The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union

T H E L I M I T S OF T R A NSNAT IONA L L AW

State authority and power have become diff used in an increasingly globalized world characterized by the freer trans-border movement of people, objects and ideas. As a result, some international law scholars believe that a new world order is emerging based on a complex web of transnational networks. Such a transnational legal order requires sufficient dialogue between national courts. Th is book explores the prospects for such an order in the context of refugee law in Europe, focusing on the use of foreign law in refugee cases. Judicial practice is critically analysed in nine EU member states, with case studies revealing a mix of rational and cultural factors that lead judges rarely to use each other’s decisions within the EU. Conclusions are drawn for the prospects of a Common European Asylum System and for international refugee law. guy s. goodwin-gill is Professor of International Refugee Law at the University of Oxford, Senior Research Fellow at All Souls College and a Barrister at Blackstone Chambers, London. hélène lambert is Reader in Law at the University of Westminster. She has written extensively on asylum, refugees and human rights, and has acted as a consultant for the Council of Europe, and the governments of Moldova, Ukraine and Serbia-Montenegro.

T H E L I M I TS OF T R A NSNAT IONA L L AW Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union

Edited by GU Y S . G O ODW I N-GI L L and H É L È N E L A M BE RT

c a m br i d g e u n i v e r s i t y p r e s s Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521198202 © Cambridge University Press 2010 Th is publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data The limits of transnational law : refugee law, policy harmonization and judicial dialogue in the European Union / [edited by] Hélène Lambert, Guy S. Goodwin-Gill. p. cm. ISBN 978-0-521-19820-2 (hardback) 1. Law–European Union countries–International unification. 2. International and municipal law–European Union countries. 3. Confl ict of laws– European Union countries. 4. Asylum, Right of–European Union countries. 5. Refugees–Legal status, laws, etc.–European Union countries. 6. Emigration and immigration law–European Union countries. 7. Judicial review–European Union countries. I. Lambert, Hélène. II. Goodwin-Gill, Guy S. III. Title. KJE969.L56 2010 342.2408′3–dc22 ISBN 978-0-521-19820-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Notes on contributors and editors Acknowledgements xv Abbreviations xvi 1

page xi

Transnational law, judges and refugees in the European Union 1 hélène lambert Transnational law, policy harmonization and refugees in the European Union 3 Exploring transnational refugee law

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Where is the reference? On the limited role of transnational dialogue in Belgian refugee law 17 jean-yves carlier and dirk vanheule Introduction

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The refugee status determination process in Belgium 17 Migration and asylum law 17 18 Admissibility of the claim From 1988 to 1 June 2007 18 20 Since 1 June 2007 Determination of the merits of the claim 20 20 From 1988 to 1 June 2007 Since 1 June 2007 21 The legal framework within which the asylum authorities operate 22 25 Survey of the case law in Belgium Detailed analysis 25 25 The interpretation of the Refugee Convention Similar facts 27 29 Civil law Judgments of the European Court of Human Rights

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Contents On the absence of a transnational dialogue 30 A rational account on the absence of a transnational dialogue 30 30 Linguistic constraints Time constraints 31 31 Access to foreign case law A cultural account on the absence of a transnational dialogue 31 31 The style of judgments and the legal culture The conceptual legal framework within which the judge operates 32 33 The domestic dynamic surrounding refugee law cases

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Transnational refugee law in the French courts: deliberate or compelled change in judicial attitudes? 35 hélène lambert and janine silga Introduction

35

37 The asylum decision-making process in France The use of foreign law by French courts: empirical focus on refugees and asylum jurisprudence 41 42 Methodology Council of State 43 43 Refugee Appeals Board/National Asylum Court Reasons for the lack of transnational traffic of jurisprudence between France and its EU partners 48 48 Rational account Language 49 49 Time constraints and access Training 50 51 Cultural account Style of judgments 52 The conceptual legal framework within which the judge 52 operates The domestic dynamic surrounding cases 53 Conclusion

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The use of foreign asylum jurisprudence in the German administrative courts 57 paul tiedemann Introduction 57 The role of jurisprudence and academic writing in German

Contents

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refugee law cases 62 The role of jurisprudence and academic writing in the interpretation of the law 62 66 The use of foreign law in the process of fact-finding The use of foreign jurisprudence by German courts – empirical study 67 References and discussion of foreign case law in published court 67 decisions Survey among German administrative court judges 73 Reasons for the lack of reference to foreign jurisprudence Access and language 78 80 The ‘Two-Worlds Doctrine’

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The solipsistic legal monologue of Italian authorities francesco messineo A brief introduction to the Italian legal mind

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International protection in Italy: the institutional framework 89 89 Old principles of recent implementation The comparatively small number of asylum applications until 2007 and the recent increase 91 92 The two Italian asylum procedures Constitutional asylum: lack of implementing procedures 93 94 Refugee status determination and subsidiary protection The use of foreign law by authorities deciding on international protection 99 Deciding authorities 99 Administrative authorities: Central, Local and Integrated 99 Commissions Judicial authorities: administrative and civil courts 102 104 The opinion of selected key practitioners Conclusion

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‘Thou shalt not judge’ … Spanish judicial decision-making in asylum and the role of judges in interpreting the law 107 maría-teresa gil-bazo Introduction 107 Asylum as a subjective right of individuals in the Spanish legal order 110 The Spanish asylum procedure

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Contents Admissibility procedure 114 Applications at the border 115 116 In-country applications Examination on the merits 116 The Spanish legal order: the role of judges in interpreting international 117 treaties and the value of jurisprudence and precedent Analysis of case law and main findings Conclusion

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The British judiciary and the search for reciprocal relations with its continental partners 125 hélène lambert, with the assistance of raza husain Introduction 125 Conception of asylum and the decision-making process in the United 127 Kingdom Initial decision 128 129 Appeals The use of foreign law in the British courts: empirical focus 131 132 House of Lords English Court of Appeal and Scottish Court of Session 134 137 High Court Administrative Court 138 138 Asylum and Immigration Tribunal Reasons for the lack of traffic in jurisprudence between the UK and its EU partners 140 141 Rational account Language 141 141 Time constraints and access Training 142 143 Cultural account Style of judgments 143 144 The conceptual framework within which the judge operates The domestic dynamic surrounding refugee law cases 145 Conclusion

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Speaking across borders: the limits and potential transnational dialogue on refugee law in Ireland 150 siobhán mullally Introduction

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Contents

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Asylum determination in Ireland: the process

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Status of foreign case law 159 Selected decisions of the Refugee Appeals Tribunal Conclusion

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The absence of foreign law in Danish asylum decisions – quasijudicial monologue with domestic policy focus? 170 jens vedsted-hansen Introduction

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Procedure and organization of the decision-making process 171 171 General features of judicial control of the executive Admissibility issues and first instance examination of asylum applications 172 173 Appeals procedure Special review procedure in manifestly unfounded cases 175 176 The use and absence of foreign law Method and premise of the study 176 177 Case law reports from the Refugee Appeals Board Survey of practising lawyers 178 Explanatory context – and potential challenges to the absence of 179 transnational law Denmark’s reservation towards EC harmonization 179 181 Finality clause: no ordinary judicial review Dualistic tradition and judicial pragmatism 182 The ‘domestication’ dilemma – and the emerging challenges

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Foreign law in Swedish judicial decision-making: playing a limited role in refugee law cases 186 rebecca stern Introduction

186

Sweden and public international law The judicial system 188 188 General comments The Swedish asylum procedure A survey of national case law on asylum Methodology 191 192 Government 193 Aliens Appeal Board 194 Migration Courts

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189 191

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contents Migration Court of Appeal 194 ‘Invisible traffic’ 195 196 General comments on the survey Possible reasons for the lack of reference to foreign jurisprudence in Swedish refugee law judgments 197 198 Rational account Cultural account 199 Conclusion

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The search for the one, true meaning … guy s. goodwin-gill

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Introduction 204 Basic principles of interpretation 206 ‘Subsequent practice’ and the UNHCR Handbook

209

The theory and practice of treaty interpretation 213 217 ‘Subsequent practice’ and ‘foreign citation’ The role of UNHCR 218 Approaches to interpretation in the case law of the United 220 Kingdom The search for ‘autonomous meaning’ 222 The place of the UNHCR Handbook in the pursuit of 224 autonomous meaning Express words and the limits to interpretation 227 229 Interpretation in the face of ambiguity or obscurity The ‘living instrument’ approach 231 Conclusion

Bibliography Index 255

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CONTR IBUTORS AND EDITORS

jean-yves carlier is Professor of Law in the Department of International Law and Director of the Centre for Human Rights, Université Catholique de Louvain, Belgium, and avocat. His recent publications include Europe and Refugees. A Challenge? L’Europe et les réfugiés: un défi? (with D. Vanheule, 1997), Who is a Refugee? (with K. Hullmann, C. Pena Galiano and D. Vanheule, 1997) and Immigration and Asylum Law of the EU: Current Debates (edited with Ph. De Bruycker, 2005). maría-teresa gil-bazo is Lecturer in Law, Newcastle Law School (Newcastle University) and Research Associate, Refugee Studies Centre (Oxford University). She was a principal contributing author to the latest edition of UNHCR’s The State of the World’s Refugees (2006). Dr Gil-Bazo’s recent publications include ‘Refugee Status and Subsidiary Protection under EC Law: The Qualification Directive and the Right to Be Granted Asylum’, in A. Baldaccini, E. Guild, H. Toner (eds.), Whose Freedom, Security and Justice?: EU Immigration and Asylum Law and Policy (2007), 229–64, ‘The Protection of Refugees under the Common European Asylum System. The Establishment of a European Jurisdiction for Asylum Purposes and Compliance with International Refugee and Human Rights Law’, Cuadernos Europeos de Deusto, 36 (March 2007), 153–82, and ‘The Practice of Mediterranean States in the Context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited’, International Journal of Refugee Law 18 (2006), 571–600. guy s. goodwin-gill is Professor of International Refugee Law at the University of Oxford, Senior Research Fellow at All Souls College and a Barrister at Blackstone Chambers, London. He was formerly Professor of Asylum Law at the University of Amsterdam, and served as a Legal Adviser in the Office of the United Nations High Commissioner for Refugees in various countries from 1976 to 1988. Since 1997 he has been President of Refugee and Migrant Justice, formerly the Refugee Legal Centre, and since

xi

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Notes on contributors and editors

2009 he has also been a Patron of Asylum Aid (both UK non-governmental organizations). He is the Founding Editor of the International Journal of Refugee Law and was Editor-in-Chief from 1989 to 2001. Professor GoodwinGill’s recent publications include The Refugee in International Law, 3rd edn (with Jane McAdam, 2007), Free and Fair Elections, 2nd edn (2006), and Basic Documents on Human Rights, 6th edn (edited with Ian Brownlie, QC, 2010). raza husain is a Barrister at Matrix Chambers, London, and practises extensively in refugee, immigration and human rights law. He is the co-author (with Nicholas Blake, QC) of Immigration, Asylum and Human Rights (2003). hélène lambert is Reader in Law at the University of Westminster. She previously taught at the University of Brunel and at the University of Exeter. She has written extensively on asylum, refugees and human rights. Her recent publications include International Refugee Law (as editor, 2010), International Law and International Relations (with D. Armstrong and T. Farrell: Cambridge University Press, 2007) and The Position of Aliens in Relation to the European Convention on Human Rights, 3rd edn (2006). She is also author of numerous articles in the International and Comparative Law Quarterly, the International Journal of Refugee Law and the Refugee Survey Quarterly. Dr Lambert has acted as a consultant to the Council of Europe and the Governments of Moldova, Ukraine and Serbia-Montenegro. francesco messineo is Whewell Scholar in International Law 2007–2008 and a postgraduate research student at the University of Cambridge (King’s College). He was Refugee and Migrants’ Rights Coordinator of Amnesty International Italy 2004–2006. He is the co-author (with Hélène Lambert and Paul Tiedemann) of ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’, Refugee Survey Quarterly 27 (2008), 16–32, and the author of Lampedusa: ingresso vietato – Le deportazioni degli stranieri dall’Italia alla Libia [‘Lampedusa: Forbidden Entrance – The Deportation of Migrants from Italy to Libya’] (2005). siobhán mullally is Senior Lecturer in Law, University College Cork, Ireland. She was Chairperson of the Irish Refugee Council from 2006 to 2008. She is currently Editor of the Irish Yearbook of International Law (2007–). Dr Mullally’s recent publications include ‘Migrant Women Destabilising Borders: Citizenship Debates in Ireland,’ in D. Cooper et al. (eds.) Intersectionality and Beyond: Law, Power and the Politics of Location

Notes on contributors and editors

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(2008) 251–70, Reclaiming Universalism: Gender, Culture and Human Rights (2006), ‘Defining the Limits of Citizenship: Family Life and the Jus Soli Principle’, Legal Studies 25 (2005), 579–600, ‘Debating Reproductive Rights in Ireland’, Human Rights Quarterly 27 (2005), 78–104, ‘As nearly As May Be: Debating Women’s Human Rights in Pakistan’, Social and Legal Studies: An International Journal 13 (2005), 341–58, ‘Revisiting the Shah Bano Case: Feminism and Multicultural Dilemmas in India’, Oxford Journal of Legal Studies 24 (2004), 671–92, ‘Manifestly Unfounded Asylum Claims in Ireland’, European Public Law 8 (2002), 525–43, and ‘The Irish Supreme Court and the Illegal Immigrants (Trafficking) Bill, 1999’, International Journal of Refugee Law 13 (2001) 354–62. janine silga is a Ph.D candidate at the European University Institute, Florence. She is writing her doctoral thesis on ‘The Management of the Links between International Migration and Development by the European Union – A Legal Analysis of the Policy Options’. rebecca stern is a Senior Researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Stockholm. Dr Stern previously worked as a Legal Officer for the Swedish Red Cross, Stockholm. She wrote her PhD thesis on ‘The Child’s Right to Participation – Reality or Rhetoric?’ (Uppsala University, 2006). paul tiedemann (Dr. iur, Dr. phil.) is a judge at the Administrative Court, Frankfurt am Main, a Lecturer in Asylum Law at the University of Giessen, and the director of the International Association of Refugee Law Judges Database. His recent publications include ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace? ’, Refugee Survey Quarterly 27 (2008), 16–32 (with Hélène Lambert and Francesco Messineo), ‘Human Dignity: The Basis of Human Rights or the Basis of Human Duties?’ and ‘Protection of Human Rights in German Courts’, in Boštian Zalar (ed.), Five Challenges for European Courts: The Experiences of German and Slovenian Courts (2004), and ‘Protection Against Persecution on Ground of Membership of a Particular Social Group’, in Institut für öffentliches Recht Universität Bern (Hrsg.): The Changing Nature of Persecution – La Nature Changeante de la Persécution (2001), 340ff. dirk vanheule is Professor of Law at the University of Antwerp, Belgium. He is also a member of the Ghent Bar (avocat) and a vice-director of the Centre for Migration and Intercultural Studies at the University of Antwerp.

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Notes on contributors and editors

His publications include Europe and Refugees. A Challenge? L’Europe et les réfugiés: un défi? (with J. Y. Carlier, 1997 ), Who is a Refugee? (with J. Y. Carlier, K. Hullmann and C. Pena Galiano, 1997). He is the editor of International Encyclopedia for Migration Law, 2008. jens vedsted-hansen is Professor of Law at the University of Aarhus, Denmark. He served as a member of the Danish Refugee Appeals Board from 1987 to 1994. He is a member of the editorial board of The Refugee Law Reader (www.refugeelawreader.org) and of the Odysseus Academic Network of Legal Studies on Immigration and Asylum in Europe. He recently published ‘Migration and the Right to Family and Private Life’, in V. Chetail (ed.): Mondialisation, migration et droits de l’homme: le droit international en question – Globalisation, Migration and Human Rights: International Law under Review, Vol. II (2007), 689–72, Udlændingeret (Aliens Law), 3rd edition, (with L. B. Christensen et al., 2006); ‘Common EU Standards on Asylum – Optional Harmonisation and Exclusive Procedures?’, European Journal of Migration and Law 7 (2005), 369–76, ‘The Borderline Between Questions of Fact and Questions of Law’, in G. Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (2005), 57–65, ‘Denmark’, in I. Higgins (ed.), Migration and Asylum Law and Policy in the European Union. FIDE 2004 National Reports (Cambridge University Press, 2004), 65–87 (with Rosemary Byrne and Gregor Noll), ‘Understanding Refugee Law in an Enlarged European Union’, European Journal of International Law 15 (2004), 355–79 (with Rosemary Byrne and Gregor Noll), New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union (2002) and Complementary or Subsidiary Protection? Offering an Appropriate Status without Undermining Refugee Protection, New Issues in Refugee Research: Working Paper No. 52, UNHCR Geneva 2002.

AC K NOW L E D GE M E N T S

The editors express their most sincere gratitude to Roger Errera (Conseil d’État, France), Hugo Storey (Asylum and Immigration Tribunal, UK) and Vera Zederman (National Asylum Court, France) for their consistent help and strong support during this project, and to Giovanna Ingrascí for so kindly offering the use of one of her paintings for the book cover. We would also like to thank the Nuffield Foundation and the British Academy for the grants that made this research possible. More particularly, the award from the Nuffield Foundation enabled Hélène Lambert to conduct the research for this project. The award from the British Academy enabled the project authors to meet in London for a two-day workshop organized at the University of Westminster in January 2008. We wish to acknowledge gratefully the following for their critical feedback at the project workshop: Peter Burbridge (University of Westminster), Alan Deve (UNHCR London), Geoff Gilbert (University of Essex), Caroline Henricot (Université Catholique de Louvain), Brendan Kelly (University of Westminster), Magdalena Kmak (Europe an Council on Refugees and Exiles), Nick Oakeshott (Refugee Legal Centre now Asylum Aid), Mark Ockelton (Asylum and Immigration Tribunal), Hugo Storey (Asylum and Immigration Tribunal), Rebecca Wallace (Robert Gordon University, Aberdeen). Thanks also to Emma McClean (University of Westminster) for her valuable help and support during the event. In addition, the authors express special thanks to individuals in their chapters. Hélène Lambert also thanks the University of Westminster (her home institution since September 2007) and Brunel University (her home institution 2005–7) for light teaching periods which supported this project, and also for much intellectual stimulation in so many ways. Finally, we would like to thank all the staff at Cambridge University Press who have been involved in the publication of this book (in particular, Brenda Burke, Matthew Davies, Helen Francis, Thomas O’Reilly and Richard Woodham) and especially Finola O’Sullivan for her vision and patience! xv

A BBR EV I AT IONS

AIT All ER AN ARK BGBl BOE BVerfG BVerfGE BVerwG CALL

Cass. CC CEAS CESEDA CGRSP CIRB COI CRR CS Dir. Imm. Citt. EAW EC ECHR ECJ

Asylum and Immigration Tribunal All England Law Reports Audiencia Nacional (Spain) Asylrekurskommission (Switzerland) Bundesgesetzblatt (Germany) Boletín Oficial del Estado (Spain) Bundesverfassungsgericht (Federal Constitutional Court) (Germany) Bundesverfassungsgericht Entscheidungen (Decisions of the Federal Constitutional Court – Germany) Bundesverwaltungsgericht (Federal Administrative Court) (Germany) Council for Alien Law Litigation (Belgium) (Conseil du Contentieux des Étrangers, Raad voor Vreemdelingenbetwistingen) Court of Cassation (Belgium) (Cour de Cassation, Hof van Cassatie) Constitutional Court (Belgium) (Cour Constitutionnelle, Grondwettelijk Hof) Common European Asylum System Code de l’entrée et du séjour des étrangers et du droit d’asile (France) Commissioner General for Refugees and Stateless Persons (Belgium) Canadian Immigration and Refugee Board Country of origin information Commission de Recours des Réfugiés (France) Council of State (Belgium) (Conseil d’État, Raad van State) Diritto, immigrazione e cittadinanza (Italy) European Arrest Warrant European Community European Convention on Human Rights European Court of Justice

xvi

Abbreviations ECRE ECtHR EHRR ETS EU EWCA EWHC FGM Foro It. GA GG GISTI Giur. It. IARLJ IAT ICJ ICS ICCPR IGO ILR ILRM InfAuslR INGO INIS INLR IR L LJ MB MR NAM NGO NVwZ – Beilage OAR OFPRA OJ OLG OVG PRAC

xvii

European Council on Refugees and Exiles European Court of Human Rights European Human Rights Reports European Treaty Series European Union Court of Appeal in England and Wales High Court in England and Wales Female genital mutilation Foro italiano General Assembly Grundgesetz (German Constitution) Groupe d’information et de soutien des immigrés Giurisprudenza italiana International Association of Refugee Law Judges Immigration Appeals Tribunal International Court of Justice Consorzio Italiano di Solidarietà International Covenant on Civil and Political Rights Inter-governmental organization International Law Reports Irish Law Reports Monthly Informationsbrief Ausländerrecht International non-governmental organization Irish Naturalisation and Immigration Service Immigration and Nationality Law Reports Irish Reports Legislation Ley 29/1998, de 13 de julio, reguladora de la jurisdicción contencioso-administrativa (Spain) Moniteur belge (Belgian Official Journal) Master of the Rolls New Asylum Model Non-governmental organization Neue Zeitschrift für Verwaltungsrecht – Beilage Office on Asylum and Refuge (Spain) Office français de protection des réfugiés et apatrides Official Journal (of the European Union) Oberlandesgericht (German Civil Court, second instance) Oberverwaltungsgericht (German administrative court of the second instance – official name in most Länder) Permanent Refugee Appeals Commission (Belgium) (Commission Permanente de Recours des Réfugiés, Vaste Beroepscommissie voor vluchtelingen)

xviii Prop. PRT RAT RD Riv. Amm. Rep. It. Riv. Dir. Int. RLC RMJ RSD SEF SFS SIAC SOU SR TANGO TEC UBAS UK UN UNHCHR UNHCR UNRWA UNTS VG VGH Vol. VwGO WLR ZAR

Abbreviations Proposition (Government Bill) (Sweden) Protection Review Tribunal (Ireland) Refugee Appeals Tribunal (Ireland) Real Decreto (Spain) Rivista amministrativa della Repubblica Italiana Rivista di diritto internazionale Refugee Legal Centre Refugee and Migrant Justice Refugee status determination Statement of evidence form Svensk författningssamling (Swedish Code of Statutes) Special Immigration Appeals Commission Statens offentliga utredningar (Swedish Government Official Report) Sections Réunies (France) Transnational non-governmental organization Treaty Establishing the European Community Unabhängiger Bundesasylsenat (Independent Federal Asylum Senate – Austria) United Kingdom Utlänningsnämnden (Aliens Appeals Board) United Nations High Commissioner for Human Rights United Nations High Commissioner for Refugees United Nations Relief and Works Agency United Nations Treaty Series Verwaltungsgericht (administrative court, first instance) Verwaltungsgerichtshof (administrative court, second instance – official name in some Länder) Volume Verwaltungsgerichtsordnung (Administrative Court Procedure Act) Weekly Law Reports Zeitschrift für Ausländerrecht

1 Transnational law, judges and refugees in the European Union Hélène Lambert *

State authority and power have become diff used in an increasingly globalized world characterized by the freer trans-border movement of people, objects, and ideas.1 This has led some international law scholars, working from the American liberal tradition, to declare the emergence of a new world order based on a complex web of transgovernmental networks.2 The European Union (EU) is held as a prime example of this development, and indeed of the future trajectory of this world order. This volume explores the prospects for a transnational legal order in the context of refugee law in Europe.3 Asylum is a policy area that, by its very nature, demands inter-state cooperation and the 1951 Convention Relating to the Status of Refugees (Refugee Convention)4 is the basic instrument that provides for this. Within the EU, the imperative for deeper cooperation is * I wish to thank Roger Errera (Conseiller d’État Honoraire, Visiting Professor at CEU, Budapest), Vera Zederman (Director of the Legal Documentation Centre, National Asylum Court/Refugee Appeals Board), Zeta Georgiadou and Doede Ackers (Policy Officers, European Commission, DG Justice, Freedom Security, Directorate Immigration, Asylum Borders), for agreeing to be interviewed for the purposes of this chapter. 1 M. Barnett and R. Duvall (eds.), Power in Global Governance (Cambridge University Press, 2005). 2 A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004); E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, American Journal of International Law 75 (1981), 1–27. 3 Transnational law has been defined by the late Philip C. Jessup, Judge at the International Court of Justice, as ‘the law which regulates actions or events that transcend National frontiers … includ[ing] both … public and private international law’, in Philip Jessup, Transnational Law (New Haven: Yale University Press, 1956), p. 2. In a more global refugee law context, see H. Lambert, ‘International Refugee Law: Dominant and Emerging Approaches’, in D. Armstrong (ed.) Handbook of International Law (London: Routledge, 2008), pp. 344–54. 4 UN Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951, 189 UNTS 150.

