Refugees: National and International Responses

Brief Course Description

This course explores the legal and policy issues of forced migration. It is practice oriented, enabling the students to meet leading actors of the refugee scene, including staff members of the United Nations High Commissioner for Refugees Budapest Office, the Hungarian Office for Immigration and Nationality and the leading NGO-s (Helsinki Committee, Menedek). Meeting with asylum seekers and refugees is also part of the course.

In academic respects the course will analyse in detail the cornerstone documents of the present refugee regime. These include the 1951 United Nations Convention Relating to the Status of Refugees with its 1967 Protocol, and the evolving EU Common European Asylum System. The latter will be reviewed as it develops through legislative proposals and adopted documents forming part of the area of freedom, security and justice. The increasing body of human rights treaties used for the protection of asylum seekers as well as selected national legal systems and case law will also be introduced and discussed.

Knowledge of law in general or international law in particular is not a prerequisite of participation in the course. The necessary concepts will be explained.

The course's final content will depend on the students' interest to the extent that the syllabus offers alternatives and students taking the course will choose. The first ten classes are set (maximum they can be compressed into nine) but the choice remains concerning possible classes. Out of seven classes on the menu students actually taking the course can elect their preferred two/three, so the total number of classes will be 12. Classes 7 – 9 may be compressed to two occasions.

Grading: Participation and presentation(s): one third of the final grade

Final exam: two thirds of the final grade

Since this is a two credit course, there is no midterm exam.

Office hours: Unless otherwise agreed on Tuesdays after class

A slim volume II will contain the readings depending on the choice concerning the last classes.

Additional readings and the normative texts are available at: www.refugeelawreader.org. Cases are to be found at www.refugeecaselaw.org

The Convention and its status is reproduced as an intro to the reader accompanied by the basic statistical data.

The actual readings may slightly change in light of last minute findings! A collection of the relevant normative texts will be available on a CD which the students may copy for themselves.

Syllabus

Class 1 The toolkit of the refugee advocate: understanding those elements of international law which are needed to interpret and apply refugee-related documents.

Can international law defend an individual? (And a state?) Who creates the norms of international law and in what form? How to find a refugee law norm? The practical tools to identify and interpret state obligations related to forced migration.

Readings

* Akehurst’s Modern Introduction to International Law,

Seventh Revised Edition by Peter Malanczuk, Routledge, London, 1997, pp 1 - 8 and 35-61

Class 2 The notional and historic framework of migration including forced migration.

Basic concepts of migration. Statistics on its magnitude. History and causes of flight. The institutionalization of refugee protection in the interwar era and before the establishment of the UNHCR.

Readings:

* Andreas Demuth: Some Conceptual Thoughts on Migration Research

in: Biko Agozino (ed.)Theoretical and Methodological Issues in Migration research Ashgate, Aldershot, 2000, pp 21-58

* Loescher, Gil, Beyond Charity: International Co-operation and the Global Refugee Crisis, OUP, 1993, Chapter 2: "The Origins of the International Refugee Regime" pp. 32 – 55

Class 3 The creation and structure of the 1951 Convention. Fundamental concepts and principles of international refugee law

Refugee definitions, different standards of recognition. International and national definitions, their difference. Fundamental concepts (durable solutions) and the fundamental principles: non-refoulement, family unity, non-discrimination.

Readings * Lauterpacht, Elihu and Bethlehem, Daniel: The scope and content of the principle of

non-refoulement in: Feller, Erika, Türk, Volker, Nicholson, Frances (eds).: Refugee Protection in International Law UNHCR’s Global Consultations on International Protection Cambridge University press, Cambridge, 2003 87-178 (excerpts only)

Class 4 Analysis of the 1951 Convention especially the refugee definition I. (Well founded fear, agents of persecution)

Is fear an objective standard expressing the likelihood of future persecution or the subjective “angst”. Are paramilitary troops, extremist religious fighters, opposite clan members persecutors according to the Convention? Are women escaping domestic violence protected?

Readings

* UNHCR Handbook on Procedures and Criteria for Determining Refugee Status pp. 9 – 25

* Hathaway, James: The Law of Refugee Status Butterworth, Toronto, 1991

Chapter 3 Well founded fear, pp 65 –97

Class 5 Analysis of the 1951 Convention especially the refugee definition II

. (Grounds for persecution, rights of recognized refugees) Case studies

Race, religion, nationality, political opinion, belonging to a particular social group – can the meaning of these words be pinned down? Do trade union members, homosexuals, women threatened with FGM constitute a “particular social group?

Reading:

* Goodwin-Gill, Guy S: The Refugee in International Law (Second Edition)

Chapter 2: "Determination of Refugee Status" 32 - 79

* Famous cases to be reported by the students

(source: www. refugeelawreader.org and www.refugeelawcaselaw.org.)

Class 6 Exclusion from refugee status, termination of refugee status

Who are the undeserving cases how to make the difference between freedom fighters and terrorists? Should Afghan and Iraqi refugees be ready to return home? (Can they be forced if they are reluctant?)

Reading:

* Goodwin-Gill, Guy S: The Refugee in International Law (Second Edition)

Chapter 3: "Loss and Denial of Refugee Status and its Benefits" 81 – 95

* Gilbert, Geoff: Current issues in the application of the exclusion clauses.

in: Feller, Erika, Türk, Volker, Nicholson, Frances (eds).: Refugee Protection in International Law UNHCR’s Global Consultations on International Protection Cambridge University press, Cambridge, 2003 425 – 466, 470 –471, 477- 478.p

Class 7 Western European tendencies in the last 10 years. (first class)

The movements towards restrictionism. European Community and Union instruments in the field of asylum including the Amsterdam Treaty. Safe country of origin and safe third (host) country. Dublin and Schengen. Visa regimes and carrier sanctions Criticism of these trends by UNHCR and NGO-s.

