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Begin New Search Topic Asylum Seekers Political Geography Global Focus

1. Nationality and the Right to Enter: Assessing the Impact of Refusal of Entry for the Purpose of Statelessness Determination

Author:
Cecilia Manzotti
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
This article considers the legal situation of migrants, including rejected asylum seekers, who are unable to enter what was, until then, regarded as their country of nationality. This is because that country, without explicitly disputing their nationality, either prohibits their entry or de facto prevents them from entering its territory by failing to issue travel documents or respond to requests for consular assistance for organising return. By examining the conceptualisation of nationality in international law on the one hand, and the international legal definition of a stateless person on the other hand, the article argues that the right to enter the territory of one’s state is so essential to the concept of nationality that refusal of entry and denial of consular assistance for arranging return should be regarded as evidence that the state does not consider a person as its national. Based on this argument, the article further assesses the suitability of the United Nations High Commissioner for Refugees’ guidance on statelessness determination in cases of direct or indirect denial of entry. Ultimately, this contribution aims to clarify the scope of the international legal definition of a stateless person by strongly grounding its interpretation in the conceptualisation of nationality in international law.
Topic:
Nationality, Migrants, Right of Entry, Refusal of Entry, Statelessness, and Asylum Seekers
Political Geography:
Global Focus

2. Asylum Capacity Development: Building New and Strengthening Existing Systems

Author:
Brian Barbour
Publication Date:
09-2023
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
Refugees are guaranteed a set of rights under international law, but whether a refugee can enjoy those rights depends on the asylum system that they encounter in the country where they seek refuge. An ‘asylum system’ can be understood as the legal, institutional, and social arrangements in place to meet the needs of refugees. Asylum capacity development (ACD) is the emerging area of policy and practice concerned with strengthening asylum systems. The concept of ACD is still being developed, but there is a tendency to equate ACD with building State capacity to conduct refugee status determination (RSD); that is, the institutional processes in place to decide asylum claims. The success of ACD is sometimes measured by the passage of legislation or regulations, the establishment of a new RSD unit, or ‘handover’ of RSD functions from the Office of the UN High Commissioner for Refugees (UNHCR) to the State. ACD is often centred on building government capacity, without engaging civil society actors. A focus on RSD alone will not equip States to meet the diverse protection needs of refugees in practice. In the worst-case scenario, asylum systems are established that do not meet relevant needs or resolve asylum cases, resulting in frustrations for both people seeking asylum and governments. When non-governmental stakeholders are excluded, key capacities may be missing and there is no shared ownership of the asylum system that is established. Clarifying the purpose and scope of ACD is important to ensuring that initiatives to strengthen asylum systems are effective. This Policy Brief seeks to contribute to both the conceptual and operational development of ACD, by setting out an approach to strengthening asylum systems that is grounded in the protection needs of refugees and reflects a whole-of-society approach. ACD can be conceptualised as the process of developing institutional, national, and local capacity so that States and UNHCR, in collaboration with individuals, organisations, and society as a whole, can each do their part to meet the protection needs of refugees and resolve protection claims effectively, efficiently, fairly and sustainably. This Policy Brief provides practical guidance by setting out a framework that can be used to evaluate existing or proposed asylum systems. While there is a remarkable diversity among asylum systems around the globe, a comparative analysis of State practice reveals that effective asylum systems share a number of common characteristics. This Policy Brief identifies eleven characteristics: accessibility; specialisation; expertise; independence and impartiality; transparency; integrity; accountability; efficiency; adaptability; and collaboration. This Policy Brief provides a set of indicators that can measure progress towards achievement of these characteristics or standards. This Policy Brief promotes a needs-based approach that seeks to develop capacities or scale them up, in order to meet the identified needs of refugees. It also emphasises the importance of a wholeof-society approach that engages all stakeholders, governmental and non-governmental, with the capacity to contribute. A well-coordinated platform for cooperation and coordination among all relevant stakeholders should be a target of ACD. Ultimately, the success of ACD efforts should be assessed with reference to whether there are improved protection outcomes for refugees, and whether case processing capacity is strengthened such that asylum claims can be resolved effectively, efficiently, fairly, and sustainably.
Topic:
International Law, Refugees, Capacity, Protection, and Asylum Seekers
Political Geography:
Global Focus

3. Comparative perspectives on airport asylum procedures before and during the COVID-19 pandemic

Author:
Regina Jefferies
Publication Date:
12-2021
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
The COVID-19 pandemic has prompted unprecedented border restrictions and closures around the world, slowing international air travel to a fraction of its pre-pandemic levels. Yet, persecution, conflict, disasters and violence – at times exacerbated by COVID-19 –continue to displace millions of people, forcing many to seek safety in other countries. Problematically, many States’ pandemic-related border restrictions have failed to provide exceptions for refugees and people seeking asylum.1 This has not only left people at risk of serious harm but has potentially resulted in numerous instances of refoulement. Even prior to the pandemic, overlapping international legal regimes governing air travel, passenger processing and international protection created particular difficulties for refugees and people seeking asylum, who were often unable to satisfy visa or other documentary requirements.2 Arguably, these have become even more entrenched during the pandemic, especially as some States have used COVID-19 as a cover for justifying blanket restrictions. Furthermore, in practical terms, limits on ‘non-essential’ travel have drastically reduced the number of flights available and severely curtailed access to air travel. This Policy Brief examines how different countries have dealt with international protection needs during the pandemic and provides guidance moving forward. It does so by examining the pre-pandemic use of airport asylum procedures in seven different countries (Australia, Canada, Costa Rica, Germany, Uganda and the United States), as well as those countries’ subsequent use of border restrictions and/or closures in response to COVID-19. By reviewing a range of different approaches, it highlights persistent issues of transparency, procedural fairness and accountability that pre-date – but have been exacerbated by – the pandemic. With respect to measures suspending or limiting air travel, it identifies a number of recommended practices to ensure that States continue to meet their international protection obligations towards refugees and asylum seekers, while also responding to public health concerns. Although human rights law permits States to impose exceptional measures in a public health emergency (which must be necessary, proportionate and reasonable, as well as non-discriminatory), international law still requires that people seeking protection are given an effective opportunity to do so. As such, no risk to public health can justify a State denying asylum seekers and refugees access to their territory without appropriate safeguards to prevent refoulement and safeguard minimum rights.
Topic:
Borders, Mobility, COVID-19, Protection, and Asylum Seekers
Political Geography:
Global Focus

4. Safe Journeys and Sound Policy: Expanding protected entry for refugees

Author:
Claire Higgins
Publication Date:
11-2019
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
Protected entry procedures are visa mechanisms that allow individuals to apply for entry into another country for the purpose of accessing protection under international refugee or human rights law. Procedures are made available within countries of origin or first asylum, their primary function being to ensure that asylum seekers and refugees can travel safely across international borders and avoid potentially dangerous or exploitative irregular journeys. This Policy Brief draws on past and current State practice to outline what these procedures look like, and how they should operate as tools of refugee protection. It speaks to a core objective of the Global Compact on Refugees, which is to expand access to third-country solutions for refugees and asylum seekers. Forced migration is currently at record highs worldwide, but not all those who are displaced will want or need to move outside their region of origin. UNHCR has identified a relatively small number of refugees, 1.4 million people, as needing resettlement under its annual program in 2020. This means that States could make a real difference by expanding the use of protected entry procedures and other complementary pathways to increase access to protection and solutions.
Topic:
Refugees, Forced Migration, Protection, Migration Policy, and Asylum Seekers
Political Geography:
Global Focus