Refugee status determination in Australia: breaking the rules?

This article looks at the asylum regime in Australia. In particular, it evaluates the procedures that are used to assess claims for asylum and the extent to which they meet international refugee and human rights standards. The article discusses four key issues in the adjudication programme: the appointment of decision-makers to tribunals that hear refugee applications, the accessibility of the review process by asylum seekers, questions relating to the efficiency of the procedures used and the mandatory detention system. It is argued that whereas Australia is party to the main international treaties that seek to protect refugees and asylum seekers, its asylum law and policy is in many ways inconsistent with international norms. To conclude, the author proposes the observance of human rights and refugee standards by asylum states. This revised version was published online in July 2006 with corrections to the Cover Date.     

Changing the support system for asylum seekers

The issues of asylum and the treatment of asylum seekers have once again hit the headlines in the UK. The recent problems in Kosovo in the former Yugoslavian territory have made the problem of dealing with asylum claims more acute. The past arrangements for asylum seekers have been inadequate and piecemeal and have developed as a result of changes made in 1996 and the subsequent intervention by the judiciary. The cost to the British taxpayer of the pre-1999 Act asylum arrangements has been over 500 million per year, 80 per cent of which has been spent on accommodating and supporting asylum seekers. There is also a huge backlog of cases and current figures are indicative of a system that is unable to cope. It is in the light of these problems that the Government has passed the 1999 Immigration and Asylum Act. This Article examines the changes that will be made to UK asylum law by the 1999 Act and assesses the problems that may be caused by those changes in the areas of housing and other forms of assistance and the effect that these may have on families and children seeking asylum in the UK.     

Emotional Reactions to and Support for Immigrant Policies: Attributed Responsibilities to Categories of Asylum Seekers

Dutch participants were asked about their support for immigrant policies aimed at public assistance, opportunities, and rights for asylum seekers. In two studies, the degree of support was examined as a consequence of feelings of anger and sympathy toward asylum seekers. In the first study, both emotions were independently related to support for immigrant policies. Anger had a strong negative effect and sympathy a positive one. In the second experimental study, the effects of these emotional responses on support for immigrant policies were examined for two categories of asylum seekers: political refugees who have little choice but to migrate and so called economic refugees who themselves chose to migrate. These two categories feature in public debates and differ in the perceived responsibility of asylum seekers for leaving their home country. It was found that for political refugees only feelings of sympathy affected policy support, whereas for economic refugees only feelings of anger predicted policy support. In both studies, national identification was negatively related to support for immigrant policies and it did not moderate the effects of anger and sympathy. There was some evidence that anger mediated the relationship between national identification and policy support.     

Unmasking Deviance: The Visual Construction of Asylum Seekers and Refugees in English National Newspapers

This paper explores the visual representation of asylum seekers and refugees delineating how English newspaper imagery constructs such groups as deviant and dangerous. A qualitative visual analysis of nine of the major national newspapers demonstrates how mediated images of asylum seekers focus upon three distinct ‘visual scenarios’ in the discovery of deviance, which collectively demonstrate how the social portrayal of the criminal immigrant fuses the otherness of the stranger with the otherness of the deviant. First, the faceless and de-identified stranger enables the construction of a panoply of feared subjects. Second, stigma is implicitly illustrated, deviance obliquely intimated and ‘spoiled identities’ constructed. Third, the mask is removed, the asylum seeker is identified and their deviant status confirmed. Such a process is reinvented, repeated and reworked in news stories, with deviance becoming increasingly engrained and entrenched in the image of the asylum seeker. This paper details how the repetition of specific visual scenarios in newspaper reporting contribute to the construction of ‘noisy’ panics about asylum seekers and asylum seeking. Moreover, it argues that such imagery is key to the construction of asylum as an issue of security, which necessitates a policy approach that is exclusionary in nature.     

