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IMMINENCE IN REFUGEE AND HUMAN RIGHTS LAW: A MISPLACED NOTION FOR INTERNATIONAL PROTECTION

  • Adrienne Anderson (a1), Michelle Foster (a2), Hélène Lambert (a3) and Jane McAdam (a4)

Abstract

This article is an output of a major research project examining the notion of imminence in the law on international protection. It is the first piece of scholarship to identify an emerging trend, namely the introduction of imminence—whether invoked implicitly or explicitly—as a potential barrier to refugee status or complementary protection. The article analyses the jurisprudence of relevant international bodies and courts and critiques the validity of this notion as a tool for assessing States’ protection obligations.

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Copyright

Footnotes

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This article was produced under the auspices of an Australian Research Council (ARC) Discovery Grant on ‘The Concept of “Imminence” in the International Protection of Refugees’, DP160100079. We acknowledge the generous support of the ARC, and thank Mimi Oorloff, JD student, Melbourne Law School, for excellent editorial assistance.

We would like to express our enormous gratitude to the participants at our expert workshop held at UNSW in August 2018, who generously gave of their time and expertise in helping us to refine our framing and understanding of these issues. We also thank Christopher Michaelsen for suggesting we refer to the ‘notion’ rather than the ‘concept’ of imminence. We also thank the anonymous reviewers who made very valuable suggestions. Any mistakes of course remain our own.

Footnotes

References

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1 B Burson, ‘The Concept of Time and the Assessment of Risk in Refugee Status Determination’ (Kaldor Centre Annual Conference, Sydney, 18 November 2016) 1–2, 4 <http://www.kaldorcentre.unsw.edu.au/sites/default/files/B_Burson_2016_Kaldor_Centre_Annual_Conference.pdf> (writing in his personal capacity).

2 By ‘protection’ or ‘international protection’, we mean the protection granted to refugees and others at risk of serious harm, based on the principle of non-refoulement in refugee and human rights law (refugee status and complementary protection, respectively).

3 By ‘decision-maker’, we mean refugee and immigration decision-makers (typically immigration officials), tribunal members, and judges who consider international protection claims.

4 An imminent threat of attack may justify the use of self-defence by a State: Mr Barker to Mr Woodbury—(Extract), H Ex Doc No 74, 25th Cong, 2nd Sess, better known as the Caroline case. The nearness in time of the attack seems to demand something ‘instant, overwhelming, and leaving no choice of means, and no moment of deliberation’: remarks by the United States Secretary of State on the conditions under which a plea of self-defence could be accepted (in relation to the Caroline incident), cited in AC Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26(3) WashULQ 89, 90–1. See also J Wright, ‘The Modern Law of Self-Defense’ (IISS London, 11 January 2017) <https://www.gov.uk/government/speeches/attorney-generals-speech-at-the-international-institute-for-strategic-studies>.

5 Bethlehem, D, ‘Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 AJIL 770, 773. Akande and Liefländer agree that due to the lack of scholarly consensus, the notion of imminence ‘needs to be further refined and developed’: Akande, D and Liefländer, T, ‘Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense’ (2013) 103 AJIL 563, 564.

6 First used October 1999 in UN Security Council (UNSC) Res 1270 (22 October 1999) UN Doc S/RES/1270 para 14. See Willmot, H et al. (eds), Protection of Civilians (Oxford University Press 2016).

7 V Holt and G Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges (United Nations 2009) 40 (emphasis added, fn omitted).

8 ibid 166, 307, 327.

9 The term ‘imminent’ has been removed, for example, from the mandates of UN missions in Sudan (UNMIS), Darfur (UNAMID), Central African Republic (MINUSCA), Côte d'Ivoire (UNOCI), and the Democratic Republic of the Congo (MONUSCO). See UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706 para 12(a); UNSC Res 1769 (31 July 2007) UN Doc S/RES/1769 para 15(a)(ii); UNSC Res 2149 (10 April 2014) UN Doc S/RES/2149 para 30(a)(i); UNSC Res 2162 (25 June 2014) UN Doc S/RES/2162 para 19(a)(i); UNSC Res 2147 (28 March 2014) UN Doc S/RES/2147 para 4(a)(i) as cited in S Sheeran and C Kent, ‘Protection of Civilians, Responsibility to Protect, and Humanitarian Intervention Conceptual and Normative Interactions’ in Willmot et al. (n 6) 45, n 138. Moreover, where it is still invoked, the term ‘imminent’ in this context has been more recently defined to encompass more than an immediate time frame: ‘The protection of civilians [POC] mandate often specifies an “imminent” threat of physical violence. A POC threat is considered imminent as soon as the mission has a reasonable belief that a potential perpetrator displays a hostile intent, capacity, historical record and opportunity to inflict physical violence. The term “imminent” does not therefore imply that violence is guaranteed to happen in the immediate or near future or is being carried out. A threat of violence against civilians is imminent from the time it is identified until such time that the mission can determine that the threat no longer exists’: United Nations Department of Peacekeeping Operations/Department of Field Support, ‘DPKO/DFS Policy on the Protection of Civilians in United Nations Peacekeeping’ 2015.07 (1 April 2015) para 47; United Nations Department of Peacekeeping Operations/Department of Field Support, ‘Protection of Civilians: Implementing Guidelines for Military Components of United Nations Peacekeeping Missions’ 2015.02 (February 2015) 25.

