A Sometimes Dangerous Convergence: Refugee Law, Human Rights Law and the Meaning of 'Effective Protection' by Kate Ogg

A 2013 article written by Kate Ogg and entitled, "A Sometimes Dangerous Convergence: Refugee Law, Human Rights Law and the Meaning of 'Effective Protection'" was published in the Macquarie Law Journal.

The following is the abstract:     

In late 2011 the High Court of Australia and the European Court of Justice made rulings on the conditions under which asylum seekers can be transferred to a third country. The High Court of Australia held that asylum seekers cannot be transferred unless they will be protected from persecution and be entitled to all of the rights outlined in the Refugee Convention. However, four months later the European Court of Justice set the threshold much lower. It ruled that a transfer could occur unless the asylum seeker would be subject to persecution or inhuman or degrading treatment. These sharply contrasting decisions raise wider issues for refugee protection especially in light of the desire for a harmonious interpretation of the Refugee Convention. Such a result is also surprising given the proliferation of human rights instruments and jurisprudence in the European Union, compared to Australia’s lack of a national human rights framework. This article will use these cases to demonstrate that, while some courts have drawn on principles of human rights law to progressively interpret the Refugee Convention, the nature of protection in the Refugee Convention is both distinct from and beyond the preservation of fundamental human rights. Accordingly, reference to principles of human rights law in transfer decisions can have the counter-productive effect of lowering the threshold for ‘effective protection’. This raises the need for critical examination of the boundaries of human rights and refugee law and consideration of the extent to which they should remain distinct bodies of law.

Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia by Luke Taylor

A recent article written by Luke Taylor and entitled, "Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia" was published in the McGill Law Journal - (2015) 60:2 McGill LJ 333.   The following is the English abstract:

This paper argues that there are distinct parallels between changes to the Immigration and Refugee Protection Act enacted by Bill C-31 (2012),  in particular the Designated Foreign National regime (DFN), and Australia’s treatment of asylum seekers who arrive by boat. It is contended that recent Australian history and policy demonstrate the perils of adopting an ideology of control and exclusion toward asylum seekers instead of a politics of hospitality, and that Australia’s present political climate provides a stark and salutary warning to Canada, as it follows a similar path of securitization. The paper first explains what is meant by a politics of hospitality. In Part I, it analyzes Australia’s attitude toward, and its treatment of, asylum seekers, focusing in particular on the period since 1989. It is argued that Australia’s inhospitable stance toward asylum seekers has had discernible negative outcomes that provide important les-sons for Canada. Part II provides a brief historical overview of Canadian policy toward asylum seekers, followed by an analysis of the DFN regime with reference to international law. It then argues that the DFN provisions contravene the Canadian Charter of Rights and Freedoms. The paper concludes by suggesting that Canada is at risk of following Australia’s security-oriented, inhospitable stance toward asylum seekers.

A recent article in the Oxford Journal of Human Rights Practice

De-Constructing Marginality with Displaced People: Learning Rights from an Actor-Oriented Perspective by Maro Pantazidou

The article can be found here:

http://jhrp.oxfordjournals.org/content/5/2/267.full 

Here is the abstract:

In this article, I reflect on the lessons learned from a one year action-research process with displaced people in London to advocate for an actor-oriented approach to human rights education. I suggest that when it comes to supporting marginalized people to claim their rights, we need not to look for a transferable set of skills and knowledge but to nurture a rights consciousness – a sense of entitlement to one's rights – through transformative learning methodologies. The article discusses both the content and pedagogy of such methodologies, paying special attention to critical reflection and affective learning. I conclude that for us as human rights educators to engage in transformative learning for human rights we need to approach rights as rooted in the relationships, contextual realities, and perspectives of the people we work for and with, and I suggest that the way we understand rights incurs a set of implications for the way we ‘teach’ and claim them.

"We Have No Rights": Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada by the University of Toronto's International Human Rights Program

The University of Toronto's International Human Rights Program (IHRP) just released a report concerning the Canada Border Services Agency’s treatment of non-citizens with mental health issues. The report can be found here: http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf

The following is a synopsis from the IHRP's web page:

(Toronto) – The International Human Rights Program’s latest report says that Canada Border Services Agency’s treatment of non-citizens with mental health issues is in breach of Canada’s international human rights obligations as it is discriminatory, constitutes indefinite and arbitrary detention, is cruel and inhuman, and violates the right to health.

“We have no rights”: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada finds that the CBSA routinely detains migrants with mental health issues in maximum-security jails—sometimes for years—despite their vulnerable and non-criminal status.