Past Reflections, Future Insights: African Asylum Law and Policy in Historical Perspective

This article argues that an understanding of the evolution ofasylum is an essential ingredient in the search for ideas andperspectives to the plight facing forced migrants. Using Kenyaas a case study, the paper evaluates the extent to which proceduresused to determine claims for asylum, protection outcomes andentitlements met international human rights and refugee lawstandards. It is contended that limited resources, porous boundariesand the mass movement of asylum seekers have compromised thelevel of protection offered to those who seek surrogate protectionin African states like Kenya. In conclusion, critics in thearea of asylum are challenged to undertake historical studies,as a way towards offering best practise lessons for those involvedin the protection of persons forced to flee their home states.     

Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom

No assessment of the state of human rights today could be complete without some consideration of the situation of asylum seekers and the political trends behind it. Four years after the implementation of the 1998 Act, asylum seekers are perhaps more denigrated in rhetoric and harsh practice than they were even before the first promise that rights would be 'brought home' for all 'people' in the United Kingdom. This piece looks at the undermining of the very concept of asylum, dehumanizing policies such as forced destitution, and attacks on access to legal process for those making asylum claims. It goes on to consider judicial attempts at coping with the arena in which high politics and fundamental rights seem in greatest tension. Finally it considers potential implications for the broader aspiration of building a human rights culture in this country.     

The Exclusion of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse

‘Housing’– the practical provision of a roof over one's head – is experienced by users as ‘home’– broadly described as housing plus the experiential elements of dwelling. Conversely, being without housing, commonly described as ‘homelessness’, is experienced not only as an absence of shelter but in the philosophical sense of ‘ontological homelessness’ and alienation from the conditions for well‐being. For asylum seekers, these experiences are deliberately and explicitly excluded from official law and policy discourses. This article demonstrates how law and policy is propelled by an ‘official discourse’ based on the denial of housing and the avoidance of ‘home’ attachments, which effectively keeps the asylum seeker in a state of ontological homelessness and alienation. We reflect on this exclusion and consider how a new ‘oppositional discourse’ of housing and home – taking these considerations into account – might impact on the balancing exercise inherent to laws and policies concerning asylum seekers.     

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Although credibility determinations rest at the core of refugeeprotection, international refugee law has failed to developa body of evidentiary principles that is tailored to the uniquedimensions of the testimony of those seeking asylum. This articleexamines recent developments in assessing oral testimony ininternational criminal law. International criminal law judges,like national asylum adjudicators, must transcend geographic,linguistic, cultural, educational and psychological barriersin order to assess the credibility of testimony. As a result,these new international courts have developed a body of principlesof international evidence law for assessing the testimony ofalleged victims of, and witnesses to, human rights abuses. Currentsocial science research on the asylum procedures in severaljurisdictions reveals that asylum decision makers often failto adapt the determination process to account for the realitiesof refugees presenting their cases in legal fora, directingproceedings with a ‘presumptive skepticism’ of claims.It is argued that the nuanced and rigourous model for the assessmentof the testimonial evidence of alleged victims and witnessesof human rights abuses in war crimes trials introduces effectiveinternational norms for the assessment of credibility in asylumproceedings.     

What Lies Beneath: Exploring Links Between Asylum Policy and Hate Crime in the UK

This paper explores the link between increasing incidents of hate crime and the asylum policy of successive British governments with its central emphasis on deterrence. The constant problematisation of asylum seekers in the media and political discourse ensures that ‘anti-immigrant’ prejudice becomes mainstreamed as a common-sense response. The victims are not only the asylum seekers hoping for a better life but democratic society itself with its inherent values of pluralism and tolerance debased and destabilised.     

