New publications on immigration, asylum and refugee law

Three new titles have been published recently in the area of immigration, asylum and refugee law.

EU Asylum Procedures and the Right to an Effective Remedy
by Marcelle Reneman

This book examines the meaning of the EU right to an effective remedy in terms of the legality and interpretation of the Procedures Directive (which provides for important procedural guarantees for asylum applicants, but also leaves much discretion to the EU Member States to design their own asylum procedures) in regard to several key aspects of asylum procedure: the right to remain on the territory of the Member State, the right to be heard, the standard and burden of proof and evidentiary assessment, judicial review and the use of secret evidence. Click here for more information.

The Reception of Asylum Seekers under International Law
by Lieneke Slingenberg

This book critically examines the outcomes of the negotiation process on the minimum conditions for the reception of asylum seekers – Directive 2003/9/EC and Directive 2013/33/EU – in relation to international refugee law, international social security law and international human rights law. It presents a comprehensive analysis of state obligations that stem from these different fields of law with regard to asylum seekers’ access to the labour market and social security benefits and compares them to the minimum standards developed in the European Union. In addition, this book particularly examines how the instrumental use of social policy relates to international law. Click here for more information.

Statelessness – The Enigma of the International Community
by William E. Conklin

In this book, Conklin critically evaluates traditional efforts to recognize and reduce statelessness. The increasingly widespread problem of statelessness has profound legal, social, economic and psychological consequences but also gives rise to the paradox of an international community that claims universal standards for all natural persons while allowing its member states to allow statelessness to occur. The problem, Conklin argues, rests in the obligatory nature of law, domestic or international. By closely analysing a broad spectrum of court and tribunal judgments from many jurisdictions, Conklin explains how confusion has arisen between two discourses, the one discourse inside the other, as to the nature of the international community. Click here for more information.

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Remembering the forgotten: International legal regime protecting stateless persons

publication by a member of the Interest Group
by Tamás Molnár

Statelessness and protection of stateless persons under public international law has not traditionally been in the forefront of academic legal research. Tamás Molnár has just published a paper in the US China Law Review (Vol. 11, No. 7) that aims to draw a picture on the legal status of stateless persons under public international law,  shedding light onto the rather sporadic but noteworthy legal developments after the adoption of the core global instrument in this field, the 1954 New York Convention on the Status of Stateless Persons. It explores both the current legal framework on the universal and regional level (de lege lata) and new tendencies in legal developments (de lege ferenda).

The paper concludes that public international law created a new legal category, an abstract and autonomous de iure stateless status, with its own terminology and dogmatics. All this with a view to establish a coherent, logically closed legal architecture and to offer a self-standing protection status for those having been denied the basic right of belonging to a State. Nevertheless, there are still serious gaps and shortcomings in the relevant international legal framework as well as the existing norms that face also limited effectiveness.

The paper can be downloaded here.

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Bulgaria builds anti-refugee fence; refoulement, according to scholars


Overwhelmed by an influx of mostly Syrian immigrants, Bulgaria has taken steps to secure its EU border – including building a 30-kilometre barbed-wire fence, standing three meters high and fortified with razor wire coils. The fence was completed this week and covers the least visible section of Bulgaria’s 275-kilometre border with Turkey. It aims to stem a flow of refugees that saw more than 11,000 people enter the country illegally last year – 10 times the annual figure before the Syrian conflict.

However, Amnesty International, Human Rights Watch and UNHCR have all condemned the rejection of asylum seekers, stating that all EU States must “ensure access to their territory [and] fair and efficient asylum procedures”. The fence has also been attacked by prominent international refugee scholar James Hathaway, who stated in a tweet that the fence, given the intent with which it was build, is tantamount to illegal refoulement.

Read more here and here.

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Migrants’ voting at the local level is a human right

publication by a member of the Interest Group
by Nikolaos Sitaropoulos

According to a recent study, only 15 of the 28 EU member states allow categories of resident migrants (‘third country nationals’) to participate in local elections. Four of these states only allow migrants to vote but not to stand for election. The results of the latest European Parliament elections, which were characterised by a boost of extreme, anti-migrant parties, have made it even more difficult to publicly debate issues relating to migrants’ human rights, including voting, even if these rights are enshrined in European law.

Although states’ reluctance to recognise migrants’ voting rights in their host countries is exemplified in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which only provides for migrants’ rights to participate in public affairs, vote, and run for office in their state of origin, Mr Sitaropoulos argues that migrants’ effective integration into European host states is not really possible if they are excluded from the most important process of a state’s democracy, that is, elections.

Read the entire blog here.


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Where is everyone? Report by MSF

Last week, Médecins Sans Frontières published a critical report on the limitations and deficiencies of the international aid response to crises. Some good work is taking place, and lives are being saved, but much more can, and should be done, to reach those people most in need.

In 2016 the World Humanitarian Summit will bring together global experts in aid to consider the structure and funding of humanitarian work in the future. In advance of this important meeting, MSF published ‘Where is Everyone?’, a report which diagnoses some of the key issues inherent in the international response to humanitarian crises.