“Our report reveals shocking gaps in the rule of law,” says Renu Mandhane, IHRP executive director. “CBSA transfers migrants who are not serving a criminal sentence to provincial jails in the absence of adequate laws, regulations, or policies. Counsel are not given notice and detainees do not have an opportunity to challenge confinement in maximum security conditions despite the catastrophic impact imprisonment has on their mental health.”

"We have no rights", released in advance of World Refugee Day on June 20, profiles detainees who have been imprisoned between two months and eight years. IHRP researchers travelled to three Ontario jails to interview detainees and collect these “voices from the inside.” Overwhelmingly, the detainees communicated despair and anxiety over their immigration status, their seemingly indefinite detention, their lack of legal rights, their conditions of confinement, and the lack of adequate mental health treatment to allow them to get better.

"UNHCR’s Involvement with IDPs: – ‘Protection of that Country’ for the Purposes of Precluding Refugee Status?" by Bríd Ní Ghráinne*

An interesting 2014 article by Bríd Ní Ghráinne in the International  Journal of Refugee Law on the issue of state protection and internally displaced persons.  Abstract appears below.

Bríd Ní Ghráinne, "UNHCR’s Involvement with IDPs: – ‘Protection of that Country’ for the Purposes of Precluding Refugee Status?" (2014) 26:4 Int J Refugee Law 536.  

 Abstract (taken from here) 

The absence of protection from persecution is a precondition to qualifying as a refugee. However, protection is not solely provided by states and may stem from non-state actors (NSAs) such as international organizations. This article will examine whether such protection may be substituted for ‘protection of that country’ and, if so, under what circumstances, and whether it may thus preclude the application of the Refugee Convention. The focus will be on the United Nations High Commissioner for Refugees owing to its significant role in the protection of Internally Displaced Persons, persons who often go on to make a refugee claim upon fleeing the state. The article will first put forward an interpretation of the term ‘protection of that country’, by examining the refugee definition, in particular the meaning of the terms ‘that country’ and ‘protection’; by analysing relevant principles of EU law; and by outlining how these concepts have been elaborated by relevant jurisprudence on international organizations. The second half of the article will analyse the legal basis and scope of UNHCR’s mandate with IDPs, and will conclude by illustrating the reasons why the activities of UNHCR cannot constitute ‘protection of that country’ for the purposes of precluding the application of the refugee definition.

Duress and The Material Support For Terrorism Exclusion: When Moral Involuntariness Is Not Enough

I. Introduction  

Terrorist organizations are not known for tackling issues with a soft touch. This includes their treatment of those who refuse to be conscripted into their organizations. Such resisters often face persecution or death for their defiance. Through forced conscription they are compelled to provide assistance knowing that it will aid the organization. Some may manage to escape and seek refugee status in another country. 

This poses a critical question - should such individuals who are forced to provide assistance to terrorist organizations be excluded from obtaining refugee status? The question is particularly relevant under United States refugee law and this post will tackle it by examining a very recent United States Federal Court of Appeal decision from the 3^rd Circuit based in Philadelphia. 

II. Sesay v Attorney General of the United States [1]

a. Facts

Sesay is a citizen of the west African state of Sierra Leone. In the late 1990s and early 2000s, the country was gripped in a civil war. The Revolutionary United Front (RUF) was dedicated to overthrowing the government through the use of force and managed to occupy the capital of Freetown. In 2001, three members of the RUF entered Sesay’s family home in Freetown. They sought to conscript him. Although Sesay refused, he was nevertheless forcibly taken. 

Over the course of a month, Sesay consistently refused to join; he was beaten for his resistance. After a month, the RUF attempted to train him to use firearms but he once again refused. The RUF instead decided to force him to assist them by transporting and carrying weapons. He did so under compulsion and under the supervision of armed guards. On one occasion, Sesay was able to escape while the rebels were being threatened by an aerial attack. He fled to Guinea and subsequently to Gambia before escaping to the United States. 

b. The Immigration Judge's Decision and the Administrative Appeal

The Immigration Judge (IJ) found Sesay to be credible and concluded that he suffered past persecution as a result of his membership in a particular social group – specifically, individuals who vocally opposed forced conscription into the RUF. Where an individual has suffered past persecution, there is a rebuttable presumption that s/he has a well-founded fear of future persecution. The IJ concluded that the presumption in this case could be rebutted since, at the time the decision was being made, the RUF had been disbanded and reconciliation efforts in Sierra Leone had since been successful.

In the alternative (and this is where it becomes relevant for the present discussion), the IJ also concluded that Sesay provided material support to the RUF, and determined that it was a terrorist organization. This was based on the fact that Sesay carried food, water, weapons, and ammunition for the RUF. The IJ held that there was no exception to this exclusion even where the support was based on duress.