10 *AC (Tuvalu) [2014] NZIPT 800517; AF (Kiribati) [2013] NZIPT 800413; AF (Tuvalu) [2015] NZIPT 800859; *BG (Fiji) [2012] NZIPT 800091; Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125; Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107. Note that an asterisked New Zealand case means that it is a precedent. Australian and New Zealand authorities have considered cases on this issue at least as far back as 1995, as discussed in J McAdam, ‘The Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement’ (2015) 3 Migration Studies 131.

11 AF (Kiribati) (n 10), para 90.

12 See discussion below in Pt IV.

13 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, read in conjunction with the Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (together, Refugee Convention); UN High Commissioner for Refugees (UNHCR) EXCOM Conclusion No 103 (LVI) ‘Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection’ (2005) Preamble.

14 For an overview, see McAdam, J, ‘Human Rights and Forced Migration’ in Fiddian-Qasmiyeh, E et al. (eds), The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press 2014); McAdam, J, Complementary Protection in International Refugee Law (Oxford University Press 2007).

15 The next element of the project is to examine State practice through case law in Australia, Canada, France, Germany, New Zealand, the United Kingdom, and the United States.

16 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

17 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

18 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.

19 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS No 5 (European Convention on Human Rights, as amended).

20 Soering v United Kingdom (1989) 11 EHRR 439, paras 91, 113.

21 Ould Barar v Sweden (1999) 28 EHRR CD213.

22 Tomic v United Kingdom, App No 17837/03, Decision of 14 October 2003; El-Masri v Macedonia (2013) 57 EHRR 25.

23 Soering (n 20); Drozd and Janousek v France and Spain (1992) 14 EHRR 745; Einhorn v France, App No 71555/01, Decision of 16 October 2001; Mamatkulov v Turkey (2005) 41 EHRR 25; Al-Moayad v Germany (2007) 44 EHRR SE22; Stapleton v Ireland (2010) 51 EHRR SE4; Othman v United Kingdom (2012) 55 EHRR 1.

24 Gabarri Moreno v Spain (2004) 39 EHRR 40.

25 F v United Kingdom, App No 17341/03, Decision of 22 June 2004.

26 Z v United Kingdom, App No 27034/05, Decision of 28 February 2006.

27 Soering (n 20) para 100.

28 ibid (extradition); Cruz Varas v Sweden (1991) 14 EHRR 1; Chahal v United Kingdom (1996) 23 EHRR 413; Ahmed v Austria (1997) 24 EHRR 278 (expulsion). See Lauterpacht, E and Bethlehem, D, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Feller, E, Türk, V and Nicholson, F (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press 2003) paras 246, 249, 252.

29 Othman (n 23); El-Masri (n 22); Al Nashiri v Poland, App No 28761/11, Judgment of 24 July 2014; Husayn (Abu Zubaydah) v Poland, App No 7511/13, Judgment of 24 July 2014.

30 Z (n 26); see also R v Special Adjudicator, ex parte Ullah [2004] 2 AC 323. Multiple rights may, however, be breached: see eg El-Masri (n 22).

31 For an excellent and comprehensive overview of the scope of non-refoulement in the ECHR, see Costello, C, The Human Rights of Migrants and Refugees in European Law (Oxford University Press 2016).

32 Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47, art 267 (ex art 234 TEC).

33 The European Parliament and the Council Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted [2011] OJ L 337/9 (Qualification Directive).

34 ibid art 2(d) (which incorporates the definition of a refugee in art 1A(2) of the Refugee Convention, subject to restricting its application in this context to third-country nationals) and arts 9–10.

35 ibid art 15.

36 ibid art 2(f).

37 ibid art 15.

38 This is also the case under arts 4 and 19(2) of the European Union (EU) Charter of Fundamental Rights which guarantee protection against refoulement but not necessarily a status akin to that under the Qualification Directive: Charter of Fundamental Rights of the European Union [2000] OJ C364/01.

39 There is also an increasing interest in time in international law more generally: see for example, M Ambrus and RA Wessel (eds), Netherlands Yearbook of International Law 2014: Between Pragmatism and Predictability: Temporariness in International Law (TMC Asser Press 2015) vol 45. In refugee law, see eg J-F Durieux and J McAdam, ‘Non-Refoulement Through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies’ (2004) 16 IJRL 4; J-F Durieux, ‘Time in the Refugee Regime’ (Keynote address, Andrew & Renata Kaldor Centre for International Refugee Law Annual Conference, 18 November 2016).

40 Durieux, J-F, ‘Protection Where? – or When? First Asylum, Deflection Policies and the Significance of Time’ (2009) 21 IJRL 75, 75.

41 United Nations General Assembly (UNGA) Res 58/153, UN Doc A/RES/58/153 (22 December 2003).

42 Refugee Convention, art 1C; see also arts 1D, 1E.

43 Burson (n 1) 1–2.

44 Goodwin-Gill, GS and McAdam, J, The Refugee in International Law (3rd edn, Oxford University Press 2007) 54.

45 Hathaway and Foster refer to the ‘distant future’ (Hathaway, JC and Foster, M, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 123); Wouters refers to the ‘near future’ (K Wouters, International Legal Standards for the Protection from Refoulement (Intersentia 2009) 26). Hathaway and Foster observe that ‘the inquiry should not focus just on present risks, but also on such risks as may well eventuate’: 123. Goodwin-Gill and McAdam also note that ‘the element of well-foundedness looks more to the future, than to the past’: Goodwin-Gill and McAdam (n 44) 63; see also 54. Zimmermann and Mahler simply note that ‘the term “fear” expresses a forward-looking expectation of risk’: Zimmermann, A and Mahler, C, ‘Article 1 A, Para 2 1951 Convention’ in Zimmermann, A (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011) 341.

