Asylum, migration and refugee protection: Realities, myths and the promise of things to come

International Journal of Refugee Law

Volumn 18, Issue 3-4, 2006, Pages 509-536

  Feller, Erika ^a  

^a United Nations High Commissioner for Refugees   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; GEOPOLITICS; HUMAN RIGHTS; IMMIGRATION POLICY; MIGRATION; NATIONAL IDENTITY; NATIONAL SECURITY; POLITICAL CHANGE; REFUGEE;

EID: 33751506224     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eel016     Document Type: Conference Paper

References (49)

1. United Nations, 'Report on the World Social Situation: The Inequality Predicament', UN Department of Economic and Social Affairs, Aug. 2005.
2. See, 'United Nations 2005 report on world social situation finds much of world trapped in "inequality predicament"', UN press release, 25 Aug. 2005, available at .
3. Ibid.
4. UN General Assembly, resolution A/RES/55/2, 8 Sept. 2000.
5. See generally, e.g., the UNHCR, 'Notes on International Protection for 2003' (A/AC.96/975, 2 July 2003), 2004 (A/AC.96/989, 7 July 2004) and 2005 (A/AC.96/1008, 4 July 2005).
6. Adopted in Nov. 2004, the Hague Programme is a five-year programme in the area of freedom, security and justice and includes an asylum and migration dimension. On the Regional Protection Programmes specifically, see, most recently, 'Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes', COM(2005) 388 final, 1 Sept. 2005.
7. Afghanistan acceded to both instruments on 30 Aug. 2005. For a full list of States Parties, see .
8. UNHCR, '2004 Global refugee trends: Overview of refugee populations, new arrivals, durable solutions, asylum-seekers, stateless and other persons of concern to UNHCR', 17 June 2005, available at .
9. The Global IDP Project estimated the number of IDPs to be 25,300,000 in Dec. 2004. See Global Overview 2004, available at .
10. See aforementioned Notes on International Protection, above n. 5.
11. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and certain of the International Labour Organization (ILO) agreements are exceptions here.
12. In Spain, in Apr. 2004, for instance, general migration functions previously placed within the Ministry of the Interior were moved to the Ministry of Labour and Social Affairs, while asylum matters and control of borders remain under the Minister of Interior.
13. See generally, UNHCR, 'Statement of Good Practice on Targeting Development Assistance for Durable Solutions to Forced Displacement', FORUM/2005/3, 2 May 2005. In this context, initiatives similar to the 'Zambia initiative', which promotes local development in tandem with durable solutions for refugees, have now begun to be implemented in a number of countries, including Uganda, Gabon and Guinea.
14. See, for instance, UNHCR, 'Framework for Durable Solutions for Refugees and Persons of Concern', Standing Committee, EC/53/SC/INF.3, 16 Sept. 2003.
15. One example is UNHCR's multi-pronged initiative for the remaining Afghan populations in Pakistan and Iran. See, UNHCR, 'Protracted Refugee Situations', EC/54/SC/CRP.14, 10 June 2004, paras. 33-36,
16. and 2004 Notes on International Protection for 2003' above n. 5, para. 30. It also is instructive to reflect back on past such evolutions as, e.g., with the Mozambique refugee situation in South Africa and Zimbabwe.
17. Latest figures for the second quarter of 2005 confirm the fall in numbers of asylum applications in industrialized countries which has been ongoing since 2002. See UNHCR, 'Asylum Levels and Trends in Industrialized Countries Second Quarter, 2005', 7 Sept. 2005, available at http://www.unhcr.ch/cgi-bin/texis/vtx/statistics/ opendoc.pdf?tbl=STATISTICS&id=431d5abe2.
18. A. Travis and A. Gillan, 'Bomb Suspect "Became a Militant" in Prison', The Guardian, 28 July 2005
19. K. Sullivan, 'From Refugee to Thug to Suspect in London Plot', Washington Post, 4 Aug. 2005.
20. P. Popham, 'Attacks on London: Bomb Suspect Wanted in UK may be Charged over Italian's Murder', The Independent, 10 Aug. 2005.
21. See also discussion in N. Kelley, 'International Protection Challenges and Opportunities', The State of the World's Refugees, Oxford University Press, forthcoming 2006.
22. This language is found, e.g., in Security Council resolution S/RES/1373 of 28 Sept. 2001, as well as most recently in S/RES/1456 of 20 Jan. 2003 and S/RES/1566 of 8 Oct. 2004. In addition, this language appears in many Resolutions of the General Assembly (e.g. most recently UNGA resolution A/RES/59/195 of 22 Mar. 2005 on 'Human Rights and Terrorism') and the Commission on Human Rights (e.g. Resolution 2004/44 of 19 Apr. 2004 on 'Human rights and terrorism'). UNGA resolutions on Protecting Human Rights and Fundamental Freedoms while Countering Terrorism (e.g. A/ RES/59/191 of 20 Dec. 2004) nevertheless require that 'States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law'.
23. Indeed, Article 2 of the 1951 Convention provides: 'Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order'.
24. For further information, see UNHCR, 'Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees', HCR/GIP/03/05, and the accompanying 'Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees', both of 4 Sept. 2003.
25. Secretary-General, Keynote address to the closing plenary of the international summit on democracy, terrorism and security, 'A Global Strategy for Fighting Terrorism', Madrid, Spain, 10 Mar. 2005.
26. See S. Kapferer, 'The Interface between Extradition and Asylum, UNHCR Legal and Protection Policy Research Series, Department of International Protection', PPLA/2003/05, Nov. 2003.
27. See 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, Article 1.2.
28. Most recently, to celebrate the Cartagena Declaration's 20th anniversary, 18 Latin and Central American government representatives met in Mexico City in Nov. 2004 and reaffirmed 'their solemn commitment towards persons entitled to international protection' in a Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America.
29. Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Ministerial Meeting of States Parties, 12-13 Dec. 2001, HCR/MMSP/2001/09, 16 Jan. 2002.
30. See generally, .
31. See above, n. 27.
32. The background papers and conclusions of the expert roundtables held during 2001 are published in E. Feller, V. Türk and F. Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, Cambridge University Press, 2003, which also reproduces the Ministerial Declaration at 81.
33. Guidelines on International Protection have now been issued on gender-related persecution,membership of a particular social group', the cessation of refugee status, the internal flight or relocation alternative, the application of the exclusion clauses (Article 1F of the 1951 Convention) and on religion-based refugee claims. See generally, .
34. The papers produced for the third track of the consultations are published together with an overview of the Global Consultations in 22 RSQ (2003).
35. See A/AC.96/965/Add.I, 26 June 2002. UNHCR reproduced the Agenda in booklet form, which also contains a bibliography of documents relating to the Consultations process.
36. For an analysis of the problem of protracted refugee situations, see UNHCR, 'Protracted Refugee Situations', above n. 15.
37. See, 'Multilateral Framework of Understandings on Resettlement', FORUM/ 2004/6, 16 Sept. 2004.
38. See, nevertheless, the 'Statement of Good Practice on Targeting Development Assistance for Durable Solutions to Forced Displacement', above n. 13, which came out of this strand of the Convention Plus process. Efforts to find agreement amongst States on a multilateral framework of understandings on irregular secondary movement were undermined by sharp differences over key issues. Among these were differences over whether the document should focus on irregular secondary movement of refugees and asylum seekers who 'had already found' or on those who 'could have found' protection in another country of asylum; what constitutes secondary as opposed to primary movement; the content of effective protection; the relative weight to be given in the document to enhancing protection and assistance in countries of asylum and to issues such as border control and readmission; whether the latter constituted a legitimate response or was a result of unequal power relationships often tantamount to burden shifting; and whether the return of persons found not to be in need of international protection in a full and fair procedure was beyond the scope of the document or whether it was necessary since 'non-return' compromised the credibility and integrity of industrialized countries' asylum systems.
39. See, in particular the UK government's proposals of early 2003 and proposals by German Interior Minister Otto Schily reported in the press in mid-2004.
40. See, amongst others, UNHCR's three-pronged proposal of June 2003, its revised EU-prong proposal of Dec. 2003. For more general overviews, see 'Communication from the Commission to the Council and the European Parliament, Towards more accessible, equitable and managed asylum systems', COM(2003) 315 final, 3 June 2003
41. UK House of Lords, European Union Committee, 'Handling EU asylum claims: new approaches examined', 11th Report of Session 2003-04, HL Paper 74, 30 Apr. 2004, available at .
42. In other maritime situations from the Caribbean to the Gulf of Aden, people on often barely seaworthy boats, who are generally fleeing their country of origin directly, encounter similar problems and often pay with their lives. See, for instance, UNHCR, 'UNHCR calls for Urgent Action to Save Lives in Gulf of Aden', 9 Sept. 2005, available at .
43. See, Goal 2, objective 4 of the Agenda for Protection. Initiatives UNHCR has undertaken as a result include the organization of an expert roundtable in Lisbon, Portugal, in Dec. 2002 which issued 'Summary Conclusions on the Concept of "Effective Protection" in the Context of Secondary Movements of Refugees and Asylum-Seekers' and contributions to the debate in numerous migration-related fora such as that entitled 'Co-operation to Address the Irregular Movement of Asylum-Seekers and Refugees: Elements for an International Framework' presented to the regional ministerial conference on people smuggling, trafficking in persons and related transnational crime in Bali, Indonesia, in Apr. 2003.
44. See also, Stephen H. Legomsky, 'Secondary Refugee Movements and the Return of Asylum-Seekers to Third Countries: The Meaning of Effective Protection', UNHCR Department of International Protection, PPLA/2003/01, Feb. 2003.
45. See, e.g., 'UNHCR Observations on the European Commission Communication On the Managed Entry in the EU of Persons in Need of International Protection and Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions', (COM(2004) 410 final, 4 June 2004), 30 Aug. 2004, available at .
46. In the context of this protection capacity building project see, 'Framework for Identifying Gaps in Protection Capacity', Apr. 2005, available at .
47. Ibid.
48. In the Mediterranean region, for instance, UNHCR held an expert roundtable in Sept. in Athens, Greece, on 12-13 Sept. 2005, on international protection of asylum-seekers and refugees in the context of interception and rescue in the Mediterranean Sea. It will be followed by a meeting of coastal states representatives in Madrid, Spain, on 17-18 Oct. 2005. The intention is to formulate possible cooperative measures to promote active support to the international search and rescue regime; ensure access to territory for people who are rescued and intercepted; ensure access to asylum procedures in the country of disembarkation for those seeking asylum and formulate responsibility-sharing approaches in response to the situation in the Mediterranean.
49. See, Executive Committee Conclusion on the Return of Persons Found Not to be in Need of International Protection, No. 96 (LIV), 2003.