Syllabus - Immigration Asylum and Refugee Law (62342)

Required Reading:
SESSION ONE
INTRODUCTION: A GLOBAL REFUGEE PROTECTION FRAMEWORK
FOR DISCUSSION
o Why is (international) refugee protection considered as a ‘surrogate’ to national protection?
o How can the role of the United Nations High Commissioner for Refugees (UNHCR) be characterised? What challenges arise from the absence of an enforcement mechanism? Should there be an international refugee court?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees*
o Declaration on Territorial Asylum
o Protocol Relating to the Status of Refugees*
o Statute of the Office of the United Nations High Commissioner for Refugees
LITERATURE
o Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn Oxford University Press, 2007), chapters 1*, 7, 8
o Guy S. Goodwin-Gill, ‘A Convention and a Purpose’ (2001) 13 International Journal of Refugee Law 1-15 *
o James Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005) chapters 1-3
o Arthur E. Helton, ‘What is Forced Migration’ (1999) 13 Georgetown Immigration Law Journal 521
o Walter Kalin, ‘Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in International Law (Cambridge University Press, 2003) 613-666
o Nehemia Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (Institute of Jewish Affairs, 1955)
o Volker Türk and Frances Nicholson, ‘Refugee protection in international law: an overall Perspective’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (Cambridge University Press, 2003) 3-45
o Paul Weis, ‘The International Protection of Refugees’ (1954) 48 American Journal of International Law 193-221

SESSION TWO
REFUGEE STATUS DETERMINATION: INCLUSION
FOR DISCUSSION
o Consider the challenges posed by protection of refugees from non-state actors.
o Is political apathy/indifference a ‘political opinion’ for the purposes of refugee protection?
o What is gender- related persecution and why does it pose difficulties for the interpretation of the refugee definition?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees, especially Article 1A(2)*
o Vienna Convention on the Law of Treaties, Article 31*
CASES
o Minister for Immigration and Multicultural Affairs v. Khawar [High Court, Australia] (11 April 2002)
o Canada (Attorney General) v. Ward [Supreme Court, Canada] (30 June 1993)*
o R v. Secretary of State for the Home Department, Ex parte Adan [House of Lords, UK] (19 December 2000)
o Islam v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah , [House of Lords, UK] (25 March 1999)
o Horvath v. Secretary of State for the Home Department [House of Lords, UK] (6 July 2000)*
o Secretary of State for the Home Department v. K; Fornah v. Secretary of State for the Home Department [House of Lords, UK] (18 October 2006)
o RT (Zimbabwe) and others v. Secretary of State for the Home Department [Supreme Court, [UK] (25 July 2012)*
LITERATURE
o T Alexander Aleinikoff, ‘Protected characteristics and social perceptions: an analysis of the meaning of “membership of a particular social group”’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (CUP, 2003) 263-311
o Deborah E. Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights Journal 133
o Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn Oxford University Press, 2007) chapters 2-4
o James C. Hathaway and William S. Hicks, ‘Is There a Subjective Element in the Refugee Convention’s Requirement of Well-Founded Fear?’ (2005) 26 Michigan Journal of International Law 510
o Daniel J. Steinbock, ‘Interpreting the Refugee Definition’ (1998) 45 UCLA Law Review 733
o UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the status of Refugees (October 2012)
o UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011)*
o Film: well-founded fear (45 mins)

SESSION THREE
REFUGEE STATUS DETERMINATION: EXCLUSION

FOR DISCUSSION

o Consider the exclusion ground under Article 1F(b). Would Julian Assange and/or Edward Snowden be protected under the Refugee Convention?
o Which challenges are posed by the UNRWA definition and scope of operation?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees, Articles 1D-F*
o UNGA, Resolution No 302 (IV) of 8 December 1949 (‘Assistance to Palestine Refugees’)*
CASES
• C-31/09 Bolbol v. Bevándorlási és Állampolgársági Hivatal [Court of Justice, European Union] (17 June 2010)*
• Saul Vicente Ramirez v. Minister of Employment and Immigration, F.C.J. No. 109 [Federal Court, Canada] (7 February 1992)
• Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3 [Supreme Court, Canada] (11 January 2012)*
LITERATURE
o European Council on Refugees and Exiles 2004, Position on Exclusion from Refugee Status (March 2004)
o Geoff Gilbert, ‘Current issues in the application of the exclusion clauses’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (CUP, 2003) 425-478
o Ilana Feldman, ‘The Challenge of Categories: UNRWA and the definition of a ‘Palestine Refugee’’ (2012) 25(3) Journal of Refugee Studies 387-406
o UNHCR, Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees (October 2009)*
o UNHCR, Note on the Interpretation of Article 1E of the 1951 Convention relating to the Status of Refugees (March 2009)
o UHNCR, Statement on Article 1F of the 1951 Convention (July 2009)*

