Rights in Exile

The International Refugee Rights Initiative’s Refugee Legal Aid Newsletter. * * * This newsletter follows recent developments in the interpretation of refugee law, case law precedents from different constituencies, reports and helpful resources for refugee legal aid providers, and stories of struggle and success in refugee legal aid work. It is a resource for legal aid providers primarily in the Global South where law journals and other resources are difficult to access.

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July 2021

Issue 125

ISSN 2049-2650

Editorial Team: Nejla Sammakia, Christian Jorgensen, Cristina de Nicolás Izquierdo, Taylor Brooks, Lucia Slot, Nastassja White, Lena Ellen Becker, Rosa da Costa, Divita Shandilya, Adesuyi Daramola and Léon Nsiku.

Chief Editor: Fiona McKinnon

Web links are in blue.

In this issue:

Articles & Short Pieces

Can refugee scholars hold the line? Why the theoretical line that separates forced migrants from other persons on the move may not be sustainable

The UN’s refugee data shame

Climate migrants: How German courts take the environment into account when considering non-refoulement

Disasters, climate change and refugee law

What does “credible fear” really mean?

On the difference that Turkey’s geographical limitation to the 1951 Convention makes in the protection of non-European refugees

Pushbacks from Cyprus to Lebanon lead to chain refoulement to Syria

The peripheral role of the global refugee regime in Southern Africa: Protection challenges in urban spaces

Refugee responsibility sharing or responsibility dumping?

Resettling refugees in other countries is not reliable, nor is it fair. So, why is Australia doing it?

Why do Tamil asylum seekers need protection - and why does the Australian government say they don’t?

Australia’s Migration Amendment (Clarifying International Obligations for Removal) Act 2021: A case study in the importance of proper legislative process

What is the difference between refugee status and humanitarian protection in the UK?

The legacy caseload in Australia

The “Biloela family” was released into community detention – what is it and how does it fit into Australia’s asylum system?

Fact check: Is sea rescue a pull factor for refugees?

News on Countries of Origin

News on Countries of Asylum

Detention and Deportation News

Statelessness

Case Notes

India’s problematic stance on non-refoulement: The deportation of Rohingyas

US Court of Appeals finds that immigration judges must affirmatively develop the record for certain asylum seekers

UK Home Office accidentally discriminates against trafficking victims with kids

US Board of Immigration Appeals finds mere continuation of an activity does not warrant new asylum claim

US Attorney General Garland vacates decisions restricting access to asylum for domestic violence and gang-related claims

English Channel crossings: Prosecutors drop charges against 11 migrants for steering small boats

Lawyer calls for Iceland Justice Minister’s resignation, refugees denied return to former housing

US Supreme Court united against “magic words” and judge-made rules on asylum seekers’ credibility

Australian Federal Court awards AUD 350,000 to unlawfully detained asylum seeker, opening door to further claims

Housing migrants at Napier Barracks unlawful, UK court rules

Game-changer for Sri Lankan Tamil activists seeking asylum in the UK

Opinion/Editorial

Europe should listen more to Africa on migration

If you think Australia making an example of a sick three-year-old is an exception, think again. This is what we do.

Asylum seekers in Australia: Locked up and let out without support

New Zealand has one of the lowest numbers of refugees per capita in the world — there is room for many more

US immigration detention has now been referred to as “torture” — the US government will surely have to pay reparations

How to make the US asylum system efficient and fair

The US is failing to protect pregnant asylum seekers

Vietnamese refugees found a home in the US — Afghans deserve no less

South Africa’s patchwork treatment of refugees and asylum seekers shows much to be done to ensure human rights for all

South Africa aggravates the plight of refugees and asylum seekers for higher education funding

Don’t turn away from these images and these crimes in Tigray

Myanmar National Unity Government: Appoint an ethnic-Rohingya envoy to implement new policy

The New Plan for Immigration: Blaming the wrong people leads to proposing the wrong solutions to the wrong problems

Announcements

Conferences, courses and workshops

Calls for papers

Vacancies

Grants and scholarships

Resources

Publications

Newsletters

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Can refugee scholars hold the line? Why the theoretical line that separates forced migrants from other persons on the move may not be sustainable

The following piece was written by T. Alexander Aleinikoff, University Professor and Director of the Zolberg Institute on Migration and Mobility at The New School. This text was prepared for delivery at the conference on “Borders, Territory And Rights: Changing Legal Cartographies Of Migration And Mobility,” held on 17-18 June 2021.

