International Refugee Law Hong Kong University Dr Penelope Mathew

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International Refugee LawHong Kong UniversityDr
Penelope Mathew

• Session 5 Refugee Rights

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Restrictive trends in West mean refugee rights
more important

• Prior to end of Cold War, Western countries
  commonly granted permanent residence accordingly
  most jurisprudence concerned the definition
• Increasing trends towards temporary and
  complementary forms of protection so it is more
  important to think about refugee rights

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Historical reasons for the charter of rights

• Pre 1945 nationality linked individuals to
  international system
• Refugees lost protection of state of nationality
• Refugee Conventions object and purpose to
  revise and consolidate previous international
  agreements relating to the status of refugees and
  to extend the scope of and the protection
  accorded by such instruments by means of a new
  instrument.

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Relevance of the International Bill of Rights

• Refugee Convention refers to UDHR
• UDHR refers to everyone
• UDHR formally non-binding
• UDHR offers only weak protection in the are of
  most vulnerability for refugees Article 14
  speaks of the right to seek and enjoy asylum
  but imposes no obligation

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Convention straddles aliens law and human rights
law

• Convention rights conditioned by level of
  attachment to state of refuge (eg physical
  presence v long term residence)
• Standard of protection varies from level of
  protection due to aliens through to an absolute
  standard that may be even greater than that owed
  to citizens under domestic law

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Rights with no level of attachment

• Article 7(1)
• Article 20
• Article 22
• Article 12
• Article 13
• Article 16(1)
• Article 25
• Article 29
• Article 30
• Article 34

• Exemption reciprocity
• Rationing
• Education
• Personal Status
• Property
• Court access (expressly states on the territory
  of all Contracting States)
• Administrative Assistance
• Taxation
• Transfer of assets
• Facilitation of naturalisation

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Rights with extra-territorial application

• Article 33
• Article 3

• Obligation of non-refoulement
• Non-discrimination in relation to rights
  guaranteed by the Convention with respect to
  race, nationality or country of origin

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Physical Presence

• Article 4
• Article 27
• Article 31(1)
• Article 31(2)

• Freedom of religion
• Identity papers
• Penalties for illegal presence
• Minimum freedom of internal movement

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Lawful Presence

• Article 18
• Article 32
• Article 26

• self-employment
• Expulsion
• Freedom of internal movement

10
Lawful Stay

• Article 15
• Articles 17 19
• Articles 21 23
• Article 24
• Article 14
• Article 28

• Freedom of Association
• Wage-earning employment/ membership of profession
• Public housing and welfare
• Protection of labor and social security
  legislation
• Intellectual property rights
• Entitlement to travel documents

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Durable Residence

• Article 16(2)
• Article 7(2)

• Legal aid and national treatment concerning
  posting of security for costs in a court
  proceeding
• Exception from legislative reciprocity and any
  restrictive measures imposed on the employment of
  aliens (3 years residence)

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Is the general standard adequate?

• General standard is that relating to aliens

• Article 7(1)

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Aliens generally

• Property (most favourable possible and at least
  the same as aliens generally)
• Self-employment (at least)
• Professional Practice (at least)
• Housing (at least)
• Secondary and higher education (at least)
• Internal freedom of movement (aliens in the same
  circumstances see Art. 6 for definition.)

• Article 13
• Article 18
• Article 19
• Article 21
• Article 22
• Article 26

14
Domicile

• Personal status

• Article 12

15
Most Favoured Nation Status

• Freedom of Association
• Wage-earning employment

• Article 15
• Article 17

16
National Treatment

• Religious Freedom (better than national
  treatment, in fact)
• Intellectual Property Rights
• Access to Courts, including legal aid
• Rationing
• Primary education
• Welfare
• Labour legislation and social security
• Tax

• Article 4
• Article 14
• Article 16
• Article 20
• Article 22(1)
• Article 23
• Article 24
• Article 29

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Non-comparative/absolute rights

• Administrative Assistance
• Identity papers
• Travel documents
• Non-penalisation
• Non-refoulement
• Pre-existing rights flowing from personal status
• Transferability of assets
• Facilitation of naturalisation

• Article 25
• Article 27
• Article 28
• Article 31
• Article 33
• Article 12
• Article 30
• Article 34

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Exercise the right to work

• Right to wage-earning employment requires lawful
  stay (Article 17 Refugee Convention). What
  historical reasons would be behind this standard
  and what kind of safety-net is there for other
  refugees?
• What do you think of the standard of protection
  for the right to wage-earning employment (most
  favoured foreigners)?
• How does RC compare with Art 6 ICESCR?

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Exercise freedom of association

• Compare Article 15 Refugee Convention with
  Article 18 of ICCPR and Article 8 ICESCR which
  provisions offer more extensive protection?