Sesay appealed this decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ’s decision.    

c. The 3rd Circuit's Decision

The 3rd Circuit affirmed the decisions of the BIA and IJ. It concluded, based on previous 3^rd Circuit jurisprudence, and those of sister federal circuit courts of appeals (as persuasive authority) that the material support exclusion to obtaining refugee status applied in this case. Sesay had knowledge (a subjective standard) that his acts would provide material support or that he should have reasonably known (an objective standard) that his acts would provide material support for terrorist activities. The fact that he did not desire that the RUF succeed was irrelevant to this assessment. 

The Court accepted that Sesay provided this material support under duress. However, it was deciding for the first time (within in its jurisdiction) whether the fact of duress provided a sufficient exception to the material support exclusion. It concluded, based on its statutory analysis, that the presence of duress did not provide an exception to the material support exclusion. 

i. Text and Context

The Court first began with a textual analysis of the provisions in question. The relevant portions of the Immigration and Nationality Act (INA) render an individual inadmissible if they engage in terrorist activity 

in an individual capacity or as a member of an organization— to commit an act that the actor knows, or reasonably should know, affords material support [to a terrorist organization]... .[2] 

This provision is silent on whether duress provides an exception to the material support exclusion. However, the Sesay Court identified that there is an exception in the INA to the material support exclusion where "the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization."[3] Drawing from a 9th Circuit discussion on this very issue, the Sesay Court concluded that had Congress intended that compelled conduct should be an exception, it would have certainly included this in the INA. Furthermore, in other provisions of the INA, Congress has included “involuntariness” as criteria for exempting individuals for another exclusion.[4] The Court rationalized that because the exemption for compelled conduct was specifically employed elsewhere in the INA, Congress clearly intended not to insert an exception for compulsion in connection with the material support exclusion.[5]

ii. Executive Branch Waivers 

Through legislation, United States federal law permits the Secretaries of State and Homeland Security to confer certain waivers to those who provided material support to certain terrorist organizations. However, the ability to grant this waiver is within the purview of the executive branch and specific cabinet secretaries. 

In conclusion, the Court determined that based on statute, it was up to the executive to grant waivers and the Court must not intervene in such determinations on matters of national security.

iii.  Circuit Court Consensus 

The Third Circuit noted that there was some degree of consensus amongst sister circuits on the issue of a duress exception - with one exception. In Ay v Holder, the 2^nd Circuit determined that the statutory provisions in question (and referred to above) were silent on the issue of duress being an exception to the terrorism bar. The court stated that the "BIA's decision provides no analysis of the statutory question; rather, it appears to presume there is no duress exception."[6] As such, for the Ay Court it was possible for the BIA to interpret whether the provision in question excluded those who provided material support to terrorists by reason of compulsion. It remanded the case back to the BIA to “address the [statutory question] in the first instance in light of its own expertise.” As part of its own analysis, the 2nd Circuit neglected to address that Congress included an explicit exception (noted above) to the material support bar and consequently intended to exclude any exception for duress.

III. What is Problematic About All This?  

a. Overbreadth

First, let me start by stating that based on the text of the impugned provision and its relationship to other provisions, it was reasonable if not correct for the 3^rd Circuit to hold that the material support exclusion does not include a duress exception. 

The problem is not the Court's interpretation but the provision itself. The breadth of the provision is indeed breathtaking. It is arguably intended to result in such harsh consequences. Congress likely knew exactly what it was doing post-9/11 and this comprehensive exclusion is reflective of the siege mentality that took root after September 11, 2001. 

The comprehensive and harsh nature of the anti-terrorist provisions in the INA has been noted in several quarters. For instance, James C. Hathaway and Michelle Foster assert that "states have adopted definitions of terrorist acts in the context of refugee and related immigration law that are startlingly broad, a concern perhaps most strikingly exemplified by legislation adopted in the United States."[7]

An example will help demonstrate Hathaway's and Foster's point. The notion of "terrorist activity" in the INA does not account for the political aims or the targets of certain acts. Almost any violent act can get wrapped into the definition of terrorist activity regardless of context. In Re SK, an asylum seeker provided money and some supplies to the Chin National Front, an organization which employed armed resistance against the repressive military junta in Myanmar. Given the scope of the legislation, SK was barred from obtaining refugee status. Juan Osuna, the current head of the BIA, writing then as a Vice-Chair in concurrence of SK's exclusion, criticized the breadth of the exclusion for terrorist activities. He stated: 

[T]he statutory language is breathtaking in its scope. Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives.[8] 

With respect to the applicant in SK and the application of the material support bar, Osuna asserted:

