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Smuggled migrant or migrant smuggler: erosion of sea-borne asylum seekers’ access to refugee protection in Canada
This paper argues that the criminalisation of smuggling has undermined refugee protection for sea-borne asylum seekers. It is pivotal to consider the categorical differentiation of sea-borne asylum seekers in the Canadian refugee system because, although there have been only seven notable cases of boat arrivals in Canada from 1986 to the present, they have triggered significant reforms in Canadian refugee law. At the intersection of international criminal law, Canadian criminal law and Canadian refugee law, the criminalisation of smuggling has resulted in an inability of sea-borne asylum seekers to access refugee status because they have assisted other presumptive refugees during a voyage. This paper argues that the broad grounds of 'ineligibility' for refugee status in Canadian refugee law and the broad concept of smuggling in Canadian criminal law erode access to refugee protection for sea-borne asylum seekers allegedly implicated in the smuggling of refugees. Moreover, interpretive contestation of sea-borne asylum seekers’ complicity in smuggling in Canadian refugee law and the flawed assumption of the static identity of smugglers in international criminal law further undermine sea-borne asylum seekers’ access to refugee protection in Canada. Sea-borne asylum seekers who do not align with the assumption of passivity of smuggled migrants are discursively framed as smugglers. International refugee law may fail to provide protection for bona fide refugees because of the artificial distinction between the smuggler and the migrant in international and national criminal frameworks on smuggling.
Reflections on Reading Tarakhel
Tarakhel v Switzerland is the latest Grand Chamber ruling of the European Court of Human Rights (ECtHR) on Dublin returns. Its contribution to human rights protection is to reassert well-established principles, quite minimal ones the authors would suggest, which prevent states from returning asylum-seekers where there are substantial grounds to believe there is a real risk of inhuman and degrading treatment. The contribution of the case is to reject erroneous approaches which developed under both ECHR and EU law, in particular in the wake of the NS/ME3 judgment of the Court of Justice of the European Union (CJEU) as to the significance of the reference to ‘systemic deficiencies’, and what sorts of evidence was required to rebut the presumption of safety accorded to Dublin states. The Tarakhel judgment of the ECtHR has put an end to that uncertainty. The ECtHR holds that there is no additional requirement of ‘systemic deficiencies’. Instead, we find reasserted the duty to do ‘thorough and individualised’ assessment, and suspend removal if there are substantial grounds to believe there is a real risk of inhuman and degrading treatment. In addition, we argue for a fundamental rethink of the Dublin Regulation. Moving away from coercion in the allocation of responsibility for refugee claims is imperative.
Migrants at Work: Immigration and Vulnerability in Labour Law
There is a highly significant and under-considered intersection and interaction between migration law and labour law. Labour lawyers have tended to regard migration law as generally speaking outside their purview, and migration lawyers have somewhat similarly tended to neglect labour law. The culmination of a collaborative project on 'Migrants at Work' funded by the John Fell Fund, the Society of Legal Scholars, and the Research Centre at St John's College, Oxford, this volume brings together distinguished legal and migration scholars to examine the impact of migration law on labour rights and how the regulation of migration increasingly impacts upon employment and labour relations. Examining and clarifying the interactions between migration, migration law, and labour law, contributors to the volume identify the many ways that migration law, as currently designed, divides the objectives of labour law, privileging concerns about the labour supply and demand over worker-protective concerns. In addition, migration law creates particular forms of status, which affect employment relations, thereby dividing the subjects of labour law. Chapters cover the labour laws of the UK, Australia, Ireland, Israel, Italy, Germany, Sweden, and the US. References are also made to discrete practices in Brazil, France, Greece, New Zealand, Mexico, Poland, and South Africa. These countries all host migrants and have developed systems of migration law reflecting very different trajectories. Some are traditional countries of immigration and settlement migration, while others have traditionally been countries of emigration but now import many workers. There are, nonetheless, common features in their immigration law which have a profound impact on labour law, for instance in their shared contemporary shift to using temporary labour migration programmes. Further chapters examine EU and international law on migration, labour rights, human rights, and human trafficking and smuggling, developing cross-jurisdictional and multi-level perspectives. Written by leading scholars of labour law, migration law, and migration studies, this book provides a diverse and multidisciplinary approach to this field of legal interaction, of interest to academics, policymakers, legal practitioners, trade unions, and migrants' groups alike. [Receive a discount of 30% when you order from the OUP website using the promotional code ALAUTH16.]
