International Journal of Refugee Law最新文献

{"title":"Trafficked Adult Males as \u2028(Un)Gendered Protection Seekers: Between Presumption of Invulnerability and Exclusion from Membership of a Particular Social Group","authors":"Noemi Magugliani","doi":"10.1093/ijrl/eeac030","DOIUrl":"https://doi.org/10.1093/ijrl/eeac030","url":null,"abstract":"\u0000 The United Nations High Commissioner for Refugees’ Guidelines on International Protection No 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked recognize that, although not all trafficked persons fall within the scope of the 1951 Convention relating to the Status of Refugees, some could satisfy all elements of the refugee definition. Such a possibility is not least implicit in the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, as well as in the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. In order to obtain asylum, trafficked persons and their legal representatives tend to rely on the trafficked person being recognized as a member of a particular social group (PSG), and on establishing a well-founded fear of persecution on such a ground. While women trafficked for sexual exploitation have been recognized as members of a PSG in several jurisdictions, although not always in a consistent manner, the recognition of trafficked men as members of a PSG has proven to be more challenging. It is argued that the difficulties faced by adult men are attributable to the gender stereotyping operationalized by asylum decision-making bodies, which have consistently failed to recognize the gender dimension of trafficking with respect to men and boys, focusing almost entirely on women and girls as gendered subjects. In addition, the difficulties are also attributable to the nature of the exploitation to which most trafficked men are subjected, as forced labour and forced criminality are considered ‘lesser’ harms than sexual exploitation, and because violations of socio-economic rights as a ground for asylum are not yet fully recognized. This contribution explores the theoretical underpinnings of these two elements and their impact on the assessment of asylum claims brought by trafficked adult men, using the United Kingdom as a case study.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43832890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Utterly Unbelievable: The Discourse of ‘Fake’ SOGI Asylum Claims as a Form of Epistemic Injustice","authors":"N. Ferreira","doi":"10.1093/ijrl/eeac041","DOIUrl":"https://doi.org/10.1093/ijrl/eeac041","url":null,"abstract":"\u0000 Media and political debates on refugees and migration are dominated by a discourse of  ‘fake’ and ‘bogus’ asylum claims. This article explores how this discourse affects in acute ways those people claiming asylum on grounds of sexual orientation or gender identity (SOGI). In particular, the article shows how such a discourse of ‘fakeness’ goes far beyond the well-documented and often inadequate credibility assessments carried out by asylum authorities. By framing the analysis within the context of the scholarship on epistemic injustice, and by drawing on a large body of primary and secondary data, this article reveals how the discourse of ‘fake’ SOGI claims permeates the conduct not only of asylum adjudicators, but also of all other actors in the asylum system, including non-governmental organizations, support groups, legal representatives, and even asylum claimants and refugees themselves. Following from this theoretically informed exploration of primary data, the article concludes with the impossibility of determining the ‘truth’ in SOGI asylum cases, while also offering some guidance on means that can be employed to alleviate the epistemic injustice produced by the asylum system against SOGI asylum claimants and refugees.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49290361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Can Artificial Intelligence Do for Refugee Status Determination? A Proposal for Removing Subjective Fear","authors":"Niamh Kinchin, D. Mougouei","doi":"10.1093/ijrl/eeac040","DOIUrl":"https://doi.org/10.1093/ijrl/eeac040","url":null,"abstract":"\u0000 The drive for innovation, efficiency, and cost-effectiveness has seen governments increasingly turn to artificial intelligence (AI) to enhance their operations. The significant growth in the use of AI mechanisms in the areas of migration and border control makes the potential for its application to the process of refugee status determination (RSD), which is burdened by delay and heavy caseloads, a very real possibility. AI may have a role to play in supporting decision makers to assess the credibility of asylum seekers, as long as it is understood as a component of the humanitarian context. This article argues that AI will only benefit refugees if it does not replicate the problems of the current system. Credibility assessments, a central element of RSD, are flawed because the bipartite standard of a ‘well-founded fear of being persecuted’ involves consideration of a claimant’s subjective fearfulness and the objective validation of that fear. Subjective fear imposes an additional burden on the refugee, and the ‘objective’ language of credibility indicators does not prevent the challenges decision makers face in assessing the credibility of other humans when external, but largely unseen, factors such as memory, trauma, and bias, are present.