My title doesn’t refer to whether refugee scholars should help others fend off attacks from governments and populist parties that are intent on destroying the international protection regimes we study. Most of us are already so engaged.

Rather, I am asking a conceptual question about the nature of refugee scholarship: does the line that separates forced migrants from other persons on the move continue to be theoretically sustainable?

Most (but not all) refugee scholars argue for such a distinction, both on conceptual and practical grounds.

[...]

But in more recent years, it has become gradually more difficult to distinguish migrants from refugees – and this for various reasons.

First, the definition of refugee has expanded dramatically. Today virtually anyone fleeing conflict in their home state will be categorized as a refugee (e.g., more than 5 million Syrians), whether or not they can show a threat of individualized or group-based persecution.  Furthermore, through very effective lawyering, refugee advocates have significantly enlarged the “social group” category to include, for example, LGBTQ claims, gender-based claims, and claims based on gang violence. It is also now established law that the threat of persecution can come from private actors, not just the state.  And with the rise of the idea of “climate refugees,” the threatened harm will come from a non-human source.

We are getting closer to an understanding of refugee as anyone whose “survival” is at stake.  At some point, it becomes difficult to argue for protection for these groups, and not for persons leaving an economy in ruins, extreme poverty or general conditions of civil disorder. (I was once taken with the aphorism that migrants seek to improve their lives while refugees seek to rebuild their lives. I am less certain today that this distinction holds.)

Second, both refugee and migration scholars now recognize that individual reasons for movement are remarkably complex—involving, to name a few, personal characteristics and risk appetite (ie, when a person decides to leave a dangerous or economically distressed situation for uncertainty elsewhere), the location of family, economic opportunities at home and abroad, environmental events and climate change, prospects for the future, the strength of local ties.

The post-war refugee regime has been based on the idea that we can identify the reason a person has decided to flee; but we now see this as a fool’s errand.

Why did millions of Syrians leave while millions of Syrians remained? Why do tens of thousands of Central Americans travel to the US but a larger number stay home? For each person, there will be a calculation based on a wide range of factors. [Read more here.]

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Refugee data shame and the UN

The following piece was written by Zara Rahman, a researcher and writer interested in the intersection of technology, power and social change. She is Deputy Director at The Engine Room, a non-profit organisation supporting civil society to use tech and data more strategically and responsibly. It was published by The New Humanitarian on 21 June 2021.

Back in 2017, I wrote here of the risks of the UN’s refugee agency, UNHCR, collecting biometric registration data from Rohingya refugees, noting that the data could be used to drive unwilling repatriation; that collecting such data may make refugees believe their access to aid depends upon providing such data; and that – once collected or shared – such biometric data is virtually impossible to get rid of.

Nearly four years later, a report from Human Rights Watch (HRW) says these worst-case scenarios have come true: A detailed database of the Rohingya refugee population has been handed over to Myanmar’s government, which drove them across the border into Bangladesh almost four years ago. The same millitary that conducted the (most recent) genocide against the Rohingya now holds the biometric data of the population it has tried to eradicate.

A UN investigation team described Myanmar’s treatment of its minority Rohingya population as war crimes and crimes against humanity; characterised by brutal physical force, civilian casualties, villages razed to the ground, as well as internet shutdowns and information blackouts.

Refugees in the camps in Bangladesh told HRW they accepted the need to be registered with UNHCR to be recognised as refugees and get services. But they said they didn't get a chance to opt out of a government-backed digital identity card – a process UNHCR also handled.

HRW reports that the data connected to those “Smart Cards”, including biometric scans, was shared with Myanmar, often against the refugees’ wishes. UNHCR denies HRW’s claims it misled refugees or broke its own data rulebook.

There are so many failures in what has happened: institutional failures to abide by organisational policies and guidelines; decision-making failures in permitting the data-sharing to happen; moral failures in UNHCR’s irresponsible actions and continued denial of its role in what happened; and sector-wide failures in the utter lack of accountability mechanisms – to name just a few.

These failures have real impacts, and biometric data is immutable – it will stay linked to their bodies until they die. Now the data has been shared, it’s impossible to take it back.

According to HRW, the data included not only the biometric data of the 830,000 individuals, but also details of their family compositions, their place of origin, and information on their relatives overseas. 

Once they knew their biometric data had been shared, refugees interviewed by HRW suggested they could be targeted for forced repatriation or for retribution if they return to Myanmar. Some went into hiding when Bangladesh attempted to begin returns in 2019, using names from the database.