‘We Need to Talk about Dublin’: responsibility under the Dublin System as a blockage to asylum burden-sharing in the European Union
The possibility of burden-sharing in the distribution of responsibility for processing asylum claims across the European Union (EU) seems to come up against a blockage when weighed against the principles and institutional practice underlying the Dublin system, the EU mechanism laying down the criteria determining the Member State responsible for processing an asylum claim. Understanding that blockage invites one to critically engage with the reasons why Member States have been reluctant to question Dublin as a policy option throughout the evolution of the Common European Asylum System (CEAS). This paper explores this question by evaluating the Dublin system as a carrier of embedded interests which make it less likely for Member States to allocate processing responsibility on the basis of burden-sharing. It examines the Dublin system’s objectives, and its appropriateness in delivering them, under three tenets: deflection, efficiency and control. The paper submits that the mechanism’s peculiar interpretation of processing responsibility accounts for its failure to deflect asylum claims by creating incentives for defection from the allocation criteria, as well as by prompting courts to halt transfers to external border Member States intended to receive the bulk of applications. The efficiency objectives of rapid processing of asylum claims and prevention of multiple applications and ‘asylum shopping’ are also not appropriately met, as the Dublin system causes significant delays in the processing of applications and provides asylum seekers with incentives to engage in irregular secondary movement. This built-in failure seems to reveal the symbolic objective of asserting control over entrants in their territory as the primary interest behind Member States’ support for Dublin.
Faith and responses to displacement
The role of faith in the humanitarian sector is not easy to measure. Faiths generally advocate welcoming the stranger and there are many organisations and individuals inspired by their faith or religion to provide protection and assistance. Yet it is easier to measure the activities inspired by faith than to measure the difference that having that faith makes, and secularly inspired standards for such activities can appear to be in tension with the faith inspiration. FMR 48 includes 36 articles on ‘Faith’ plus seven ‘general’ articles.
Repatriation through a trust-based lens: refugee-state trust relations on the Thai-Burma border and beyond
This paper puts forward the argument that substantive attention to the phenomenon of ‘trust’ constitutes a surprising missing chapter in contemporary repatriation policy and theory. In particular, the paper highlights the need for repatriation theorists and policy-makers to foreground trust relations between refugees and their states of origin in dominant frameworks. It argues that emphasis on these refugee-state trust relations presents a logical development, both of contemporary theory on the political content of repatriation and of due consideration of the formidable barrier to repatriation posed by refugees’ distrust of their state of origin. The paper puts forward a trust-based lens, suggesting that we recognise repatriation as, at least in part, a process of trust-building between refugee-citizens and their state of origin. This lens is then applied to the possible future repatriation of Karen refugees in the Thai-Burma border camps, drawing directly on the broad framework developed, and also on historical and cultural dimensions of trust specific to this case. The paper concludes that in this context dominant strategies currently undermine prospects for successful refugee-state trust-building, emphasising the need for fundamental political reform of the Burmese state in terms of its ethnic minority political representation if refugee-state trust is to be won.
Ensuring quality education for young refugees from Syria (12-25 years): a mapping exercise (Arabic)
Arabic translation of the original report published in September 2014. The Syrian crisis has uprooted the largest number of refugees in recent history. Half of the refugee population are children and young people forced to flee from home and rebuild their lives not knowing if or when return may be possible. It is clear that the initial emergency relief initiatives for Syria’s refugee crisis must now evolve to develop longer-term strategies. This mapping exercise focuses in on refugee youth education, a crucial yet often overlooked element in Syria’s humanitarian response. This report addresses the educational status of refugees from Syria aged 12–25 years. It determines their needs and maps some of the services provided by various organisations since the beginning of the Syria crisis in 2011, outlining gaps and challenges as well as progress and successful initiatives. In so doing, it is hoped the report may contribute to help key actors, from NGOs to international donors, to improve educational assistance through a better understanding of the needs of refugees.
