration Asylum and Nationality Act 2006, s 54(2) provides that ‘terrorism’ for the purpose
of the construction of Art 1F(c) has the meaning given by s 1 of the UK Terrorism Act 2000. For judicial
statements on the breadth of this definition see R v F [2007] EWCA Crim 243 para 27 and R v Gul [2013]
UKSC 64 para 38.
52
See S. Singer, ‘Terrorism and Article 1F(c) of the Refugee Convention: Exclusion from Refugee
Status in the United Kingdom’ (2014) 12(5) Journal of International Criminal Justice 1075–91.
53
Al-Sirri v Secretary of State for the Home Department and Anor [2009] EWCA Civ 222; KJ (Sri
Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292; Secretary of State for the
Home Department v DD (Afghanistan) [2010] EWCA Civ 1407; Al-Sirri v Secretary of State for the
Home Department [2012] UKSC 54.
54
Al-Sirri UKSC, ibid., at paras 36–37.

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 The war on terror and refugee law 383

There should be a high threshold ‘defined in terms of the gravity of the act in question, the manner in
which the act is organised, its international impact and long-term objectives, and the implications for
international peace and security’.55

The Court therefore rejected the UK’s domestic definition of terrorism for the purpose of
Article 1F(c), rather defining acts that may fall within the scope of the provision by looking
to guidance from international sources and stressing that only acts of terrorism that violate the
purposes and principles of the United Nations in a ‘fundamental manner’ fall within the scope
of the provision. The Court also stressed that there must be an individual assessment of the
individual’s role in the excludable activity. Following its previous decision in JS (Sri Lanka),56
the Supreme Court emphasised the importance of establishing serious reasons for considering
the asylum applicant could be held individually responsibility for the acts committed by the
group in question, having contributed ‘significantly’ to the commission of an excludable act.
The Court of Justice of the European Union (CJEU) adopted a similar approach in its deci-
sion in Bundesrepublik Deutschland v B and D.57 The CJEU in this case noted that it was clear
from UN Resolutions 1373 and 1377 that international terrorist acts are, generally speaking,
contrary to the purposes and principles of the UN and therefore fall within the scope of the
exclusion clause, providing that they have an ‘international dimension’.58 Similarly, ‘terrorist
acts, which are characterised by their violence towards civilian populations, even if committed
with a purportedly political objective, fall to be regarded as serious non-political crimes’
within the meaning of Article 12(2)(b) QD.59 However, the Court held that the mere fact, ‘that
a person has been a member of an organisation which, because of its involvement in terrorist
acts, is on the [proscribed list of terrorist organisations adopted by the European Union]…does
not automatically constitute a serious reason for considering that that person has committed
“a serious non-political crime” or “acts contrary to the purposes and principles of the United
Nations” so as to lead to exclusion.60
The organisations at issue in this case were the PKK and Dev Sol (now DHKP/C), both of
which are included in the periodically updated list of ‘persons, groups and entities involved in
terrorist acts’ referred to by Council Common Position 2001/931/CFSP on the application of
specific measures to combat terrorism. The CJEU was of the opinion that, although member-
ship of an organisation included on such a list is a factor to be taken into account, ‘the mere
fact that the person concerned was a member of such an organisation cannot automatically
mean that that person must be excluded from refugee status’.61 Rather, the national asylum
judge must undertake an individualised assessment of the specific facts of the case, including
both objective and subjective criteria, and, inter alia, assess:

55
Ibid., at para 16. UNHCR Guidelines (n 34) cited in Al-Sirri UKSC at para 38.
56
JS (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15, para 31.
57
C-57/09 and C-101/09, Bundesrepublik Deutschland v B and D [2010] ECR I-10979, para 83.
58
Ibid., at para 84.
59
Ibid., at para 81.
60
Ibid., at para 99.
61
Ibid., at para 88.

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the true role played by the person concerned in the perpetration of the acts in question; his position
within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities;
any pressure to which he was exposed; or other factors likely to have influenced his conduct.62

This jurisprudence therefore evidences a positive trend as regards exclusion from refugee
status and the unwieldy terms ‘terrorist’ and ‘terrorist organisation’. In stressing that such
activity must meet a certain level of gravity to fall within the exclusion clause – and indeed
in the case of Article 1F(c) include an international dimension – these decisions place some
limitations on state discretion to determine what ‘terrorism’ is and who is a ‘terrorist’ for the
purpose of exclusion from refugee status. Furthermore, the requirement of individual assess-
ment in each case lessens the danger of presumptive approaches to exclusion based on political
assertions of who is or is not a ‘terrorist’ or ‘terrorist organisation’. Later jurisprudence of the
CJEU has in some respects continued this trend, though in some ways also departed from it
significantly.

3.3 HT v Land Baden-Württemberg: Protection from Refoulement and the Question

of Residence Permits

The CJEU followed its approach in B and D in a decision concerning exclusion from protec-
tion against refoulement under Article 21 of the EU Qualification Directive, and the possibility
to revoke a residence permit issued to a refugee pursuant to Article 24 of the Directive.63 Here,
the first issue concerned exclusion from protection against refoulement under Article 21 QD.
Article 21 essentially mirrors Article 33(2) of the 1951 Refugee Convention, and provides
host-State security exception to the prohibition on refoulement when:

(a) there are reasonable grounds for considering him or her as a danger to the security of the
State in which he or she is present; or
(b) he or she, having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that State.

HT v Land Baden-Württemberg concerned a Turkish national who obtained refugee status in

Germany. However, his collection of money for the PKK (a designated terrorist organisation
in the EU) and distribution of PKK literature later led to a conviction for supporting terrorism.
His residence permit was revoked but he retained refugee status and he was not expelled from
the country. However, he challenged the revocation of his residence permit.
The CJEU held that Mr T’s activities for the PKK, while not sufficiently serious to engage
exclusion from refugee status under Article 12 of the QD (which reflects Art 1F of the 1951
Refugee Convention), could potentially bring him within the scope of Article 21. However,
under Article 21 QD a State may not refoule a refugee where this is in conflict with their inter-
national obligations, a conflict that is particularly likely to arise in respect of their obligations
under human rights law.64 As such, in the case of recognised refugees, refoulement under

62
Ibid., at para 97.
63
C‑373/13, H. T. v Land Baden-Württemberg [2015] ECLI:​EU:​C:​2015:​413.
64
As Peers notes, S. Peers, ‘What if a refugee allegedly supports terrorism? The CJEU judgment in
T’, EU Law Analysis Blog, 24 June 2015, available at http://​eulawanalysis​.blogspot​.co​.uk/​2015/​06/​what​
-if​-refugee​-allegedly​-supports​.html (last accessed 4 August 2017).

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 The war on terror and refugee law 385

Article 21 is not likely to take place in practice, given that exclusion from protection against
refoulement under refugee law does not also entail loss of protection against refoulement under
human rights law, the latter being ‘absolute’ and permitting no security or criminality excep-
tions.65 While the provision also provides for the revocation of a residence permit, the CJEU in
this case held such revocation could not take place unless the conditions for refoulement were
met, i.e., refoulement would not breach the State’s international (human rights) obligations. As
Germany could not refoule Mr T, it was equally impermissible to revoke his residence permit
under this provision. Attention then turned to revocation of a residence permit under Article
24 QD.
Article 24 QD includes a public policy exception – ‘compelling reasons of national security
or public order’ – to the requirement that States issue refugees with a residence permit. The
CJEU was asked to provide guidance on the interpretation of this phrase. Referring by analogy
to its decision in B and D, the CJEU noted:

a Member State could, in the event of such [terrorist] acts, justifiably rely on the existence of
compelling reasons of national security or public order within the meaning of Article 24(1) of [the
Qualification] Directive in order to apply the derogation provided for by that provision.

However, the Court cautioned that ‘the mere fact that the refugee supported [an organisation
on the list forming the Annex to Common Position 2001/931] cannot automatically mean
that that person’s residence permit is revoked pursuant to that provision’.66 An individual
assessment must take place which examines the role actually played by the individual in
supporting the organisation. Broad support of a group which the EU considers to be terrorist
is not enough; there must be an active participation in violent acts or the funding of those acts:

the referring court must examine the role that Mr T. actually played in supporting that organisation,
by ascertaining in particular whether he himself has committed terrorist acts, whether and to what
extent he was involved in planning, decision-making or directing other persons with a view to com-
mitting acts of that nature, and whether and to what extent he financed such acts or procured for other
persons the means to commit them.67

In this case Mr T’s participation in collecting money for the PKK was not sufficient. The Court
noted that the fact that he carried out such acts did not necessarily mean that he supported the
legitimacy of the terrorist activities committed by the PKK. Even more so, acts of that nature
do not constitute, in themselves, terrorist acts. The CJEU here drew on its jurisprudence
regarding exclusion from refugee status in emphasising both the requirement for individual
assessment of the facts of each case, and that [terrorist] acts of a sufficient level of gravity must
have been committed to justify revocation or refusal to issue a residence permit. Importantly,
the court held that where the conditions of Article 24 were met, so long as an individual main-
tains their refugee status, the revocation of the residence permit does not reduce the rights and

65
S. Singer, ‘Undesirable and Unreturnable Migrants in the United Kingdom’ (2017) 36(1) Refugee
Survey Quarterly 9–34. However the court did state that refoulement under Art 21(2) might be used as
‘last resort’ in the event no other options are available. The court may be asked to provide further clari-
fication on this point. Peers (n 64).
66
HT v Land Baden-Württemberg (n 63), paras 85–87.
67
Ibid., paras 87–90.

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benefits enjoyed by those with refugee status.68 This factor significantly lessens the practical
impact of loss of a residence permit in cases where the threshold is reached.
The decision in H. T. has been criticised by some as opening the door to a weakening of
refugee rights by permitting revocation of a refugee’s residence permit in certain situations,69
and ongoing ambiguity regarding the scope of non-refoulement under the EU QD.70 However
the case also imparts important safeguards for refugees suspected of terrorist-related activity.
The potentially far-reaching nature of the UN resolutions outlined in section 2 of this chapter
are therefore tempered somewhat by jurisprudence stressing (i) a State’s ability to define
terrorism for the purpose of the exclusion clause is not unlimited, there must be a certain level
of gravity and international dimension to the act, and (ii) the necessity of establishing the
individual responsibility of the individual concerned for the acts in question. However, the
recent decision of the CJEU in Mostafa Lounani seems to have muddied the waters somewhat.

3.4 The Lounani Decision and Expansion of the Exclusion Clause

The Mostafa Lounani case concerned the scope of ‘acts’ and participation in such acts which
could be deemed to fall within the scope of Article 12(2) QD, specifically terrorist-related
activities in the context of ‘acts contrary to the purposes and principles of the United
Nations’.71 Mr Lounani had been convicted of criminal offences in Belgium related to par-
ticipation in a terrorist organisation, which included partaking in the leadership of the group,
providing logistical support in the form of false passports and organising a network to send
volunteers to Iraq. These were not direct acts of terrorism, but the provision of resources and
logistical support to a terrorist group. In contrast to the approach in B and D, where the Court
endeavoured to keep separate instruments relating to terrorism from the interpretation of the
QD, a humanitarian instrument, the CJEU in Lounani actively employed Security Council
Resolutions and the Council Framework Decision on combatting terrorism 2002/475 to deter-
mine the scope of Article 12(2) and hold that assisting with the recruitment, organisation or
transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause.
The court held that the meaning of ‘acts contrary to the purposes and principles of the
United Nations’ was not confined to the commission of terrorist acts as specified in UNSC
Resolutions, nor required the existence of a criminal conviction under the Council Framework
Decision.72 However, such acts could extend to any person who ‘supports, facilitates, par-
ticipates or attempts to participate in the financing planning, preparation or commission of
terrorist acts, or provide safe havens’, or incitement to commit terrorist acts, as laid down in

68
Ibid., paras 73, 95–96. Those benefits include protection from refoulement, maintenance of family
unity, the right to travel documents, access to employment, education, social welfare, healthcare and
accommodation, freedom of movement within the Member State and access to integration facilities.
69
T. F. Lampert, ‘Prioritizing National Security at the expense of Refugee Rights: The effects of HT
v Land Badenwurttenberg’ (2017) 40(1) Boston College International and Comparative Law Review, E
Supplement, 24.
70
P. Boeles, ‘Non-refoulement: is part of the EU’s Qualification Directive Invalid?’ EU Law Analysis
Blog, 14th January 2017, available at http://​eulawanalysis​.blogspot​.co​.uk/​2017/​01/​non​-refoulement​-is​
-part​-of​-eus​.html (last accessed 4 August 2017).
71
C-573/15, Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani [2017] ECLI:​
EU:​C:​2017:​71.
72
Ibid., paras 48–53.

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 The war on terror and refugee law 387

UNSC Resolutions 1377 and 1624. Furthermore, such acts could extend to activities specified
in UNSC Resolution 2178 of 2014 concerning the threat posed by foreign terrorist fighters, to
include, ‘those who engage in activities consisting in the recruitment, organisation, transporta-
tion or equipment of individuals who travel to a State … for the purpose of … the perpetration,
planning or preparation of terrorist acts’.73
As such, the Court held it was not a prerequisite for the individual to have instigated or
otherwise participated in the commission of a terrorist act, as participation in the activities
of a terrorist group ‘can cover a wide range of conduct, of varying degrees of seriousness’.74
The court also noted that domestic conviction for participation in the activities of a terrorist
group is ‘of particular importance’ in determining whether the activities of the individual fell
within the exclusion clause, as was a finding that a person was a member of the leadership of
a terrorist group, as was the case with Mr Lounani.75 As such, the Court held that Mr Lounani’s
logistical support in the form of forging passports and assisting volunteers who wished to
travel to Iraq could justify exclusion under Article 12(2)(c) QD, whether or not the group had
in fact perpetrated any terrorist acts or the individual had instigated or otherwise participated
in the commission of terrorist acts.76
This decision appears to be a significant departure from previous jurisprudence on exclusion
from refugee status and may be criticised on a number of fronts. While the court in this case
drew attention to the need for the Member State to undertake an individual assessment in each
case determining whether the individual fell within the scope of the exclusion clause,77 there
is no emphasis on determining the ‘true role’ played by the individual in the commission of
terrorist acts, the knowledge they had of the situation, or any factors or pressure which may
have affected their conduct, as was laid out in the B and D decision. The decision strays
even further from the ‘significant contribution’ required by the UK Supreme Court in JS (Sri
Lanka). The CJEU in Lounani appears to focus on the proscription of certain acts in UNSC
resolutions, rather than a true assessment of the contribution of the individual in the com-
mission of excludable acts.78 Furthermore, there is no assessment of the gravity of such acts
required to bring them within the exclusion clause, simple proscription in UNSC resolutions
on combating terrorism appears to be enough. Indeed, under the Lounani approach there is no
requirement that a terrorist act even has taken place, focusing as it does on preparatory acts
for terrorist activity which may or may not occur. Finally, the individual assessment referred
to by the court does not expressly provide for consideration of either a form of mitigation or

73
Ibid., paras 68–69.
74
Ibid., paras 70–71.
75
Ibid., paras 78–79.
76
Ibid., paras 74, 77, 79.
77
Ibid., para 72.
78
J. Walsh, ‘Exclusion from International Protection for Terrorist Activities under EU Law: from B
and D to Lounani’, EDAL, 3 February 2017, available at http://​www​.asylumlawdatabase​.eu/​en/​journal/​
exclusion​-international​-protection​-terrorist​-activities​-under​-eu​-law​-b​-d​-lounani (last accessed 4 August
2017). See also S. Peers, ‘Foreign fighters’ helpers excluded from refugee status: the ECJ clarifies the
law’, EU Asylum Law Blog, 31 January 2017, available at http://​eulawanalysis​.blogspot​.co​.uk/​2017/​01/​
foreign​-fighters​-helpers​-excluded​-from​.html (last accessed 4 August 2017).

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defence to the commission of such acts,79 a factor which has attracted significant criticism
when a feature of domestic law.80
Overall therefore this decision may be seem as a significant widening of the scope of
the exclusion clause in the European context, a concerning development given the need to
approach the interpretation and application of this provision restrictively and with caution.
Indeed, Walsh notes that future developments in this area could see national courts and the
CJEU engaged in further litigation, as they seek to define more and more preparatory acts of
terrorism to focus the meaning of the Lounani judgment.81

5. CONCLUDING REMARKS

The drive to deny the benefits of refugee status to terrorists has resulted in an expansion of
the grounds of exclusion under the 1951 Refugee Convention and EU Qualification Directive.
Despite positive jurisprudence in this area which has sought to rein in States’ unfettered dis-
cretion in determining the meaning of the unwieldy terms ‘terrorist’ and ‘terrorism’, concerns
remain surrounding the most recent jurisprudence of the CJEU and future directions of this
area of law.
The singling out of refugees and asylum seekers as potential terrorist threats is itself curious.
The UN Special Rapporteur on counter-terrorism and human rights recently noted that:

we have seen a trend of anti-terror measures being linked to the management of cross-border flows ...
based on the perception that terrorists take advantage of refugee flows to carry out acts of terrorism,
or that refugees are somehow more prone to radicalization than others.

However, he cautioned that this ‘perception is analytically and statistically unfounded, and
must change’, arguing that anti-terrorist measures employed by States such as that building
fences, engaging in push-back operations, criminalising irregular migration and abandon inter-
national legal commitments to refugees, ‘may ultimately assist terrorists and lead to increased
terrorist activity’,82 a sentiment echoed by UNHCR.83
The truth is, the precise contours of the ‘terrorism’ that President Bush urged us to combat
is increasingly unclear, as are our conceptions of who is or is not ‘unworthy’ of refugee protec-
tion,84 or the extent to which such categorisations can be stretched. We also have good reason
to be suspicious of State attempts to infringe on rights in the name of counter-terrorism opera-

79
T. Beaumont, ‘The Lounani case: when can a member of a terrorist group be excluded from
refugee status?’, Free Movement Blog, 9th March 2017, available at https://​www​.freemovement​.org​.uk/​
lounani​-case​-can​-member​-terrorist​-group​-excluded​-refugee​-status/​ (last accessed 4 August 2017).
80
See e.g., Jennifer Bond, ‘The Defence of Duress in Canadian Refugee Law’ (2015–2016) 41
Queen’s Law Journal 409–454.
81
Walsh (n 78).
82
General Assembly, ‘Report of the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism’, 13 September 2016, UN Doc A/71/384.
83
UNHCR, ‘Security and refugee protection are complementary, says UNHCR’ 5 April 2017,
available at http://​www​.unhcr​.org/​en​-us/​news/​latest/​2017/​4/​58e4c56a4/​security​-refugee​-protection​
-complementary​-says​-unhcr​.html (last accessed 4 August 2017).
84
S. S. Juss, ‘Complicity, Exclusion, and the “Unworthy” in Refugee Law’ (2012) 31(3) Refugee
Survey Quarterly, 1–39.

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tions. With this in mind, it is surely arguable that the 1951 Refugee Convention’s mechanisms
to address suspected criminality and State security are sufficient without resorting to uncom-
fortable and ill-defined appeals to ‘terrorism’ or terrorist-related activity. The references to
war crimes and other serious criminal activity contained in the first two limbs of Article 1F,
and the more concrete legal standards they embody, surely provide a firmer and more reliable
basis for exclusion from refugee protection,85 and if the case in issue concerns crimes commit-
ted in the host State and the individual is unremovable, arguably domestic criminal processes
are most appropriate means of redress. Arguments aside, what is clear is that the global ‘War
on Terror’ has had a profound effect on refugee protection frameworks and approaches across
the globe, and given current political rhetoric in this area this is a trend which is unlikely to
decrease any time soon.

85
Hathaway and Foster point out that the amorphous nature of Art 1F(c) as too frequently applied
facilitates the evasion of the rigours of pursuing exclusion under the most applicable grounds, a result of
which is that ‘all of the subtlety and precision mandated by Arts 1(F)(a) and (b) is lost’. J. Hathaway and
M. Foster, The Law of Refugee Status (CUP, 2014) 593–4.

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25. The exclusion clauses in refugee law
Joseph Rikhof1

INTRODUCTION

This chapter discusses the interpretation2 of the exclusion clause in the 1951 Refugee
Convention. While a person seeking asylum is entitled to protection under this treaty if he
or she has ‘a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion’,3 Article 1F sets an exception to
this rule by excluding a person if:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admis-
sion to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

EXCLUSION 1F(A)

Exclusion 1F(a) – International Crimes4

The interpretation of the parameters of the international crimes by national courts and tribu-
nals in giving meaning to exclusion Article 1F(a) has been influenced considerably by both
the Statutes of international criminal tribunals and their jurisprudence. The discussion in
refugee determination decisions with respect to war crimes, has taken place primarily in the
context of non-international armed conflicts. International Criminal Tribunal for the former
Yugoslavia (ICTY) jurisprudence was relied upon to decide that war crimes could not be
committed in such conflicts before 1990 (Canada5 and New Zealand6) although in Belgium7
and the Netherlands,8 based primarily on international humanitarian law instruments, it was

1
Adjunct professor, University of Ottawa, Faculty of Common Law.
2
For the most part, the nine countries with the most extensive jurisprudence of their courts and
tribunals is discussed, namely Australia, Belgium, Canada, France, Germany, the Netherlands, New
Zealand, the United Kingdom and the United States.
3
Art 1A(2).
4
For an overview of the international jurisprudence in this area, see R. Currie and J. Rikhof,
International and Transnational Criminal Law, 2nd edn (2013), 107–67.
5
By the Federal Court in the cases of Bermudez v Canada 2005 FC 286 (relying on Judgment, Tadić
(IT-94-1-A), Appeals Chamber, 15 July 1999) and Ventocilla v Canada 2007 FC.
6
X v Refugee Status Appeals Authority, [2009] NZCA 488, paras 210–223 and 228–234 (relying on
the Tadić case).
7
CPRR No. 99-1280/W7769, 6 August 2002.
8
AbRS 9 July 2004, nr. 200401181/1; AbRS 7 October 2010, nr. 201006259/1/V1; AbRS, 14
December 2010, nr. 200909884/1/V3.

