Refugee Protection and the Role of Law: Conflicting Identities

338 Pages·2014·2.947 MB·English

by  Susan Kneebone, Dallal Stevens, Loretta Baldassar (eds.)

Refugee Protection and
the Role of Law
Sixty years on from the signing of the Refugee Convention, forced migration and
refugee movements continue to raise global concerns for hosting states and
regions, for countries of origin, for humanitarian organisations on the ground
and, of course, for the refugee. This edited volume is framed around two themes
which go to the core of contemporary ‘refugeehood’: protection and identity. It
analyses how the issue of refugee identity is shaped by and responds to the legal
regime of refugee protection in contemporary times.
The book investigates the premise that there is a narrowing of protection space
in many countries and many highly visible incidents of refoulement. It argues that
‘protection’, which is a core focus of the Refugee Convention, appears to be under
threat, as there are many gaps and inconsistencies in practice.
Contributors to the volume, who include Erika Feller, Elspeth Guild, Hélène
Lambert and Roger Zetter, look at the relevant issues from the perspective of a
number of different disciplines including law, politics, sociology and anthropology.
The chapters examine the link between identity and protection as a basis for
understanding how the Refugee Convention has been and is being applied in
policy and practice. The situation in a number of jurisdictions and regions in
Europe, North America, South-East Asia, Africa and the Middle East is explored
in order to ask the question: does jurisprudence under the Refugee Convention
need better coordination and how successful is oversight of the Convention?
Su san Kneebone is Professor of Law at the Faculty of Law, Monash University,
Australia.
Dallal Stevens is Associate Professor of Law in the School of Law, University
of Warwick, UK.
Loretta Baldassar is Professor in the Department of Anthropology and
Sociology at the School of Social and Cultural Studies at the University of
Western Australia.
Routledge Research in Asylum,
Migration and Refugee Law
Available titles in this series include:
Refugee Protection and the Role of Law
Confl icting Identities
Edited by Susan Kneebone, Dallal Stevens, Loretta Baldassar
Gender in Refugee Law
From the Margins to the Centre
Efrat Arbel, Catherine Dauvergne, Jenni Millbank
Forthcoming titles in this series include:
European Asylum Law and the Rights of the Child
Ciara Smyth
Asylum Law in the European Union
From the Geneva Convention to the Law of the EU
Francesco Cherubini
The Socio-Economic Rights of Asylum Seekers
Liam Thornton
Refugee Protection and
the Role of Law
Confl icting Identities
Edited by
Susan Kneebone, Dallal Stevens
and Loretta Baldassar
First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Susan Kneebone, Dallal Stevens and Loretta Baldassar
The right of Susan Kneebone, Dallal Stevens and Loretta Baldassar to be
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with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Refugee protection and the role of law : confl icting identities / edited by
Susan Kneebone, Dallal Stevens, Loretta Baldassar.
pages cm.—(Routledge research in asylum, migration and refugee law)
Includes bibliographical references and index.
ISBN 978-0-415-83565-7 (hardback)—ISBN 978-0-203-48801-0 (ebk)
1. Refugees—Legal status, laws, etc. 2. Convention Relating to the
Status of Refugees (1951) I. Kneebone, Susan, editor of compilation.
II. Stevens, Dallal, editor of compilation. III. Baldassar, Loretta,
1965-editor of compilation.
KZ6530.R425 2014
341.4’86—dc23 2014005386
ISBN: 978-0-415-83565-7 (hbk)
ISBN: 978-0-203-48801-0 (ebk)
Typeset in Baskerville
by Keys troke, Station Road, Codsall, Wolverhampton
Disclaimer
Every effort has been made to trace and contact copyright holders prior to
publication. If notifi ed, the publisher will undertake to rectify any errors or
omissions at the earliest opportunity.
