Historically speaking, crisis (political, economic and social) at the national, regional and international levels has had a negative impact on Palestinian refugees, not only in terms of political enforcement but also in terms of their legal recognition. Accordingly, there are no grounds to believe things will be different with the current global financial crisis. It may even be worse, given the natural increase in the number of Palestinian refugees in Arab countries and, accordingly, in their needs.

The reasons behind this difficult situation will be discussed in detail, including what is commonly referred to as the ‘protection gap’ for Palestinian refugees in host Arab states, on the international and regional level; the lack of clear legal texts providing and protecting basic rights; and the inclusion of discriminatory legal texts in the constitutions of Arab states. These matters may partly explain why the status of rights for Palestinian refugees in host Arab states is more fragile than for other categories of persons.

This article will also argue that political enforcement, effectuated by concerned countries or by international organizations, without legal recognition gives such actions the status of charitable acts, rather than the fulfillment of legal obligations. It is only in the case of legal obligations that rights become justiciable and states, as much as international organizations, become accountable. The nature of assistance provided to Palestinian refugees by concerned states proves that it is far from being considered as their legal obligation. As a consequence, such assistance is dependent on the resources and political willingness of donor communities for voluntary contributions. Accordingly, the negative impact of the financial crisis will be felt by Palestinian refugees, and donor communities are likely to offer humanitarian aid rather than development.

Finally, the article argues that the deterioration in the global economic context is no justification for states – whatever their level of income – to compromise on their fundamental human rights obligations. In such times it is even more important that states guarantee minimum essential levels of human rights; take deliberate measures targeted at the most vulnerable; avoid measures that are retrogressive or discriminatory; and orient public policy towards the progressive realization of the rights of the whole population through the equitable distribution of available resources.

This article describes the findings of a review of 324 negative status determination decisions from South Africa’s refugee reception offices. The review uncovered serious flaws in the status determination process. Decisions were characterized by errors of law, an absence of reasons, a lack of individualized decision making, and a general failure to ‘apply the mind’ or to use sound reasoning. Unthinking and non-contextualized cutting and pasting, both from other decisions and from internet sources, was also rampant, and many claimants received identical decisions regardless of the details of their claims. The review demonstrates that South Africa’s refugee system is failing to fulfill its core function – identifying those in need of protection as refugees. The current system, influenced by larger immigration policy, is giving rise to grave human rights violations as the status determination process fails to uphold the non-refoulement principle.

After introducing the research perspective of this article, background information concerning migration movements in the Mediterranean Sea between Libya, Italy and Malta in recent years is provided. Due to European regulations, which are considered unfavourable for the island, and its population density, Malta feels under pressure from migrants arriving by boat across the Mediterranean. Different concepts regarding a ‘place of safety’ to disembark rescued boat migrants are debated. The ambiguities in the responsibilities cause problems for the captains who rescue migrants in distress at sea. These ambiguities may in turn lead to a weakening of the SAR regime. Following discussion of the legal and political quarrels on the place of safety, the SAR operations at sea of the Armed Forces of Malta is analysed. The findings show that it is not merely a case of enforcing legal norms created by international law. The process is much more complex: legal gaps are filled by regional actors, through informal or even illegal practices, asserting their own claims at their convenience. Thus, transnationalization processes of law, such as the international SAR regime, are a fragmented and ambiguous set of regulations, creating space for negotiation and manoeuvre.2

The first question was on the meaning and scope of article 11.1(e) QD. The Court held that the ‘change of circumstances’ mentioned in article 11.2 QD must be interpreted by reference to article 7.2 on the definition and content of protection. It insisted on the scope and nature of the verification and assessment of facts and of circumstances by domestic authorities. The significant and non-temporary nature of such a change implies that there are no well-founded fears of acts of persecution amounting to some serious violation of basic human rights within the meaning of article 9.1 QD on acts of persecution. Hence a link between the cessation due to a change of circumstances and the definitions of protection and of persecution by the QD.

On the second question, concerning actors of protection (article 7.1(b) QD), the Court held that they may comprise international organisations controlling the state or a substantial part of its territory, including by means of a multinational force in that territory.

The third question related to the standard of proof. The Court held that during cessation proceedings a refugee does not normally have the same opportunities to assess the risk to which he would be exposed in his country of origin as does an applicant who has recently left it. The standard, however, does not vary. On the relaxation of the burden of proof under article 4.4 QD, the Court held that this provision may apply when there are earlier acts or threats of persecution connected with the reasons for persecution examined.

It belongs now to domestic authorities and courts to apply this well-reasoned decision.

In the case of refusals based on ‘state protection’, there has been a movement away from the traditional role assigned to the concept by the UNHCR and the jurists as relating to the second ‘state-source’ prong in the two-pronged definition of ‘persecution’. The result has been the emergence of a ‘lack of state protection’ as a stand-alone criterion for refugee status and concomitant developments, such as a difficult-to- rebut presumption of state ability to protect; the use of a ‘state protection’ analysis even where state agents are the direct perpetrators of the harm; and the lack of a standard for measuring the adequacy of state protection, etc. In order to remedy this situation, the analysis must be refocused to reflect traditional notions around the role of the concept of ‘state protection’ within the refugee definition itself, to eliminate any presumption of state ability to protect, to clearly identify what constitutes a state agent and to develop a comprehensive standard for assessing the adequacy of domestic protective mechanisms.

With regard to the exclusion clause in Article 1F(a), an examination of Canadian jurisprudence reveals a gradual widening of the clause’s scope to the point where there is virtually no mens rea or even actus reus requirement and the notion of ‘guilt by association’ has become the norm. This situation is essentially the result of confusion between the concept of ‘personal and knowing participation in international crimes’, on the one hand, and the concept of ‘personal and knowing participation in a group whose members commit international crimes’, on the other. Fortunately, revisiting criteria developed in some early appellate-level judgments and making use of recent guidelines from the UNHCR on the subject are just some ways in which Canadian decision makers can point themselves in the right direction.

This is an important ruling for the interpretation and implementation of article 15(c) by domestic courts. The Court affirmed the autonomy of EU law and held that EU provisions must be given an independent interpretation. It held that subsidiary protection and, in particular, article 15(c) should be given their full effect. It also held that ‘indiscriminate violence’ may extend to people irrespective of their personal circumstances. It underlined that collective factors play a significant role in the application of article 15(c). As to the burden of proof, the Court affirmed that the existence of a serious and individual threat to the life and person of an applicant to subsidiary protection is not subject to the condition that he adduces evidence that he is specifically targeted by reason of factors particular to his personal circumstances. Such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterizing the armed conflict reaches such a high level that a civilian returning to his country would face a real risk of subjection to the threat mentioned by article 15(c).

The article also considers the post-Elgafaji case law of some Member States, such as Bulgaria, the Czech Republic, France, Germany and the UK.

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 law.