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Hélène Lambert

present, given the provision for the free movement of persons within the Union. EU member states have committed themselves to greater harmonization of their national laws on asylum, but interpretation and application of these new EC laws depend to a large extent on national judiciaries. Thus, the success of the harmonization, as a tool for international protection in the EU, substantially depends on the development of common judicial understandings, principles and norms concerning refugee matters. As a general trend, judges are now commonly and increasingly paying attention to the law of foreign countries as a guide to their own decisions. It has even been suggested that we may be witnessing the emergence of a global jurisprudence, especially in the area of human rights.5 This affinity with foreign sources of a domestic nature is particularly present in Commonwealth courts, due no doubt to shared legal cultures and a common allegiance, historically, to the Privy Council; hence, Lord Bingham suggests that we may be facing ‘a new dawn of internationalism in the English legal world’.6 In Europe this debate has traditionally focused on a three-dimensional dialogue: between national judges and European judges (for example, the European Court of Justice (ECJ) or the European Court of Human Rights (ECtHR)), between European judges themselves, and between national judges of the different member states (that is, the transnational dialogue). This volume focuses on the last dimension – namely, the dialogue between national judiciaries – as scholarship to date has focused on the dialogue between the European courts and the national courts,7 and 5

6

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A.-M. Slaughter, ‘A Typology of Transjudicial Communication’, University of Richmond Law Review, 29 (1994), 99–137; ‘Judicial Globalization’, Virginia Journal of International Law, 40 (2000), 1103–24; ‘A Global Community of Courts’, Harvard International Law Journal , 44 (2003), 191–219; C. McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’, Oxford Journal of Legal Studies, 20 (2000), 499–532. Sir T. Bingham, ‘ “There is a World Elsewhere”: The Changing Perspectives of English Law’, International and Comparative Law Quarterly, 41 (1992), 513–29, at 515. McGoldrick also observes: ‘The overall effect of the HRA [Human Rights Act 1998] has been a significant increase in the use of comparative jurisprudence, with Canadian materials having the strongest influence’, in D. McGoldrick, ‘The United Kingdom’s Human Rights Act 1998 in Theory and Practice’, International and Comparative Law Quarterly, 50 (2001), 901–53. T. Koopmans, ‘Comparative Law and the Courts’, International and Comparative Law Quarterly, 45 (1996), 545–56. K. Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’, International and Comparative Law Quarterly, 52 (2003), 873–906. V. P. Pescatore, ‘Le recours dans la jurisprudence de la Cour de Justice des Communautés Européennes à des normes déduites de la comparaison des droits des Etats membres’, Revue trimestrielle de droit communautaire (1980), 337. T. Franck and G. Fox, ‘Transnational Judicial Synergy’, in Franck and Fox (eds.) International Law Decisions in National Courts (New York: Transnational Publishers, 1996).

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between judges in the European courts.8 Some work has been done on the dialogue between national judiciaries9 but not in the area of refugee law.10 And yet what is so new about the liberal suggestion of an emerging transnational legal order is precisely the importance and role of horizontal networks (of policymakers, regulators, and judges).

Transnational Law, policy harmonization and refugees in the European Union The American liberal tradition in international law has long promoted the role of non-state actors and progressive values in the world legal order.11 More recently, the emphasis has been on the role of transnational networks of government officials alongside the traditional place of states.12 These transnational networks and processes clearly contribute to international normative activity, and to a changing conception of the world less dominated by a vertical notion of international law and domestic law.13 8

9

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12 13

Fr. Lichère, L. Potvin-Solis and A. Raynouard (eds.), Le dialogue entre les juges européens et nationaux: incantation ou réalité? (Brussels: Bruylant, 2004). Ch. L. Rozakis, ‘The European Judge as Comparatist’, Tulane Law Review, 80 (2005), 257–80. McCrudden, ‘A Common Law of Human Rights?’, 499. G. Canivet, M. Andenas and D. Fairgrieve, Comparative Law Before the Courts, London: British Institute of International and Comparative Law (2004). P. Legrand, ‘European Legal Systems are not Converging’, International and Comparative Law Quarterly, 45 (1996), 52–81. R. SeftonGreen, ‘Compare and Contrast: Monstre à Deux Têtes’, Revue internationale de droit comparé, 1 (2002), 85–95. B. S. Markesinis, ‘Judge, Jurist and the Study and Use of Foreign Law’, Law Quarterly Review, 99 (1993), 622–35; and ‘A Matter of Style’, Law Quarterly Review, 110 (1994), 607–28. B. S. Markesinis and J. Fedtke, ‘The Judge as Comparatist’, Tulane Law Review, 80 (2005), 11–167, and by the same authors, and very much based on that article, Judicial Recourse to Foreign Law. A New Source of Inspiration? (University of Texas at Austin and University College London Press, 2006). With one exception in the form of a report written by Gábor Gyulai, ‘Country Information in Asylum Procedures – Quality as a Legal Requirement in the EU’, Hungarian Helsinki Committee, 2007. And now see H. Lambert, ‘Transnational Judicial Dialogue, Harmonization and the Common European Asylum System’, International and Comparative Law Quarterly, 58 (2009), 519–43. H. D. Lasswell and M. S. McDougal, ‘Legal Education and Public Policy: Professional Training in the Public Interest’, Yale Law Journal, 52 (1943), 203–95; M. S. McDougal and H. D. Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, American Journal of International Law, 53 (1959), 1–29; M. S. McDougal, ‘Some Basic Concepts about International Law: A Policy Orientated Approach’, Journal of Conflict Resolution, 4 (1960), 337–54. Slaughter, A New World Order. A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press, 2007). J. E. Alvarez, International Organizations as Law-makers (Oxford University Press, 2005).

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Anne-Marie Slaughter, in particular, identifies the existence of a growing judicial globalization phenomenon whereby judges around the world are increasingly talking to each other and citing each other’s decisions. Th is, she argues, means that we are witnessing ‘the gradual construction of a global legal system’.14 This global system is not just vertical as we used to know it (for instance, where the International Court of Justice (ICJ) or the ECJ gives a judgment or an advisory opinion which national courts then apply). Rather it is much more complex and messier, with vertical and horizontal networks of national and international judges.15 Refugee law offers a particularly interesting case-study because it has evolved mostly under the influence of judges – so it has ‘become fundamentally judicialized’.16 And this is reflected in the key role occupied by high courts as ‘agents of normative change’,17 particularly in the area of refugees’ rights.18 Furthermore, refugee law lacks an international court competent to provide a common interpretation of the Refugee Convention (unlike the area of human rights law for instance),19 thereby leaving it to each contracting state ultimately to interpret the Refugee Convention. In sum, refugee law provides tremendous opportunity in terms of seeking a greater transnational judicial role. There is some evidence of such transjudicial activity in refugee law, among senior appellate judges in Commonwealth countries. James Hathaway notes: Senior appellate courts now routinely engage in an ongoing and quite extraordinary transnational judicial conversation about the scope of the refugee definition and have increasingly committed themselves to find common grounds.20 14 15

16

17

18

19

20

Slaughter, A New World Order, at 67. Ibid. Slaughter is not arguing that government networks will replace the existing infrastructure of international institutions, but will rather complement and strengthen them. J. C. Hathaway, ‘A Forum for the Transnational Development of Refugee Law: The IARLJ’s Advanced Refugee Law Workshop’, International Journal of Refugee Law, 15 (2003), at 418. V. Guiraudon, ‘European Court and Foreigners’ Rights: A Comparative Study of Norms Diff usion’, International Migration Review, 34 (2000), 1088–125, at 1107. D. Anker, ‘Law, Gender, and the Human Rights Paradigm’, Harvard Human Rights Journal, 15 (2002), 133–54. Slaughter, ‘A Typology of Transjudicial Communication’, at 121 and 127. On the use of comparative law in the UK since the HRA, see McGoldrick, ‘The United Kingdom’s Human Rights Act’, at 901. J. C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005), at 1–2, referring in particular to Slaughter, ‘A Typology of Transjudicial

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Hathaway further observes: Where no domestic precedent exists, courts are increasingly (and appropriately) inclined to seek guidance from the jurisprudence of other state parties to the Convention.21

Judges also refer more and more to the work of leading academic authorities.22 However, this trend is less in evidence outside the Commonwealth. The International Association of Refugee Law Judges’ (IARLJ) own estimate is that there is a problematic lack of referencing between European countries.23 But, as yet, there has been no study on the precise extent of this problem. This volume therefore assesses the extent to which judges in the member states of the EU rely on each other’s decisions on asylum and refugee status when making their own decisions. In so doing, it situates the use of foreign law in refugee law cases in the broader context of transnational European legal dialogue. The imperative for dialogue between national judiciaries within the EU comes from the Tampere meeting of the European Council in October 1999, when the then fifteen member states agreed to develop the EU as a common area of freedom, security and justice. In order to do that, the member states agreed to work towards establishing a Common European Asylum System (CEAS) by making full use of the provisions in the 1997 Amsterdam Treaty. The effectiveness of this ‘common’ system will be in some ways dependent on commonalities. An obvious way of achieving this is through the adoption of common legislation. In this regard, the adoption of four key Directives and two Regulations on matters of asylum concluded the first phase of the establishment of a CEAS (this phase ended in 2005).24 The European Commission’s Green Paper on the Future Common European Asylum System started the second phase of this

21 22

23

24

Communication’, 99–137, and to the University of Michigan’s Refugee Caselaw Site and the establishment of the International Association of Refugee Law Judges in 1995. Hathaway, The Rights of Refugees, at 116. H. Storey, ‘The Advanced Refugee Law Workshop Experience: An IARLJ Perspective’, International Journal of Refugee Law, 15 (2003), at 423. Author’s discussions with Mark Ockelton (Deputy President of the Asylum and Immigration Tribunal, and member of the IARLJ) and Dr Hugo Storey (Senior Judge, Asylum and Immigration Tribunal, and member of the IARLJ) during 2006/2007. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status (Official Journal L 326, 13/12/2005 p. 0013–0034); Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal L 304, 30/09/2004 p. 0012–0023); Council

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process25 (due to end in 2012).26 The European Commission is calling for fuller harmonization of both legislation and practice concerning asylum procedures, protection status and asylum decisions.27 Thus, how this common legislation is interpreted and applied by domestic courts is equally important. A comparative approach by judges appears to be essential for the development of a system that is not only common but that is also coherent and built on trust; these are necessary elements for any common system to work, as clearly recognized by the European Commission.28 For this to happen, a transnational judicial dialogue or process of communication, resulting in the use of each other’s jurisprudence, must exist between European judges. Th is volume is testing: to what extent is the ground prepared for a common asylum system, and if it is not prepared, what are the obstacles that need to be addressed between now and 2012? It is worth noting here that the adoption of the new EC legislation on asylum itself has already had some effect on the dialogue between refugee law judges and the use of comparative jurisprudence. Indeed, the adoption of new EC legislation has required the European Commission

25

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28

Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national (Official Journal L 050, 06/02/2003 p. 0001–0010); Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (Official Journal L 031, 06/02/2003 p. 0018–0025); Council Regulation (EC) No. 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No. 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (Official Journal L 062, 05/03/2002 p. 0001–0005); and Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member states in receiving such persons and bearing the consequences thereof (Official Journal L 212, 07/08/2001 p. 0012–0023). Brussels, 06/06/2007, COM (2007) 301, final. See also the Hague Programme, ‘Strengthening Freedom, Security and Justice in the European Union’, Presidency Conclusions, Brussels, 4–5 November 2004. Note that the original, formal deadline was 2010 but this date has now been postponed to 2012. European Pact on Immigration and Asylum, adopted at the Council of European Union meeting in Brussels, 16 October 2008, D/08/4. Author’s interview with Zeta Georgiadou and Doede Ackers (policy officers, European Commission, Directorate General Justice, Freedom and Security, Directorate Immigration, Asylum and Borders, 27 June 2007, Brussels). The Communication from the Commission to the Council and the European Parliament on ‘Strengthened Practical Cooperation – New Structure, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System’, 17 February 2006, COM (2006) 67, recognizes just that, namely the need to ‘build trust and confidence in each others’ systems and achieve greater consistency in practice’ (p. 3). See also, Lichère et al., Le dialogue entre les juges, at 30.

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to consult with different actors (for example, academics and senior court judges) to learn of the practice and jurisprudence of the member states. It has also forced the member states to reform their existing asylum legislation, and in doing so, an important process of inspiration by foreign practice and jurisprudence has taken place. For instance, the French Refugee Appeals Board (now the National Asylum Court) prepared an internal document aimed at guiding the work of the Board on the application of the new French asylum law of 2003 (particularly in the interpretation of key concepts in the EC Qualification Directive, such as ‘internal protection’, ‘subsidiary protection’ and ‘state protection’). Th is document is largely inspired by foreign jurisprudence and contains strong comparative elements. Finally, the adoption of new EC legislation requires the national courts to adapt to what other member states are doing in seeking to match their own approaches with those adopted by other national courts and the ECJ when dealing with similar issues.29 In this regard, information and best practice are being exchanged through face-to-face meetings and information networks, and the IARLJ is a perfect example of that.30 The IARLJ was set up in 1995 to facilitate communication and dialogue between refugee law judges around the world in an attempt to develop consistent and coherent refugee jurisprudence. Th is need was felt particularly strongly in this area of law because of the lack of a supranational court competent to develop authoritative legal standards based on the Refugee Convention. Hathaway has described the IARLJ as ‘one of the most exciting recent development in refugee law’, in that it provides clear evidence of the existence of an ‘ongoing transnational judicial conversation’.31 29

30

31

H. Storey, ‘EU Refugee Qualification Directive: A Brave New World?’, International Journal of Refugee Law, 20 (2008), 1–49. There are currently 289 members of the IARLJ in 46 countries but membership varies greatly from country to country. In 2009 Belgium counted 3 members, Denmark 1, France 4, Germany 8, Ireland 32, Italy 0, Spain 0, Sweden 2, and the UK (including Scotland) 56. The IARLJ has its own database, set up by German judge Dr Dr Paul Tiedemann, in cooperation with the Europäische EDV–Akademie des Rechts in Merzig, Germany, and which offers free access to international case law on asylum. At present the following languages are available: Dutch, English, German, Finnish, French, Polish and Slovenian, and the database currently contains 190 decisions from 10 countries. It is entirely dependent on voluntary submissions and the goodwill of contacts (often judges) in different states. Available at: www.iarlj.org/general/. Hathaway, ‘A Forum for the Transnational Development of Refugee Law’, at 418. In order to fulfi l one of the main objectives of the IARLJ (i.e., the development of consistent and coherent refugee jurisprudence), Storey has called for the application of ‘a principle of convergence’ according to which ‘tribunals and courts in different countries should seek

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However, this volume shows that judges rarely use each other’s decisions within the EU. The extent of this problem is remarkable. Ideally, the ECJ should be able to help in this process but, as things stand, its interpretative role is considerably limited under Article 68 EC Treaty (which restricts possibilities of references to the ECJ to ‘a court or tribunal against whose decisions there is no judicial remedy under national law’),32 and will continue to be so for a number of years.33 Indeed, even if and when Article 68 EC is to be abolished and replaced with Article 234 EC (for example, with the ratification of the Treaty of Lisbon), it will take the ECJ some time to establish any clear foundational principles in this new area of law.34 Furthermore, the ECJ is not always able or willing to review facts, and yet in refugee cases facts are often key elements in a decision.35 Finally, it may be argued that the role of the ECJ in this area of law is seriously compromised by the lack of experts in refugee law at the ECJ and doubts are therefore expressed as to whether or not it will be able to interpret the necessary Directives in accordance with international law,

32

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as far as possible to apply the same basic principles’, in Storey, ‘The Advanced Refugee Law Workshop Experience’, at 423. Since the coming into force of the Qualification Directive (Directive 2004/83/EC) on 10 October 2006, three national courts have made a preliminary ruling reference to the ECJ. In October 2007 the highest administrative court (Raad van state) in the Netherlands sent a question to the ECJ concerning the interpretation of Article 15(c) (serious harm) of the Directive (C-465/07). In April 2008, the German Federal Administrative Court (Bundesverwaltungsgericht) sent a preliminary question concerning the interpretation of Article 11(1)(e) (cessation) of the Directive (C-175–179/08), and in January 2009 the Hungarian second instance administrative court (Fővárosi Bíróság) lodged a request for preliminary reference to the ECJ concerning the interpretation of Article 12(1)(a) (exclusion) of the Directive (C-31/08). The Commission Communication of 28 June 2006 (COM (2006) 346 fi nal) proposes that Article 234 EC should also be applicable to the field of asylum, immigration and visas. In the interim, the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice should help towards simplifying the various stages of the proceedings before the ECJ in certain cases, but the existing limitations regarding which court/tribunal can submit a reference remain. Information Note on references from national courts for a preliminary ruling, O.J. 8.3.2008, C-64/1–2. C. Chenevière, ‘L’article 68 CE – Rapide survol d’un renvoi préjudiciel mal compris’, Cahiers de droit européen, 40 (2004), 567–90; and K. Lenaerts, ‘The Unity of European Law and the Overload of the ECJ – The System of Preliminary Rulings Revisited’, in I. Pernice, J. Kokott and C. Saunders (eds.), The Future of the European Judicial System in a Comparative Perspective, European Constitutional Law Network-Series Vol. 6 (BadenBaden: Nomos Verlagsgesellschaft, 2006), 211–39, at 216. Lenaerts however points toward the ECJ’s developing tendency to ‘provide more “concrete”, as opposed to “abstract”, rulings warranting complex analysis of the facts, national legislation and other aspects of the main action’. Lenaerts, ‘The Unity of European Law and the Overload of the ECJ’, at 217.

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in particular the Refugee Convention.36 In summary, these particularities suggest that when the ECJ enters into a dialogue with national judges in this area of law, its role may not be as effective as in other areas of integration. It has been suggested that EC-wide guidelines, based on a selection of national case law37 which the ECJ can then rely on, may therefore be a good idea to help deal with the problem of divergent interpretation.38 This volume argues that the role of transnational jurisprudence (and therefore of national courts and tribunals as decision-makers) is in fact essential to the establishment of a truly ‘common’ European asylum system. Our conclusion is that the transnational legal approach appears to have limited applicability in this new area of European law because, while a transnational dialogue between judges exists, it is having no real impact. This means that the influence of foreign law in this area is still minimal; that is, there is limited transnational legal activity. But the transnational legal approach is important in highlighting a central problem in the emergence of a common EC framework: the need for and yet lack of use of national jurisprudence across the EU. And here lies the usefulness of the transnational legal approach. The point is that whereas traditional international law focuses on the role of states in international law-making, in this case, in the creation of a CEAS, the transnational law approach highlights the kind of trans-state activities (based on trust and reciprocity between national courts) that need to occur in order for this system to work.

