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Increasingly, collective actors in Europe, such as in the Netherlands and Italy, turn to litigation as the preferred strategy to attain their goals. Both at the national level and at the European level, civil society organisations (CSOs) are active in high‐profile cases, for example, in the field of asylum law. These CSOs operate in a different national political and legal system but do have similar European‐level opportunities. However, the extent to which European Union (EU) law is mobilised differs per CSO. This begs the following key question: Why do some CSOs mobilise EU law more frequently than others? Using empirical data, this article attempts to uncover what factors are relevant for four CSOs from Italy and the Netherlands whether to mobilise EU law or not. Most importantly, the article concludes that the framing of EU legal opportunities by the CSOs is considered to be relevant in (non‐)mobilisation of EU law. [ABSTRACT FROM AUTHOR]

Legal Mobilization in the Field of Asylum Law: a Revival of Political Opportunity Structures? Increasingly, we see collective actors in the field of asylum in Europe turn to litigation as the preferred strategy to attain their goals, which is a form of legal mobilization. Both at the national and European level, non-governmental organizations (NGO) are active in high-profile cases. These NGOs operate in a different national political and legal system, but do have similar European-level opportunities. Next to that, current literature suggests a possible relevance of organizational factors, such as resources, to explain the use of these legal mobilization strategies. By looking at NGOs with different levels of legal mobilization in two national contexts, a cross-case comparison is made in this article to explain what external and/or internal factors are relevant in making NGOs 'turn to the courts'. This article draws on empirical data to establish what drives four NGOs from Italy and the Netherlands to mobilize the law. This data is compared to existing literature on legal mobilization to show a potential revival of a theory that has been left behind over the last years: research on Political Opportunity Structures. This strand of literature emphasizes the importance of possibilities, constraints and threats at the (national) political level that drives NGOs in their strategy choice. [ABSTRACT FROM AUTHOR]

This article examines the construction of identity and the 'particular social group' (PSG) under the 1951 Refugee Convention. In particular, it analyses the ways in which the identity of a non-binary asylum claimant is discussed in the Mx M case in the UK, and what the implications of this might be for the project of queering the PSG. The article identifies four central challenges for queering and navigating the PSG, informed by Judith Butler's notion of a 'double movement'. These are the demand for recognition; the threat of erasure and/or misrepresentation; the contestation of universal, objective and/or essentialist categories; and the inseparability of violence from resistance. The article argues that strategic flexibility offers the greatest potential for individual claimants and for the wider project of queering the PSG, rather than trying to resolve the challenges by consistently adopting any single approach to PSG construction. [ABSTRACT FROM AUTHOR]

The 1889 International Penal Treaty of Montevideo created international asylum law in South America. This article explores the historical memory of South American asylum law, in part hidden behind an image of the region as one producing exile and the rise of the European regime since the interwar period. It is, however, its own particular tradition of asylum, linked to the recognition of diplomatic asylum and the importance of exile in the political order of the region, which translated into its early and sustained codification as a category of international law, which was extended to all of Latin America in the 20th century.

This article avails an autoethnography of the authors' attempt to construct a post hoc intervention machine learning (ML) system responsive to the problem of discrimination in asylum law decisions. In the article we revisit the conjunction of law as a slow hermeneutic, against the fast-paced pull of AI and commercial imperatives to ask whether a ML-driven post hoc intervention system such as the one set up in the research project reduces the overall risk of discrimination emerging from human discretion in legal decision making on asylum. We conclude that a ML-driven 'anti-discrimination machine' will displace rather than reduce that overall risk. We warn that similar attempts at using ML as part of legal decision making, decision support, and post hoc interventions, in international law and beyond, may need to take seriously the risks of human discretion embedded in ML design and data selection. [ABSTRACT FROM AUTHOR]

Copyright of Saber, Ciencia y Libertas is the property of Saber, Ciencia y Libertad and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of German Journal of Forced Migration & Refugee Studies / Zeitschrift für Flüchtlingsforschung (Z'Flucht) is the property of Nomos Verlagsgesellschaft mbH & Co. KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The aim of this paper is twofold: first, it seeks to provide a better understanding of lawyers' ethics in practice in the field of publicly funded asylum law. It does so by examining Dutch asylum legal aid lawyers' moral reasoning in respect of the ethically challenging issue of 'the hopeless case', employing a version of Christine Parker's four approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and relational lawyering. Second, it aims to demonstrate the applicability of Parker's taxonomy, developed in a common law country (Australia), to a civil law country (The Netherlands). This paper shows, in line with what Parker argued, that lawyers may apply a combination of approaches – different ethical considerations carry different in weight in different circumstances. It provides illustrations of situations in which approaches coexist and compete and the circumstances in which one prevails over the other in the area under review. [ABSTRACT FROM AUTHOR]