\u0000 Viewing the use of AI in RSD as part of the digital transformation of the refugee regime forces us to consider how it may affect decision-making efficiencies, as well as its impact(s) on refugees. Assessments of harm and benefit cannot be disentangled from the challenges AI is being tasked to address. Through an analysis of algorithmic decision making, predictive analysis, biometrics, automated credibility assessments, and digital forensics, this article reveals the risks and opportunities involved in the application of AI in RSD. On the one hand, AI’s potential to produce greater standardization, to mine and parse large amounts of data, and to address bias, holds significant possibility for increased consistency, improved fact-finding, and corroboration. On the other hand, machines may end up replicating and manifesting the unconscious biases and assumptions of their human developers, and AI has a limited ability to read emotions and process impacts on memory. The prospective nature of a well-founded fear is counter-intuitive if algorithms learn based on training data that is historical, and an increased ability to corroborate facts may shift the burden of proof to the asylum seeker. Breaches of data protection regulations and human rights loom large. The potential application of AI to RSD reveals flaws in refugee credibility assessments that stem from the need to assess subjective fear. If the use of AI in RSD is to become an effective and ethical form of humanitarian tech, the ‘well-founded fear of being persecuted’ standard should be based on objective risk only.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41383005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"It’s Not What You Know, It’s How You Use It: The Application of Country of Origin Information in Judicial Refugee Status Determination Decisions – A Case Study of Germany","authors":"Valentin Feneberg, Nick Gill, Nicole Hoellerer, Laura Scheinert","doi":"10.1093/ijrl/eeac036","DOIUrl":"https://doi.org/10.1093/ijrl/eeac036","url":null,"abstract":"\u0000 Existing research has emphasized the different forms of expert knowledge available to refugee status determination (RSD) decision makers, as well as the differing conditions under which it is produced. However, little work has been done to address how decision makers interpret, represent, and use such evidence in their written decisions. This study investigates how country of origin information (COI) is used in judicial RSD decisions, taking decisions of Germany’s Higher Administrative Courts on Syrian draft evaders as a case study. The analysis shows that the courts draw different conclusions from the same evidence, utilizing interpretation, framing, and citation styles to amplify or dampen the persuasive force of COI in their reasoning. As such, legal reasoning dominates evidence, meaning that evidence is discursively highly malleable, frequently incidental to legal reasoning, and does not produce legal consensus. These findings raise concerns that decision makers use COI selectively to justify the positions they have adopted, rather than allowing their conclusions to be directed by COI. The article concludes by reflecting on what, if anything, should be done about these seemingly opaque and unaccountable textual and discursive forms of discretionary power.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47903050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"UNHCR Guidelines on International Legal Standards relating to Decent Work for Refugees","authors":"","doi":"10.1093/ijrl/eeac047","DOIUrl":"https://doi.org/10.1093/ijrl/eeac047","url":null,"abstract":"\u0000 UNHCR issues these Guidelines pursuant to its mandate, as contained in, inter alia, the Statute of the Office of the United Nations High Commissioner for Refugees, paragraph 8(a), in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol.\u0000 These Guidelines set out legal standards relevant for refugees to access decent work. They are intended to provide guidance to governments in developing and implementing legislation, policies and programmes regarding asylum and/or labour; and to decision-makers, including administrative and judicial bodies, in making decisions affecting refugees’ opportunities to access decent work. They also aim to assist other international and national entities, such as employers’ and workers’ organizations, trade unions, civil society and private sector organizations, and enterprises; and national human rights institutions; as well as UNHCR and other UN entities dealing with decent work for refugees.\u0000 These Guidelines have been prepared in consultation with the International Labour Organization (ILO).\u0000 The Guidelines are available online at: <https://www.refworld.org/docid/60e5cfd74.html>.