Exploring transnational refugee law Th is volume adopts a structured, focused comparison approach to examining a key element of the dialogue between refugee law judges, 36

37 38

H. Lambert, ‘The EU Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, International and Comparative Law Quarterly, 55 (2006), 161–92. The terms ‘case law’ and ‘jurisprudence’ are used interchangeably throughout this book. This idea was advocated by the UNHCR (see UNHCR, Asylum in the European Union: A Study of the Implementation of the Qualification Directive, November 2007) and is supported by members of the IARLJ, European Chapter. In June 2008 the European Commission announced that it would put forward a legislative proposal for the creation of a European Asylum Support Office (Communication, COM (2008) 360). On 18 February 2009 the European Commission proposed a Regulation establishing a European Asylum Support Office. Th is will be ‘a European independent centre for expertise in asylum’ and it will ‘help member states become familiar with the systems and practices of others, to develop closer working relations between asylum services at operational level, build trust and confidence in each others’ systems and achieve consistency in practice’ (Brussels, 18.2.2009, SEC (2009) 154).

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namely the use of foreign law by national judges when making their own decisions on asylum, as an indication of transnational legal activity. It does so by examining nine EU member states (Belgium, Denmark, France, Germany, Ireland, Italy, Spain, Sweden and the United Kingdom) in separate chapters, and by focusing on specific aspects of each case. Each case analysis is structured around a common set of empirical and jurisprudential research questions.39 The nine countries included in this book were carefully selected on the basis of two criteria: the differences in legal tradition and culture within the EU particularly in terms of the civil–common law divide, and the existence of a substantive case law on asylum and reasonable access to this case law. For this reason, none of the EU member states which have joined most recently are included in this book because, when this project began (2006–7), either too little case law existed in these countries or relevant case law was simply not accessible (as in the case of Hungary until the law on the freedom of electronic information came into force on 1 July 2007).40 To begin with, each chapter provides an introduction to the decisionmaking process in the selected country, with a particular emphasis on the judicial authorities competent to deal with asylum cases, especially at the level of appeal; early on, it became quite clear that if a dialogue were going to take place, it would not be at first instance level but at the level of appeal. Each introduction also provides a useful insight into the specificities of each national asylum system with a view to identifying what is distinctive in each individual legal system. Each chapter then follows on with an in-depth and systematic qualitative analysis of the jurisprudence relating to asylum in the selected country, in order to identify cases where decisions from other EU national courts were used (in the form of references or citations), with the realization of the existence of an ‘invisible traffic’ – through training, faceto-face meetings between judges and information networks (such as the IARLJ) – but which is so difficult to trace.41 So, each chapter considers the 39

40 41

A. L. George, ‘Case Studies and Theory Development: The Method of Structured, Focused Comparison’, in P. G. Lauren (ed.) Diplomacy: New Approaches in History, Theory and Policy (New York: Free Press, 1979), at 43–68. The normative relationship between municipal decisions and the international legal regime is explored in a conclusion to this book The distinction between ‘empirical’, ‘jurisprudential’ and ‘normative’ questions is borrowed from McCrudden, ‘A Common Law of Human Rights?’, 499–532. I am grateful to Professor Boldizsár Nagy for this information. I am grateful to Hugo Storey for suggesting the concept of ‘invisible traffic’.

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following three general empirical questions: What is the precise extent of the use of national jurisprudence from other EU countries by judges in the area of refugee law, when does such use happen, and where does it happen? Careful empirical study in the nine countries under review reveals a remarkable lack of transnational use of national jurisprudence on asylum across EU countries. However, a very slight but noticeable increase in the pattern of references to asylum jurisprudence is slowly beginning to appear in some countries, such as France, the United Kingdom, and perhaps also Belgium, Italy and Sweden, although not yet in Denmark. Ireland appears to be unique in going in the opposite direction as the corpus of Irish case law on matters of asylum is expanding and greater reliance on the authorities of the Irish courts is predicted. These empirical questions were complemented with a series of more specific questions relating to the practice of ‘using’ foreign law. In the rare cases where other countries’ jurisprudence is mentioned, how is it used? Is it used because it is interesting or persuasive?42 If it is the case that judges themselves rarely refer to other EU countries’ jurisprudence, is there evidence of practising lawyers or other actors, such as non-governmental organizations (NGOs) or human rights associations, in fact ‘pleading’ other EU countries’ jurisprudence?43 What is the role played by formal or informal contacts between judiciaries, such as the IARLJ? In cases where foreign law is being used, why is it used? Is it used to prove or disprove factual propositions or to seek normative guidance? Is it used to fill a gap in the law or to confirm that a proposed solution has worked elsewhere?44 Is it used to interpret a statute that has its origins in the Refugee Convention or EC law (for example, the Qualification Directive)? In cases where no ruling exists from the ICJ or the ECJ, this national court will naturally aim towards reaching a common meaning of the international treaty or 42

43

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The search for ‘persuasive authority’ has been described as an attempt ‘to learn something from a judge in a different country dealing with a similar problem’ (in a Comment on the US Supreme Court), in E. A. Young, ‘Foreign Law and the Denominator Problem’, Harvard Law Review, 119 (2005), 148–67, at 149. Also, J. Bell, French Legal Cultures (London: Butterworths, 2001) at 8. In some countries the personal motivation or intellectual curiosity of judges (such as the President of the National Asylum Court in France or senior judges at the Asylum and Immigration Tribunal in the UK) is highly relevant; in other countries (e.g., Italy), this intellectual drive is pushed by academics rather than judges. A related issue is that of the motives behind a judge’s decision to consider foreign law. Basil Markesinis and Jörg Fedtke have grouped these into three kinds: to help shape his own law, to help towards a better understanding of the problem to be solved, and ‘as a mere “padding” for a judgment already reached on other grounds’, in Markesinis and Fedtke, ‘The Judge as Comparatist’, at 25–6.

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the EC Directive. Some of these purposes fall within rules of relevance, others within judicial discretion. In our context, refugee law, it is safe to say that judges have more discretion when interpreting international treaties (Article 31(3)(b) of the Vienna Convention on the Law of Treaties) than when interpreting EC laws (the doctrines of direct effect and indirect effect, and the evident role of the ECJ). This may explain partly why we can see a slow increase in the pattern of transnational references between certain EU countries since the adoption of EC legislation on asylum. One last relevant question concerns the issues on which one would expect or hope to see emerging judicial consensus, the meaning of terms such as ‘internal protection’, ‘subsidiary protection’, ‘to offer protection’, the standard of proof or the exclusion clause. Finally, each chapter considers a jurisprudential question – why transnational referencing does or does not happen. The chapters suggest two basic accounts: a rational account and a cultural account. The rational account focuses on language, time constraints and difficulty in access, and training, and it looks at the extent to which these constitute obstacles to the volume and direction of the dialogue between senior judges in EU countries.45 The basic premise is that the nature and extent of the obstacles has a causal impact on the volume of dialogue and also on the direction. This explanation is said to be rational because it is based on opportunity cost, namely the balance between the benefits of foreign references and the costs that such exercise entails.46 Our findings show that language does not seem to constitute an insurmountable obstacle to an exchange in case law between EU countries. Rather, difficulty in accessing other countries’ decisions, combined with time pressure and the lack of judges’ familiarity with other EU legal systems appear to be as, if not more, important.47 This is clearly illustrated by the case of Belgium, France, the United Kingdom, Ireland, Spain and Germany. In sum, the 45

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Other ‘rational’ explanations have been put forward to account for the lack of traffic between foreign judges, such as institutional capacity and habit. A. Hansenclever, P. Mayer and V. Rittberger, Theories of International Regimes (Cambridge University Press, 1997), 23–82; A. Stein, ‘Coordination and Collaboration: Regimes in an Anarchic World’, in S. D. Krasner (ed.) International Regimes (Ithaca, NY: Cornell University Press, 1983), 115–40; and D. Snidal, ‘Coordination Versus Prisoners’ Dilemma: Implications for International Cooperation and Regimes’, American Political Science Review, 79 (1985), 923–42. This finding is echoed in Gyulai, ‘Country Information in Asylum Procedures’, at 12, with regard to country information. In particular, he highlights the difficulty in having ‘access to the full asylum-related jurisprudence of all EU member states, mostly because in many countries these judgments are not made public or not even accessible for such purposes’.

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rational account suggests reasons for why there would not be much traffic of legal ideas – or transnational use of jurisprudence – between national European judges, but one would still expect to see some. And what we have in this case (as is discussed in this volume) is practically none. In contrast, the cultural account emphasizes social perceptions about the (non) usefulness of foreign decisions resulting in default rejection of foreign jurisprudence. These social perceptions (for example, a decision is not worth considering) are produced by culture and would create an exaggerated sense of the barriers to dialogue. And it is here that one finds some other important reasons why so little traffic of legal ideas takes place between EU countries. For the purpose of this volume, and drawing on scholarship on legal culture as well as comparative law,48 each chapter looks at three elements: (1) the style of judgments – as an indication of legal culture; (2) the conceptual legal framework within which the judge operates – as an indication of an open versus a closed judicial mentality; (3) the domestic dynamic surrounding asylum/refugee law cases – as an indication of the role of civil society in this system of legal reasoning. This is in part about a cultural explanation of the common–civil law divide, but it is also about other aspects such as judges’ ‘mentality’. Bell, for instance, looks at mentality and style: as ways of describing more deeply rooted activities. The existence of particular styles of presentation may serve as evidence about how legal argumentation is presented. It can serve as an indicator that there is a different legal culture in operation.49

Here, in particular, one notes the difference between the adversarial system and the inquisitorial system, where in the case of the former, the judiciary are more dependent than elsewhere on the material placed in 48

49

Markesinis and Fedtke, ‘The Judge as Comparatist’, 11–167; and Judicial Recourse to Foreign Law. Markesinis, ‘A Matter of Style’, 607–28; ‘Judge, Jurist and the Study and Use of Foreign Law’, 622–35. Bell, French Legal Cultures; and J. Bell, Judiciaries within Europe- A Comparative Review (Cambridge University Press, 2006). C. Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, European Journal of International Law, 17 (2006), 214–45. M. Andenas and D. Fairgrieve, ‘Introduction: Finding a Common Language for Open Legal Systems’, in Canivet, Andenas and Fairgrieve (eds.), Comparative Law Before the Courts, (London: British Institute of International and Comparative Law, 2004). O. Dutheillet de Lamothe, ‘Constitutional court judges’ roundtable’, International Journal of Constitutional Law, 3 (2005), 550–6. Lichère et al., Le dialogue entre les juges. Bell, French Legal Cultures, at 17. See also Markesinis, ‘A Matter of Style’, 607.

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front of them. Hence, the belief that in the British system a ‘dialogue’ between judges can be considered to be an important mechanism for the protection of judges themselves, in that it provides a form of reassurance and checks on their own power.50 Many scholars in fact agree that judicial mentality constitutes an important obstacle to real harmonization between civilian lawyers and common lawyers, even on the basis of common texts.51 The findings in our volume confirm this view. In all nine countries discussed in this volume, a general belief exists among judges that other EU countries’ practice is not worth referring to. The reasons for this belief vary from country to country. In Denmark the absence of ordinary judicial review in asylum cases combined with a strong tradition of dualism and judicial pragmatism were found to be direct reasons – whereas the particular Danish position vis-à-vis Title IV of the EC Treaty was described as indirect. In Sweden the twin effect that dualism and a long tradition of legal positivism has, and has had, on Swedish judges was found to be crucial. In France, too, a tradition of legal positivism has meant that the administrative judge is reluctant to evaluate the sovereign action of state authorities, and interaction between human rights and the law relating to aliens and refugees is found to be limited. In Italy, Spain, France and to some extent Belgium, the style of decisions (that is, very short and precise), combined with a strict conceptual legal framework within which judges operate, means that reference to foreign law is seldom and, indeed, not to be expected; our findings further reveal an overall lack of legal argumentation based on the criteria in the Refugee Convention in asylum decisions in these four countries. However, in both France and Belgium the existence of a body within the courts’ structure that undertakes legal research on relevant cases (the Legal Information Department at the French National Asylum Court and the auditorat at the Belgian Council of State) means that ‘foreign case law’ is becoming more readily available to judges. In both Italy and Germany any kind of ‘foreign’ law is considered unnecessary and therefore not worth considering, whether in the form of international treaties, EC legislation or comparative jurisprudence; strong preference is given to domestic law by judges, due no doubt to a traditional dualist approach to international law, namely the twoworld doctrine in Germany, and the solipsistic nature of legal discourse in 50

51

C. Booth, Remarks at a one-day conference at the British Institute of International and Comparative Law: ‘European Influences on Public Law: 5 years of the HRA 1998 in English Law and Recent Developments in France’, October 2005. Legrand, ‘European Legal Systems are not Converging’, at 60–1. Markesinis and Fedtke, Judicial Recourse to Foreign Law, at 173–218.

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Italy.52 The UK, yet another dualist country, offers a very different picture in that the British courts (namely judges and representatives of the parties) have often referred to foreign judgments which fit the same style (for example, from other Commonwealth or common law countries) or to judgments from the European courts (for example, from the Strasbourg and Luxembourg courts). Another well-established practice of engaging with foreign law from other common law courts exists in the Irish legal system, though Ireland is not a member of the Commonwealth. One may thus infer some indirect impact through the UK and Ireland of the case law of other Commonwealth jurisdictions in the EU. However, judges are slow to refer to judgments from countries with which they have no established reciprocal relations (which would be conducive to dialogue) – with the exception of the Irish courts which draw upon decisions of the British courts, both as interesting and persuasive authorities, though this is not reciprocated. It is therefore suggested that EU countries must be prepared to build relations of the kind the UK has with common law countries, namely relations based on reciprocity and trust, if they really want the CEAS to work. And this is where the real challenge lies ahead. Against these cultural differences, globalization of the legal landscape, including the EU process of communitarization, has produced commonality across the EU member states. For instance, it has been estimated that: as much as sixty per cent of the national law in EU member states is today directly or indirectly influenced by European legislation.53

Exploring these cultural differences therefore involves an assessment of the impact of transnational legal processes in bridging the common– civil law divide in the framing and application of asylum law. European asylum legislation in particular has opened wide the sources of law in the area of refugee law, and transnational activities (by judges, NGOs or transnational non-governmental organizations (TANGOs), governments 52

53

The ‘dualist’ approach to international law nonetheless requires some form of qualification in the case of Italy. Traditionally Italy has had a strongly dualist system, but there are important riders. First of all, customary international law is directly recognized by Article 10 of the Constitution, and some judges, including the Constitutional Court, consider it to be directly part of domestic law through this ‘gateway’. Secondly, as for treaties, the dualist conception has always been much stronger, but there is a recent tendency towards the self-executing character of some parts of treaties, especially recently the European Convention on Human Rights (ECHR). Markesinis and Fedtke, ‘The Judge as Comparatist’, at 77. Or as H. P. Glenn puts it: ‘le droit national n’existera plus tel que nous l’avons connu’, in ‘La tradition juridique nationale’, Revue internationale de droit comparé, 2 (2003), 263–78, at 264.

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and so on) are creating new norms.54 And it is now strongly believed that the communitarization of asylum/refugee law is forcing change more rapidly.55 The findings in all our chapters indeed indicate a slight but noticeable increase in awareness by judges of the transnational dimension of EC refugee law. In other areas of law, such as (European principles of) tort law or (European) company law, judges have engaged in transnational and European dialogue for quite some time. It has been suggested that matters that are highly technical in content may be more prone to comparative work than ‘value-laden issues’.56 If one accepts this argument, then refugee law would most likely fall into the category of ‘value-laden issues’, where particular values or policy considerations play an important role, and where the use of foreign law is considered to be more contentious, and therefore slower to occur. In conclusion, this volume takes another look at the overarching international legal framework within which national judges and legislators operate, and considers how the goals of harmonization and consistency can be attained, particularly in the European Union. Several arguments are put forward in support of an approach that would recognize the role played by foreign law in the interpretation and application of the Refugee Convention and for a rational basis for dealing with the decisions from other jurisdictions, including Articles 31(3)(b) and 32 of the Vienna Convention on the Law of Treaties, and the role of the United Nations High Commissioner for Refugees across jurisdictions. 54

55

56

E.g., A. Betts and J.-F. Durieux, ‘Convention Plus as a Norm-Setting Exercise’, Journal of Refugee Studies, 20 (2007), 509–35 (discussing the role of UNHCR in the development, codification and legitimation of norms in refugee law). Interview with Vera Zederman (Chief of the legal department, French Refugee Appeals Board), Paris, 20 June 2006, and Roger Errera (Conseiller d’État Honoraire and Visiting Professor, Central European University, Budapest), Paris, 21 June 2006. Markesinis and Fedtke, Judicial Recourse to Foreign Law, at 137–8.

2 Where is the reference? On the limited role of transnational dialogue in Belgian refugee law Jean-Yves Carlier and Dirk Vanheule *

Introduction Judicial decisions in the Belgian refugee status determination process show a lack of reference to foreign, supranational and international case law. Although judges are applying a refugee defi nition that originates in an international convention binding upon and applicable in all EU member states (among others), a transnational dialogue between Belgian judges and their counterparts in other countries appears to be missing. This chapter will first describe the decision-making process in Belgium and its place in the Belgian legal framework. Next the cases and ways in which foreign decisions have played a role in Belgium will be identified. Finally, the possible reasons for this absence of a transnational dialogue will be explored.

The refugee status determination process in Belgium Migration and asylum law Migration and asylum law are a part of Belgian public law and are governed by administrative law. The granting of asylum is regulated by the federal Aliens Act.1 Chapter II of Title II of this Act identifies refugees as one of the special categories of aliens to whom a specific residence procedure and status, differing from the general immigration rules, apply. * Th is chapter was written with the assistance of Caroline Henricot, assistant at the Université catholique de Louvain (UCL-Louvain-la-Neuve) and of Catherine De Wreede, lawyer at the Council for Alien Law Litigation (CALL) under the direction of Geert Debersaques, First President of the CALL Serge Bodart, President of the CALL. 1 Act of 15 December 1980 regarding the Access, Residence, Settlement and Removal of Aliens, Moniteur belge (hereafter MB) 31 December 1980 (hereafter Aliens Act).

17

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Jean-Yves Carlier and Dirk Vanheule

Whereas in general a right to residence requires prior authorization by the Federal Minister of the Interior (hereafter the minister) or the Federal Immigration Service, asylum claimants automatically obtain residence status upon the recognition of their status as a refugee.2 With the introduction of subsidiary protection status as of 10 October 2006, the same goes for beneficiaries of that status. To this end a recognition procedure has been set up for the determination of refugee status. The present procedure goes back to that introduced in the Aliens Act in 1987, which became operational in 1988.3 Each step in the procedure is characterized by an administrative phase and a judicial phase. With the recent legislative amendments transposing several EC Directives on asylum and migration into Belgian domestic law,4 the asylum procedure too has been modified considerably since 1 June 2007. In the following sections the different steps in the procedure and the possibility of reference to foreign law (particularly foreign jurisprudence) therein will be explained.

Admissibility of the claim From 1988 to 1 June 2007 Between 1988 and 2007 the minister and the Immigration Service were competent to examine the admissibility of claims. The reasons for holding an asylum claim inadmissible have gradually been expanded over the 2 3

4

Article 49 Aliens Act for refugees; Article 49/2 for beneficiaries of subsidiary protection. Before 1988 decisions on the recognition of refugee status under the Refugee Convention, which has been applicable since 1953, were taken by the minister of Foreign Affairs and by UNHCR to which this authority had been delegated. See the Act of 15 September 2006 amending the Act of 15 December 1980 regarding the Access, Residence, Settlement and Removal of Aliens, MB 6 October 2006; Act of 15 September 2006 reforming the Council of state and creating a Council for Alien Disputes, MB 6 October 2006; Act of 12 January 2007 on the Reception of Asylum Seekers and Other Categories of Aliens, MB 7 May 2007, err. MB 7 June 2007; Act of 25 April 2007 amending the Act of 15 December 1980 regarding the Access, Residence, Settlement and Removal of Aliens, MB 10 May 2007, 3rd edn; Act of 22 December 2008 on Diverse Provisions, MB 29 December 2008. Several provisions of the Acts of 15 September 2006 have been challenged before the Belgian Constitutional Court which has struck down some provisions. See CC(b) no. 81/2008, 27 May 2008, MB 2 July 2007 and CC(b) no. 95/2008, 26 June 2008, MB 13 August 2008, also available on www.constitutionalcourt. be. On these amendments and on contemporary Belgian asylum law, see. S. Bodart, La protection internationale des réfugiés en Belgique (Brussels: Bruylant, 2008); I. Doyen, ‘La nouvelle réglementation sur la protection subsidiaire’, Revue du droit des étrangers, 139 (2006), 459–66; M. Foblets and D. Vanheule, ‘Het federale vreemdelingenbeleid in België: enkele recente wetswijzigingen’, Tijdschrift voor Bestuurswetenschappen en

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19

years. They included both formal grounds (for example, late introduction of the claim) and substantial grounds (manifestly unfounded asylum claims, fraudulent claims, claims unrelated to the refugee defi nition).5 When invoking the latter, the Immigration Service could apply and interpret the refugee definition. In the event of a claim being held inadmissible, the claimant could lodge an administrative appeal with the Commissioner General for Refugees and Stateless Persons (hereafter the CGRSP).6 The CGRSP heads an independent federal office with specific jurisdiction to recognize an alien as a refugee or beneficiary of subsidiary protection. Given this specific jurisdiction, the CGRSP was also given administrative review power over asylum claims that were rejected as inadmissible. To that purpose, the claimant was ordinarily given a hearing and the claim was then found either admissible or confi rmed as inadmissible in a reasoned decision. Against the latter decision, judicial appeal was open to the Council of State, the country’s highest administrative court. This court could only hear migration claims by way of judicial review proceedings which, when successful, resulted in a temporary suspension and/or final annulment of the decision of inadmissibility, returning the case for a new administrative decision to the Immigration Service and/or the CGRSP. The grounds for an appeal to the Council of state had to be based on infringements of a national or internationally binding legal provision, including procedural rules and principles of good administration. In this context, violations of the refugee definition or Article 3 of the European Convention on Human Rights (ECHR) in a particular case could be raised.