Contents
Notes on contributors vii
Preface xiii
PART I
Refugee law and protection: fi t for purpose
60 years on? 1
1 Confl icting identities, protection and the role of law 3
SUSAN KNEEBONE, LORETTA BALDASSAR AND DALLAL STEVENS
2 C reating identities, diminishing protection and the
securitisation of asylum in Europe 22
ROGER ZETTER
3 R ights and the re-identifi ed refugee: an analysis
of recent shifts in Canadian law 36
DONALD GALLOWAY
4 The Refugee Convention at 60: still fi t for purpose?
Protection tools for protection needs 56
ERIKA FELLER
PART II
Refugee identities and protection: historical shifts 71
5 S hifting conceptions of refugee identity and protection:
European and Middle Eastern approaches 73
DALLAL STEVENS
6 R efugees as objects of surrogate protection:
shifting identities 98
SUSAN KNEEBONE
vi Contents
7 Identifying asylum seekers as potential refugees:
transfers and ‘acquired rights’ under the
Refugee Convention 122
MARIA O’SULLIVAN
PART III
Law, power and refugee identity: macro and
state perspectives 149
8 Confl icting identities and securitisation in
refugee law: lessons from the EU 151
ELSPETH GUILD
9 Survival migration: confl icting refugee identities in Africa 174
ALEXANDER BETTS
10 Transnational law and refugee identity:
the worldwide effect of European norms 203
HÉLÈNE LAMBERT
PART IV
Refugee identities and protection: micro,
social and individual perspectives 215
11 Ambivalent policies, uncertain identities:
asylum-seeking families in Sweden 217
ULLA BJÖRNBERG
12 Better than our fears? Refugees in Italy: between
rhetorics of exclusion and local projects of inclusion 235
MAURIZIO AMBROSINI
13 Moving beyond protection space: developing a
law of asylum in South-East Asia 251
MARTIN JONES
PART V 271
14 Law, identity and protection: concluding refl ections 273
DALLAL STEVENS, SUSAN KNEEBONE AND LORETTA BALDASSAR
Bibliography 286
Index 311
Notes on contributors
Maurizio Ambrosini is Professor of Sociology of Migration at the University
of Milan, Department of Social and Political Sciences, and chargé d’enseignement
at the University of Nice-Sophia Antipolis (France). In his Department, he
has contributed greatly to the advancement of L.I.M.eS. (Laboratory of
Immigration, Multiculturalism and Society). He is also the editor of the
journal Mondi Migranti, the fi rst Italian journal in this fi eld, and is the academic
coordinator of the Centre Medì-Migrations in the Mediterranean, Genoa, as
well as the Italian Summer School of Sociology of Migrations. He is a
member of the editorial committee of the Journal of Immigrant and Refugee
Studies and of several Italian sociological journals and collections. His main
interests cover immigrants in the labour market, ethnic entrepreneurship,
migration policies and refugees studies. He is the author of more than 150
books, articles and essays in these fi elds. His handbook, Sociologia delle
migrazioni, is adopted as the textbook in many Italian universities. His most
recent book is Irregular Immigration and Invisible Welfare (Palgrave, 2013). He was
a consultant for the Italian Parliament and member of the National Advisory
Board for the Integration of Immigrants at the Ministry of Social Solidarity.
He was coordinator of the Italian Unit in the European project ACCEPT
Pluralism (7th Framework Programme of the EC).
Loretta Baldassar is Professor and Discipline Chair of Anthropology and
Sociology at the University of Western Australia and Adjunct Principal
Research Fellow, School of Political and Social Inquiry, Monash University.
Baldassar has published extensively on transnational migrants, families and
caregiving including, Transnational Families, Migration and the Circulation of Care:
Understanding Mobility and Absence in Family Life (with Merla, Routledge
Transnationalism Series, 2014) and the landmark study Families Caring Across
Borders (with Baldock and Wilding, Palgrave, 2007), as well as many journal
articles and book chapters on this subject. She is a leading authority on Italian
migration to Australia, and has written extensively in this area including the
award-winning book, Visits Home (Melbourne University Press, 2001); From
Paesani to Global Italians (with Pesman, UWAP, 2005) and Intimacy and Italian
Migration (with Gabaccia, Fordham University Press, 2011). She is Regional
viii Contributors
Editor for Oceania of the journal Global Networks and Board Member of
Research Committee (31) Migration of the International Sociological
Association. Baldassar served a term as Director at the Monash University
Centre in Prato, Italy (2009–11), where she began new research projects on
Chinese immigration. Baldassar is currently editing a volume Chinese Migrants
in Europe (with Johanson, McAuliffe and Bressan, Palgrave, forthcoming) and
a special journal issue on transnational families and ICTs.
Alexander Betts is University Lecturer in Refugee Studies and Forced Migration
at the University of Oxford. His research focuses on the international politics
of refugees, migration and humanitarianism, with a focus on sub-Saharan
Africa. His recent books include Protection by Persuasion: International Cooperation
in the Refugee Regime (Cornell University Press, 2009), Refugees in International
Relations (with Gil Loescher, Oxford University Press, 2010), Global Migration
Governance (Oxford University Press, 2011), UNHCR: The Politics and Practice of
Refugee Protection (with Gil Loescher and James Milner, Routledge, 2012) and
Survival Migration: Failed Governance and the Crisis of Displacement (Cornell
University Press, 2013). He has worked as a consultant to UNHCR, OCHA,
UNDP, IOM, UNICEF and the Council of Europe, and received research
grants from the MacArthur Foundation, the Leverhulme Trust, and the
Economic and Social Research Council. He has also held teaching and
research positions at Stanford University and the University of Texas at
Austin. He is Director of the Humanitarian Innovation Project.
