International refugee protection challenges and opportunities

International Journal of Refugee Law

Volumn 19, Issue 3, 2007, Pages 401-439

  Kelley, Ninette ^a  

^a UNHCR

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; INTERNATIONAL MIGRATION; REFUGEE; SOCIAL SECURITY; SOVEREIGNTY; TWENTY FIRST CENTURY;

EID: 35648973692     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eem055     Document Type: Article

References (66)

1. In 2000, the Executive Committee of the UNHCR approved a budget of some $900 million yet State contributions fell $200 million short of that amount. See UNHCR Global Reports 1999, 2000.
2. 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, hereafter 'Refugee Convention'.
3. UNHCR Executive Committee, 'Protracted Refugee Situations': UN doc. EC/ 54/SC/CRP 10, 24 June 2004. See also UNHCR, 'Statistical Yearbook, Trends: 2005-2006'.
4. Center for the Study in Forced Migration, University of Dar es Salaam 'Impact of Refugees in North-Western Tanzania' (2003). Available from: .
5. See 'Joint Report of the United Nations Organization Mission in the Democratic Republic of the Congo, the United Nations Operation in Burundi and the Office of the United Nations High Commissioner for Human Rights into the Gatumba Massacre': UN doc. S/2004/821, 5 Oct. 2004.
6. J. Crisp, 'A New Asylum Paradigm? Globalization, Migration and the Uncertain Future of the International Refugee Regime', (2003) New Issues in Refugee Research, Working Paper No. 100.
7. The Sphere Project, 'Humanitarian Charter and Minimum Standards in Disaster Relief' (2004), available from: .
8. B. Rutinwa, 'Identifying Gaps in Protection Capacity: Tanzania' (2003). Available from: .
9. UNHCR Sexual and Gender Based Violence against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response May 2003;
10. see also Inter Agency Steering Committee (IASC) Guidelines for Gender-based Violence Interventions in Humanitarian Settings Focusing on Prevention of and Response to Sexual Violence in Emergencies, Sept. 2005.
11. UNHCR, The UNHCR Tool for Participatory Assessment, May 2006.
12. The Strengthening Protection Capacity Project, Analysis of Refugee Protection Capacity: Kenya' (2005). Available from: .
13. See, e.g., UNHCR Evaluation Reports, 'Enhancing UNHCR's Ability to Monitor the Rights and Well Being of Refugees: Synthesis Report'June 2004, and the other evaluations referred to in n. 12 of that report.
14. UNHCR Evaluation Reports, 'UNHCR's Age and Gender Mainstreaming Pilot Project 2004: Synthesis of Findings and Recommendations', 10 Apr. 2005.
15. UNGA, 'Report of the Office of Internal Oversight Services on the investigation into sexual exploitation of refugees by aid workers in West Africa', UN doc A/57/465, 11 Oct. 2002.
16. UNHCR, 'Executive Committee Conclusion on Protection from Sexual Abuse and Exploitation', Resolution No. 98, 2003.
17. Kamel Morjane, United Nations Assistant High Commissioner for Refugees, speech to the WFP Executive Board Annual Session, Rome, 6 June 2005.
18. Indeed three of the men involved in the London bomb attempt two weeks later had arrived in Britain as child refugees, two from Somalia and one from Ethiopia, over a decade earlier. A fourth had fled Ethiopia as a child and subsequently was admitted to Britain after falsely claiming he was a Somali refugee in 1996.
19. V. Turk, 'Forced Migration and Security', 15 JRL 113 (2003).
20. See, e.g., Council of Europe, Office of the Commissioner for Human Rights, 'Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to Sweden, 21-23 Apr. 2004', CommDH(2004)13.
21. UNHCR, 'Asylum Levels and Trends in Industrialised Countries, 2005', 1 Mar. 2006.
22. Afghanistan went from being the leading source country of asylum claims in 2001 (accounting for 10% of all applications) to being 10th in 2005 (less than 2.5% of all applications).
23. Foreign Territory: The Internationalisation of EU Asylum Policy (Oxford: Oxfam 2005) 35.