5

6

Publiekrecht, 7 (2007), 387–408; M. Foblets, D. Vanheule and S. Bouckaert, ‘De nieuwe asielwetgeving: het Belgische asielrecht kleurt Europeser’, Rechtskundig Weekblad , 23 (2006 –07), 942–57; M. Lemmens and J. Roggen, ‘De hervorming van de asielprocedure anno 2006: een verbetering van de rechtspositie?’, Tijdschrift voor Vreemdelingenrecht, 1 (2007), 6–22; S. Sarolea, M. Kaiser, I. Doyen and J. Jacques, La réforme du droit des étrangers. Les lois du 15 septembre 2006 modifiant la loi du 15 décembre 1980 sur l’accès au territoire, au séjour, à l’établissement et à l’éloignement des étrangers en réformant le Conseil d’État et créant un Conseil du Contentieux des Étrangers (Waterloo: Kluwer, 2007); D. Vanheule, ‘The Qualification Directive: A Milestone in Belgian Asylum Law’, in K. Zwaan (ed.), The Qualification Directive (Nijmegen: Wolf, 2007), 71–7. Additionally, the minister and the Immigration Service have been given the authority to determine at the outset of the asylum procedure the responsibility of Belgium under the Dublin Convention/Regulation. In French: Commissariat général aux réfugiés et apatrides (CGRA). In Dutch: Commissariaat-generaal voor de vluchtelingen en staatlozen (CGVS).

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Since 1 June 2007 In an attempt to simplify and speed up the asylum procedure, the 2006 legislative amendments have suppressed the administrative phase and the authority of the Immigration Office to declare asylum claims inadmissible. These amendments became effective on 1 June 2007. Under this new system, the minister and Immigration Service continue to register asylum claims, establish the identity and travel route of the claimants and determine the responsibility of Belgium under the Dublin rules. The claims are then normally passed on to the CGRSP for an examination on the merits and the determination of refugee or subsidiary protection status.7 Determination of the merits of the claim From 1988 to 1 June 2007 Until 1 June 2007 admissible claims were referred to the CGRSP for a determination on their merits, that is the question as to whether the claimant was in fact a refugee under international law (namely the 1951 Convention Relating to the Status of Refugees – the Refugee Convention – as amended by the 1967 New York Protocol). The Aliens Act referred to these agreements without including a refugee definition. Recognition of refugee status by the CGRSP automatically resulted in the claimant obtaining residence status in Belgium. Against the decisions of the CGRSP, judicial appeal could be fi led with the Permanent Refugee Appeals Commission (PRAC)8. The PRAC was an independent judicial tribunal with full jurisdiction to hear appeals and grant refugee status. This was done in oral hearings, with the tribunal 7

8

The minister and the Immigration Service may still refuse a repeated identical asylum application (Article 51/8 Aliens Act) or refuse claimants access to the procedure for serious reasons of public order or national security (Art. 52/4 Aliens Act). Initially, in an accelerated procedure of a maximum of two months, the CGRSP could still hold asylum claims unfounded on the basis of the former grounds of inadmissibility. The Constitutional Court held that this competence could not be understood as to allow the use of purely formal grounds (e.g. late application, residence in a third country) to reject an asylum application without an examination of the merits of the claim; see CC(b) no. 95/2008, 26 June 2008, www.constitutionalcourt.be, para. B.77. Consequently, the legislature has struck these formal grounds of refusal from the Aliens Act (see Art. 18 of the Act of 22 December 2008, MB 29 December 2008, effective as of 8 January 2009). The accelerated procedure only remains for manifestly unfounded asylum claims, fraudulent asylum claims and claims unrelated to asylum. Commission permanente de recours des réfugiés (CPRR), Vaste beroepscommissie voor vluchtelingen (VBV).

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21

having authority to conduct its proper examination of the facts of the case and issues of law. Recognition of refugee status by the PRAC equally resulted in the claimant obtaining residence status in Belgium. A refusal of recognition by the PRAC could still be challenged before the Council of State, sitting as juge de cassation. Th is meant that the Council of State could only judge issues of law (that is, the correct interpretation and application of the applicable legislation and procedural rules by the PRAC) and, in the event of annulment, return the case to the PRAC for reconsideration.

Since 1 June 2007 Since 1 June 2007 in most asylum cases the CGRSP has to decide directly on the merits of the case, either in an accelerated procedure (manifestly unfounded claims, fraudulent claims and claims unrelated to asylum) or in a normal procedure. The CGRSP determines, consecutively, if the claimant is a refugee under Article 1 of the Refugee Convention9 or, if not, whether he or she benefits from subsidiary protection status. Subsidiary protection status, the definition of which was replicated from the Qualification Directive into the Aliens Act,10 became available as of 10 October 2006. An appeal against the decisions of the CGRSP can be made to the Council for Alien Law Litigation (CALL).11 The CALL is a newly established judicial tribunal that will hear appeals in all immigration cases. It has taken over the previously existing jurisdiction of the Permanent Appeals Commission for Refugees in matters of recognition of refugee and subsidiary protection status, and of the Council of State in all other immigration cases. This double function has also been translated into a double type of jurisdiction. When hearing appeals against decisions of the CGRSP in matters of recognition of refugee or subsidiary protection status, the CALL is said to possess full jurisdiction. The council can either grant or refuse refugee status, or it can send the case back for reconsideration to the CGRSP.12 Unlike its predecessor, the procedure before the CALL is not based on 9

10 11

12

Article 48/3, § 1 Aliens Act. The decision will be taken in accordance with some of the criteria mentioned in the Qualification Directive 2004/83/EC, which have been written into paras. 2 to 5 of Article 48/3. Article 48/4 Aliens Act. Conseil du contentieux des étrangers (CCE), Raad voor vreemdelingenbetwistingen (RVV). The Belgian Constitutional Court has rejected a constitutional challenge to this provision, based on the argument that this authority does not meet the criteria of an effective

22

Jean-Yves Carlier and Dirk Vanheule

an oral hearing of the claimant, and neither is the CALL competent to undertake either thorough examination or fact-finding.13 In other than asylum cases the CALL hears appeals by way of judicial review, comparable to the previously existing jurisdiction of the Council of state. Applications for annulment and/or stay of execution may be brought on the basis of violation of legal provisions. When successful, the case is returned to the minister or the Immigration Service. Finally, all judgments by the CALL may be appealed to the Council of State, sitting as a juge de cassation only. The Council of state must first give leave of appeal, which ordinarily is only done if the appeal does not appear to be ineffective or when a judgment appears necessary for the uniformity of case law. In the event of an annulment, the case is redirected to the CALL for reconsideration. It is important to note that both the CALL and the Council of State sit in separate French- and Dutch-speaking chambers and that cases are allocated to these chambers, inter alia, on the basis of the language in which the asylum application was filed. Hence, differences in the interpretation and application of immigration legislation among these chambers are possible, which raises the question of the necessity of an ‘intranational’ judicial dialogue.

The legal framework within which the asylum authorities operate Belgium has a long civil law tradition. At the time of Belgian independence in 1830–1, a parliamentary system was adopted which included the separation of powers. This separation was not strict. Although each branch of government exercises its own particular jurisdiction, the Belgian Constitution also includes a delicate scheme of mutual checks and balances, with one branch exercising certain control over the others. The primary role therein was reserved to the legislator. Although parliamentary sovereignty did and still does not reach as far as, for example, the sovereignty of the Parliament at Westminster, statute law adopted by parliament is still the primary source of law. This primacy of legislation reflects on the task of the judiciary which applies (written) law and does not create law: judges are, to quote Montesquieu, ‘la bouche de la loi qui

13

remedy in terms of Article 39 of the Refugee Status Procedures Directive 2005/85/EC. CC(b) no. 81/2008, 27 May 2008, paras. B.20.1–B.20.5, www.constitutionalcourt.be. The Constitutional Court has held, however, that the CALL’s full jurisdiction implies that it can take into consideration relevant new facts introduced before the CALL. CC(b) no. 81/2008, 27 May 2008, paras B.29.1–30, available at: www.constitutionalcourt.be.

Transnational dialogue in Belgian refugee law

23

prononce les paroles de la loi; des êtres inanimés qui n’en peuvent modérer ni la force ni la rigueur’.14 Although this original conception of the relationship between the legislative and judicial branches of government has partially been abandoned, judges still consider themselves interpreters of the law, rather than composers of the law. When confronted with policy questions to which no legal guideline is available for the solution of the case, Belgian judges will refrain from taking position. Their task is to apply the written law by way of a deductive and syllogistic exercise in which the law figures as the major premise and the facts of the case as the minor premise.15 This is also exemplified by the rule in Belgian civil procedural law that judges, in deciding particular cases on their docket, may not decide ‘by way of a general decision imposing a rule’.16 Consequently, there is no rule of precedent in Belgian law: the task of the judge is limited to the application of law in individual cases. Yet in practice, decisions taken by the supreme courts will ordinarily be followed by the lower courts.17 Awareness about the line dividing the judicial task from the political– legislative task is even greater in the field of public, constitutional and administrative law. In judicial review proceedings, judges will avoid policy considerations which are left to the discretion of the executive or legislative branches of government. The task of the judge is, once again, to apply law, not to create it. It would be wrong, however, to deduce from this that the Belgian judiciary is in a completely subordinate position and under an obligation blindly to apply and respect legislation and even executive action. First, judges will often be confronted, even when interpreting and applying the written law, with two or more possible interpretations and applications to the facts of the cases at hand. Written law is, by necessity, often defined in general terms, and applicable to a wide variety of cases. Judges will have to make choices here among the competing interpretations that may arise when confronting the general rule with the facts in specific cases. 14

15

16 17

Ch. L. de Secondat baron de la Brède et de Montesquieu, De l’Esprit des Lois, I, Paris, 1748, L. XI, Ch. VI. M. Rosenfeld, ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’, International Journal of Constitutional Law, 2 (2004), at 635. Art. 6 of the Code of Civil Procedure. In the ordinary court system which includes civil, commercial, criminal and social law courts, the Court of Cassation (Cour de Cassation, Hof van Cassatie) is the supreme court. In the administrative court system the Council of State (Conseil d’État, Raad van state) holds that position.

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Jean-Yves Carlier and Dirk Vanheule

Second, the application of international law in a domestic context has strengthened the position of the judiciary. Since the landmark decision of the Court of Cassation in Fromagerie Franco-Suisse Le Ski in 1971,18 that relationship is one of legal monism, meaning that judges are under an obligation to give priority to international treaties and international or supranational norms with self-executing character over domestic law. This implies that judges may not apply Belgian legislation and executive acts that violate those norms. This principle became important in the field of human rights law, in particular given the direct effect of the ECHR . Belgian legislation is no longer supreme, but must be in conformity with higher international norms with direct effect and it is the task of the judiciary to review this conformity. Moreover, executive and administrative action and decisions that are incompatible with international law must be considered null and void by the courts. This has resulted, in the field of migration law, in the application of Articles 3 and 8 ECHR in the Belgian legal order to judicially overrule administrative decisions of refusal of entry or removal. A combination of these two tasks of the Belgian judge, namely the interpretative task and the duty to apply international law even when it is in conflict with Belgian law, could lead to an expectation that in Belgian refugee law judges pay attention to non-domestic sources on the meaning of international law. The Aliens Act refers to the Refugee Convention for the definition of refugee, including the cessation and exclusion clauses. Given the binding character of the Convention and the variety in possible interpretations and applications of the refugee defi nition therein, one might expect Belgian judges to consult foreign case law as a source of inspiration for possible interpretations and as a means to ensure that Belgian law is in conformity with international law. Admittedly, judges are not required to do so, since foreign legal decisions do not have legal authority, in the sense of legal precedent, as such in Belgian law. Only when a Belgian court, in accordance with the rules of international private law, has to apply foreign law in a case between one or more foreign parties, must it use the legislation as it is interpreted in the country of origin.19 In the refugee law context, however, the practice of reference to foreign case law is only now beginning to emerge. 18

19

Cass.(b), État Belge v. S.A. Fromagerie Franco-Suisse Le Ski, 27 May 1971, Pasicrisie belge 1971, I, 886. See also Anon, ‘Conflicts between Treaties and Subsequently Enacted Statutes in Belgium: État Belge v. S.A. «Fromagerie Franco-Suisse Le Ski»’, Michigan Law Review, 72 (1973–1974), 118–28. See Art. 15, § 1 International Private Law Code.

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Survey of the case law in Belgium This empirical survey covers all the decisions made by the Permanent Refugee Appeals Commission and by the Council of State between 1999 and 2006,20 but cases decided since the reform of the asylum procedure (1 June 2007) are not taken into account. According to this survey, three per cent of the decisions made by the Council of state include references to foreign law, against only 0.28 per cent of the decisions made by the PRAC.21 It must thus be recognized that very few Belgian decisions refer to foreign case law. An analysis of the relevant cases as well as a discussion of the reasons for this lack of reference to foreign law in Belgian decisions follow in the sections below. Major differences between the case law of the Council of State and the PRAC will be highlighted and some proposals for improving the coherence of the EU system of law will be suggested.

Detailed analysis For the purpose of this research, Belgian decisions that include references to foreign case law and academic writing were selected. Decisions that made references to decisions from other EU countries as well as decisions that referred to authors and decisions from jurisdictions outside the EU were fully read and analysed. Four types of reference can be distinguished: those concerning the interpretation of Article 1 of the Refugee Convention, those concerning similar facts in another European country, those concerning civil law questions and those referring to the European Court of Human Rights (ECtHR) case law.

The Interpretation of the Refugee Convention First, most of the decisions that refer to some elements of foreign law refer to writings about the interpretation of the refugee definition in the Refugee Convention. Some decisions refer to English and French case law relating to the interpretation of Article 1A(2) of the Refugee Convention, particularly 20

21

The decisions can be consulted online. For the PRAC, see: www.cce-rvv.be/jurisearch. asp; for the CALL, see: www.cce-rvv.be; for the Council of state, see: www.raadvstconsetat.be. Out of 899 Council of state cases analysed, 27 cases included foreign cross-referencing while 36 out of 12,893 PRAC decisions made references to foreign jurisprudence and academic writing. References to reports of NGOs like Amnesty International or Human Rights Watch, or country reports were not taken into account as foreign references.

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on the concept of ‘membership of a particular social group’. 22 PRAC decisions often refer to the Canadian Supreme Court’s opinion in Ward v. Canada in order to stress the jurisprudential evolution regarding the scope given to ‘social group’, quoting that ‘this evolution leads to conclude that the social group can be defined from the existence of inborn or immutable features, such as gender’.23 The references to English and French cases that confirm this evolution demonstrate that other EU countries too have begun to apply this interpretation. With these references to French and English case law, the PRAC expresses a concern to bring its interpretation of the notion of the refugee definition in line with those of other EU Members states. On the issue of ‘political opinion’, one decision quotes James Hathaway (The Law of Refugee Status24) and Roel Fernhout (Erkenning en toelating als vluchteling in Nederland25) to justify the recognition of refugee status to a Palestinian who did not express a political opinion (but whose political opinion was imputed), arguing that: even though the claimant had no conscious political motivation, in the Palestinian context his act contains an objective political dimension.26

The PRAC considered that: it is enough that the motive of persecution be of a political nature and that the fact be considered sufficiently established for the fear to be in the field of application of the Geneva [Refugee] Convention.27

Other decisions also refer to a particular theoretical point such as the question of who can be ‘the author of the persecution’. In this regard, a PRAC decision relied on a French decision to strengthen its point of view,28 arguing that: the fact that the acts are carried out by individuals or private groups … and not by state authorities does not prevent the claimant from enjoying the international protection provided by the Geneva [Refugee] Convention, 22

23 24 25

26 27 28

PRAC no. 01–0668/F1356, 8 March 2002; PRAC no. 01–0089/F1374, 22 March 2002; PRAC no. 03–0582/F1311, 5 February 2004; PRAC no. 02–2230/F1623, 25 March 2004. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. J. C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991). Roel Fernhout, ‘Erkenning en toelating als vluchteling in Nederland’, PhD Thesis, Amsterdam 1990. PRAC no. 01–1257/F1396, 22 May 2002. PRAC no. 01–1257/F1396, 21 December 2001. PRAC no. 03–2592/R12136, 24 June 2004; PRAC no. 03–1675/R12509, 15 September 2004.

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if it is established that the state authority refuses or is unable to provide an efficient protection … it is not required that the refusal or the lack of state protection be based on one of the reasons provided by the Geneva Convention as long as the persecution coming from a private group is based on one of the Convention criteria.

This case is somewhat odd, given the fact that the PRAC, which usually applies the ‘protection theory’, chose to quote the French case law applying the ‘accountability theory’. Another example of an answer to a conceptual problem is provided by a 2005 PRAC decision on the personal attitude of the asylum claimant and ‘good faith requirement’ as a condition for the recognition of refugee status.29 In this particular case, the Belgian decision referred to an English case as well as to the writing of Guy S. Goodwin-Gill in order to fi ll the gap: the good faith requirement implies that an additional condition be introduced in the Geneva Convention, in which it is not implicitly or explicitly found.30

Several references are made to the interpretation of the exclusion clause in Article 1F of the Refugee Convention, in particular by Canadian and Dutch authors.31 For example, James Hathaway’s The Law of Refugee Status is mentioned several times, in particular for the view that: the application of the exclusion clause as defined in the Geneva [Refugee] Convention is a matter of the discretionary power of each state, the only condition is the existence of serious reasons to think that the interested parties are guilty of one of the forbidden acts.32

In this case, the importance of a uniform interpretation of the Refugee Convention justifies the reference to foreign law in order to provide for a coherent system.

Similar facts A second type of reference concerns the facts of the case and the question whether, under similar circumstances, refugee status has been recognized 29 31

32

30 PRAC no. 04–2853/W10755, 4 October 2005. Ibid. PRAC no. 98–0886/R8485, 11 August 1998; PRAC no. 99–1061/R8895, 27 October 1999; PRAC no. 99–1090/R9876, 28 October 1999; PRAC no. 00–0678/R9953, 19 May 2000; PRAC no. 04–2516/R12677, 27 August 2004; PRAC no. 02–2352/W8424, 14 October 2002; CS(b) no. 76906, 12 November 1998; CS(b) no.146.308, 20 June 2005. PRAC no. 04-2516/R12677, 6 April 2005.

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in other states. A similar treatment of similar facts can contribute to a uniform application of the refugee definition. While this type of reference could be expected to be the most common, very few decisions do in fact refer to cases with similar facts in other countries. But there are exceptions, such as the reference to a French case regarding the recognition of refugee status to persons in fear of being persecuted because of their Roma origin.33 Another example is provided by a PRAC decision referring to similar facts occurring in France, the Netherlands, Germany and the UK.34 The latter decision referred to dealt with an Iranian asylum seeker taking part in a demonstration by an Iranian terrorist group in the UK. The PRAC reached the same conclusion as its British counterpart with regard to the absence of the risk of persecution in case of return to Iran. The references are not limited to decisions taken in the EU, but also include similar evaluations of the facts by courts and tribunals outside the EU (Switzerland, Canada, Australia, New Zealand), such as a PRAC decision referring to a New Zealand decision delivered in a similar situation, concluding that there was no risk of persecution in case of return to Iran.35 Some decisions also refer to ECtHR cases for the evaluation of the risk in a similar fact situation. For instance, one PRAC decision referred to three ECtHR judgments holding that the right to life was violated by Russia and that many war crimes and crimes against humanity occur in Chechnya.36 In this decision the PRAC took into consideration this ECtHR case law in order to grant refugee status to the Chechen claimant.37 Most interestingly, some decisions reflect cooperation between different EU countries with regard to status determination. In a decision delivered by the Council of State, the cooperation between the German and Belgian asylum authorities was the focal point. The decision referred to the German procedure, stating that the refusal by the German jurisdictions to grant refugee status should not necessarily imply a similar decision by the Belgian authorities: The fact that his request for asylum was rejected by the German jurisdiction did not automatically cause rejection on the same grounds 33 34 35

36 37

PRAC no. 02–0266/F1595, 1 March 2002. PRAC no. 04–3291/W11019, 7 December 2005. PRAC no. 04–3291/W11019, 7 December 2005; PRAC no.04–3937/W12016, 21 September 2006. PRAC no. 04–1438B/F1828. The Council of state has also referred to ECtHR case law in a decision on the application of the Schengen Convention. It ordered the stay of execution of a refusal to have the asylum claim determined in Belgium and of the attached order to leave Belgium because it

Transnational dialogue in Belgian refugee law

29

by the Belgian administration responsible for treating asylum requests, and could have led, as happened in the fi rst case, to recognition of the refugee status.38

This decision is an example of taking into consideration the different approaches by a foreign authority, without being bound by the foreign decision.

Civil law Third, some decisions concern issues of civil law such as the law of evidence. For example, the Council of State referred to the ECtHR judgement in Čonka v. Belgium39 as a reminder that the CGRSP may be somewhat of a jurisdictional institution (that is, a reference to the CGRSP is bound by due process). This implies that the CGRSP should respect basic procedural rules such as those concerning the hearing of parties and the resulting testimonial evidence.40 Another example is provided in a PRAC decision referring to a Canadian author: the testimony has no power of proof to be imposed on the judge, but the latter enjoys a large appreciation power concerning the merits of the testimony.41

Judgments of the European Court of Human Rights Finally, a last category concerns decisions referring to ECtHR case law. We have already indicated that some decisions refer to ECtHR cases as evidence of a factual situation (for example, ill-treatment in Russia). More substantially, the Council of State has referred to ECtHR case law with regard to the interpretation of the right to life in the L.C.B., Osman and Edwards cases.42 Another decision applies the interpretation given by the ECtHR to the notion of ‘family life’ to a factual situation occurring before Belgian courts.43 Other decisions refer to ECtHR cases but only by quoting the claimants’ point of view without approving it.44

38 39 40 41 42

43 44

would have led to significant harm due to the separation of the claimant from her daughter who was deaf and dumb. CS(b) no. 66292, 16 May 1997. CS(b) no.150899, 3 November 2005. ECtHR, Čonka v. Belgium, no. 51564/99 of 5 February 2002. CS(b) no.109702, 8 August 2002. PRAC no. 04–0612/R12859, 31 August 2005. CS(b) no. 107986, 18 June 2002. ECtHR, L.C.B. v. The United Kingdom, no. 14/1997/798/ 1001, 9 June 1998; ECtHR, Osman v. The United Kingdom, no. 87/1997/871/1083, 28 October 1998; ECtHR, Edwards v. The United Kingdom, no. 46477/99, 14 March 2002. CS(b) no. 122.000, 1 August 2003. CS(b) no.141903, 11 March 2005 ; CS(b) no.145893, 14 June 2005 ; CS(b) no.159174, 23 May 2006; CS(b) no. 100342, 25 October 2001; CS(b) no. 117676, 28 March 2003.