Ulla Björnberg is Professor of Sociology, Chair in Family, Gender and Society
at the Department of Sociology and Workscience since 1996; Emerita since
2011. Her expertise is in family sociology, gender and family, and family
policy. She has been engaged in several cross-national projects on family
policy and family life in Europe and has several publications covering aspects
of the fi eld. In her studies she has focused on the reconciliation of employment
and family life from the perspective of gender and class, lone motherhood,
negotiations and confl icts in couples within marriage, and family policy. She
was Program Director of an interdisciplinary research project on the health
and well-being of asylum-seeking children and parents, with a specifi c focus
on the impact of various aspects of asylum reception on resilience and coping
in the everyday life of children and parents. Most recent publications include
‘Caught between a Troubled Past and an Uncertain Future: The Well-being
of Asylum-seeking Children in Sweden’, in Almudena Moreno Minguez,
Ulla Björnberg and An Magritt Jensen (eds), Social Indicators Research Series,
special issue on family well-being: European perspectives (2012); ‘Immigration,
Children and Families’, in Ulla Björnberg and Mai Heide Ottosen (eds,
2013), Challenges for Future of Family Policy in the Nordic Countries (Institute for
Social Research, 2013).
Erika Feller is an honours law graduate from Melbourne University, and holds
an additional degree in the humanities, specialised in psychology. She is an
Contributors ix
academically acknowledged authority on refugee law, has published widely in
journals, is co-editor with Volker Türk and Frances Nicholson of a book enti-
tled Refugee Protection in International Law (Cambridge University Press, 2003)
and has contributed to other publications, including the Max Planck
Encyclopaedia of Public International Law. Feller held the post of Assistant High
Commissioner – Protection (2005–13), one of the four top management posi-
tions of the UNHCR. Her professional career included three international
postings with the Australian diplomatic service, followed by senior appoint-
ments with UNHCR, both in Geneva and the Field. As the High
Commissioner’s Representative in Malaysia, Singapore and Brunei, she con-
currently serves as UNHCR’s Regional Coordinator for Status Determination
for the Indo-Chinese refugee outfl ow. Among her accomplishments, Feller
initiated and managed the 2001–2 Global Consultations on International
Protection, which generated the Agenda for Protection, an internationally
endorsed multi-year ‘road map’ for global refugee protection. Her responsi-
bilities have ranged from running refugee camps to undertaking many pro-
tection advocacy, negotiation and oversight missions to major refugee
emergencies. As Assistant High Commissioner, Feller had personal oversight
of age, gender and diversity mainstreaming and accountability throughout
UNHCR’s global programmes. She has recently been appointed a Fellow of
the Australian Institute of International Affairs.
Donald Galloway is Professor of Law at the University of Victoria, Canada.
He specialises in immigration law, citizenship law and refugee law. He is
the author of Immigration Law (Irwin Law, 1997), and co-author of Immigration
and Refuge Law: Cases Materials and Commentary (Emond Montgomery, 2006)
and Migration Law in Canada (Kluwer, 2013). He has served as a member of
the Immigration and Refugee Board (1998–2001) and as a member of the
Executive Committee of the Canadian Association of Refugee Lawyers
(2011–13). He was the founding President of the Canadian Association of
Refugee and Forced Migration Studies.
Elspeth Guild is a Jean Monnet Professor ad personam in law at the Radboud
University, Nijmegen, Netherlands and Professor of Law at Queen Mary
University of London. She is also a senior research fellow at the Brussels-
based think tank, the Centre for European Policy Studies. She retains her
affi liation as a partner at the London law fi rm Kingsley Napley. She regularly
advises EU institutions on migration and asylum-related matters including
the Council of Europe’s Commissioner for Human Rights. Her recent
publications include: Didier Bigo, Sergio Carrera and Elspeth Guild (eds),
Foreigners, Refugees or Minorities? Rethinking People in the Context of Border Controls
and Visas (Ashgate, 2013); Guild and P. Minderhoud (eds), The First Decade of
EU Migration and Asylum Law (Martinus Nijhoff, 2011); Didier Bigo, Sergio
Carrera, Elspeth Guild and R. B. J. Walker (eds), Europe’s 21st Century Challenge
(Ashgate, 2010); Security and Migration in the 21st Century Polity (Policy Press,
2009).