Institutionalist scholars argue that international rights norms, judicial autonomy and discourses of immigrant nationhood constrain shifts to harsher immigration policies in liberal democracies, particularly settler societies. The Trump presidency and the Liberal–National Coalition government in Australia during the same period are occasions to test whether those norms functioned as expected in two paradigmatic country cases. Both governments attempted to undermine judicial autonomy, the illegitimacy of ethnic and religious selection of immigrants, the rights of detained children and families, and the principle of non-refoulement. A new institutionalist analysis of attempted norm-busting in each country specifies which norms were effective constraints. International legal and political constraints were weak. Domestically, norms obliging the protection of children were more effective than norms related to adults. Discourses favouring immigrant nationhood and opposing discrimination resonated, but were confronted by equally powerful discourses of insular nationalism and security that promoted restriction. While the judiciary moderately constrained new policies, particularly in the US, in neither country did the judiciary fully act in line with dominant theoretical expectations, because of both structural and normative weaknesses. [ABSTRACT FROM AUTHOR]

Copyright of Hispania Sacra is the property of Consejo Superior de Investigaciones Cientificas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Taiwan is considered to be one of the most progressive countries in Asia but has no asylum law. Does it need one? Many in Taiwan, including officials and politicians, claim that the regulations that are currently in place are sufficient. There are, however, some people in Taiwan who require protection, and the government is not able to respond effectively in the absence of an asylum law. The author has identified several different groups in Taiwan that would benefit from an asylum law — from Hong Kong protesters facing persecution, through Chinese dissidents or descendants of the ROC army from the Thai-Myanmar border region, to Turkish people with revoked passports; grouped into two major categories — persons from the PRC, Tibet, Hong Kong, and Macau (group 1) and persons from other countries (group 2). The draft of the asylum law has been sitting in the Parliament for 14 years, and the reason for it not yet having passed is the "China Factor." The Taiwan-China relationship thus cannot be disconnected from this issue, and the article discusses the three most common concerns with regard to this in the Taiwanese society. While these are legitimate concerns, they could be solved by adopting a dual asylum system dealing with group 1 and group 2 separately. Compared to UN member countries, Taiwan is on its own when it comes to the asylum issue, although adopting an asylum law is part of a broader push to bring Taiwan's legal system in line with international human rights law. The article provides a comprehensive description and analysis of the refugee situation in Taiwan; it is based on document studies and interviews conducted in Taipei in autumn 2020. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 7-15 | European Forum Insight of 29 March 2021 | (Table of Contents) I. Introduction. - II. Facts and context. - III. Judgment of the Grand Chamber. - IV. Comment. | (Abstract) In December 2020, the Grand Chamber of the CJUE has confirmed that Hungary has failed to fulfil its obligations under EU law in the area of procedures for granting international protection and returning illegally staying third-country nationals. The judgment in the case Commission v Hungary (case C-808/18 ECLI:EU:C:2020:1029) is another landmark judgment concerning the Common European Asylum System (CEAS). The Court's conclusions give clear hints about the limits of a future system, as proposed by the New Pact on Migration and Asylum.

The aim of the article is to analyze the changes introduced recently (2018-2019) in the national migration law of the selected Member States: Italy, Poland and Germany and to examine whether there exist guarantees of the right to migration security and guarantees for the realization of the principle of migration security priority at the level of national legislation. The second problem under investigation concerns the fact whether the changes introduced in the legislation recently ensure a higher level of migration security in comparison with the previous regulations. Finally, the analysis carried out in the current article is intended to demonstrate whether national law protects the rights of migrants and the receiving society in equal measure or whether certain fundamental rights which migrants are entitled to are at risk of being derogated due to the necessity of providing security to migration processes and the protection of the receiving society. The paper analyzes in detail the legislative initiatives and amendments introduced in migration and refugee law in Germany, Italy and Poland. What is more, the author gathers and analyzes the most representative national case law concerning the asylum and return migration.