Defining, assigning and designing sex

This article challenges the distinction the law draws between male and female. It focuses on the legal and medical treatment of intersexual people. Analysing the nature and rate of intersexuality it argues that there is a significant number of people who cannot be described as either male or female and instead exhibit a range of sexual characteristics. Until recently the law and medicine have insisted that intersexual people should be categorized as either male or female. Surgery was performed to ensure that they had the appearance assumed to be the 'norm' for a man or woman and the law followed this medical assignment of sex. Over the last couple of years the established medical practice and the legal treatment have been challenged. This article discusses the nature of these challenges and argues that there is a strong case for rejecting the traditional legal and medical approach to intersexual people. Cosmetic surgery on intersexual babies should be delayed until the individual is old enough to be able to choose their own sexual identity, which may be neither male nor female. The insistence that every person must either be male or female is no longer supportable in medical or social terms and a much wider range of sexual identities must be recognized by the law.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

North Korean Refugees and International Refugee Law

The severe food crisis of the 1990s forced thousands of NorthKoreans to leave their country in search of food. Most of themcrossed the border into China, to which the Government of thePeople's Republic of China (the PRC) responded by forcibly repatriatingdefectors to North Korea, thus placing many of them at riskof being subjected to inhumane and degrading treatment and,at times, even death. This article provides an overview of thesituation of North Korean asylum seekers and analyses the legalprotection available to North Korean defectors under internationallaw. The article focuses specifically on the situation of NorthKoreans in mainland China and China's obligations under internationalhuman rights and refugee law. The aim of the article is to contributeto the elaboration of durable solutions for the plight of NorthKorean asylum seekers and to develop a range of recommendationsfor law reform and policy change.     

The provenance of émigrés: the validity of measuring knowledge of places

Establishing the origin of those seeking asylum is essential but difficult as asylum seekers often cannot corroborate their origin claim with documents. The aim of the present study was to assess whether asking knowledge questions, sketch questions and impossible questions are valid methods to determine the veracity of an origin claim. Participants (N?=?105) from Tilburg (truth-tellers), Maastricht (partial liars) and Gothenburg (full liars) were asked to convince an interviewer that they originated from Tilburg. Half of them prepared and half of them did not prepare themselves for the interview. They were asked 10 knowledge questions typically asked to assess the credibility of origin claims, 4 impossible questions and 1 sketch question. Participants from Tilburg answered more questions correctly than participants from Maastricht and Gothenburg. Performance also improved with preparation. Even though the results did provide some support for the validity of assessing claims about origin by asking knowledge questions, the differences between the groups were modest, and it was impossible to correctly identify all truth-tellers and liars. Changing the output modality from verbal answering to sketching contributed to the credibility assessment of origin claims, whereas impossible questions were not discriminatory.     

Seeking Asylum at Embassies: A Right to Entry under International Law?

Is the processing of asylum claims at embassies and the grantof ‘humanitarian visas’ within the framework ofProtected Entry Procedures a mere expression of the politicalbenevolence on behalf of potential host states vis-à-visprotection seekers, or do both reflect legal obligations owedto the individual applicant? If so, does international law providefor a right to entry in such cases? In this article, the existenceof a legally binding right to seek asylum encompassing an entrycomponent shall be explored first together with the questionwhether any such right may have any implications on the practiceof Protected Entry Procedures. Second, the relevance of explicitprohibitions of refoulement shall be explored together withimplied protection norms of human rights law (to be found inthe ICCPR, the ECHR and the CRC). The article concludes thatthe UDHR, the EU Charter, the CSR51, the CAT and the ICCPR donot offer any right of entry in the framework of Protected EntryProcedures. However, the ECHR and the CRC do contain an impliedright to access under certain specified conditions.     

Closing the Gaps: Plaintiffs in Pivotal Sexual Harassment Cases

When he wrote Debtors in Court almost 30 years ago, Herbert Jacob laid the foundation for the legal mobilization research that has flourished in recent years. In arguing that litigants were political actors, Jacob showed that their social identities and Communications networks influenced their decisions to use the power of the law to vindicate their interests. This paper builds on Jacob's original insights to analyze the origins of the claim for sexual harassment as a Title VII violation. By focusing on the women who filed those claims, the paper examines the interaction of class, gender, and race that created social distance between the women and their harassers and employers. This distance made informal resolution of their disputes impossible, requiring the intervention of third parties. In addition, their Communications networks led them to attorneys able to generate and expand the new claim for sexual harassment. This analysis of a particular moment in legal history reveals the potential political significance of private litigation.     