30

Jean-Yves Carlier and Dirk Vanheule

On the absence of a transnational dialogue The data reviewed show that there is very little reference to other EU countries’ case law and legal writing in the Belgian courts competent to deal with asylum and refugee cases. Why is this? As has been set out in the introductory chapter,45 two accounts may explain this. The rational account focuses on language, time constraints and access, and training as constituting obstacles to the dialogue. In the cultural account social perceptions about the usefulness of foreign jurisprudence are responsible for the dialogue (or the absence of dialogue). Elements of both accounts can be found in Belgium.

A rational account on the absence of a transnational dialogue Linguistic constraints Among the decisions that were carefully examined were references to Canadian, English, French, Danish, Dutch and German legal writing and case law. Except for the Danish reference, the other documents all use either one of the three national languages in Belgium (French, Dutch and German) or English, the contemporary lingua franca. This conclusion was quite expected. Judges and lawyers practising refugee law can be expected to consult and use legal materials in these languages.46 References to decisions in other European languages – the European Union now counts twenty-three official languages – would be time-consuming and expensive. However, a solution could be to choose a ‘European language’ for all the decisions concerning a particular European question, such as asylum. English could be this European procedural language. However, this proposal would most likely lead to negative reactions from EU countries afraid of a potential interference in their domestic affairs. A compromise 45

46

H. Lambert, Chapter 1 – ‘Transnational Law, Judges and Refugees in the European Union’. Even though Belgian administrative procedures are to be conducted in Dutch, French or German, the Council of State deemed ‘ that it is not forbidden that an asylum fi le contains information in another language, particularly when dealing with documents established by international or foreign institutions, insofar as it is a language of which at least the passive knowledge can be presumed to exist with every person who has had the level of education that is required to deal with the fi le in which he is acting; that in the case at hand, if one cannot expect the asylum claimant himself to know English, his advocate has necessarily followed higher education and, before that, secondary education, in the course of which he should have acquired sufficient knowledge of the language to understand the documents on fi le’. CS(b) no. 178.960, 25 January 2008.

Transnational dialogue in Belgian refugee law

31

could be found in a transitory stage during which the decisions would be delivered in two languages – English and one of the country’s official languages – in order to avoid an abrupt break with tradition. Taking Belgium as an example, such a solution could render the asylum procedure easier for the refugees, since they come from countries which do not generally speak Dutch, French or German. Consequently, such an improvement would be profitable in three respects: first, it would enhance and facilitate cooperation between the EU member states; second, it would be beneficial to the asylum seekers; and third, it could reduce the costs of translation since there would be only one procedural language. However, one must be clear: this proposal would be very difficult to accept at a political level in Belgium, a country where linguistics and equality among the linguistic communities have traditionally been a sensitive issue.

Time constraints Time constraints are obviously important because, given the number of requests, the tribunals have to deliver their decisions relatively quickly. As mentioned above, the PRAC took 12,893 decisions in the eight years between 1999 and 2006; that is an average of 1,612 decisions per year. Approximately 167,000 asylum applications were introduced between 1999 and 2006; that is an average of 20,876 per year.47 These numbers show that the asylum authorities have to deal with a huge number of fi les every year. It is therefore obvious that the jurisdictions will try to be as efficient as possible, sometimes at the expense of quality. Access to foreign case law Lawyers only exceptionally plead other countries’ jurisprudence. Here, too, there is scope for the current system to be improved. Lawyers could be asked to undertake comparative studies, including researching foreign decisions in similar cases, during the preparation of the hearing. Such a solution would avoid time being wasted by the asylum courts and would improve the coherence of the European asylum system. A cultural account on the absence of a transnational dialogue The style of judgments and the legal culture Differences between the common law and civil law traditions and between legal cultures provide another possible reason for the lack of foreign references in Belgium. 47

See: www.belgium.be/eportal.

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Jean-Yves Carlier and Dirk Vanheule

Generally speaking, the Belgian tradition in its case law is closer to the French and German ones (civil law) than to the English one (common law). This means that all decisions, in civil, criminal or administrative law are short, without long reasoning and without references to the doctrine or to other case law. Belgian judges are not there to convince their readers with their legal reasoning; they apply the law and inform their readers of the status of the law. This may even be more the case in refugee law, where traditionally the interpretation of the refugee defi nition itself has been broad, both by the administration and by the courts, and hence the need to convince the legal community of this broad interpretation, by reference to foreign examples, is limited. Most discussions are related to issues of credibility and evidence.

The conceptual legal framework within which the judge operates The first section of this survey has shown the different steps in the Belgian asylum procedure. However, a substantial difference exists between the PRAC (and the CALL) and the Council of State; the latter has an auditorat.48 The auditorat deals with the preliminary investigation into the cases brought before the Council of State. The auditorat’s members’ task is to provide a written report to the interested parties and give their opinion during the case hearing. In addition, the auditorat is responsible for keeping up to date, storing and gathering material regarding the available Council of State case law. Thus the task of the auditorat’s members implies extensive research on the facts and rights of the cases submitted to them, in order to explore all the elements of the subject-matter in question. With full knowledge of the facts, the Council of State is able to make a synthesis and to deliver its judgment. Therefore, the auditorat’s role makes it possible to supervise the uniformity and coherence of the case law. It may thus be argued that the existence of the auditorat goes some way towards explaining why the Council of State cases include more references to foreign law than PRAC cases. Consequently, the creation of a similar structure within the CALL might be a solution worth exploring in order to improve the coherence of the European system of law. However, some objections may be raised against such a proposition. Taking into account the judicial backlog, it may not be advisable to create a time-consuming and expensive structure. Guided by concerns as to costs, tribunals could 48

Act of 12 January 1973 regarding Coordinated Acts about the Council of State, MB, 21 March 1973, clauses 75–6.

Transnational dialogue in Belgian refugee law

33

be reluctant to create a department that might slow down their work, for such a result would be counter-productive. Furthermore, differences of opinion could arise between auditorat and CALL judges that would prevent efficiency in decision-making. Therefore, it may not be advisable to provide the CALL with advice which risks straining relationships. Nevertheless, an efficient compromise could be to create an auditorat shared by the Council of state and the CALL, whose task would be limited to investigating foreign law (case law and academic writing) and to writing up reports, commentaries and summaries about the state of the issue within the different European countries. This solution would contribute to improving the coherence of the European law system, while avoiding too much time being wasted due to divergent opinions. Council of State and CALL members might also charge that auditorat with precise research about a specific question of law or case in another country. These two branches would need to work on good terms in order to achieve efficient cooperation. Anyhow, the application of an international and EU-wide defi nition does require a look beyond the national border. In refugee law this could well occur with the evolution of the asylum procedure. In Belgium judicial involvement in the asylum process started with the creation of the CGRSP and the PRAC in 1987.49 In order to examine the context of the competences in asylum litigation, we should look at the new procedure applicable since 1 June 2007. The 1980 Aliens Act, amended in 2006, provides that twenty-six judges make up the CALL. To be appointed as a CALL judge, the applicant must be thirty-five years old, Belgian, have a PhD or masters in law, and must have professional legal experience of at least five years. Judges are appointed for life.50 Furthermore, judges are required to go through an evaluation procedure safeguarding the quality of their work. It remains to be seen whether this relatively newly established tribunal and the judges therein will opt for a more international approach to asylum cases.

The domestic dynamic surrounding refugee law cases Finally, other considerations can be examined such as the role of the United Nations High Commissioner for Refugees (UNHCR) in the decision-making process. UNHCR sometimes intervenes to offer guidance 49

50

See the Act 14 July 1987 amending the Act of 15 December 1980 regarding the access, residence, settlement and removal of Aliens, MB, 18 July 1987. See clause 39/19, §§2–3 of the Act of 15 December 1980 regarding the access, residence, settlement and removal of Aliens, MB, 31 December 1980.

34

Jean-Yves Carlier and Dirk Vanheule

on a doctrinal point such as the scope of the concept of ‘terrorism’,51 or concerning the rules relating to hearings.52 Moreover, claimants refer to UNHCR’s jurisprudence,53 or UNHCR’s current case and country reports.54 However, the role of the UNHCR is purely indicative and consequently plays the same limited role as foreign academic writing. 51 52 53 54

PRAC no. 02/26007/F2192, 19 October 2005. CS(b) no. 141340, 28 February 2005. CS(b) no. 89485, 31 September 2000. CS(b) no. 100342, 25 October 2001 ; PRAC no. 04–0511/F1652, 5 March 2004 ; CS(b) no. 01–0519/W7380, 16 November 2001, CS(b) no. 76730, 29 October 1998., CS(b) no. 84741, 18 January 2000.

3 Transnational refugee law in the French courts: deliberate or compelled change in judicial attitudes? Hélène Lambert and Janine Silga*

Introduction French judges have a long history of dialogue among themselves. Th is dialogue started between the administrative judge (namely the Conseil d’État or Council of State, the highest administrative court) and the civil judge (namely the Cour de Cassation, the highest civil court), with the Tribunal des Confl icts ultimately competent to decide who shall be competent. Th is dialogue was progressively extended to include the Constitutional Court (Conseil Constitutionnel) following its establishment in 1958. The scope of this dialogue was also widened to include the European Court of Justice (ECJ) (and its dialogue with the Council of State, in particular) through the preliminary ruling procedure,1 and the European Court of Human Rights (ECtHR). 2 In fact, it is often argued * Hélène Lambert is most grateful to François Bernard (former president of the National Asylum Court/Refugee Appeals Board), Roger Errera (Conseiller d’État Honoraire; Visiting Professor at CEU, Budapest), Gilles Piquois (France Terre D’Asile), Professor Catherine Teitgen-Colly (Université de Paris I Panthéon Sorbonne, France), Frédéric Tiberghien (Interministerial Delegate for Innovation, Social Experiment Social Economy, now rapporteur général at the Conseil d’État; also Président of Soutien, solidarité et actions en faveurs des émigrants (SSAE)), Vera Zederman (Director of the Legal Information Centre, National Asylum Court/Refugee Appeals Board) for agreeing to be interviewed for the purposes of this chapter, more generally for their support throughout this project. She especially wishes to acknowledge the dedicated work of Vera Zederman and her office in carrying out the survey of the French case law. Janine Silga thanks Jean-Pierre Alaux (chargé d’études, GISTI) for agreeing to be interviewed. The law is stated as at 1st May 2009. 1 E.g., Conseil d’État, 19 June 1964, Société des Pétroles Shell Berre et autres and Conseil d’État, 22 December 1978, application no. 11604 , Ministre de l’Interieur c. Cohn-Bendit. 2 Kress v. France, ECtHR, 7 June 2001. See also, Parliamentary Assembly of the Council of Europe, Recommendation 1535 (2001) of 26 September 2001, calling for a strengthening

35

36

Hélène Lambert and Janine Silga

that European law has been a key element in the growth of comparative method in both the Council of State and the Cour de Cassation.3 Finally, this dialogue was extended to include the highest courts of other countries (such as between the House of Lords and the Council of State). However, citing or referring to the jurisprudence from another national jurisdiction remains a rare exercise in French administrative courts.4 Thus, the full impact of foreign law on French decisions may often be a matter of speculation. That said, important information can be found in the conclusions of the commissaire du Gouvernment (the rapporteur public) as well as in the annual and special reports of the Council of State.5 The rapporteur public are members of the Council of State who represent the public interest in a given case. It is their task, in tandem with the other judges, to survey the law on a particular issue and to present their personal opinion. Their role is only advisory but unlike in civil case, it is a principle of administrative procedure that the rapporteur public must provide a reasoned opinion on all cases.6 In the area of law relating to asylum and refugees, only two cases were found where the commissaire du Gouvernement referred to foreign law in her or his conclusions.7 In related areas of law, such as extradition or human rights, the rapporteur public have quoted and used foreign law in their conclusions more readily, 8 while in other areas of public law, such as tax law, civil service law, planning and public procurement,

3

4

5

6

7

8

of cooperation and dialogue between domestic courts and the ECtHR. Generally, D. Lochak, ‘Le Conseil d’État en politique, Pouvoirs – Revue Française d’études constitutionnelles et politiques, No.123 (November 2007), 19–32. R. Errera, ‘The Use of Comparative Law Before the French Administrative Law Courts’, and G. Canivet, ‘The Use of Comparative Law Before the French Private Law Courts’, both in G. Canivet, M. Andenas and D. Fairgrieve (eds.), Comparative Law Before the Courts (London: British Institute of International and Comparative Law, 2004), 153–63 and 181–93, respectively. One such rare instance is the case of Techna SA where the Council of State cited a decision of the English High Court concerning labelling requirements under EU law, and used it to support its argument that the EC Directive should be suspended (application no. 260768, Techna SA, 29 October 2003). The commissaire due Gouvernment was renamed ‘the rapporteur public’ with the ‘Décret no. 2009–14 due 7 janvier 2009 relatif au rapporteur public des jurisdictious administratives et au déroulement de l’audience derant ces jurisdictious’, Journal Officiel de la République française no. 0069, 8 janvier 2009. See J. Bell, French Legal Cultures (London: Butterworths, 2001), at 160, and J. Bell, Judiciaries within Europe – A Comparative Review (Cambridge University Press, 2006), 75 and 82. Conseil d’État, 2 December 1994, application no. 112842, Mme Agyepong, conclusions Martine Denis-Linton, and Conseil d’État, 23 June 1997, application no. 171858, Ourbih, conclusions Jean Denis Combrexelle. Errera, The Use of Comparative Law Before the French Administrative Law Courts’, 159–60.

Transnational refugee law in the French courts

37

foreign law plays very little or no part at all. The role of liaison magistrates (in criminal and civil matters) to encourage judicial cooperation between countries has also been found to prove particularly useful in the dissemination of foreign law, in particular in cases where there is no relevant legislative provision or no precedent (in case law).9 This chapter is divided into three sections. The first section examines the concept of asylum in France and the asylum decision-making process, with a particular emphasis on the appeal system. The second section surveys the case law in order to identify if, where and when foreign law (namely foreign jurisprudence from other European courts) has been used by French courts in refugee law cases. The third section discusses two basic jurisprudential explanations for the volume and direction of this transnational traffic of legal ideas: a rational account based on language barriers, time constraints and access, and training, and a cultural account based on judicial perceptions about the (non-) usefulness of foreign law.

The asylum decision-making process in France The right of asylum is part and parcel of the common traditions of European countries.10 France guarantees the right of asylum expressly in its Constitution to Anyone persecuted because of his or her action, for freedom has a right of asylum in the territories of the Republic.11

However, individuals may only be able themselves to claim this constitutional right following its implementation in a legislative act. The first legislative initiative to embrace this constitutional right and to recognize the category of beneficiaries of asylum to those who struggle for freedom is the Aliens (Entry and Residence in France and Right of Asylum) Act No. 98–349 of 11 May 1998, Article 29. It has been noted that most of those who struggle for freedom are also eligible for refugee status under the Refugee Convention, following the same procedure before the same 9

10

11

B. Rabatel, ‘Liaison Magistrates: Their Role in Comparative Law and International Judicial Cooperation’, in G. Canivet, M. Andenas and D. Fairgrieve (eds.), Comparative Law Before the Courts, (London: British Institute of International and Comparative Law, 2004), pp. 49–54. Parliamentary Assembly of the Council of Europe, Recommendation No. 434 (1965) on the granting of the right of asylum to European refugees. Preamble of the Constitution of 1946, referred to in the Preamble of the Constitution of 1958.

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authorities and leading to the same rights, thereby rendering constitutional asylum almost obsolete.12 In the hierarchy of norms, international treaties such as the Refugee Convention are ranked between the Constitution and ordinary laws as soon as they are published (Article 55, Constitution and jurisprudence). This recognition has resulted in a generally accepted practice that individuals could invoke the Refugee Convention directly before a French judge. The competent authority dealing with asylum at first instance is OFPRA (Office français de protection des réfugiés et apatrides).13 It is a public (non-judicial) authority,14 with legal personality and financial as well as administrative autonomy. This authority is linked15 to the Ministry of Immigration16 and should also cooperate with the United Nations High Commissioner for Refugees (UNHCR).17 It is possible to bring an appeal against the decisions of OFPRA before the Refugee Appeal Board (Commission de Recours des Réfugiés, hereafter the Board), now the new National Asylum Court (Cour nationale du droit d’asile, hereafter the Court),18 which is a special judicial authority under administrative 12

13

14

15

16

17 18

P. Delouvin, ‘The Evolution of Asylum in France’, Journal of Refugee Studies 13 (2000), 61–73, at 69–70. H. Lambert, F. Messineo and P. Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’, Refugee Survey Quarterly, 27 (2008), 16–32, at 20. For a full picture of the role of OFPRA, see new Articles L 721–1 to L 721–3 of the CESEDA (Code de l’entrée et du séjour des étrangers et du droit d’asile). It corresponds to the French administrative law notion of ‘ établissement public’. According to François Julien-Laferrière, it is of an administrative nature. F. Julien-Laferrière, Droit des étrangers (Paris: Presses Universitaires de France, 2000), 393. Article L 721–1, CESEDA. The law refers to this ambiguous relation between OFPRA and the Ministry of Immigration by mentioning the fact that this public authority is ‘placé auprès du ministre chargé de l’asile’. In theory, therefore, this relation is one of independence between OFPRA and the Secretary of state. In practice, however, it is difficult to envisage OFPRA not being submitted, at least to some extent, to the authority of the Secretary of state. Initially, the full title of this Ministry was Ministère de l’immigration, de l’intégration, de l’identité nationale et du co-développement. Its creation is very recent, as it only goes back to the last French presidential elections and the subsequent nominations of the members of government. For a full overview, see ‘Décret n° 2007–999 du 31 mai 2007 relatif aux attributions du ministre de l’immigration, de l’intégration, de l’identité nationale et du co-développement’, Journal Officiel de la République française du 1er juin 2007. Since 18 March 2008 the word co-développement has been replaced by développement solidaire. See, ‘Décret du 18 mars 2008 relatif à la composition du gouvernement’, Journal Officiel de la République française no. 0067, 19 March 2008, 4840. Article L 721–2, CESEDA. Th is National Asylum Court was set up by one modification of the CESEDA, which took place on 20 November 2007. See new Article L 733–1 et seq., CESEDA. Th is Court replaces

Transnational refugee law in the French courts

39

law. Further appeals before the Council of State may be introduced by the applicant, or more exceptionally by OFPRA, within two months of the date when the National Asylum Court has reached a decision.19 These appeals take the form of pourvoi en cassation (namely, to check whether the Board/ Court has correctly applied the law, but not reconsider the facts20) and they have no suspensive effect. Since 1982 the National Asylum Court has become a juge de plein contentieux, which means that matters in dispute before the Court are mostly about facts, that is, about the well-foundedness of the individual’s application for refugee status. 21 The key importance of facts in asylum decisions at the Court is indeed reflected in the importance given to the applicant’s story. The Court concentrates on the application and appraisal of evidence; it is a contentieux de fait. To be sure, the importance of facts before the National Asylum Court is so overwhelming that as soon as facts are established, there is usually very little need to look at the law and interpret the Refugee Convention. Legal reasoning at the National Asylum Court is very much secondary. In practice, very few cases are referred to the Council of State, namely only those cases raising a legality/illegality issue relating to the decision-making by the Court. The scope of judicial control in the area of asylum law is subject to the rules of administrative law. The principle is that the administrative judge should only assess the legality of an administrative measure restrictively; judicial control is limited to major error of assessment (contrôle restreint de l’erreur manifeste d’appréciation). Asylum law (and the law relating to aliens more generally) is indeed closely linked to the sovereign power of the state, which is free to admit to or remove an alien from its territory. In any such cases, the state exercises a prerogative (prérogative de puissance publique) which often implies a discretionary power. Exceptionally, judges may expand their control to one of proportionality when the administrative measure affecting the legal

19

20

21

the Commission de Recours des Réfugiés (CRR) in deciding on the appeals brought by asylum seekers against the decisions of OFPRA. D. Alland and C. Teitgen-Colly, Traité du droit d’asile (Paris: Presses Universitaires de France, 2002), 320. A. Castagnos-Sen, Les conditions d’exercice du droit d’asile en France (Paris: La documentation française, 2006), 143–4. Applying, in doing so, the principle the ‘sovereign authority of fi rst-instance judges to decide on the facts’ (autorité souveraine des juges du fond ). Conseil d’État, 8 January 1982, application no. 24948, Aldana Barrena , conclusions of commissaire du Gouvernement Genevois. Prior to 1982, this contentieux was one de l’excès de pouvoir.