24. See also European Council of Refugees and Exiles (ECRE), Broken Promises - Forgotten Principles: An ECRE evaluation of the development of EU minimum standards for refugee protection, Tampere 1999 - Brussels 2004, June 2004. Available from: .
25. United for Intercultural Action European Network Against Nationalism, Racism, Fascism and in Support of Migrants and Refugees reported some 8,500 deaths of people trying to gain admission to Europe between 1993-2006. See .
26. Art. 31.
27. See, e.g., Human Rights Watch (HRW) 'Discretion Without Bounds, the Arbitrary Application of Spanish Immigration Law', 5 July 2002 and UNHCR, 'Handling of Cap Anamur asylum claims was flawed' Geneva, 23 July 2004.
28. Hon. D. Coderre, 'Notes for an Address by the Honourable Denis Coderre, Minister of Citizenship and Immigration, at the Meeting of the Canadian Bar Association' Montreal, 3 May 2003.
29. Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants). Case: [2004] UKHL 55, 9 Dec. 2004.
30. An Australian Senate report released the following year found that the Defense Minister at the time had 'engaged in the deliberate misleading of the Australian public concerning a matter of intense political interest during an election period'. 'Commonwealth of Australia, Select Committee for an inquiry into a certain maritime incident: Executive Summary' 23 Oct. 2002. Available at .
31. Office of the Press Secretary, 'President George Bush Welcomes Georgian President Saakashvili to White House, Remarks by the President and Georgian President Saakashvili', 25 Feb. 2004. Available at .
32. Sale v. Haitian Centers Council, 509 US 155 (1993). This decision upheld the validity of an executive order authorizing the practice of intercepting ships on the high seas transporting visaless passengers from Haiti to the United States and to returning them to Haiti without first determining whether they qualify as refugees. The Inter-American Commission on Human Rights, however, concluded that the United States had breached several rights under the American Declaration including the right to life, liberty and security of the person (Art. I), the right to equality before the law (Art. II), the right to resort to the courts (Art. XVIII) and the right to seek and receive asylum (Art. XVII).
33. These and other interception measures that effectively deny refugees and asylum seekers access to international protection, or result in their being returned to the countries where their security is at risk, do not conform to UNHCR's Executive Committee 'Conclusion on Protection Safeguards in Interception Measures', No.97(LIV) 2003.
34. In 2004 UNHCR estimated that there were 5,000 known deaths at sea over the past decade. The Gulf of Aden has been the scene of many tragedies in recent years with hundreds of Somalis and Ethiopians having died from thirst, hunger, drowning and abusive treatment en route to Yemen and points beyond.
35. Canada and the US signed a safe third agreement which came into force in 2004 and which provides exceptions in its application to certain categories of refugees. However, concerns remain on the fairness of the agreement in cases of claimants who are returned to US where the basis of their claim is one that may not be judicially recognized there but is in Canada.
36. European Union, 'Council Directive 2005/85/EC of 1 Dec. 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status', OJ L 326/13, 13 Dec. 05. See also UNHCR, 'Observations on the European Commission's Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals' Dec.2005.
37. UNHCR, 'Executive Committee Conclusion on The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum Claims'No. 30 (XXXIV), 1983.
38. Council of Europe, Office of the Commissioner for Human Rights, 'Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4th-12th November 2004'CommDH(2005)6.
39. See also UNHCR, n. 34 above, 5.
40. For more on complementary and subsidiary forms of protection see ECRE, n. 22 above.
41. Denmark, Finland, the Netherlands and Sweden, however, confer nearly the same rights as Convention refugees.