46 Some scholars interpret ‘fear’ as ‘apprehension’ rather than subjective fear: see for example Hathaway and Foster (n 45) 105–6 and Noll, G, ‘Evidentiary Assessment under the Refugee Convention: Risk, Pain and the Intersubjectivity of Fear’ in Noll, G (ed), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff 2005) 152. Whereas the preponderance of scholars (as well as judicial authority) takes the view that there is a subjective element to the fear requirement: see for example Goodwin Gill and McAdam (n 44) 63–4 and Zimmermann (n 45) 174. For the most comprehensive analysis of the issue, see JC Hathaway, ‘Michigan Guidelines on Well-Founded Fear’ (2005) MichJIntlL 492 and the related article, JC Hathaway and W Hicks, ‘Is There a Subjective Element in the Refugee Convention's Requirement of ‘‘Well-Founded Fear’’?’ (2005) 26 MichJIntlL 505.

47 In this context the key issue in the scholarship has been the relationship between the ‘well-founded fear’ test in the Refugee Convention and other tests adopted in international human rights law, see for example, Wouters (n 45) 25–6; 83–5. See also (n 52).

48 For a detailed discussion of these issues, see Hathaway and Foster (n 45) 161–81.

49 Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) at 440 per Stevens J.

50 Hathaway and Foster (n 45) 113.

51 ibid 114–15.

52 For example, McAdam, Complementary Protection (n 14) argues that the ‘substantial grounds’ test in the Qualification Directive is ‘an objective one’ by contrast to the Refugee Convention: see at 61–3. By contrast Cherubini disagrees that the test as embodied in the Qualification Directive ‘clearly rules out the existence of subjective elements’: Cherubini, F, Asylum Law in the European Union: From the Geneva Convention to the Law of the EU (Taylor and Francis 2014) 203.

53 Several scholars argue that the evidentiary threshold should vary depending on the severity of treatment, that is, the more severe the consequences, the lower the threshold should be. The core piece appears to be T Einarsen, ‘The European Convention on Human Rights and the Notion of an Implied Rights to de facto Asylum’ (1990) 2 IJRL 361, 371. Several commentators cite this piece as authority for that proposition: see for example Goodwin Gill and McAdam (n 44) 314; A Fabbricotti, ‘The Concept of Inhuman or Degrading Treatment in International Law and its Application in Asylum Cases’ (1998) 10 IJRL 637, 646; and D Weissbrodt and I Hortreiter, ‘The Principle of Non-Refoulement: Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-Refoulement Provisions of Other International Human Rights Treaties, (1999) 5 BHRLR 1, 14.

54 For helpful discussion of this issue, see in particular, Battjes, H, European Asylum Law and International Law (Martinus Nijhoff 2006) paras 277285; and Costello (n 31) 178–9.

55 The UNHCR has stated that ‘there is no basis for adopting a stricter approach to proving risk in cases of complementary protection than there is for refugee protection’: UNHCR, ‘Submission to the Migration Amendment (Complementary Protection) Bill 2009 Inquiry’ (30 September 2009) para 34, <http://www.aph.gov.au/DocumentStore.ashx?id=f175865d-d80b-43b6-b845-fda2049ab713>. The jurisprudence of the various international supervisory bodies supports the view that it is, at least in theory, the same standard as ‘real chance’ in the Refugee Convention. For a detailed summary of the case law, see Andrew & Renata Kaldor Centre for International Refugee Law, ‘Submission in relation to the Migration Amendment (Protection and Other Measures) Bill 2014’ (4 August 2014) paras 43–73, <http://www.kaldorcentre.unsw.edu.au/sites/default/files/migration_amendment_protection_and_other_measures_bill_2014_submission_final_0.pdf>.

56 For example in the seminal Soering decision (n 20), the United Kingdom government had argued that ‘the application of Article 3 (art. 3) in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious’: para 83. However, in its reasoning the court emphasized foreseeability not certainty as the test: see para 90.

57 The leading case with this formulation is Chahal (n 28). See also Garayev v Azerbaijan, App No 53688/08, Judgment of 10 June 2010; AGR v Netherlands, App No 13442/08, Judgment of 12 January 2016; AWQ v Netherlands, App No 25077/06, Judgment of 12 January 2016; MRA v Netherlands, App No 46856/07, Judgment of 12 January 2016. The court did not use the language of ‘ex nunc’ in these cases.

58 SHH v United Kingdom (2013) 57 EHRR 18, para 72. See also Sheekh v Netherlands (2007) 45 EHRR 50; JK v Sweden, App No 59166/12, Judgment of 23 August 2016; Chankayev v Azerbaijan, App No 56688/12, Judgment of 14 November 2013; Tershiyev v Azerbaijan, App No 10226/13, Judgment of 31 July 2014; Mawaka v Netherlands, App No 29031/04, Judgment of 1 June 2010; H v United Kingdom (2013) 57 EHRR 17; EG v United Kingdom (2012) 54 EHRR 1.

