Law JournalFeeds

This article focuses on a key aspect of the EC Qualification Directive, namely, the grounds of eligibility for subsidiary protection. These grounds rest on a test for the risk of ‘serious harm’ were the applicant to be returned to his or her country of origin. If a genuine risk of harm is found, then the applicant would qualify for protection. Article 15 of the Directive defines ‘serious harm’ in terms of (a) the death penalty, (b) torture or degrading treatment, and (c) ‘serious and individual threat’ to a person arising from a situation of armed conflict. This article examines how English and French judicial authorities have applied the third paragraph (that is, Article 15(c) of the Qualification Directive) in recent asylum cases. In such cases, English and French judicial authorities have had to assess (1) the severity of the armed conflict and (2) the individual risk to asylum seekers. Such assessments must be informed by an understanding of the changing character of armed conflict, which has increased the threat to civilians, and by the human security paradigm, which offers a new way of conceptualising the threats to individuals in and from [...]

Since the 1980s, an increasing number of people have crossed international borders outside of formal, regularised migration channels, whether by land, air or sea. Policy debates on these kinds of movements have generally focused on security and control, to the neglect of a focus on rights. In a range of situations, though, irregular migrants, who fall outside of the protection offered by international refugee law and UNHCR, may have protection needs and, in some cases, an entitlement to protection under international human rights law. Such protection needs may result from conditions in the country of origin or as a result of circumstances in the host or transit countries. However, this article argues that, despite the existence of international human rights norms that should, in theory, protect such people, there remains a fundamental normative and institutional gap in the international system. Rather than requiring new hard law treaties to fill the gap, the article argues that a ‘soft law’ framework should be developed to ensure the protection of vulnerable irregular migrants, based on two core elements: firstly, the consolidation and application of existing international human rights norms into sets of guiding principles for different groups; secondly, improved mechanisms for inter-agency collaboration to ensure implementation of these norms and principles. The article suggests that learning from the precedent of developing the Guiding Principles on Internal Displacement, and its corresponding institutional framework, could be particularly instructive in this [...]

Egregious human rights violations have compelled some lesbian, gay, bisexual, and transgender people to seek refuge in countries with better human rights protection. Whilst this movement of refugees essentially began in the early 1990s, it was only in 2008 that the United Nations High Commissioner for Refugees (UNHCR) directly addressed the issue by releasing the ‘UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity’. The most significant effect of the Guidance Note is that, with its release, UNHCR has recognized that sexual minorities have encountered a specific set of problems in having the refugee definition applied to their claims. This article argues that, while the Guidance Note provides a first and necessary interpretive road map for decision makers responsible for determining such claims, it should not be viewed as a full and complete analysis of refugee claims based on sexual orientation and gender [...]

Accountability is an important principle for the United Nations High Commissioner for Refugees (UNHCR) because of the Office’s particular mandate to lead and coordinate international action to protect, assist, and find solutions for refugees and other populations of concern. The dependency by populations of concern on humanitarian action and international protection creates a situation of power that requires a corresponding system of checks and balances. This needs to be balanced with the obligation of organizations like UNHCR to account for the use of financial, political, and material means that have been put at their disposal by states. Bearing in mind its various dimensions, accountability is defined by UNHCR as a commitment to deliver results for populations of concern within a framework of respect, transparency, agreed feasibility, trust, delegated authority, and available resources. Correspondingly, UNHCR’s aim is to build a modern system of accountability that is sufficiently robust and comprehensive to respond to the different accountability requirements expected of today’s international multilateral [...]