Targeted identification of persecuted populations to facilitate targeted killings and violence has long been a tactic of genocidal regimes, only this time the data is digitised – fast to access, quick to scale, and easily accessible. Meanwhile, the Myanmar military has been purchasing spyware that can “extract data from smartphones, access phone conversations, and monitor people’s movements”, thus demonstrating an appetite to use technical tools for repression. [Read more here.]

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Climate migrants: How German courts take the environment into account when considering non-refoulement

The following article was written by Camilla Schloss, a judge at the Administrative Court of Berlin where she decides mainly on asylum and immigration cases. It was published on 3 March 2021 on Völkerrechtsblog, an academic blog on all matters of international public law and international legal thought. 

In a recent landmark decision concerning an Afghan national a German Higher Administrative Court declared a ban on deportation (non-refoulement) based on German immigration law in conjunction with international human rights. The court’s main argument was that the humanitarian conditions in Afghanistan have seriously deteriorated due to the COVID-19 pandemic. It thereby explicitly mentioned “environmental conditions, such as the climate and natural disasters” as relevant factors for determining the humanitarian conditions in Afghanistan (VGH Baden-Wuerttemberg, judgement of 17 December 2020 – A 11 S 2042/20 – para. 25).

What relevance does this decision have for the millions of persons displaced in the context of natural disasters and climate change-related harm? Much has been written about the lack of a legal framework to address persons displaced due to natural disasters and climate change-related harm. In this article I would like to focus on existing legal developments. International and national case law has provided some examples of how protection might be possible outside the scope of the Refugee Convention. In the 2020 decision Teitiota v New Zealand, the UN Human Rights Committee considered non-refoulement obligations to derive from Art. 6 of the International Covenant on Civil and Political Rights for a person from Kiribati claiming that climate change and sea level rise was threatening his life. Later that year, a French Court of Appeals overturned an expulsion order against a Bangladeshi citizen on the ground that his respiratory illness would exacerbate due to air pollution in his country of origin.

What is the situation in Germany? This blog post investigates the current degree of protection granted by German courts for persons displaced in the context of environmental disasters and climate change. What you will see in the following paragraphs is that German courts take the environment into account when examining a ban on deportation based on immigration law and international human rights. This is another argument that non-refoulement protection based on human rights is what we should pay special attention to when assessing protection for climate migrants. [Read more here.]

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Disasters, climate change and refugee law

The following article was written by Tamara Wood, Visiting Fellow at the Kaldor Centre for International Refugee Law and PhD Candidate in the Faculty of Law at University of Tasmania. It was published on the Refugee Law Institute blog on 24 May 2021.

Refugee law has often been thought ill-fitting for addressing the protection needs of people displaced in the context of disasters and climate change – better suited to protecting those fleeing ‘human’ rather than ‘natural’ causes of harm. However, an increasing awareness of the nature and impact of disasters and climate change – which are not ‘natural’ but rather the combined effects of natural hazards and human factors – has opened the way for a more nuanced understanding of the potential application of refugee law.[1] In this context, regional refugee definitions in Africa and Latin America may have a particularly important role to play.

In October 2020, the UN Refugee Agency (UNHCR) published its first official guidance on the application of refugee law in the context of disasters and climate change in its Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (Legal Considerations). UNHCR’s Legal Considerations explicitly recognise (in paragraphs 6 and 14) that persons displaced by disasters and climate change may be eligible for refugee protection under the 1951 Convention relating to the Status of Refugees (1951 Convention) and its regional counterparts – the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) and the 1984 Cartagena Declaration on Refugees (1984 Cartagena Declaration) in Latin America. This is because climate change and disasters frequently interact with other factors – including poor governance, socio-economic inequality, and political and religious tensions – to produce displacement.  

According to UNHCR, in determining whether a person displaced in the context of a disaster or climate change qualifies for refugee protection, decision-makers “should not focus narrowly on the climate change event or disaster as solely or primarily natural hazards”. Rather, they should also take into account the effect that such hazards have on “State and societal structures and individual well-being and the enjoyment of human rights”. [Read more here.]

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What does “credible fear” really mean?

The following account was written by Elizabeth L. Silver, a writer and attorney based in Los Angeles, California. It was published in the Los Angeles Review of Books on 24 May 2021.

A few months before COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.

I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter. [Read more here.]