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Article 2 General Obligations

• Every refugee has duties to the country in which
  he finds himself, which require in particular
  that he conform to its laws and regulations as
  well as to measures taken for the maintenance of
  public order.
• Article 29 UDHR
• (1) Everyone has duties to the community in which
  alone the free and full development of his
  personality is possible.
• (2) In the exercise of his rights and freedoms,
  everyone shall be subject only to such
  limitations as are determined by law solely for
  the purpose of securing due recognition and
  respect for the rights and freedoms of others and
  of meeting the just requirements of morality,
  public order and the general welfare in a
  democratic society.
• (3) These rights and freedoms may in no case be
  exercised contrary to the purposes and principles
  of the United Nations.

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Article 5

• Nothing in this Convention shall be deemed to
  impair any rights and benefits granted by a
  Contracting State to refugees apart from this
  Convention.

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Article 9

• Nothing in this Convention shall prevent a
  Contracting State, in time of war or other grave
  and exceptional circumstances, from taking
  provisionally measures which it considers to be
  essential to the national security in the case of
  a particular person, pending a determination by
  the Contracting State that that person is in fact
  a refugee and that the continuance of such
  measures is necessary in his case in the
  interests of national security.

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Article 10

• 1. Where a refugee has been forcibly displaced
  during the Second World War and removed to the
  territory of a Contracting State, and is resident
  there, the period of such enforced sojourn shall
  be considered to have been lawful residence
  within that territory.
• 2. Where a refugee has been forcibly displaced
  during the Second World War from the territory of
  a Contracting State and has, prior to the date of
  entry into force of this Convention, returned
  there for the purpose of taking up residence, the
  period of residence before and after such
  enforced displacement shall be regarded as one
  uninterrupted period for any purposes for which
  uninterrupted residence is required.

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Article 11

• In the case of refugees regularly serving as
  crew members on board a ship flying the flag of a
  Contracting State, that State shall give
  sympathetic consideration to their establishment
  on its territory and the issue of travel
  documents to them or their temporary admission to
  its territory particularly with a view to
  facilitating their establishment in another
  country.

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Case Study Australias detention regime

• S 189 Migration Act requires detention
• Bridging visas available in limited circumstances

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2005 changes

• s197AB residence determinations by Minister
• s4AA Parliament affirms as a principle that a
  minor shall only be detained as a measure of last
  resort
• s195A Ministerial discretion to issue a visa in
  detention
• S 486O over 2 years detention ombudsmans
  report

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Compliance with international law

• What provisions of the Refugee Convention and the
  ICCPR are relevant?
• Does Australias detention policy comply with
  these provisions?

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Arbitrary Detention

• Article 31 Refugee Convention not necessary
  see ex com 44 and UNHCR guidelines on detention
• Article 9 ICCPR arbitrary if not tailored to
  the individuals circumstances line of cases
  from A v Australia

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Case Study temporary protection visas in
Australia

• Visa subclass 785 available for persons who
  arrive without authorisation on the mainland.
• Other forms of temporary visas for persons caught
  by the Pacific Solution 487 and 451.
• Identify possible violations of Refugee
  Convention and/or 2 Covenants

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Permanent v temporarysocial security

• access to the full range of social security
  benefits

• Access only to Special Benefit for which a range
  of eligibility criteria apply. Ineligible for
  Newstart, Sickness Allowance, Parenting Payment,
  YouthAllowance, Austudy and a range of other
  benefits.

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Permanent v temporaryeducation

• Same access to education as any other permanent
  resident.

• Access to school education subject to state
  policy. Effective preclusion from
• tertiary education due to imposition of full fees.

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Permanent v temporarySettlement support

• Access to full range of DIMA settlement support
  services.

• Not eligible for most DIMA funded services such
  as MRCs and ethnospecific community welfare
  agencies. Can use Early Health Assessment and
  Intervention Programs.

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Permanent v temporaryFamily Reunion

• Able to bring members of immediate family (spouse
  and children) to Australia.

• No family reunion rights (including reunion with
  spouse and children).

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Permanent v temporaryWork Rights

• Permission to work.

• Permission to work but ability to find employment
  influenced by temporary nature of visa and poor
  English skills.

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Permanent v temporaryLanguage Training

• Access to up to 510 hours of English language
  training.

• Not eligible for the federally funded English
  language programs the Adult Migrant English
  Program (AMEP) or the Advance English for
  Migrants Program (AEMP).

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Permanent v temporaryMedical Benefits

• Automatic eligibility for Medicare.

• Currently eligible for Medicare.

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Permanent v temporaryTravel

• Will be able to leave the country and return
  without jeopardising their visa.

• No automatic right of return.