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situation of aliens also affects their fundamental rights, such as Article 33 of the Refugee Convention or Article 3 of the European Convention on Human Rights (ECHR)).22 As a result, refugee law (that is, the criteria in the Refugee Convention) is far less developed in France than, for instance, in the UK where judges decide upon facts but also quite extensively on the meaning and application of the Refugee Convention. And this is so, despite very few cases being found inadmissible (only around 15 per cent), unlike in Belgium for instance, where most asylum cases are found inadmissible.23 Furthermore, the contentieux (or body of case law) relating to refugees is highly specialized. It follows the rules of administrative law, including the rule that judges’ deliberation must be entirely secret.24 It is a case law elaborated in isolation, and therefore less developed than in other countries, and with limited input from the doctrine. Judges themselves are not specialized; they are attached to their jurisdiction (for example, the Council of State). Moreover, there is presently very little overlap in France between that case law and the case law relating to human rights. 25 Finally, evidentiary assessment in France is made holistically, based on the intimate conviction of the judge (that is, the théorie du faisceau d’indices). 26 Decision-makers at OFPRA and the National Asylum Court: demand a coherent recital of events, something that is not always within the powers of a person describing traumatic personal experience.27

It has been argued that, due to lack of time and the absence of familiarity with an applicant’s file, the key question considered by decision-makers 22

23 24

25 26

27

For a more detailed overview of the scope of judicial control of the administrative judge concerning immigration related measures, see F. Chaltiel, ‘Le juge administratif, juge de l’immigration’, Revue de Droit Public , 1 (2000), 153–93, and R. Deau, ‘Les liens unissant l’erreur manifeste d’appréciation et les contrôles “entiers” en matière de droit des étrangers’, Revue française de droit administratif (November–December 2005), 1188–96. See Jean-Yves Carlier and Dirk Vanheule in Chapter 2 above. For a critique, see J. Valluy, ‘La fiction juridique de l’asile’, Plein Droit No.63 (December 2004). Lambert’s interview with Professor Catherine Teitgen-Colly, Paris, 19 June 2006. Lambert’s interview with Frédéric Tiberghien, Paris, 19 June 2006. For a full discussion, see J-M. Belorgey, ‘Le contentieux du droit d’asile et l’intime conviction du juge’, Revue Administrative No. 336 (November 2003), 619–22. See also, Castagnos-Sen, Les conditions d’exercice du droit d’asile en France, 110–12. Delouvin, ‘The Evolution of Asylum in France’, 69.

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41

at OFPRA and the Court is not, ‘Is this person a genuine refugee?’, but instead, ‘Has this person managed to convince me?’28 The benefit of the doubt (as recommended in the UNHCR Handbook) is recognized in France as a valuable principle, even if it is applied restrictively in practice and often fails to benefit the applicant. In the rare cases where considerations of ‘bad faith’ on the part of the applicant have been argued, these have not prevented the judge from applying the principles of refugee law.29 Moreover, although most of the litigation relating to aliens (including asylum seekers and refugees) falls within the competence of the administrative judge, part of it is still within the scope of competence of the ordinary judge (with the Cour de Cassation at the highest level). This is mainly the case with respect to decisions of detention of asylum seekers.30 The Constitutional Court, strictly speaking, does not intervene as a judicial authority because it is not one as such. It may, however, intervene on request, mainly through an a priori and abstract examination of draft legislation in order to assess its compatibility with the French Constitution.31 It has done so on several occasions with respect to new legislation dealing with aliens (including asylum).32

The use of foreign law by French courts: empirical focus on refugees and asylum jurisprudence For many years the Constitutional Court has carried out systematic comparative studies of the law in foreign jurisdictions when a new piece 28 29

30

31 32

Valluy, ‘La fiction juridique de l’asile’. See, as a rare example, a ruling of the Council of State that a fraudulent application (based on lies about one’s identity) is not to be rejected as manifestly unfounded but rather must be appreciated in the context of a well-founded fear of being persecuted in accordance with the Refugee Convention. Conseil d’État, 7 février 1994, application no. 101455, Chuong. Online. UNHCR Refworld, available at: www.unhcr.org/refworld/ docid/3ae6b67a1c.html. At the lowest level, the specialized judicial authority competent with regard to detention of aliens is the Juge de la détention et des libertés. For a more detailed overview, see C. Bonnotte, ‘La contestation des décisions de maintien en rétention administrative et en zone d’attente devant le juge judiciaire et le juge administratif ’, L’Actualité juridique – Droit administratif (2004), 694–703; H. Manciaux, ‘La réforme de la reconduite à la frontière par la loi du 26 novembre 2003: l’imbroglio juridique demeure’, L’Actualité juridique – Droit administratif (2004), 1904–10; L. Domingo, ‘Les conditions de la rétention administrative peuvent être constatées par le juge judiciaire’, L’Actualité juridique – Droit administratif (2004), 1011–13. Articles 56 to 63, 1958 Constitution. E.g., decision of the Constitutional Court from 15 November 2007, decision no. 2007–557.

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of legislation is being adopted (for instance, in the area of asylum). At the Cour de Cassation, too, judges have been open to comparative law, in particular to foreign jurisprudence, and this was very much the case under Guy Canivet’s presidency. However, only very few refugee cases are decided by the Cour de Cassation;33 most cases are decided by the administrative courts, and tradition at the Council of State is much more restrictive.34 This conservative tradition is reflected in our finding that it is very rare for French senior asylum judges to refer to foreign jurisprudence in the text of their decisions. Rather, if and when foreign material is used, this takes place at the National Asylum Court/Refugee Appeals Board through the preparatory documents intended for the plenary sessions (Section Réunies) or at the Council of State through the conclusions of the rapporteur public.

Methodology The findings below are based on a research of: (1) all the decisions and preparatory documents ( feuilles verte)35 of the plenary sessions of the Refugee Appeals Board since its first hearing in 1993 until August 2006;36 (2) a selection of decisions to be found in the collection of the Refugee Appeals Board;37 and 33

34

35

36

37

Other courts (e.g., administrative tribunals, criminal courts and civil courts) may also be competent to decide on refugee cases; however, this competence is only marginal. Alland and Teitgen-Colly, Traité du droit d’asile, 296–303. O. Dutheillet de Lamothe, ‘Constitutional court judges’ roundtable’, International Journal of Constitutional Law (October 2005), 550. The feuilles verte are working documents that contain a summary analysis of the legal instruments and case law relevant to the case at hand (e.g., international treaties, national legislation, European legislation, relevant jurisprudence from the National Asylum Court/Refugee Appeals Board, the Council of State, and, occasionally, relevant jurisprudence from the Cour de Cassation and foreign material). They are prepared by the Legal Information Department of the Court/Board, directly under the supervision of its president who decides which questions to consider and which appendices to include. Thus, it is the president who can require (and has required) that foreign jurisprudence be considered and added. The feuilles verte are intended to be used by judges; on occasion they may be communicated to the parties (and their representatives). The year 1992 marks the creation of the plenary sessions at the Refugee Appeals Board (Decree of July 1992) which is competent to decide on legal aspects of the application of the Refugee Convention and which also became competent to deal with matters regarding subsidiary protection since the asylum legislation of 18 November 2003. Until 2001–2, the annual collection of decisions of the Refugee Appeals Board (created by the Legal Information Department) was based on all the decisions of the Board

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(3) all the relevant decisions of the Council of State (including the conclusions of the commissaire du Gouvernement (and rapporteur public) which were available to the Refugee Appeals Board but excluding those applications that were found to be manifestly unfounded). Of all these decisions, those that make a reference (in some way or another) to foreign asylum jurisprudence were selected and read.

Council of State The Council of State has never once explicitly referred to foreign jurisprudence in its decisions relating to asylum and refugees. However, in the case Mme Agyepong, the commissaire du Gouvernment Martine DenisLinton referred to foreign law (in particular, the legislation of Germany, Spain and Austria) to extend refugee status to the family of the refugee, thereby establishing a new general principle of law, that of family unity.38 In the case Ourbih39 the commissaire du Gouvernement Jean-Denis Combrexelle reached the conclusion that the concept of persecution is relevant, if not key, in identifying a social group. His legal reasoning was largely based on two foreign decisions,40 the writings of foreign academics (in particular, Professors Goodwin-Gill, Helton and Grahl-Madsen) and the UNHCR’s Handbook. Quite importantly, the judgment of the Council of State in Ourbih embraced the interpretation of its commissaire du Gouvernement, thereby setting the foundations for an evolving jurisprudence on the concept of social group by the Board.41

Refugee Appeals Board/National Asylum Court The first (and only) explicit reference to foreign jurisprudence ever made by the Refugee Appeals Board appears in a decision of the plenary sessions

38

39 40

41

(i.e., 6,000–12,000 per year). Since 2003 the Board has made over 40,000 decisions per year, of which around 2,000 decisions are selected each year for the collection. M. Denis-Linton, Conclusions du Conseil d’État, Assemblée, 2 December 1994, application no. 112842, Mme Agyepong, Revue Française de Droit Administratif 11 (1995), 86–93. Conseil d’État, 23 June 1997, application no. 171858, Ourbih. Decision of 26 April 1983 of the Wiesbaden Administrative Court (Germany), and decision of 3 February 1986 – Matter of Taboso – from a US immigration judge. E.g., in a decision relating to an Algerian transsexual and the meaning of ‘social group’ (CRR, Sections Réunies (SR), 15 May 1998, affaire O., application no. 269875), the Board relied extensively on the decision of the Council of State in Ourbih, which, as just mentioned above, embraces the reasoning of its commissaire du Gouvernement that was mostly grounded in foreign jurisprudence and academic writing.

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relating to the application of the Schengen and Dublin Conventions.42 The Board rejected the claimants’ appeal, and relied on a decision of the Stuttgart Administrative Tribunal of April 1998 which had denied them refugee status. References to foreign jurisprudence (in particular Canadian, Belgian, United states, British and Australian) have been made, albeit seldom, in the preparatory documents used by the plenary sessions to decide on important legal issues. The first decision of the Board which contains explicit references to foreign jurisprudence in its preparatory documents is one on the meaning of social group in the context of female genital mutilation.43 In this case the Board considered its previous case law on female circumcision excision which analysed this treatment in the context of persecution,44 as well as the decision of the Council of State on the meaning of social group in the case of Ourbih. It also looked at two Canadian decisions from 1994 relating to Somalia, a decision of a US Immigration Judge from Baltimore of 1999 relating to Mali, a decision of a US Immigration Court (Boston) of 1998 relating to Guinea, and a European Parliament Resolution of 26 February 2001 on female genital mutilation, and concluded that parents who refuse to allow their baby daughter child to be circumcised and who, as a result of this refusal, run the risk of being persecuted as well as of having their daughter circumcised against their will, belong to a particular social group. With this finding, it would appear that the Board was abandoning its previous case law based on the Diop decision. However, just a month later, having regard to similar foreign jurisprudence (namely, two Canadian decisions from 1994 on Somalia and a decision of a US immigration judge from Baltimore of 1999), the Board decided that the mere fact of being a girl or woman at risk of being circumcised does not make that person a member of a particular social group.45 A year later the Board considered again the meaning of social group in the case of two Chinese sisters.46 In both cases their appeal was rejected on the basis of relevant cases previously decided by the Council of State 42 43

44

45 46

CRR, SR, 23 February 2001, application no. 351244, Keklicekpinari. CRR, SR, 7 November 2001, applications nos. 361050 and 373077, Sissoko. See also decision of the CRR, SR, 7 December 2001, application no.3 68138, Soumah, based on the same foreign jurisprudence as presented in the feuille verte. E.g., CRR, 18 September 1991, application no. 164078, Diop; Conseil d’État, 29 July 1998, application no.131711. CRR, SR, 7 December 2001, application no. 368138, Soumah. CRR, SR, 28 February 2003, applications nos. 404302 and 404411, Wang.

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and the Refugee Appeals Board, but also a decision from the High Court of Australia which provided a definition of persecution concerning children born during the one-child policy in China.47 A few months later the Board considered the meaning of social group in the case of an applicant from the Dominican Republic who claimed to have been forced into prostitution in Haiti and to have received no protection because of her ethnic origins.48 Among the existing jurisprudence relating to this issue, the Board looked at a Canadian decision recognizing that women who used to be prostitutes constitute a social group because they are bound by a former voluntary immutable status which has historical standing.49 It recognized the refugee status of the applicant. In June 2004 the Board again referred to Canadian jurisprudence50 as examples of decisions already having had to deal with similar issues to decide on a case brought by an applicant from Côte d’Ivoire who claimed to having been treated as a slave in her position of governess to the daughters of the former president of that country.51 As it happened, the judges did not need to refer to this Canadian jurisprudence because the appeal failed on the ground that the applicant had failed to show that she would lack protection from the state if returned to Côte d’Ivoire. However, the fact that two Canadian decisions were included in the supporting documents suggests a growing practice on the part of the Board’s members of referring to foreign jurisprudence. A few months later the Board once again considered the meaning of social group in the case of a woman from Pakistan who claimed to have been forcibly married.52 In this case the Board found it useful to consider a decision from the Federal Court of Canada53 that dealt specifically with the matter, and according to which persons forced to enter into marriage without their consent constitute a social group. The judges sought further guidance from the opinion of Lord Steyn in Islam v. Secretary of State 47 48 49

50

51 52 53

13 April 2000, Chen Shi Hai v. The Minister for Immigration and Multicultural Affairs. CRR, SR, 17 October 2003, application no. 423904, M. Commission de l’Immigration et du Status de Réfugié, Section du Statut de Réfugié (Canada), T98–06186, 2 November 1999. Commission de l’Immigration et du Statut de Réfugié , SSR (Canada), C96–01541, Thibodeau, Gaudet, 9 December 1996 (Ghana) and SSR (Canada) A98–00703, Showler, 25 January 1999 (Somalia). CRR, SR, 25 June 2004, application no. 403498, Koffi Amani. CRR, SR, 15 October 2004, application no. 444000, Noreen Nazia. Vidhani v. Canada, (Ministre de la Citoyenneté et de l’Immigration). Canada: Federal Court, 8 June 1995, IMM-3528–94. Online. UNHCR Refworld, available at: www.unhcr. org/refworld/docid/3ae6b6d91c.html.

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for the Home Department, Regina v. Immigration Appeal Tribunal and another, ex p. Shah according to which a social group includes: a group of persons all of whom share a common and immutable characteristic54

and that: Th is reasoning covers Pakistani women because they are discriminated against and as a group they are unprotected by the state.55

Finally, they also considered the conclusions of the commissaire du Gouvernment in Ourbih which, as mentioned above, referred to German and US jurisprudence as well as Anglo-Saxon academic writing. In the light of these foreign decisions, the Board found that women who refuse to be forcibly married constitute a group, the members of which, by reason of the common characteristics that define them in Pakistani society, are at risk of persecution and of being unprotected by the state authorities.56 Further use of foreign jurisprudence was made in the context of forced marriage and the meaning of social group in two decisions from the Board in 2005. The first case was an application from a Turkish national, of Muslim faith and Kurd origins, who claimed that at the age of fi fteen she was confined for six months for refusing to marry against her will.57 The Refugee Appeals Board, having considered previous decisions from the Council of State and from its own jurisdiction, as well as one decision from the Belgian Refugee Appeals Board (Commission Permanente de Recours des Réfugiés),58 recognized that women in parts of rural Turkey who refuse to enter into forced marriage constitute a social group because of their common characteristics which defi ne them in Turkish society, and that as such they are at risk of being persecuted without being able to avail themselves of state protection. In the second case the Board, having 54

55 56

57 58

Referring to the Board of Immigration Appeals in In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). [1999] 2 AC 639. Note that the appeal was nonetheless rejected on the ground of lack of credibility/ evidence. CRR, SR, 4 March 2005, application no. 489014, Tas. CPRR (Belgium), no. 03–01/0668/F1356, Cameroun, 8 March 2003. In this decision, the Belgian Commission (referring to the cases of Ward (Supreme Court of Canada) and Islam/Shah (House of Lords), as well as to the writing of Professor Guy S. GoodwinGill) recognized that young women/girls from Cameroon could constitute a social group because they share common characteristics which make them different from the rest of society, and perceived as different by the rest of the population or by the state authorities.

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considered previous decisions from the Council of State and from its own jurisdiction, a decision from the Belgian Refugee Appeals Board on Cameroon,59 and two decisions from the Canadian Immigration and Refugee Board (CIRB),60 ruled that women who refuse to enter into forced marriage may constitute a social group in cases where the society (or part of it) regard them as violating existing social mores and laws and the state refuses or is unable to protect them against persecution.61 Short of meeting these requirements, in particular in cases where such behaviour is not considered a violation of social mores, these women may benefit from subsidiary protection. Although both cases were successful in recognizing the existence of a social group, they failed nonetheless because the applicants were found to lack credibility. Apart from guiding the judges at the Board/Court on the meaning of social group, foreign jurisprudence has also been used as a landmark in the interpretation of Article 1F of the Refugee Convention. In the case of an applicant strongly suspected of having committed serious non-political crimes, the Board chose to refer to existing foreign jurisprudence on this point. The supporting documents therefore include abstracts of the key findings by the Federal Court of Canada and the Belgian Refugee Appeals Board in cases dealing with similar issues.62 In sum, except in cases requiring the application of principles laid down in the Dublin and Schengen Conventions, none of the decisions of the Board/Court or of the Council of state have made explicit references to foreign jurisprudence in the actual text of their decisions. Rather, if and when foreign material is being used, this takes place through the use of supporting documents ( feuilles verte) for the plenary sessions at the Board/Court which, on occasion, include an analysis of foreign jurisprudence, or through the conclusions of the rapporteur public, who, as member of the Council of State, gives his or her opinion on the interpretation of important legal issues, and who very occasionally refers to foreign case law. On these rare occasions, foreign jurisprudence has been used when it comes to interpreting certain controversial provisions of the Refugee Convention, such as the meaning of social group and

59 60

61 62

Ibid. CIRB, 10 May 1994, Mme Khadra Hassan Farah, Mlles Mahad Dahir Buraieh, Hodan Dahir Buraleh (Somaliland) and CIRB, 13 November 2002, TA2 00417. CRR, SR, 29 July 2005, application no. 519803, Tabe. Sivakumar v. Canada, 4 November 1993, and 2e chambre française, 95/1017/F390, 18 January 1996, respectively.

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the exclusion clauses in the Refugee Convention. Thus, French judges continue to base their arguments and reasoning mostly on French sources of law, including international and European law, which are binding before the French courts. However, a recent trend is starting to show a slight increase in transnational references, particularly in the context of new legal concepts that spring from the EC Qualification Directive.63 For instance, the Refugee Appeals Board gave serious consideration to foreign jurisprudence when, in 2003, it drafted its internal document aimed at implementing the Directive. 64 Th is document, largely inspired by foreign jurisprudence, is important in providing new directions in the interpretation of new concepts in the Directive, such as lack of protection by the state of origin, internal relocation and subsidiary protection.

Reasons for the lack of transnational traffic of jurisprudence between France and its EU partners This section seeks to explain why French judges refer to and use (or not) jurisprudence of other EU countries when making their own decisions. Two basic jurisprudential explanations are discussed: a rational account and a cultural account.

Rational account The rational account focuses on language, time constraints and access, and training, and it looks at the extent to which these constitute obstacles to the volume and direction of the dialogue between senior judges in France and in other European countries. The basic premise is that the extent of the obstacles is determined by the volume of transnational dialogue and also by the direction. Th is explanation is said to be rational because it emphasizes opportunity cost, namely the balance between the benefits of foreign references and the costs that such exercise entails, focusing on the key elements below.65 63

64 65

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal L 304, 30/09/2004 p. 0012–0023). Lambert’s interview with Vera Zederman, National Asylum Court, Paris, 20 June 2006. Refer to footnote 46 in H. Lambert, Chapter 1 – ‘Introduction: Transnational law, judges and refugees in the European Union’.

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Language The analysis above shows that foreign decisions from countries as diverse as Germany, the USA, Australia, the United Kingdom, Canada and Belgium have been used at the National Asylum Court/Refugee Appeals Board and the Council of State without any obvious preference for Frenchspeaking countries. With the exceptions of Belgium and Canada (whose decisions are officially available in both French and English), all other countries’ decisions require to be officially translated before being used by the Board or the Council of State.66 Yet, this constitutional requirement does not appear to be perceived as a real obstacle. Indeed, the most important decisions from foreign courts are translated into French, and an increasing number of members at the Board/Court and the Council of State are bilingual, including the two former presidents of the Board, François Bernard and Jean Massot.67 In sum, language does not seem to constitute an insurmountable obstacle to the lack of reference by the Court/Board and Council of State to the jurisprudence of other EU countries.68 Other obstacles therefore need to be considered. Time constraints and access Th is reason may point towards the fact that lower courts are not adequately equipped to take advantage of foreign law. OFPRA officers are expected to reach a decision in a time frame that can vary from ninety-six hours to two months, depending on the situation of the asylum seeker. The normal time limit is two months, but it can be reduced to fi fteen days, in the case of a priority procedure or ninety-six hours, when the asylum seeker is placed in administrative detention.69 In this context, the time put aside by each officer for researching the facts, analysing the applicant’s fi le, and reflecting upon each case is extremely short.70 As a judicial authority, the National Asylum Court /Refugee Appeals Board can also issue a ruling without being bound by a time 66

67

68

69 70

Article 2, 1958 Constitution (Loi constitutionnelle No. 92–554, 25 June 2992): ‘La langue de la République est le français’. See also, Conseil d’État, 27 September 1985, application no. 54090, Avakian. Note that in 2009 Mme Martine Denis-Linton became the new president of the National Asylum Court. In addition to the language barrier, lack of knowledge of foreign legal systems may be a further inhibiting factor in the use of foreign jurisprudence. Articles R 723–2 and R 723–3 of the CESEDA. 2.7 dossiers per day at the OFPRA; approximately 2 dossiers per day per rapporteur at the Refugee Appeal Board. Valluy, ‘La fiction juridique de l’asile’.