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On the difference that Turkey’s geographical limitation to the 1951 Convention makes in the protection of non-European refugees

The following article was written by Ayşe Dicle Ergin, Assistant Professor in the Faculty of Law at Bilkent University, and Yiğit Kader, a consultant in the area of asylum and migration and a lecturer at Başkent University Faculty of Law. It was published on 22 June 2021 on the Refugee Law Initiative’s blog.

The refugee definition under the 1951 Convention Relating to the Status of Refugees (the 1951 Convention) was limited by terms of both geography and time. Article 1(B) of the 1951 Convention allowed the signatory parties the possibility of accepting “events occurring before 1 January 1951” as referring to either “events occurring in Europe before 1 January 1951” or “to events occurring anywhere in the world before 1 January 1951”. States which chose the first option could later expand their understanding to cover all countries in the world, but not vice-versa. At the time of the signing of the Convention in 1951, Turkey declared that it accepted the refugee definition to mean the first option.

Later, the 1967 Protocol Relating to the Status of Refugees lifted the temporal limitation on the refugee definition via Article 1(2). However, as per Article 1(3) of the 1967 Protocol, states which had declared that they would limit the 1951 Convention refugee definition to those who became refugees due to events occurring in Europe (the European refugees) were allowed to maintain their geographical limitation. Consequently, although being one of the initial drafters of and party to the 1951 Convention, Turkey keeps its geographical limitation while hosting the largest refugee population in the world.

Turkey’s geographical limitation to the 1951 Convention has historically been one of the most significant factors in shaping the framework and scope of the Turkish national asylum system. Currently it constitutes the basis for the division between “refugee” and “conditional refugee” protection statuses in the national legal framework, while in the past the limitation created a major barrier in processing of asylum applications of those who fled due to events occurring outside Europe (non-European refugees). These individuals could only benefit from a temporary form of protection with significant barriers in accessing rights and services in Turkey in the absence of a comprehensive legal framework until the asylum reform in 2013. With the adoption at that time of the Law no. 6458 on Foreigners and International Protection (LFIP) – the first Turkish asylum law – a unique “conditional refugee” status was created which considerably extended the scope of protection to non-European refugees without lifting the limitation to the 1951 Convention. [Read more here.]

Geographical limitation from the UNHCR and EU perspective 

Turkey’s geographical limitation has impacted several areas. Firstly, it has constituted a decisive factor, not only in shaping the country’s national asylum system, but also forming the nature and level of Turkey’s cooperation and relationship with the international community in the field of asylum. A significant example is that it has shaped the role and activities of the UNHCR Operation in Turkey. Due to the geographical limitation, UNHCR assumed responsibility for registration, refugee status determination (RSD) and resettlement procedures for non-European asylum seekers in the country for several decades. This resettlement role is important in terms of Turkey’s relationships with resettlement countries and with UNHCR. In addition, the geographical limitation was the source of numerous challenges and barriers for non-European refugees trying to find protection in Turkey. [Read more here.]

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Pushbacks from Cyprus to Lebanon lead to chain refoulement to Syria

The following joint statement was signed by the Access Center for Human Rights (Wousoul), Centre d’accès pour les droits de l’homme (ACHR), ALEF – Act for human rights, Centre Libanais des Droits Humains / Lebanese Center for Human Rights (CLDH), KISA and EuroMed Rights. It was published on the EuroMed Rights website on 3 June 2021.

On 16 May 2021, a boat left Lebanon with 56 migrants on board (39 men, seven women and ten children) and was located off the coast of Cyprus, approximately 16 nautical miles south of Cyprus’ Cape Greco. Cypriot authorities checked the documents of the people on board and then denied entry to Cyprus and pushed them back to Lebanon. At least eighteen people who were returned to Lebanon were brought to detention. On 1 June 2021, the Lebanese authorities deported at least 15 individuals to Syria, including five people who were pushed back by Cyprus on 16 May 2021. Another deportation was scheduled for today, 3 June 2021, during which the deportation of at least one person was successfully challenged, but others are still in detention at high risk of deportation.

By preventing access to its territory, denying access to asylum, and by pushing back vessels at sea to Lebanon – causing the chain refoulement of asylum seekers to Syria – Cyprus is violating the principle of non-refoulement set out under the 1951 Geneva Convention and EU law on asylum, and infringes Article 3 of the European Convention on Human Rights (ECHR), Article 3 of the UN Convention on Torture, Inhuman and Degrading Treatment or Punishment and Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance. Cyprus is also breaching Article 4 of Protocol No. 4 of the ECHR on prohibition of collective expulsions as it does not provide for an individual examination of the cases. On 18 March 2021, the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, urged Cypriot authorities to investigate allegations of pushbacks and ill-treatment of migrants by members of security forces.