Refugees often find themselves in precarious situations when trying to claim asylum. This paper examines the changing nature of legal advice in Switzerland, where a new law is drastically altering the asylum regime to a more centralised and tightly managed procedure. This reform directly affects the refugee advice community, which sees an increase in state funding opportunities paired with a higher demand for quality standards and 'managerial' practices. These changes reveal frictions between advice organisations and challenge long-standing agreements and collaborations. (Re-)emerging fault lines concern whether to collaborate with or oppose the Swiss asylum regimes, and whether to assist with asylum appeals with low chances of success. Structurally and individually, pre-existing notions of 'good advice' are being challenged and threaten to divide the advice community into political advocates and pragmatic caseworkers. The changing nature of advice thus brings with it both pitfalls and new opportunities that require careful examination. [ABSTRACT FROM AUTHOR]

The article deals with the fundamental problems that emerged on the territory of the Czech Republic during the implementation of the asylum procedure throughout the migration crisis in the years 2015 to 2019. Problematic issues related primarily to the detention of migrant asylum seekers were identified by studying the key decisions of national and international courts. The first problematic point was the amendment to the Asylum Act, which required the courts to discontinue proceedings on the review of detention orders after the foreign national was released from detention. Due to the conflict with EU law and the impossibility to claim damages for unlawful detention, this amendment was finally annulled by the Constitutional Court. The second problem was that the factual conditions for asylum seekers in the EU Member State where the asylum seeker was to be transferred for the purpose of processing his/her asylum application, were not examined. In this regard, the situation had since been rectified and the administrative authorities and courts of the Czech Republic already take this aspect into account when deciding whether an asylum seeker detained on the territory of the Czech Republic is to be transferred to the country where he/she applied for asylum. The most serious problem is so far incomplete transposition of the Procedures Directive, in particular Article 46 of the Procedures Directive, which requires from the court to review the decisions on asylum in full jurisdiction and could possibly grant asylum itself. However, this requirement does not correspond to the concept and system of administrative courts in the Czech Republic and would require a significant and costly change. The last issue identified was the poor implementation of the Dublin III Regulation, involving not setting serious risk of absconding of an asylum seeker as a precondition for his/her detention directly in the law.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 587-595 | European Forum Insight of 20 May 2020 | (Table of Contents) I. Introduction. - II. Etat de faits et contexte. - III. Le jugement. - IV. Commentaire. | (Abstract) In the case Commission v. Hungary, Poland and Czech Republic (judgment of 20 April 2020, joined cases C-715/17, C-718/17 and C-719/17), the Court of Justice clarified the scope of Art. 72 TFEU in the context of relocation of applicants for international protection during the 2015 "refugee crisis". The Court held that it is not possible to rely on the article in a global way. Instead, if they would like to refuse relocation of an applicant, Member States have to verify on a case-by-case basis whether that individual represents a risk for their public order or national security. Thus, the decision to relocate applicants for international protection from Greece and Italy in 2015 has not been complied with. The judgement is of great importance for the future of the Common European Asylum System.

This paper deals with the principle of subsidiarity in asylum law. It exposes some of the most important ‘push’ factors that have been considered by the European Union (EU) as arguments for the centralisation of asylum law. Through the application of an economic approach, this text examines the need for harmonization of asylum standards to reach the goal established in Article 5 of the Treaty on European Union. An economic methodology is used to investigate the application of the subsidiarity principle by considering some of the most important economic criteria for both centralisation and decentralisation, and by applying the findings to the asylum law. Specifically, this paper considers the Tiebout model, the problem of the ‘race to the bottom’, the reduction of transaction costs, and the importance of the protection of refugee human rights. These theories are commonly used in the cases of a specific issue with a transboundary nature, which produces [negative] international externalities. In addition, they reflect the significance of equal conditions within the EU Member States as well as the role of the EU as a sui generis organisation protecting human rights. It should be noted that this paper does not deal with the basic normative question of whether or not refugees deserve protection, but it aims to expose the advantages and disadvantages of an EU asylum policy. In its conclusion, the paper discusses the advantages of a centralised EU policy that also allows, within certain conditions, some type of competition between the Member States.

‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as part of the VULNER project (Belgium and Italy), this contribution establishes a typology of the various legal and bureaucratic functions that ‘vulnerability’ has received in the EU. It also reflects on the ‘juridification’ trend at play, the implementation challenges that have emerged as a result, and how they are currently being addressed in the EU.