390
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 The exclusion clauses in refugee law 391

found to apply to situations in the late 80s. Although the Tadić decision was factually related
to an armed conflict situation in 1991, its more general reasoning and its reliance on customary
international law, where some reference was made to national criminal decisions with findings
of war crimes in non-international armed conflicts before that time, makes it difficult to point
to a precise date for the expansion for individual criminal liability from international armed
conflicts to its non-international counterparts. As such, it is difficult to state that the Belgian
and Dutch decisions were in error when putting them in the international criminal law (ICL)
context.
Crimes against humanity have received a great deal of treatment in all common law coun-
tries (except the US), as well as in Belgium, Germany and the Netherlands. The courts in these
countries adopted the main international elements of this concept, namely a systematic or
widespread attack against a civilian population with knowledge of the attack. These general
elements of crimes against humanity are consistent with international criminal law, for the
most part because the national courts in setting out these requirements relied directly on inter-
national instruments and jurisprudence.9
In Australia, the Federal Court of Australia, Full Court, has provided more detail about one
aspect of the definition by holding that police officers can be part of a civilian population,10
the same conclusion reached later by the Special Court of Sierra Leone11 while in Canada the
same was said about people incarcerated in civilian prisons.12
With respect to the last international crime, aggression or crimes against peace, this is
mentioned in general in both a UK13 and Dutch immigration manual.14 In Belgium the crime of
aggression was levelled against a person who was one of the five members of the Politburo of
the ruling party in Somalia during the Barre government between 1969 and 1991. As such, he
was involved in all important policy decisions of this regime. One of these decisions was the
aggression against Ethiopia over the control of the Ogaden region in 1982, in which this person
was involved while also being responsible specifically for the purchase of military material in
preparation for this armed conflict.15
In regard to specific or underlying crimes, which are part of war crimes and crimes against
humanity and of which the most comprehensive iteration can be found in Articles 7 and 8
of the Rome Statute of the International Criminal Court, in most cases such crimes were not
discussed in the jurisprudence as it was clear that the organisations under discussion had been

9
In Australia, SHCB v MIMIA [2003] FCA 229; SZCWP v MIMIA [2006] FCAFC 9; SRYYY v
MIMIA [2005] FCAFC 42; SZITR v MIMIA [2006] FCA 1759; in Belgium, CE No. 184.647, 24 June
2008; CE No. 186.913, 8 October 2008; CCE No. 49.298, 10 October 2010; in Canada, Mugesera v
Canada 2005 SCC 40; in Germany, BverwG 10 C 2.10, 31 March 2011; in the Netherlands, AbRS
31 August 2005, nr. 200502650/1; Rb, The Hague, Awb 09/40819, 9 April 2010; in New Zealand,
Sequeiros Garate v Refugee Status Appeals Authority, M826/97, High Court, 9 October 1997; The
Attorney-General (Minister of Immigration) v Tamil X and the RSAA, [2010] NZSC 107; in the UK, SK
(Article 1F(a) – exclusion) Zimbabwe [2010] UKUT 327 (IAC).
10
SZCWP v MIMIA [2006] FCAFC 9.
11
Judgment, Sesay, Kallon and Gbao (‘RUF’), (SCSL-04-15-T), Trial Chamber, 25 February 2009,
paras 87–88.
12
Carrasco v Canada 2008 FC 436; Liqokeli v Canada 2009 FC 530.
13
Asylum Policy Instructions on Exclusion, ss 2.2.1–2.2.4.
14
Vreemdelingencirculaire 2000 (C), art C4/3.11.3.2 (this document was updated in 2012 and while
there is still a reference to crimes against peace in art C2/6.2.8, it is more limited than before).
15
CPRR No. 99-1280/W7769, 6 August 2002.

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involved in at least murder or torture. However, the Federal Court of Australia, Full Court, dis-
cussed the type of control required for the underlying crime of torture, as defined by the ICC
Statute, and came to the conclusion that it has only to be factual, as opposed to legal, control.16
In the Netherlands, the Council of State was prescient in finding that causing terror could
amount to a war crime17 without having the benefit of the ICTY jurisprudence.18
In Germany, the war crime of treacherous killing or wounding, was addressed, again without
assistance of international jurisprudence.19 The court conducted a detailed examination of the
contours of crime, which is contained in the ICC Statute20 but has not received consideration
by the ICC judiciary as of yet,21 and indicated that in general ‘not every misleading of an
adversary is prohibited, but rather only the exploitation of a confidence obtained under false
pretences through specific acts contrary to international law’.22
Underlying crimes as part of crimes against humanity were also discussed in the UK with
respect to a situation in Zimbabwe where a person had been involved in violent invasions of
land owned by white farmers and in the violent expulsion of their black farm workers from
their houses and jobs on those farms. The Court of Appeal provided parameters for the under-
lying crimes against humanity of inhumane acts and persecution.23
Similarly, an Australian tribunal was of the view that the actions by the Saddam Hussein
regime against the Kurds during the Anfal Campaign in Northern Iraq between 1986 and 1989,
resulting in massive killing of the population, the draining of the marshes and the driving out
of the Marsh Arabs in Southern Iraq between 1991 and 1993, amounted to crimes against
humanity. In respect to the latter event, it was said that the Iraqi Army was engaged in the
drainage of the marshes and, in doing so, forced the inhabitants out of the marshes resulting in
the loss of their homeland.24

Exclusion 1F(a) – Extended Liability

While the connection between ICL and refugee law in defining the international crimes has
been a persistent and in-depth one, the situation with respect to extended liability is quite
different. Although national decision makers were called upon to determine the circle of
responsible perpetrators as early as when examining the crimes themselves, the parameters
of accountability were often decided in a more autonomous fashion, although generally the

16
SZITR v MIMA [2006] FCA 1759.
17
AbRS 2 August 2004, nr. 200401637/1.
18
The case of Judgment, Galić (IT-98-29-T), Trial Chamber, 5 December 2003, paras 133–138 had
set out the basis of this crime in customary international law and its elements almost eight months before
the decision of the Council of State.
19
BverwG 10 C 7.09, 10 February 2010, para 2.
20
Arts 8.2(b)(xi) and 8.2(e)(ix).
21
BverwG 10 C 7.09, 10 February 2010, paras 37–41, however, since this judgment there has been
some interpretation of these articles within the ICC, see see ICC OTP, Situation in the Republic of Korea,
Article 5 Report, June 2014, paras 47–57 and 71–81.
22
Ibid., para 39.
23
SK (Zimbabwe) v SSHD [2012] EWCA Civ 807.
24
SAH and MIMIA [2002] AATA 263.

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notion of personal and knowing participation, which originated in Canada, was and is still used
in a number of countries.25
This changed in 2010 when the highest courts in New Zealand and the UK canvassed in
detail ICL concepts of liability in order to come to a workable definition of the term ‘commit-
ted’ in exclusion 1F(a). The Supreme Court of Canada followed this approach in 2013.
In the UK, the Supreme Court pronounced itself on the issue of complicity in the JS case on
17 March 2010.26 This case involved a member of the Liberation Tigers of Tamil Elam (LTTE)
who, between 1997 and 2000, took part in various military operations against the Sri Lankan
army while becoming one of the chief security guards of the leader of the LTTE Intelligence
Division, and serving as the second-in-command of the Combat Unit at the Intelligence
Division from 2004 to 2006.27
The court was of the view that the starting point for assessing extended liability should be
the ICC Statute28 and states, obiter dictum, that membership in a brutal organisation by itself
is not sufficient to result in complicity,29 but that the essential test for extended liability is ‘if
there are serious reasons for considering him voluntarily to have contributed in a significant
way to the organisation’s ability to pursue its purpose of committing war crimes, aware that
his assistance will in fact further that purpose’. The court added that this overarching test can
be accomplished by having regard to a number of factors, such as: (i) the nature and the size of
the organisation and particularly that part of it with which the asylum seeker was himself most
directly concerned; (ii) whether and, if so, by whom the organisation was proscribed; (iii) how
the asylum seeker came to be recruited; (iv) the length of time he remained in the organisation
and what, if any, opportunities he had to leave it; (v) his position, rank, standing and influence
in the organisation; (vi) his knowledge of the organisation’s war crimes activities; and (vii)
his own personal involvement and role in the organisation including particularly whatever
contribution he made towards the commission of war crimes.30
The New Zealand decision, X & Y v Refugee Status Appeals Authority,31 involved the
exclusion of a person who was the chief engineer of a ship, which was owned by the LTTE
and which was sunk during a confrontation with the Indian Navy in January 1993. At the time,
it was carrying several LTTE members and substantial quantities of arms and ammunition.
The Supreme Court of New Zealand issued a decision on 27 August 2010 in which it made
several relevant findings.32 In terms of sources of extended liability, the ICC Statute was found
to be the most authoritative instrument to provide the various modes of liability in international

25
See J. Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal
Background in International and Domestic Law (2012) 218–20 for Canada; for the use of this same
test in other countries, see ibid. 211–12 (Australia); 214–15 (Belgium); 233–4 (the Netherlands); 243–4
(New Zealand ) and 251–2 (UK).
26
JS (Sri Lanka) and SSHD, [2009] EWCA Civ 364.
27
Ibid., paras 8–14.
28
Ibid., para 47 (Lord Hope).
29
Ibid., para 2 (Lord Brown), indicating this was a common ground among the parties while in para
57 Lord Kerr says it was wise for the Secretary of State not to rely on this aspect of the Canadian juris-
prudence; see also para 49 (Lord Hope).
30
Ibid., paras 30–31 (Lord Brown) and 54–55 (Lord Kerr) although the latter points out that these
factors are not exhaustive.
31
X and Y v RSAA CIV-2006-404-4213, High Court, 17 December 2007.
32
The Attorney-General (Minister of Immigration) v Tamil X and the RSAA, [2010] NZSC 107.

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criminal law,33 one of which is joint criminal enterprise (JCE), which was also the most appro-
priate one in the situation at hand.34
Based on the facts of the case, the court came to the conclusion that the claimant should not
be excluded. While it was clear that he supported the LTTE in general and had done so in the
past, the past activities did not reach the threshold of complicity while the activities underlying
the situation in question could not support an exclusionary finding, as the weapons on the ship
never reached the LTTE for a possible criminal purpose and as such there was no completed
crime, a requirement for any form of complicity.
In Canada, the Supreme Court35 made on 19 July 2013 some adjustments to the well-known
test of personal and knowing participation, which had been used by Canadian tribunals and
courts since 1992. The case concerned a person who began his career with the government of
the Democratic Republic of Congo (DRC) in January 1999. In his role as second counsellor of
the Mission, he represented the DRC at international meetings and UN entities including the
UN Economic and Social Council.36
The analysis of the Supreme Court is very much based on ICL in the sense that the court
makes an inquiry as to the broadest forms of extended liability both under the ICTY/ICTR and
the ICC Statutes on the understanding that Canadian exclusion law should not go beyond these
forms of liability in international law.37 As a result, the court examined the concepts of joint
criminal enterprise (JCE)38 and common purpose39 and came to the conclusion that, based on
these forms of liability, a new overarching test of voluntary, significant and knowing contri-
bution to the organisation’s crime or criminal purpose40 should replace the previous ‘personal
and knowing participation’ test as the latter had gone too far to include individuals based on
mere association or passive acquiescence.41
Applying this overarching test, recourse can be had to a number of factors, for which the
court found inspiration in the JS decision42 as well as the previous Canadian jurisprudence,43
which will also guard ‘against a complicity analysis that would exclude individuals from
refugee protection on the basis of mere membership’.44 In so far as this factor test would make
exclusion possibly easier than a criminal conviction, this is justified as a result of the fact
that refugee exclusion proceedings are of a different nature to criminal trials.45 The court also
makes it clear that this overarching test represents the outer limits of extended liability but that

33
Ibid., paras 51–53.
34
Ibid., paras 56 and 71, referring to joint criminal enterprise III.
35
Ezokola v Canada 2013 SCC 40.
36
Ibid., paras 11–13.
37
Ibid., paras 42–46.
38
Ibid., paras 62–67, specifically utilising the Decision of the Confirmation of Charges,
Mbarushimana (ICC-01/04-01/10), Pre-Trial Chamber I, 16 December 2011.
39
Ibid., paras 54–61, relying specifically on Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15
July 1999 and Judgment, Brđanin (IT-99-36-A), Appeals Chamber, 3 April 2007.
40
Ibid., para 84.
41
Ibid., para 85.
42
Ibid., paras 70–72.
43
Ibid., para 73.
44
Ibid., para 74.
45
Ibid., paras 37–40.

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other forms of liability, such as aiding and abetting and command responsibility, can still play
a role in an exclusion determination.46
The factors which can play a role are slightly less stringent than the ones set out in the JS
case by deleting the factors of the person’s own personal involvement and role in the organ-
isation and whether an organisation is proscribed, but by building on the other five factors in
JS as well as previous Canadian jurisprudence and adding one new, crucial, factor, namely the
person’s duties and activities within the organisation.47
While the court has made it clear that membership of a brutal organisation is no longer
a form of liability for exclusion, the notion of a brutal, limited purpose organisation has not
been abandoned completely as would appear that belonging to such an organisation could
affect the importance and possibly the relevance of the other factors.48

EXCLUSION 1F(B)

While the jurisprudence shows some growing consistency in the use of Article 1F(b) in the
abstract, a number of variations occur in the concrete application of the clause.
The judiciaries of Australia,49 Canada50 and New Zealand51 were of the view that the notion
of what consists of a crime for purposes of this provision, the criminal law of the country
of refuge should be the determinative factor although in Canada at times some lip service
was paid to the fact that a crime has also been addressed at the international level, such as
corruption or drug trafficking, which is seen as bolstering the reliance on the national law in
the country of refuge.52 In this context, an Australian case made it clear that the crime had to
be in existence in the country of refugee at the time of its commission rather than the time of
the hearing.53
Related to this concept is the role of a foreign conviction in determining whether a crime
has been committed. Australian, Belgian, Dutch and UK tribunals have given deference to
foreign convictions if the Article 1F(b) assessment is made on the same facts while it would
be part of the evidence to be considered if the Article 1F(b) examination is used for a different

46
Ibid., paras 41, 50 and 97, see also in the UK in this context AS (s.55 ‘exclusion’ certificate -
process) Sri Lanka [2013] UKUT 571 and (IAC) AN (Afghanistan) v Secretary of State for the Home
Department [2015] EWCA 684 (Civ) while in the Netherlands see AWB 14/11801, 14 July 2015 and
AbRS 17 May 2016, nr. 201506251/1/V1.
47
Ibid., para 94; the details of each factor are described in paras 94–99.
48
Ibid., para 95. While the factor related to the part of the organisation the person is most concerned
appears to be new as well, in actuality, this ‘drilling down’ approach had already been used by the
Federal Court since 2006, see Rikhof (n 25) at 227–8.
49
Ovcharuk v MIMA [1998] FCA 1314.
50
Zrig v Canada 2003 FCA 178; Lai v Canada 2005 FCA 125; Jayasekara v Canada 2008 FCA 404;
and Canada v Li 2010 FCA 75.
51
S v RSAA [1998] 2 NZLR 291.
52
Kovacs v Canada 2005 FC 1473; Jayasekara v Canada 2008 FCA 404.
53
‘WAT’ and MIMIA [2002] AATA 1150 and YYMT and Anor and FRFJ and Anor [2010] AATA
447.

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fact pattern.54 Canadian courts have advised caution when using foreign convictions55 while
in the US it was said in one case that such a conviction should not be taken at face value.56 In
France, a tribunal refused to exclude a person who had been convicted in his country of origin
of aggressive behaviour during public discourse.57 The difference in opinion could very well
have been the result of the origin of the country where the conviction was imposed in that more
deference would be given to legal systems which operate an independent judiciary applying
rules, which are similar to the ones used in the country of refuge.
The concept of serious crime raises a number of issues. All countries have considered
serious common crimes, such as murder, torture, assault, rape, drug trafficking or arson,
to fall within the parameters of Article 1F(b), while some countries, such as Canada,58 the
Netherlands59 and the US,60 have specifically indicated that economic crimes such as embez-
zlement and large-scale theft are also serious crimes.
The reasoning used to arrive at the conclusion that a crime should be considered serious has
been different in the various countries. Some countries (Australia,61 Germany62 and France63)
state in general that Article 1F(b) applies to capital or grave crimes without utilising a more
detailed methodology, while other countries examine the maximum penalty which could
be imposed for a particular crime in the criminal legislation (older Canadian64 and French
cases65)66 while sometimes adding that this legislation needs to be reflective of international
criminality in that particular area (the Netherlands with respect to cases involving FGM, rape
and drug trafficking,67 as well as in Germany68) or what penalty would likely be imposed if
a person would be tried criminally (in New Zealand, where a tribunal came to the conclusion
that this sentence should be at a minimum between 18 months and two years and in the UK

54
YYMT and Anor and FRFJ and Anor [2010] AATA 447, para 120 in Australia; CCE No. 163.448,
3 March 3, 2016 in Belgium; Awb, 12/39765, 4 February 2014, AbRS, 201403749/1/V1, 8 December
2014, Awb, 12/22706, 27 January 2015 and Awb 13/16907, 24 April 2016 in the Netherlands although
for an opposite finding, see Awb 15/3802, 16 February 2016; AH (Algeria) v the SSHD [2012] EWCA
Civ 395, para 16 in the UK.
55
Biro v Canada 2007 FC 776; Arevalo Pineda v Canada 2010 FC 454 and Ching v Canada 2015
FC 860.
56
Abramov v Ashcroft, Docket No. 03-71856 (9th Circuit, 2004).
57
F. Tiberghien, La Protection des Refugies en France (1988), 469.
58
Xie v Canada 2004 FCA 250; Lai v Canada 2005 FCA 125.
59
AbRS 30 December 2009, nr. 200902983/1.
60
Mahini v INS, 779 F.2d 1419 (9th Circuit, 1986); Arauz v Rivkind, 834 F.2d 979 (11th Circuit,
1987); Kenyeres v Ashcroft, 538 U.S. 1301 (2003).
61
MIMA v Singh [2002] HCA 7; SZJRI v MIC [2008] FCA 1090; Ballibay and MIMA [2000] AATA
1147; SRLLL and MIMIA [2002] AATA 795.
62
BverwG 10 C 7.09, 10 February 2010, para 47; BverwG 10 C 24.08, 24 November 2009, para 41
and BverwG 10 C 48.07, 14 October 2008, para 19.
63
Most recently see CNDA, 27 October 2014, 14016605, M. E. and 3 November 2015, 10013998,
M. B.
64
Chan v Canada, A-294-99.
65
Tiberghien (n 57) 103–4 and 468–9.
66
Which is also the approach at the international level in the International Convention against
Transnational Organized Crime; it sets the penalty level for serious crimes as four years in art 2(b).
67
AbRS, 201208875/1/V1, 10 February 2014, Awb 13/12113, 17 September 2013 and AbRS,
201202758/1, 27 September 2013.
68
BverwG 10 C 7.09, 10 February 2010, para 47; BverwG 10 C 24.08, 24 November 2009, para 41
and BverwG 10 C 48.07, 14 October 2008, para 19.

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where a two-year minimum is set out in the legislation69). A third approach has been a method
whereby a number of factors are used to determine whether a crime is serious, namely factors
such as a penalty indicated in the criminal legislation, the actual possible sentence as well
as possible mitigating and aggravating circumstances, which could affect the presumption
regarding penalties. This has been used in Australia,70 Canada,71 the US72 and in some respects
in France.73 As there is an international instrument available,74 which provides some guidance
in this matter and can result in a consistent approach among countries of refuge, it would be
possible to take this international development into account by having a minimum of four
years set out as the benchmark for serious crimes.
The notion of expiation by reasons of serving a sentence or receiving a pardon or amnesty
have been rejected out of hand in Canada,75 Germany76 and the UK,77 which is also supported
by the Court of Justice of the European Union,78 while France79 and Belgium80 have been more
equivocal about this issue.
With respect to serious crimes and international law aspects, all countries mentioned above
have used Article 1F(b) to exclude persons who has been involved in terrorist activities. It
is expected that with the most recent developments in international law there will be less of
an ad hoc approach to activities with have been deemed terrorist, as was the case in the past.
There appears to be an emerging trend at several international levels setting out two essential
elements for a definition of terrorism, namely the commission of a very serious crime, which
affects the integrity of persons or property, including infrastructure while these crimes are
carried out in order to intimidate a population or force a government or international organisa-
tion to do something or refrain from doing something.81
Often the use of Article 1F(b) to terrorism activities brought into play the issue of political
crimes. All countries examined have applied the so-called predominance and proportionality

69
RSAA Appeal No. 76157, 26 June 2008, paras 196–200 for New Zealand while in the UK Polat, R
v SSHD [2011] EWHC 3445 (Admin), para 73; R (ABC a minor) v Home Secretary [2011] EWHC 2937
(Admin), para 35.
70
FTZK v MIBP [2014] HCA 26, para 78.
71
Jayasekara v Canada 2008 FCA 404.
72
Mahini v INS, 779 F.2d 1419 (9th Circuit, 1986).
73
CRR, 26 May 2005, 459358, V; CRR, 28 January 2005, 448119, C.; CRR, 4 April 2005, 487639,
N.; CNDA, 15 January 2009, 594649, R.
74
United Nations Convention against Transnational Organized Crime.
75
Febles v Canada 2014 SCC 68.
76
BverwG 10 C 48.07, 14 October 2008, paragraphs 27–30.
77
AH (Algeria) v SSHD [2015] EWCA Civ 1003; see also in Ireland, H.O. v Refugee Appeals
Tribunal and Anor, [2014] IEHC 494 and in Greece, Council of State, Application No. 1661/2012, 8 May
2012.
78
Bundesrepublik Deutschland v B and D, C-57/09 and C-101/09, CJEU, 9 November 2010, paras
100–105.
79
Compare CRR, 14 November 1997, 290466, Can; CRR, 22 January 1999, 322914, Tat; CRR, 26
October 2005, 399706, K.; and CRR, 21 July 2006, 509322, Toskic versus CE, Ofpra c/ M.A., 320910,
4 May 2011.
80
Compare CCE No. 16.779, 30 September 2008 with CCE No. 27.479, 18 May 2009, CCE No.
63.606, 21 June 2011, CCE No. 69.656, 8 November 2011 and CCE No. 118.284, 31 January 2014.
81
See especially the Special Tribunal for Lebanon, Interlocutory Decision on the Applicable
Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-II-OI/I/AC/RI76bis,
Appeals Chamber, 16 February 2011.

