Forced Migration

Question 1

It is no longer possible to interpret or apply the Refugee convention without drawing on the text and jursipudence of other human rights treaties

Answer 1

Clark and Crepeau.

Question 2

The Refugee Convention 1951

Answer 2

The Refugee Convention 1951

Question 3

Article 14 UDHR

Answer 3

has a particular relevance to refugees and provides that “everyone has the right to seek and to enjoy in other countries asylum form persecution”.

Question 4

has a particular relevance to refugees and provides that “everyone has the right to seek and to enjoy in other countries asylum form persecution”.

Answer 4

Art. 14 UDHR

Question 5

Non-refoulment

Answer 5

has been incorporated and inducted within the jurisprundence of ECHR, ICCPR and the Torture Convention. It is a principle of customary international law and it is also arguably jus cogens.

Question 6

Primary instrument dealing with refugee law.
Ratified by 144 states. - Magna Carta of Refugee law.
Protocol from 1967
Both Allow reservations.
Some provisions are very imporantant and do not permit reservations - Art 3. Non discrimnation, art 4. religion, art 16(1) access to courts and art. 33 non-refoulment.

Answer 6

The Refugee Convention 1951

Question 7

Art 3. The Refugee Convention 1951

Answer 7

Non discrimnation

Question 8

Art. 33 The Refugee Convention 1951

Answer 8

non-refoulment.

Question 9

3 elements broadly speaking: 1. Definition, 2. principle of non-refoulment and duties and obligations of the states and rights and obligations of the refugees.

Answer 9

The Refugee Convention 1951

Question 10

The principle of non-refoulment art. 33

Answer 10

33(1) 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 political opinion.

The method of entering into a country, legal or otherwise, does not affect this right of the refugees.

Question 11

As a result of events occuring before 1 january 1951 (provision removed by the protocol) and owing to well-funded fear of being persecuted for reasons of race, religion, nationality , memebership 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, unwilling to return to it.

Answer 11

Definition

Question 12

1. Outside the country of origin.
2. Unable, or owing to fear, unwilling to seek or take advantage of the protection of the country of origin.
3. Such inability or unwillingness arises as a consequence of a well-founded fear of being persecuted.
4. The individual concerned fears persecution which is based on reasons of race, religion, nationality, membership of a particular social group or political opinion: thus a nexus has to be established between fear of persecution and one of the reasons provided in the Convention.

Answer 12

Essential elements of the definition

Question 13

Fitzpatrick: “the vagueness of the refugee definition is unsatisfactory because it permits a kind of local option for asylum adjudicators either to permit adaptation to new realities or to deny claims that fail to follow the archaic scenario.”

Answer 13

Critique of the definition

Question 14

(1) Outside the country of origin

Answer 14

He or she must have crossed the international State boundary.

Question 15

(2) Inability or unwillingness to seek or take advantage of the protection of the country of origin

Answer 15

Most common ground: State itself is responsible for the persecution.

UNHCR Handbook admits that non-State agents such as private individuals, can be responsbile for persecutory acts, if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable to offer effective protections.

As such, the lack of action on behalf of the authorities must be part of an overall problem or situation; the incompetence of an individual police officer or public official is not sufficient.

Question 16

(3) Reaosns for persecution

Answer 16

5 grounds provided by the Convention: race, religion, nationality, membership of a particular social group or political opinion.

Imputed characteristics are sufficient to establish a link between the claiment and one of the Convention grounds for claiming refugee status.

While gender has been established as a factor behind many occurances of persecution, this in itself is not enough to claim refugee status. Persecution due to gender must also be linked with one of the grounds in the convention.

Periodic attempts to include gender within the refugee definition have failed, indicating that many States are uneasy with this concept.

Question 17

Additionaly, it must also be established that the treatment ecountered is sufficiently severe to qualify as persecution and does not fall short of the mark as discrimination.

Answer 17

UNHCR added to its guidelines ‘punishment for the transgression of social mores’. Additonally, where the penalty or punishment for non-complience with, or breach of, a policy or law is disproportionately severe and has a gender discrimination, it would amount to persecution.

Question 18

Islam and Shah

Answer 18

House of Lords recognised that women in particular societies were recognised as social group.

Question 19

(4) Well founded fear or persecution

Highly subjective requirement

Answer 19

The suggestion that attention should be paid not only to the objective situation in the country but also to look at the credibility of the claiman’ts fear and his or her ability to cope with the persecution suffered, does not seem to clarify the matter.

An evaluation of the subjective element is inseparable form the assessment of the personality of the applicant, since psyhological reactions of different individuals may not be the same in identical conditions.

Refugee status cannot be used as a means of avoiding punishment for a criminal law offence in the country of origin. However, there are exceptions. The Refigee status is established if the punishment to be received is excessive, as long as this is linked to an enumerated ground, such as punishment in Saudi or Iran for not wearing a veil.

Question 20

Loss of refugee status - 4 grounds

Answer 20

1. Voluntary action: when the individual concerned is suggests that the fear no longer exists.
2. Change of circumstances: which include political or other circumstances which remove the grounds of the previously held well-fiudned fear of persecution.
3. Protection acorded by other states or international agencies.
4. Serious criminal or such related activities.

Question 21

Section 1F

Answer 21

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 admission to that country as a refugee
(c) he has been guilty of acts contrary to the purposes and principles of the UN.

This exception must be used with maximum caution and only in exceptional circumstances.
Non-refoulemont for torture, stronger than for refugees.

