Good News from Down Under

Refugee advocates have been abuzz this week with the news from Down Under: on Wednesday, the High Court of Australia struck down the Minister for Immigration and Citizenship's declaration that he could send asylum seekers to Malaysia for claims processing. The 6-1 decision has powerful ramifications not only for other offshore processing plans but also for the viability of Prime Minister Gillard's leadership, which has subsequently come under serious question.
On August 4, the plaintiffs, an Afghan adult and unaccompanied minor, both Shia Muslims, arrived by boat at the Australian territory of Christmas Island. As a result, both were classified as "offshore entries." Both claimed asylum from Afghanistan as well as a fear of persecution in Malaysia on account of their religion. Both were detained upon arrival.
They then became subject to the July 25 "refugee swap" agreement between Australia and Malaysia. According to the terms of the deal, Australia was to transfer to Malaysia up to 800 undocumented asylum seekers arriving by sea. These asylum claims would then be determined by the UN High Commissioner for Refugees in Malaysia. In exchange, Australia would resettle 4,000 refugees from Malaysia over a period of four years. Malaysia, which is not a party to the Refugee Convention, offers no legal protections under domestic law for asylum seekers, and has been heavily criticized for human rights abuses perpetrated against immigrants of all types.
The High Court analyzed the relevant provisions of Australian law with reference to the UN Refugee Convention. Section 198A of the Australian Migration Act permits the Minister for Immigration and Citizenship to remove an "offshore entry" to a third country that:

• provides access to effective asylum procedures;
• protects asylum seekers pending determination of their claim;
• protects asylees pending voluntary repatriation or resettlement; and
• meets relevant human rights standards in providing protection.

The High Court, French J, noted that the legislature, in creating Section 198A, intended to adhere to Australia's obligations under the UN Refugee Convention (para. 56). He held that Malaysia's failures to meet the provisions above invalidated the Minister's declaration as not authorized by Section 198A.
Similarly, Gummow J, Hayne J, Crennan J, and Bell J found that removal of a person to a third country without a decision on their claim may breach the non-refoulement obligations of Article 33(1) of the Refugee Convention (para. 94). These justices also held that "a country does not provide access to effective procedures" by simply permitting UNHCR to assess asylum claims without creating its own procedures (para. 125) and that the "refugee swap" agreement did not require Malaysia to meet the protection requirements of the 2nd and 3rd provisions of 198A(3) outlined above (para. 126).
The High Court decision not only scuttles the Malaysia refugee swap deal but also puts in question the viability of reviving the "Pacific Solution," under which Australia sent unauthorized boat arrivals to small Pacific Islands for processing between 2001 and 2007. Though Prime Minister Julia Gillard denies that she'll be leaving her position, speculation is running rampant as the Labor Party rushes to respond to the fallout from the High Court's unexpected decision. It remains to be seen how the decision will influence international refugee law, and whether judges in other countries will be inspired to uphold the text and spirit of the UN Refugee Convention in interpreting their domestic refugee law as these Australian justices have.

Guidelines for Children Seeking Asylum

The United Nations High Commissioner for Refugees recently published guidelines for the treatment of child asylum seekers. Though not binding law, the document should be useful for those representing children in asylum claims, and hopefully for pushing forward the state of asylum law for children in the United States. Some highlights:

• The guidelines draw on principles established in the Convention on the Rights of the Child, namely State obligations to protect children's rights without regard to national origin and immigration status; the paramount importance of promoting the best interests of the child; States parties' duty to ensure the survival and development of the child; and the child's right to have her views taken into account when deciding matters that affect her.
  
• The child's age, stage of development, vulnerability, and knowledge and/or memory of conditions in the country of origin should all be taken into account when determining eligibility for asylum.
  
• The guidelines note that where the child is the principal applicant for asylum (e.g. a child seeking protection from FGM), the parents can be granted derivative asylum status based on the child's grant of asylum.
• When determining whether children have a well-founded fear of persecution, decisionmakers should consider that children may experience socioeconomic deprivation and psychological harm more severely than adults.
• Noting the growing consensus on the illegality of recruiting children under 18 into direct participation in armed conflict, the guidelines find that such forced recruitment by state or non-state actors constitutes persecution.
• Trafficked children at risk of re-trafficking or serious reprisals have a well-founded fear of future persecution. The use of children in slavery, forced labor, prostitution, pornography, and the drug trade are all instances of persecution.
• Domestic violence against children may be considered persecution and/or torture.
• "Children" may constitute a particular social group, as may street children, children affected by HIV/AIDS, and children recruited by an armed force or group.
  