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test, which was developed in international extradition law. This test entails an assessment of
the political motivation and if the reason for engaging in common crimes is predominant, in
the sense of there being a direct relationship between the offence and political goal sought,
one part of the test is fulfilled. Connected to this part of the test is the context, in which the
crimes are carried out in that the more oppressive a state apparatus is or if the crime is carried
out during a civil war, the more likely this leg of the test can be accepted. Conversely, resort
to violent means in a democratic society with a fully independent court system will rarely be
considered a political offence, as there are other means in such a society to accomplish politi-
cal objectives. Furthermore, the requirement of proportionality must be fulfilled, which means
that the violence of the criminal act or the damage caused by it needs to be weighed against
the purpose to be achieved. If the result of the crimes causes unpredictable or large amount of
damage or victims, which have no connection to the object of the attack, this part of the test
has not been met.82
While in most cases, with the exception of France, Article 1F(b) was applied to persons
personally involved in serious crimes, there has been little hesitation by the judiciary to extend
the reach of this clause also to persons who carried out such activities in an indirect fashion.
The contours of complicity were specifically addressed in Australia,83 Belgium,84 Canada,85
Germany,86 the Netherlands,87 New Zealand,88 the UK89 and the US,90 while in some instances
stating that the same principles, which apply to Article 1F(a), should be used for Article 1F(b)
as well or, as in Belgium and the Netherlands, making reference to Article 25 of the ICC
Statute (which is the most contemporary reflection of the principles of extended liability in
ICL and used regularly in 1F(a) cases). However, at times the caveat was added that an organ-
isation, which has been placed on a prohibited list does not absolve the government from the
obligation to show that a member supported such an organisation, implying that membership
alone is not sufficient to attract Article 1F(b) liability.91
This interplay between Articles 1F(a) and 1F(b) regarding extended liability poses a con-
ceptual dilemma. On one hand the same word is used in both provisions but on the other hand
exclusion 1F(a) has a specific reference to international instruments, which means ICL. Added
to this dilemma is the fact, as seen above, that in other areas of exclusion 1F(b) a number of
countries apply domestic criminal law, which invariably have a concept of indirect liability,
often also expressed by the term ‘committed’. In general terms there does not seem to have
been much reluctance to equating the complicity principles developed by the national courts

82
G. Gilbert, Responding to International Crime, 2nd revised edn (2006), 205–28.
83
MIMA v Singh [2002] HCA 7.
84
CPPR No. 99-0164/W5686, 17 September 1999; CCE No. 118.284, 31 January 2014.
85
Gregorio v Canada IMM-1447-98; Zrig v Canada 2003 FCA 178; Jaouadi v Canada 2005 FC
1256; and Rudyak v Canada 2006 FC 1141.
86
BverwG 10 C 48.07, 14 October 2008, para 21; BverwG 1 C 19.09, 26 October 2010, para 23.
87
Awb 05/54643, 15 September 2006.
88
RSAA Appeal No. 74273, 10 May 2006; RSAA Appeal No. 71335, 12 September 2000; RSAA
Appeal No. 71398, 10 February 2000; RSAA Appeal No. 70001, 30 April 1997.
89
Polat, R v SSHD [2011] EWHC 3445 (Admin).
90
Singh-Kaur v Ashcroft, 385 F.3d 293 (3d Circuit, 2004); Perinpanathan v INS, 310 F.3d 594 (8th
Circuit, 2002); Khan v Holder, 584 F.3d 773 (9th Circuit, 2009); Raghunathan v Holder, Docket No.
08-2475, 08-3147 (2d Circuit, 2010); Haile v Holder, 658 F.3d 1122 (9th Circuit, 26 September 2011).
91
BverwG 10 C 48.07, 14 October 2008, paras 17–18; Bundesrepublik Deutschland v B and D,
C-57/09 and C-101/09, CJEU, 9 November 2010, paras 87–99.

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 The exclusion clauses in refugee law 399

and tribunals for exclusion 1F(a) with the ones applicable to 1F(b). However, this was usually
applied to one form of extended liability, aiding and abetting, and in virtually all cases before
the decisions at the highest level in the UK and New Zealand in 2010 and Canada in 2013
where a closer connection with ICL was sought for 1F(a).

EXCLUSION 1F(C)

Of the nine countries mentioned earlier, New Zealand and the US have not used Article 1F(c)
in any refugee determinations while the Netherlands only began to do so in 2006. All coun-
tries, which applied this exclusion clause, have utilised it sparingly (except France) and pri-
marily in relation two types of crimes, namely human rights violations and terrorist activities.
While the Dutch92 and UK judiciary93 mentioned the use of Article 1F(c) for human rights
abuses in passing, Australia,94 Belgium95 (specifically mentioning genocide),96 France97 and
Germany98 have used this provision in cases before the tribunals and the courts. In Canada,
the Supreme Court provided a detailed reasoning setting out in which circumstances Article
1F(c) could apply.99
The connection between terrorism and Article 1F(c) was made in resolution 1373 of the
Security Council of the United Nations in 2001 and this instrument provided the major
impetus to bring terrorism activities under Article 1F(c) in addition to using Article 1F(b) for
this purpose. All the jurisprudence in the seven countries which use this provision to exclude
persons for terrorism activities refer to this resolution, while in Belgium and Germany, the
judiciary also mentions European instruments making the same connection, such as the
Qualification Directive.
The Supreme Court of Canada mentioned torture, hostage taking, apartheid and forced
disappearance as 1F(c) activities. In the UK, attacks on UN personnel were found to be also
included within the parameters of this exclusion ground.100 On the other hand, judges have

92
Rb, The Hague, Awb 04/36169, 30 June 2006; Rb, The Hague, Awb 03/46645, 21 February 2006.
93
KJ (Sri Lanka) Appellant and SSHD [2009] EWCA Civ 292; SS v SSHD (SC/56/2009) (SIAC); KK
(Art 1F(c), Turkey) [2004] UKIAT 00101; AA (Exclusion clause) Palestine [2005] UKIAT 00104; BE
(Disobedience to orders, landmines) Iran [2007] UKAIT 00035; SS (Libya) v DDHD [2011] Civ 1547.
94
N96/12101 [1996] RRTA 3349; SRLLL and MIMA [2002] AATA 795.
95
CPRR No. 03-3331/W10302, 5 December 2005; CCE No. 18.307, 3 November 2008; CPRR No.
02-2607/F2192, 19 October 2005. CCE No. 27.479, 18 May 2009; CCE No. 64 356, 1 July 2011.
96
CE No. 39.015 (Bennai c. Etat Belge), 17 March 1992; CPPR No. 95/1917/F390, 28 March 1995.
97
CE, 25 March 1998, 170172, Mahboub; CRR, 21 February 1996, 293625, Singh; CRR, 5 June
2000, 338011, Dembe Nyobanga; CRR, 2 November 2000, 336285, Matumba; CRR, 23 June 2003,
418091, Ndebo; CRR and CRR, 21 November 2003, 432770, Voungbo Ndebo; CRR, 18 December
2006, 540733, Mme Soaline; CRR, 23 May 2007, 577110, A; CNDA, 3 December 2008, 629222,
B.; CNDA, 13 February 2009, 629208, A.; CNDA, 13 February 2009, 629207, C.; CNDA, 7 July
2009, 643451/09002255, D.; CNDA, 30 November 2011, 11005411, M. S.; CNDA, 17 October
2011, 10005838, M. A.; CNDA, 21 April 2011, 10014066, M. R. alias H.; CNDA, 6 September 2011,
10005808, M. E.
98
BverwG 10 C 48.07, 14 October 2008; BverwG 10 C 46.07, 25 November 2008; BverwG 10 C
2.10, 31 March 2011; BverwG 10 C 26.12, 19 November 2013.
99
Pushpanathan v Canada [1998] 1 SCR 982.
100
Al-Sirri v SSHD and DD v SSHD [2012] UKSC 54; see also in Ireland, B. v Refugee Appeals
Tribunal [2011] IEHC 412.

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rebuffed the attempts to broaden the range of crimes by their governments, namely for drug
trafficking in Canada101 and for violations of UN sanctions in the Netherlands.102
Although the wording in Article 1F(c) with respect to responsibility differs from Article 1F(a)
and (b) in that it refers to ‘guilty’ rather than ‘committed’, this has had no discernable impact
on the application of this clause as all countries have applied it to persons who had indirect
involvement. This is made explicitly clear in Canada,103 France,104 Germany105 and the UK.106
Article 1F(c) was intended by the drafters of the Refugee Convention to be a residual clause
in relation to the other two exclusion clauses. While such a role could have been usefully
fulfilled in the past, it would appear that with the strong development of ICL in the last few
decades with its effect on Article 1F(a), fewer activities identified in the past to be exclusively
fall within Article 1F(c) still maintain this status. For instance, of the four specific activities,
apart from terrorism, mentioned by the Canadian Supreme Court, torture, apartheid, forced
disappearance and hostage taking, three are now included in the ICC Statute as crimes against
humanity while the fourth one, hostage taking, is a war crime in the same instrument and
would likely also fall under the crime against humanity of inhumane acts.
Similarly, the overarching test for 1F(c), namely, human rights violations carried out in
a non-war crimes context, as set out in the same judgment while also underlying most of the
body of jurisprudence in France can now been seen as crimes against humanity since a connec-
tion to an armed conflict is no longer a requirement in ICL. The same can be said for the UK
Supreme Court decision with respect to attacks against UN personnel since such activities are
included in the ICC Statute as war crimes applicable in non-international armed conflicts,107 as
well as in the Convention on the Safety of United Nations and Associated Personnel.108
However, Article 1F(c) still can be useful. For instance, if a serious crime was committed
in the territory of the country of refuge, Article 1F(c) could be utilised instead of Article 1F(b)
while with respect to the same provision, governments could see an advantage in using Article
1F(c) over Article 1F(b), as the political exception has no role for terrorist activities when
using the former. Even though the political exception has been severely circumscribed for spe-
cific terrorist activities and therefore is outside the scope of Article 1F(b), there is presently no
general political exception prohibition for terrorism. It is possible that the popularity of Article
1F(c) for terrorist activities since 2001 is due to this factor, especially in Belgium and the UK.

101
Pushpanathan v Canada [1998] 1 S.C.R. 982.
102
Rb, The Hague, Awb 03/46645, 21 February 2006.
103
Pushpanathan v Canada [1998] 1 S.C.R. 982.
104
CRR, 7 October 2006, 585731, Tebourski; CNDA, 27 June 2008, 611731, M.; CNDA, 30
November 2011, 11005411, M. S.; CNDA, 17 October 2011, 10005838, M.A.; CNDA, 21 April 2011,
10014066, M. R. alias H.
105
BverwG 10 C 26.12, 19 November 2013.
106
Al-Sirri v SSHD and DD v SSHD [2012] UKSC 54.
107
Art 8.2(e)(ii).
108
The Convention was adopted by resolution 49/59 of the General Assembly dated 9 December
1994.

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 The exclusion clauses in refugee law 401

CONCLUSION

With respect to 1F(a), the interaction between exclusion law and ICL has followed a different
course in the area of crimes compared to that of extended liability and it is unlikely that this
will change in the future.
As indicated above, the national exclusion decision makers have followed ICL quite closely
when setting out the overarching elements for war crimes and crimes against humanity. This
connection was originally based on the language of the Statutes of the two international tri-
bunals and the ICC followed by a more sophisticated reliance on the jurisprudence of these
institutions, especially that of the ICTY.
The use of these international instruments and jurisprudence presents an alternative picture
in terms of the underlying crimes, where originally exclusion was in most cases based on alle-
gations of murder or torture. As the national decision makers became more familiar with ICL,
they started to pay attention to other international crimes as well and were quite willing to rely
on international precedents. However, where such international jurisprudence was not readily
available, they were equally willing to develop their own parameters for these crimes. It can be
expected that these tribunals and decision makers will now utilise less well known underlying
crimes as their familiarity with and confidence in ICL has grown.
The area of extended liability has had yet another approach. Forms of liability were initially
based on a combination of post-Second World War precedents, domestic criminal law, as well
as foreign refugee jurisprudence, which then developed into a sui generis approach, based in
most countries on the unique personal and knowing participation test. Only in the last few years
has ICL become a source of inspiration to give the notion of accountability an international
flavour as exhibited by judgments at the highest level in the UK, New Zealand and Canada.
Relying on international jurisprudence, the courts in the UK and Canada developed the new
test of voluntary, personal and significant contribution, accompanied by a factor approach. As
lower level decision makers in these countries have started using either the overarching test or
the factor approach, this brief foray into international criminal law will likely come to an end
and they will utilise this new sui generis approach without delving further into international
jurisprudence in this area.109
All the notions, which form elements of 1F(b), such as what is a crime, what is a serious
crime, what law should apply for the determination of what is a crime, the meaning of outside
the country, the concept of political crime and the issue of expiation all have been and are still
in a considerable amount of flux at the international level with only the parameters of political
crimes having been resolved in a consistent and satisfactory manner.
These are the issues which could still use some guidance from the highest national courts or
even international institutions in order to avoid too much fragmentation of this important area
of refugee law in the future.110

109
There are already tribunal and court decisions along those lines in the UK (for instance AA (Art
1F(a) – complicity – Arts 7 and 25 ICC Statute) Iran [2011] UKUT 00339(IAC) and Polat, R v SSDH
[2011] EWHC 3445 (Admin) albeit the latter in the 1F(c) context) and in Canada (for instance Moya v
Canada 2014 FC 996, Concepcion v Canada 2016 FC 544 and Parra v Canada 2016 FC 364) since the
Supreme Court judgments in those two countries.
110
One example re expiation can be found in AH (Algeria) v SSHD [2015] EWCA Civ 1003 referring
to the Supreme Court of Canada Febles decision.

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402 Research handbook on international refugee law

The issue with 1F(c) is not so much the fact there has been disagreement among the various
judicial decision makers, as all agree that acts of terrorism and human rights violations should
fall within its description, as this is universally acknowledged (as to some extent is the fact the
attacks against peacekeepers can be part of 1F(c)). The more problematic question is whether
there is an independent meaning of 1F(c) as all forms of criminality used under this heading
can also fall easily within the parameters of 1F(a) and 1F(c).

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26. The removal of undesirable asylum seekers
Joris van Wijk and Maarten Bolhuis

INTRODUCTION

In cases where a refugee status is denied or revoked, host states generally require asylum
seekers to leave the country. The removal of failed asylum seekers has over the last decades
been a major political issue in Europe, North America and Australia. The political consterna-
tion is even stronger where a host country fails to remove applicants whose status is denied or
revoked because of their (alleged) past or possible future involvement in (serious) crimes or
because they are considered to pose a current or future security concern. This chapter explores
and assesses the various policy options that states have to remove undesirable asylum seekers.
It subsequently discusses voluntary return, forced return and relocation. It concludes by dis-
cussing situations in which none of these options exist and the undesirable asylum seeker is
de facto ‘unreturnable’. In those instances host countries may either promote the prosecution
of these individuals or provide ad hoc solutions, for example in the form of temporary leave
to stay. In the conclusion we argue that there is a need to come to a harmonized approach with
regard to treating undesirable and unremovable asylum seekers and provide some directions
for future policy solutions.
Ideas and information presented in this chapter are based on some of the authors’ earlier
publications1 and/or have been obtained during the research project ‘Undesirable and
Unreturnable’, jointly undertaken by the Refugee Law Initiative (RLI) of the University of
London and VU University’s Center for International Criminal Justice (CICJ).2 Although the
chapter aims to provide a broad overview of issues and dilemmas related to the removal of
undesirable asylum seekers, illustrations in this text relate in particular to the context in the
Netherlands.

1
In particular: M.P. Bolhuis, H. Battjes and J. van Wijk (2017), Undesirable but unreturnable
migrants in the Netherlands, Refugee Survey Quarterly 36(1) 61–84; J. van Wijk (2008), Reaching out
to the Unknown. Native counselling and the decision-making process of irregular migrants and rejected
asylum seekers on voluntary return, available at: http://​www​.iom​-nederland​.nl/​images/​Rapporten/​IOM​
%20Rapport​%20Reaching​%20out​%20tot​%20the​%20unknowndefinitef​.pd; and J. van Wijk (2016), To
return or not to return, that’s the question; Rejected asylum seekers and voluntary return, SSRN working
paper, 16 August 2016. Available at: http://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​2824480 (both
sites last visited 5 October 2016). In some instances, fragments have been literally copied from earlier
publications referred to.
2
More information on the project ‘Undesirable and Unreturnable’ can be found on: https://​cicj​.org/​
events/​undesirable​-and​-unreturnable/​(last visited 5 October 2016).

403
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404 Research handbook on international refugee law

UNDESIRABLE ASYLUM SEEKERS

In the context of this chapter, undesirable asylum seekers are defined as asylum seekers who
in principle are – or have been – considered to be in need of international protection, but had
their refugee status denied or revoked because they (1) are believed to have committed crimes
before arriving in the host state under Article 1F Refugee Convention, (2) have committed
crimes while in the country of asylum, or (3) are considered to pose a current or future security
concern to the country of asylum. All undesirable asylum seekers have in common that they
migrated to another country, requested protection and have been deemed unwelcome because
of their (alleged) past or possible future involvement in (serious) crimes. Their link with crime
and/or security issues makes them more ‘unwanted’ compared to other irregular migrants.
Apart from these shared characteristics, the group of undesirable asylum seekers is, however,
very heterogeneous. They may be young or old, male or female, (in)famous or not publicly
known. Some have been deemed undesirable within weeks of their arrival, while others have
been living in the host state as accepted refugees for years before becoming undesirable. Some
come from countries that are devastated by war or ruled by authoritarian regimes up to this
moment, others from countries that have over time become safe and democratic. Moreover,
from the point of view of public policy some undesirable individuals are arguably ‘more unde-
sirable’ than others. Some are deemed ‘undeserving’ of refugee protection because of alleged
war crimes that may have occurred years ago in far-away countries. The contextual elements
in which the alleged crimes were committed make it very unlikely that they continue to pose
an acute security threat to the host country. Others may be convicted terrorists who continue
to pose a concrete threat to the host state’s public order or public security. In terms of political
sensitivity, there is a continuum whereby for example alleged or convicted perpetrators of rela-
tively non-serious ‘conventional’ crimes committed in the host country (for example economic
crimes) are relatively less undesirable, alleged or convicted perpetrators of relatively serious
‘international crimes’ committed abroad (war crimes, crimes against humanity, genocide) rel-
atively more undesirable and for example alleged or convicted perpetrators of serious ‘conven-
tional’ crimes committed in the host country and ‘security cases’ (for example rape, murder,
terrorism) the most undesirable.3 For this reason one would generally expect host states to be
prepared to put more effort in removing the ‘most undesirable’ category of individuals.

VOLUNTARY RETURN

From the perspective of the host state, the most ideal scenario with regard to the removal of
undesirable asylum seekers is that they return voluntarily4 to their country of origin. It is the

3
Undesirable and Unreturnable; Policy challenges around excluded asylum seekers and other
migrants suspected of serious criminality who cannot be removed, RLI/CICJ, September 2016, p.4.
Available at: https://​cicj​.org/​wp​-content/​uploads/​2016/​09/​Undesirable​-and​-Unreturnable​-Full​-report​.pdf
(last visited 5 October 2016).
4
International Organization for Migration (IOM) states that a voluntary decision to return consists of
two elements (IOM 2006: 12). First, there should be freedom of choice, which is defined by ‘the absence
of any psychological, physical or material pressure’. Secondly, the decision has to be a well-informed
one. This means that ‘the migrant should have sufficient and correct information available on which to
base his decision to return’ (IOM, 2006, ‘Coping with return; an overview of: methodology development

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 The removal of undesirable asylum seekers 405

more humane and cost-effective alternative to forced repatriation or resettlement and a means
of strengthening the integrity of regular asylum and immigration programs. With regard to
failed asylum seekers, the European Union confirmed this in 2005 by stating that ‘voluntary
return is an important component of a balanced, effective and sustainable approach to the
return and, where applicable, reintegration of unsuccessful asylum seekers’.5 Governments
often finance programmes that facilitate and encourage voluntary return, for example by
providing financial support, transport, assistance in obtaining travel documents and promoting
reintegration.6
Various studies, however, indicate that decisions on voluntary return are complex and made
on the basis of multiple factors that are hard to extricate, even for the person making the deci-
sion.7 Taking the widely used push-pull-paradigm as a theoretical point of departure, one of the
authors has previously presented a ‘push-pull-stay-deter’ model to illustrate the complexities
surrounding voluntary return (see Figure 26.1).8 The model was developed for failed asylum
seekers and irregular migrants in general, but is also applicable to undesirable asylum seekers
specifically.
In this model push-factors are those factors that make undesirable asylum seekers want to leave
the host country; pull-factors make them want to return to their country of origin; ‘stay’-factors
make them want to stay in the host country; while ‘deter’-factors withhold them from return-
ing. These factors can be distinguished on different levels. Factors that (may) shape the return
process on a micro level are those conditions within the private domain of the migrant. These
are for example related to the migrant’s personal, economic, psychological and physical
wellbeing. Factors on a meso level focus on the interplay between the individual migrant and
his or her social network (partner, children, family members and friends). Factors on a macro
level relate for example to existing (supra)national policies and/or political, economic or
security issues in either the host country or the country of origin. Since voluntary return will
not take place unless a migrant chooses to return, the model strongly values the perspective of
the migrant and the perceptions he or she may have. Typically, migrants are hovered between

and exchange of best practices on voluntary return assistance in the enlarged European Union with
particular emphasis on vulnerable asylum seekers’, The Hague: IOM the Netherlands). To what extent
the term ‘voluntarily return’ corresponds with reality has over the years been cause of much debate. How
‘voluntary’, it is argued, is voluntary return if the other option is to live in illegality or to be forcibly
repatriated? Blitz, Marzano and Sales go as far as stating that ‘the context in which voluntary return
programmes take place seriously compromises their voluntary nature’. They think it is more appropriate
to talk of a new category of ‘non-voluntary’ return. See B.K. Blitz, L. Marzano and R. Sales (2005)
‘Non-voluntary return? The politics of return to Afghanistan’, Political Studies, 53(1) 183.
5
Council of the European Union (2005), 2683rd Council Meeting Luxembourg, Justice and Home
Affairs. Brussels: Council of the European Union.
6
See in this respect, e.g., ‘Assisted voluntary return and reintegration; at a glance 2015’, IOM 2015,
available at: https://​www​.iom​.int/​sites/​default/​files/​our​_work/​DMM/​AVRR/​AVRR​-at​-a​-glance​-2015​
.pdf (last visited 5 October 2016).
7
R. Black, K. Koser and K. Munk (2004) ‘Understanding Voluntary Return’, Sussex Centre for
Migration Research, Home Office Online Report 50/04.
8
J. van Wijk (2008), ‘Reaching out to the Unknown; Native counselling and the decision
making process of irregular migrants and rejected asylum seekers on voluntary return’, available at:
http://​www​.iom​-nederland​.nl/​imag​es/​Rapporten/​IOM​%20Rapport​%20Reaching​%20out​%20tot​%20the​
%20unknowndefinitef​.pdf and J. van Wijk (2016), ‘To return or not to return, that’s the question;
Rejected asylum seekers and voluntary return’, SSRN working paper, 16 August 2016. Available at:
http://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​2824480 (both sites last visited 5 October 2016).

