En este trabajo, se analiza el tratamiento que, en la legislación y jurisprudencia españolas en materia de asilo y extranjería, merecen el cambio climático y el estado de salud de los ciudadanos ...extranjeros.
Recognition rates measure how far states afford rights to refugees. Recent developments of the Common European Asylum System (CEAS) have supplemented this measure with factors such as population and ...wealth. Concurrently, laws have developed nationally and Europe-wide regulating 'complementary protection' for those not qualifying as 'refugees' under the 1951 Convention. These two parallel developments in migration governmentality, I argue, are part of a process that increasingly complicates the field of knowledge around refugeehood, raising the level of expertise needed to access protection. This article focuses on the use of complementary protection in Europe since 1999 to explore (i) the legal process of proliferation of protection categories and (ii) the political process of calculating rates. The paper employs a methodological mix of ethnographic observation and critical readings of law and statistics to map various ways of counting recognition rates. This highlights the importance of statistics in feeding a narrative of liberal, Western, European society that protects refugees. Yet it is evident that both protection and its denial are constitutive of a CEAS governmentality that is best described as 'ordered fragmentation'. One of its basic assumptions is the denial of refugee agency, rendering states the subjects of the protection regime.
EU asylum law has without doubt a significant impact on international asylum law. The article focuses on the question if and how the subsidiary protection, the invention of the EU asylum law, should ...be extended to the international legal level. The EU has already been criticized for trying to replace the international refugee protection regime with the Qualification Directive rather than complementing it. Noting that the subsidiary protection is a subject of controversy within the EU itself regarding its interpretation and differences in use among the Member States, the criticism carries even more weight. The first part of the article presents the development and codification of complementary protection in the EU. The second part deals with the issue of discrimination among persons with refugee status and subsidiary protection. In the third part, current impact of the institute on the international asylum system is examined, while the last section gives a stance on the rationality and suitability of the application of subsidiary protection to the international level.
Arts 2(f) and 15(b) of the EU Qualification Directive confer subsidiary protection to those third-country nationals in respect of whom there are substantial grounds to believe that, if expelled, ...would face a real risk of suffering "torture or inhuman or degrading treatment or punishment". These provisions mirror the wording and risk-assessment criteria of art. 3 of the European Convention on Human Rights. This Article explores the possibility that protection from expulsion under art. 3 of the Convention is not followed by the award of subsidiary protection under EU law, leading to limbo-like situations of non-removability. By analysing the text of the Directive and the jurisprudence of both the Court of Justice of the EU and the European Court of Human Rights, and putting a particular emphasis on the case of MP (C‑353/16 ECLI:EU:C:2018:276), this Article shows an asymmetric dialogue between both courts in this field. By ruling that, in medical cases, applicants will need to be intentionally deprived of treatment in the country of origin in order to access subsidiary protection, the Court of Justice attaches a narrower scope to the very same concept and leaves the door open to situations of non-removability. This Article contends that the Directive allows for a different interpretation that captures the most recent developments of the principle of non-refoulement.
This special issue seeks to investigate and understand the various experiences of asylum-seekers, beneficiaries of subsidiary protection and refugees in accessing labour markets across the EU and EEA ...countries. The first section of this introduction provides an overview of the three groups of people who are the focus of this special issue and their relationship to the labour markets in the EU Member States and EEA countries. The second section provides insights into how the essential features of their labour market integration may be understood by using Levitas’ discourse analysis. The third section explores a range of different labour market access dimensions by focusing not only on the human capital aspects of migration in general but also on the contextual factors of civic stratification; the broader societal context, including public opinion and civil society; the background and situation of earlier migrants, especially asylum-seekers and refugees with respect to national/federal laws; and the countries of origin of migrants as well as demographic trends across the EU. The fourth and final section explains and justifies the focus of this special issue and emphasises the relevance of this topic.
Abstract
The present article deals with the issue of family unity in the field of international protection, with a special focus on the European Union (EU) rules and their compatibility with the ...European Convention on Human Rights (echr) standards. In particular, the scope of the article is limited to family transfers of seekers of international protection under the Dublin system and to family reunification procedures for refugees, and beneficiaries of subsidiary protection. After examining the legal framework at EU and domestic level, the present study focuses on two rather controversial issues, from a human rights perspective: on one side, the regulation of the right to family reunification for beneficiaries of subsidiary protection and, on the other side, the different treatment between pre- and post-flight families in the field of international protection. The article concludes that the current rules regarding these two issues are not compatible with Article 8 of the echr taken together with Article 14 of the echr, and with Article 8 of the echr taken alone. It suggests that while the EU and domestic legislature remains inactive in order to correct these inequalities, the non-discrimination clauses may become directly applicable.
This study focuses on what Japan’s Immigration Control and Refugee Recognition Act (ICRRA) calls ‘Special Permission to Stay’ (zairyū tokubetsu kyoka) on humanitarian grounds (SPS), and evaluates the ...extent to which SPS provides effective international protection for those who are not recognized as refugees in Japan. The evaluation uses the European Union’s Qualification Directive (QD) as a yardstick. This paper explains the legal framework through which Japan offers complementary protection and explores the application of the law in practice. By investigating cases of SPS granted in Japan over a five-year period, the authors infer the prevailing legal interpretations on critical elements of complementary protection policy not clearly defined in the ICRRA. Case law is not widely available in Japan, but the authors have analysed all of the available case summaries provided by the Ministry of Justice only in Japanese. This work represents the first research conducted in English into these summaries. Further, several elite interviews were conducted with key senior immigration officials to gain insight into the inner workings of the Japanese system of SPS. Based upon the empirical evidence collected, the research demonstrates that the ICRRA often lacks clarity and is too discretionary, but that it also provides flexibility that allows a more inclusive application of the law.
Executive Summary
Temporary Protected Status (TPS) became part of the US protection regime in 1990 to expand protection beyond what had been available under the US Refugee Act of 1980, which had ...limited asylum to those who met the refugee definition from the United Nations’ 1951 Refugee Convention. The TPS statute authorized the attorney general to designate foreign countries for TPS based on armed conflict, environmental disasters, and other extraordinary and temporary conditions that prevent designated nationals from returning in safety. While providing blanket protection that very likely has saved lives, TPS has nonetheless proven to be a blunt instrument that has frustrated advocates on both sides of the larger immigration debate.
This article evaluates the purpose and effectiveness of the TPS statute and identifies inadequacies in the TPS regime and related protection gaps in the US asylum system. It argues that TPS has not proven to be an effective mechanism for the United States to protect foreigners from generalized conditions of danger in their home countries. It calls for changing the US protection regime to make it more responsive to the risks many asylum seekers actually face by creating a broader “complementary protection” standard and a more effective procedure for assessing individual protection claims, while reserving “temporary protection” for rare situations of mass influx that overwhelm the government’s capacity to process individual asylum claims.
The article looks at alternative models for complementary protection from other jurisdictions, and shows how the US asylum and TPS system (in contrast to most other jurisdictions) fails to provide a mechanism for protecting arriving asylum seekers who do not qualify as refugees but who nevertheless would be at real risk of serious harm based on cruel, inhuman, or degrading treatment or punishment or because of situations of violence or other exceptional circumstances, including natural or human-made disasters or other serious events that disturb public order, that would threaten their lives or personal security.
The article proposes that the United States adopt an individualized complementary protection standard for arriving asylum seekers who are not able to meet the 1951 Refugee Convention standard but who would face a serious threat to life or physical integrity if returned because of a real risk of (1) cruel, inhuman, or degrading treatment or punishment; (2) violence; or (3) exceptional situations, for which there is no adequate domestic remedy.
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