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limit. Given the sheer number of asylum appeals, the Court/Board has no choice but to rule promptly.71

Training The Act of 25 July 1952 created two specialized institutions: OFPRA and the Refugee Appeals Board. At OFPRA applications are considered according to geographical criteria by 172 officers working under the responsibility of a director of section.72 Ultimately, decisions are made by the Director of OFPRA (a civil servant appointed following recommendation from the Ministry of Foreign and the Ministry of the Interior) or by officers acting under his or her responsibility.73 A law background is not a prerequisite to working for OFPRA. Indeed, for the concours, candidates may choose to write an essay either in public law or in international relations, and at the oral examination, candidates may choose refugee law, human rights or a foreign language. The French National Asylum Court is an administrative tribunal,74 whose ordinary members (or judges) are not required to be lawyers; they do not necessarily know French law, even less so (comparative) refugee law or human rights.75 The chairs of sections (présidents des formations), who exceed one hundred in number,76 and rapporteurs77 do have a legal background, but 71

72 73

74

75

76

77

The average time for ruling on an asylum appeal was approximately of 10.3 months at the Board in 2006; see the Activity Report 2006 of the Refugee Appeals Board, available at: www.commission-refugies.fr/presentation_4/actualites_5/rapport_ activite_2006_2142.html (at 21–2). There are currently four sections: Europe, Africa, Asia, and America-Magreb. For a critical view of OFPRA officers’ subordination to their administrative hierarchy, see Valluy, ‘La fiction juridique de l’asile’. Act of 25 July 1952, amended by the Act of 10 December 2003. See also Article L.731–1 CESEDA and Decree of 14 August 2004. Since 2004, each section ( formation) of the National Asylum Court is composed of three judges (including the chair of section): one from the civil law branch, one from the administrative law branch, and one representing the UNHCR. For a discussion on the constitutional controversy surrounding UNHCR’s ‘foreign’ presence, see C. Teitgen-Colly and F. Julien-Laferrière, ‘La réforme du droit d’asile’, Doctrine, L’Actualité juridique-Droit Administratif, 20 December 1998, 1002–4. All the chairs of sections are appointed from the administrative or fi nancial branch of the judiciary (that is, the Council of State, the Appeal Administrative Tribunal or the Administrative Tribunals, or the National (and Regional) Audit Office(s), respectively); therefore, they have a general law background. Rapporteurs are granted primary responsibility for preparing cases (that is, they follow the enquiry and prepare a draft decision for the National Asylum Court to be examined at the time of decision). Strictly speaking not all of them are lawyers but they must at least have done a training course in refugee law. Although they have an important role in

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again not specifically in comparative refugee law. A law background is not a prerequisite to being appointed to the Council of State, though its members are typically top graduates of the ENA (École nationale d’administration), the most well-known national institution training the highest French civil servants. On occasion, members of the Council of State can be from another background, such as university professors.78 Thus, reference to foreign (comparative) jurisprudence in the French courts remains traditionally driven by the intellectual curiosity of some judges. In summary, the rational account only goes so far in explaining the lack of transnational activities (such as references) between French and other European judges. Language is not such a major obstacle. However, training (in so far as there is little attention to foreign law in the training of refugee law judges), and time constraints (at the level of first appeal) and difficulty (in accessing decisions in many parts of the EU) are much better explanations for the lack of a transnational European legal dialogue in asylum jurisprudence.

Cultural account The cultural account suggests that judges are not in fact resorting to any cost–benefits analysis. Rather, this account emphasizes social perceptions about the (non-) usefulness of foreign decisions resulting in default rejection of foreign jurisprudence. These social perceptions (for example, a foreign decision is not worth considering) are produced by culture and would create an exaggerated sense of the barriers to dialogue. For the purpose of this project, and drawing on scholarship on legal culture as well as comparative law, three elements are considered. First is the style of judgments, as an indication of legal culture. The second element is the conceptual legal framework within which the judge operates as an indication of an open versus a closed judicial mentality. The final element is the domestic dynamic surrounding cases, as an indication of the role of civil society in this system of legal reasoning.

78

interpreting and applying the law to a particular case, they do not have a creative role (no pouvoir réglementaire). However, they do have an important role as ‘memory of the institution’ to ensure continuity in the jurisprudence. Interview with Frédéric Tiberghien, Paris, 19 June 2006. For more details on the background of members of the Council of State, read Article L 133–1 et seq. of the code of administrative justice, and Bell, Judiciaries within Europe, 44–107.

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Style of judgments Tradition wants it that judgments of the French superior courts must be concise to the point of hiding any apparent legal reasoning.79 In the area of refugee law, this is particularly true of the decisions of the National Asylum Court /Refugee Appeals Board, some of which have been described (perhaps unfairly considering the sheer volume of cases considered by the Court/Board) as consisting of merely a ‘concise summary of the asylum seeker’s story, followed by a purely stereotyped sentence indicating a positive or negative conclusion’.80 As a result and in such a context, no mention of foreign law should appear in the text itself of a decision, unless this is expressly provided by statute or the Constitution. It is not disputed that this judicial style is the fruit of historical factors and is very much a characteristic of judgments in civil law countries.81 Thus, French administrative courts may be required to quote decisions of the ECJ or may choose to refer to decisions of the ECtHR. And there are plenty of examples by now where the Council of State has referred to the case law or methods of interpretation of these two courts, thereby showing itself familiar with the method of comparative law.82 However, as seen above, citing or referring to foreign law from another national jurisdiction remains a rare exercise in French administrative courts.83 The conceptual legal framework within which the judge operates It is a characteristic of the French legal system that a refugee law judge is only allowed to operate within strict legislative boundaries. This conceptual framework includes (a) the 1958 Constitution (which in its Preamble refers to the right of asylum), (b) international treaties (particularly the Refugee Convention, the ECHR and more recently the EC Qualification and Procedure Directives, as binding sources of law), and (c) domestic legislation (such as the Act of 1952 and the new CEDESA (Code de l’entrée 79 80 81

82

83

Bell, Judiciaries within Europe, 74. Valluy, ‘La fiction juridique de l’asile’. Decisions of the National Asylum Court/Refugee Appeals Board and the Conseil d’État are extremely short and the legal reasoning of the judges simply non-apparent. This ‘cryptic nature’ of French courts’ judgments, which must be precise and short in style, have led to these judgments being considered ‘[un]suitable for export’, unlike the English judgment. B. Markesinis, ‘A Matter of Style’, Law Quarterly Review 110 (1994), 607–28, at 610. Errera, ‘The Use of Comparative Law Before the French Administrative Law Courts’, 161; and Canivet, ‘The Use of Comparative Law Before the French Private Law Courts’, 189. Errera, ‘The Use of Comparative Law Before the French Administrative Law Courts’, 153–63.

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et du séjour des étrangers et du droit d’asile) 2003).84 Apart from this legality framework, the French judge also looks at existing jurisprudence, and will apply both French and ECtHR jurisprudence, but without actually citing it in the text of decisions. French jurisprudence plays a particularly important role in the application and interpretation of the refugee defi nition, but purely as a basis of intellectual reference, not as a binding source of law. There is indeed no rule of precedent in France, and this applies to the National Asylum Court/Refugee Appeals Board as well as the Council of State. Judges aim to follow a coherent line of jurisprudence, but that is all.85 Previous case law is seen as an example, not more than that, so that a judge at the Court/ Board will never base a judgment on an earlier decision, whether French or foreign, and when judges apply previous jurisprudence, they do not cite it.86 Foreign law as a source of inspiration, therefore, is still some distance away.87 In sum, it would be unseemly to refer to foreign jurisprudence, except that of the ECJ which is binding on French courts, and that of the Strasbourg Court as a source of law under ECHR law, unless one has a particular intellectual curiosity towards foreign law. In this regard, the former president of the Board, Mr Bernard, and his predecessor, Mr Massot, both keen comparative lawyers, have been moving things in that direction.

The domestic dynamic surrounding cases Refugee law as a specialist subject is not taught in French universities, there are very few academics books on the subject, and there is no specialized academic journal of refugee law to speak of.88 Of the rare books on the subject, less than a handful show an inclination towards comparative 84

85

86 87 88

The French judge has also been active in creating law on quite a wide scale through the concept of general principles of law, in the area of asylum. See F. Tiberghien, ‘La jurisprudence du Conseil d’Etat sur la Convention de Genève du 28 juillet 1951 relative au statut des réfugiés’ in V. Chetail ( ed.), La Convention de Genève du 28 juillet 1951 relative au statut des réfugiés 50 ans après: Bilan et perspectives (Bruylant: Brussels, 2001), 289–323, at 317–20; and L. Jeannin, M. Meneghini, C. Pauti, and R. Poupet, Le Droit d’Asile en Europe – Étude comparée (Paris: L’Harmattan, 1999), 144–5. Lambert’s interview with François Bernard (President of the National Asylum Court), Paris, 20 June 2006. Ibid. Lambert’s interview with Vera Zederman (National Asylum Court), Paris, 20 June 2006. Dictionnaire Permanent, Droit des Étrangers, Editions Legislatives, is what it says it is, a Dictionary that is regularly updated and which discusses legislation and case law relating to asylum and refugees, by themes.

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law.89 One might infer from this apparent lack of interest in refugee law that academics have little engagement in the asylum decision-making process in France. However, the ‘influence of doctrinal legal writing’ exists and is ‘both formal and informal’.90 Formally, the influence of academic writing can be seen at the Council of State in the conclusions of the rapporteur public. At the National Asylum Court/Refugee Appeals Board, such influence takes place most notably when an academic professor is elected to represent the UNHCR and therefore sits at Court/Board sessions and is actively involved in decision-making. This is the case presently of Professor Catherine Teitgen-Colly. Informally also, doctrinal legal writing can be influential through numerous contacts between academics and judges.91 Academics may on occasion be consulted by avocats (especially at the Council of State) when considering difficult legal issues or may indeed be employed in their offices.92 The role of French associations and some international nongovernmental organizations (INGOs) is also increasing.93 Generally speaking, immigrants and refugees tend to rely more on national associations than INGOs (such as Amnesty International and the Fédération internationale des droits de l’homme or FIDH), because their role is more focused on the rights of such individuals. One of the most specialized associations in the legal protection of the rights of noncitizens is the Groupe d’information et de soutien des immigrés (GISTI – Information and Support Group for Immigrants).94 Since its creation in the early 1970s, GISTI has brought many cases before administrative judges, some of which have been successful.95 One of its greatest successes is the 1978 GISTI case (8 December 1978) in which the Council of state recognized the principle of a right to a ‘normal family life’ as a general 89

90 91 93

94

95

One such example is Alland and Teitgen-Colly, Traité du droit d’asile, which in its fi rst part offers a valuable account of the various conceptions of the right of asylum: international, European (including comparative national laws), as well as French. See also, Jeannin et al., Le droit d’asile en Europe – Étude comparée. To use Bell’s words, in Judiciaries within Europe, 86. Ibid. 92 Ibid., 81 and 86. See generally, G. Breton-Le Goff, ‘Mondialisation et démocratie: Evaluation de la participation normative des OING à la gouvernance’, Université de Québec à Montréal sur les fondements philosophiques de la justice et de la société démocratique, October 2001. Other well-known associations or support groups include CIMADE (Comité InterMouvements Auprès des Evacués), ANAFE (Association nationale d’assistance aux frontières pour les étrangers) and Forum réfugiés. The Council of State has ruled in more than 40 cases where the GISTI was a claimant, either alone or with other associations. E.g., Conseil d’État, 12 June 2006, application no. 282275.

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principle of law. GISTI also provides legal advice on procedure to immigrants and sometimes helps in the drafting of asylum claims. GISTI has recently started to pay attention to foreign jurisprudence. For instance, in a recent case before the Paris Administrative Tribunal, a member of GISTI relied on a decision of the British High Court96 in seeking to prevent the expulsion of an asylum seeker.97 This points to a more general trend, namely a slight but noticeable increase in the use of foreign jurisprudence by national associations working on behalf of asylum seekers. The organization Forum réfugiés offers another illustration of this trend towards a greater use of foreign jurisprudence in French cases.98

Conclusion It is rare for French administrative judges to refer to foreign jurisprudence when interpreting provisions of the Refugee Convention, an international treaty. Traditionally, refugee law judges have based their arguments and reasoning on French sources of law that are binding on the courts (including international law and European law) but have shown little interest in the practice of other states parties to the Refugee Convention. A detailed examination of asylum case law in France up to 2006 reveals that the Refugee Appeals Board (now the National Asylum Court) only made explicit reference to foreign jurisprudence in one decision in 2001. During this period, however, the jurisprudence of other EU countries was cited in the supporting documents of a dozen cases of the Board/Court, and in two conclusions of the commissaire du Gouvernment of the Council of State. There is also evidence of some use of foreign legislation and administrative practice by French courts in asylum cases, and anecdotal evidence suggests that there may be a fair amount of ‘invisible traffic’ in the transnational use of jurisprudence through informal contacts and networks. The trend (in so far as a trend may be inferred from so few cases) in France is towards increasing use of jurisprudence from other EU countries in asylum cases. 96

97

98

Javad Nasseri v. The Secretary of state of the Home Department, [2007] EWHC 1548 (Admin), [2008] 2 WLR 523; see now the judgment of the Court of Appeal, [2008] EWCA Civ 464; [2008] 3 WLR 1386, and of the House of Lords [2009] UKHL 23. Tribunal Administratif de Paris, 9 August 2007, Mohammad Afzali, application no. 0712180/9/1. Silga’s interview with Jean-Pierre Alaux, Paris, 17 April 2008. A. Ouareff, ‘La France doit cesser le transfert de demandeurs d’asile sous Dublin vers la Grèce’, expert note, n. 6/2008, April 2008. Available at: www.forumrefugies.org/FR06dublin%20transfert_da_vers_grece.pdf.

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The rational account only goes so far in explaining the lack of a transnational European legal dialogue in asylum jurisprudence. Language does not appear to be such a major obstacle. French courts, in so far as they refer to foreign law, do not show a particular preference for the jurisprudence of other French-speaking countries. Hence other obstacles were considered. Time constraints are a problem at the level of fi rst appeal. Members of the French National Asylum Court/Refugee Appeals Board often have a matter of days, if not hours, before considering an asylum claim in court, leaving no time to consider foreign law. However, the Council of State does not operate under such time constraints. France provides good public access to refugee case law, but access is not so good in other parts of the EU, thus restricting the ability of French judges to get hold easily of the asylum jurisprudence in these countries. In France there is little attention to foreign law in the training of refugee law judges. Furthermore, cultural elements were identified that serve to reinforce the social perception that a foreign decision is not worth considering. The stripped-down, almost mechanical, legal reasoning of French administrative courts means that there is no expectation (let alone space) for reference to foreign jurisprudence. In terms of the mentality of French judges, this strictly defined legal framework means that the French courts only consider binding sources of law and are thus less able or willing to draw on foreign jurisprudence in deciding asylum cases. Lastly, the role of academics and associations for the protection of asylum seekers in asylum decisions could be more open towards foreign law. As noted above, there is a slight but noticeable increase in the use of foreign law from other European countries by French administrative judges in refugee cases, and by other actors such as associations and support groups. Such an increase is clearly the result of the Europeanization of refugee law. The interpretation of new legal concepts provided in the EC Directives is requiring judges to learn more about the jurisprudence in their EU neighbouring states, and foreign law is progressively but slowly becoming a source of inspiration for the French judge in refugee law cases.

4 The use of foreign asylum jurisprudence in the German administrative courts Paul Tiedemann *

Introduction German jurisprudence is marked by a long tradition of protection for refugees. The 1949 Constitution (or Basic Law) for the Federal Republic of Germany, known as the Grundgesetz (hereafter GG), adopted a fundamental right to asylum in Article 16, paragraph 2, section 2.1 Its short wording states: ‘Persons persecuted on political grounds enjoy the right of asylum.’ In 1952 Germany ratified 2 the European Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.3 The Convention was enacted by the National Transformation Act of 7 August 1952.4 In 1953 Germany ratified the Convention Relating to the Status of Refugees of 28 July 1951 (hereafter Refugee Convention).5 The treaty was enacted by the National Transformation Act of 24 December 1953.6 Only nine months prior to the entry into force of the above legislation, the fi rst statutory order concerning the recognition of refugee status in accordance with the Refugee Convention had been enacted.7 The GG, however, did not incorporate a recognition procedure for refugees * I wish to thank my colleagues Andrea Wilke, Frankfurt, Dr James C. Simeon, Toronto, Daniela Nadj, London, for their support concerning the way to express things appropriately in English. Court decisions are cited as follows: [Name of the court] [Date of decision] – [fi le number] – [margin no.]. Web addresses were last accessed on 3 March 2009. 1 BGBl 1949 I 1; Today: Article 16a para 1 GG. 2 Ann. of 15 December 1953 – BGBl 1954 II 14. 3 5 UNTS vol. 213 p. 221. 4 BGBl 1952 II 685, 953. UNTS vol. 189 p. 150. 6 Act of 1 September 1953, BGBl 1953 II 559. 7 Verordnung über die Anerkennung und die Verteilung von ausländischen Flüchtlingen v. 06.01.1953 – BGBl 1953 I 3.

57

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wanting to apply for the right to asylum. The procedure as such was overseen by civil servants of the Federal Ministry of the Interior. In 1965 this statutory order was replaced with the fi rst Aliens Act . 8 The new legislation included a recognition procedure not only for refugees in the sense of the Refugee Convention but also for ‘other foreigners’. The Refugee Convention had previously only been applicable to those whose well-founded fear of persecution arose by reason of events occurring before 1 January 1951. The constitutional right to asylum, however, required the protection of every politically persecuted person, regardless of when the causes of fl ight occurred. Under the new provisions, the right to asylum was therefore additionally made applicable to victims of events occurring after that date. After the 1967 Protocol entered into force, it was no longer necessary to distinguish between refugees in the sense of the Refugee Convention and refugees in the sense of the constitutional right to asylum. Nevertheless the Federal Constitutional Court and the Federal Administrative Court laid down different legal requirements for the granting of refugee status and of the constitutional right to asylum.9 The new legislation entrusted a newly founded authority with the responsibility of overseeing the recognition procedure – the Nuremberg-based Federal Office for the Recognition of Refugees.10 At the outset, the number of asylum applicants was rather small compared to the figures in later years; in 1971, for example, 5,388 people applied for asylum.11 In the mid 1970s, however, the number increased significantly. In 1979, 51,493 people fi led an application for asylum (an increase of 955 per cent compared to 1971), and in 1980 there were 107,818 applicants (a rise of 67.68 per cent compared to 1979).12 This development continued, as was further evident in 1991 when Germany was confronted with 256,112 asylum applications, and finally, in 1992, the record level of 438,191 applicants was reached. This rapid trend had a lasting impact on the German administrative courts. 8 9

10 11

12

Ausländergesetz v. 28 April 1965 – BGBl 1965 I 353. In 1986 the BVerfG decided that so-called subjective post-fl ight facts were of relevance according to the Refugee Convention, but not according to the German Constitution (BVerfGE 74, 51, 64). Since 2005 the office has been named Federal Office of Migration and Refugees. For statistics concerning asylum applicants see the website of the Federal Office of Migration and Refugees: www.bamf.de > Statistik > Asyl in Zahlen > Download > p. 9. For a closer analysis of the increase since 1979 see H.-I. von Pollern, ‘Die Entwicklung der Asylbewerberzahlen 1992’, Zeitschrift für Ausländerrecht und Ausländerpolitik 13 (1993), 26–33, at 26 and 33.

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According to Article 19 paragraph 4 of the GG, everyone has the constitutional right to be granted judicial protection against public authority acts. As a result, any public authority decision can be made the subject-matter of court proceedings by the affected person. Th is also applies to negative decisions in administrative proceedings concerning refugee recognition. With the exception of certain exceptional legal matters, the administrative courts are responsible for enforcing legal claims against public authorities.13 Every German federal state has one or more administrative court of fi rst instance, known as a Verwaltungsgericht (VG) and one administrative court of second instance, Oberverwaltungsgericht (OVG). In a number of federal states this type of court is also known as the Verwaltungsgerichtshof (VGH). The Federal Administrative Court, known as the Bundesverwaltungsgericht (BVerwG) in Leipzig functions as a court of third instance. There are fi ft y-two administrative courts of fi rst instance and fi fteen administrative courts of second instance in Germany.14 In 2004 a total of 2,216 judges were employed by these courts at the time this research was conducted.15 According to the general regulations, the local jurisdiction of the prevailing court is based on the municipality of the defendant authority’s headquarters.16 The Federal Office for the Recognition of Refugees (responsible for Migration and Refugees) is located in Nuremberg, which constitutes part of the jurisdictional district of the VG Ansbach. Th is meant that in the period 1953–78, the VG Ansbach was the only asylum court in Germany responsible for every legal claim brought against the Federal Office regardless of the location or residence of the applicant. The rapid increase in asylum applications in the 1970s, and the overwhelming numbers of refusals of these applications, soon led to an administrative overload in the number of cases processed by the VG Ansbach (1972: 336 cases; 1977: 5,000 cases) and the Bavarian Higher Administrative Court, as the responsible court of the second instance (1972: 99 cases; 1977: 1,300 cases).17 In 1978 this untenable situation resulted in the promulgation of a new regulation according to which the local jurisdiction of the administrative court in asylum cases was made contingent upon the location 13 14 15 16 17

See Sec 40 para 1 Administrative Courts Procedure Act (VwGO). Berlin und Brandenburg have a common Administrative Court of the second instance. See www.bmj.de > Service > Statistiken > Personal. Sec 52 No 2 VwGO. E. Hering, ‘Zur Lage der ausländischen Flüchtlinge in der Bundesrepublik Deutschland’, Die Öffentliche Verwaltung, 32 (1979), 149–54, at 151.