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406 Research handbook on international refugee law

Figure 26.1 (F)actors affecting voluntary return of undesirable asylum seekers

a variety of push-, pull-, stay- and deter-factors that influence their decision on return. In both
host countries and countries of origin there are actors that – directly or indirectly, purposely or
not – manipulate or influence a migrant’s decision-making process on voluntary return. These
lobbyists may have different goals and may either promote or discourage return. These actors
could be defined as ‘lobbyists’. With projects, incentives or statements, lobbyists can steer
the migrant’s decision-making process and/or ‘colour’ the atmosphere within a migrant com-
munity on the topic of return. Lobbyists can either promote or discourage voluntary return.
They can (try to) affect the decision-making process of the individual migrant and his social
network, as well as that of policymakers. The model indicates the great variety of factors that
undesirable asylum seekers may be taking into account when they are confronted with having
to decide whether to return or not. The only thing they may have in common is the fact that
their status has been denied or revoked; apart from that their personal situation, the relation-
ship with their friends and family and/or the situation in the host country and/or country of
origin may differ considerably.

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 The removal of undesirable asylum seekers 407

In particular when they have been living in the host country for a considerable period of
time and have established a strong social network, failed asylum seekers and other irregular
migrants are generally not very keen to return voluntarily.9 Such stay-factors can be strong and
this is no different for asylum seekers who are deemed undesirable. Arguably, however, unde-
sirable asylum seekers experience a relatively stronger push to leave the country compared to
other irregular migrants. Depending on the host country’s policies on how to deal with unde-
sirable asylum seekers and the extent to which there is attention for – or a specific focus on this
group, they may be excluded from having access to any other types of residence permits, such
as family reunification or study permits. In some countries undesirable asylum seekers are also
excluded from benefitting from legalization or regularization processes. In the Netherlands,
for example, 1F-excluded individuals do not receive any form of (temporary) leave to remain,
nor are they entitled to social allowances, work or education of family reunification.10 In 2007,
when the Dutch government issued a general pardon for persons who had claimed asylum
before 1 April 2001, 1F-excluded individuals and other undesirable asylum seekers could not
benefit from this pardon.11 These individuals only have access to a minimal level of services,
such as legal aid and urgent primary healthcare. As a consequence, 1F-excluded individuals
who remain in the Netherlands are faced with serious economic, social and psychological chal-
lenges.12 In addition, compared to other failed asylum seekers or irregular migrants, undesir-
able asylum seekers can generally not count on much sympathy from the general population.
Lobbyists such as politicians or media may actively call and push for their deportation. In the
UK, for example, politics and media vehemently follow the whereabouts of ‘foreign national
offenders’ and push the authorities to deport them.13
While undesirable asylum seekers may experience a strong push to leave the host country
because of being excluded from services and rights, they may simultaneously experience little
of a ‘pull’ to return to their home country. As they in principle are – or have been – consid-
ered to be in need of international protection, they typically come from poor, unstable and/
or dangerous countries. It is very possible that they cannot be refouled on the basis of, inter
alia, Article 3 of the Convention Against Torture and, in the European context, Article 3 of
the European Convention on Human Rights (ECHR).14 When individuals are (still) protected
from refoulement they understandably do not feel much of an incentive – or ‘push’ – to leave
the host country either.
Although the number of undesirable asylum seekers who consider returning voluntarily is
likely to be limited, it is striking to note that governments also do not always actively promote

9
Ibid; van Wijk 2008.
10
See e.g. art 3.77 Vreemdelingencirculaire (Aliens Regulation). Please not that art 10(2)
Vreemdelingenwet (Aliens Act) allows for exceptions in certain specifically mentioned circumstances;
in general illegally present minors are allowed access to education, and emergency health care is being
issued.
11
Overweging 5.3.1, Besluit van de Staatssecretaris van Justitie van 12 juni 2007, nr. 2007/11,
houdende wijziging van de Vreemdelingencirculaire 2000, Staatscourant 13 juni 2007, nr. 111 / p. 12.
12
J. Reijven and J. Van Wijk (2014) ‘Caught in limbo: how alleged perpetrators of international
crimes who applied for asylum in the Netherlands are affected by a fundamental system error in interna-
tional law’, International Journal of Refugee Law 26(2) 1–24, 12.
13
Sarah Singer (2017) ‘Undesirable and Unreturnable’ in the United Kingdom. Refugee Survey
Quarterly, 36(1) 9–34.
14
See James Simeon Ch 12 this volume on refoulement.

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408 Research handbook on international refugee law

the voluntary return of those individuals who can return. The Dutch government, for example,
merely provides undesirable asylum seekers with a return flight. It bars all immigrants with an
entry ban for a period longer than five years (which for example includes undesirable asylum
seekers convicted for human trafficking, human smuggling or sexual offences or 1F-excluded
individuals) from receiving reintegration packages offered by the International Organization
for Migration (IOM).15 Paradoxically, the result of this policy is that it de facto decreases the
likelihood that the category of irregular migrants that is ‘most’ unwanted to return voluntarily.
Not all European countries take the same approach in this regard. IOM Norway, for example,
does provide reintegration packages of up to 20.000 NOK (2.200 Euros) to all types of undoc-
umented migrants who wish to return voluntarily to their country of origin. No reservations are
made in relation to individuals with travel bans or 1F exclusions.16
In conclusion, we argue that the number of undesirable asylum seekers who return volun-
tarily to their country of origin will generally be low. Although they may experience a strong
push to leave the host country, because of the situation in their country of origin, they often do
not have a strong incentive to return.

FORCED RETURN

As discussed above, human rights concerns may often impede forced return of undesirable
asylum seekers. Given the political sensitivity and/or security risks associated with the
protracted presence of undesirable aliens, host states may make additional efforts in trying
to deport those undesirable asylum seekers who are not protected from refoulement. The
Netherlands, for example, has designated a specialized unit within the Ministry of Security
and Justice’s Repatriation and Departure Service (DT&V), the VRIS, that is tasked with the
removal of foreign national offenders (FNOs).17 While the alien is serving his or her prison
sentence, the unit already directs extra attention and efforts to e.g., motivate the alien to
cooperate in the return process or to obtain travel documents from countries of origin. With
the introduction of new regulations in 2012 the Dutch government created an extra incentive
to promote what could be described as the ‘quasi-voluntary return’ of this group. FNOs who
fully cooperate with their removal and also actually leave the Netherlands can benefit from
a suspension of sentence.18 Similar to some other European countries,19 the Dutch government

15
IOM policy Return and Reintegration Regulation (HRT), Infosheet HRT Engels 2014-06-620.
HRT funding is financed by the Ministry of Foreign Affairs from the development aid budget. We could
not find any formal line of argumentation as to why the HRT allowance is not available for excluded
persons.
16
See http://​www​.iom​.no/​en/​varp/​fsr (last visited 5 October 2016).
17
H. de Vries, Uitzetting van criminele illegalen; procedures en ontwikkelingen, Tijdschrift voor de
Politie, jrg. 76, 3(14), 6–9.
18
Ibid. 7. Aliens with a sentence of three or more years can make use of it after having served at
least two-thirds of the sentence, in case of a sentence lower than three years at least half of the sentence
has to be served. Since the introduction of this policy on 1 April 2012 until 1 January 2014 about 520
undesirable aliens have made use of it.
19
Undesirable and Unreturnable; Policy challenges around excluded asylum seekers and other
migrants suspected of serious criminality who cannot be removed, RLI/CICJ, September 2016, p.4.
Available at: https://​cicj​.org/​wp​-content/​uploads/​2016/​09/​Undesirable​-and​-Unreturnable​-Full​-report​.pdf
(last visited 5 October 2016).

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 The removal of undesirable asylum seekers 409

also devotes extra attention to enforce the return of 1F-excluded individuals. DT&V actively
monitors 1F-excluded individuals with the aim to return them to their country of origin. All
excluded individuals, including those who cannot be refouled because of Article 3 ECHR
protection, are visited by DT&V case managers every six months.20 They are informed that
they are not allowed to stay in the Netherlands and asked about their plans to leave the country.
Also individuals of whom it has been well established that they cannot be expected to return
any time soon are paid a visit. When DT&V considers a country of origin safe enough to return
to and believes that there is a foreseeable chance of deporting the undesirable asylum seeker,
it may request the ‘aliens police’ to apprehend the undocumented immigrant, place him or her
in alien detention and start the removal process.21

RELOCATION IN A THIRD COUNTRY

In cases where undesirable individuals do not return voluntarily and cannot be forced to return,
host states have no other option but to consider alternative policy responses. Unreturnability
does however not equal unremovability, as these individuals may still be ‘relocationable’.
There are two ways in which undesirable and unreturnable asylum seekers can be relocated
to third countries. The first way concerns institutionally arranged modalities of relocation,
whereby governments actively facilitate the relocation. Apart from rogue states, few coun-
tries willingly accept convicted criminals, alleged war criminals or alleged terrorists. For
this reason institutionally arranged relocations generally involve a certain level of ‘wheeling
and dealing’. The most well-known institutionally arranged relocation scheme of unwanted
aliens concerns Guantanamo Bay inmates. The Obama administration has over the past years
managed to relocate a considerable number of unreturnable Guantanamo Bay inmates to
a variety of countries, including Estonia, Oman, Kazakhstan, Uruguay and Saudi Arabia.22 No
quid pro quo has become public, but even the tropical island of Bermuda has received four
Uighurs from Guantanamo Bay in 2009.23
Rather than making use of institutionally arranged relocation schemes, one can also iden-
tify what we would refer to as ‘self-arranged’ modalities of relocation. These modalities
could either concern formal or alternative schemes. An illustration of a formal self-arranged
relocation scheme would be if an undesirable asylum seeker personally requests another state
for a visa with the intention to apply for a residence permit in that country at a later stage.
This is far from easy. Even if the requested states are legally not obliged to deny undesirable

20
Procesprotocol K5 Vreemdelingen op wie artikel 1F Vluchtelingenverdrag van toepassing, DT&V,
30 August 2013, available at: https://​www​.dienstterugkeerenvertrek​.nl/​Kennisbank/​Procesprotocollen/​
(last visited 5 October 2016).
21
Since the implementation of the 2010 European Return Directive, aliens can be held in detention
for a maximum period of six months, which can be prolonged to eighteen months in special circum-
stances. Art 6 (sub 5 and 6)Vreemdelingenwet 2000.
22
For a complete overview, see New York Times, ‘Guantanamo Docket’, available at: http://​projects​
.nytimes​.com/​guantanamo/​transfer​-countries (last visited 21 April 2016).http://​mashable​.com/​2015/​01/​
15/​guantanamo​-bay​-detainees​-released/​
23
E. Eckholm, ‘Out of Guantanamo, Uighurs bask in Bermuda’, New York Times, 14 Jun. 2009,
available at: http://​www​.nytimes​.com/​2009/​06/​15/​world/​americas/​15uighur​.html​?​_r​=​0 (last visited 21
Apr. 2016).

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410 Research handbook on international refugee law

asylum seekers from other countries a visa or residence permit, the (habitual) lack of identity
documents, the Dublin Convention (in Europe) and limited financial means to purchase flight
tickets seriously hamper self-arranged relocation attempts. Illustrative in this regard are the
attempts by an unreturnable individual from Afghanistan who was excluded under 1F in
the Netherlands we interviewed. He made requests to Belgium, Denmark, Finland, Sweden,
Italy, Malta, Lithuania or Switzerland to host him. All countries answered in the negative and
referred to the Dublin Convention. He then, in vain, approached non-European countries such
as Canada, Australia, the United States, Turkey, and Mexico for a visa.24
When all formal options to be relocated fail, undesirable asylum seekers may consider
using alternative strategies. The case of Rafiq Naibzay, an Afghan national who was excluded
under 1F in the Netherlands, is such a person.25 He had used what is often referred to as the
‘Europe-route’.26 According to media reporting two of Naibzay’s children had obtained EU
citizenship in Belgium, where they lived and studied.27 On the basis of Article 10 of the Free
Movement of Citizens Directive (2004/38/EC), an EU citizen has the right to live in another
EU country for three months, as long as s/he does not ‘become an unreasonable burden on
the social assistance system of the host Member State during an initial period of residence’
and as long as s/he is not considered to pose a ‘genuine, present and sufficiently serious threat
affecting one of the fundamental interests of society’ in accordance with Article 27(2) of the
Directive. Family members of EU citizens are free to travel and stay in the same EU countries
as their kin, as long as their identity and a sustainable family relation are determined. If after
three months the family member meets the criteria posed by Article 7 of the Directive, he or
she can apply for family reunification. In the case of Rafiq Naibzay, the Belgian immigration
authorities apparently approved this application. For this reason he could obtain a temporary
residence permit for five years after which he and his children could apply for a permanent
residence permit.
Naibzay is not the only 1F-excluded individual who has taken advantage of the ‘Europe
route’.28 There may be different reasons why other states, like Belgium in this case, do not
deny residence permit requests to individuals who have been deemed undesirable in other
European countries. First, it is possible that they are simply not aware of the fact that and/or for
what reasons someone has been deemed undesirable. A recent study issued by the Norwegian
immigration authorities (UDI) for example concluded there is currently little to no information
exchange between European states on 1F exclusion.29 Few states alert 1F-excluded individuals
as a matter of standard practice in the Schengen Information System (SIS) and alerts as such do

24
Reijven and Van Wijk (n 12).
25
J. Reijven and J. van Wijk, ‘Probleem opgelost? Hoe van asiel uitgesloten vermeende oorlogsmis-
dadigers toch rechtmatig in de EU kunnen verblijven’, Asiel en Migrantenrecht, 7, 2014, 256–61.
26
Kamerstukken, 2013, ah-tk-20122013-1774.
27
‘Afghaan Naibzay krijgt verblijfsvergunning in België,’ Trouw, 22 Feb. 2013, available at:
http://​www​.trouw​.nl/​tr/​nl/​5009/​Archief/​article/​detail/​3398166/​2013/​02/​22/​Afghaan​-Naibzay​-krijgt​
-verblijfsvergunning​-in​-Belgie​.dhtml (last visited 21 April 2016).
28
See, e.g.: Raad van State, 27 March 2013 (ECLI:​NL:​RVS:​2013:​BZ8702) or Raad van State, 16
June 2015 (ECLI:​NL:​RVS:​2015:​2008).
29
M.P. Bolhuis and J. van Wijk, Study on the exchange of information between European countries
regarding persons excluded from refugee status in accordance with Article 1F Refugee Convention,
Amsterdam, UDI/VU University, 2015, available at: https://​cicj​.org/​wp​-content/​uploads/​2012/​11/​
Bolhuis​-Van​-Wijk​-2015​-Study​-on​-the​-exchange​-of​-information​-on​-1F​-exclusion​-between​-European​
-countries​.pdf (last visited 28 July 2016).

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 The removal of undesirable asylum seekers 411

not reveal that, let alone why, an individual was previously excluded. Secondly, it is possible
that other European countries actually are aware of the fact that someone has been excluded in
the Netherlands, but do not consider the individual to pose a ‘genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society’ in accordance with Article
27(2) of the Directive.30
The above demonstrates that undesirable and unreturnable asylum seekers, with some
creative strategies, may not be ‘unrelocationable’. The fact that these individuals still manage
to find ways to legally reside in Europe can be seen as problematic. Unwanted and possibly
dangerous individuals continue to live in Europe. At the same time, one could argue that the
Europe route may be regarded a pragmatic solution not only for the individuals concerned,
but also for the host country which is stuck with an undesirable but unreturnable asylum
seeker. From the perspective of the host state the Europe route offers a pragmatic solution to a
‘deadlocked’ situation: an (alleged) criminal, who is impossible to deport, has left the country,
without complex legal procedures and without any violation of international obligations.

UNDESIRABLE, UNRETURNABLE AND UNRELOCATIONABLE

When undesirable asylum seekers prove to be unreturnable and unrelocationable, host coun-
tries have different policy options to deal with them. 1F-excluded individuals, for example,
could possibly be criminally prosecuted on the basis of universal jurisdiction in the host
country, or by means of extradition or transfer to another country or by an international court
or tribunal. When asylum seekers are deemed undesirable because of a prior conviction in
the host country or for being considered a future security threat to the host country, prose-
cution is often not an option. In those situations, as well as in situations where prosecution
of 1F-excluded individuals fails, host countries may resort to ad hoc solutions in the form of
providing temporary leave until return is possible.

Prosecution

In principle, transfer to international tribunals or courts of 1F-excluded individuals is a first

possibility. In actual practice, however, these institutions only prosecute a limited number of
individuals, typically those perpetrators of international crimes considered to be the ‘most
responsible’ perpetrators or particularly notorious perpetrators, who have been directly
involved in the commission of crimes.31 As many 1F-excluded individuals are alleged to be
low-level perpetrators and/or to have been indirectly involved in international crimes,32 such

30
In this respect it is important to note that courts in the Netherlands and Belgium have asked the
European Court of Justice prejudicial questions on how to interpret article 27(2). European Court of
Justice, 15 February 2016, C‑601/15 PPU and ABRvS, 8 April 2016, 201507608/2/V3.
31
In this regard, see, e.g., the latest Strategic Plan by the Office of the Prosecutor of the International
Criminal Court, 6 July 2015, Available at: https://​www​.icc​-cpi​.int/​iccdocs/​otp/​070715​-OTP​_Strategic​
_Plan​_2016​-2018​.pdf (last visited 5 October 2016).
32
M.P. Bolhuis and J. van Wijk (2015), ‘Alleged war criminals in the Netherlands; excluded from
refugee protection, wanted by the prosecutor’, European Journal of Criminology 12(2): 151–68.

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412 Research handbook on international refugee law

transfers do not often take place.33 For similar reasons countries of origin or third countries
may not be interested in requesting extradition. Without (political) willingness to domestically
prosecute alleged perpetrators, a state is unlikely to request the extradition of excluded indi-
viduals. As we have argued before,34 countries that ‘produce’ relatively many 1F-excluded
individuals, such as Afghanistan, Iraq, Angola, Sierra Leone, the Democratic Republic of
Congo or Nigeria have so far not made much effort to prosecute alleged war criminals, let
alone to identify such individuals abroad and request their extradition.
Domestic prosecution on the basis of universal jurisdiction is challenging as well, as such
prosecutions are extremely resource-intensive and complex because of the nature of the
alleged crimes and the context in which the crimes occurred.35 Since 1994 only just over 50
1F-excluded individuals have been successfully domestically prosecuted worldwide.36
The Netherlands may serve as an illustration of how challenging prosecution of 1F-excluded
individuals is in actual practice. Over the years, the country has experimented with several
strategies to promote prosecution within or outside the Netherlands. For instance, all files of
1F-excluded individuals are as a matter of standard practice sent to a specialized domestic
‘war crimes prosecutor’ who can deploy a dedicated team of investigators to work on these
cases. Although a relatively large amount of time and energy is invested in the prosecution of
1F-excluded individuals, the fact that so far only four 1F-excluded individuals have irrevoca-
bly been convicted proves that this is very difficult in practice.37
For this reason, The Netherlands also tries to influence the circumstances in countries of
origin to enable prosecution there. Not so much by negotiating specific diplomatic assurances,
but rather by trying to create more favourable conditions for extradition in general. This
happened in particular with respect to Rwanda, where Article 3 ECHR and extradition law
requirements blocked extradition to Rwanda for many years. The Netherlands has invested
significant funds and energy in rebuilding Rwanda’s justice system. Although this may have
started out as a form of development cooperation, these investments have now been presented
as part of a policy specifically directed at facilitating extradition of 1F-excluded individuals
for the purpose of criminal prosecution.38 After many of the human rights concerns were taken
away, partially because of foreign investments in the justice system, extradition was accorded
by, inter alia, the European Court of Human Rights and different states started to extradite sus-
pects to Rwanda.39 At the moment, no Rwandan 1F-excluded individuals have been extradited,
although the extradition of two individuals was recently approved.40

33
Exceptions exist, however. The Netherlands for example transferred two 1F excluded Rwandans –
Simon Bikindi and Ephrem Setako – to the International Criminal Tribunal of Rwanda. See: ICTR-01-72
en ICTR-04-81, see: http://​www​.unictr​.org. (last visited 5 October 2016).
34
M.P. Bolhuis, L.P. Middelkoop and J. van Wijk (2014), ‘Refugee exclusion and extradition in the
Netherlands: Rwanda as precedent?’, Journal of International Criminal Justice 12(5): 1115–39.
35
Bolhuis and Wijk (n 32).
36
Refugee Law Initiative and Center for International Criminal Justice, ‘Undesirable and unre-
turnable? Policy challenges around excluded asylum seekers and other migrants suspected of serious
criminality who cannot be removed’, September 2016. Available at: https://​cicj​.org/​wp​-content/​uploads/​
2016/​09/​Undesirable​-and​-Unreturnable​-Full​-report​.pdf (last visited 5 October 2016).
37
Bolhuis and Wijk (n 32).
38
Bolhuis, Middelkoop and Wijk (n 34).
39
Ibid.
40
M. Haenen, ‘Nederland levert twee verdachten Rwandese genocide toch uit’, NRC.nl, 5 juli
2016, available at https://​www​.nrc​.nl/​nieuws/​2016/​07/​05/​nederland​-levert​-twee​-verdachten​-rwandese​
-genocide​-toch​-uit​-a1510907. (last visited 5 October 2016).

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 The removal of undesirable asylum seekers 413

Ad Hoc Measures

When return, relocation and prosecution are not possible, undesirable and unremovable
asylum seekers may end up in ‘legal limbo’, a situation that may persist for many years. There
are numreous differences in how countries deal with 1F-excluded individuals in limbo. In
some countries, such as Australia, these individuals can be detained, even indefinitely.41 In
other countries, such as the Netherlands and Belgium, the individuals become undocumented
migrants and are not provided with any temporary leave to remain. Some other countries do
provide some sort of temporary status, while Sweden and Germany, for instance, even provide
access to a permanent status under certain conditions. Table 26.142 provides an overview of
access to temporary or permanent residence permits for, and conditions imposed on, unremov-
able 1F-excluded indviduals in a selected number of developed countries.
With respect to those who have been deemed undesirable because of prior conviction or
those who are considered a future security threat temporary or permanent residence permits
are typically not within reach.