59 Sheekh (n 58) para 136.

60 JK (n 58) para 83.

61 ibid para 113.

62 Case C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General (First Chamber, 22 November 2012) para 64.

63 Art 4(3)a. See also UNHCR, ‘Guidelines on International Protection No 12: Claims for Refugee Status related to Situations of Armed Conflict and Violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the Regional Refugee Definitions’, UN Doc HCR/GIP/16/12 (2 December 2016) para 24 (Guidelines on International Protection No 12): ‘The 1951 Convention protects those who – at the time of the decision – are at risk of persecution in their country of origin, regardless of whether they have already suffered persecution.’

64 European Parliament and Council Directive 2013/32/EU of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection [2013] OJ L 180/60 art 46.

65 Qualification Directive (n 33) art 7.

66 ibid recital 26, art 7.

67 See also the CJEU interpretation of the cessation clause (Qualification Directive (n 33) art 11 and Refugee Convention art 1C referring to ‘durable change’ in Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Abdulla v Bundesrepublik Deutschland [2010] ECR I-01493.

68 In the four jurisdictions studied, we identified decisions where imminence was explicitly invoked and where the impact of time was particularly significant. Based on decisions available on the relevant databases at the time of research, we identified 27 cases in relation to UNHRC jurisprudence; 59 cases in relation to UNCAT; 132 cases in relation to the ECtHR; four relevant cases in relation to the CJEU. It may also be noted that the ECtHR has the ability to suspend expulsion or extradition, pursuant to Rule 39 of the court, to prevent an ‘imminent risk of irreparable damage’ (Mamatkulov (n 23) para 104). These determinations are not included in this study as there is no factual assessment of imminence. The ECtHR makes such determinations quickly without the full evidence (eg Mamatkulov (n 23); MSS v Belgium and Greece (2011) 53 EHRR 2) and they are not publicly available. Curiously, even though case law indicates that the test for interim measures in practice is ‘imminent risk’, the Practice Direction on Interim Measures issued by the President of the ECtHR in September 2016 did not refer to this standard, but rather to ‘real risk’: ‘The Court will only issue an interim measure against a Member State where, having reviewed all the relevant information, it considers that the applicant faces a real risk of serious, irreversible harm if the measure is not applied’; ECtHR, ‘Practice Direction – Interim Measures’ (Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 5 March 2003 and amended on 16 October 2009 and on 7 July 2011, September 2016), 1.

69 Khan v Canada, UNHRC, Comm No 1302/2004, UN Doc CCPR/C/87/D/1302/2004 (2006); Singh (Daljit) v Canada, UNHRC, Comm No 1315/2004, UN Doc CCPR/C/86/D/1315/2004 (2006); Minani v Canada, UNCAT, Comm No 331/2007, UN Doc CAT/C/43/D/331/2007 (2009); SPA v Canada, UNCAT, Comm No 282/2005, UN Doc CAT/C/37/D/282/2005 (2006); ET and NT v Switzerland and Italy, App No 79480/13, Decision of 30 May 2017; Ali v Switzerland and Italy, App No 30474/14, Decision of 4 October 2016; MA-M v Finland, App No 32275/15, Decision of 4 October 2016; FM v Denmark, App No 20159/16, Decision of 13 September 2016; NA v Denmark, App No 15636/16, Decision of 28 June 2016; MR v Finland, App No 13630/16, Decision of 24 May 2016; SMH v Netherlands, App No 5868/13, Decision of 13 January 2015; Mohammed Hassan v Netherlands and Italy, App No 40524/10, Decision of 27 August 2013; Miruts Hagos v Netherlands and Italy, App No 9053/10, Decision of 27 August 2013; JA v Netherlands, App No 21459/14, Decision of 3 November 2015; Hussein v Netherlands, App No 27725/10, Decision of 2 April 2013; Diirshi v Netherlands, App No 2314/10, Decision of 10 September 2013; ATH v Netherlands, App No 54000/11, Decision of 17 November 2015; AME v Netherlands, App No 51428/10, Decision of 13 January 2015; Balogun v United Kingdom, App No 60286/09, Judgment of 10 April 2012; Berisha and Haljiti v Former Yugoslav Republic of Macedonia, App No 18670/03, Decision of 16 June 2005; Tomic (n 22) (in relation to a potential violation of art 8 ECHR). In two further judgments, a 'real and imminent' standard was used in dissenting opinions: Tarakhel v Switzerland, App No 29217/12, Judgment of 4 November 2014, partly dissenting opinion of Judges Casadevall, Berro-Lefèvre and Jäderblom (a Dublin transfer case); N v Finland, App No 38885/02, Judgment of 26 July 2005. There, Judge Maruste expressed the view that the applicant's 'risk of possible ill-treatment' in the Democratic Republic of Congo was 'not imminent and real'.