SESSION FOUR
REFUGEE RIGHTS AND CESSATION OF REFUGEE STATUS
FOR DISCUSSION
o Can refugees enjoy (de jure and de facto) all rights under international human rights law?
o Do refugees suffer from unique political predicament? If so, can (and should) it be redressed?
o What are the common features of the grounds for cessation of refugee status? Can certain distinctions be nonetheless drawn?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees Articles 2-32, 34*
o European Convention on Human Rights, Article 1*
o International Covenant on Civil and Political Rights, Article 2(1)*
CASES
o C-175/08 and others Salahadin Abdulla and Others v. Bundesrepublik Deutschland [Court of Justice, European Union] (2 March 2010)
o R (Al Rawi and others) v. Secretary of State for Foreign and Commonwealth Affairs and another [Court of Appeal, England & Wales] (12 October 2006) *
o R (ST (Eritrea)) v. Secretary of State for the Home Department [Supreme Court, United Kingdom] (21 March 2012) *
LITERATURE
o Joan Fitzpatrick & Rafael Bonoan, ‘Cessation of Refugee Protection’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (CUP, 2003) 491-544
o Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014) ch 2*
o Antonio Fortin, ‘The Meaning of Protection in the Refugee Definition’ (2001) 12 International Journal of Refugee Law 548–76
o Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn Oxford University Press, 2007) chapters 6, 9
o James Hathaway, The Rights of Refugees under International Law (CUP, 2005) 913-990
o Reuven (Ruvi) Ziegler, ‘Protecting Recognised Geneva Convention Refugees outside their Countries of Asylum’ 25(2) International Journal of Refugee Law 235-264*
o Reuven (Ruvi) Ziegler, ‘Out-of-Country Voting: The Predicament of the Recognised 1951 Convention Refugee’ in Jean-Pierre Gauci, Mariagiulia Giuffré, and Lilian Tsourdi (eds), Forced Migration(s): Critical Reflections on Refugee Law (Brill, 2014)* [will be available]
o Reuven (Ruvi) Ziegler, ‘Voting rights of Recognised Geneva Convention Refugees in their Countries of Asylum’* [will be available]
o UNHCR, Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (10 February 2003)

SESSION FIVE
NON-REFOULEMENT AND INTERDICTION
FOR DISCUSSION
o What is the significance of the principle of non-refoulement in Article 33 of the 1951 Convention? Is there a ‘right to asylum’?
o Consider the divergent approaches to cases of interception at sea in Sale and Hirsi. What role does the notion of ‘jurisdiction’ play in both judgments?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees, Article 33
CASES
o Haitian Centre for Human Rights et al. v. United States [Inter-American Commission on Human Rights] (13 March 1997)
o Hirsi Jamaa and Others v. Italy [European Court of Human Rights] (23 February 2012)* [also UNHCR, Submission in the Case of Hirsi and Others v. Italy (29 March 2011)]
o HCJ 7302/07 Hotline for Migrant Workers v. Minister of Defense [Supreme Court, Israel] (7 July 2011)
o MSS v. Belgium and Greece [European Court of Human Rights] (21 January 2011)
o R v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others [House of Lords, United Kingdom] (9 December 2004)
o Sale v. Haitian Centers Council, Inc., et al [Supreme Court, U.S.] (21 June 1993)*
LITERATURE
o Alice Edwards, ‘Human Rights, Refugees and the Right to ‘Enjoy’ Asylum’ (2005) 17(2) International Journal of Refugee Law 293-330*
o Guy S Goodwin-Gill, ‘Non-Refoulement and the New Asylum Seekers’ (1985-1986) 26 Virginia Journal of International Law 897-918
o Guy S Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-refoulement’ (2011) 23(3) International Journal of Refugee Law 443-457*
o Elihu Lauterpacht and Daniel Betlehem, ‘The scope and content of the principle of non-refoulement: an opinion’ in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in International Law (CUP, 2003) 87-177
o Itamar Mann, ‘The Haiti Paradigm, twenty Years After’ Humanity (21 June 2013)*
o Violeta Moreno-Lax, ‘Hirsi Jamaa and Others v. Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ 12(3) Human Rights Law Review 574-598