CONCLUSION

This chapter discussed the various policy options which states have to remove undesirable
asylum seekers. We argued that while voluntary return is the most ideal scenario in this regard
and although this group may experience a relatively stronger push to leave the country com-
pared to other irregular migrants, the number of individuals returning voluntarily is likely to
be limited. Undesirable asylum seekers typically come from poor, unstable and/or dangerous
countries and some may (still) be in need of international protection and cannot be refouled.
For this group forced return is often not an option as well. Because third countries are typically
not receptive towards undesirable asylum seekers, relocation to a third country is difficult.
Some undesirable asylum seekers have, however, found creative alternative strategies for
obtaining legal residence, as we have argued. When voluntary and forced return and reloca-
tion to a third country are not possible, host countries have different policy options to deal
with undesirable asylum seekers. 1F-excluded individuals, for example, could be criminally
prosecuted on the basis of universal jurisdiction in the host country, or by means of extradition
or transfer to another country or by an international court or tribunal. In situations where
prosecution is not an option or fails, host countries may resort to ad hoc solutions in the form
of providing temporary leave until return is possible. The many differences in how different

41
Satvinder S Juss (2017), ‘Detention and delusion in Australia’s Kafkaesque refugee law’, Refugee
Survey Quarterly 36(1) 146–67.
42
Table 26.1 was earlier published as an annex to the policy brief Undesirable and Unreturnable
migrants, available at: https://​cicj​.org/​wp​-content/​uploads/​2016/​09/​Undesirable​-and​-Unreturnable​-Full​
-report​.pdf (last visited 5 October 2016). Canada and the US have not been included. The overlapping
admissibility and exclusion schemes in Canada mean the situation is too complex to be adequately
reflected in this table. For a detailed analysis of the measures imposed in Canada, please see Bond’s
country report on Canada. The approach to excluded individuals in the US also makes it unsuitable for
inclusion. Although in the US there exist various bars to asylum on account of suspected involvement
with criminal and terrorist activity, Article 1F of the Refugee Convention is not applied in its traditional
sense and as a result the situation in the US is not suitable for comparison with other developed countries.

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414 Research handbook on international refugee law

Table 26.1 Access to temporary residence permits for, and conditions imposed on,
unremovable 1F-excluded in a selected number of developed countries

Country Temporary Duration Access to Restrictions w/r Monitoring Prospect of

residence employment place of residence permanent status
permit
Australia No - No Detention No No
Belgium No - No No No No
Denmark No - No Yes, housed in Yes, daily reporting No
designated asylum duty to police,
centre assessment of
possibilities of
return every 6
months
France No - No Yes, home custody, Yes, reporting duty No
designated place to police
of residence or
detention
Germany Yes Up to a few Yes, possibility Yes, designated Yes, assessment Yes, possibility to
months at a time to apply for work area of residence of possibilities apply for permanent
permit after 3 of return on residence after 18
months reapplication months
Netherlands No - No No Yes, assessment No, unless on
of possibilities of humanitarian
return, in principle ground or on the
every 6 months basis of ‘durability
and proportionality
test’
Norway Yes 7 months at Yes, under No Yes, assessment Yes, possibility to
a time conditions of possibilities apply for permanent
of return on residence after 10
reapplication years, but strict
conditions
Sweden Yes 12 months at Yes No Yes, assessment Yes, after
a time of possibilities several renewals,
of return on depending on
reapplication seriousness of
crime
UK Yes 6 months at Yes, under Yes, degree based Yes, assessment No
a time conditions, based on risk assessment of possibilities
on risk assessment of return on
reapplication

countries deal with undesirable asylum seekers who are also unremovable show that a coher-
ent policy response is currently lacking.
The lack of a coherent policy response suggests there is a need for guidance and resolution
at the international level. The European Commission in 2001 came to similar conclusions

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 The removal of undesirable asylum seekers 415

with regard to the situation of unremovable 1F-excluded individuals.43 Arguing that ‘there
are no international legal instruments, which regulate the status and rights of persons who are
excluded from any protection status but cannot be expelled because of legal obstacles’, the
Commission concluded:

The current situation of Member States having limited policy options for dealing adequately with
excludable but non-removable persons is a very unsatisfactory one. The issue is therefore urgently in
need of further examination, and eventual resolution at European level. (…) In addition to their [that
is, the 1F-excluded individuals, JVW and MB] possible criminal prosecution it may also be necessary
to harmonise the basic rights granted to this category of excludable but non-removable persons, and
to assess the different means for dealing with these persons if they pose a security risk.

This chapter demonstrates that 15 years later, harmonization of basic rights granted to
1F-excluded individuals has still not taken place. Building upon the conclusions of the
network meetings Undesirable and Unreturnable project that we mentioned in the introduction,
first steps to deal with the matter could be to implement measures that can limit the number
of (allegedly) criminal migrants ending up in legal limbo. In this regard one could think of
either (1) decreasing the number of persons deemed to be undesirables, or (2) increasing the
number of returns and/or removals. Decreasing the number of undesirables could for example
be done by narrowing categories of crimes that may lead to refusal or revocation of citizenship
to only truly serious crimes, by limiting the number of 1F exclusions and by investing more
in criminal prosecution. Increasing the number of returns and removals could for example be
done by investing in the rule of law in countries of origin, facilitating extradition (for example
by investing in criminal justice system in country of origin), providing undesirable asylum
seekers incentives to return voluntarily and by more actively encouraging third countries
to consider accepting undesirable asylum seekers, by improving administrative procedures
related to return or by more actively engaging in setting up diplomatic assurances/Memoranda
of Understanding with third states, including collective ones.
The above measures may limit the scale of the problem. But whatever measures are taken,
countries will continue to be faced with a limited number of individuals in a protracted
situation of limbo, possibly indefinitely. For this reason, there remains a need to formulate
long-term solutions to address the issue. During the network meetings various options were
discussed, of which the prospect of creating a ‘balancing test’ seemed most promising. For
example, where an undesirable asylum seeker has demonstrably not been in the position to
return for 10/15/20 years a judge could weigh the interests of the state to prolong the status
of undesirability (level of acute security threat, seriousness of the alleged crimes, mode of
complicity, level of responsibility) against the undesirable asylum seeker’s interests of having
the status of undesirability lifted (social, psychological, physical impact of protracted limbo
situation). Even if this is done, there will remain a number of individuals who continue to be
in limbo; government might channel their resources to try and extraterritorially prosecute or
extradite that (much lower) number.

43
European Commission Working Document: The relationship between safeguarding internal secu-
rity and complying with international protection obligations and instruments, COM (2001) 743 Final,
5 December 2001, available at: http://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​CELEX:​
52001DC0743​&​from​=​EN (last visited 5 October 2016).

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416 Research handbook on international refugee law

Without a coordinating body pushing for and overseeing the implementation of a harmo-
nized and coherent approach, it is not likely that this will take shape in the near future. So far,
UNHCR has considered the issue of unreturnable 1F-excluded asylum seekers to fall outside
its mandate. It has not published any guidance in this regard. The EU recently steered a brain-
storming with Member States experts on a harmonized approach in regularizing irregular
migrants – undesirable migrants included – who cannot be returned. Suggested criteria to take
into account ranged from the level of cooperation of the migrants, the length of factual stay and
integration efforts made by the migrant, to family links and the need to avoid rewarding irregu-
larity. Member States experts seemed, however, to unanimously reject this proposal. Arguably
they prefer retaining full discretionary powers in dealing with such matters, rather than being
subjected to a harmonized approach. The inactivity of the EU or UNHCR should however not
bar countries from independently developing structural solutions to this important issue.

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27. Reviewing review: the standard of review in
asylum decision-making
Rowena Moffatt

INTRODUCTION AND NOTE ON TERMINOLOGY

This chapter examines the standard of review in asylum decision-making by states. It argues
that the proper standard of review in decision-making on asylum is merits review and that
this standard should be articulated as a legal requirement embedded within supranational
norms governing asylum decision-making. The chapter first reviews international and certain
regional1 legal norms and surveys the scholarship on the question (section 1). The focus then
moves to an analysis and critique of the existing supranational standards (section 2).
Before turning to the legal framework, it is necessary as a preliminary to deal briefly with
some terminological points. In broad terms, the ‘standard of review’ as it is used in this chapter
refers to the degree of deference accorded by the reviewer to the decision under review. It
may constitute review of the facts or substantive merits of a decision (‘merits review’), and/
or review of its legal process (‘legality review’). Merits review differs from legality review
in that a reviewer examining the merits of a decision looks at the facts afresh to ask whether
or not the decision was right2 as a matter of substance (finding facts and then interpreting
and applying binding standards to these findings)3 rather than looking at the way the decision
has been made and asking whether the binding standards have been followed in making it
(legality review). Legality review is generally procedural in that the relevant question is not
the correctness or otherwise of the substance of the decision, but whether the law has been
properly applied in making it. Generally, the only point at which legality review may involve
itself in the merits of a decision is where it is alleged that the decision on the facts is so wrong
as to amount to a mistake of law (that is, it is perverse)4 or that it violates some higher norm,
such as fundamental rights standards. Whilst there is, therefore, some movement between the
two categories, as an ontological minimum ‘merits review’ may be said to include: de novo

1
Restrictions on space limit the review to European regional instruments. For a review of norms
applicable in the Americas and Africa, see further, e.g., David Cantor, ‘Reframing Relationships:
Revisiting the Procedural Standards for Refugee Status Determination in Light of Recent Human Rights
Treaty Body Jurisprudence’ (2015) 34 Refugee Survey Quarterly 79.
2
This includes both whether a decision was ‘correct’ in the narrow sense of there being one right
answer, and ‘preferable’ in the sense that there is more than one acceptable answer but one is to be
preferred over the others: Michael Asimow and Jeffrey S Lubbers, ‘The Merits of ‘Merits’ Review:
A Comparative Look at the Australian Administrative Appeals Tribunal ’ (2011) 67 Australian Institute
of Administrative Law Forum 58.
3
In the Australian context, the metaphor of the reviewer who ‘stands in the shoes’ of the adminis-
trator is often used: ibid.
4
This is conceptualised in the high threshold of irrationality or Wednesbury unreasonableness in the
UK legal order (a decision is so unreasonable that no reasonable decision-maker could have made it):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

417
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418 Research handbook on international refugee law

assessment of the facts (that is, a requirement for the reviewer to undertake a full review of
the facts so as to decide the case anew)5 and a substantive remedy (that is, the ability for the
reviewer to substitute his or her view for the administrator’s). The standard of review advo-
cated in this chapter is also taken to include independence from the primary decision-maker as
part of the right to a fair hearing.6 Whilst limitations of space do not permit examination of the
imperative for an independent review, the review envisaged in this chapter is judicial in char-
acter, that is, independent and impartial and separated institutionally from the administrative
decision-maker. Finally, the term ‘asylum decision-making’ is used for the purposes of this
chapter to refer broadly to decision-making by states on any form of international protection
from persecution and analogous forms of ill treatment. It includes, of course, refugee status
determination by states but also wider forms of decision-making involving asylum.

1. THE STANDARD OF REVIEW IN SUPRANATIONAL

LEGAL NORMS

The question asked in the first part of this chapter is: what do supranational instruments require
by the standard of review of decision-making on asylum? The following considers, first,
international norms, primarily the 1951 Convention and 1967 Protocol Relating to the Status
of Refugees (the Refugee Convention) and other international treaties which may impact on
asylum decision-making.

Refugee Convention and Other International Instruments Relevant to Asylum

The Refugee Convention does not contain an express right to judicial review of adminis-
trative decisions determining refugee status. Indeed, as noted by the United Nations High
Commissioner for Refugees (UNHCR) in 1977:

the 1951 Convention and the 1967 Protocol give no indication of procedures to be adopted for the
determination of refugee status. It is left to each Contracting State to establish the procedure that it
considers the most appropriate, in conformity with its particular constitutional and administrative
structure.7

5
See also Dana Baldinger, Rigorous Scrutiny versus Marginal Review (Wolf Legal Publishers
2013), 218–19. Baldinger defines ‘full jurisdiction’ as meaning ‘that a national court does not rely
automatically on, and draw inferences from, an advice or opinion given by an organ of the executive’ (p
219). She also includes within its definition, independent determination by the court of whether or not
past facts took place and the credibility of the applicant.
6
See ibid.
7
UNHCR, Note on Determination of Refugee Status under International Instruments, UN Doc. EC/
SCP/5, 24 August 1977, para 11. See also para 22: ‘The determination of refugee status is essentially
a technical requirement for the implementation of the legal instruments relating to refugees.’ See also,
UNHCR, Handbook on Procedures (Reissued 2011) at para 189:
It has been seen that the 1951 Convention and the 1967 Protocol define who is a refugee for the
purposes of these instruments. it is obvious that, to enable states parties to the Convention and to
the Protocol to implement their provisions, refugees have to be identified. Such identification, i.e.
the determination of refugee status, although mentioned in the 1951 Convention (cf. Article 9), is
not specifically regulated. In particular, the Convention does not indicate what type of procedures
are to be adopted for the determination of refugee status. It is therefore left to each Contracting

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 Reviewing review: the standard of review in asylum decision-making 419

The initial silence on an international procedural framework for refugee status determina-
tion reflects the principle of national procedural autonomy,8 recognizing the great procedural
diversity and variation between contracting states.9 However, even in 1977, the UNHCR
acknowledged the need for ‘certain common basic requirements’.10 Those initially advocated
by UNHCR included a requirement of ‘reconsideration’11 but this was a review requirement
sketched in the broadest possible terms. The reconsideration could be administrative or judi-
cial, there was no requirement of independence envisaged, and no standard of review was
proposed. Since the 1970s, UNHCR has added increasing levels of detail to the requirement of
reconsideration including calls for right of ‘independent appeal or review’.12
The movement towards seeking minimum procedural guarantees in refugee status determi-
nation has also been recognized in the scholarship on the area.13 This trend, it has been argued,
is underpinned by the view that procedural obligations on states flow from the requirement
of ‘effective implementation’ of the substantive obligations states owe to those recognized as
refugees under the Refugee Convention.14 In terms of express procedural rights, some scholars
have relied upon the right of access to justice under Article 16 of the Refugee Convention15 to

state to establish the procedure that it considers most appropriate, having regard to its particular
constitutional and administrative structure.
8
See Cantor (n 1): ‘Emphasis on state discretion in this regard is hardly surprising as the obligation
on States to take domestic measures to determine who is a refugee is owed directly to other States Parties
rather than to the individual refugee.’
9
UNHCR (n 7) at para 15: ‘Since procedures are necessarily related to the constitutional and admin-
istrative structure of the particular country, the establishment of identical procedures in the seventy States
parties to the 1951 Convention and/or the 1967 Protocol would be difficult to envisage.’
10
Ibid.
11
Ibid., para 16(f) ‘If the applicant is not recognized, he should be given a reasonable time to appeal
for a reconsideration of the decision, either to the same or to a different authority, whether administrative
or judicial, according to the prevailing system.’ These were formally affirmed in EXCOM Conclusion
No. 8 of 1977 UNHCR EXCOM, Conclusion on Determination of Refugee Status, Conclusion No. 8
(XXVII), 1977, para e.
12
See, e.g., UNHCR, Global Consultations on International Protection/Third Track: Asylum
Processes (Fair and Efficient Asylum Procedures) (EC/GC/01/12, 31 May 2001), paras 41–43. See also
para 50(p):
[a]ll applicants should have the right to an independent appeal or review against a negative deci-
sion, including a negative admissibility decision, although this may be more simplified in the case
of admissibility decisions or decisions made under accelerated procedures. The letter of rejection
should contain information on the asylum-seeker’s right to appeal, provisions of the appeal proce-
dure and any applicable time limits. An asylum-seeker should in principle have the right to remain
on the territory of the asylum country and should not be removed, excluded or deported until
a final decision has been made on the case or on the responsibility for assessing the case.
On the need for judicial review, see further G Goodwin-Gill and J McAdam, The Refugee in International
Law, 3rd ed., Oxford, Oxford University Press, 2007, 537. See further, the summary in Cantor (n 1).
13
See, e.g., ibid. and Baldinger (n 5).
14
Goodwin-Gill and McAdam (n 12), 529–30.
15
Article 16 (Access to Courts) provides:
(1) A refugee shall have free access to the courts of law on the territory of all Contracting States.
(2) A refugee shall enjoy in the Contracting State in which he has his habitual residence the same
treatment as a national in matters pertaining to access to the Courts, including legal assistance and
exemption fromcautio judicatum solvi. (3) A refugee shall be accorded in the matters referred to
in paragraph 2 in countries other than that in which he has his habitual residence the treatment
granted to a national of the country of his habitual residence.

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found procedural rights in the refugee status determination process claiming that it is applica-
ble to the determination of asylum claims.16 However, the protection provided by Article 16(1)
is limited as – being in essence a non-discrimination provision – even interpreted at its most
protective to refugees, it would require only their access to pre-existing judicial remedies.
Thus, the general conclusion in the scholarship is that sources of international law create at
best a ‘fragile legal basis for the elaboration of procedural standards for refugee status deter-
mination’. 17
Moreover, even if a general right to judicial scrutiny can be identified as implicit within in
the Refugee Convention, neither the UNHCR nor the scholarship has identified a specific right
to judicial scrutiny on the merits, notwithstanding recognition that state practice generally
permits an appeal or review on both the facts and the law.18 The reluctance to pronounce on
national procedures and remedies is held in common by the majority of international treaty
monitoring bodies.19 In relation to the ICCPR, for example, the Human Rights Committee
has not developed principles on the required intensity of national judicial scrutiny in admin-
istrative law cases.20 However, by contrast, the more recent jurisprudence of the Committee
Against Torture on Article 3 (prohibition on refoulement)21 of the United Nations Convention
Against Torture (CAT) has referred specifically to the standard of review. In Nirmal Singh v

16
Baldinger (n 5) summarises the various views and concludes that majority now find it applicable,
25.
17
Cantor (n 1):
On their own, it is fair to conclude that these sources of international law provide only a relatively
fragile legal basis for the elaboration of procedural standards for refugee status determination.
Indeed, it is a notable feature of both UNHCR doctrine and scholarly argument on this point that
a firm legal basis for such procedural standards is ultimately sought in the distinct but closely
related corpus of international human rights law, particularly in purportedlyuniversal expressions
of the right to a fair trial as in the ICCPR.
See also James C Hathaway, The Rights of Refugees under International Law (Cambridge University
Press 2005), 647, 670–77. In Hathaway’s view, the right of due process of law prior to expulsion on
grounds of national security and public order in respect of lawfully present refugees under art 32, does
not necessarily require an appeal to a court. See further discussion of scholarship in Cantor (n 1).
18
See, e.g., UNHCR (n 12), para 41:
Procedures in place in most States recognize that standards of due process require an appeal or
review mechanism to ensure the fair functioning of asylum procedures, although the nature of the
appeal or review can vary quite widely depending on administrative law standards applicable in
the country. Under regular decision-making procedures, State practice generally permits an appeal
or review which involves considerations of both fact and law. In addition, most jurisdictions
permit a further judicial review, which addresses questions of law only, and may be limited by
a leave requirement.
See further Baldinger (n 5), 36 and 380.
19
Baldinger, ibid., 183.
20
Ibid., 85. Moreover, the fair trial right in art 14 ICCPR has been held not to apply to decisions on
expulsion and deportation (UN Human Rights Committee, General Comment No 32, Article 14, Right to
equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32).
21
Art 3 CAT reads:
(1) No State Party shall expel, return (‘refouler’) or extradite a person to another State where there
are substantial grounds for believing that he would be in danger of being subjected to torture. (2)
For the purpose of determining whether there are such grounds, the competent authorities shall
take into account all relevant considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

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Canada22 the Committee Against Torture found that the ‘very narrow review for gross errors
of law’ undertaken by the Federal Court of Canada did not constitute an effective remedy
for the right protected by Article 3.23 It concluded that ‘the State party should provide for
judicial review of the merits,24 rather than merely of the reasonableness, of decisions to expel
an individual where there are substantial grounds for believing that the person faces a risk of
torture’.25 The Committee Against Torture appears, therefore, to have gone further than other
international treaty monitoring bodies on the question of the standard of review applicable in
a situation where a person claiming to face persecution in his or her country of origin is facing
expulsion to that state.

European Convention on Human Rights

As with the international instruments considered above, the European Convention on Human
Rights (ECHR) does not make express provision for any particular standard of review,
however, in certain circumstances, a right to merits review from administrative decisions
(or, as termed by the Court ‘full jurisdiction’ over the facts and the law) has been found to
be a necessary part of the right to a fair hearing in Article 6 ECHR.26 The Court has held that
whether merits review is required must be determined on a case-by-case basis, however, the
case law points to both the nature of the subject matter and the existence of disputed facts

22
Nirmal Singh v Canada No 319/2007 (CAT, 30 May 2011).
23
Ibid., para 8.8. In an earlier case, Agiza v Sweden No 233/2003 (CAT, 20 May 2005), the
Committee Against Torture had found an implied right to an effective remedy for the breach of art 3 CAT
in order to ensure protection of the substance of the right. It specified that effective review required, in
the context of refoulement, ‘an opportunity for effective, independent and impartial review of the deci-
sion to expel or remove’, para 13.7.
24
From this, the specific content of the review advocated is unclear. Given that it is compared with
‘reasonableness’ review, the Committee’s definition could arguably refer to other light touch forms of
substantive review, such as proportionality.
25
Nirmal Singh v Canada, para 9.
26
The civil limb of art 6 ECHR provides: ‘In the determination of his civil rights and obligations …
everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law.’