70 In 17 of these cases, the claims were found to be manifestly ill-founded: ET and NT (n 69); Ali (n 69); MA-M (n 69); FM (n 69); NA (n 69); MR (n 69); SMH (n 69);JA (n 69); Hussein (n 69); Diirshi (n 69); ATH (n 69); AME (n 69); Mohammed Hassan (n 69); Miruts Hagos (n 69) (all involving transfer back to Italy pursuant to the Dublin Regulation); Balogun (n 69); Berisha and Haljiti (n 69); Tomic (n 22). While in Kaboulov v Ukraine, App No 41015/04, Judgment of 19 November 2009, the applicant succeeded in showing a general risk of treatment in violation of art 3, the ECtHR applied a ‘real and imminent risk’ standard in rejecting the more personal risk faced by the applicant: para 112.

71 The CJEU has so far ruled in 14 cases of interpretation of the Qualification Directive (four more cases are pending); one such case was decided under the Returns Directive instead of the Qualification Directive (Case C-562/13 Centre public d'action sociale d'Ottignies-Louvain-la-Neuve v Abdida (Grand Chamber, 18 December 2014) (Abdida). For a full list of these cases, see International Association of Refugee Law Judges (European Chapter), ‘An Introduction to the Common European Asylum System for Courts and Tribunals – A Judicial Analysis’ (European Asylum Support Office 2016) 44–6. It may also be noted that although CJEU judgments so far relate to the original Qualification Directive of 2004, these are nevertheless relevant to the interpretation of the recast Qualification Directive of 2011, particularly since the provisions relating to persecution and serious harm remained unchanged.

72 The most explicit discussion of imminence is found in the recent decision in Case C-353/16 MP v Secretary of State for the Home Department (Grand Chamber, 24 April 2018) paras 36–45.

73 NA (Sudan) v the Secretary of State for the Home Department [2016] EWCA Civ 1060, para 74.

74 This is described in various ways, including in the ICCPR, CAT and ECHR context as whether or not the person is a ‘victim’. It may be noted that this is not the case under refugee law.

75 See also ECHR art 34 and CAT art 22(1).

76 In the context of the ECHR, see Bahaddar v Netherlands (1998) 26 EHRR 278, where the ECtHR found the applicant not to be at risk of imminent removal and therefore was ‘in no imminent danger of treatment contrary to Article 3’: para 47. See also, eg, Babajanov v Turkey, App No 49867/08, Judgment of 10 May 2016, where the court held at para 81 that the applicant could not be ‘considered to be a victim within the meaning of Article 34’ of the ECHR in relation to feared deportation from Turkey; ME v Sweden, App No 71398/12, Judgment of 8 April 2015 para 35; AG v Sweden, App No 22107/08, Decision of 6 December 2011, where the applications were struck out due to the grant of permanent residence permits, thus resolving the matters. In each of these cases, there was no longer an ‘imminent risk’ of removal.

77 Aumeeruddy-Cziffra v Mauritius, UNHRC, Comm No 35/1978, UN Doc CCPR/C/OP/1 (1984) para 9.2; see also EP v Colombia, UNHRC, Comm No 318/1988, UN Doc CCPR/C/39/D/318/1988 (1990) para 8.2.

78 EW v Netherlands, UNHRC, Comm No 429/1990, UN Doc CCPR/C/47/D/429/1990 (1993) para 6.4 (emphasis added).

79 ibid.

80 Aalbersberg v Netherlands, UNHRC, Comm No 1440/2005, UN Doc CCPR/C/87/D/1440/2005 (2006) para 3.4.

81 ibid para 6.3.

82 ibid para 7. By contrast, the UNCAT found that where an expulsion order was in force against a complainant, the possibility that the complainant could potentially be granted a residence permit in the future was not sufficient to meet the State's obligation under art 3: AD v Netherlands, UNCAT, Comm No 96/1997, UN Doc CAT/C/23/D/96/1997 (1999) paras 6.2, 7.3.

83 An exception is the ECtHR, with Protocol 16 now allowing the highest courts and tribunals of a State Party to request the court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto: Human Rights (Protocol No 16), 2.X.2013, ETS 214, entered into force on 1 August 2018.

84 See H v Norway, App No 51666/13, Decision of 17 February 2015 P, para 8. See also, eg, Babajanov (n 76), para 80; Sijaku v Former Yugoslav Republic of Macedonia, App No 8200/02, Decision of 27 January 2005, where the court considered that the applicant could make a new application at a later stage because the applicant's potential return ‘would take place at an unspecified future time’ and the circumstances in the home country and ‘the elements of risk on which the applicant now relies’ may be significantly different.

85 It may nevertheless be explained by the fact that human rights instruments are essentially concerned with protection against refoulement. However, the well-founded fear test in international refugee law requires the decision-maker to make an assessment on the predicament of an individual irrespective of whether return to the country of nationality or former habitual residence is a viable or imminent option. Indeed, the very wording of art 1A(2) of the Refugee Convention requires the applicant to be ‘unable … to return’ to their country of origin. See eg Refugee Appeal No 74880 [2005] NZRSAA 294, para 70; Refugee Appeal No 73861 [2005] NZRSAA 228, para 78. See also Hathaway and Foster (n 45) 69, 70.

86 Khan (n 69) para 5.4.

87 Singh (n 69) which is actually prior to Aalbersberg but very contemporaneous: see para 6.3.

88 ECtHR, ‘Practical Guide on Admissibility Criteria’ (2018) para 252. This Guide is available for downloading at <www.echr.coe.int> (Case-law – Case-law analysis – Admissibility guide).

