The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

International Protection Considerations Regarding Colombian Asylum-Seekers and Refugees

This report has been produced by UNHCR on the basis of informationobtained from a variety of publicly available sources, analysesand comments. The report is intended for reference by thoseinvolved in the asylum determination process and concentrateson the issues most commonly raised in asylum claims lodged invarious jurisdictions. The information contained does not purportto be either exhaustive with regard to conditions in the countrysurveyed nor conclusive as to the merit of any particular claimto refugee status or asylum. Incomplete, inaccurate or incorrectinformation cannot be ruled out. The inclusion of informationin this report does not constitute an endorsement of the informationor the views of third parties. Neither does such informationnecessarily represent statements of policy or views of UNHCRor the United Nations.     

The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination

The number of individual RSD applications received by UNHCRoffices worldwide nearly doubled from 1997 to 2001, while UNHCR'sRSD operations have been criticized for failing to implementbasic standards of procedural fairness. Yet, although thereis some literature critiquing how UNHCR determines refugee status,there is little literature examining whether UNHCR should doso, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges becauseit is founded on a basic contradiction. On the one hand, governmentaction is essential for effective refugee protection. On theother hand, UNHCR RSD is premised on at least partial governmentfailure. Neither direct concern for protection from non-refoulement norstrict legal obligations completely explain UNHCR's currentRSD activities. UNHCR's RSD activities seem best explained bywhat Goodwin-Gill has called ‘negative responsibility’,and hence can represent a risky shift of responsibility fromgovernments to the UN. At the same time, in some circumstancesUNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR shouldperform RSD when it can enhance the protection provided to refugeesby governments, but the activity should be more limited andconditional than it is today.     

The Mexico Declaration and Plan of Action: Reaffirming Latin America's Generous Tradition of Asylum and Innovative Solutions

The ‘Foreword to the Mexico Declaration and Plan of Action’written by Philippe Lavanchy, Director of the Americas Bureauat UNHCR, should have appeared in Volume 17:4 and should stillbe read with the documents there. In late 2005, UNHCR sent alarge set of materials relating to the Americas, but, due toannual page limits for the IJRL, they had to be split across17:4 and 18:1. For     

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.     

The Decline and Decay of European Refugee Policy

This article challenges the view, implicit in much current researchon EU migration and asylum policy, that supranationalizationis a self-evident antidote to the exclusionary and securitizedmigration policy that has been enacted through inter-governmentalcooperation. It does so by treating supranationalization asan open question in need of empirical scrutiny. To develop thisthesis, it undertakes not only a critique of the current developmentstowards supranational policies, but also of the inter-governmentalpolicy-making system, pursuing a broad brush historical assessmentup to and beyond Amsterdam, with the aim of bringing fresh andfurther insights into the future development of EU asylum policy.It concludes that the current aims are less to do with the establishmentof a common European asylum system and more to do with reducingimmigration pressure and compensating for the perceived lossesof internal security in the wake of full freedom of movementinside the Union. Communitarization will not necessarily occursimply because the European Union is intent upon institutingever stricter immigration controls. Communitarization is doggedby the legacy of intensive trans-governmentalism. In particular,the British, Danish and Irish governments have only been preparedto support communitarization so long as they could have separateprotocols that legitimized their non-participation. The UK andIreland have opted into all proposals on asylum, illegal migrationand civil law but have opted out of practically all proposalsconcerning visas, borders, and legal migration. The securitarianframe still predominates and trans-governmentalism refuses todie. In January 2005, following the agreement on The Hague programme,there was change in decision-making rules from unanimous votingto Qualified Majority Vote (QMV) in the European Council andco-decision with the European Parliament. Yet, there is no guaranteethis will bring about more liberal asylum rules, as is clearfrom the ‘Schengen Borders Code’ which was agreedin June 2005. This is because European migration policy hasalways been fraught with internal contradictions, which haveyet to be resolved. Accordingly, the emergence of a rights-respectingmodel of asylum law based on the Geneva Convention 1951 remainsa distant dream.     

Neither Here Nor There: Temporary Admission to the UK

This article considers the lacunae in international and Europeanlaw for the protection of those who do not, or do not yet, havetheir refugee status recognised, or whose claim for asylum hasbeen refused. It examines the position of such people in theUK, where they are ‘temporarily admitted’ underprovisions of the general immigration legislation. This meansthat although their physical presence is recognised and notunlawful, they are legally considered not to have entered thecountry. Whilst historically this was a favourable positionthat might itself often lead to naturalisation, the legal positionof those on temporary admission has changed rapidly and drasticallyover the past decade as rights to work and to social securityhave been withdrawn and a programme of mass detention instigated.These developments have in turn led to attempts by those ontemporary admission to use international and European law toattain or reinstate rights and to resist removal. This articleexamines the changes to UK law and policy since the first primarylegislation dealing with asylum in 1993, in the light of internationaland European law, and suggests that they will lead a new categoryof undocumented sans-papiers in the UK.     

Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines

In 1993 the Immigration and Refugee Board of Canada adoptedguidelines entitled ‘Women Refugee Claimants Fearing Gender-RelatedPersecution’. The Guidelines represent a cutting edgeapproach and have helped to guarantee a refugee determinationprocess for women refugees that is more sensitive to gender-relatedclaims of asylum. However, the author demonstrates that theconcept of gender-based persecution, as it is presently defined,makes it difficult for members of the Board to systematicallyevaluate all types of gender-related persecution, to which certainmen and women are subjected. The author examines asylum claimsbased on sexual orientation and identity, as well as those basedon persecution specifically inflicted upon men, and argues thatthe gender-specific analytical framework adopted by the Immigrationand Refugee Board is relevant to these cases. The author concludesthat change is needed in the form of a more clearly definedsocial constructionist interpretation of gender. Clearly, defining‘gender’ as a socially constructed concept wouldreveal the gender-specific factors that interfere with the rightsof certain men and would make more visible the links betweengender and other causes of persecution, like sexual orientation.     

The Use and Misuse of 'National Security' Rationale in Crafting U.S. Refugee and Immigration Policies

Since the terrorist attacks of 11 September 2001, U.S. immigrationand refugee policy has developed based on narrow and evolvingtheories of ‘national security’. Immigration reformlegislation, federal regulations, and administrative policychanges have been justified in terms of the nation's safety.On 1 March 2003, the U.S. Immigration and Naturalization Service(INS) was folded into the massive new U.S. Department of HomelandSecurity (DHS), formally making immigration a homeland defenseconcern. Counterterror and immigration experts increasingly agree onwhat constitute effective and appropriate immigration policyreforms in light of the terrorist threat. Unfortunately, manyof the post-September 11 policy changes do little to advancepublic safety and violate the rights of refugees and asylumseekers. These include reductions in refugee admissions, thecriminal prosecution of asylum seekers, the blanket detentionof Haitians, and a safe third-country asylum agreement betweenthe United States and Canada. Other measures offend basic rightsand may undermine counterterror efforts. These include ‘preventive’arrests, closed deportation proceedings, and ‘call-in’registration programs. This article reviews post-September 11 U.S. policy developmentsbased on their impact on migrant rights and their efficacy ascounterterror measures. It argues for a more nuanced and rigoroussense of ‘national security’ in crafting refugeeand immigration policy.     

Subsidiarity and 'Arguability': the European Court of Human Rights' Case Law on Judicial Review in Asylum Cases

The European Court of Human Rights’ case law on judicialreview in asylum cases is not entirely consistent. However,it can be interpreted as consistent if two presumptions areaccepted. First, that, as the Court's role should be subsidiaryto that of domestic courts, domestic judicial review shouldat least be of the same quality and substance as the EuropeanCourt of Human Rights’ review. Secondly, that the Courtdistinguishes between arguable and non-arguable cases not justin the context of Article 13 ECHR and of the admissibility ofapplications, but that this distinction is central to its entirecase law about the asylum procedure. This analysis results ina coherent doctrine on deadlines for submitting evidence, theburden of proof, the intensity of judicial review, and suspensiveeffect. If the Court understands its case law in this way, itcan prevent it from becoming, in some respects, a court of firstinstance.     

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.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

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.     

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.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

'States Should Not Impose Penalties on Arriving Asylum-Seekers'

[17/03/2008] A minimum of solidarity with those oppressed isto receive them when they are forced to flee. The ‘rightto seek and to enjoy in other countries asylum from persecution’is indeed a key provision in the Universal Declaration of HumanRights. Sadly, this right is not fully observed in parts ofEurope today. Instead, refugees are met with suspicion and toooften even placed in detention. It has to be repeated that some of those who seek to enter Europehave well-founded fear of persecution. They are under threatbecause of their ethnicity, religion, nationality, politicalopinion or membership of a particular social group. Some ofthem have already suffered serious ill-treatment in their countryof origin. They are refugees     

Protection Elsewhere/Nowhere

The Australian Government takes the position that it does notowe protection obligations to an asylum seeker who could havesought protection elsewhere. In taking this position it is purportingto invoke the so-called ‘safe third country’ principlewhich has developed out of international practice. This articleexamines Australia's purported applications of the ‘safethird country’ principle and concludes that in some instancesthey represent an attempt to extend that principle beyond whatthe international community presently considers acceptable orever should consider acceptable.     

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.     

Seen but Not Heard? Parallels and Dissonances in the Treatment of Rape Narratives across the Asylum and Criminal Justice Contexts

A significant proportion of women seeking refugee status in the United Kingdom will claim to have been raped in their country of origin. Even where this is not the sole basis of an asylum claim, it may be relevant to its determination. While criminal justice responses to rape have been the subject of extensive academic criticism and legislative reform, the processes of disclosure and credibility assessment in the asylum context have received little attention. This article explores possible parallels and dissonances in the treatment of rape across the asylum and criminal justice contexts, drawing in particular on the findings of a 2007 pilot study. It considers how problems such as the underreporting of rape, the inability of the victim to 'tell the story' in her own words, a hostile adjudicative environment, and the tendency to regard factors such as late disclosure, narrative inconsistency, and calm demeanour with suspicion – may be replicated and compounded in asylum cases. It also acknowledges the complex intersection of race, gender, culture, and nationality in this context.