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Review: Hathaway and Foster, The Law of Refugee Status 2nd edition
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Professor Hathaway’s original Law of Refugee Status has near mythical status in the lexicon of asylum lawyers. Published as it was in 1991, it was one of the first texts in the field, emanating from a time when English refugee law comprised largely basic propositions about the standard of proof, the need for anxious scrutiny, and the relevance of past persecution, in Sivakumaran, Musisi and Jonah respectively (leavened by healthy reference to the UNHCR Handbook); from before Attorney-General v Ward in the Supreme Court of Canada; and even pre-dating Rodger Haines’s launch of his great project of developing refugee law via a firm embrace of international human rights law in the New Zealand Refugee Status Appeals Authority.
For many years, Hathaway’s text, together with Professor Goodwin-Gill’s Refugee in International Law comprised the only academic materials which were both principled and contemporary on which an advocate could draw for inspiration by way of over-arching principles. I recall first encountering the book myself, shortly after I joined the Refugee Legal Centre, nestling in a corner of an erudite colleague’s filing cabinet.
The second edition, published in 2014, co-written with Professor Michelle Foster of Melbourne Law School, herself a recognised authority in the field, has now been published, more than two decades after its predecessor. It takes its place in a very different arena than did the original: for now the field of asylum commentary is more densely packed, with many UNHCR position papers, academic writers, and most of the world’s senior judiciary (at least in common law countries) all having expressed opinions on the core concepts of refugee law.
The narrative style is familiar from the first edition. Typically a salient issue is identified, analysed by reference to human rights and international law norms (my impression is that there is more emphasis on international, as opposed to human rights law, than in the first edition), before various real-world responses to the legal quandary in question are measured against that analysis. As with the first edition, and with acuity rare in the world of academic writing, the text displays an uncanny knack of identifying the really important issues of the era, before providing insightful analysis that simply demands attention from any serious advocate or principled decision maker.
An example of the practical application in the most common or garden asylum claims is the argument (familiar to readers of the first edition) that the “well founded fear” required by the Convention refugee should not be assumed to include any requirement that they positively hold any subjective fear: as the writers point out, a misconception to the contrary has resulted in a focus on aspects of asylum seeking behaviour, such as a delay in claiming asylum or a failure to claim asylum in a third country, that can seriously distract a decision maker from the task of assessing who it is that is genuinely at risk (section 2.2.1).
The lofty vantage point of the academic writer gives them distance from the considerations that sometimes occupy domestic status determiners, allowing them to propound propositions that domestic courts have struggled to swallow, often providing a stimulating rebuttal to received wisdom: for example
it really is not correct to see the assessment of sur place claims grounded in activities abroad as an invitation to abuse. To the contrary, but for the unlawful response of the home country to the contrived taunt, there would be no possibility of refugee status being recognised
The authors argue that the more appropriate response to stigmatise such cases would be to deny them access to benefits conferred under national discretion (eg naturalisation), leaving the Refugee Convention to operate as intended (section 1.4).
The great advantage of the academic is the ability to chart one’s course by scholarly principle, unsinkable by domestic or regional binding norms and precedents: and the authors take maximum advantage of this perspective. Doubtless many of their elegant arguments will face difficulties in the light of national precedents. An example from the United Kingdom involves the approach to returning asylum seekers to a third country. The argument (section 1.2) that there is a duty to avoid removal to a third country on the basis that an asylum seeker present in the determination process has effectively acquired rights under the Convention is incompatible (as the authors acknowledge) with the decision of the Supreme Court in ST Eritrea  UKSC 12 which based its conclusion that that the word “lawfully” in article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state on the principle that the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state and that there was no consensus among the commentators that lawful presence should be given any other (autonomous) meaning.
The authors address many of the most pressing issues in international protection law, and are critical of the Qualification Directive’s suggestion that it is only those forms of harm which “constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made” that should constitute persecution (the Court of Appeal in SH (Palestinian Territories)  EWCA Civ 1150 took): the authors point out that the UN Human Rights Committee’s opinion that some rights are recognised as non-derogable, not because they are normatively superior to others, but because their suspension is irrelevant to the state’s control at a time of emergency, meaning that some rights of the most profound importance may not be protected from derogation; besides, reference only to those rights which happen to be derogable in the European Union’s particular legal space, governed by the ECHR, threatens the policy objective of giving the Refugee Convention a consistent international interpretation across the world. No less than 171 States have approved the 1993 Vienna Declaration which held that “all human rights are universal, indivisible and interdependent and interrelated [and to be treated] globally in a fair and equal manner, on the same footing …” and the fact that social and economic rights are proclaimed only in the context of progressive implementation did not imply that they were any less important, merely that their achievement was a longer-term objective.
Far preferable, it is argued, would be to ask three questions:
(1) Is the interest at stake within the ambit of a widely ratified human rights norm?
(2) If so, is the risk nevertheless acceptable by reference to the scope of the right as codified (permitting reference to whether a right is derogable or capable of limitation in the public interest)?
(3) Is the breach of a right as codified de minimis because it is marginal?
The authors propound a principled argument that risks to health may ground a claim of persecution not only where inhuman or degrading treatment results, but additionally where there is “a sustained or systemic risk of deprivation, withdrawal, or denial of critical or essential health care or medical treatment may also evince the required risk of serious harm”, given that human rights law does not see “resource insufficiency as grounds to excuse the failure to allocate available resources without discrimination” (section 3.3). Equally thought-provoking is their insight that “an Australian decision assessing risk of “prosecution” under Bangladeshi law for desertion of a merchant ship failed even to inquire whether such a law was in breach of the prohibition of enforced labor” (section 3.4.2); and the reminder that as time moves on, the need for the Refugee Convention to remain a living instrument may require revisiting established precedents such as Sepet and Bulbul  UKHL 15 (which found that the right of an individual to make a principled objection to military service was not a peremptory norm of international law), given that the UN Human Rights Commission was able, by June 2012, to write that “the right to conscientious objection to military service is inherent in the right to freedom of thought, conscience and religion” (Atasoy and Sarkut v Turkey, see further the ECtHR in Bayatyan v. Armenia (Application no. 23459/03; 7 July 2011); section 3.5.2).
The authors remain critical of the approach taken to asylum claims by several jurisdictions, including the United Kingdom, to the assessment of whether a state is unable to provide protection against serious harm (section 4.2.2). They contend that the “practical standard of protection” of which the House of Lords spoke in Horvath is derived from an area of law (that of state responsibility) whose own objectives are far from the Refugee Convention’s humanitarian aim of avoiding a real risk of individuals facing serious harm; and point out that the legacy of the “due diligence” standard has been vagueness and uncertainty, inimicable to equipping decision makers with the necessary equipment to assess future risks. It may be that the Qualification Directive itself recognises the inadequacy of any system of protection that fails to ameliorate a real risk of serious harm arising, given the wording of Article 7(2) which requires that “protection against persecution or serious harm must be effective”: the precise content of the protection test in the European legal order may one day be the subject of a Reference to the CJEU.
In short, the book is a prerequisite for the serious international protection advocate: now it is for the refugee law community, be they advisor, advocate or judge, to take up the baton provided by its distinguished authors in ensuring that the Refugee Convention retains its value as a living instrument.