Protection from refuge: From refugee rights to migration management. By Kate Ogg. Cambridge: Cambridge University Press, 2022. 215 pp. $110.00 hardcover

Abstract

In Protection from Refuge: From Refugee Rights to Migration Management, Ogg adeptly traces the evolution of refugee law and protection through persistent legal mobilization. She spans two decades of refugee litigation and traverses across multiple, pluralistic legal regimes, taking account of judgments of courts from the North American, European, and African continents. This ambitious project sets out to understand what the legal concept of refuge is, and how (legal) decision-makers conceptualize and decide to litigate such a notion. In this way, Ogg shows how decision-makers engage with the concept of refuge, conceptualize disparate protection needs or vulnerabilities, and dispense or withhold “the remedy: refuge” (p. 194), finding that, over time, refuge has become increasingly held out of reach, but through sustained legal mobilization, also has the potential to become more broadly attainable.

Ogg structures the book's findings across eight chapters, each of which has its own focus and well-structured subsections, drawing on a wide database of case law to dissect the understandings, rationale and justifications upheld by decision-makers. In Chapter 1, Ogg sets the stage, outlining the academic, legal and societal context, methods used, theoretical toolkit, and scope. Notably, she includes the perspectives of those seeking refuge, drawing on several memoirs published. In doing so, she both gives a voice to refugees, while avoiding the frequent re-traumatization and/or exploitation that refugees can experience in the research process. The rich experiential contributions are presented alongside academic and legal conceptions of refuge. In Chapter 2, Ogg outlines the debates around refuge as concept and place, engaging with the history of “refuge” in a societal and legal sense, as well as the function of refuge, both in its idealized conception and real-world application. Refuge, concludes Ogg, can be understood as having “restorative, regenerative and palliative functions that address refugees' past, present and future” (p. 54) but are not always present in practice. In this way, the book appeals to a broad audience, from students and newcomers to dialogues around refugee law, to more experienced legal scholars and practitioners.

Drawing on a feminist framework, Ogg addresses the crucial role of an intersectional and gender-sensitive approach to litigating refugee law, which resonates with the life and work of legendary scholar-practitioners such as the late Rhonda Copelon (Zarkov et al., 2011). Illustrative of this approach, in Chapter 3 Ogg draws attention to the gendered and intersectional aspects of decision-makers' application of categorical, experiential, or blended categorical and experiential reasoning, while simultaneously examining the particular vulnerabilities of women. Accordingly, she shows how the parent–child relationship plays out in the Kenyan courtroom with regards to notions of refugeehood and status-associated rights at the national level, honing in on “model refugee behavior” (pp. 72–75). This idea is further developed in Chapter 4 where she explores legal mobilization efforts in Europe to conceptualize the “exceptional refugee,” or rather ‘exceptionally vulnerable refugee’, in order to secure protection that would otherwise fall outside conventional definitions of refugees (p. 106). Alongside the state-centric exceptionality that legal refuge often entails, in Chapter 4 Ogg addresses the trend of externalization and longstanding question of responsibility, a conversation which in Chapter 5 transforms into an examination of the willful expansion or contraction of borders in a territorial and judicial sense, regional containment practices and bilateral agreements.

All the while, Ogg returns to the “gender question”, paying specific attention to the ways in which privilege, marginality or vulnerability might be emphasized or overlooked within legal hearings, noting the intersectional positionality of those seeking (protection from) refuge. Within Chapter 6, she analyses the specific extent to which Palestinian refugees have been structurally excluded from the mainstream (UNHCR) refugee protection regime, while effectively asserting their rights through other legal protection regimes, albeit by resembling “war-inspired, Western notions of a refugee” (p. 172). The value brought by a feminist and intersectional lens also becomes tangible in Chapter 7, where Ogg locates the ways in which “decision-makers refer to personal circumstances in a way that positions the prospective IDP as a person with the talent or fortitude to endure the most hostile conditions” (p. 188). Covering a broad range of case law and relying heavily on scholarship by Patricia Tuitt, James Hathaway and Michelle Foster, she illustrates how “decision-makers characterise putative refugees, of all genders, as young, healthy and strong” (p. 189) in order to leave them outside the scope of refugee protection.

Expanding beyond feminist theory, Ogg's work engages with a diverse range of scholarship relevant to the state of the art in the field of migration and legal studies, including sociolegal and critical legal studies, and in particular Third World Approaches to International Law (TWAIL). While not explicitly noted, an additional theoretical framework that Ogg's work seems compatible with is the New Mobilities paradigm. It could have been interesting to reflect on what Sheller (2018) refers to as the “mobile ontology” working towards achieving “mobility justice” at work, particularly in the closing chapter remarks on elusive refuge. In particular, the metaphor of Tantalus that Ogg evokes could have been animated even further to explore how refuge is a concept and experience that both eludes those on the move, while also being found in motion itself. Of course, this is just an additional reflection, and certainly not an oversight. Indeed, Ogg incorporate multiple, relevant historic and contemporary academic, legal, and policy debates and critical insights on the contested nature of mobility within the book.

Overall, Ogg's book makes an important intellectual contribution to understanding the ongoing issue of quality in the provision and enjoyment of refuge. Her arguments suggest important implications for legal learning by practitioners and policy-makers alike, including the future strategic direction that legal mobilization of refugeehood and refugee status determination could take, as we find ourselves in an era of increasing nativism. Furthermore, Ogg contributes to the field of human security within the field of migration governance (Bilgic et al., 2020; Estrada-Tanck, 2013). The concerns she raises also match those of Behrman (2019) and Chimni (2009), confirming how the interests of states persistently triumph over the individual interests of those on the move, including refugees. Ogg's book furthermore complements the work of Estrada-Tanck who likewise explores the vulnerability and obligation to protect, in the case of undocumented migrants finding that “human security… may have the potential to act as a catalyst for the realization of human rights in the contemporary world” (Estrada-Tanck, 2013, p. 167).

In short, this book makes a deeply-thoughtful, wide-ranging, and highly readable contribution to both the scholarly discussion and practice of refugee and migration law, towards achieving a robust, restorative, and crucial enjoyment of protection, including though by no means limited to the state-centric concept of refuge.