89 Hussein (n 69) para 78 (emphasis added); Diirshi (n 69) para 139. See also, for the same formulation, AME (n 69) para 36; JA (n 69) para 32; ATH (n 69) para 41. ET and NT (n 69) para 27; Ali (n 69) para 35; MA-M (n 69) para 28; FM (n 69) para 29; NA (n 69) para 32; MR (n 69) para 29; SMH (n 69) para 51; Mohammed Hassan (n 69) para 176; Miruts Hagos (n 69) para 38.

90 Ireland v United Kingdom [1978] 2 EHRR 25, para 161.

91 Jalloh v Germany, App No 54810/00, Judgment of 11 July 2006, para 67. Current and previous versions of the ECtHR's ‘Practical Guide on Admissibility’ do not cite an imminence standard in relation to admissibility decisions, see 2011, 2014 and 2018 versions.

92 See eg UNHCR, Guidelines on International Protection No 12 (n 63) para 21 (footnote omitted): ‘This does not require a probability calculus, based, for example, on the number of people killed, injured or displaced, but requires an analysis of both quantitative and qualitative information assessed against the applicant's circumstances.’

93 ibid para 25.

94 ibid para 19.

95 ibid para 18. See Lambert, H and Farrell, T, ‘The Changing Character of Armed Conflict and the Implications for Refugee Protection Jurisprudence’ (2010) 22 IJRL 237.

96 UNHCR, Guidelines on International Protection No 12 (n 63) para 25.

97 Costello, C, ‘The Search for the Outer Edges of Non-refoulement in Europe: Exceptionality and Flagrant Breaches’ in Burson, B and Cantor, DJ (eds), Human Rights and the Refugee Definition: Comparative Legal Practice and Theory (Brill 2016).

98 D v United Kingdom (1997) 24 EHRR 423, para 51.

99 ibid para 52.

100 N v United Kingdom (2008) 47 EHRR 39, para 50 (emphasis added). N was followed by the CJEU in Case C–542/13 M'Bodj v État belge (Grand Chamber, 18 December 2014), and in Abdida (n 71).

101 Yoh-Ekale Mwanje v Belgium, App No 10486/10, Judgment of 20 December 2011. In Bensaid v United Kingdom (2001) 33 EHRR 10, para 39: ‘The Court finds that the risk that the applicant would suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative.’ Similarly, see AS v Switzerland, App No 39350/13, Judgment of 30 June 2015, para 36. In other cases, the court has rejected or found claims inadmissible because the applicant did not meet the ‘exceptional circumstances’ threshold set out in D (n 98), namely that he or she was not critically ill at the time of the determination. See eg Ndangoya v Sweden, App No 17868/03, Decision of 22 June 2004; Kochieva v Sweden, App No 75203/12, Decision of 30 April 2013; Arcila Henao v Netherlands, App No 13669/03, Decision of 24 June 2003; Amegnigan v Netherlands, App No 25629/04, Decision of 25 November 2004; EO v Italy, App No 34724/10, Decision of 10 May 2012; Karara v Finland, App No 40900/98, Decision of the Commission, 29 May 1998. In Balogun (n 69), the court considered the applicant's risk of suicide on return to Nigeria, and, in finding the claim manifestly ill-founded, referred to the lack of ‘real and imminent risk’.

102 Paposhvili v Belgium App No 41738/10, Judgment of 13 December 2016, para 188 (emphasis added). The court has since discussed Paposhvili on one occasion in H v Switzerland, App No 67981/16, Decision of 15 May 2018, finding the application inadmissible on the merits because ‘the second applicant's HIV is not at an advanced stage and…her state of health is not such as to bar her transfer to Italy in accordance with the criteria set out in the case of Paposhvili v Belgium…’.

103 ibid para 183 (emphasis added). Compare also with Aswat v United Kingdom (2014) 58 EHRR 1, where the court found that extradition would violate art 3 despite a complete lack of certainty about which type of institution and the conditions the applicant would be in. See also, the Dissenting Opinion of Tulkens, Bonello, and Spielmann JJ in N (n 100) para 23.

104 Abdida (n 71) paras 50, 53.

105 MP (n 72) para 40.

106 ibid. para 40. However, in relation to granting subsidiary protection, in order to meet the definition in art 15(b) of the Qualification Directive, there must be an intentional deprivation of medical care, see para 51: ‘In that respect, it should be recalled that the court has held that the serious harm referred to in Article 15(b) of Directive 2004/83 cannot simply be the result of general shortcomings in the health system of the country of origin. The risk of deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection.’

107 AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64, para 37.

108 ibid para 38.

109 ibid para 44. (emphasis added).

110 AHG v Canada, UNHRC, Comm No 2091/2011, UN Doc CCPR/C/113/D/2091/2011 (2015) paras 4.5, 5.4, 6.3.

111 Njamba v Sweden, UNCAT, Comm No 322/2007, UN Doc CAT/C/44/D/322/2007 (2010) para 7.3. This claim was also found inadmissible because, consistently with UNCAT's jurisprudence, ‘the aggravation of the condition of an individual's physical or mental health by virtue of a deportation is generally insufficient, in the absence of additional factors, to amount to degrading treatment in violation of article 16’.