Humanitarian Innovation: The State of the Art
The humanitarian system faces grave challenges, as record numbers of people are displaced for longer periods by natural disasters and escalating conflicts. At the same time new technologies, partners, and concepts allow humanitarian actors to understand and address problems quickly and effectively. To contend with these growing, and changing, demands, organizations are increasingly exploring the idea of “humanitarian innovation”, which draws upon concepts from the private sector to adapt and improve the humanitarian system. As a sign of its importance, “Transformation through Innovation” will be one of four themes of the 2016 World Humanitarian Summit. Humanitarians have used the term “innovation” to refer to the role of technology, products and processes from other sectors, new forms of partnership, and the use of the ideas and coping capacities of crisis-affected people. However, as with many emerging ideas, use of the term in the humanitarian system has lacked conceptual clarity, leading to misuse, overuse, and the risk that it may become hollow rhetoric. A better understanding of the potential and purpose of the innovation cycle and an innovation mindset can bring great benefits to the humanitarian system. This paper sets out to develop a common language and framework as a basis for dialogue, debate, and collaboration. The purpose is not to provide a definitive or comprehensive account but to offer ideas and examples to inspire further discussion. Each section of the paper highlights an aspect of the concept: 1) the rise of humanitarian innovation and the innovation ecosystem; 2) the unique challenges of humanitarian innovation; 3) the innovation cycle in practice; 4) the role of crisis-affected people; and 5) advancing the debate.
New approaches, alternative avenues and means of access to asylum procedures for persons seeking international protection
Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.
Ensuring quality education for young refugees from Syria (12-25 years): a mapping exercise (summary)
This policy note provides an executive summary of the RSC research report, 'Ensuring Quality Education for Young Refugees from Syria (12-25 years): A mapping exercise'. This research focuses on access to education by refugee youth, a crucial yet often overlooked element in the humanitarian response to the Syrian crisis. Outlining educational demand and supply, the report analyses good practice and gaps in education services for refugee youth from Syria (including Palestinian, Kurdish and Turkmen refugee youth) in Jordan, Lebanon, Northern Iraq/Kurdistan Region of Iraq and Turkey. This publication was supervised by Professor Dawn Chatty.
Ensuring quality education for young refugees from Syria (12–25 years): a mapping exercise
The Syrian crisis has uprooted the largest number of refugees in recent history. Half of the refugee population are children and young people forced to flee from home and rebuild their lives not knowing if or when return may be possible. It is clear that the initial emergency relief initiatives for Syria’s refugee crisis must now evolve to develop longer-term strategies. This mapping exercise focuses in on refugee youth education, a crucial yet often overlooked element in Syria’s humanitarian response. This report addresses the educational status of refugees from Syria aged 12–25 years. It determines their needs and maps some of the services provided by various organisations since the beginning of the Syria crisis in 2011, outlining gaps and challenges as well as progress and successful initiatives. In so doing, it is hoped the report may contribute to help key actors, from NGOs to international donors, to improve educational assistance through a better understanding of the needs of refugees.
Introduction: refugees and innovation
Doing innovation well presents challenges for how we can work better together as organisations and with displaced people, and how we can break down traditional barriers between actors – all while upholding ethical principles and protection standards relating to displacement. Innovation is not the same thing as invention; it need not involve the creation of something novel but often takes the form of adapting something to a different context. It may be incremental (step by step) or disruptive (breaking the mould). It may relate to change in a product, a process or a paradigm. And it may involve technology or it may not. The innovation cycle can be thought of as a four-stage process, although the stages do not need to be linear: 1) defining a problem or identifying an opportunity; 2) finding potential solutions; 3) testing, adapting and implementing a solution; and 4) appropriate scaling up of the solution. The term ‘innovation’ is often poorly understood in humanitarian circles or is viewed sceptically as a buzzword brought in from the private sector. It is often used broadly as an umbrella term to cover the roles of technology, partnership and business. However, more precisely, it can be understood generally as a process for adaptation and improvement.
The end of refugee life?