In sum, what we have in this case is an individual who provided a relatively small amount of support to an organization that opposes one of the most repressive governments in the world, a government that is not recognized by the United States as legitimate and that has engaged in a brutal campaign against ethnic minorities. It is clear that [SK] poses no danger whatsoever to the national security of the United States. Indeed, by supporting the CNF in its resistance to the Burmese junta, it is arguable that the [SK] actually acted in a manner consistent with United States foreign policy. And yet we cannot ignore the clear language that Congress chose in the material support provisions; the statute that we are required to apply mandates that we find [SK] ineligible for asylum for having provided material support to a terrorist organization.[9] 

These passages provide the context for understanding why duress was left out as an exception to the material support bar for refugee status. The legislation was reactive and in large measure comprehensive in its seeming objectives - to exclude anyone who adopted or supported certain types of violence regardless of context or their reasons, however legitimate.  

b. Discourages Legitimate Resistance

The consequences can be potentially inhumane. A person who was compelled to commit unlawful acts will be excluded unless the executive branch elects to grant a waiver. In this case, we have an individual who resisted not only once but several times to actively join the organization and to use a weapon on its behalf. That he agreed to transport weapons, ammunition, food and water under the supervision of a guard speaks to the coerced nature of this assistance. He also left as soon as practicable. 

The decision not to include a duress exception sends a particular message to certain asylum seekers. It tells those who resist recruitment into terrorist (or similar) organizations, which commit international crimes, that unless they resist to the point of being killed, they will be refused refugee status if they manage to escape. As the late international jurist and legal scholar Antonio Cassese asserted in a dissenting opinion in the Erdemovic appeal before the International Criminal Tribunal for the former Yugoslavia, "[l]aw is based on what society can reasonably expect of its members. It should not set intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards."[10] 

c. Inconsistent With The Human Rights Purpose of the Refugee Convention and Protocol

This lack of an exception is inconsistent with the overall human rights and humanitarian purpose of the 1951 Refugee Convention and/or the 1967 Protocol amending the Convention. Furthermore, the lack of an exception may be more punitive than a regular prison sentence for having committed the same crime. The consequences in these circumstances (refusal of refugee status) involve deportation and possibly persecution.

Endnotes

1. Sesay v Attorney General of the United States, --- F (3d) ----, 2015 WL 3372539 (3rd Cir 2015), online: <http://www2.ca3.uscourts.gov/opinarch/142996p.pdf>.

2. 8 USC § 1182(a)(3)(B)(iv)(VI), online: <https://www.law.cornell.edu/uscode/text/8/1182>. 

3. 8 USC § 1182(a)(3)(B)(iv)(VI)(dd).

4. 8 USC § 1182(a)(3)(D). 

5. The reference to involuntariness as being synonymous to duress or compulsion may not be accurate. Involuntary conduct under traditional criminal law purposes serves as a complete defence to a crime. In the case of duress, such compulsion normally does not indicate the lack of voluntariness or for that matter the necessary mental state for the offence. However, it has been recognized (under Canadian law) that where there is the presence of duress, this may indicate a moral involuntariness. See R v Ryan, 2013 SCC 3 at para 23, [2013] 1 SCR 14.  

6. Ay v Holder, 743 F (3d) 317 at 320, online: <http://www.ca2.uscourts.gov/decisions/isysquery/947fad22-e8ab-4464-9001-5ee703743be4/28/doc/11-2102_opn.pdf>.   

7. James C Hathaway & Michelle Foster, The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2014) at 560. See also Geoff Gilbert, "Running Scared Since 9/11: Refugees, UNHCR and the Purposive Approach to Treaty Interpretation" in James C Simeon, ed, Critical Issues in International Refugee Law (New York: Cambridge University Press, 2010). In a forthcoming article in the Canadian Journal of Human Rights, I criticize this and similar legislation in other countries for implementing legislative provisions which were unnecessary and certainly overly broad.

8. In Re SK, 23 I&N Dec 936 at 948 (BIA 2006), online: <http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3534.pdf>.

9. Ibid at 950. 

10. Prosecutor v Erdemovic (Pilica Farm Case), IT-96-22, Separate and Dissenting Opinion of Judge Cassese (7 October 1997) at para 47, online: <http://www.icty.org/x/cases/erdemovic/acjug/en/erd-adojcas971007e.pdf>. 

The Passing of a great Canadian Refugee Law Scholar - Nicole LaViolette

It is with sadness that we have learned of the passing of Professor Nicole LaViolette of the University of Ottawa Law Faculty. 

Professor LaViolette was a prolific scholar whose work covered numerous areas of law. Amongst her various accomplishments was a sustained and profound scholarship concerning refugee law and the protection of sexual minorities.

Her work may be found at: https://uottawa.academia.edu/NicoleLaViolette  

We wish to offer our heartfelt condolences to her partner, family, friends and colleagues.