Part VI Refugee Rights and Realities, Ch.56 The Digital Transformation of Refugee Governance

2021 ◽  
Author(s):  
Sandvik Kristin Bergtora
Keyword(s):  
New Technology ◽  
Digital Transformation ◽  
Legal Rights ◽  
Refugee Status ◽  
Solution Processed ◽  
Protection Policy ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Data Subject

This chapter evaluates four selected issues arising from the digital transformation of refugee protection, in order to explore how this transformation shapes and challenges refugee law. It focuses on the following domains: UNHCR’s 2015 Data Protection Policy, a concept (legal identity), a platform (databases), and legal-bureaucratic processes (refugee status determination and resettlement procedures). Digital transformation generates new risks, in part because it is premised on a duty of refugee visibility. The chapter argues that international refugee law, conceptually and in practice, appears to be moving towards an idea of ‘algorithmic protection’. First, digitization and the integration of new technology create risks and harms that can compromise existing legal rights and procedural guarantees but also threaten the integrity of refugee protection in new ways. Secondly, algorithmic protection is a useful concept because the digital transformation of refugee protection means that the duty of visibility and acquiescence to become a data subject has become a requirement for being registered as a refugee, receiving aid (eg biometric banking), and having one’s claim for a durable solution processed.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

Part II Sources, Ch.12 International Humanitarian Law and Refugee Protection

2021 ◽  
Author(s):  
Ziegler Reuven
Keyword(s):  
Frame Of Reference ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
Scope Of Application ◽  
International Refugee Law

The chapter considers the interrelations between international humanitarian law and international refugee law. It seeks to illustrate that, in displacement contexts, interactions between international humanitarian law and (global and regional) refugee protection regimes, which continue to apply during conflict, are rather challenging given that, whereas international humanitarian law shares international refugee law’s concern for vulnerable individuals, its frame of reference (unlike that of international refugee law) is minimization of harm. Given that the regimes have evolved at different times and with their own specific sources, institutions, and ethos, the chapter appraises how ‘regime interaction’ would (or should) work. It then assesses the scope of application of international humanitarian law norms, looking at the significance of international humanitarian law classification, including who classifies conflicts. The chapter concludes by exploring international humanitarian law displacement-related norms and the extent to which international refugee law interpretations affect them.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.8 The Intersection of International Refugee Law and International Statelessness Law

2021 ◽  
Author(s):  
van Waas Laura
Keyword(s):  
First Century ◽  
Forced Displacement ◽  
Refugee Protection ◽  
Refugee Law ◽  
Durable Solutions ◽  
Twenty First Century ◽  
International Refugee Law ◽  
The Relationship ◽  
Insight Into ◽  
Stateless Person

This chapter focuses on the intersection of international refugee law and international statelessness law. While refugee law, policy, doctrine, and research evolved, it was not until after the turn of the twenty-first century that international statelessness law started to draw much attention and to begin to emerge as a field of its own. As global interest in statelessness grows, the interaction between statelessness and forced displacement has also come back under the spotlight. Thus, the chapter provides an insight into the relationship between statelessness and forced displacement. It starts by unpacking how statelessness can manifest itself as a cause or consequence of displacement, as well as how statelessness can be a complicating factor for refugee protection and durable solutions. The chapter then offers a brief overview of key norms relating to the protection of stateless persons and the prevention and resolution of statelessness, setting out the contours of international statelessness law. It also looks at the implications of the statelessness–displacement nexus by exploring the conceptual and practical questions that arise when a refugee is also stateless, and when a stateless person is also a refugee.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.7 Refugees as Migrants

2021 ◽  
Author(s):  
Atak Idil ◽  
Crépeau François
Keyword(s):  
Forced Migration ◽  
Institutional Framework ◽  
Freedom Of Movement ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Clear Line

