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.     

Against the Alienage Condition for Refugeehood

Law and Philosophy - Under the 1951 Refugee Convention, there are two necessary conditions for refugeehood: (1) a well-founded fear of persecution for reasons of race, religion, nationality,...     

The future of claims to resist removal by non-nationals suffering from HIV/AIDS

The focus of this article is to consider the difficulties facing non-nationals suffering HIV/AIDS to resist removal to their countries of origin where there is no or inadequate medical treatment. The link between HIV/AIDS and migration will be explored illustrating the vulnerability of displaced people to the virus. The current UK legal position for those attempting to resist removal in such circumstances will be explored. The article will explore two potential avenues that may prevent removal of non-nationals with HIV/AIDS to countries with limited access to the necessary treatment. In the first instance consideration of Article 3 European Convention on Human Rights (ECHR) will be made with particular emphasis on mother and child claims. The second argument will examine the potential for refugee claims under Article 1A (2) Refugee Convention 1951 where an applicant may be able to demonstrate a well-founded fear of persecution because of membership to a particular social group. The authors will particularly emphasise the argument that in certain countries sufferers will experience ostracism and victimisation where its severity may amount to treatment contrary to Article 3 ECHR and persecution under the Refugee Convention. Vanessa Bettinson and Dr Alwyn Jones, senior lecturers, De Montfort University. The authors would like to thank Professor Tony Barnett at London School of Economics for his useful and invaluable thoughts and comments. We would also like to thank our colleague Gavin Dingwall and the students in our 2006/07 Immigration and Refugee Law seminars for their very helpful feedback.     

US: immigration court allows Zambian woman's asylum claim based on HIV infection

On 9 February 2004, the federal Immigration Court ruled that a Zambian woman can stay in the US because her HIV-positive status gives her a well-founded fear of persecution in Zambia. The court found that she would face severe and lethal discrimination in the public health clinics and in the employment sector and that the Zambian government is unwilling or unable to control this persecution.     

Fear of persecution not adequate to claim refugee status

In Delgadillo v Canada, the Federal Court of Canada upheld an Immigration and Refugee Board (IRB) decision to refuse refugee status to a Mexican gay male refugee claimant because he had an Internal Flight Alternative (IFA). Although the court reached this conclusion, it nevertheless agreed that Mr Delgadillo had a legitimate fear of persecution. As well, the court made an important finding--that people in Mexico who are living with HIV/AIDS do not have an IFA.     

Adjudicating Fear of Witchcraft Claims in Refugee Law

In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender‐related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention‐related. Male applicants struggled to make their claims comprehensible as a result of the feminized and ‘irrational’ characterization of witchcraft fears and beliefs.     

'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     

Examining Sexual Violence in the Military Within the Context of Eritrean Asylum Claims Presented in Norway

Discussion of rape by soldiers as a form of persecution haslargely been directed towards the context of war or actual conflict.Nevertheless, there is a need for attention to be directed towardsthe phenomenon of rape within the military in the post-conflictperiod. This article discusses asylum claims presented in Norwayby Eritrean female soldiers claiming risk of persecution inthe form of sexual violence, rape, or torture within the military.First, presentation is made of the history of Eritrean women'sparticipation in the war of independence and the ensuing politicaland legislative gains won at the end of the war against Ethiopia.Review of Eritrea's report and responses to the Committee onthe Elimination of Discrimination Against Women (CEDAW) reveala state of backlash against women in the post-conflict period.Second, examination of how rape within the military and desertionmay fall under the criteria of the definition of a refugee accordingthe 1951 Convention on the Status of Refugees is pursued. Comparisonis drawn to instances of rape of women soldiers in the US andIsrael, as well as sexual violence by United Nations Missionin Ethiopia and Eritrea (UNMEE) peacekeepers, revealing commonchallenges affecting prevention and protection strategies. Third,a comparative review is conducted of evidentiary standards inorder to highlight the importance of maintaining a flexibleapproach responsive to the special circumstances of sexual violence.The Norwegian practice indicated a tendency to provide protectionfor compassionate grounds or humanitarian protection, ratherthan asylum. This resulted in non-recognition of the legitimacyof claims based on gender related persecution as requiring legalprotection under the 1951 Convention on the Status of Refugees.     

The UNHCR's Guidelines on Human Trafficking

In April 2006 the UNHCR published Guidelines on the applicationof the Refugees Convention to people who have been trafficked.While there is little doubt that trafficked people are subjectedto serious violations of their basic rights and interests, theapplicability of the Convention is problematic because theydo not fit easily into any of the categories recognised by theConvention as giving rise to an entitlement to refugee status.The Guidelines adopt the definition of trafficking containedin the Palermo Protocol to the UN Convention on TransnationalOrganised Crime 2000. The various elements of the refugee definitionare then analysed for their relevance to trafficking. The Guidelinesshow that the Refugees Convention may be applicable, but inlimited cases, particularly through the possibility of victimsof trafficking being members of a particular social group.     

