Suchergebnisse

The idea that a claim for international protection can be rejected on the basis that the claimant behave 'discreetly' in their country of origin has remained resilient in asylum claims based on sexual orientation, but also other grounds of claim. This is significant because requiring an asylum-seeker to forgo the reason for which they are persecuted questions the very rationale of refugee protection. This book represents the first principled examination of concealment in refugee law. Janna Wessels connects the different strands of the long-standing debate in both common and civil law jurisdictions and scholarship concerning the question of whether and under which circumstances a claimant must conceal to avoid persecution. In so doing, Wessels uncovers a fundamental tension at the core of the refugee concept. By using sexuality as a lens, this study breaks new ground regarding sexual orientation claims and wider issues surrounding the refugee definition

In the field of refugee law, ‹discretion› reasoning – that is, the assumption that asylum seekers can be returned to their countries of origin on the basis that they can avoid persecution by behaving ‹discreetly› and thus escaping the attention of the persecutors – is a legal problem where legal analysis seems to get stuck. Once there appears to be a doctrinal solution to settle the problem, it reappears in a different form. This Forumsbeitrag introduces ‹legal discourse analysis› as an approach to tackle such perennial legal problems. Inspired by critical legal and queer scholars, and drawing on elements of deconstruction and discourse analysis, legal discourse analysis does not try to find the solution to the puzzle. Instead, it has the distinct aim of tracing how doctrine is constructed, or how ‹right› answers are created. On that basis, it draws out the underlying tensions that enable these answers. The Forumsbeitrag first retraces the steps developed to address ‹discretion› reasoning in refugee law, and then extrapolates and generalises ‹legal discourse analysis› as an approach to explore its usability for other perennial doctrinal problems, both within refugee and migration law, and beyond.

The idea that a claim for international protection can be rejected on the basis that the claimant behave 'discreetly' in their country of origin has remained resilient in asylum claims based on sexual orientation, but also other grounds of claim. This is significant because requiring an asylum-seeker to forgo the reason for which they are persecuted questions the very rationale of refugee protection. This book represents the first principled examination of concealment in refugee law. Janna Wessels connects the different strands of the long-standing debate in both common and civil law jurisdictions and scholarship concerning the question of whether and under which circumstances a claimant must conceal to avoid persecution. In so doing, Wessels uncovers a fundamental tension at the core of the refugee concept. By using sexuality as a lens, this study breaks new ground regarding sexual orientation claims and wider issues surrounding the refugee definition.

The article takes a feminist look at refugee law. The refugee concept, which was originally designed for classic political – and male – dissidents, has undergone a profound transformation in recent years. These changes are neatly reflected in the central claim of second-wave feminism: the personal is political. The closing of the public/private divide has led to a fundamental change, such that the definition of "refugee" is now understood to cover gender-related persecution. Following this great success, however, feminist engagement with refugee law diminished considerably. The article elaborates on remaining challenges and shows that third wave feminism also has some important lessons for the further development of refugee law.

One of the most controversial issues concerning sexuality-based asylum claims in recent years has been "discretion" reasoning—the notion that a claimant can avoid persecution by behaving "discreetly." Though often challenged, such reasoning has remained resilient in the English-speaking common law jurisdictions, upon which research has mainly focused to date. This article broadens the debate by undertaking a detailed exploration of "discretion" reasoning in sexuality-based asylum claims in Germany and France, two of the major European civil law jurisdictions. In the first part, the article demonstrates that in very different forms "discretion" logics have traditionally also affected sexuality-based asylum claims in each of these jurisdictions. The second part of the article explores the effects that the Europeanization of asylum and the rejections of the "discretion" requirement by the UK Supreme Court in 2010 and the Court of Justice of the European Union in 2012 and 2013 have had on established French and German jurisprudence. The analysis reveals that rather than ending "discretion" reasoning in Germany and France, these developments have transformed it, such that it persists in a different shape. Much like in the common law jurisdictions, with all of its problematic implications, "discretion" reasoning remains deeply entrenched and resistant in German and French decision-making practice concerning sexuality-based asylum claims.

The Council Directive 2001/55/EC on temporary protection in the event of a "mass influx" of displaced persons provides for a mechanism that shall lead to collaborative efforts of the European Union Member States in dealing with persons seeking protection in Europe. In spite of the current "refugee crisis", not even those Member States which have admitted the largest numbers of persons, such as Germany, have made any attempts to trigger this Directive. The article first assesses the applicability of the Directive with respect to the surge in arrivals in 2015, and then analyses the reasons for its non-application on the basis of rational choice theory. It concludes that the benefits resulting from an application of the Directive are minimal while transaction costs to reach agreement in the Council are high. Thus, those countries affected by "mass influx" lack the incentives for triggering its mechanisms, and the Directive can be considered a failed instrument.

Two complementary processes sit at the heart of this study: The increasing density of obligations under Human Rights law that are recognized as relevant to migration, and the new role of the EU as a powerful player in migration policy. This has resulted in an increasing number of instances where EU migration policies potentially conflict with Human Rights. The purpose of the present study is to identify these instances, outline the applicable legal standards, and provide recommendations to ease the tension.

Abstract
This article argues that the Global Compact for Safe, Orderly and Regular Migration (GCM) is not only a breakthrough for a rights-based approach in international migration governance but also an asset to the international protection system. By way of example, three key issues of the European Union's (EU) Common European Asylum System are discussed: access to protection, reception conditions, and detention. These examples illustrate that faithfully implementing the Migration Compact would require the EU and its Member States to make significant changes in their asylum policy.
The parallel emergence of the Global Compact on Refugees (GCR) may suggest otherwise – namely, that the GCM is not relevant for refugees and other protection-seeking migrants. However, the legal construction that best serves the object and purpose of both documents is the assumption that the two Compacts have an overlapping scope of application. The GCM addresses specific protection needs of protection-seeking migrants who are not covered by the 1951 Refugee Convention, and it serves as an umbrella, strengthening the core human rights of migrants regardless of their status, including protection-seeking migrants. Hence, the GCM improves the international protection system as a whole and should be acknowledged as such.