SESSION SIX
COMPLEMENTARY AND SUBSIDIARY PROTECTION
FOR DISCUSSION
o Consider the normative distinction between adopting an expansive refugee definition and introducing subsidiary protection.
o Does the basis of protection affect the scope of rights afforded to an individual by a receiving state? Should it?
o Do subsidiary and complementary protection regimes suggest that the refugee convention is not ‘fit for purpose’?
CASES
o Chahal v. UK [European Court of Human Rights] (15 November 1996)
o Balabou Mutombo v. Switzerland [UN Committee against Torture] (27 April 1994)
o Saadi v. Italy [European Court of Human Rights] (28 February 2008)*
o Salah Sheekh v. The Netherlands [European Court of Human Rights] (11 January 2007)
o Soering v. UK [European Court of Human Rights] (7 July 1989)*
TREATIES/LEGISLATION
o Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)
o European Convention on Human Rights, Article 3
o United Nations Convention against Torture, Article 3
o Cartagena Declaration on Refugees
o Convention Governing the Specific Aspects of Refugee Problems in Africa
o Directive of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons eligible for Subsidiary Protection, and for the Content of the Protection Granted (Recast)*
LITERATURE
o David J. Cantor and Stefania E. Barichello, ‘The Inter-American Human Rights System: A New Model for Integrating Refugee and Complementary Protection?’ (2013) 17 (5-6) International Journal of Human Rights 689-706
o Hélène Lambert, ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’ (2005) 24 (2) Refugee Survey Quarterly 39-55
o Generally Jane McAdam, Complementary Protection in International Law (OUP, 2007)
o Jane Mcdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17(3) International Journal of Refugee Law 461-516*
o UNHCR, Persons Covered by the OAU Convention (April 1992)

SESSION SEVEN
DISPLACEMENT FROM CONFLICT
FOR DISCUSSION
o To what extent does IHL offer protection for persons displaced from conflict?
o Which legal framework is applicable to displacement from Syria during the ongoing conflict? Consider the significance of the classification of the conflict by the ICRC.

TREATIES/LEGISLATION
o Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Articles 1,3,49, 45, 146-148*
CASES
o Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (26 February 2007)
o Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (2 October 1995), [70]*
o App. No. 8319/07 Sufi and Elmi v. UK (Fourth Section Chamber, ECtHR) (28 June 2011)*
LITERATURE
o Vincent Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law’ in Andrew Clapham & Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP, 2014) chapter 29
o David J. Cantor, ‘Does IHL prohibit the Forced Displacement of Civilians during War?’ (2013) 24(4) International Journal of Refugee Law 840-849
o Guy S. Goodwin-Gill, ‘Non-refoulement, Temporary Refuge, and the ‘New’ Asylum Seekers’ in David J. Cantor and Jean-Francois Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill, 2014) chapter 18
o Françoise J. Hampson, ‘The Scope of the Obligation Not to Return Fighters under the Law of Armed Conflict’ id, chapter 15
o Stephane Jacquemet, ‘The Cross-fertilization of International Humanitarian Law and International Refugee Law’ (2001) 83 (843) IRRC 651-674*
o Reuven (Ruvi) Ziegler, ‘Non-Refoulement between ‘Common Article 1’ and ‘Common Article 3’’ id, chapter 16* [will be available]
o UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011), [164]*