Readings:

* Noll, Gregor: Negotiating Asylum The EU Acquis, Extraterritorial protection and the Common

Market of Deflection Martinus Nijhoff, the Hague, 2000, pp. 117-160

* Legomsky, Sterphen H. Secondary refugee movements and the return of asylum seekers

to third countries: the meaning of effective protection (excerpts) International Journal of Refugee Law, vol. 15 (2003) No. 4, 567-588, 673-677 pp

* Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national OJ L 50/1

Class 8 and 9 Western European tendencies in the last 10 years (continued)

The present acquis and the future The emerging standards and the tasks after the entry into force of the Amsterdam Treaty. Minimum guarantees of procedure, harmonized interpretation of the definition, mass influx (Bosnia, Kosovo) temporary protection and reception conditions. The Hague program and the (failed?) Constitutional treaty: Where will the Europe of 25 move by 2010?

Readings:

* The acquis adopted or about to be adopted

(Main elements: Council Directive on Minimum Standards in Member States for the Granting and Withdrawing Refugee Status Doc 12983/05 (Asile 24) /or its most recent pubic version/;

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12,

Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof OJ L 212/12;

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers OJ L 31/18

* Battjes, Hemme: The Common European Asylum System: The First Stage in: Jean-Yves

Carlier and Philippe De Bruycker (eds) Immigration and Asylum Law of the EU: Current

Debates, Bruylant, Bruxelles, 2005, 26 – 89. p.

* Gilbert, Geoff: Is Europe Living Up to Its Obligations to Refugees? European Journal of

International Law, vol. 15, (2004) No 5963 – 987.p.,

* European Union, Presidency: The Hague Programme Strengthening Freedom, Security and

Justice in the European Union (adopted 3 / 4 November 20004, text, with comments by Professor Steve Peers on behalf of Statewatch /excerpts/)

Class 10 The goals and work of the UNHCR Stretching too far or doing too little? The original functions of the UNHCR and its extensions. Whom can it protect and who remain defenseless?

Reading:

* Gilbert, Geoff: Rights, legitimate expectations, needs and responsibilities: UNHCR and

the new world order International Journal of Refugee Law, vol.10. (1998), No. 3, pp.350 - 388

* Feller, Erika: Challenges to the 1951 Convention in its 50thAnniversary Year

Speech delivered at the Norrkopping Seminar April, 2001

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Two classes to be chosen from the seven below

Class 11 Hungary as a case study.

The development of a new refugee regime in a transitional society. The dilemmas of the legislator in 1989 when adopting the first set of regulation and in the late nineties when adopting the new refugee law. Discrepancies between different reference groups (European Union, - UN) between deeds and words. Accession to the EU in May 2004: a source of improvement or deterioration?

Reading:

* Nagy, Boldizsár: Hungary and the Forced Migration An overview. = New Asylum Countries?

Migration Control and Refugee Protection in an Enlarged European Union Ed. Rosemary Byrne, Gregor Noll and Jens Vedsted-Hansen. The Hague, Boston, London, Kluwer Law international, 2002, 138-199

Classes 12 and 13 Site visit. (In the past it was Bicske but may be Debrecen time and resources permitting). The group will go to places where asylum seekers and refugees live. We’ll talk both to them and the representatives of the authorities.

Reading: see class 11 + students are expected to collect their own "file" on a few countries of origin, or on comparable new EU member states

Class 14 Internal Displacement

Many of the forced migrants remain within the borders of their country. Their plight is no smaller than that of the refugees. Recently increasing attention surrounds this issue. We'll survey the present state of affairs

Readings:

* UNHCR, The State of the World’s Refugees: 1997-98, Chapter 8:

“Internal conflict and displacement,”

* Office of the Coordinator of Humanitarian Affairs (UN), Guiding Principles on Internal Displacement (1998).

Class 15 NGOs serving the asylum seekers and the refugees.

The long road from the application to the integration. Open conversation with representatives of the Hungarian Helsinki Committee who run a refugee assisting lawyers' network and Menedek, which is the main refugee assisting NGO in matters of social assistance and integration.

Class 16 The refugee experience: the social and psychological aspects of being a forced migrant.

The state of the (refugee’s) mind. Credibility and PTSD. Individual strategies for coping with the personal challenge collective responses of the society. Conditions of reception and treatment in selected countries.

Reading

* Herlihy, Jane: Evidentiary assessment and psychological difficulties in: Noll, Gregor (ed).: Proof, Evidentiary Assessment and Credibility in Asylum Procedures, Martinus Nijhoff, Leiden, 2005, 123 – 137p.

* Giorgia Doná and John W. Berry: Refugee acculturation and re-acculturation, in: Ager, Alastair, (ed) Refugees Perspectives on the Experience of Forced Migration Pinter, London & New York, 1999, 169 – 194

Class 17 What future for the refugee regime(s) (Winding up class).

Readings:

* Nagy, Boldizsár: Turn Back to Look Ahead? Central European Observations on the Future of Regimes Affecting Refugees Human Rights and Forced Displacement Ed. Anne F Bayefsky, Joan Fitzpatrick. The Hague, Boston, London, Martinus Nijhoff, 2000. 245-261.p

* Crisp Jeff: A new asylum paradigm? Globalization, migration and the uncertain future of the international refugee regime New issues in refugee research, Working paper No. 100, UNHCR, Geneva, December 2003.