This chapter details the long-standing debate on whether refugees should be portrayed as migrants. Several organizations, refugee advocates, and scholars argue for a clear line between ‘migrants’ and ‘refugees’, as a means of protecting the refugee regime. They point to the inherently distinct motivations driving refugee movements compared to other types of migration, as well as to the specific normative and institutional framework for refugee protection. The chapter argues that conceptualizing refugees as migrants does not undermine the specific normative and institutional framework for refugee protection. Rather, it further promotes refugees’ access to asylum and safety. The chapter then examines the literature on the refugee/migrant distinction, highlighting the increasingly overlapping and interconnected motivations and contexts driving forced migration. It looks at the mounting barriers refugees face to reach safety and explores the avenues to safeguarding and promoting access to asylum and refugee rights. The chapter also articulates the role that freedom of movement should play in protecting the rights of all migrants, including refugees.

Part V The Scope of Refugee Protection, Ch.42 Sexual Orientation and Gender Identity in Refugee Claims

2021 ◽  
Author(s):  
Millbank Jenni
Keyword(s):  
Sexual Orientation ◽  
Risk Analysis ◽  
Gender Identity ◽  
Credibility Assessment ◽  
Refugee Status ◽  
Refugee Protection ◽  
Administrative Practice ◽  
Refugee Law ◽  
Fact Finding ◽  
And Gender

This chapter explores two key themes in modern refugee jurisprudence concerning sexual orientation and gender identity (SOGI) claims over the past 35 years. First, there is a persistent, indeed widening, gap between the formal acceptance of SOGI claims in refugee law—broadly taken to include authoritative international guidance, interpretative norms, and binding domestic precedent—and the implementation of such law through the low-level administrative practice that comprises the vast bulk of refugee status determination (RSD). Secondly, although SOGI claims are often considered as marginal or exceptional cases, they should be seen as a key axis from which to understand major developments and failings of refugee law across the board. The chapter then suggests that SOGI claims are a paradigm example of the ontological challenges at the heart of RSD. These include the enduring challenges posed by fact-finding and evidentiary practices such as future-focused risk analysis, credibility assessment, and the interpretation of claims across culture.

scholarly journals “It Is Better to Be a Refugee Than a Turkana in Kakuma”: Revisiting the Relationship between Hosts and Refugees in Kenya

Refuge ◽  
1969 ◽  
pp. 73-83
Author(s):  
Ekuru Aukot
Keyword(s):  
Negative Impact ◽  
Local Economy ◽  
Refugee Protection ◽  
Refugee Law ◽  
Local Integration ◽  
International Refugee Law ◽  
International Instruments ◽  
International Conventions ◽  
The Relationship ◽  
Host Relations

The article echoes stories and perceptions of the hosts to the refugees in their day-to-day relations in Kakuma refugee camp with little emphasis on academic abstraction of refugee protection contained in international instruments but rather on the realities on the ground. It is argued that good refugee-host relations enhance refugees’ enjoyment of their rights under the international conventions and promote local integration. The article discusses areas of conflict between refugees and their hosts and how these factors endanger refugees’ physical protection, and it echoes the hosts’ solutions to the conflicts. The failure of local integration is attributed to poor refugee-host relations. Consequently, it is argued that even the enactment of refugee specific legislation “that would give force” to the international conventions will not necessarily improve refugees’ enjoyment of their rights as long as, through a practice of selective compassion by humanitarian agencies and international refugee law, refugees are targeted for assistance without regard to the negative impact on the local economy and its residents.

Expanding refugee ineligibility: Canada’s response to secondary refugee movements

2020 ◽  
Author(s):  
Idil Atak ◽  
Zainab Abu Alrob ◽  
Claire Ellis
Keyword(s):  
New Zealand ◽  
Asylum Seekers ◽  
Critical Assessment ◽  
Effective Protection ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Us ◽  
International Refugee Law ◽  
Legislative Changes ◽  
The Uk

Abstract In 2019, Canada introduced legislative changes that made asylum seekers ineligible for protection if they have made a previous refugee claim in a country that Canada shares an information-sharing agreement with. Such agreements are currently in place with the US, Australia, the UK, and New Zealand. This article offers a critical assessment of the new ineligibility ground, arguing that the policy is designed to deter secondary refugee movements, particularly those across the Canada–US border which have considerably intensified since 2017. Based on the ‘first safe country’ rule, the new ineligibility ground enables Canada to exclude some asylum seekers from refugee protection without offering any alternative effective protection in Canada. This article demonstrates that the policy is inconsistent with Canada’s obligations under international refugee law.