Feminizing the Asylum Process in France

Last month, Dr. Jane Freedman, Marie Curie Professor of Politics at the Sorbonne, (pictured below right) published a report for UNHCR on the situation of female asylum-seekers and refugees in France. Responding to a gap in the literature and in the statistical data collected by the French government on the treatment of female asylum-seekers, Dr. Freedman's study offers troubling and fascinating findings. While women are more likely to be granted asylum in France than men and also more likely to be granted subsidiary protection, female asylum seekers still face significant discrimination in the asylum process.
The proportion of female asylum seekers in France has grown every year since L'Office Français de Protection des Réfugiés et Apatrides (OFPRA) began collecting data in 2001; increasing from under 30% in that year, females constituted over 36% of asylum seekers by 2007. Dr. Freedman notes that OFPRA's response is to offer subsidiary protection in many gender-based asylum cases -- such as claims of FGM, forced marriage or prostitution -- that could have been eligible for asylum. (Subsidiary protection status must be renewed annually, while asylum status is granted for at least three years.) Even more concerning, in response to increasing numbers of asylum claims from Mali based on female genital mutilation, OFPRA restricted its protection policy such that only women who have recently entered France can apply for asylum based on the fear that their daughter will be forced to undergo FGM.
Dr. Freedman identifies as a serious problem the ad hoc approach to gender issues in the asylum process and recommends that these issues instead be addressed comprehensively and systematically. So, for example, while French jurisprudence on gender-based asylum claims is advancing, decision-makers don't apply the caselaw consistently, such that asylum applicants with very similar claims may be awarded different statuses for no apparent reason. This problem might be resolved through the publication of guidelines on gender-based claims to asylum (which exist in Canada, the USA, Australia, South Africa, Sweden and the UK). Even NGOs that assist asylum seekers fail to approach gender issues comprehensively. Though one NGO, Group Asile Femmes, has created a guide for NGOs on issues particular to the reception of female asylum seekers, this effort needs more resources and support to ensure its success.
So what are the gender issues that arise in the asylum process in France? Dr. Freedman provides several important examples. First, female asylum seekers have the right to request a female officer and interpreter in France, but none of the female asylum seekers she interviewed knew about this right. Second, unlike the practice in some other European countries, no childcare is offered for asylum seekers undergoing interviews at the asylum office. While this may seem a utopian expectation, the reality is harsh: one mother's asylum interview was cut short after 10 minutes because her baby was crying; she expected to be scheduled for a second interview but instead received a rejection letter. Even more disturbing, the French government provides no specific medical attention for pregnant women in the Zone d'Attente (the detention area at ports of entry for asylum seekers who apply at the border). Pregnant women detained in these areas are not admitted to the hospital or even allowed access to medical treatment; as a result, several have given birth in the Zone d'Attente at Roissy-Charles de Gaulle airport. Finally, the study discusses the specific issues faced by trafficked women who apply for asylum. These women are often forced to leave their home because of ethnic or religious-based violence and then fall into the hands of traffickers in another part of their country. Traffickers use this history of persecution to draft and file asylum claims on behalf of trafficked women, controlling the process tightly so the trafficking issues don't surface. Women who are then able tell the full story of their trafficking are denied asylum because they have changed their claim. Kudos to Dr. Freedman for shedding light on these significant problems and for taking on this important study in a meticulous and thoughtful fashion.

Refoulement Most Foul

The BBC reports that the Thai government has recently implemented a "brutal and inhuman response" to undocumented migrants from Bangladesh and Burma: tying their hands, forcing them into boats without engines and little or no food and water, and towing them out to sea. As one survivor noted, "The Thai soldiers clearly wanted us to die on the boats." Many died from dehydration and others jumped overboard. Sources in the Thai police and army confirm that at least some of those being pushed out to sea are asylum seekers.

