Law JournalFeeds

In order to claim recognition as a refugee, individuals must give a ‘plausible’ account of persecution. Decision makers must then decide on the truthfulness of the account, and whether the person fits the legal definition of a refugee. Decision makers often have little corroborating evidence, and must make an assessment of credibility, largely a subjective response, involving a reliance on assumptions about human behaviour, judgements, attitudes, and how a truthful account is presented.

This article describes a study of the assumptions in judgments made by UK immigration judges. Assumptions were defined and a coding structure used to systematically extract a list of assumptions from a series of written determinations. These assumptions were then submitted to an inductive thematic analysis. The resulting themes are compared briefly to the psychological and psychiatric literature, raising the question of whether assumptions used in asylum decision making are in line with current empirical evidence about human behaviour. The article recommends cross-disciplinary research to build an evidence base in order to help inform the decision making process in this crucial area of [...]

This article analyzes the policy of the United Kingdom in the resettlement of mandate refugees from their country of refuge. In particular, it explains the roles of the institutions involved in the application process, namely UNHCR, the British Embassy in the country of refuge, the British Red Cross and the United Kingdom Border Agency. The article also covers the requirements that mandate refugees must meet to resettle to the United Kingdom. By considering the practical consequences of this policy for mandate refugees, the article criticizes the lack of basic procedural safeguards, such as the right to obtain an expedited decision, the right of appeal and the right to receive detailed reasons for refusals. In view of UNHCR’s limited financial resources and staffing, the author takes an unfavorable view of the program’s unnecessary reliance on this institution, which negatively impacts on the system’s fairness. It is argued that in order to establish a program that aims to provide effective protection to refugees, the United Kingdom should review the current program and commit sufficient resources to its implementation. It is suggested that the main responsibility for accepting and considering the resettlement applications should be given to the British Embassy, that these applications should be given priority over other entry clearance applications, and that UNHCR should have a decision making role only in limited cases and with less discretion than under the current system. This article is one of the few, if not only, legal discussions on the United Kingdom’s resettlement [...]

Canada has committed to facilitate family reunification for refugees in both domestic and international law; however, Canada’s current family reunification policies are insufficient. The imperfect implementation of family reunification in Canadian law may illustrate a deeper tension in refugee law, between cosmopolitanism and statism. Refugees are accepted in Canada based on cosmopolitan principles. Family reunification, on the other hand, is governed by Canadian immigration law, which adopts a more bordered approach to global migration. The Tibetan community in the Parkdale neighbourhood of Toronto is experiencing particular difficulties with family reunification. This community illustrates that reform of Canada’s current family reunification program may be insufficient. A more radical shift may be required, to position family unity as a fundamental human right that, as with the right to freedom from persecution, takes precedence over state [...]

Although the 1951 Convention relating to the Status of Refugees and its 1967 Protocol do not apply to Hong Kong, asylum seekers have challenged Hong Kong’s lack of an adequate refugee policy in a series of judicial review actions grounded in human rights and common law principles. This article focuses on two cases in particular in which the applicants have attempted to rely, in part, on a right to non-refoulement, derived from international and domestic law, to compel the Government to establish procedures to determine the status of refugees and other similar categories of claimants. The first, Secretary for Security v. Sakthevel Prabakar, led to the creation of a ‘torture screening’ mechanism based on article 3 of the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment. In the second, C v. Director of Immigration, the court considered whether a rule of non-refoulement has emerged in customary international law and, if so, whether it applies to Hong Kong and requires government-administered refugee status determination. Although the applicants failed at first instance,1 an analysis of the judgment with reference to Hong Kong’s human rights obligations reveals gaps in the court’s reasoning and demonstrates the potential for greater reliance on these standards as the basis for developing a more comprehensive protection framework. This examination of the Hong Kong experience may have broader comparative value, especially in the Asian region and in jurisdictions not bound by the Refugee Convention or its [...]

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 [...]

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 [...]