Political Violence and Its Discontents

2019 ◽  
Vol 10 (1) ◽  
pp. 7-40
Author(s):  
Ergun Cakal
Keyword(s):  
Political Violence ◽  
Armed Conflict ◽  
Refugee Camp ◽  
Political Rights ◽  
Humanitarian Law ◽  
Refugee Status ◽  
Refugee Law ◽  
Conflict Zone ◽  
International Refugee Law ◽  
The Right

The line that refugee status is of a purely ‘civilian and humanitarian’ character cannot be strictly maintained. It has become commonplace to point out the dangers posed to the general refugee population due to the presence of combatants in or within the proximity of a refugee camp, where a separation of civilian and non-civilian elements may indeed be deemed necessary. Forgoing the scholarship pertaining to the context of the refugee camp, which has absorbed most of the attention in this area, this paper will focus on the de jure legitimacy of a combatant seeking asylum, particularly away from the conflict zone. In light of this, there is a firm need to redraw the distinctions in this area and to account for the lack of dependence to and deference of international refugee law towards humanitarian law. There remain definitional and interpretative complexities that prevent a clear implementation of rules, particularly in non-international armed conflict. While the concern in not tarnishing asylum regimes is a legitimate one, it must be admitted that losing sight of the individuality and diversity of combatants and their motive, as occurs in the current discourse, is also erosive of protection needs and political rights, primarily the right to self-determination.

Part II Sources, Ch.14 National Constitutions and Refugee Protection

2021 ◽  
Author(s):  
Lester Eve
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Critical Dimension ◽  
Methodological Framework ◽  
Human Rights Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
The Relationship

This chapter explores how national constitutional frameworks add a critical dimension to refugee protection. Given the variability in the protective value of national constitutions for refugees, it considers how States draw strength from their constitutions in response to refugee movements and why they do so in particular ways. The chapter seeks to elucidate some of the complexities in the relationship between constitutional law and international refugee and human rights law, considering the relevance of constitutional text and context, State perspectives on the place of international law, and the extent to which constitutional law has shaped, and continues to shape, international law. The chapter offers a taxonomy as a methodological framework for differentiating these complexities, which suggests that the relationship between constitutional law and international refugee law might be understood in one of three ways: as symbiotic, ambivalent, or antagonistic. It then applies this framework to three case studies. It suggests that this approach may help us to think more strategically about how to harness the protective possibilities of constitutional law as well as wrestle more productively with constitutional law’s limitations.

Fences, Fiction, and the Magic Mountain

2021 ◽  
pp. 363-384
Author(s):  
Dana Schmalz
Keyword(s):  
European Convention ◽  
Legal Rules ◽  
Refugee Protection ◽  
Refugee Law ◽  
Common European Asylum System ◽  
The Common ◽  
International Refugee Law ◽  
The One ◽  
Procedural Rights

How to allocate responsibility for refugee protection between states forms a salient question in international refugee law. Explicit principles are lacking, yet there is a growing consensus that the issue of responsibility-sharing relates to the system’s most salient deficiencies. Within Europe, the sharing of responsibility for refugees is equally contested. Explicit legal rules exist within the Common European Asylum System (CEAS) of the EU on the one hand, and the European Convention of Human Rights (ECHR) on the other. The chapter explores the schemes of responsibility-sharing that underlie these two frameworks, the scheme of layered responsibility under the ECHR, and the scheme of alternative responsibility under the Dublin legislation of the CEAS. It discusses the respective implications for the regulation of borders and safeguarding of rights. It points to the role of individual procedural rights arguing that lessons can be learned from the European case which can also apply to the international level.

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