112 *AC (Tuvalu) (n 10); AF (Kiribati) (n 10); AF (Tuvalu) (n 10); *BG (Fiji) (n 10); Teitiota (HC, n 10); Teitiota (CA, n 10); Teitiota (SC, n 10); Burson (n 1).

113 EW (n 78); Aalbersberg (n 80).

114 AF (Kiribati) (n 10) para 90.

115 ibid; see also *AC (Tuvalu) (n 10) para 57. This was notwithstanding his recognition, in subsequent remarks given in a personal capacity, that in other areas of international law, such as self-defence, ‘imminence’ seems to envisage a very immediate time frame for harm to materialize, and certainly more immediate than the real chance standard in refugee law: Burson (n 1) 7.

116 See eg *AC (Tuvalu) (n 10) para 69; AF (Kiribati) (n 10) para 88.

117 Burson (n 1) 8–10.

118 AF (Kiribati) (n 10) para 89; *AC (Tuvalu) (n 10) paras 58, 102, 109. This could include disaster risk reduction and climate change adaptation measures, among other things.

119 Intergovernmental Panel on Climate Change (IPCC) (Core Writing Team, RK Pachauri and L Meyer (eds)), Climate Change 2014: Synthesis Report (IPCC 2014) 121: Confidence in the ‘validity of a finding [is] based on the type, amount, quality, and consistency of evidence (eg mechanistic understanding, theory, data, models, expert judgment) and on the degree of agreement.’

120 ibid 2.

121 ibid 8.

122 ibid 10.

123 ibid 13.

124 ibid 16.

125 ibid 15.

126 ibid 6, see also Figure SPM.4 at 7.

127 ibid 15.

128 This was, in effect, acknowledged in AF (Kiribati) (n 10) para 90, where the Tribunal observed that ‘the concept of an “imminent” risk to life … requires no more than sufficient evidence to establish substantial grounds for believing the appellant would be in danger. In other words, these standards should be seen as largely synonymous requiring something akin to the refugee “real chance” standard. That is to say, something which is more than above mere speculation and conjecture, but sitting below the civil balance of probability standard.’

129 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429 (McHugh J), citing Cardoza-Fonseca (n 49); Refugee Appeal No 71404/99 [1999] NZRSAA 292, paras 26–27. The UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’, UN Doc HCR/IP/4/Eng/Rev.1 (1992) para 42, states: ‘In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.’ See also A Grahl-Madsen, The Status of Refugees in International Law (Leyden 1966) vol 1, 181.

130 Goodwin-Gill and McAdam (n 44) 54.

131 ibid 64.

132 See eg M Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge University Press 2009) 192–3.

133 IPCC (n 119) 20 (emphasis omitted).

134 ibid 26 (emphasis omitted).

135 See eg ARJ v Australia, UNHRC, Comm No 692/1996, UN Doc CCPR/C/60/D/692/1996 (1997) para 6.8 (emphasis added).

136 See eg Singh (n 69) para 6.3.

137 UN Human Rights Committee (UNHRC), ‘General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) para 12 (General Comment 31).

138 ARJ (n 135) para 6.14 (emphasis added). See also Khan (n 69) para 5.4 and Singh (n 69) para 6.3 for explicit use of a necessary and foreseeable test as well as an imminence standard (discussed above); T v Australia, UNHRC, Comm No 706/1996, UN Doc CCPR/C/61/D/706/1996 (1997) paras 8.4, 8.6; Hamida v Canada, UNHRC, Comm No 1544/2007, UN Doc CCPR/C/98/DR/1544/2007/Rev.2 (2007), where the UNHRC stated the rule as being whether there is a ‘real risk of treatment contrary to article 7 as a necessary and foreseeable consequence of his expulsion …’ para 8.7.

139 In many cases, the UNHRC simply cites the General Comment 31 provision and does not embellish with a further test of foreseeability and necessity—see eg Choudhary v Canada, UNHRC, Comm No 1898/2009, UN Doc CCPR/C/109/D/1898/2009 (2013) para 9.2. See also K v Denmark, UNHRC, Comm No 2393/2014, UN Doc CCPR/C/114/D/2393/2014 (2015) para 7.3; Khakdar v Russian Federation, UNHRC, Comm No 2126/2011, UN Doc CCPR/C/112/D/2126/2011 (2014) para 11.3. In NS v Russian Federation, UNHRC, Comm No 2192/2012, UN Doc CCPR/C/113/D/2192/2012 (2015) the UNHRC adopted this test: whether he would face a ‘real, foreseeable and personal risk of being subjected to torture if returned’: para 10.4. In Osayi Omo-Amenaghawon v Denmark, UNHRC, Comm No 2288/2013, UN Doc CCPR/C/114/D/2288/2013 (2015), the UNHRC adopted the test from General Comment 31 and added that the risk must be personal and that ‘there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists’: para 7.2. This was repeated in RG v Denmark, UNHRC, Comm No 2351/2014, UN Doc CCPR/C/115/D/2351/2014 (2015) para 7.4. In Valetov v Kazakhstan, UNHRC, Comm No 2104/2011, UN Doc CCPR/C/110/D/2104/2011 (2014), the UNHRC emphasized the need for the sending State to examine what its authorities knew or should have known: para 14.2. In X v Norway, UNHRC, Comm No 2474/2014, UN Doc CCPR/C/115/D/2474/2014 (2015) the UNHRC again cited General Comment 31: para 7.3. In X v Sweden, UNHRC, Comm No 1833/2008, UN Doc CCPR/C/103/D/1833/2008 (2011) the UNHRC simply cited a ‘real risk’ when finding the claim was made out at para 9.4: see the dissent's critique of what is perceived as low bar (and hence too expansive a view about the scope of implied refoulement). In Jasin v Denmark, UNHRC, Comm No 2360/2014, UN Doc CCPR/C/114/D/2360/2014 (2015) the UNHRC emphasized that the ‘risk must be personal and that the threshold for providing substantial grounds to establish that a real risk of irreparable harm exists is high’: para 8.3. Here, the UNHRC found that the State party had failed to devote sufficient analysis to ‘the foreseeable consequences of forcibly returning her to Italy’: para 8.9.

