States, the Law and Access to Refugee Protection: Fortresses and Fairness

by Maria O'Sullivan, Dallal Stevens

Overview

This timely volume seeks to examine two of the most pertinent current challenges faced by asylum seekers in gaining access to international refugee protection: first, the obstacles to physical access to territory and, second, the barriers to accessing a quality asylum procedure - which the editors have termed 'access to justice'.

To address these aims, the book brings together leading commentators from a range of backgrounds, including law, sociology and political science. It also includes contributions from NGO practitioners. This allows the collection to offer interdisciplinary analysis and to incorporate both theoretical and practical perspectives on questions of immense contemporary significance. While the examination offers a strong focus on European legal and policy developments, the book also addresses the issues in different regions (Europe, North America, the Middle East, Africa and Australia). Given the currency of the questions under debate, this book will be essential reading for all scholars in the field of asylum law.

Product Details

ISBN-13:	9781509930784
Publisher:	Bloomsbury Academic
Publication date:	07/25/2019
Series:	Studies in International Law
Pages:	336
Product dimensions:	6.14(w) x 9.21(h) x 0.70(d)

About the Author

Maria O'Sullivan is a Senior Lecturer in the Faculty of Law and a Deputy Director of the Castan Centre for Human Rights Law at Monash University.

Dallal Stevens is Associate Professor (Reader) of Law at the University of Warwick.

Table of Contents

Preface v

List of Editors and Contributors xiii

Abbreviations xix

Part I Conceptual Background

1 Access to Refugee Protection: Key Concepts and Contemporary Challenges Maria O'Sullivan Dolled Stevens 3

I Introduction 3

II Background: 'Asylum' and 'Refugee Protection' 5

A Meaning of Asylum 7

B Right to Seek Asylum 8

C 'Refugee Protection' 9

III States, Access to Territory and the Law 10

A 'The State' (or States) and 'Borders' 10

(i) Territory, Borders and the Law 10

(ii) State 'Responsibility' 16

IV 'Asylum Justice' and Contemporary Due Process Challenges 20

A The Concept of Access to Justice 20

(i) State Interpretation and Implementation of Due Process 22

(ii) Fair Hearing/Procedural Fairness 24

(iii) Legal Assistance 25

(iv) Fast Track/Accelerated Procedures 26

(v) Vulnerable Applicants 27

V Conclusion 27

2 Asylum in the Context of Immigration Control: Exclusion by Default or Design? Nadine El-Enany 29

I Introduction 29

II The Limits of the Refugee Convention 30

III The Impact of 'Fortress Europe' on Protection 34

IV The Migrant and the Refugee: A Costly Distinction 36

V Alan Kurdi: The Human Refugee 41

VI Conclusion: Racism, Exclusion and Blaming the Victim 44

Part II Access to Territory

3 Where Do State Responsibilities Begin and End? Border Exclusions and State Responsibility Júlia Iván 47

I Introduction 47

II The Application of Human Rights Law to Borders 49

III The Border Monitoring Experience in Hungary 2007-13: Difficulties in Accessing Protection 53

IV The Change of Practice in 2013-14: Towards a More Comprehensive Border Control Practice 57

V Building a Physical and Legal Fence: Closure of Hungary's Southern Borders 60

VI Litigation and Follow-up of the Cases of Removed Refugees and Migrants 64

VII Conclusions 66

4 Access to International Protection: Border Issues in Turkey Cavidan Soykan 69

I Background and Context 69

II The Current Situation and the New Law 71

III Access to Physical Territory: Problems at the Turkish Borders 75

A Forced Returns and Illegal Removals: Getting into Turkey from Iran 76

B Transiting Turkey: Push Backs and Detention 78

IV Barriers to Accessing Asylum Justice: The Role of the UNHCR in Turkey 81

V UNHCR'S Limited Access to Removal Centres 84

VI Conclusion 88

5 Interdiction and Screening of Asylum Seekers at Sea: Implications for Asylum Justice Maria O'Sullivan 93

I Introduction 93

II Relevant Legal Principles 95

A International Standards 95

B Regional Standards 97

C Domestic Procedural Fairness Principles 98

III Screening at Sea and Fairness-State Practice 100

A Introduction 100

B Australian Interdiction and Screening at Sea 102

C Tire High Court Decision in CPCF 103

D Legislative Changes: 2014 108

IV Analysis 109

V Conclusion 111

6 Detained at the Border. Obstacles to Entry for Central American Refugees in the United States Maggie Morgan Deborah Anker 113

I Introduction 113

II Overview of Central American Refugee Migration to the United States 117

III Primary Causes of Flight from Central America 119

A 'Third-generation' Gang Violence 119

B Gender-based Violence 123

IV Crossing the Border: Obstacles to Entry for Central American Refugees 124

A Dangers in Crossing 125

B Border Militarisation 126

C Expedited Removal/Credible Fear Screenings 129

D Detention 132

V Conclusion 133

Part III Access to Justice and a Refugee Status Determination Procedure

7 Accessing Fair and Efficient Asylum Procedures in the EU: Legal Safeguards and Loopholes in the Common European Asylum System Kris Pollet 137

I Introduction 137

II Access to Protection at the EU External Borders: Safeguards and Gaps in the EU Legal Framework 140

III Access to the Asylum Procedure and Ensuring Quality of Decision-making 145

A Access to Information on How and Where to Apply for International Protection 147

