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Chapter 4 focuses on protection from refuge claims made in the European context. It examines cases in which refugees use human rights law to challenge a European externalisation practice or request or resist a transfer made pursuant to the European Union’s Dublin System. Such claims are made before the European Court of Human Rights or domestic adjudicative decision-making bodies under the European Convention of Human Rights. They are also made before United Nations treaty bodies using international human rights law. I argue that in initial and early European protection from refuge claims, decision-makers identified common aspects of refugeehood and used human rights to engage with the functions and nature of refuge. There was an understanding that refuge is a remedy that must address present, future and past vicissitudes of displacement but decision-makers now search for the ‘good’ or ‘peculiarly vulnerable’ refugee. This has resulted in decision-makers approaching refuge as a scarce commodity and one stripped down to the barest minimum of protections. In searching for the exceptional refugee, most decision-makers approach questions of gender, age and disability in a nominal manner.
In Chapter 7, I analyse cases in which decision-makers have to determine whether a person can seek refuge in an internally displaced persons’ (IDP) camp. This occurs in what is known as an ‘internal protection alternative’ inquiry. In some cases, asylum seekers have pleaded that if they returned to their homeland and relocated, they would have no option but to live in an IDP camp. Initially, in such cases decision-makers set a broad scope for adequate refuge and approached decisions with an ethic of international cooperation. But subsequently, there has been a transition in which decision-makers produce rudimentary notions of refuge. They give it a narrow scope – limiting it to bare survival rights – and there is a shift from understanding that refuge involves a nation-state bestowing protection to positioning refuge as something an individual can forge themselves. The understanding that refuge is an act of international solidarity has dissipated from the jurisprudence. Protection from life in an IDP camp will only be granted if the asylum seeker can establish that they are exceptionally vulnerable. A feminist analysis highlights that decision-makers’ notional approaches to the interactions between gender and vulnerability have resulted in problematic outcomes for both male and female refugees.
In Chapter 5, I examine cases in which refugees directly challenge regional containment instruments. This has occurred in North America (a safe third-country agreement between the US and Canada), Asia-Pacific (offshore processing agreements between Australia and Malaysia, Australia and Papua New Guinea and Australia and Nauru), Europe (the Dublin System and a refugee swap agreement between Europe and Turkey) and Libya (an externalisation agreement between Libya and Italy). I examine the ways decision-makers manoeuvre juridical borders in constructing ideas of refuge and determining the legality of states’ attempts to prevent refugees crossing international borders. I observe that when courts consider the significance of refugeehood and expand their juridical borders, they set high thresholds for refuge and characterise it as a duty owed by states. However, in most cases courts ignore the salience of refugee status and retract their juridical borders. This means that there is no minimum standard of refuge set and refuge morphs from an obligation to a discretion. Refugees become trapped in the resisted place of refuge, unable to continue their journey except in extraordinary circumstances. What is considered exceptional is highly gendered with the narrow frameworks developed sidelining experiences of male and also many female refugees.
In Chapter 6, I examine protection from refuge claims made by Palestinian refugees. Some Palestinian refugees leave an UNRWA area of operation (Jordon, Lebanon, Syria, the Gaza strip, East Jerusalem or the West Bank) and seek refugee protection elsewhere. In making these journeys, they confront article 1D of the Refugee Convention, which provides that Palestinian refugees are excluded from protection under the Refugee Convention unless their UN protection or assistance has ceased for any reason. When decision-makers reflect on the nature of Palestinian refugeehood and expand their juridical borders, they come close to setting a broad scope of refuge for Palestinian refugees and characterising refuge as a right, duty and act of international solidarity. However, most decision-makers determine these claims in a way that truncates the scope of refuge, positions refuge not as a right but as an act of benevolence and entrenches article 1D as a containment mechanism. This inhibits Palestinian refugees’ ability to find a place of refuge outside the UNRWA region unless their circumstances are deemed exceptional in some way. A feminist analysis of the case law indicates that the approach to exceptionality in article 1D jurisprudence creates additional barriers for female Palestinian refugees.