By deporting people back to Syria, a country that still practices torture, Lebanon is violating Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that is ratified by the state on 5 October 2000. [Read more here.]

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The peripheral role of the global refugee regime in Southern Africa: Protection challenges in urban spaces

The following article was written by Nicholas Maple, a postdoctoral researcher at the African Centre for Migration & Society (ACMS) at University of the Witwatersrand in South Africa. It was published on the PROTECT blog on 9 June 2021.

Southern Africa is home to a significant number of refugees and forced migrants, with UNHCR reporting 1.1 million refugees and asylum-seekers in the region in 2020. To assist states in hosting these populations, the global refugee regime has been associated with offering protection to refugees in the region since the 1960s. 

This assistance has taken a range of forms, from specifying and promoting international standards for states to adopt when receiving and welcoming refugees, to the role of UNHCR and other UN agencies in offering direct protection and assistance to refugees in organised camps and settlements. 

Yet, with regional trends of urbanisation suggesting more and more refugees are rejecting refugee camps and organised settlements, to self-settle in cities and towns, some academics (particularly from within the region) now question the continuing relevance of UNHCR and the global refugee regime on the ground in southern Africa. Based on recently conducted doctoral research,[ii] this blog investigates the contemporary role of the global refugee regime in the reception of refugees in Zambia and South Africa.

The Global Refugee Regime and Sub-Saharan Africa

 The global refugee regime is essentially made up of two core components: the regime’s main international legal framework – the 1951 Refugee Convention; and the regime’s key global actor – UNHCR.[iii] Traditionally, a great deal of academic attention has engaged with these two elements when research has examined refugee displacement in sub-Saharan Africa. For example, a key debate that has dominated scholarship over the last twenty years has been the role of UNHCR in responding to the mass influx of refugees into neighbouring states due to civil war or unrest. Indeed, the importance placed on the regime, and in particular UNHCR, has resulted in the host state frequently framed as a secondary or minor actor in the welcome given to refugees.

This attention has traditionally concentrated on the role of UNHCR inside the refugee camp. Certainly, since the 1980s the UN agency has been profoundly involved in the architecture of refugee reception in sub-Saharan Africa via establishing and running refugee camps for host states. Yet as a result of this overarching focus, the role of the global refugee regime outside of the camp space remains less clear to this day. This is apparent in relation to the engagement of both (i) international legal frameworks; and (ii) international actors (such as UNHCR), with reception policies in urban spaces in sub-Saharan Africa.

Of the academic work that has been conducted in cities and towns, it primarily consists of (i) key observations around how state responses to refugees in urban spaces often appear to come about through ad hoc local level policy and practice rather than international or national legal frameworks; and (ii) investigations into UNHCR global policies on urban protection and critiques concerning the lack of UNHCR’s involvement in these spaces. [Read more here.]

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Refugee responsibility sharing or responsibility dumping?

The following article was written by Katerina Linos, Professor of Law at UC Berkeley and Co-Director of the Miller Institute for Global Challenges and the Law, and Elena Chachko, a doctoral candidate at Harvard Law School, where she has taught foreign relations law as Lecturer on Law, as well as an academic fellow at Berkeley Law’s Miller Center. It was published by Just Security on 18 June 2021. 

World Refugee Day is an opportunity to focus attention on one of the most pressing refugee law and policy challenges: almost 9 out of 10 refugees are hosted in developing countries. Better distribution of responsibility for seekers of international protection remains urgently needed. Policymakers across the ideological and geographic spectrum—including the United States under both the Biden and Trump administrations, Colombia, the European Union, the African Union, and the United Nations—have all invoked versions of responsibility sharing in their rhetoric, albeit in service of diverging policy objectives.

In a new empirical and analytical paper, forthcoming in the California Law Review, we identify, describe, and rate new responsibility sharing arrangements across the world. Some arrangements are progressive, if second-best policy solutions, that transfer seekers of international protection to more affluent, safer, more institutionally competent states. Others are regressive, third-best mechanisms, that in fact constitute responsibility dumping.

Our metric builds on existing assessments of responsibility sharing in key respects. To start, we move from the realm of political theory and wishful thinking to assess current practices.  We also shift the perspective from obligations to individual asylum seekers to obligations host states have toward one another. [Read more here.]

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Resettling refugees in other countries is not reliable, nor is it fair. So, why is Australia doing it?