Separated Children: A Comparison of the Treatment of Separated Child Refugees Entering Australia and Canada

Separated children are in a uniquely vulnerable situation. Notonly are they in fear of persecution but they have been separatedfrom their families. They are seeking multifaceted protections.Such children need a country to protect them from further persecution,a caregiver to nurture them and fulfil the family role and asociety that will foster their social and intellectual growth.This article analyses the treatment of separated child refugeesin the context of international human rights law as it relatesto children and from the viewpoint of domestic immigration law.The article bases this analysis on a comparison of the treatmentof separated child refugees in Australia and Canada. The fundamentalprinciple of the International Convention on the Rights of theChild is that member states should act in the child's best interests.This principle has two important aspects, firstly, that detentionof children should only be used as a last resort and, secondly,that child refugees should enjoy the right to seek asylum. Thearticle examines the domestic law of both Australia and Canadawith a view to determining how these two aspects are appliedto unaccompanied children.     

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.     

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.     

Who are Refugees?

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.     

The Child's Right to Family Unity in International Immigration Law*

Family cohesion is crucial to refugee and immigrant children. National immigration policies frequently give discretionary preference to family reunification, but subject it to restrictions, and seldom does domestic law grant the refugee or the alien resident a right to prompt reunification with foreign family members. While recognizing a right to family life, international law did. not in the past recognize a right of entry for the alien for the purposes of family reunification. The Convention on the Rights of the Child, however, requires states to ensure the child's right to family unity and entitles all children to family reunification.     

Crimes of the State: The Persecution and Protection of Refugees

When refugees arrive at the borders and on the shores of the Global North they are increasingly criminalised and subject to a range of law and order type rhetoric and practices. This paper outlines an alternative criminological engagement with the condition of refugeehood that shifts the focus from the refugee to the practices of the state. First, it splices definitions of state crime with the highly legalistic refugee definition to offer alternative conceptualisations of persecution in the determination of who is accorded the legal status of refugee. Second, it applies state crime frameworks to the increasingly restrictive and punitive refugee policies of countries in the Global North. It concludes by locating theorisations of state crime within the broader project of reconceptualising notions of sovereignty.Sharon Pickering BA(Melb), MA(Soton), PhD(Melb) lectures in Criminal Justice and Criminology at Monash University Australia. She has worked with refugees and written on forced migration issues for the past five years including her recent book Refugees and State Crime (2005 Institute of Criminology Monograph Series/Federation Press).     

Forced abortions and involuntary sterilization in China: are the victims of coercive population control measures eligible for asylum in the United States?

This Article discusses the propriety of granting political asylum to Chinese citizens fleeing China's coercive population control policy. It argues that China is persecuting some of its citizens through its population control policy and that the United States should grant asylum to those who have been persecuted or who have a genuine fear of future persecution.     

Negotiating Durable Solutions for Refugees: A Critical Space for Semiotic Analysis

Despite the proliferation of specialised agencies designed to reduce the prevalence of refugees worldwide, the number of individuals fleeing persecution is increasing year on year as endemic violence in countries such as Iraq, Somalia and the Syrian Arab Republic continues. As a result, media broadcasts and political dialogues are saturated with discussions about these “persons of concern”. Fundamental questions nonetheless remain unanswered about what meaning these actors attribute to the label ‘refugee’ and what intent, other than paucity of knowledge, might be driving the term’s use or manipulation. Though this is evidently important in the public arena, where incorrect conflations fuel mistrust and misunderstandings, the ramifications of these divergent understandings at the level of multi-lateral politics have yet to be critically explored. This article applies Barthes’ theory of the multiple orders of the sign to address this. Using the case study of the negotiations preceding the invocation of the Cessation Clause for Rwandan refugees, it illustrates how the word refugee is susceptible to numerous, simultaneous understandings, and discusses the implications of these manifold interpretations for how durable solutions are envisaged and negotiated in the refugee regime. In the case of Rwandan refugees in Uganda, this has meant that over a decade of stalemated discussions between the Governments of Uganda and Rwanda and the United Nations High Commissioner for Refugees over their future have been broken by a series of bilateral concessions that, whilst diminishing the political significance attached to this protracted caseload, have failed to address the continuing precarity of their situation. By conceptualising the word refugee as a sign according to the Saussurean model of semiotics, this paper therefore argues that despite the term’s established legal-normative definition, its inherent malleability makes it susceptible to processes of political instrumentalisation. This elevates the refugee as a rhetorical figure above the refugee as a physical-legal body entitled to certain forms of assistance.     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

The Politics of Fear

The article attempts to analyze the mechanisms of political control used by the Kremlin vis-à-vis its rivals. Russian authorities had opted the politics of fear, which include overt intimidation and public discrediting of the regime's critics, and selective persecution and open harassment of opposition activists and/or supporters. This approach to political control to some degree reproduced similar mechanisms that had enabled regime survival in the late-Soviet period, and fit general trends of repressive policies in a number of contemporary authoritarian regimes. The article discusses causes and mechanisms of the politics of fear in contemporary Russia, its roots in comparative and historical contexts, and strengths and weaknesses of repressive policy in Russia from the viewpoints of the regime, the opposition, and Russian society.