140 Ng v Canada, UNHRC, Comm No 469/1991, UN Doc CCPR/C/49/D/469/1991 (1994) para 16.4.

141 ibid section E para 5 (Dissenting Opinion of Kurt Herndl).

142 Indeed, this point is borne out in ibid section E para 6.

143 ibid section G para 5 (Dissenting Opinion of Francisco Jos Aguilar Urbina).

144 See eg Trabelsi v Belgium (2015) 60 EHRR 21, para 130, cited with approval in Paposhvili (n 102) para 186. See also Saadi v United Kingdom (2007) 44 EHRR 50, para 142.

145 Rustamov v Russia, Application No 11209/10, Judgment of 3 July 2012 para 117 (emphasis added). The European Court has affirmed in a couple of cases that speculation is a legitimate part of their enquiry. See Saadi (n 144) and Trabelsi (n 144), (the latter of which is cited with approval in Paposhvili on this point).

146 See YBF v Switzerland, UNCAT, Comm No 467/2011, UN Doc CAT/C/50/D/467/2011 (2013); Khademi v Switzerland, UNCAT, Comm No 473/2011, UN Doc CAT/C/53/D/473/2011 (2015); CM v Switzerland, UNCAT, Comm No 355/2008, UN Doc CAT/C/44/D/355/2008 (2010); SM v Switzerland, UNCAT, Comm No 406/2009, UN Doc CAT/C/49/D/406/2009 (2013); ET v Switzerland, UNCAT, Comm No 393/2009, UN Doc CAT/C/48/D/393/2009 (2012); RD v Switzerland, UNCAT, Comm No 426/2010, UN Doc CAT/C/51/D/426/2010 (2013); KN v Switzerland, UNCAT, Comm No 481/2011, UN Doc CAT/C/52/D/481/2011 (2014); X v Switzerland, UNCAT, Comm No 470/2011, UN Doc CAT/C/53/D/470/2011 (2015); MAH v Switzerland, UNCAT, Comm No 438/2010, UN Doc CAT/C/51/D/438/2010 (2013); Ríos v Canada, UNCAT, Comm No 133/1999, UN Doc CAT/C/33/D/133/1999 (2004).

147 In AR v Netherlands, UNCAT, Comm No 203/2002, UN Doc CAT/C/31/D/203/2002 (2003) the UNCAT said: ‘in previous decisions, the Committee has determined that the risk of torture must be “foreseeable, real and personal”’: para 7.3, repeated again at para 7.6. This test is based on the case law of the ECtHR, which has long considered that risk under art 3 ECHR must be foreseeable, real and personal: Soering (n 20) paras 104, 111.

148 We did nevertheless find two cases where imminence was mentioned: Minani (n 69); SPA (n 69).

149 Wouters (n 45) referring at 460 to Mutombo v Switzerland, UNCAT, Comm No 13/1993, UN Doc CAT/C/12/D/13/1993 (1994).

150 Wouters (n 45) referring at 460 to Haydin v Sweden, UNCAT, Comm No 101/1997, UN Doc CAT/C/21/D/101/1997 (1998).

151 V03/16047 [2004] RRTA 11 (5 January 2004).

152 By way of analogy, the CJEU explained that in situations of generalized violence, ‘the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection’: Case 465/07 Elgafaji v Staatssecretaris van Justitie [2009] ECR I-00921, para 39. See also Lambert, H, ‘Causation in International Protection from Armed Conflict’ in Cantor, D and Durieux, J-F (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill Nijhoff 2014) 5778.

This article was produced under the auspices of an Australian Research Council (ARC) Discovery Grant on ‘The Concept of “Imminence” in the International Protection of Refugees’, DP160100079. We acknowledge the generous support of the ARC, and thank Mimi Oorloff, JD student, Melbourne Law School, for excellent editorial assistance.

We would like to express our enormous gratitude to the participants at our expert workshop held at UNSW in August 2018, who generously gave of their time and expertise in helping us to refine our framing and understanding of these issues. We also thank Christopher Michaelsen for suggesting we refer to the ‘notion’ rather than the ‘concept’ of imminence. We also thank the anonymous reviewers who made very valuable suggestions. Any mistakes of course remain our own.

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IMMINENCE IN REFUGEE AND HUMAN RIGHTS LAW: A MISPLACED NOTION FOR INTERNATIONAL PROTECTION

  • Adrienne Anderson (a1), Michelle Foster (a2), Hélène Lambert (a3) and Jane McAdam (a4)

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