Question 22

Regional protection - Africa

OAU/AU Convetion Governing the Specific Aspects of Refugee Problems in Africa

Answer 22

binding regional treaty which has extended refugee protection past that granted by the 1951 Convetion.

Definition of refugee (with a broader scope): The term 'refugee' shall also apply to every person who, owing to external aggression, ocupation, foreign domination or events seriously disturbing public order in either part or the whole of his country 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.

*No requirement for well-founded fear.

The reasons for extending the refugee convention are numerous. However it can be said that this was a response to the situation in the region at the time negotiation and adoption of the Convention. This reflected the realities of Africa during a period of violent struggle for self-determination and national development.

Question 23

The Americas -
Cartagena Declaration (non binding)

Answer 23

“an innovative and creative regional approach for guaranteeing protection to those who require it that goes well beyond in its proposal of a broad definition of refugee”.

The definition includes “massive violation of human rights” as reason. Mexico Declaration 2004

Question 24

Non-refoulement

The core of the rights for refugees.

Answer 24

States in their practice and in their recorded views, have recognised that non-refoulment applies at the moment at which asylum seekers present themselves for entry, either within a State or at its border. Certain factual elements may be necessary before the principal is triggered, but the concept now encompasses non-return and non-rejection.

Question 25

providing the services and protection to this new classification of people, there needed to be a definition of what is a refugee? The League of Nations defined what constituted a Russian or Armenian refugee in the Arrangements of 5 July 1922, 31 May 1924, and 12 May 1926.11 The basis of the definition of ‘refugee’ in these arrangements was derived from the origin of the individual, that the individual lacked protection, and was denied nationality.

Answer 25

Toward a new definition of ‘refugee’: is the 1951 convention out of date

Question 26

Definitions, by necessity, may change or need to be changed to accommodate situations that arise. The United Nations recognized that the emergence of new refugee situations required changes in the Convention.

Answer 26

Toward a new definition of ‘refugee’: is the 1951 convention out of date

Question 27

According to the United Nations High Commissioner for Refugees, a refugee is any person who is in a country other than their own and are unable or unwilling to return due to a fear of persecution, ‘‘serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order’’

Answer 27

Toward a new definition of ‘refugee’: is the 1951 convention out of date

Question 28

The October conference identified that, by 2050, there will be up to 200 million environmental migrants and the consensus reached is that environmental migration is an emerging global issue. The conference recognized the lack of inclusion of environmental migrants in the Geneva Convention definition of ‘refugee’ and that, to take action, we must acknowledge environmental reasons for why people become refugees. The conference also recognized the need for more discussion, research, and policy development in this area, but did not define an environmental refugee.

Answer 28

Toward a new definition of ‘refugee’: is the 1951 convention out of date

Question 29

Human Rights Watch: The Sea Route to Europe: The Mediterranean Passage in the Age of Refugees

Answer 29

The protection of refugees has been a core human value as long as civilization has flourished. There are references to assisting those fleeing war and persecution in texts written 3,500 years ago, during the blossoming of the great Hittite, Babylonian, Assyrian and Egyptian empires.

Question 30

With regards to wrongful transfer, the European Court of Human Rights (ECtHR) has been very clear: if there is a risk of illtreatment in breach of European human right standards in the recipient country, that ill-treatment is the responsibility of the sending country.17 This provision is not limited to migrants; nor has it been developed specifically with migration in mind. Nevertheless, it clearly stipulates that even in the absence of refugee status, individuals within the jurisdiction of a signatory state have a right not to be expelled to a country where there is a risk of ill-treatment in breach of basic human rights

Answer 30

S Hartikainen The Graveyard of ‘Fortress Europe’

Question 31

In the leading case concerning the practice of push-backs, Hirsi Jamaa v. Italy, the ECtHR reaffirmed these principles and further held that it is the responsibility of each member state to ensure that no such risk exists before a person can be returned.18 In a recent judgement, the Court indicated that this responsibility also extends to so called Dublin II transfers between EU members. Sharifi and Others v. Italy and Greece

Answer 31

S Hartikainen The Graveyard of ‘Fortress Europe’

Question 32

The creation of a status—”refugee”—and substantive guarantees does not, however, come with procedural obligations on status determination. This is primarily delegated to states. The 1951 Convention and 1967 Protocol are effectively silent on refugee status determination procedures. There is no independent treaty-monitoring body for refugee law, as there is for many international human rights instruments.20 UNHCR plays a crucial supervisory role, and states parties to the 1951 Convention and 1967 Protocol agree to cooperate with UNHCR, and are required to “facilitate its duty of supervising” the Convention or Protocol.21 Refugee status determination is mainly but not exclusively (UNHCR also does status determination) left to states

Answer 32

Refugees and human rights: the future of international protection in the United Kingdom - Colin Harvey

Question 33

Despite this, the Court is in fact fairly constrained, and even conservative, in its approach to Convention rights—at times it could go much further. It has established sensible human rights principles and underlined repeatedly that the Convention applies to everyone within the jurisdiction of the state: in Hirsi Jamaa for example, reminding states of their obligations even when they have concluded bi-lateral agreements with other states. It continues to insist that, for example, arts 2 and 3 apply equally to deportation, removal, expulsion and extradition, in case after case the Court focuses on whether there are substantial grounds to believe that there is a real risk (the risk need not be for a particular “Convention reason”, and the behaviour of the individual is not a material factor—the Chahal point that exercises the UK government so much). The Court (respectful of subsidiarity and its own workload) stresses the need for effective remedies at the national level; and in cases such as MSS v Belgium

Answer 33

Refugees and human rights: the future of international protection in the United Kingdom - Colin Harvey