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41465165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Moving beyond Refugee Law: Putting Principles on Climate Mobility into Practice","authors":"J. McAdam","doi":"10.1093/ijrl/eeac039","DOIUrl":"https://doi.org/10.1093/ijrl/eeac039","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42338506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conclusion on International Protection and Durable Solutions in the Context of a Public Health Emergency","authors":"","doi":"10.1093/ijrl/eeac045","DOIUrl":"https://doi.org/10.1093/ijrl/eeac045","url":null,"abstract":"","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44105580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reassessing the Relationship between Equality and Vulnerability in relation to Refugees and Asylum Seekers in the ECtHR: The MSS Case 10 Years On","authors":"Ekaterina Yahyaoui Krivenko","doi":"10.1093/ijrl/eeac027","DOIUrl":"https://doi.org/10.1093/ijrl/eeac027","url":null,"abstract":"\u0000 This article reassesses the impact of the concept of vulnerability as it emerges from the MSS v Belgium and Greece case of the European Court of Human Rights, and subsequent developments relating to the rights of refugees and asylum seekers. This examination is performed in light of the human rights principle of equality. The choice of the principle of equality is justified by frequent claims that vulnerability allows more substantive equality outcomes. Examining the concrete functions and consequences of the recourse to vulnerability in relation to refugees and asylum seekers in post-MSS judgments, the article argues that, in the European setting at least, vulnerability produces a set of negative consequences. More specifically, the article demonstrates that the deployment of the language of vulnerability results in the positioning of refugees and asylum seekers as passive recipients of benevolence rather than as active rights claimants, the introduction of additional layers of subjectively constructed stratification, and the erasure of the specificity of refugees’ and asylum seekers’ experience. It is contended that these negative consequences of deploying the concept of vulnerability can be mitigated if recourse to vulnerability is accompanied by a highly skilled technical discussion of the principles of substantive equality as they are known in international human rights law, including such aspects of substantive equality as structural discrimination and intersectionality.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43284359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Addressing Heteronormativity: The Not-So-Lost Requirement of Discretion in (Austrian) Asylum Law","authors":"Petra Sussner","doi":"10.1093/ijrl/eeac018","DOIUrl":"https://doi.org/10.1093/ijrl/eeac018","url":null,"abstract":"\u0000 In refugee matters concerning sexual orientation, ‘discretion’ reasoning is as commonplace as it is unlawful. In its 2013 ruling in X, Y, and Z, the Court of Justice of the European Union (CJEU) declared that it was unreasonable to expect that asylum seekers should conceal their sexual orientation by being ‘discreet’ in order to avoid persecution, and that such a requirement in domestic refugee status determination procedures would be incompatible with European Union (EU) law. However, this did not put an end to the matter. Discretion reasoning still forms part of the process to determine refugee status in many EU countries. This article examines the persistence of discretion reasoning, using Austria as an example. It argues that, whilst the CJEU definitively banned such reasoning, the court failed to give any indication as to how decision makers should proceed from this point. X, Y, and Z has thus created a legal vacuum, and there is a risk that normative sociocultural concepts like heteronormativity will be applied in such cases. Indeed, despite the CJEU ruling, it is still common in many societies to expect that LGBTIQ people be discreet. As such, decision makers may find themselves imposing a discretion requirement, even if unconsciously. The main aim of the article is to assess the resulting persistence of discretion reasoning through the lens of heteronormativity, and to provide practical suggestions for assessing refugee status in a way that ensures discretion is no longer required.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42132265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Building Walls at Sea: An Assessment of the Legality of the Greek Floating Barrier","authors":"D. F. Georgoula","doi":"10.1093/ijrl/eeac021","DOIUrl":"https://doi.org/10.1093/ijrl/eeac021","url":null,"abstract":"\u0000 In January 2020, against the backdrop of the Mediterranean refugee crisis, Greece announced its intention to install a floating barrier in the maritime passage between Turkey and Lesvos as a measure to deter the flow of asylum seekers arriving by sea. This article analyses the implications and assesses the legality of installing a floating barrier in light of the law of the sea, human rights law, and refugee law.","PeriodicalId":45807,"journal":{"name":"International Journal of Refugee Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2022-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49218580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}