The Dublin Regulation,mutual trust and fundamental rights: No exceptionality for children?

Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the Court rejected the proposition that another Charter right—the principle of the best interests of the child—could block Dublin transfers of families with children. Through a child-rights analysis of the jurisprudence, this article explores the idea of exceptionality for children, concluding that there is potential for the best interests principle to trump mutual trust.     

Domestic Violence and Asylum: Toward a Working Model of Affirmative State Obligations

While the 1951 Convention is no longer limited geographicallyand its definition of a refugee is not linked to any particularcrisis or place, the source of persecution and the role of thestate with respect thereto has proved problematic. Domesticviolence claims have suffered particularly because of theseshortcomings, as these cases have been uneasy fits within doctrine.Though the Convention definition ordinarily envisions the stateas persecutor, domestic violence follows a different course.Almost inevitably, its victims are persecuted by their husbands.As ‘non-state actors’, they have frequently andwrongly eluded the Convention norms, revealing a tragic protectiongap in the Convention. An asylum seeker must prove that shehas a well-founded fear of persecution based on race, religion,nationality, membership of a particular social group or politicalopinion. Despite the seriousness of the claim, if the reasonfor the threat does not lie in one of those five sources, aproper asylum claim has not been made. Worse, however, the sourceof the persecution, a non-state actor, often blocks Conventionprotection. This paper will analyze these stumbling blocks toasylum seekers. It will posit the notion that legitimate asylumseekers have been marginalized by their home countries, renderedvirtual non-citizens. Whether through complicity, neglect orsheer indifference or incompetence, these home countries are‘failed states’, failures in not having providedfull rights of citizenship throughout their populations. Inconjunction with that, it will examine the standards for determiningwhen the non-state actor is a persecutor within the Conventionsense. Finally, it will set out factors to be used to test thefailed state for litigation purposes.     

Standard Symptom Inventories for Asylum Seekers in a Psychiatric Hospital: Limited Utility Due to Poor Symptom Validity

We examined symptom validity in two samples (Ns = 27 and 35) of asylum seekers who had been admitted to a psychiatric facility. Considerable proportions over-endorsed atypical symptoms (63 and 83%, respectively) and underperformed on a simple forced-choice task requiring the identification of basic emotions (41 and 71%, respectively). Over-endorsement and underperformance were unrelated to Dutch language proficiency but were related to raised scores on standard symptom inventories commonly used to assess psychiatric symptoms of asylum seekers. This pattern of findings casts doubts on attempts to monitor symptom severity and treatment progress in psychiatric asylum seekers without taking symptom validity into account.     

Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as "sexual outlaws" to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's ca-pacity to invoke fundamental legal rights, the law effectively sanctions "private" or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.     

The ethical identity of law students

This paper uses measures of values, moral outlook and professional identity to explore the ethical and professional identity of law students. We do so in two jurisdictions, surveying 441 students studying in England and Wales and 569 students studying in the US. The survey covers the first and final years of an undergraduate law degree and the postgraduate vocational stage in England and Wales, as well as students in all years of the JD programme in the US. We explore whether law students towards the end of their legal education have ethical identities predictive of less ethical conduct than those at the beginning of their legal education; whether law students intending careers in business law have values and profiles consistent with less ethical conduct than those intending to work for government or individuals; and what factors might explain these differences in ethical outlook. Our findings suggest that ethical identity is strongly associated with gender and career intentions. They also suggest weaker moral identities for students intending to practise business law. Ultimately, our findings support a conclusion that is more nuanced than the predominant theses about the impact of legal education on student ethicality which tend to suggest legal education diminishes ethicality.