SESSION EIGHT
TREATMENT OF ASYLUM SEEKERS IN ISRAEL
FOR DISCUSSION
o When may states detain asylum seekers? Appraise Israeli detention practices in the light of the Article 31 non-penalisation provision.
o Do asylum seekers have a right to freedom of movement in their receiving state? Consider the layers of protection offered by the Refugee Convention.
o Does the Israeli case-study manifest the weaknesses of the global refugee protection regime? Are these weaknesses inevitable?
TREATIES/LEGISLATION
o Convention Relating to the Status of Refugees, Articles 26, 31*
o Prevention of Infiltration (offences and judging) Act (amend. no 3) (temporary order) 2012*
o Prevention of Infiltration (offences and judging) Act (amend. no. 4) (temporary order) 2013 (Hebrew) (analysis)*
o Compare: EU Council Directive on Minimum Standards for the Reception of Asylum Seekers
o Procedure for Handling Political Asylum Seekers in Israel (2011)*
CASES
o Compare: A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department [2004] UKHL 56, especially [5 – 29], [55-70]*
o Compare: M70/2011 v. Minister for Immigration and Citizenship [2011] HCA 32 [High Court, Australia] (31 August 2011)
o HCJ 7146/12 Adam et al v. Knesset et al [Supreme Court, Israel] (15 September 2013)*
o HCJ 8425/13 Anon et al v. Knesset et al (pending) [Supreme Court, Israel] (Hebrew) (report)
LITERATURE
o Yonatan (Jonathan) Berman and Reuven (Ruvi) Ziegler, ‘Detention of Asylum Seekers in Israel: The unholy Union of Securitisation and Demography’ in Amy Nethery and Stephanie J. Silverman (eds), Immigration Detention: The Global Journey of a Policy (January 2015)
o Guy S. Goodwin-Gill, ‘Article 31: Non-penalization, Detention, and Protection' in Erika Feller, Volker Türk, Frances Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press, 2003) 185-252*
o Hotline for Migrant Workers, Until our Hearts are Completely Hardened: Asylum Procedures in Israel (2012) 5-27
o Hotline for Migrant Workers, Cancer in Our Body: On Racial Incitement, Discrimination and Hate Crimes against African Asylum Seekers in Israel (June 2012)
o Hotline for Migrant Workers, Tortured in Sinai, Jailed in Israel (October 2012)
o Human Rights Council, Situation of Human Rights in Eritrea (23 June 2014)
o Human Rights Committee, General Comment No.27: Freedom of Movement (Article 12) (2 November 1999)
o UNHCR, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention (21 September 2012)
o Reuven (Ruvi) Ziegler, ‘A Matter of Definition: On ‘Infiltrators’ and Asylum Seekers in Israel’ (January 2011) *
o Reuven (Ruvi) Ziegler, ‘The New Amendment to the Prevention of Infiltration Act-Defining Asylum Seekers as Criminals’ (January 2012)*
o Reuven (Ruvi) Ziegler, ‘Quashing Legislation Mandating Lengthy Detention of Asylum-Seekers: A Resolute Yet Cautious Israeli Supreme Court Judgment’ (22 September 2013)*
o Reuven (Ruvi) Ziegler, ‘The Prevention of Infiltration (Amendment no. 4) Bill: A malevolent response to the Israeli Supreme Court judgment’ (4 December 2013)*
o Reuven (Ruvi) Ziegler, ‘The Prevention of Infiltration Act in the Supreme Court: Round Two’ (30 March 2014)*

ISRAEL AND THE REFUGEE CONVENTION: PAST AND PRESENT
FOR DISCUSSION
o What role did Israel play in the drafting of the Refugee Convention?
o Does Israel’s approach to the implementation of the Refugee Convention reflect a wider immigration policy?
LITERATURE
o Gilad Bin-Nun, ‘The Israeli Roots of Articles 3 and 6 of the Refugee Convention’ (2013) Journal of Refugee Studies
o Michael Kagan, ‘Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East’ (2007) 38(2) Columbia Human Rights Law Review 263
o Tally Kritzman-Amir, ‘‘Otherness’ as the Underlying Principle in Israel’s Asylum Regime’ (2009) 42(3) Israel Law Review 603*
o Dallal Stevens, ‘Between East and West: The Case of Israel’ in Hélène Lambert, Jane McAdam, Maryellen Fullerton (eds), The Global Reach of European Refugee Law (CUP, 2013)
o Generally Paul Weis, The Refugee Convention 1951: The Travaux Preparatoires Analysed with a Commentary (CUP , 1995)
o Reuven (Ruvi) Ziegler, The ‘Immigration Policy for Israel’ Bill: Appraising the Arrangements Concerning Asylum Seekers and Refugees (Hebrew) (January 2011)

SESSION NINE
THE REACH OF REFUGEE LAW: CONCEPTUAL CHALLENGES
FOR DISCUSSION
o Should Convention refugees be privileged over other forced migrants?
o To what extent was the Refugee Convention a compromise? Consider the Final Act of the Conference of Plenipotentiaries.
o Should we privilege forced migrants over other migrants?
LITERATURE
o Hannah Arendt, ‘We Refugees’ in Hélène Lambert (ed), International Refugee Law (Ashgate, 2010) Chapter 1
o Joseph H. Carens, ‘Aliens and Citizens: The Case for Open Borders’ (1987) 49(2) The Review of Politics 251-273
o Jean-Francois Durieux, ‘Three Asylum Paradigms’ (2013) 20(2) International Journal on Minority and Group Rights 147-177 *
o Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (25 July 1951)
o Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28(2) Michigan Journal of International Law 223-286
o Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (CUP, 2004) Chapters 1,7,8
o Guy S. Goodwin-Gill, ‘The Politics of Refugee Protection’ (2008) 27(1) Refugee Survey Quarterly 8-23
o James Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89-103 *
o Agnes Hurwitz, The Collective Responsibility of States to Protect Refugees (OUP, 2009) chapters 2, 3 and 4
o Andrew Shacknove, ‘Who is a Refugee?’ (1985) 95 Ethics 274-284