Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective

Case Law Summaries

Reforming the Common European Asylum System – Legislative Developments and Judicial Activism of the European Courts

Divorcing Sexual Orientation from Religion and Politics: Utilizing the Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims

In spite of the omission of sexual orientation as a ground for persecution under the 1951 Refugee Convention, there is now widespread acceptance of sexuality based claims in most western countries. UNHCR has continued to develop policy and guidance to promote a rights based approach in protecting same-sex oriented refugees. In its most recent guidelines on claims to refugee status based on sexual orientation and/or gender identity, UNHCR recognizes that the convention grounds of religion, political opinion, and membership of a particular social group may be relevant in deciding claims based on sexual orientation. However, of these convention grounds, membership of a particular social group has emerged as the most utilized ground in dealing with same-sex oriented refugees. Nonetheless, there is no uniform definition of what constitutes a particular social group, as countries such as the USA and Australia have reached different definitions. It is partly against this backdrop that this article considers the Convention grounds of religion and political opinion for assessing refugee cases based on sexual orientation, to determine whether they might be helpful and may have a crucial role to play in the assessment of such cases.

Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum

UNHCR and Preventing Indirect Refoulement in Europe

Since the 1951 Convention, there has been a proliferation of non-entrée policies adopted by European states to regulate unanticipated migration flows. The policies of returning asylum seekers to the first country of entry under the Dublin System and intercepting migrants in the high seas potentially constitute indirect refoulement, creating a gap in legal protection. This paper investigates the role of UNHCR’s supervisory mandate in addressing the need for protection from indirect refoulement. The main purpose of supervision is to promote state compliance with international standards of refugee protection. This paper shows that among the methods employed by UNHCR to execute its supervisory mandate, the most effective means of securing protection from indirect refoulement is by assisting international bodies with stronger enforcement mechanisms. This is due to the relative weakness of the UNHCR mandate in the area of standard setting and enforcement.

The Michigan Guidelines on Risk for Reasons of Political Opinion

The Discretion of States in the Dublin III System for Determining Responsibility for Examining Applications for Asylum: What Remains of the Sovereignty and Humanitarian Clauses After the Interpretations of the ECtHR and the CJEU?

In 2011, the European Court of Human Rights (ECtHR) in its judgment on the case of MSS v Belgium and Greece, and the Court of Justice of the European Union (CJEU) in its judgment on NS and ME, established an interpretation of the so-called sovereignty clause of Regulation 343/2003 (Dublin II) by which its activation became mandatory in certain cases of serious risk of human rights violations. As a result, a regulation that in principle contained a power for states became the guarantee that the system respected the protection of human rights. In its judgment on K v Bundesasylamt, the CJEU examined the humanitarian clause of the Regulation and reached the conclusion that, in cases of dependency, the principle of protection of the family unit ‘normally’ requires states to keep or gather together the members of a family. In other words, one of the sections of the article that established the humanitarian clause, and that could have appeared discretionary for states, became one of the criteria for the assignment of responsibility. In the new Regulation 604/2013 (Dublin III), the sovereignty clause and the humanitarian clause are included in an article dedicated to the ‘discretionary clauses’. This paper argues that the interpretation of the scope of discretion in the Dublin system is to a large extent dependent on the interpretations of these clauses by the ECtHR and the CJEU. To date, the judgments by these two courts lead to the conclusion that the protection of the principle of non-refoulement interpreted in the light of the prohibition of torture and inhuman or degrading treatment, and the principle of protection of the family unit, define this discretion to the extent that these clauses become the mechanisms ensuring that these rights are respected in the European system known as Dublin III for assigning responsibility for examining an asylum application.

Asylum – A Right Denied: A Critical Analysis of European Asylum Policy

Portuguese Refugee Law in the European Context: The Case of Sexuality-Based Claims

Portugal’s migration history has been extensively explored in academic literature, including in legal scholarship. Yet, very little attention has so far been directed towards Portuguese refugee law. This may be due to the relatively low number of asylum seekers that Portugal receives, but that does not justify neglecting the study of the Portuguese socio-legal framework applicable to asylum seekers and refugees. This article addresses this gap by analyzing the framework in a European context, enhancing the analysis with a case study of lesbian, gay, bisexual, transsexual, and intersex (LGBTI) asylum seekers. The analysis explores the evolution of the current legal framework, the procedures and remedies available to asylum seekers, the substantive standards applied in decision making, and the broader socio-legal resources offered to asylum seekers. Several shortcomings and possible avenues of improvement are also identified.