B Registration of Applications for International Protection 148

C Access to a Quality Personal Interview and Country of Origin Information 152

IV Access to a Fair and Efficient Asylum Procedure in Practice in Selected EU Member States 158

A Registration of Asylum Applications 158

B Conducting, Recording and Reporting of Personal Interviews 165

V Conclusion 166

8 The State of the Asylum System in South Africa Corey Johnson Sergio Carciotto 167

I Introduction 167

II Legal Framework: 1998-2014 170

A The Refugees Act 1998 170

B The Immigration Act 2002 172

III Restricting Access: Policies and Practice 173

A Pre-screening Procedures at the PRO 173

B 'Quota' Systems and Limits on the Number of Applications Lodged 175

C First and Third 'Safe' Country Concepts 176

D Safe Country of Origin Principle 178

E Asylum Transit Visa Requirements at RROs 179

IV Policy Shift: The 'New Paradigm' 180

A Security and the 'New Paradigm' 181

B Urban RRO Closures and Relocation 183

C Legislative Amendments 187

V Conclusion 189

9 Access to Asylum and Reception Conditions in Western Balkans: Focus on Bosnia and Herzegovina and Croatia Selma Porobic Drago Zuvaric-Iljic 191

I Introduction 191

II Development of Asylum Systems and the Role of External Conditioning 194

A Bosnia and Herzegovina 194

B Croatia 196

III Access to Asylum and Refugee Status Determination 199

A Bosnia and Herzegovina 200

B Croatia 204

IV Enabling Protection: Refugees' Recognition Rates 207

A Bosnia and Herzegovina 207

B Croatia 209

V Reception Conditions in Bosnia and Herzegovina and Croatia 212

A Bosnia and Herzegovina 212

B Croatia 215

VI Discussion and Conclusion 218

10 Access to Justice for Syrian Refugees in Lebanon Dolled Stevens 223

I Introduction 223

II Legal Background 224

III Refugee Presence, Policy and Access to Process 227

A Palestinians 228

B Non-Palestinians 230

IV Conditions and Consequences 236

A Deteriorating Conditions 236

B Refoulement and Rejection 238

V Conclusion 241

11 Accelerated Asylum Procedures in the United Kingdom and Australia: 'Fast Track' to Refoulement? Linda Kirk 243

I Introduction 243

II United Kingdom 245

A Introduction and Development of the DFT 245

B Selection of Applicants for the DFT 248

(i) Screening Interview 248

(ii) 'Quick Decision' 250

(iii) Flexibility Guidelines 251

(iv) Detained Non-suspensive Appeal (DNSA) 252

(v) DFT Time Frames and Access to Legal Representation 253

(vi) Decision Outcomes in the DFT 254

C Appeal Process 254

III Australia 258

A Background to the 'Fast Track' Procedures 258

B Brief Overview of Australia's Protection Status Determination System 259

(i) Primary Decision 259

(ii) Review by the Administrative Appeals Tribunal 260

(iii) Judicial Review 261

C The 'Fast Track' Procedure for 'Asylum Legacy Caseload' Applicants 261

(i) Selection for Inclusion in the FTP 262

(ii) Access to Legal Assistance 263

D The Stages of the FTP 263

(i) Primary Decision 263

(ii) 'Excluded Fast Track Review Applicants' 263

(iii) Review by the Immigration Assessment Authority for Non-excluded Fast Track Procedure Applicants 265

(iv) The Powers of the Immigration Assessment Authority (IAA) 266

(v) Time Frames for Decision-making 269

(vi) Challenges to IAA Decisions 269

IV Conclusion 269

12 Access to Asylum for Victims of Trafficking under a Human Rights-based Approach Nula Frei Constantin Hruschka 271

I Introduction 271

II The Human Rights Framework for Victims of Human Trafficking 274

A Protection from Further Harm 276

B Identification 276

C Residence Permit 277

D Assistance 278

E Repatriation and Prohibition of Refoulement 279

III Identification of Victims of Trafficking in Asylum Procedures 280

A The Identification Process in Asylum Procedures 281

B The Status Quo: Self-identification, Credibility and Biases 282

IV Access to the Asylum Procedure 284

A Access to the Asylum Procedure in Europe: The Dublin Regulation 285

B Challenges for Victims of Trafficking Under the Dublin System 287

C Reconciling the Frameworks 289

V Access to International Protection 291

A Refugee Law 291

B Complementary Protection 294

VI Solutions 295

13 States, the Law and Access to Refugee Protection: Concluding Reflections Dallal Stevens Maria O'Sullivan 297

I Introduction 297

II Access to Territory 298

III Access to Asylum Procedures 301

IV Conclusion 303

Index 305

Editorial Reviews

The breadth of legal frameworks and state practices covered in the volume gives it a broad appeal... Although it is valuable as a harmonious yet diverse collection of interventions, the chapters are strong enough to be free-standing... It is an engaging volume that will be of use to a wide audience interested in access to asylum justice.
International Community Law Review

The broad geographical scope of this book, its thought-provoking insights on different legal contexts, the noteworthy capacity of the editors to trace the common thread that ties all these different policies and practices of migration control together, makes this volume of high relevance and interest for lawyers, students, scholars and policy-makers in different regions of the world and versed in different legal traditions.
Journal of Immigration, Asylum & Nationality Law

The lasting impression left by the collection is that it is a very powerful documentation of the diverse types of obstacles facing asylum seekers trying to access asylum procedures around the world.
International Journal of Refugee Law

From the Publisher