Thailand's behavior violates fundamental provisions of international human rights treaties to which it is a party, most notably the right not to be arbitrarily deprived of one's life. So why did the Thai government feel empowered to so callously disregard the rights of these migrants? The reasons are obviously complex, but one answer may be that international law governing the rights of migrants lacks specificity, particularly in this region. None of the states involved -- Bangladesh, Burma, Thailand, and even India, which is currently caring for the refugees -- is a signatory to the United Nations Convention Relating to the Status of Refugees. While the principle of non-refoulement may have attained the status of customary international law, the regional failure to join the Convention may contribute to a regional view that protection of refugees is a favor rather than a duty. And if the rights of refugees are seen as optional, then economic migrants have little hope of robust rights protection.

So what's the solution? Apart from encouraging nations in the region to ratify the Refugee Convention, a regional treaty that affirms that rights extant in international human rights treaties apply to migrants might help to change attitudes. Countries that produce large numbers of regional migrants could take the lead in promoting protection for their citizens abroad. The non-binding "Bangkok Principles" for the protection of refugees were a preliminary step, back in 1966 -- it's high time now to take the next.

On this day

On April 3, ...
... 2000, Britain put into effect "controversial plans" to permit asylum seeks to "receive vouchers to buy food and clothes," and further to "disperse asylum seekers around the country." The voucher program would be scrapped in 2002 -- to be replaced by the issuance to asylum seekers of special identification cards.
... 1952, Miina Sillanpää (right) died in Helsinki, Finland. Born Vilhelmiina Riktig in 1866, 1 of a peasant couple's 9 children, she changed her name on becoming a maid in at age 18. In time she worked also as a journalist, and "was an early advocate of women's trade union rights and a staunch supporter of social welfare legislation." In 1907 she was among the 1st 19 women elected to Finland's Parliament (below; photo credit), and she served in that body off and on for nearly 4 decades. In 1926 Sillanpää was elected Minister of Social Affairs, making her Finland's 1st woman government minister.

Refugee Roulette

Today’s NY Times presents in brief the findings of Refugee Roulette, an article forthcoming in the Stanford Law Review that I co-authored with Philip Schrag and Andrew Schoenholtz (full study available here). Our empirical study found disturbing disparities in decision-making in all four levels of the asylum process in the United States. Not only were there dramatic differences in grant rates to asylum seekers from the same country between offices and courts in different parts of the country, but we found vast disparities in grant rates within offices and courts. In other words, judges sitting on the same court during the same time frame granted asylum cases from the same country at wildly varying rates -- for example, taking only Albanian asylum claims in the New York Immigration Court, one judge granted 5% of these cases, while another granted 96%. There were similar disparities in grant rates between and within asylum offices, and great variability in the federal courts of appeals, with the 7th Circuit remanding 36% of the asylum decisions before it and the 4th Circuit remanding less than 2% of its asylum cases in the time period studied. It appears from our study that the outcome of asylum cases may depend to a great extent on the personality, background, and prior experience of the adjudicator, rather than on the merits of the claim. To test this hunch, we correlated immigration judges' biographical information with grant rates. Perhaps the most interesting finding was that the gender of the judge appeared to be an important factor, with male judges granting asylum at a rate of 37.3% and female judges at 53.8%, a 44% higher rate. While we present various theories of gender and judging in our paper, I'm interested in hearing your thoughts on why this might be the case!

Imprisoning Immigrant Families

Last week, the Women's Commission for Refugee Women and Children released a report on the U.S. government's detention of immigrant families, including asylum seekers, in jail-like conditions, a practice notably increased by last year's construction of a 512-bed family detention facility. This expansion of the criminal/penal detention model into the immigration system is disturbing on many levels, not least of which are the international legal ramifications of separating children as young as six from their parents at night, requiring families to eat all meals in under twenty minutes, denying pregnant women adequate prenatal care, and limiting children's education to one hour per day. Perhaps this treatment is not surprising given that the United States has yet to ratify the Convention on the Rights of the Child; of the 191 U.N. member states, Somalia is the only other country to share this particular distinction. As a party to the Refugee Protocol, however, one might think the United States would pay heed to the U.N. High Commissioner for Refugees' directive to avoid detaining asylum seekers, particularly women and children. Moreover, UNHCR's proposed alternatives to detention could ensure that the release of detained families would pose little or no risk (except, perhaps, to the bottom line of the Corrections Corporation of America).