I start with reference to refugee journeys and how they are rarely linear but are instead ‘fragmented’ because of poor conditions in many places of ostensible refuge and states’ containment mechanisms. I highlight that there has been little consideration of the role litigation plays in refugee journeys. This is despite refugees increasingly turning to courts to seek protection, not from persecution in their home country, but from a place of ‘refuge’. While there are myriad studies of how courts interpret refugee definitions, in this first global and comparative study of protection from refuge jurisprudence, I examine how judges approach the remedy: refuge. Using feminist approaches to international law,I also consider whether these judicial approaches assist or hinder refugees’ (or particular refugees’) journeys towards a safe haven with a particular focus on gender but also intersectional factors such as youth, disability, sexuality and parenthood. I argue that when protection from refuge claims first come before decision-making bodies, judges adopt rich and robust ideas of refuge. However, most of these victories have been ephemeral. Decision-makers reverse or dilute initial successes and adopt rudimentary understandings of refuge. This trajectory transforms these judgments from refugee protection to migration management decisions.
This chapter examines forced encampment litigation in Kenya. Refugees living in urban areas resisting facing the prospect of relocation to a refugee camp, as well as refugees living in camps seeking permission to leave have initiated these cases. I examine how judges use human rights in the Kenyan Constitution and rights in the Refugee Convention as prisms to articulate the functions and nature of refuge. I show that Kenyan courts have understood refuge as a process as well as a human rights remedy that must allow refugees to live a liveable life in the present, have hope for the future and heal from past trauma. Judges arrive at these sophisticated understandings of refuge when they identify and reflect on irreducible aspects of refugeehood. However, in more recent cases, Kenyan judges instead focus on the uniqueness of the protection from refuge litigant. This results in conceptualising refuge as a limited commodity that, akin to welfare, must be given to those most in need or most deserving. Nevertheless, a feminist analysis indicates that in identifying the anomalous refugee, Kenyan courts have addressed protection concerns relating to gender, age and disability in a sensitive and nuanced manner.
In Chapter 8, I reflect on the patterns in the ways decision-makers approach protection from refuge claims. Across the globe, decision-makers have transitioned from sophisticated to impoverished understandings of refuge, from approaches that disrupt containment mechanisms to those that cement them and from decisions that facilitate to ones that impede refugee journeys. I consider the implications this has for refugee law, and the international protection regime more broadly. I discuss how my analysis of judicial approaches that give a rich meaning to the concept of refuge responds to scholars’ identifications of current dilemmas in refugee law. I also consider how the judicial dilution of the concept of refuge poses risks to the future directions of refugee law. In particular, I suggest that decision-makers’ dilution of the notion of refuge risks refugee law developing in an asymmetrical fashion: widening the categories of people entitled to international protection, but diminishing the protection to which they are entitled. Last, I highlight how the analysis in this book adds new dimensions to scholarly assessments of decision-makers’ understandings of gender and intersectionality. Overall, I argue that the trajectory of decision-makers’ approaches to protection from refuge claims has rendered refuge elusive.
This chapter draws an outline how scholars from myriad disciplines (including law, anthropology, political science, history, geography, international relations, philosophy, psychology and economics), UN institutions and refugees approach and understand the notion of refuge. I also highlight the discrepancies between these ideas and the reality. I ask the gender question by exploring what women are seeking when they search for refuge as well as the nature of refuge sought by children and refugees with disabilities. I show that the concept of refuge is a robust one. There are different approaches to theorising refuge, but there is a shared understanding that it has restorative, regenerative and palliative functions that address refugees’ past, present and future. Refuge operates as a response to the particular dilemmas of those in need of protection and is variously expressed as a remedy, right, duty, process and status. It has a broad and flexible scope that responds to the specific needs of women, children and refugees with disabilities. The threshold for adequate refuge is a high one, encompassing much more than mere survival. However, many people who seek protection find themselves in places where the conditions may be comparable to or worse than the places they fled.
The places in which refugees seek sanctuary are often as dangerous and bleak as the conditions they fled. In response, many travel within and across borders in search of safety. As part of these journeys, refugees are increasingly turning to courts to ask for protection, not from persecution in their homeland, but from a place of 'refuge'. This book is the first global and comparative study of 'protection from refuge' litigation, examining whether courts facilitate or hamper refugee journeys with a particular focus on gender. Drawing on jurisprudence from Africa, Europe, North America and Oceania, Kate Ogg shows that courts have transitioned from adopting robust ideas of refuge to rudimentary ones. This trajectory indicates that courts can play a powerful role in creating more just and equitable refugee protection policies, but have, ultimately, compounded the difficulties inherent in finding sanctuary, perpetuating global inequities in refugee responsibility and rendering refuge elusive.
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