42. See Canadian experience with its expanded grounds that are, however, subject to important qualifications. The Immigration and Refugee Protection Act, s. 97 (1)(b).
43. M. Kate 'The provision of protection to asylum seekers in destination countries' (2005) New Issues in Refugee Research Working Paper No. 114.
44. For more on inconsistent decision-making see Brian Gorlick, '(Mis)perception of Refugees, State Sovereignty and the Continuing Challenge of International Protection', in Anne Bayefsky (ed.) Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: Essays in Honour of Foan Fitzpatrick and Arthur Helton (The Hague: Martinus Nijhoff 2006).
45. E. Feller, V. Turk, and E Nicholson (eds.), Refugee Protection in International Law (Cambridge: Cambridge University Press, 2003).
46. European Union, 'Council Directive 2004/83/EC of 29 Apr. 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Person who otherwise need International Protection and the Content of the Protection granted'. (OJ L 304/12 of 30 Sept. 2004)
47. % of asylum claims are made in the EU. UNHCR, n. 20 above.
48. K. Landgren, 'Deflecting international protection by treaty: Bilateral and multilateral accords on extradition, readmission and the inadmissibility of asylum requests' (1999) New Issues in Refugee Research, Working Paper No 10.
49. UNHCR, Executive Committee, 'Conclusion on Detention of Refugees and Asylum-Seekers' A/AC.96/688 1986, para. 128; see also subsequent Excom conclusion A/AC.96/702 1987 para. 204; A/AC.96/737 1989, para. 22; A/ AC.96/804 1992 para. 21, and A/AC.96/821 1993 para. 19 and A/AC.96/91 lm 1998 para. 21 (dd) and (ee).
50. Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, 'From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers' June 2003.
51. The New York Times, 25 Sept. 2004.
52. For a comparative review of State practice, see Guy S. Goodwin-Gill, 'Article 31 of 1951 Convention Relating to the Status of Refugees: non-penalization, detention, and protection', in E. Feller, V. Turk, and F. Nicholson (eds.), Refugee Protection in International Law (Cambridge: Cambridge University Press, 2003), 185.
53. Secretary-General's address to the European Parliament upon receipt of the Andrei Sakharov Prize for Freedom of Thought' [as delivered] Brussels 29 Jan. 2004, available at .
54. Other reading on this includes G. Loescher and J. Milner, 'Protracted Refugee Situations' (2005) 45 (375) The Adelphi Papers, 7-95
55. and US Committee for Refugees and Immigrants World Refugee Survey 2005 - Warehousing Inventory of Refugee Rights (Washington: USCRI, 2005).
56. Para. 11 of the Presidency Conclusions of the Tampere European Council, 15-16 Oct. 1999.
57. N. Kelley and J.F. Durieux, 'UNHCR and Current Challenges in International Refugee Protection', (2004) 22 Refuge 6.
58. UNHCR, 'Enhancing International Refugee Protection in Latin America: The Mexico Plan of Action', Geneva, Mar. 2005.
59. See, e.g., the Strengthening Protection Capacity (SPC) Project which uses a comprehensive methodology to analyse gaps in protection and to collaboratively work with states, partners and refugees in the development of programmatic interventions to remedy gaps and expand solutions, .
60. European Commission, 'Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes', Com (2005) 388/F, Brussels, 1 Sept. 2005.
61. UNHCR, 'Observations on the Communication from the European Commission to the Council and the European Parliament on Regional Protection Programmes, 10 Oct. 2005.
62. European Commission, 'Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes' COM/2005/ 0388 finals.
63. The pilot RPPs announced by the EC also make no specific provision for this type of cooperation.
64. J. Morrison and B.Crosland, 'The Trafficking and smuggling of refugees: the end game in European asylum policy?', (2001) New Issues in Refugee Research, Working Paper No. 39, 71.
65. Brian Gorlick, n. 41 above.
66. Global Commission on International Migration (GCIM), Migration in an interconnected world: New directions for action. (Geneva: GCIM 2005)