The following article was written by Claire Higgins, an historian and Senior Research Fellow at the Kaldor Centre for International Refugee Law in Australia. It was published by The Conversation on 16 June 2021.

The federal government has scrambled in recent days to minimise the political fallout from its treatment of the Tamil family from Biloela. After almost two years stuck on Christmas Island, the Murugappans are now being permitted to return to the mainland under community detention while their asylum case is settled.

Last week, Foreign Affairs Minister Marise Payne raised the prospect of resettling the family in New Zealand or the US, before Home Affairs Minister Karen Andrews dismissed the idea, saying they are not eligible because they have not been found to be refugees.

All this talk has caused much confusion, and sparked questions around what Canberra is doing to resolve the plight of other displaced people to whom it has refused entry — namely, the hundreds of refugees who have been held for years in Australia’s system of offshore processing.

Andrews has said the Australian government is exploring resettlement overseas for “broad cohorts” of people. The minister’s focus is apparently on refugees who were held offshore in Papua New Guinea and Nauru, and are currently in Australia for medical treatment.

Who is eligible for resettlement in another country?

For a start, it helps to understand why Canberra wants other countries to resettle refugees who sought protection in Australia.

On 19 July 2013, the Rudd Labor government introduced a hardline ban on entry: people who sought asylum by boat on or after that date, and were transferred to PNG or Nauru, would never settle in Australia. This has been maintained under successive Liberal governments, and a total of 3,127 people were sent offshore.

The ban has been criticised for its “absolutist ambition” — the idea that the admission of any one person would cause the entire system of border control to collapse.

This is despite the fact Australia has obligations under international refugee and human rights law to protect people fleeing persecution or other serious human rights violations.

A central plank of this absolutism is that asylum seekers who arrive by boat, and are found to be refugees, will only ever be able to secure a durable and humane solution in another country – if such an opportunity can be found.

For those not subject to the hardline ban on entry — some 30,000 people who sought asylum by boat after mid-2012 and before 1 January 2014, and were not transferred offshore — a complex legal regime narrows their path to protection in Australia.

These people are subject to limited-term visas and a lot of uncertainty. The Biloela family have had to deal with this “byzantine” system, having arrived before the ban came into effect.

Deals with third countries

After the ban, successive Australian governments have tried to make deals with third countries to resettle those who were sent to PNG or Nauru. [Read more here.]

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Why do Tamil asylum seekers need protection - and why does the Australian government say they do not?

The following article was written by Niro Kandasamy, a PhD candidate in the School of Historical and Philosophical Studies at the University of Melbourne. It was published by SBS News on 16 June 2021.

Immigration Minister Alex Hawke has announced the Murugappans will be moved from detention on Christmas Island, to community detention in Perth.

This follows mounting public concern for the Tamil family, particularly regarding the health of four-year-old Tharnicaa, who was medevaced to Perth from Christmas Island last week.

But the government is yet to make a final decision about where the family can live in the long-term. The family has previously had its refugee claims rejected.

[...]

Australia’s relationship with Sri Lanka

Australia has a special security relationship with Sri Lanka that can’t help but affect its response to Tamil persecution and asylum seekers.

This relationship has been steadily intensifying since the 1970s, when the Indian Ocean gained strategic importance for both countries. In recent years, the Indian Ocean has become increasingly important for Australia’s national security as part of its geographical location in the Asia-Pacific region.

Along with joint exercises, Australia has gifted Sri Lanka patrol boats to stop people smuggling. This April, it gave the police five drones “to support crime fighting”

In 2015, Human Rights Watch reported both governments “colluded” when it came to the treatment of asylum seekers.

"Australia and Sri Lanka colluded to ensure that asylum seekers leaving Sri Lanka were either returned or else not allowed onto Australian territory," Human Rights Watch said.

Australia sent back many asylum seekers to Sri Lanka after cursory interviews at sea; those found to have legitimate claims were processed in other countries. In an apparent bid to secure Sri Lanka’s assistance in stopping migrants and asylum seekers, Australia failed to call for better human rights protections."

Australia has also opposed international investigations into war crimes in Sri Lanka. Until today, it has also ignored a 2019 UN request to release the Murugappan family into the Australian community. [Read more here.]

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Australia Migration Amendment (Clarifying International Obligations for Removal) Act 2021: A case study in the importance of proper legislative process

The following article was written by Sangeetha Pillai, a constitutional lawyer and a Senior Research Associate at the Kaldor Centre for International Refugee Law. It was published by Australian Public Law on 10 June 2021.