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as relevant to the question.27 However, migration status decision-making, including asylum

decision-making, has consistently been excluded from the application of Article 6.28
In respect of the other ECHR provisions generating procedural rights which have not been
found to exclude asylum decision-making, namely Article 3 plus 1329 and procedural rights
implied into Article 3 ECHR,30 the Strasbourg court has not clearly articulated a right to merits
review. Whilst the Court has developed and expanded its procedural jurisprudence in relation
to applications brought by migrants under Article 13 plus Article 3,31 and in so doing devel-

27
A right to merits review (‘full jurisdiction’) has found to be implicit in art 6 in a line of cases start-
ing with Albert and Le Compte v Belgium (1981) 5 EHRR 533, para 26, concerning disciplinary proceed-
ings of a professional association relating to doctors, the applicants had sought to challenge the decisions
preventing them from practising medicine but the appeal court did not have jurisdiction to find facts or
substitute judgment. See also W v United Kingdom (1987) 10 EHRR 29, para 82, regarding administra-
tive decisions restricting access to a child in care and Obermeier v Austria (1990) 12 EHRR 290, para
70, the dismissal of employees. However, following Albert and Le Compte, the right to a review of full
jurisdiction has been circumscribed in later cases. In Zumtobel v Austria App no 12235/86 (ECHR, 21
September 1993), a planning case involving expropriation proceedings, the ECtHR found that review
limited to legality grounds did not violate art 6 in the circumstances of that case. See also Bryan v United
Kingdom (1995) 21 EHRR 342, a planning case involving review of a planning inspector’s decision to
uphold an enforcement notice requiring removal of buildings erected without planning permission, in
which the ECtHR held that the compliance with art 6 of legality review of administrative decisions was
to be determined on a case-by-case basis. However, in Tsfayo v United Kingdom (2009) 48 EHRR 18,
the ECtHR appeared to return to an expansive approach. The question to be determined by the adminis-
trative agency was whether there was ‘good cause’ for delay in making a housing benefits claim. The UK
Government had argued that the nature of the subject matter, which pertained to social welfare, justified
the limited review of the High Court. However, the ECtHR disagreed. It found that the existence or
otherwise of ‘good cause’ for delay was a ‘simple question of fact’ – an assessment of the applicant’s
credibility – and consequently the provision of judicial review alone was insufficient to satisfy art 6.
28
Agee v United Kingdom [1976] 7 DR 164; Maaouia v France (2001) 33 EHRR 42. The Court’s
justification for the exclusion of decisions on migration status from the purview of art 6 ECHR is based
on the view that art 6 is expressly limited to the determination of a civil right or a criminal charge and
that litigation in respect of the entry, stay and deportation of migrants (including asylum claims) involves
neither. This has been much criticized: an exploration of why the ECtHR’s justification of the exclusion
of the determination of the entry, stay and deportation of migrants is unconvincing is beyond the ambit
of this work, but see, e.g., Jean-Etienne Kautzmann and Melanie Fiona Oliver, ‘The Applicability of
Article 6 to Asylum Procedures ’ (2012) 17 Interights Bulletin 36, 36–44. See also dissenting judgments
in Maaouia, 1052:
(i)t is inconceivable in a Convention which, according to its preamble, was intended to safeguard
‘those fundamental freedoms which are the foundation of justice... in the world’ and implement
the principle of the ‘rule of law’ to provide for a fair administration of justice only in respect of
certain legal rights and obligations, but not in respect of rights concerning relations between the
individual and the Government….
29
Art 3 provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or
punishment’; Art 13 provides: ‘Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.’ Unlike art 6, art 13 (which requires an
‘effective remedy’) is drafted in general terms: it applies to ‘everyone’.
30
The ECtHR has held that procedural safeguards are vital ingredients of substantive Convention
rights See, e.g., Chahal v United Kingdom (1996) 23 EHRR 413. For examples, see Baldinger (n 5), 198.
31
Including, MSS v Belgium and Greece (2011) 53 EHRR 2 ECtHR; Hirsi Jamaa v Italy (2012) 55
EHRR 21; and IM v France.

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 Reviewing review: the standard of review in asylum decision-making 423

oping a standard of ‘independent and rigorous scrutiny’32 and ‘full and ex nunc assessment’,33
it has fallen short of requiring a standard of ‘full jurisdiction’ or merits review and has not
expressly disavowed its 1991 ruling in Vilvarajah v United Kingdom.34 The application in
Vilvarajah was by five Sri Lankan nationals who had all claimed asylum in the UK. Their
claims had been rejected by the Secretary of State and they had no in-country right to appeal
the decision on the merits.35 They had all, unsuccessfully, sought judicial review of the legality
of their removal directions. This form of review had precluded any substantive assessment
beyond whether the decision-maker had acted irrationally in deciding the refugee claim. The
applicants were removed to Sri Lanka and all subsequently faced various kinds of ill-treatment
of the type they had claimed to fear. They claimed a breach of their rights under Articles 13
and 3 ECHR. The Commission found a violation but this was reversed by the Court which
held that the British system of judicial review of the legality of an adverse asylum decision
was an ‘effective remedy’ for the purposes of Article 13 of the Convention. The applicants
had argued (and the Commission had agreed) that the fact that the judicial review court did
not have the jurisdiction either to establish whether or not the Secretary of State was correct
in her assessment of the risk of ill treatment on return, or to substitute its views on the merits
of the case for the Secretary of State’s meant that it did not provide a sufficient remedy con-
sistent with Article 13 ECHR.36 Whilst the applicants accepted that judicial review may satisfy
Article 13 insofar as facts were not in dispute between the parties, they argued that in a case
such as this, where the nature of the risks on return was the substance of the dispute, review
solely on the grounds of the rationality of the way in which the decision on merits was taken
was insufficient. In addition to the Commission, Judges Walsh and Russo agreed with the
applicants in a dissenting opinion. They concluded that a court that was unable to rule on the
merits could not provide an effective remedy where the facts were in dispute. It, therefore, dis-
tinguished the Court’s earlier judgment in Soering37 (concerning extradition to face death-row)
in which the ECtHR had found British judicial review to be a sufficient remedy.38 However,
as already noted, the majority of the Court in Vilvarajah dismissed the appeal, relying on the
Soering39 judgment to find that the limitations on the power of courts in British judicial review
proceedings were of insufficient gravity to produce a violation of Article 13.40 The decision

32
The necessity of independent review was first recognized by the Court in Chahal v United
Kindgom, para 151; and the requirement of rigour in Jabari v Turkey App no 40035/98 (ECHR, 11 July
2000), para 50. This has since been reiterated by the Court repeatedly: see, e.g., Hirsi Jamaa v Italy (n
92) and further examples in Baldinger (n 5), 199.
33
Salah Sheekh v the Netherlands (2007) 45 EHRR 50, para 136.
34
Vilvarajah v United Kingdom (1991) 14 EHRR 248.
35
Prior to 1993, the migration appeals system in the UK did not contain in-country rights of appeal
for asylum seekers.
36
Vilvarajah v United Kingdom, para 118.
37
Soering v United Kingdom (1989) 11 EHRR 439.
38
Ibid., paras 116–124. Notably, in the specific circumstances of that case there was no factual
dispute in issue (rather, the question was whether subjection of an individual through extradition to the
death row phenomenon constituted a violation of art 3).
39
Vilvarajah v United Kingdom, para 123. The ECtHR cited UK courts’ self-proclaimed duty to
apply anxious scrutiny to administrative decisions where ‘an applicant’s life or liberty may be at risk’
and the practice of not removing asylum-seekers pending the determination of the judicial review claim
as further support for its conclusion, para 125.
40
Ibid., para 126.

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in Vilvarajah has been applied and endorsed by the Court since in Hilal v United Kingdom.41
Whilst more recently the ECtHR has, in its decision in Salah Sheekh v the Netherlands, articu-
lated a requirement of full and ex nunc42 assessment in the review of asylum decisions,43 it does
not appear that this standard requires the reviewer to fully step into the shoes of the primary
decision-maker. Rather, the reviewer is told that ‘it must be satisfied that the assessment made
by the authorities of the Contracting State is adequate and sufficiently supported by domestic
materials as well as by materials originating from other, reliable and objective sources’. 44

European Union

In contrast to the position under international treaties and the ECHR, in its recast Asylum
Procedures Directive45 European Union law now articulates an express right to merits review
of asylum and humanitarian protection decisions. The recast directive provides for ‘a full and
ex nunc examination of both facts and points of law’ (art 46(1) and (3)). Further, even absent
an express right,46 Court of Justice of the European Union (CJEU)’s case law suggests that it
is likely that merits review would be found to be implied into the EU right to effective judi-
cial protection as it applies to asylum.47 Whilst initially the EU Treaties did not contain any
provision on the nature of the remedies that should be provided as a matter of EU law,48 the
need to ensure the effective enforcement of EU rights has meant that the EU has developed
an overall supervisory framework which requires national laws to provide sufficient domestic
remedies.49 This has been developed through the general principles of effective judicial pro-

41
Hilal v UK Hilal v United Kingdom (2001) 33 EHRR 2.
42
That is, a requirement that the national court take into account facts that have arisen following the
administrative decision appealed.
43
Salah Sheekh v the Netherlands (2007) 45 EHRR 50, para 136.
44
See ibid., para 136:
In determining whether it has been shown that the applicant runs a real risk, if expelled, of suffer-
ing treatment proscribed by Article 3, the Court will assess the issue in the light of all the material
placed before it, or, if necessary, material obtainedproprio motu, in particular where the applicant
– or a third party within the meaning of Article 36 of the Convention – provides reasoned grounds
which cast doubt on the accuracy of the information relied on by the respondent Government. In
respect of materials obtainedproprio motu, the Court considers that, given the absolute nature of
the protection afforded by Article 3, it must be satisfied that the assessment made by the author-
ities of the Contracting State is adequate and sufficiently supported by domestic materials as
well as by materials originating from other, reliable and objective sources, such as, for instance,
other Contracting or non-Contracting States, agencies of the United Nations and reputable
non-governmental organisations… in assessing an alleged risk of treatment contrary to Article 3
in respect of aliens facing expulsion or extradition, a full andex nuncassessment is called for as the
situation in a country of destination may change in the course of time.
45
Directive 2013/32/EU. The Asylum Procedures Directive sets out the procedural standards appli-
cable to refugee status determination.
46
This remains relevant for those Member States in which the recast Asylum Procedures Directive
does not apply.
47
For a persuasive exposition of this argument, see further, Baldinger (n 5), 326–30.
48
The principle of ‘national procedural autonomy’ apparently allocates responsibility for procedural
and remedial matters to Member States. See, e.g., Case C-120/97 Upjohn Ltd v Licensing Authority
[1999] ECR I-223, para 32.
49
Richard Gordon and Rowena Moffatt, EU Law in Judicial Review (Oxford University Press 2014).

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 Reviewing review: the standard of review in asylum decision-making 425

tection.50 As part of this, the CJEU has ruled on the right to recourse and the proper standard
of review in a number of cases. Whilst the CJEU has applied varying standards of review to
various types of administrative decision, the Court has indicated that the nature of the interests
implicated is relevant to the standard of review and has applied its most intense form of judi-
cial scrutiny, which includes a requirement of merits review, in respect of decisions relating
to the free movement rights of EU citizens (and their non-EU citizen family members).51 As
such, in Baldinger’s view, by analogy with the nature of the interests implicated, a similarly
high standard – including merits review – would be required in asylum cases where it is
axiomatic that the interests involved are of the highest order.52 Therefore, whilst the original
Asylum Procedures Directive contained no reference to merits review, Article 39 of that
Directive requires Member States to provide an effective remedy before a court or tribunal in
relation to decisions on their asylum application. Given that EU secondary legislation must
be interpreted by reference to higher norms of EU law, namely the general principles and the
Treaties (including the EU Charter of Fundamental Rights),53 it is likely that, for the reasons
Baldinger gives, an ‘effective remedy’ under EU law would be found by the CJEU to include
a requirement of merits review.54

2. DISCUSSION

From the survey of procedural norms applicable to asylum decision-making, it is clear that in
contrast to the position in international law and under the ECHR, EU law expressly stipulates
a right to full review of the facts and the law of asylum decisions and it is likely that this would
be interpreted by the CJEU to mean the standard of merits review articulated in Section 1 of
this chapter (namely, a requirement for the reviewer to undertake a full review of the facts so
as to decide the case anew and the ability for the reviewer to substitute his or her view for the
administrator’s). As noted at the outset, this chapter argues that merits review is the proper
standard of review in asylum decision-making. The discussion that follows explains the rea-

50
First articulated by the Court in Case 222/84 Johnston v Chief Constable of RUC and now in art 47
of the EU Charter of Fundamental Rights.
51
Baldinger (n 5), 316–22, 324–30, 358.
52
Baldinger, ibid., divides the cases into the following categories: complex economic assessments,
cases requiring medical or technical knowledge, complex value judgments in staff matters, and protec-
tion of consumer rights.
53
The Charter of Fundamental Rights has the same status as the EU Treaties: art 6(1) TEU.
54
See further Baldinger (n 5), 361:
[EU law] causes a transformation in the legal status of existing standards on evidence and judicial
scrutiny contained in or flowing from international asylum law. These existing standards trans-
form from non-binding principles into more important rules which must be respected… from
inter-governmental law into binding primary supranational EU law.
See also Case C-69/10 Diouf [2011] ECR I-7151 which held in the context of a challenge to natural
procedural rules not permitting appeal from the decision to subject an asylum claim to an accelerated
procedure:
[t]he right to an effective remedy is a fundamental principle of EU law. In order for that right to
be exercised effectively, the national court must be able to review the merits of the reasons which
led the competent administrative authority to hold the application for international protection to be
unfounded or made in bad faith….

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soning for the argument, namely that merits review provides most procedural protection to
asylum seekers. It then seeks to justify why recognition of the standard in supranational legal
norms is an important aspect of protection and finally, it critiques, in particular, the approach
of the ECtHR to the standard of review in asylum decisions.
Turning first, therefore, to the reasoning underlying this chapter’s promotion of merits
review as the proper standard of review in asylum decision-making, whilst the theoretical
justification for a right to merits review is outside the scope of this chapter,55 merits review
is important in asylum decision-making given the significance of the rights and interests at
stake. This is because the standard of review is relevant to, and in some cases determines,
the effectiveness of access to justice. If, for example, an asylum application is refused on
grounds of credibility (an asylum seeker’s account is not believed), legality review will be
of little assistance to the disbelieved asylum seeker since the reviewer will generally not go
behind the primary administrative decision-maker’s findings of fact. In other words, under
legality review, absent perversity in decision-making, any factual judgment call will be finally
determined by the administrator who, on appeal, becomes one of the parties to the legal
dispute. By contrast, review of the decision on the merits (as defined in this chapter) provides
the applicant/appellant with an entirely new chance to prove the truth of the account. Merits
(rather than legality) review is, therefore, the more protective of individual rights and interests.
Further, the appearance of an absence of objectivity inherent in decision-making by admin-
istrators who have an interest in a particular outcome (namely, implementing government
policy on asylum) is, therefore, likely to be off-set by a judicial – and therefore independent
and impartial – body scrutinizing the facts as well as the law applied. As such, independent and
impartial decision-making is also likely to (at least) give the impression of a more fair system.
In short, therefore, the greater the imbalance of power and/or the more significant the effect
the decision is liable to have on its subject, the greater the need for a more protective form of
recourse. Asylum decision-making is at the sharp edge of both.
As regards the articulation of a right to merits review in supranational norms, as noted earlier,
the UNHCR has noted a consensus amongst state practice that merits review by an independ-
ent body is the appropriate standard of review.56 It may be said, therefore, that there is little
need to crystallize in law a standard already applied in practice. However, such an approach
would fail to give adequate weight to two (interlinked) factors. First, since the right to merits
review is a question of procedural justice (rather than political expediency), it is important to
articulate it through legal norms. Secondly, and relatedly, in the absence of its articulation in
supranational norms, the right is more vulnerable to being taken away. This can be illustrated
by the case of rights of appeal on the merits in the UK. Primary legislation in the UK now
provides for an appeal on the merits, suspensive of removal, from decisions on ‘international
protection’ and ‘human rights’.57 However, reforms brought in by the Immigration Act 201458
removed rights of appeal from the majority of decisions on immigration status.59 In its recent

55
For a detailed exploration of theoretical arguments see further: Rowena Moffatt, ‘An appeal to
principle: a theory of appeals and review of migration status decision-making in the United Kingdom’,
unpublished DPhil thesis, 2016.
56
See n 18 above.
57
Nationality Immigraton and Asylum Act 2002, s 82.
58
Section 15 IA 2014 replaces ss 82 and 84 NIAA 2002 and repeals ss 83 and 83A NIAA 2002.
59
The repealed rights of appeal were based on a system established in 1970 following the con-
clusions of a commission of inquiry charged with determining whether and why there was a need for

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 Reviewing review: the standard of review in asylum decision-making 427

reforms to the appeals system, the UK Government has posited the protection of substantive
fundamental rights as a reason why appeals from migration status decisions must, in certain
cases, be provided. As seen above, in terms of legal obligations only EU law fully articulates
a right to merits review. The position under the ECHR and Refugee Convention is unclear.
Insofar as fundamental rights instruments do not recognize a right to merits review, defining
appeal rights in domestic review systems by reference to what international fundamental rights
standards require is not sufficiently protective of the significant rights and interests implicated
in asylum decision-making.
In the light of this analysis, the ECtHR’s approach to the standard of review in asylum
decision-making, in particular, is contestable. There are two central limbs to the critique: (i)
the exclusion of asylum decisions from Article 6; and ii), the approach of the Court to the
standard of review under Article 13 read with Article 3. As to the first, based on the principles
established by the Court under its Article 6 case law, it appears likely that a standard of merits
review would be required in asylum decision-making were Article 6 found to apply. This is
because the case law establishes that the subject matter of the decision is relevant to the ques-
tion of the standard of review60 and, as noted above, what is at stake in asylum decision-making
is of the highest order. Further, the case law finds that the question of the standard of review
is also dependent on the existence of questions of fact at the heart of the dispute61 and asylum
decision-making is essentially a fact-based investigation. In other words, therefore, asylum is
an area of law that should properly entail enhanced procedural protections and the explana-
tions for the exclusion of asylum from the civil limb of Article 6 appear increasingly weak.62
As to the second limb of the critique (the approach of the Court to Article 13 plus 3), the
Vilvarajah judgment is problematic for a number of reasons.63 First, the judgment of the
majority is based on the initial conclusion in Soering without referencing a central distinguish-
ing feature, namely that unlike Soering, the latter two cases concerned issues of disputed facts.
Whilst it may be correct to state (and this was conceded by the applicants in Vilvarajah) that in
the absence of a dispute of fact, review of legality alone will provide an effective remedy, the
same conclusion – as the outcome in Vilvarajah shows – cannot automatically be read across to
situations of disputed fact. Secondly, Vilvarajah sits uneasily with the Article 6 jurisprudence
on full jurisdiction. As noted earlier, the Tsfayo64 case on UK judicial review under Article
6 makes clear that where the central issue is one of disputed fact, the court should have full
jurisdiction over the merits and judicial review does not satisfy this requirement. The ECtHR’s
judgment in Kudla v Poland65 holds that the requirements of Article 13 should reinforce those

migration appeals. The findings of the committee are set out in its report: Wilson Committee, Report of
the Committee on Immigration Appeals (Cmnd 3387, 1967). Most significantly, rejected asylum seekers
did not receive a right of appeal until 1993 (when the United Kingdom feared an adverse judgment in
Strasbourg): Asylum and Immigration Appeals Act 1993, Sch 2, para 1.
60
See, n 27 above.
61
See Tsfayo (n 27).
62
See n 28 above.
63
See Kautzmann and Oliver (n 28), 38: ‘the safeguards afforded under Article 13 are insufficient
and do not amount to the protection under Article 6... Accordingly, the current approach of the Court
does not fully comply with international Refugee Convention standards’. Yet, the ECtHR has, since
Chahal, insisted that Article 13 guarantees an independent review: Chahal v United Kindgom (n 30).
64
See n 27 above.
65
Kudla v Poland App no 30210/96 (ECHR, 26 October 2000).

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of Article 6(1), and arguably, therefore, case law under Article 6(1) should also inform Article
13.66 Thirdly, the ECtHR’s reliance in Vilvarajah on the fact that removal is generally sus-
pended until the conclusion of judicial review proceedings as relevant to the effectiveness of
the remedy does not address the prior question of whether the nature of the remedy of judicial
review is itself effective. If a review of legality cannot properly prevent refoulement then the
fact that removal is delayed until the end of an ineffective process is immaterial. As such, the
Vilvarajah (and Hilal) judgments should be revisited in the light of both the EU standards and
the ECtHR’s developments in the Article 13 case law towards a more exacting form of proce-
dural protection as articulated in the Court’s more recent judgment in Saleh Sheekh.

CONCLUSION

The central argument of this chapter is that with reference to the nature of the rights and inter-
ests at stake in asylum decision making, merits review should be recognized: (i) as the proper
standard of review from administrative decisions on asylum; and (ii) as forming part of supra-
national legal standards for the review of primary administrative decisions on asylum. Whilst
majority state practice may already reflect (i) above, in ensuring the protection of the rights
and interests involved, it remains important to articulate the standards beyond the boundaries
of individual states’ domestic policy. The EU approach to the standard of review is the most
far-reaching of those examined and should be adopted. In particular, the Strasbourg Court’s
approach to procedural protection of asylum decisions under the ECHR requires revisiting in
the light of the developments in EU law and the contradictions within its own jurisprudence.