Refugees are people who were forced to flee from their country of origin due to potential or imminent threats to their physical safety, security, liberty, or dignity. These displaced people seek international protection and are rendered refugee status to stay in exile because they are unable or unwilling to return to their home country due to such threats. Their refugee status, however, is not permanently granted. According to the 1951 Refugee Convention, when the circumstances under which they were recognized as refugees no longer exist, the “cessation clause” of the refugee status is invoked by the international refugee regime. For example, the cessation clause has been invoked for refugees from Angola, Sierra Leone, and Rwanda in recent years. Nevertheless, little is known about what actually happens to refugees and how they respond when their refugee status comes to an end.
Innovation and refugees (supplement)
Innovation around displacement is not new. Yet the imperfections of current approaches are obvious in the challenges that we continue to face. By looking at old problems in new ways and by seeking and fostering innovation itself, new products can be developed, new ways of working can be devised and new modalities and paradigms can emerge to make the lives of displaced people better, more sustainable and less risky. These 11 articles reflect some of the thinking behind humanitarian innovation for displaced people, and some of its current manifestations.
Survival migration: a new protection framework
Book description: Refugee law is both conceived as a response to the absence of human rights, and is one of the most powerful means by which human rights are restored. This comprehensive collection of leading scholarship examines the strengths of, and challenges faced by, international refugee law over its nearly century-long existence. Following an original introduction by Professor Hathaway, Volume I addresses the questions of the political and ethical reasons that states have agreed to implement refugee protection in international law; the conceptual boundaries of refugee status; and the systems and structures by which refugee rights are implemented. Volume II takes up the nature of contemporary challenges to the refugee law regime, and examines leading proposals to revitalize and reform international refugee law in order to sustain its vitality in modern circumstances. This topical volume will be of great interest to researchers and scholars in both law and related fields, as well as to lawyers and other practitioners working on asylum and related human rights issues.
Liberal democratic states and responsibilities to refugees
Book description: Refugee law is both conceived as a response to the absence of human rights, and is one of the most powerful means by which human rights are restored. This comprehensive collection of leading scholarship examines the strengths of, and challenges faced by, international refugee law over its nearly century-long existence. Following an original introduction by Professor Hathaway, Volume I addresses the questions of the political and ethical reasons that states have agreed to implement refugee protection in international law; the conceptual boundaries of refugee status; and the systems and structures by which refugee rights are implemented. Volume II takes up the nature of contemporary challenges to the refugee law regime, and examines leading proposals to revitalize and reform international refugee law in order to sustain its vitality in modern circumstances. This topical volume will be of great interest to researchers and scholars in both law and related fields, as well as to lawyers and other practitioners working on asylum and related human rights issues.
Development and protection challenges of the Syrian refugee crisis
The Syria Regional Response Plan 6 (RRP6) 2014 provides an increased focus on early recovery, social cohesion interventions and a transition from assistance to development-led interventions, alongside the continuing large-scale humanitarian assistance and protection programme. In a region already hosting millions of Palestinian and Iraqi refugees, the scale of the Syrian crisis is putting immense additional strains on the resources and capacities of neighbouring countries and the international humanitarian system. The 3,300 refugees on average arriving in neighbouring countries every day in 2014 place a large burden on the protection capacity of the host countries and international actors and further accentuate the already severe negative social, economic and human developmental impacts on the host countries of the region.With no prospects of the civil war abating in Syria and with a peace process that might encourage refugee return even further away, the displacement is becoming protracted.
The Syria crisis, displacement and protection
The 6.45 million displaced people inside Syria make this the largest IDP crisis in the world, with possibly also the largest number of people who are ‘trapped’. In addition, the number of refugees from Syria continues to increase. The international community has an opportunity to set up, from now, an effective response to what will clearly become protracted displacement. These 20 articles discuss how to increase protection for the displaced and how to shape assistance to both the displaced and their ‘hosts’.
Commentary: The European Union and global migration governance
Book description: The third edition of this major work provides a systematic, comparative assessment of the efforts of a selection of major countries, including the U.S., to deal with immigration and immigrant issues— paying particular attention to the ever-widening gap between their migration policy goals and outcomes. Retaining its comprehensive coverage of nations built by immigrants and those with a more recent history of immigration, the new edition pays particular attention to the tensions created by post-colonial immigration, and explores how countries have attempted to control the entry and employment of legal and illegal Third World immigrants, how they cope with the social and economic integration of these new waves of immigrants, and how they deal with forced migration.