On 13 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)(‘Clarifying International Obligations Act’) was passed by both houses of federal Parliament, with bipartisan support. Its enactment was met with critique from refugee sector organisations, and defences from parliamentarians who voted for the law. It also attracted some media attention.

Unlike other significant laws, which are usually placed on the public’s radar before they are debated in Parliament, you probably didn’t hear anything about this one until after the fact. No public inquiry or formal consultation process was undertaken prior to this law being enacted. This is somewhat unusual. Typically, significant bills are referred to an inquiry, conducted by one of several parliamentary committees. This allows stakeholders, experts and members of the public to make submissions engaging deeply with the proposed legislation and drawing attention to effects or consequences that may have gone unnoticed during the drafting process. The inquiry stage is a forum for a genuine dialogue between legislators, those who will be affected by the laws they are deciding whether to pass, and those in whose names new laws are passed. It has helped many laws to be refined so that they better achieve Parliament’s goals, or so that they avoid unforeseen negative effects.

The lack of a meaningful dialogue around the Clarifying International Obligations Act is palpable. Drastically different views on how the Act will function and its likely effects have been expressed by Coalition and Labor members on the one hand, and refugee and migration law specialists on the other. The new amendments to the Migration Act 1958 (Cth) are complex, and they fit within a statute that is over 1,000 pages long. This creates a high risk that, if consultation with a broad range of stakeholders is skipped, important context will be missed by drafters.

Missing important context appears to be exactly what has happened here. The Clarifying International Obligations Act is a piece of legislation which pursues the unobjectionable goal of protecting people from being returned to countries where they would be at high risk of harm, but in a manner that is deeply flawed. [Read more here.]

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What is the difference between refugee status and humanitarian protection in the UK?

The following article was written by John Vassiliou, a specialist UK immigration and nationality solicitor at Shepherd and Wedderburn. It was published by Free Movement on 14 June 2021. A similar piece on the difference between refugee status and subsidiary protection in the EU was published by InfoMigrants here.

On the face of it, refugee status and humanitarian protection seem like two sides of the same coin. Both are a form of international protection granted to a person in need. Both result in a grant of five years’ permission to remain in the UK on a pathway to settlement after that. They give most of the same rights to work, study and access benefits.

But as we shall see, they are underpinned by very different legal frameworks, and refugee status is undoubtedly superior to a grant of humanitarian protection in several ways.

Before we delve into the advantages of refugee status, we will take a quick look at the circumstances in which a person will be granted one or the other.

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When will humanitarian protection be granted?

An asylum seeker who does not meet the criteria for a grant of refugee status will then be considered for humanitarian protection. 

The Immigration Rules cover humanitarian protection in paragraphs 339C and 339CA:

339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;

(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and

(iv) they are not excluded from a grant of humanitarian protection.

339CA. For the purposes of paragraph 339C, serious harm consists of:

(i) the death penalty or execution;

(ii) unlawful killing;

(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

To be granted humanitarian protection, an applicant must therefore establish that they would face a real risk of serious harm if returned to their country of origin. The definition of serious harm is taken almost word-for-word from Article 15 of the EU Qualification Directive (of which more below).

Crucially, it’s not necessary for a person to be at risk of serious harm for a specific reason such as their race, religion, or political opinion. Those at risk of indiscriminate violence can receive protection when they face serious harm for no particular reason other than their mere presence in their country of origin. [Read more here.]

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The legacy caseload in Australia

The following article was published by Asylum Insight on 1 June 2021.

What is the legacy caseload?

The term ‘legacy caseload’ refers to a group of about 30,500 asylum seekers who have experienced lengthy delays to the processing of their refugee claims in Australia. This group of asylum seekers arrived in Australia by boat before 1 January 2014. They were allowed to remain in Australia while their claims for protection were being processed but did not have their claims finalised by January 2014.  The legacy caseload also includes babies born in Australia to asylum seekers in this category.

A number of policy changes after 2012 meant that this group of asylum seekers were treated differently from other groups. These policies were implemented in response to the high numbers of asylum seekers arriving by boat in Australia between 2009 and 2013 and were designed to discourage future boat arrivals.

Why are there lengthy delays to processing the claims of this group?