66
Baldinger (n 5), 281.

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access to protection triggering inclusionary paragraph 364–5,

evidential barriers 295 367–8, 373
problematic credibility 305–8 UNHCR guidance on 366–7
procedural barriers Article 31(1) Refugee Convention 224, 336, 341
culture of disbelief 303, 306 application to asylum seekers and refugees
initial decision-making 305 225–6, 234–5
institutional competencies 305 as bar to prosecution 228–9, 234
poor COI information 304, 305 as defence to prosecution 228
poor information differentiation 305 exclusions 226, 234
women’s see women’s access to protection as fundamental principle of non-penalisation
African Charter on Human and Peoples’ Rights 23 224, 233, 237
Agenda for Humanity (2016) 82 interpretation 225, 230–32
Amnesty International 42 limitations 227
Article 1D Refugee Convention 373 nature of protection 229–33
application 361 overriding principle of protection 235
drafting 358–60 and people smuggling 226
interpretation 358, 360–63 prosecution amounting to penalty 228–9, 235
of ‘cease for any reason’ 360, 361 prosecution of asylum seekers under 228
CJEU 362, 366, 367 protecting smuggled migrants intercepted in
historically bounded 361–2 territorial waters 232
NZIPT 362 scope of 234
UNHCR 362 trafficked persons 336
who covering 360–61 travaux préparatoires 226, 227
jurisprudence 358 triggering requirements 229
Amer Mohhamed Eli-Ali v SSHD 360 ‘coming directly’ 230–2, 236
Minister for Immigration and ‘presenting ... without delay’ 232–3,
Multicultural Affairs v WABQ 361 236–7
need to demonstrate discriminatory denial of see also prosecution of asylum seekers
human rights 372 asylum 22–3
Palestinian refugees 1951 Refugee Convention boundary 169
application to 362–3 access to 170, 281
exclusion 359–60, 364 restricting 110
need to demonstrate discriminatory under threat 177
denial of human rights 372 see also access to protection
and UNRWA protection 361, 363 conflict alone as not ground for granting 156
see also UNRWA; refugees no right to per se 193
purpose 372–3 procedures
purposive approach 362–3 culture of disbelief 303, 306
relocation test 369 demonisation of ‘other’ 302–3
as temporary measure 361 screening 297
substantive interview 297

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vicarious traumatisation of interviewers § 91R 246

302, 303 § 91S 246–7
proximity bias 282 § 91T 248
right to seek 170 § (36) 248–9
right to leave connection 100 Migration and Maritime Powers Legislation
sliding scale approach to granting 147–8 Amendment (Resolving the Legacy
women’s claims to treating ‘properly’ 292 Caseload) Act (2014) 59, 130, 203,
Asylum Aid 164 242, 245
asylum seekers Migration Reform Act 1992 (Cth) 239
in Europe 282 Migration Regulations 1994 (Cth) 48, 264
Australia MIMA v Sarrazola (No 2) 246
Appellant S395/2002 v MIMA 247 MV Tampa Affair 202
asylum seekers no advantage principle 210
enhanced security screening 377–8 offshore processing 176
legacy case load 210–11, 244 fostering opaqueness regarding
bridging visas 210 off-shore activities 243
Chan v MIEA 247 human rights violations 176–7, 210–11
Department of Immigration and Border no meaningful accountability 243
Protection list of risk factors 239 Operation Kangaroo 175
detention centres Operation Sovereign Borders 192–3, 202
Christmas Island 213 Pacific Solution 175, 202
Manus Island 211 Plaintiff M61/2010E v The Commonwealth 244
Nauru 213 prioritising control of refugee flows 55
Papua New Guinea 213 protection visa 244
as return-orientated 214 core criterion for granting 245–6
‘voluntary’ return from 214 decision-making approach 246
deterrence policy 239 mandatory guidelines on ‘persecution’
disruption activities in transit countries 246
243 and ‘non-political’ crimes 248
forced returns 241–2, 243 ‘real chance’ test 247
interception of unauthorised maritime requirements 246
arrivals 240, 242, 243 § 36 criteria 248
off-shore screening 240–41, 242, 243 § 36 exclusions 249
Sri Lanka co-operation agreement ‘well-founded fear’ test 247
239–40 and Refugee Convention 238–9, 250–51
visa refusals 242 asserting right to unilateral
and internal relocation principle 247 interpretation 250
M70 v Minister for Immigration and courts taking teleological approach 250
Citizenship 175 denying extraterritorial application of
Maritime Powers Act (2013) 242 obligations 243
MIAC v SZQRB 244 minimising impact of obligations under
Migration Act 238–9, 242
§ 5H 245–6, 248 reservations to articles 238
§ 5J 246, 247 reintegration packages 214
§ 5K 246 removing references to Refugee Convention
§ 5L 246, 247 from legislation 245–8, 250

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and safe third country principle 249 Cartagena Declaration on Refugees (1984) see
Singh v MIMA 248 Latin America
special humanitarian program 48 CEDAW 285, 366
201 visa 50 CEDAW Committee
SZRTC v MIBP 249 on gender equality 296
temporary protection visas 211 General Recommendation (32) 292, 292–3,
compatibility with Refugee 296
Convention 68 right to childcare 298
eligibility 67–8 right to counselling 298
treatment of unauthorised boat arrivals right to female interviewer on request 298
211–12 climate change
unlawful non-citizens 244–5 as amplifying drivers of migration 345
disaster/displacement relationship 345
borders violence of 77, 78 climate refugees 343, 356
burden-sharing 71, 115, 117 AC (Tuvalu) 355
as border securitization 74 Budayeva v Russian Federation 354
as commitment to solidarity 75–6 claims 352–3
conventional perspective 77 drivers of 345
Frontex 79 early criticism of concept 344
as crisis management 74–5 emergence of concept 344
critical perspective human rights approach 354
asylum capacity 78–9 Ioane Teitiota v the Chief Executive of the
border control 79–80 Mistry of Business Innovation and
borders as burden 76–7 Employment 349
cost of not expanding notion of burden legal response to 346
77–8 maximalist predictions of numbers 344
cycles of mass displacement 79 and minimum standards of protection 354
impossible to distinguish burdens from NAGT of 2002 v Minister for Immigration
responsibility 78 and Multicultural and Indigenous
need to incorporate refugee law into Affairs 355–6
immigration and human rights and non-discrimination obligation 354–5
law 78 NZIPT determination of claims 354
as discourse of marketization 73, 78–9 patterns of displacement 344–5
dual purpose 71–2 protection gaps in Refugee Convention 346–8
as international cooperation 71 absence of persecution 348–9
as legal obligation 72–3 addressing 350–52
logic behind 117 lack of nexus to Convention grounds 349
relevance of concept 117 policy concerns 350
timing 350, 355
Canada and Refugee Convention inclusion criteria
anti-terror mechanisms 378 level of adversity 353
Council of Refugees 47 nexus requirement 353
Immigration Act (1976) 47 risk on return 353–4, 355–6
Immigration and Refugee Protection Act rejection of concept 343, 345
(2001) 226 closure of borders 67
Committee Against Torture 285

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Committee on the Rights of the Child 258 through direction and control of the acts of
constructive refoulement 34, 207–8, 222–3 third countries 103–4
Australia 222 effective control 103–4
deterrence policy 209–10 reciprocal agreements as 104
human rights abuses 212–13 triggering responsibility under Art 17
offshore detention centres 211–12 ASR 103, 104
restricted rights 209 through directly attributable actions 105–7
uncertainty 211 indirect control 106
case law and the rule of law 218 under ASR 105
denial of the right to work as 219 under ECHR 106–7
ECtHR finding 219 ECtHR jurisprudence 105–6
enforceability of prohibition on 214 in situations of complicity 101–3
enforced destitution 215, 216–17 Art 16 ASR 101, 102, 103
invoking 215 threshold 101–2
as means of dealing with inhuman/degrading see also EU migration control
treatment 217 Convention against Torture 5, 6
as means of dealing with lack of protection Art 3 94
in third countries 217 Convention Governing the Specific Aspects of
R v Secretary of State for Social Security ex Refugee Problems in Africa (1969) see
parte Joint Council for the Welfare of OAU Convention
Immigrants; R v Secretary of State ex Convention on the Elimination of All Forms of
parte B 218–19 Racial Discrimination (1965), Art 5 39–40
test for 217, 220–22 Convention on the Elimination of Discrimination
burden of proof 220 Against Women see CEDAW
free consent 221–2 Convention on the Rights of Persons with
intent 220 Disabilities 366
severity threshold 221 Convention on the Rights of the Child see CRC
unfair hearing 221 Convention Relating to the Status of Refugees
unclear threshold for 208 1951 see Refugee Convention
value of concept 214 cooperative non-entré policies 10
contactless control 85, 96–101 Cotonou Agreement 74
contested legality 97–8 CRC 6–7 366
diverting attention from 97 Art 4 258–9
exonerating states from international legal Art 9(3) 257–8
responsibility 101 Art 10 257, 258
and human rights 92–6 best interest principle 257, 258
incompatibility with right to leave 99 right to family care 258
indiscriminate nature of 96 right to family reunification 257–8
information campaigns 90–91, 96, 97 interpretation 258
Malta Declaration 86, 97 limitations 258
Migration Partnership Framework 86 criminalisation of same-sex relationships 314
through prevention of departure 96 enforcement-centric approach 315, 316
triple goals of 97 constrained by evidentiary difficulties
see also EU migration control 317–18
contactless responsibility 101, 107–8 failure to understand human cost of
bilateral agreements not removing 105 criminal sanctions 320–21

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as flawed 316, 318, 320 forced 33, 40, 57

as problematic 316 as human rights violation 40
reintroduction of enforcement 317 implicit prohibition on 39–40
fuelling culture of hatred and immunity jurisprudence 40–43
317, 319 precluding return to home state 40
Ghana 318 record levels of 44
as legitimating persecution of minority
sexual identities 316–17 ECHR
limited decriminalisation 318 Art 1 106
MASY005 case 318, 319, 320 Art 2 197, 287, 291
mere existence approach 315, 316, 322 Art 3 40, 100, 106, 129, 287, 291, 331, 335,
persecutory impact 314–16 422, 423, 427
persecutory nature of violation 107, 196, 208, 219
UK not acknowledging 319, 320 Art 4 287, 332
US acknowledging 319 Art 5(1), UK derogation from 380–81
transforming status of individual 316 Art 6 421–2, 427
X Y and Z v Minister voor Immigratie Art 8 40, 260, 291
Integratie en Asiel 311, 314 Art 9 291
Art 13 40, 196, 197, 198, 422, 423, 427
degrading treatment 217 Art 14 287
deterrence 170–72, 180 Protocol 1, Art 1 40
(shared) responsibility 178–9 Protocol 4
Australia 172–3 Art 2 94, 95, 106
as burden shifting 179 Art 2(3) 99, 100
cooperation arrangements 172, 173 Art 4 196
equipment and training 173–4 right to family unity in 260
extraterritorial processing 172, 175–7 EM-DAT 345
funding 174 EU
interdiction/turn-backs 175 asylum policy gaps 165
joint patrols 174 Charter of Fundamental Rights
people exchange 175 Art 2 366
as dominant policy paradigm in global Art 6 366
north 171 CJEU
forms of 173 Elgafaji v Staatssecretaris van Justitie 140
international 172–3 lacking jurisdiction over asylum cases 97
Italy 172 Common Asylum Policy 73
legal challenges to 177–8 Common European Asylum System 380
mechanisms 173 Common Position 2001/931 385
Namah v Pato 178 Convention on Action against Trafficking in
as non-entrée regime 171 Human Beings 334–5
policies designed to avoid scrutiny 178 Art 16(1) 327
possible burden-sharing approach 179–80 Art 26 336–7
restricting rights of asylum seekers 209 recovery and reflection period for
US 172 victims of trafficking 335
see also migration control Directive 2001/55/EC (temporary
displacement protection) 58

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non-implementation 65, 69 migration control see EU migration control

Directive 2003/86/EC (family reunification) migration crisis 352
259, 260, 262 Qualification Directive reform 164–5
Directive 2011/36/EU (human trafficking) accountability 168
Art 8 337 COI promulgated at EU level 165
Directive 2011/95/EU (qualification) 39, 380 normative shift 167–8
Art 9 313 use of UNHCR criteria on internal
Art 12(2) 381, 383, 386, 387 relocation 165–7
Art 15(b) 331 Regulation 2016/1624/EU (European Border
Art 15(c) 147 lots to add and Coastguard Agency) 79
Art 21 384 relocation test 369–70
Art 24 385 Schengen Information System 410
preamble 381–2 subsidiary protection 8
reform see Qualification Directive TFEU, Art 79(3) 91
reform below EU migration control
Directive 2013/32/EU (asylum procedures) contactless control see contactless control
87, 325, 333, 424 consensual containment strategy 85, 86, 89, 97
Art 24(3) 333 as direct interference with right to leave 95
Art 39 425 incompatibility with human rights law 96
Directive 2013/33/EU (reception conditions) member state accountability 105
325, 333 contactless responsibility see contactless
Dublin Regulations 75, 334 responsibility
Dublin System 75–6, 334 EU-Libya cooperation
as race to the bottom 83 funding Border Assistance Mission to
ECtHR 40 Libya (EUBAM) 90, 91
Catan v Moldova and Russia 105 training Libyan Coastguard 89
Golder v the UK 137 EU-Libya cooperation not exonerating
Illascu v Moldova and Russia 105–6 member state of own obligations
KAB v Sweden 41 EU-Turkey Deal 75, 85, 87–9, 97, 106
Salah Sheekh v Netherlands 40, 129 conditional refugees 87–8
Sufi and Elmi v the United Kingdom EU Special Coordinator 87
40–41, 42 Joint Action Plan 87
see also non-refoulement jurisprudence not exonerating member states of own
European Asylum Support Office responsibilities 105
Afghanistan country guidance 163 one-for-one programme 87, 97, 175
European Border Agency 80 Turkey as safe third country 87, 88, 99
European Convention on Human Rights externalisation of border controls 85
see ECHR ‘illegal’ migrants 91, 92
Frontex 79–80 Italy-Libya Memorandum of Understanding
Fundamental Rights Agency 174 85, 89–90
Istanbul Convention 286, 296 readmission agreements 90
Art 60 291–2 reception centres in Libya 90
Art 61 291–2 and necessary interference 99
Joint Operation Triton 193 Operation Sophia 89, 90
member states granting temporary readmission policy 91–2
protection 65–6 linked to access to protection 97

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linked to resettlement 97 restrictively 263

refugee/migration crisis 84, 85, 165 UNHCR principle of dependency 263
restraining onwards movement 84 need for culturally sensitive situation-specific
support conditional on third country definition 264
cooperation 98 need to expand definition 263, 265
European Council on Refugees and Exiles 42, 65 as wide-ranging concept 264–5
European Migration Network 65 family reunification/reunion 253, 267
Europe-route administrative difficulties 266–7
exclusion 390 benefits of
JS (Sri Lanka) v Secretary of State for the to refugees 265
Home Department 56, 387, 393, to state 265
394, 395 as conditional right 263
under Art 1F(a) Refugee Convention and CRC 257–9
390–95, 401 definition 253, 260
aggression 391 as discriminatory against women 288
complicity test 393 as essential part of resettlement 253
crimes against humanity 391 as facilitated by international human rights
crimes against peace 391 law 261
extended liability 392–5 as group right 261
personal and knowing participation test international rights and obligations 254, 265
393, 394 difficulty determining 259–60
underlying crimes 391–2 non-enforceable 260–61
voluntary significant and knowing sovereign rights as qualifier to 261, 265
contribution test 394–5 low priority of wider family 264
war crimes 390–91, 392 no specific right to 261
under Art 1F(b) Refugee Convention 99, 395–9 principle of family unity supporting 257
applicable definition of crime 395 and relationships of care 264
complicity 398 UNHCR support 256–7
expiation 397 family unity 253
extended liability 398–9 definition 253, 260
foreign convictions 395–6 essential right of 256
political crimes 397–8 family reunification/reunion distinction
serious crime 396–7 260, 261
terrorist activities 397 in IHR law 254–5, 259
under Art 1F(c) Refugee Convention in refugee law 255–6
399–400, 402 right to
test for 400 high threshold 262
X & Y v Refugee Status Appeals Authority 393 implementation 260, 266–7
extraterritorial jurisdiction 170 not extending to reunification 259
sovereign rights as qualifier to 261
family state compliance with 259
defining 262–5 whether customary international law
Australia 264 261–2
extended family 263 state obligation not to interfere with 261–2
immediate/nuclear family 263 first country of asylum 10, 69, 128
as means of state control 263 forced displacement

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illegal 158 forced marriage 290

legal humanitarian 158 Fornah v Secretary of State for the Home
forced return 158–9 Department 290
absent asylum grounds 160 In re Fauziya Kasinga 289
as human rights violation 214 Islam v Secretary of State for the Home
freedom of movement 95 Department; R v Immigration Appeal
future behaviour 279–80 Tribunal ex parte Shah 289
Ahmad and Others v Secretary of State for Minister for Immigration and Multicultural
the Home Department 272–3 Affairs v Khawar 289
Applicant NABD of 2002 v Minister for Olimpia Lazo-Majano v INS 290
Immigration and Multicultural and play-the-game approach 290–91
Indigenous Affairs 273 protection against 281, 289–92
core/margins approach 274, 276–7 in human rights law 290, 291
Danian v Secretary of State for the Home in refugee law 289, 290
Department (Appeal) 270, 272 Refugee Appeals Nos 71427 76044 290
discretion requirement 268–9, 271, 273, 277 Geneva Conventions
UK Supreme Court avoiding 279 Additional Protocol I 149
dispute 269–71, 274 Common Article (1) 158–9
argument for modification of Global Compact for Refugees 14, 83
behaviour 275
calls for protected/unprotected activity human rights
distinction 274 derogatory in times of public emergency 312
core of 277–78 doctrine of implied limits 136–8
fundamental characteristics approach law see international human rights law
278, 279 non-derogatory 312
surrogacy approach 278, 279 right to leave 94–6
HJ (Iran) and HT (Cameroon) v Secretary of no parallel right of entry 94
State for the Home Department 268, not absolute 339
271–2, 273, 274 restrictions on 95–6
Mendis v Immigration Appeal Tribunal significance of 100
and Secretary of State for the Home rights incorporated in ICESCR 312
Department 270, 272 rights not carried forward from UDHR 312
Refugee Appeal No. 74665 274 human trafficking 324, 341–2
rejection of reasonable requirement anti-trafficking instruments 324, 327
standard 272 criminalising certain forms of
S395/2002 v Minister for Immigration migration 339
and Multicultural Affairs; objectives 340, 341
Appellant S396/2002 v Minister and right to leave 339–41
for Immigration and Multicultural UN Smuggling Protocol 339, 340
Affairs 268, 273, 274–5 UN Trafficking Protocol 339, 340
shift in analysis 271–2, 275–6 criminal law regime underpinned by
assumption of repatriation 327
gender-based violence law/refugee law conflict 326–8, 338–41
AA and Others v Sweden 290–91 anti-trafficking campaigns 339
continuum of 292 law/refugee law interaction 324–6
FGM 289 L.E. v Greece 333–4

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M.S.S. v Belgium and France 335–6 and encouragement to exile 54–5

Ould Barar v Sweden 332 El Salvador 55
Rantsev v Cyprus and Russia 332 Poland 55
severity threshold 329 as last resort 56
Tarakhel v Switzerland 336 and non-refoulement 51–4
types of claims 328–9 not well publicised 56
victims see victims of human trafficking processing times 53
vulnerability of asylum seekers to 327 as protected entry procedures 44
referral arrangements 52–3
ICCPR 312 transfer of successful applicants 53
Art 6 355, 366 USA 45–6
Art 7 93–4, 331, 355 Central American Minors program 46, 49
Art 9 366 cessation of 46
Art 12 94, 95 eligibility 46, 49
(2) 339 indiscriminate violence
(3) 99, 100, 339 disruptive effects of 151
Art 17 261, 262 incentives to engage in 150
Art 23 254, 262 indiscriminate impact of 149
Art 26 354 in international humanitarian law 149–51
ICESCR 37, 371 Additional Protocol I 149
Art 2(2) 354 in international refugee law 147–9
Art 6 215, 216 interpretation 146–7, 155
Art 10(1) 254 IRL/IHL convergence on 151–7
Art 11 39 see also international humanitarian law;
in-country programs 44, 54 international refugee law
applicants falling outside refugee definition 44 as key element in subsidiary protection
Australia 45, 48 frameworks 147
eligibility 50 lack of clear definition 147, 148, 149–50
Canada 47–8 facilitating asylum restriction 148
eligibility 50 legal conceptualisation of indiscriminate
political prisoners and oppressed attacks as basis for concept 149, 151
persons designated class 47 and loss of civilian cooperation 151
source country designated class 47–8 and loss of legitimacy 150–1
challenges 53–4 no conformity of interpretation 152
as complementary 53 in strategic studies 149
criticism of 51 strategic violence contrast 150
as justifying restrictive border controls targeted violence not mutually exclusive 148
51–2 test for 147–8
as putting applicants at risk 52 inhuman and degrading treatment 7, 10, 40, 43,
as discretionary acts of the state 44–5 92, 180, 196, 216, 217, 312, 363
eligibility 46, 49–51 Intergovernmental Committee for Migration 55
evidentiary standards 49 Internal Displacement Monitoring Centre 345
individuals with connection to settling internal flight alternative 35, 36, 42
state 50–51 analysis as exclusion enquiry 160–61
for particular groups 49 demanding high level of IDP protection 43
under Refugee Convention 49 Mogadishu as 41, 42–3

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and non-state actors 38–9 UNHCR criteria comparison 165–6

protection-based understanding 160 see also forced displacement; internal flight
reasonableness test 129, 161 alternative
see also internal relocation internally displaced persons
internal protection alternative 126, 138, 221, 222 camps 43
as based on subsidiary nature of refugee definition 31, 157
protection 128, 135–6 forced displacement 33
endorsement under certain conditions 136 as internal refugees 33
expansion 128–30 IRL not generally applying to 157
application in claims to subsidiary outnumbering refugees 31
protection 129 protection 31–2, 34–5
and ECtHR jurisprudence 130 cluster approach 39
international consideration of 129 as complementary to refugee protection 43
as implied exclusion clause 132–3, 134–5 as internal flight alternative 35, 36
implied limits approach 136–7 preventive protection 35, 36
as integral aspect of refugee status 133–4 safe zones 35–6
interpreting 137 refugees
as mandatory consideration in EU 128 distinction 31, 32, 43
Michigan Guidelines (1991) 132 practical similarities 32, 33, 43
no clear parameters for 136 responsibility for 33
origins 126–8 see also internal protection alternative
legal-political context 127–8 International Bill of Rights 312
removal to as violation of Art 3 ECHR 129 International Court of Justice
treaty basis 130–31 Corfu Channel (UK v Albania) 107
well-founded fear of persecution test 129, Statute Art 38(1) 218
130, 131–2 International Covenant on Civil and Political
see also internally displaced persons Rights (1966) 5, 37
internal relocation 157–8 Art 12 39
and country guidance 164 International Covenant on Civil and Political
and international humanitarian law 140–41 Rights see ICCPR
IRL-compliant 157 International Covenant on Economic Social and
in practice 161–4 Cultural Rights see ICESCR
as protection issue 161 International Criminal Court
reasonableness test 161 Rome Statute 380, 391–2
transforming asylum seekers into internally Art 25 398
displaced persons 157 international human rights law
UK policy 139–40 and defining persecution 291
Afghanistan 162–3 and gender-based violence 290, 291
CPINS in 162 and protection of women 291–2
EU guidance contrast 163 recognising specific concerns of women 296
explicity linking to determinations of international humanitarian law
indiscriminate violence 162 aims 152
Iraq 162 as distinct from IRL 153
logic 159–61 indiscriminate violence in 149–51
threshold 161–2 IRL convergence debate 151–7
troubling aspects of 166–7 interpretation of Art 15(c) 153, 154–5