In this study our aim is to make a comparison between the refugee concept according to the Convention Relating to the Status of Refugees from 1951 and its Protocol from 1967 which represent the international approach and the refugee concept according to European Law ( the EU Treaties, EU Directives, the Dublin Regulation). This parallel will present first of all the similarities between the international approach and the European approach such as : the definition of a refugee; the conditions required to obtain refugee status; the definition of the term injury; same request for international protection; same parameteres used to verify the existence of persecution; the conditions of cessation and the non refoulement principle. Second of all the we will present the differences between the international approach and the European approach. European law completes the Convention and introduces new principles such as: subsidiary protection; temporary protection; different degrees of protection offered to refugees; the term persectution is defined ; the motivation behind persecution is defined ; recognising as persecution also the acts toward gender and children. Furthermore the cessation clause and the exclusion clause are defined differently in European law in comparison to the definition given by the Convention Relating to the Status of Refugees from 1951 and its Protocol from 1967. Lastly we will conclude with a set of recommendations for both the Convention Relating to the Status of Refugees as well as for the European asylum system.

There still is a lack of unity among EU Member States on asylum issues, both, in the practical application of the existing legal framework and in the direction of the common asylum system. Latvia is subject of both international and European Union common asylum conditions. Any changes in the scale of the European Union affect Latvia, and the world situation in the field of refugees also affects our country. The aim of this article is to analyse the current situation of asylum in the EU, touching upon main trends in the world of refugees, and to identify the main problems in the existing asylum procedure in the EU. In order to achieve objectives, following research methods were used: monographic research of theoretical and empirical sources in order to analyse and evaluate various asylum domain information, analytical method in order to acquire legislative content and verities, comparative method in order to discover differences in legislation of asylum procedure in EU countries, systemic method in order to disclose interconnections in legislation, descriptive statistics method and correlation analysis in order to analyse process of asylum procedure and determine interconnections in asylum procedure time frame between legislation and practical instances in EU countries. [ABSTRACT FROM AUTHOR]

This article focuses on Refugee Status Determination (rsd) procedures, in order to understand the relationships among language, translation / interpreting, evidentiary assessment, and what we call the ‘listening state’. Legal systems have only recently begun to consider whether adjudicative processes ought to take place in multiple languages concurrently, or whether the ideal procedure is to monolingualize evidence first, and then assess it accordingly. Because of this ambivalence, asylum applicants are often left in the ‘zone of uncertainty’ between monolingualism and multilingualism. Their experiences and testimonies become subject to an ‘epistemic anxiety’ only infrequently seen in other areas of adjudication. We therefore ask whether asylum applicants ought to enjoy a ‘right to untranslatability’, taking account of the State's responsibility to cooperate actively with them or whether the burden ought to remain with the applicant to achieve credibility in the language of the respective jurisdiction, through interpretation and translation.

For several years, South Africa has been a world leader in deporting people en masse. This paper analyses the contradictions that exist between South Africa's progressive asylum and refugee laws and its very rigid practice of mass deportation. These contradictions are instrumentalised by the Department of Home Affairs as part of a policy to control and manipulate migration, often executed by the police in a violent and arbitrary manner; the authorities primarily target people from Mozambique and Zimbabwe. The article argues that the current state of affairs can only be fully understood within historical context. Therefore, it is important to keep in mind that rigid controls of immigration and the practice of deportation were established during the colonial period and institutionalised during apartheid. [ABSTRACT FROM AUTHOR]

This brief report discusses ethical-legal considerations in providing legal aid to refugees internationally. With the help of a case study, it considers the challenges lawyers and other legal aid providers face in assisting clients who are alleged to have committed immoral acts. It highlights how the failure to elevate professional ethics over personal morality in such situations can have serious human consequences. [ABSTRACT FROM AUTHOR]

Copyright of Journal of Public Law / Zeitschrift für Öffentliches Recht is the property of Verlag Oesterreich GmbH and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Since its establishment, the Common European Asylum System tries to regulate asylum and related issues commonly within the E.U. territory. This paper focuses mainly on the current challenges as a result of misinterpretation of the international principles and norms in the E.U. law concerning the situations of the refugees from armed conflict regions. The methodology used here is the New Haven School which recognizes law as a continuing process of authoritative decision. The New Haven approach goes beyond the black letter of the law, the law in books. The New Haven School of Jurisprudence presents a constructive interdisciplinary approach to solving society's problems on the international and domestic plane. The first part will focus on the problem where the root causes for Europe's challenges in refugee law will be delimitated. The second part will give the stage for each claimant as a part of the "community" and define their values. The third part will exclusively focus on the past decisions, their conditioning factors, current law and decision trends within Europe and how the international as well as E.U. law is implicated domestically. The last two parts will focus on the appraisals, prediction of future trends, and they will further demonstrate how the Dublin Regulations transformed Europe's migration challenge into a legal crisis for the Common European Asylum System and what the new Swiss Model promises instead. [ABSTRACT FROM AUTHOR]