In June 2012, the Gillard Government appointed an Expert Panel on Asylum Seekers to consider policies to ‘deter people from getting on boats’ and to establish ‘the best way forward’ in dealing with asylum seekers. The panel published its report containing 22 recommendations on 13 August 2012. In its first recommendation, the panel proposed a ‘no advantage’ principle to ensure that those who came to Australia by boat did not get an advantage over those who came through ‘regular’ channels.

In line with the Expert Panel’s recommendations, the Gillard Government reintroduced offshore processing. As a result, asylum seekers arriving by boat could be transferred to Papua New Guinea or Nauru for processing. Those who were transferred to the mainland were granted bridging visas with no right to work and limited access to social security. While this system was being established, the Gillard Government paused processing refugee claims… [Read more here.]

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The “Biloela family” was released into community detention – what is it and how does it fit into the Australian asylum system?

The following piece was written by Sherine Al Shallah, economist and JD law candidate at University of New South Wales. It was published on the website of the Kaldor Centre for International Refugee Law on 17 June 2021. 

On 15 June 2021, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke announced that the Murugappan family of four would be moved – from immigration detention on Christmas Island, to a ‘community detention placement’ in Perth. 

What is immigration detention?

Under Australian law, every person who is not an Australian citizen and who does not have a valid visa to enter or remain in Australia must be detained, and cannot be released from detention except in accordance with the conditions and powers set out in the Migration Act 1958 (Cth). In many cases, these conditions rely on the relevant Minister exercising broad, non-compellable and non-reviewable discretionary powers. There is no automatic exemption for people seeking asylum, meaning everyone arriving by boat without a visa must be detained on arrival. Even after being released, asylum seekers face risks of re-detention in various circumstances, including if their visas are cancelled or expire and they are subject to deportation. 

Section 5 of the Migration Act defines immigration detention as including being held in a detention centre, prison or remand centre, police station or watch house, or ‘another place approved by the Minister in writing’. This last category of places can include a placement in the community if the Minister thinks that it is ‘in the public interest’ to exercise his or her power under section 197AB to make a ‘residence determination’. Residence determinations allow the people covered by them to reside in a specified place, subject to certain conditions, rather than be held in a closed detention facility.

What is community detention?

Community detention is generally used to refer to residence determinations made by the Minister under section 197AB, and the conditions with which people subject to those determinations must comply. For example, the Refugee Council of Australia describes it as:

a form of detention … where people live in the community but in a specified place determined by the government (known as ‘residence determinations’), under certain restrictions. 

Community detention may come with reporting or other conditions, such as ‘requirements to live at a specified location, curfews, travel restrictions, regular reporting or even electronic monitoring’, as Jane McAdam and Fiona Chong note in Refugee Rights and Policy Wrongs (NewSouth, 2019).

The Minister generally grants community detention when circumstances warrant release from closed detention due to physical or mental health concerns which require additional support. Community detention tends to be accompanied by paid accommodation, needs-based support under the Status Resolution Support Services (SRSS) program, access to public schools and access to Medicare. People in community detention usually do not have work rights. [Read more here.]

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Fact check: Is sea rescue a pull factor for refugees?

The following article was written by journalist Ines Eisele. It was published by Deutsche Welle on 7 June 2021.

Some argue that more people will dare to embark on the perilous journey across the Mediterranean, for instance from Libya or Morocco to Europe, because they believe they will be rescued from boats that are often not even seaworthy.

Conservative politicians in particular regard sea rescue as an incentive to migrate. As a result, they criticize civilian sea rescue operations including Sea-Watch and Sea-Eye, groups that rescue tens of thousands of people in the Mediterranean every year. In some cases, the rescuers have been accused of colluding with smugglers, which in turn means they support human trafficking — an accusation the NGOs reject.

EU ships no longer patrol along the migration routes and have saved hardly any lives since the naval mission Operation Sophia ended in spring 2020. One of the reasons why state rescue at sea has been so severely restricted is that Italy and Austria, for instance, feared these missions would lead to a rise in the influx of refugees and migrants.

So-called push and pull factors play an important role in EU policy and discussions about limiting and managing migration.

Whereas push factors refer to circumstances that turn people away from their countries of origin — war or environmental disasters — pull factors are those that attract people or create incentives for them to come to Europe, including political stability and prosperity as well as liberal immigration laws.

So far, there is not much sound research. According to Julian Wucherpfennig, professor of international affairs and security at the Berlin-based Hertie School of Governance, this is partly due to the poor data situation — and partly to the complexity of the issue. "Cause and effect are difficult to separate," the scientist said, adding it's like studying whether the number of lifeguards has an effect on the number of bathers. [Read more here.]