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shared elements 152, 155 special asylum visas 114, 122–3

see also international refugee law Cartagena Declaration 25, 109, 114
as lex specialis 152 allowing expansion of national
not all harm to civilians unlawful 153 systems 119
as relevant to treatment of refugees 156–7 continuous re-evaluation 119, 120
International Law Commission definition of refugee 20, 112, 119–20
Articles on State Responsibility ensuring minimum standards of refugee
Art 16 101 protection 119
Art 17 103, 104 Colombia
Art 47 105 humanitarian situation 111–12
disguised expulsions intent requirement 220 peace negotiations 111
Draft Articles on Responsibility of Colombia see Colombia
International Organizations 104 Mexico Plan of Action 113, 114, 119, 121–2
International Lesbian and Gay Human Rights aims 120
Commission 318–19 dual responsibility in 122
International Organization for Migration 344, 408 as humane dialogue 121
international refugee law roots of 120
aims 151–2 numbers of refugees 111
as distinct from IHL 153 refugee protection 112, 114
flexibility of interpretation 170 spread of best practices 120
IHL convergence debate 151–7, 293 regional asylum policy
case law 153–6 developing 112
feasibility of importing IHL norms into refugee protection approach 119
IRL 152–3, 156 reversing trend of asylum restriction
shared elements 152, 155 110–11
synergistic approach 156 responsibility-sharing 111, 113, 114, 115–18
see also IHL as alternative to burden-sharing
impossible to predict evolution 187–8 117–18, 121
indiscriminate violence in 147–9 see also responsibility-sharing
women’s claims under 281 San Jose Declaration 113, 119, 120
International Refugee Organization 374 solidarity 113, 114, 117, 120
Iraq Operation Provide Comfort 36 Borders of Solidarity 121
irregular migrants 75, 85, 87, 96, 173, 404 emphasising need for sharing
interception 197 responsibility 121
as potential terrorists 378 Solidarity Cities 120–21
Solidarity Resettlement 121
Khartoum Process 74 Spirit of Cartagena 112, 114, 119, 123
lawful stay 7, 208, 216
Latin America League of Nations Convention relating to the
Brazil International Status of Refugees (1933)
Brazil Plan of Action 113–14, 119, 120 189, 190, 193
leadership on refugee protection 114,
118–19 market of deflection 83
normative resolution No17 115, 123 Michigan Guidelines on Protection Elsewhere
normative resolution No20 115 180, 217
Refugee Act (Law 9474/1997) 114, 123 migration

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drivers of 345 as a central element of human rights 190

forced 34, 57 as cardinal obligation to refugees 207
illegal 90, 352 continuance of constraints on 188–9
international cooperation on 83 definition 21
management see migration control exceptions 384, 385
pull factors 79, 405 extraterritorial application 177
avoiding 83 first appearance 189
pull-back 9, 84, 90, 97, 99, 104 as fundamental to refugee protection 21, 92,
push factors 79, 405 183, 190
ameliorating 34–5 future of 205–6
push-backs 97, 174, 205, 283, 388, 407 humanitarian 158
migration control 8, 82–5 as injunctive relief against return 220
based on state sovereignty and national jurisprudence see non-refoulement
interest 82–3 jurisprudence
border operations in other states 9 limitations 185, 205
carrier sanction 9 non-applicability under Refugee Convention
cooperative deterrence model 84 185, 193–4
deputational containment 84 Arts 1F/33(2) distinction 194–5
deterrence paradigm 84 under Art 1(C)(D) & (E) 193
entry barriers 83 under Art 1F 193–4
EU see EU migration control obligations 148
exit vetting 84 as peremptory norm 189–3, 205
extraterritorial 8–9 customary international law 190–91
forced return 77 jus cogens 191–2
pre-entry controls 84 principle protecting everyone 184
privatization 9 questions regarding absolute nature of 187
pull-back operations 9, 84 rejection at the frontier 22
see also deterrence restrictive interpretation 93
most favoured foreigner status 215, 216 return to countries below threshold 10
return to countries with poor protections 10
Nansen Initiative on Disaster-Induced right to work gap 215–17
Cross-Border Displacement 28, 347 standard of proof 220
Protection Agenda 343, 351–2 of the undesirable and unreturnable 185–6
see also climate refugees as well-established 185
Nansen Principles 345 non-refoulement jurisprudence 6–7, 93, 187–8,
Netherlands Repatriation and Departure Service 408 205–6
New York Declaration for Refugees and Migrants Australia
(2016) 82–3 CPCF v Minister for Immigration &
New Zealand Immigration and Protection Border Protection 187, 203–5
Tribunal 354 Ruddock v Vadarlis 187, 202–3
see also climate refugees Canada Suresh v Canada (Minister of
non-entrée Citizenship and Immigration) 187,
as evolving 178 200–201
forms of 173 ECtHR 196
see also deterrence Hirsi Jamaa and Others v Italy 174,
non-refoulement 2, 6, 9–10, 14, 37, 92–4, 170, 183 187, 196–7

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M.S.S. v Belgium and Greece 73, 100, strengthened 21

187, 197–8, 216–17, 219–20 as regional complement to 1951 Convention
Soering v United Kingdom 6, 187, 196 17, 25–6
UK 198 responsibility-sharing 19, 23–4
R (on the application of Limbuela Tesema
Adam) v Secretary of State for the persecution
Home Department 217 acts constituting 313
R v Secretary of State for the criminal punishment of same-sex
Home Department ex parte relationships as 314–15
Sivakumaran and Conjoined see also criminalisation of same-sex
Appeals 198 relationships
R v The Secretary of State for the Home enforcement-centric analysis 315
Department Immigration Appeals human rights approach to defining 311–13
Tribunal ex Parte Anthonypillai adoption in UK 313
Francis Robinson 198–9 categorisation of rights 312
US R v Secretary of State for the Home
Acting Commissioner Immigration and Department ex parte Blanusa;
Naturalization Service et al. v Ravichandran (No1) 313
Haitian Centers Council Inc. et Shah and Islam v Secretary of State for
al. 187, 199–200 the Home Department 313
Haitian Centre for Human Rights v state complicity in harm 311
United States Inter-American state failure to meet protection
Commission of Human Rights 200 obligations 311
threshold as sustained or systemic denial
OAU Convention (1969) 16, 30 of core human rights 312
1951 Convention differences 18 as serious harm + failure of state protection 313
adaptability 27–30 threshold
Art I 19, 22 proposed Convention on Territorial Asylum 20–21
Art II 21, 22, 23–4 prosecution of asylum seekers 224–5
asylum 22–3 Arbaoui v Minister of Justice 232
definition of refugee 17, 18 areas of concern 233–4
expanded 19–21, 28 B010 v Canada 226–7
exclusion provisions 21–2 In re Ouakli Abdi and Zaouche 232
humanitarian approach 17 Ministry of the Interior v Felicitas LJ 233
implementation 17–18 R v Appulonappa 226, 227
intentions 16–17 R v H 233
interpretation 29 R v Uxbridge Magistrates Court and another
non-refoulement 17, 18–19, 21–2 ex parte Adimi 228
normative significance 25–6 Re Gonzales 233
application to future refugee flows 29 without consideration of merits 228
practical implementation 26–7 without reference to Art 31(1) 233
provisions 17 see also Article 31(1) Refugee Convention
ratification 17 protected entry procedures
refugee protection 18–19 and encouragement to exile 54–5
recognition of security dimensions 19, humanitarian visas 44
24–5 in-country programs see in-country programs

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Orderly Departure Program out of Vietnam 54 indirect 40

planned annual resettlement programs 44 non- see non-refoulement
potential use of 45 push-backs as 174
where country of departure has veto 54 refugee
protection African Union definition 168
elsewhere 10, 217 concept centered on persecution 33
from gender-based violence 281 internally displaced persons distinction 31,
subsidiary 196, 281, 331 32, 43
M’Bodj v Belgium 8 nondiscriminatory rights of 34
surrogate 278 Refugee Convention definition 328
temporary see temporary protection right to access to procedure for determining
women’s access to see women’s access to status as 100–101
protection status
Protocol relating to the Status of Refugees contingent on crossing a border 33, 34
(1967) 238 determination see refugee status
determination
readmission agreements 85, 88, 90, 91–2, 110 Refugee Convention (1951) 2, 33
EU-Turkey 98 access to protection 8–9
re-bordering 281, 282–3 African states’ ratification 16
challenging 285–6, 287 alienage 3
differential treatment of women justifying Art 1A 328
288–9 Art 1A(2) 44, 51, 62, 269
effects of 283–4 inclusion criteria 353, 368
gendered impacts of 281 Art 1D see Article 1D Refugee Convention
Hirsi Jamaa and others v Italy 287 Art 1F 185, 378, 380
legal 283 (a) 379–80, 390–92
carrier sanctions 288 (b) 379
disproportionate impact on women 288 (c) 379, 380, 384
reduction in number of Schengen visas exclusion of anyone who has committed
granted 288 a serious crime 378–9
restrictive family reunion policies 288 interpretation 380
limitations of IHL/IRL 285, 286–7 terrorism included in scope of 380, 381
Opuz v Turkey 287 see also exclusion
physical 283 Art 2 378
Rantsev v Cyprus and Russia 287–8 Art 16 419–20
risks to women Art 24 218
death 284 Art 31(1) see Article 31(1) Refugee
gender-based violence 284–5 Convention
sexual exploitation 284 Art 32 378
and state ability to deny access to Art 33(1) 21, 51, 92, 93, 170, 183–4, 189–90
jurisdiction 286 application 93
refoulement Art 33(2) 93, 185, 190, 378, 384
chain 217 exceptions to non-refoulement principle
constructive see constructive refoulement 194, 195
definition 207 Art 35 13
direct 98–9 Australia and see Australia

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challenges facing 14–15 Syrian 114, 239

compliance 12–14 refugee law
contingent on right to leave 100 exclusion clauses in see exclusion
at critical juncture 14 and sexual orientation see sexual orientation
Declaration of State Parties to the Convention UNSC resolutions becoming 380–82
and the Protocol (2001) 11 refugee status determination 209
definition of refugee 2–3, 11, 126–7, 269, 328 burden of proof 307–8
entitlement 7–8 credibility assessments 306–8
evolution of 3–4 criticism of 306
harm 4 and culture of disbelief 306–7
gender-specific 4 late disclosure 308
inflicted by non-state actors 3–4 threshold 307
relevant 4 5 as declaratory process 225
human rights approach 4–5 discretion requirement 268
and human rights law 6–8 see also future behaviour
internal flight alternative requirement 20 impact of trauma on 303
interpretation 12, 250 preceding prosecution 227–8
contentious issues 12 standard of review see standard of review
gendered 295 refugees
intentionalist 250 by choice 275
teleological 250 climate/environmental see climate refugees
textualist 250 lack of protection 110
as losing relevance 8 numbers of 109–10
nexus requirement 5 Palestinian
no individual right to asylum 22 exclusion from Art 1D 359–60, 364
no reporting or complaint mechanism 14 leaving UNRWA protection 369, 372
non-refoulement 2, 6–7, 21, 183 relocation test 369–70
see also non-refoulement stateless 368, 369–70
not defining persecution 310 UNRWA protection 361, 363, 367
particular social group concept 5–6 see also Article 1D Refugee
preamble burden sharing 72, 117 Convention; UNRWA
prohibition on forced return of refugees 170 terrorism discourse 374–8, 380, 388–9
Protocol Relating to the Status of Refugees emergence 375
(1967) 11, 207 limitation of refugee resettlement 376–7
restricted application 11 Muslim ban in US 376
restrictionist asylum policies weakening overshadowing protection 378
refugee protection 110 permeating global refugee frameworks
rights as contingent and relative 215–16 377–8
on solidarity 9–10 in public consciousness 375–6, 377, 381
temporal limitation 11 removal of failed asylum seekers 403, 404,
travaux préparatoires 33 413–16
universality 11–12 Art 1F-excluded individuals 407
well-founded fear of being persecuted 3, 4 no coherent policy on 414–15
refugee crisis no sharing of information on 410–11
Bosnia and Kosovo 69 forced return 408–9
Europe 74, 78, 85, 165, 176, 376 from Netherlands 408–9

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relocation to third country 409–11 Sri Lanka Open Relief Centres 36

self-arranged 409–10 standard of review 417, 418, 428
temporary residence permits 410 Committee Against Torture 420–21
voluntary return 404–8 ECHR 421–4
factors affecting 405–6 EU 424–5
government promotion of 407–8 Hilal v United Kingdom 424
as important component of EU regime 405 in ICCPR 420
and stay factors 407 minimum procedural guarantees 419–20
see also undesirable asylum seekers and national autonomy 419
responsibility to protect (R2P) 38 Nirmal Singh v Canada 420–21
responsibility-sharing 109, 115–18 in Refugee Convention 418–20
as alternative to burden sharing 117–18 Salah Sheekh v the Netherlands 424
as change in outlook on refugee protection 115 Soering v United Kingdom 6, 423
as key to refugee protection 118 Vilvarajah v United Kingdom 423, 427
Latin American 115 ECtHR 427–8
need for both regional and national 117 and effective access to justice 426
no universal system of 116 Kudla v Poland 427–8
regionalised 116 legality review 417, 426
benefits 116 merits review 417–18, 425
relevance of 115 articulation of right to 426
see also Latin America providing most procedural protection 426
Tsfayo v United Kingdom 427
safe third country 10 UK 426–7
application of rule 326, 334–6 state responsibility 9
rights protection threshold 217
Turkey as 87 temporary protection 57–8, 69
safe zones 32, 35–6, 43 Australia 61
issues under international human rights law eligibility 62
36–8 end of protection 64
unsafe 38 policies undermining Refugee
sexual orientation Convention 68
and asylum claims 310–11 rights and entitlements 63
criminalisation of same-sex relationships Temporary Humanitarian Concern
see criminalisation of same-sex Visas 59
relationships Temporary Protection Visas 59, 61, 67–8
as grounds for protection 313 time limits 62
and persecution 314, 322–3 see also Australia
application of Refugee Convention 310 benefits to host states 67
defining persecution 311–13 Comprehensive Plan of Action
see also persecution (Vietnamese) 58
stigmatisation of minority sexual identities 321 eligibility 62
compounded in refugee situations 321–2 as emergency response to mass-influx 60
psychological harms of 322 EU 65–6
solidarity 9–10 definition 60
refugee regime in need of 179 eligibility 61
Somalia humanitarian situation 42 end of protection 64

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at national level 65–6 echoing Refugee Convention exclusion

not having major role in protection of clause 375
forced migrants 66 and pre-emptive action by states 375
rights and entitlements 63 war on terror 375, 378, 388–9
Temporary Protection Directive 58–9, 60 torture prohibition on 217
time limits 62 Turkey
see also EU conditional refugees 87–8
expanding protection 67 and EU migration control see EU migration
no clear definition of 57 control
pivotal role in protection of forced migrants 67 Law on Foreigners and International
purposes of 68 Protection (2014) 87–8
Turkey 59, 60, 66–7 open door temporary protection policy 59
definition 60–61 readmission agreements 88, 89
eligibility 62 as safe third country 87, 88, 99
end of protection 64 Syrian refugees in 66
rights and entitlements 63 illegal mass returns 88
Temporary Protection Regulation 60–61 visa entry requirements 89
time limits 62
see also Turkey UK
US 67 AE and FE v Secretary of State for the Home
eligibility 62 Department 166
end of protection 64 Anti-terrorism Crime and Security Act
rights and entitlements 63–4 (2001) 380–81
Temporary Protected Status 59, 61, 67 anti-terrorism mechanisms 380–81
time limits 62–3 Asylum and Immigration Tribunal 142–3
see also USA AA (Article 15(c)) Iraq CG 162
as warehousing 77 BA (Returns to Baghdad) Iraq CG
terrorism 162, 164
Al-Sirri v Secretary of State for the Home HM and Others (Article 15(c)) 148
Department and Anor 382–3 KH (Article 15(c) Qualification
and Art 1F Refugee convention 378–9 Directive) Iraq CG 153–5
attacks 375, 376 asylum claim rejection rates 140, 145
Bundesrepublik Deutschland v B and D 383 Asylum Policy Instruction: Assessing
Commissaire général aux réfugiés et aux Credibility and Refugee Status (2015)
apatrides v Mostafa Lounani 386–8 146, 159–60
home-grown 377 Compliant Environment Policy 79
HT v Land Baden-Württemberg 384–6 Country of Origin Information Services 304
JS (Sri Lanka) v Secretary of State for the Country Policy and Information Notes 139
Home Department 383 Afghanistan 162–3
narrowing definition of 382–4 combining country information and
refugees discourse 374–8, 380, 381, 388–9 explicit policy guidance 144–5
overshadowing protection 378 concerns over 141, 142
see also refugees creating reverse burden of proof 145–6
UNSC resolutions 375 cut-and-paste approach to 164
becoming refugee law 380–82 determination of indiscriminate violence
139–40

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inconsistent use of 143 Declaration on Territorial Asylum Art 3

Iraq 162 184–5
objectivity 142–3 Economic and Social Council 32
policy summaries 162 Framework Convention on Climate Change
role of 141 351
sources 142 General Assembly
use of country of origin information 143–4 Declarations on Measures to Eliminate
see also internal relocation International Terrorism 374–5
Country Policy and Information Team 141 Resolution 37/120 365
as inadequately resourced 144 Resolution 69/88 370–71
forced returns 140–41 Global Compact for Safe, Orderly and
justification of 139 Regular Migration 83
routine deportation of failed asylum Guiding Principles on Internal
seekers 139 Displacement 157
gender guidelines for asylum procedures 298–9 Principle 15(d) 158
Hostile Environment Policy 77–8, 79 Human Rights Committee 93–4
House of Lords R (Hoxha) v Special General Comment No. 27, Art 12 340
Adjudicator 133 New York Declaration for Refugees and
Immigration Act (2014) 426 Migrants 11
Immigration Asylum and Nationality Act Office of the High Commissioner for
(2006) 381 Refugees see UNHCR
Immigration Rules 141, 159 Protocol against the Smuggling of Migrants
Independent Advisory Group on Country by Land Sea and Air 178
Information 141 Protocol to Prevent Suppress and Punish
Independent Chief Inspector of Borders and Trafficking in Persons Especially
Immigration 141, 145, 303 Women and Children
internal relocation policy 139–40, 159 Art 7(1) 334
see also internal relocation Art 8(1) 327
New Vision for Refugees (2003) 175 Regional Conference on Migration (for the
R v Secretary of State for the Home Americas) Protection for Persons
Department ex parte Robinson 160 <p:index3>Moving across Borders
Rashid v the Secretary of State for the Home in the Context of Disasters: A Guide
Department 143–4 to Effective <p:index3>Practices for
Roma Rights case 38 RCM Member Countries 352
Terrorism Act (2000) 382 Relief and Works Agency for Palestinians in
Visas and Immigration 303 the Near East see UNRWA
initial decision-making 304 Security Council
UN Resolution (1373) 375, 399
Charter Art 2(7) 44 Resolution (1377) 375, 387
Committee on Economic, Social and Cultural Resolution (1624) 375, 387
Rights 39 Resolution (2178) 387
Conciliation Commission for Palestine 364 Special Rapporteur on the Human Rights of
mandate 365 IDPs 32
Convention Against Torture 420 Special Representative on Migration 45
Convention on the Rights of the Child 337 undesirable asylum seekers 404
and Art 1F Refugee Convention 404

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Art 1F-excluded individuals 407 Summary Conclusions on International

decreasing numbers of 415 Protection of Persons Fleeing Armed
levels of 404 Conflict and Other Situations of
link with crime/security issues 404 Violence 28
most undesirable 408 supervisory role 13
public perception of 407 Universal Declaration of Human Rights 312
removal of see removal of failed asylum Art 13 37, 74
seekers Art 14 37, 170
unreturnable 403 Art 16(3) 254
detention 413 universality 11–12
lack of coherent policy 414–15 UNRWA 361
prosecution of 411–12 1993 Peace Implementation Program 366
residence permits 413, 414 and application of Art 1D Refugee
Undesirable and Unreturnable project Convention 360–61
186, 403 EU jurisprudence on cessation of protection
and unrelocatable 411 363–4, 367–70
UNHCR 4 focus on personal safety and living
Annual Tripartite Consultations on conditions 367
Resettlement (2001) 263 involuntary departure test 364, 368, 369
competence 13 Mostafa Abed El Karem El Kott and
Convention Plus initiative 14 Others 363–4
criteria for assessing internal flight relocation test 369–70
alternative 165–6 triggering Art 1D inclusionary
estimation of global numbers of refugees 16 paragraph 364, 367–8, 372
Executive Committee Conclusions on family mandate
reunification 255, 256, 257, 258 human development 366
on gender-sensitive approaches 295–6 humanitarian assistance 365
Global Compact on Refugees 83 protection 365–6
Global Trends report 109 providing education 365
good offices role 13–14 NZ jurisprudence on cessation of protection
Guidelines 370–73
on Internal Protection 165 AD (Palestine) case 370
on Reunification of Refugee Families detailed consideration of protection
256–7, 263 mandate 370–71
Guiding Principles on Internal involuntary departure test 371–2
Displacement 38 triggering Art 1D inclusionary
Handbook and Guidelines on Procedures paragraph 371, 372
and Criteria for Determining Refugee protection 361
Status 141, 147, 261, 299 ceased for any reason 363, 364, 366
Note on the Standard of the Burden of leaving 368, 369
Proof 307 providing humanitarian assistance 365
primary mandate 39 responsibility for addressing women’s
Safe at Last? report 163–4 human rights issues 367
see also Article 1D Refugee Convention
USA
Alien Migrant Interdiction 192

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Immigration Act (1990) § (244) 61 reception conditions 332–3

Immigration and Nationality Act (1952), § refugee status 328–30
101(a)(42)(B) 46 subsidiary protection 331–2
Migration Policy Institute 45 qualifying for refugee status 329–30
Refugee Assistance Program 376–7 recovery and reflection period for 335
temporary protection as national status as vulnerable persons under EU legislation
protecting nationals of certain 324–5
countries 67 see also human trafficking
Vienna Convention on the Law of Treaties see
VCLT 12, 29 VCLT
Art 31 224–5, 311 violence
(3)(c) 137 civil war 151
victims of human trafficking indiscriminate see indiscriminate violence
access to territory 326–7 targeted 156
application of the ‘safe third country’ rule
326, 334–6 war on terror see terrorism
averting deportation 325, 327–8, 335 women’s access to protection 281, 282, 292–3,
children 337–8 303, 308–9
eligibility for assistance measures 325–6 evidential barriers 299–301
entitlement to non-punishment 326, 336–7 credibility assessment 306
Refugee/Trafficking Conventions officials restricting disclosure 302
differences 337 procedural barriers 297–9
extension of non-refoulement guarantee lack of country-specific information
for 331 303–5
identifying 326 lack of knowledge of gender issues 304
and refugee status determination 333–4 psychological factors 301
international protection depression 301
complementary protection 330–31 PTSD 301–2
procedural guarantees 332, 333 undermining of rights 306
qualifying for 324

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