Three in-depth case studies from South Sudan, DRC and Jordan are analysed which identify a number of key findings in relation to the performance of the humanitarian system in responding to all three displacement emergencies examined. Especially UNHCR, the refugee agency of the UN, receives quite a lot of criticism on its modus operandi, but other aid organizations are discussed as well.

Find out more about the report here, and the reaction of IRC here.


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Ruling of ECtHR on return of homosexual asylum seeker to Libya

On 26 June 2014, the European Court of Human Rights (ECtHR) rejected a Libyan national’s complaint that his return from Sweden to Libya would expose him to a risk of persecution based on his homosexuality.

Since the fall of Gadhafi’s regime in 2011, there has been a lack of public records of any prosecutions for homosexual acts, punishable by imprisonment under the Libyan Penal Code. The ECtHR therefore held that there is insufficient evidence that “the Libyan authorities actively persecute homosexuals”.

The ECtHR concluded that, based on his decision not to reveal his sexual orientation to his family back in Libya, the applicant has made an “active choice to live discreetly” due to “private considerations” rather than fear of persecution. In the Court’s view, “even if the applicant would have to be discreet about his private life [during the four months in Libya], it would not require him to conceal or suppress an important part of his identity permanently or for any longer period of time”.

More information can be found here.

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Unaccompanied children under Dublin III

On 26 June 2014, the European Commission published a proposal to amend Article 8(4) of the Dublin III Regulation, which determines the Member State responsible for examining the asylum application of an unaccompanied child.

Currently, Article 8(4) provides that, in the absence of a family member elsewhere in the EU, “the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor”.

Under the new proposal, which seeks to bring the Dublin Regulation into compliance with the C-648/11 MA & Others judgment of the Court of Justice of the EU, children applying for international protection will have their case examined in the Member State where they have lodged an application and where they are present. A child applicant will remain in that Member State while their claim is being examined, unless this is not in their best interests.

According to Commissioner Malmström, “[t]he proposal, amending the Dublin Regulation, provides legal certainty about the responsibility for examining applications from unaccompanied minors who have no family, siblings or relatives on EU territory”.

More information can be found here

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New report on “left-to-die boat” by Council of Europe

The Parliamentary Assembly of the Council of Europe has issued a new report on the tragic events in the Mediterranean Sea in May 2011, when a boat with 72 African migrants tried to reach Europe. A catalogue of failures by NATO warships and European coastguards led to the deaths of dozens of migrants, according to an earlier damning official report into the fate of a refugee boat in the Mediterranean whose distress calls went unanswered for days.

Now a follow-up report has been released. “Important efforts by member states, Italy in particular, have been engaged towards saving more lives at sea. However, a number of concerns still remain including failures to cooperate, define and admit responsibility and learn lessons from the latest tragic events”, emphasises Tineke Strik (Netherlands, SOC) in her second report which will be debated by the Parliamentary Assembly of the Council of Europe (PACE) at its next plenary session in Strasbourg (23-27 June 2014).

More information about the report can be found here and a video with Tineke Strik elucidating her findings can be found here.

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Conference on Human Security, Asylum and the EU

July 4, The Hague (the Netherlands)
Using Human Security as a Legal Framework to analyse the Common European Asylum System

The conference is the second event falling within the current CLEER (Centre for the Law of EU External Relations) research project titled ‘Human Security as a new operational framework for enhancing Human Rights protection in the EU’s Security & Migration Policies’. The conference will address a specific ambit in which human rights, EU security and foreign policy meet: EU asylum and migration policy.

The conference will address the role that Human Security can play in relation to the legal and political toolbox with which the EU responds to humanitarian crises such as conflicts and natural disasters. It shall take stock of recent developments in EU legislation, jurisprudence and doctrine whilst analysing the extent to which Human Security discourses can enrich protection standards within the Common European Asylum System (CEAS).

More information can be found here, and click here to download the program.  

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Report on our own event ‘Heading to Europe’

“People Will Come No Matter What”

On 16 May 2014, the Interest Group on Migration and Refugee Law of the European Society of International Law, in close cooperation with the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam, organized a panel discussion on migration by sea in the Mediterranean, entitled ‘Heading to Europe: Safe Haven or Graveyard?’. The panel discussion, which took place in Nijmegen, brought together approximately 50 scholars, government officials and practitioners working in the field of migration and refugee law and policy.

In the weeks preceding the panel discussion, a string of boat tragedies occurred in the Mediterranean in which more than 100 migrants and refugees are believed to have perished. The frequency with which such tragedies take place, demonstrates the urgency of the situation and sparked the idea of organizing a panel discussion on the topic. The aim of the panel discussion was two-fold: first, to provide an overview of the existing and developing legal framework applicable to migration by sea in the Mediterranean and, second, to reflect on the wider sociological implications of that legal framework.  Continue reading

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