Asylum practitioners often work with traumatised persons and hear stories of persecution and other traumatic narratives in their everyday work. This study sought to assess the emotional impacts of working as an asylum practitioner, and how these effects could affect a practitioner's performance in their role or their relationship with their clients. This qualitative study consisted of 10 semi-structured interviews with asylum practitioners in England and the Republic of Ireland. An inductive thematic analysis was used to analyse data. A number of key themes emerged, including participants describing having experienced or witnessed burnout and other negative emotional effects caused by working in this role. Practitioners also described having experienced feelings of detachment from clients, as well as in some cases cynicism and disbelief of their narratives. However, these emotional states were seen to engender positive as well as negative attributes in the delivery of legal representation. Heavy caseloads, the futility of working in a system where some clients have little chance of success, cuts to legal aid, as well as societal stigmatisation of claimants were also cited as providing challenges for practitioners. A complex understanding of this role emerged in times of austerity, where anti-immigration sentiment is common within society. [ABSTRACT FROM AUTHOR]

This article seeks to map and explain the extent to which national legislators constrain discretion contained in European Union directives during transposition. To this end, we use standard hypotheses from the domestic delegation literature regarding the necessity of policy conflict and transaction costs. Our empirical approach is based on a focused comparison of the transposition of several provisions of the Asylum Reception Conditions Directive in France, Germany, and the Netherlands. In order to capture content‐specific aspects of discretion we employ an innovative measurement tool, the so‐called Institutional Grammar Tool. The study shows that while all three states formally comply with the directive, the level of European Union discretion delegated to practical implementers varies considerably across the cases. Standard delegation theory cannot fully explain the patterns. Instead, existing delegation theories have to be adjusted to the transposition context, by accounting for domestic preferences regarding the status quo. [ABSTRACT FROM AUTHOR]

This policy note highlights issues concerning the right to seek asylum raised by a panel of migration experts in Sweden during the annual Swedish Forum for Human Rights in 2016. The discussion took place following Swedish asylum and immigration policy taking an increasingly restrictive turn. Two main themes are identified. The first theme encompasses views on the relationship between the legal framework's increased restrictiveness and discourses of securitization and explores the possibilities of moving beyond this pattern. The second theme highlights that different professionals and other staff engaged with asylum seekers and refugees can retain a (legal) space to resist repressive activities that challenge their professional code of conduct and personal integrity. [ABSTRACT FROM AUTHOR]

Asylum law and policy are tightly connected to migration, which remains an omnipresent phenomenon in the globalized world and an alarming issue of the 21st Century. Some of the European countries including Germany, Austria and Switzerland have been dealing with immigrants for more than a century. In other countries, such as Slovakia, it is a relatively new phenomenon. The current study aimed to provide a comparative insight by pointing out political, institutional and legislative frameworks of asylum in the German-speaking countries and in Slovakia, and to highlight particularities of the asylum procedures and legal terminology of the respective countries in the context of the European law. The analysis and legal comparison showed that following EU legislation, the countries had undergone legislative changes as well as establishing a number of new institutions, with specifics stemming from differences in preexisting asylum and migration policies. This process was determined mainly by the increased pressure on the migration systems, which reflected in the need to improve the efficiency of the migration system management. [ABSTRACT FROM AUTHOR]

In this article, I will analyse how the Italian reception system has been transformed after the ‘refugee crisis’, showing how the change cannot be reduced to a mere expansion of the reception capacity. I will do this by tracing a genealogy of the Italian reception system and highlighting its main features before and after the ‘refugee crisis’. My hypothesis is that the ‘refugee crisis’ and the sense of emergency it created has stimulated the emergence of distinct segments within the Italian reception system functioning according to radically different philosophies and objectives. This, in addition to increasing the overall lack of consistency of the system, is having a profound impact on the rights of asylum seekers, greatly increasing the risk of their spatial and social segregation within Italian society. [ABSTRACT FROM AUTHOR]

The U.S.-led global LGBT human rights campaign, formalised on International Human Rights Day 2011, sutures human rights policing with a politics of protection. Centred on a singular LGBT victim of violence, the campaign’s multiple projects legitimate military and financial intervention under the auspices of human rights. This article examines the regulatory production of globalised LGBT rights through the nexus of international LGBT human rights/hate crime laws, U.S. asylum law, and equal protection treatment of sexual orientation. I argue that the juridical and ideological frameworks that guide state action in each of these areas converge in the construction of an immutable LGBT identity that is the object of racialised, culturally othered violence. This rendering of sexual difference through the flattening of culture elides structural violence and advances human rights imperialism. [ABSTRACT FROM AUTHOR]