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of the applicant’s temporary accommodation.18 Since asylum applicants were dispersed across the entire federal territory, this resulted in a situation whereby each administrative court in Germany would be entrusted with the responsibility for refugee law cases. Most of the federal states, however, first used their own authority to endow a specifically designated court in their territory with the responsibility for asylum cases. Th is measure was taken as a result of a prevailing perception at the time that the processing of asylum cases would demand a cost-intensive set-up of archives to ensure the judiciary’s access to pertinent information about the political situation in the applicants’ countries of origin. The court’s own archives were thus established to ensure that its jurisdiction would not be dependent on information delivered by the defendant authority. In this context, it is important to understand that the administrative court has to discover relevant facts ex officio. It is neither bound by the result of the investigation of the Federal Office nor by the evidence put forth by the applicant.19 The impartiality of the court, on the one hand, and the Office Inquiry Principle, on the other, demand the opening-up of independent information sources by the courts. The continuously increasing numbers of asylum applicants soon led to a tremendous strain on the numerically few administrative courts dealing with asylum cases.20 Finally, in 1992 most federal states relieved the courts of their burdensome responsibilities, so paving the way for every administrative court in Germany to hear refugee law cases.21 This development entailed the setting-up of each court’s individual documentation archive. The courts in Hessen and in a number of other federal states, for instance, were granted access to the Central Information and Documentation Centre which had previously been established at the VG Wiesbaden.22 The administrative courts are organized in so-called chambers (fi rst instance)23 and senates (second instance). 24 Designated committees in 18

19 20 21

22 23 24

Second Act Concerning the Modification of the Administrative Courts Procedure Act of 25.07.1978 – BGBl 1978 I 1107. Sec 86 Administrative Courts Procedure Act. www.bamf.de > Statistik > Asyl in Zahlen > Download > p. 52. O. Rumpf, ‘Ein Jahr danach’– Ergebnisse und Umfrageaktion des BDVR über die Erfahrungen mit dem neuen Asylverfahrensrecht’, BDVR-Rundschreiben 4 (1994), 7. www.vg-wiesbaden.justiz.hessen.de > Über uns > IuD Stelle. Sec. 5 para 2 VwGO. Sec. 9 para 2 VwGO – A Chamber/Senate consists of one chairperson and two associate judges. When an oral hearing takes place or a judgment (Urteil ) is issued, two lay judges are added (generally in the fi rst instance, in some federal states also in the second instance). Since 1982 the possibility has existed to entrust one member of the chamber with the asylum case to allow the judge to decide the case as a ‘single judge’.

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every court are in charge of issuing yearly plans for the distribution of actions in the chambers and the responsible senates. 25 Most administrative courts customarily allocate their spheres of responsibility in accordance with different sectors of law. One chamber, for instance, oversees construction law, while another is in charge of police law and so forth.26 In line with this organizational structure, it follows that the court committees distribute oversight of refugee law cases to one or two chambers, whereas the other chambers (or senates) are put in charge of other areas of the law. However, this model applies to only a few courts. Since politicians were of the view that the judicial system could be made more efficient if specialized chambers and senates were entrusted with refugee law, the German parliament passed a measure in 1992 allowing the government to establish specialized chambers for asylum law. This was done against the will of a majority of judges. Very few later governments applied the rule because of the strong resistance from the judiciary and its organizations.27 The judiciary’s resistance stemmed from their perception that refugee law, as compared to other fields of the law, was trivial and slightly dull. It was a common perception among the profession that a judge exclusively overseeing asylum law cases was a jurist of inferior standing. Judges were concerned about their personal reputations, refusing to be labelled as ‘asylum judges’ by their colleagues. Refugee law, therefore, was a highly undesirable area of law and most judges were of the opinion that it would be best to distribute asylum cases among the court’s entire bench. The enormous number of asylum cases in the 1990s led to a previously unimaginable scenario in which almost every administrative judge was given asylum law cases, often comprising more than half of the workload. There were specifications according to countries of origin, with one chamber overseeing cases from Turkey, while another would oversee cases from the former Yugoslavia and so on.28 The situation began to change gradually around the Millennium because of the introduction of appropriate legal and administrative measures, the end of the Balkan war and the easing of tensions in Turkey – factors which, taken 25

26 27 28

The committee is composed of the president of the court and judges who are elected by the judiciary of the court (Sec. 4 VwGO). Usually more than one field is assigned to a chamber or to a senate. Rumpf, ‘Ein Jahr danach’, 8. According to the answer of the Federal Government to the parliamentary question of MP Dr Uhl of 23 March 2001 (BT-Drs 14/5839 p. 15), in 1999, 777 judges were supposed to be active in general chambers and 444 judges in special asylum chambers.

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together, led to decreasing numbers of asylum applicants. In 2005 only 28,914 applications were filed in Germany, significantly below the figures of 1978. At the time of writing asylum law cases are no longer presided over by every administrative judge and the share of the workload among judges is less than half what it used to be. Questions concerning subsidiary protection (which includes protection deriving from the European Convention on Human Rights (ECHR)) are of importance, of course, not only to refugee law but also to general immigration law. Immigration law in Germany continues to witness a disproportionately high number of applications for such protection, leading many administrative judges to be confronted with questions that are identical to those in refugee law.29

The role of jurisprudence and academic writing in German refugee law cases Before engaging with the context in which German administrative judges would have legitimate reasons for reinterpreting immigration case law and judicial literature, the role played by decisions of other courts, whether national or foreign, need to be assessed. This is of relevance, as the justifications made in administrative court decisions and the judges’ motives for quoting foreign decisions and doctrines reveal influential factors underlying judicial considerations. German courts, in general, and the administrative courts, in particular, are not legally bound by precedents – either for the identification of the relevant law or for the recognition of the relevant facts. Nevertheless, references and use of case law play an important role both for the purposes of interpreting the law as well as for identifying the relevant facts.

The role of jurisprudence and academic writing in the interpretation of the law The binding source of the law derives from the written legal rule. Th is is either in the form of a statute passed by parliament or by way of a statutory order issued by the government on the basis of a parliamentary 29

In the years 2005, 2006 and 2007 the workload of the VG Frankfurt consisted of asylum law (26 per cent), general foreigner law (24 per cent) and other administrative law (50 per cent) (Statistics of the Court’s Administration of 22 May 2007).

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statute. The third category of legal sources consists of charters of self-governing bodies. All these written sources of the law are loosely referred to as ‘acts’. Judges are obliged to reach their own conclusion in accordance with the meaning and content of the acts, which must be based on rational grounds to be set out in writing. A complete argumentation consists of a number of procedural steps – as a first step the judge has to set out his or her understanding of the meaning of the words of the rule, in other words judgment needs to be passed on the semantic arguments put forth. In this respect, an analysis of the use of common language is made and taken into consideration, as are etymological arguments or – with respect to international law – a comparison of the different language versions is factored in. If doubts remain about the correct interpretation to be applied, the judge must pursue a second strategy in order to determine the meaning of the rule in the light of the entire act. Alternatively, systematic arguments that accord with other statutes of relevance in the particular field of law must be deployed. The judge must then determine if the contested word or expression is of equal meaning in other contexts. If the consideration applied in the second step of the procedure does not lead to a convincing conclusion, a third procedure requiring the judge to determine the genesis of the rule, as rooted in historic arguments, needs to be followed. Th is procedure involves analysing the motives underlying the bill presented, as well as considering the merit of the proposals advanced by way of analysing relevant discussions in parliament. If the rule is found to be outdated, the judge must consider its original meaning and its compatibility with the current historical and legal framework. In other words, what needs to be established is whether a specific interpretation of the rule is in accordance with the actual understanding of fundamental human rights or with European law. Thus, arguments of compatibility need to be deployed by the judge. It is conceivable that recently arguments emphasizing historical precedent have ceded ground to arguments of compatibility. The decisions of other courts do not play a relevant role in this analysis. Inevitably, the judge will take note of other decisions and relevant publications, but will only make use of them as suggestions and stimuli for his or her own interpretation of the law. The use of other case law and doctrines of relevance (through references and even quotations) does not constitute a necessary part in determining the content of the law, as mere reference in particular can neither replace individual argumentation nor

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relieve the judge of his or her own responsibility for the eventual outcome. There are, however, four valid reasons for referring to and using the case law of other courts: (1) Although German law, bar a few exceptions, does not oblige the courts to heed precedents, the courts must obey the constitutional principle of certainty of justice. Th is principle demands that the judiciary’s divergence from existing case law guidelines, in particular those of the supreme courts, be evidenced by indisputable necessity. Such divergence is not automatically justified by virtue of good reason, but only if the reasons given are compelling. If the judge’s argumentation follows a given line of case law in accordance with the earlier principle, further decisions the judge seeks to apply should be then be quoted. This would be done in order to determine whether the judge has deployed a methodically independent strategy, or has applied a reasoning rooted in tradition. (2) Second, another valid reason for referring to and using confirming case law and doctrine arises out of its capacity to serve as a guideline for the defeated party in the trial. The defeated party might not be convinced by the reasons put forth in writing and might therefore consider fi ling an appeal with the higher court. The reference to and use of the case law in that court can help to provide an estimate of the chance of the appeal being heard. Obviously it makes no sense to use foreign jurisprudence in order to demonstrate that one’s own decision conforms with the tradition, or in order to give some information concerning the chance to be heard in the next instances. For it is evidently only case law emerging from the courts of higher instance, such as the Administrative Court of the second instance, the Federal Administrative Court, the Federal Constitutional Court, and the European Court of Justice, that is of interest to judges. (3) On the other hand, case law from foreign courts assumes greater relevance within the framework of international law, especially with respect to the interpretation of international conventions. This constitutes a third good reason for using and quoting foreign case law. As a rule, the administrative courts only consider cases of national law, meaning that international conventions are of interest only if they are transcribed into domestic law. According to the German legal regime, however, the courts have a direct binding obligation with respect to international law by way of the constitutional principle known as ‘international friendliness’ (or ‘comity’). From there, another principle for interpreting

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national law is derived, namely one that demands the interpretation of national law in light of international law standards in so far as the wording and the system of national law allow for such interpretation.30 Consequently, German judges are under an obligation to discover the content and meaning of relevant international laws. For the interpretation of international treaties, they are required to follow Article 31(3) (b) of the 1969 Vienna Convention on the Law of Treaties.31 According to that rule, any subsequent practice referring to the application of the treaty that initially established the agreement of the parties regarding its interpretation is to be taken into account. This rationale for using and citing foreign law represents a rather new shift in thinking for many German judges, and is addressed in more detail below. As a result of the aforementioned developments, domestic judges are under the obligation to inquire into the practices of other contracting states to the Refugee Convention. As part of the process, they are required to determine the interpretation of any international rule in question by studying the case law of foreign courts and by analysing the emerging jurisprudence from these decisions.32 This has to occur with respect to the interpretation of both the Refugee Convention as well as the ECHR, provided that the question remains unanswered by the European Court of Human Rights. The fact that there are numerous international conventions of relevance to asylum and foreign case law opens up yet more opportunities for their study. (4) Finally, a fourth valuable reason for referring to and using related jurisprudence and academic writing occurs in cases where the interpretation of the law differs from the decisions of other courts, or from the opinions of judicial commentators. In such situations, national as well as foreign decisions and opinions serve as a means of evaluating the court’s own considerations in light of counter-arguments. Where this is the case, reference to (and use) of every source that has engaged with the question concerned ought to be considered, whether in the form of a foreign court decision, or a judicial publication. Furthermore, the court can enhance the authority and persuasive power of its own argumentation by quoting and discussing foreign case law and literature in the broader context of its decision . 30

31 32

BVerfGE 111, 307, 323 (‘Görgülü’); see also H.-J. Cremer, ‘Zur Einwirkung’ der EMRK auf das deutsche Ausländerrecht’, Zeitschrift für Ausländerrecht und Ausländerpolitik, 26 (2006), 341–54, at 341. 1155 UNTS 331; BGBl 1985 II 926. BVerfG 05 November 2003 – 2 BvR 1506/03 – § 58ff.

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The use of foreign law in the process of fact-finding As outlined earlier, German administrative courts are required to investigate the relevant facts in their own capacity. They are neither bound by Federal Office investigations, nor by the evidence put forward by the applicant. In case of doubt about whether a particular piece of evidence has been given, judges can carry out investigations, despite the objections of the parties. They are free to choose the source of information to be used. Judicial investigation of factual evidence, particularly in the field of refugee law, plays an important role, as the applicant is often not able to present evidence regarding particular events, or details concerning the overall political situation in his or her country of origin. The Federal Office also is sometimes prone to stress the evidence against the applicant, rather than citing favourable evidence. The arguments of the Federal Office are often based on Foreign Office reports which, first and foremost, take the diplomatic interest of the state into consideration and are therefore not always reliable. Many judges prefer independent sources of information. However, because of the wealth of information available about some countries, the administrative courts face the problem of how to process the material appropriately. In these cases it has proven efficient to have the Higher Administrative Court sort through the material in detail and later to have it evaluated in a leading decision. This process serves as a useful guideline to courts of first instance for they can follow it if no up-to-date or alternative information is available to them. In this scenario, the leading decision of the higher court is not considered binding as a precedent, but is treated as a summary of expert reports to a certain degree representing the expert’s report itself. It serves as a tool available to first instance judges that they may or may not use, and they will use it only if they trust in the reputation and respectability of the second instance judges. 33 Similarly, the judge may also rely on the knowledge of foreign-based colleagues. In other words, there is no obvious reason for domestic judges not to use foreign case law to discover the relevant facts of the case. Thus, foreign decisions can be taken into consideration once a foreign judge has investigated the facts, while decisions limited to an analysis of the law are not of use for this purpose. 33

Of course the judges at first instance could also be led by the desire to make their judgments ‘appeal-proof’, as no judge likes to see their judgments overturned by higher-level courts; needless to say, a judge motivated by such an aim would not be acting within the scope of his or her personal responsibility.

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The use of foreign jurisprudence by German courts – empirical study As noted above, there are many valid reasons for German administrative courts to refer to, discuss and even embrace foreign jurisprudence, carrying the expectation that German asylum law courts will refer to foreign jurisprudence with increasing frequency. Th is hypothesis was tested in two ways – first, by examining published asylum case law for references to and discussion of foreign courts’ decisions; second, by determining the practice and attitude of administrative court judges with regard to using foreign case law by means of a survey.

References and discussion of foreign case law in published court decisions The guiding idea underlying the research was that the probability of references to foreign jurisprudence is potentially higher in cases in which language barriers are lower. If this assumption were accurate, references to decisions from Switzerland and Austria would appear on a larger scale because they are mainly written in German. In contrast, decisions in foreign languages would appear to a lesser degree, as they depend on the extent of foreign language knowledge among German jurists. Since English is the most popular foreign language among German jurists and in Germany overall, extensive reference to and discussion of British, American, Canadian, Australian and New Zealand decisions are to be expected. In contrast to other Englishspeaking countries, these states have extensive asylum law jurisprudence at their disposal. As French is the second most popular foreign language in Germany, it is reasonable to expect references to French and Belgian asylum courts as well as Swiss and Canadian decisions in French. Other languages were not investigated for this research project. In light of the fact that in German case law references to other courts’ decisions are made using the denomination of the foreign court, usually by its original title (for instance, ‘House of Lords’ instead of the German equivalent of ‘Herrenhaus’), the present research was confined to investigating whether the names of asylum courts from Switzerland, Austria, Australia, Canada, Great Britain, Ireland, New Zealand, the USA, as well as those of France and Belgium appear in German administrative court decisions concerning asylum law.34 34

Austria: Bundesasylsenat; Switzerland: Asylrekurskommission; Australia: Federal Court of Australia, Federal Magistrates’ Court, High Court of Australia, Refugee Review

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The research relied heavily on the data stock of the juris GmbH, the most extensive judicial database in Germany.35 It contains both the complete published case law of the federal supreme courts, including the Federal Administrative Court, in addition to the almost complete jurisprudence of the courts of second instance, as well as a large number of decisions from the administrative courts of first instance. Whenever an administrative court decision quoting foreign case law exists, it would be very likely indeed to be documented in the juris database. This inquiry for this chapter was carried out on 31 March 2007, on which particular date the juris database contained 5,703 decisions relating to refugee law. As part of the investigation, the court denominations were entered into the search field of ‘free text’ and the investigation was restricted to the area of ‘administrative courts’. The search for Australian, Irish, Belgian, and French decisions and for decisions from New Zealand led to no hits. The search for the term ‘Immigration and Refugee Board’ led to four hits. In these instances, the German court only referred to documents published by the Immigration and Refugee Board of Canada concerning the situation in countries of origin.36 These documents are referred to alongside other documents, in particular reports of the German Foreign Office. In a judgment from 1991 the BVerwG refers to a decision of the US Supreme Court of 9 March 1987 concerning the question of probability of persecution.37 The quote is not based on the court’s independent inquiries, but on a German commentary referring to the law relating to aliens.38 Several courts of the second instance use the exact same quote and put forth an almost identical wording to the BVerwG.39

35 36

37 38 39

Tribunal; Canada: Immigration and Refugee Board of Canada, Federal Court of Canada, Supreme Court of Canada; Great Britain: Asylum and Immigration Tribunal, Court of Appeal, Court of Session, High Court – Queen’s Bench Division – Administrative Court; Ireland: Refugee Appeal Tribunal; New Zealand: Refugee Status Appeals Authority; USA: Board of Immigration Appeals, Circuit US Court of Appeals, US Supreme Court; Belgium: Commission permanente de recours des réfugiés; France: Commission des recours des réfugiés, Conseil d’État. The database is available at: juris (www.juris.de). For the situation of ethnic minorities in Ukraine: VG Düsseldorf 14 October 1994 – 25 K 6842/93.A; on security in Russia: VG Düsseldorf 21 October 1994 – 25 K 6983/02.A; for the situation of women in China: VG Würzburg 06 April 1995 – W 6 K 95.30028; for the chronology of events in Pakistan: OVG Weimar 30 September 1998 – 3 KO 864/98. BVerwG 05.11.1991 – 9 C 118/90. K. Hailbronner, Ausländerrecht, 2nd edn (Müller, Heidelberg 1989), at 791. Among others VGH Munich 25 June 1996 – 25 BA 35649 –; OVG Münster 19 November 2004 – 21 A 580/99.A.

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In two decisions pronounced on the same day, the VG Düsseldorf refers to a decision by the British Asylum and Immigration Tribunal (AIT) and a Court of Appeal decision.40 The latter decision concerns the question of real risk of persecution facing a citizen of Zimbabwe in case of forced return. The administrative court analysed the AIT decision and came to the conclusion that a real risk of persecution, as determined by the AIT, is to be expected only if the Zimbabwean citizen is returned from the UK, but not if he is returned from Germany. Significantly, the court stresses that the AIT decision was previously quashed by the Court of Appeal. It is remarkable that the reference to the English decision was not based on independent inquiries by the German court but on the fact that the appellant had referred to it. The German court evaluated this reference and found that the AIT decision had been previously dismissed. Another reference to a decision of the Court of Appeal can be found in a judgment of the VG Munich from 2001.41 Contrary to the overwhelming opinion of the German administrative courts and the BVerwG42, the VG Munich at the time sought to defend the opinion that an alien ought to enjoy refugee status even if he or she were persecuted by a non-state agent. The court points out that, in all likelihood, this is representative of the opinion of the overwhelming majority of courts outside Germany, especially Western European courts. In this context, the Court of Appeal decision in Adan v. Secretary of state of 23 July 1999 is quoted.43 Here, the Court of Appeal states that Germany is not a secure third country within the meaning of the Refugee Convention because Germany does not grant refugee status in cases of persecution by non-state agents.44 The Court of Appeal decision was subsequently published in a German version in a widely circulated judicial journal.45 Despite the easy accessibility of the particular decision and its evidently critical content, no other German court seems to have quoted the British decision or discussed its merits. Moreover, the House of Lords’ decision of 19 December 2000 confirming the Court of Appeal decision was also published in a German-language 40 41 42

43 44

45

VG Düsseldorf 12 May 2006 – 13 K 4417/05.A; 13 K 4417/05.A. VG Munich 20 June 2001 – M 21 K 98.50394. See BVerwG 15 April 1997 – 9 C 15/96 –; 18 January 1994 – 9 C 48/92 –; 20 February 2001 – 9 C 21/00 –. [1999] 3 WLR 1274 available at: www.bailii.org/ew/cases/EWCA/Civ/1999/1948.html. This decision achieved notoriety in Germany only by chance. I heard of it via the judges’ mailing list IUDEX, in which an English colleague happened to take part. The decision was translated into German and published in a renowned law journal. NVwZ-Beilage I 5/2000 S. 58. The English text was also published in InfAuslR 2000, 240.

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journal.46 Once again, the decision in question was not referred to by any German administrative court. Except for one decision, which is referred to below, the House of Lords is mentioned only in passing in two identical decisions of the VG Karlsruhe of 2005, and probably only because the British decision had been previously quoted in the German literature.47 The search for the term ‘Bundesasylsenat’ led to twenty-seven hits. These are decisions in which only expert reports and official pieces of information are used and quoted and that were originally presented to the Austrian Unabhängiger Bundesasylsenat (UBAS – Independent Federal Asylum Senate). There is close cooperation between the information department of the UBAS and the central documentation centre of the German administrative courts at the VG Wiesbaden. Their degree of cooperation explains the appearance of the references. The search result for the term ‘Bundesasylsenat’ shows that no single German judgment discusses the content of any decision of the Austrian UBAS. The search for the term ‘Asylrekurskommission’ led to seventeen hits. Among those, five decisions quote expert reports and statements of nongovernmental organizations which had originally been presented to the Swiss Asylrekurskommission (ARK). In one decision, the sole reason for the ARK’s appearance is the applicant’s previously failed asylum application before the Swiss authorities. In the remaining eleven decisions the German courts refer to the case law of the ARK in a different context. A judgment of the OVG Magdeburg from 2000 quotes the ARK decision affi rmatively without offering any substantial examination.48 The court is of the opinion that a trip to northern Iraq by a recognized Iraqi Kurdish refugee at the end of the 1990s does not mean that the refugee accepted the protection of his country, and that refugee status should therefore not be revoked. Using the acronym ‘cf. also’, the OVG Magdeburg quotes a conforming ARK decision, but the quotation has no independent function. Its only purpose is to increase the authority of the court’s own considerations. Three judgments of the VG Ansbach and two judgments of the VGH Munich from 2001 deal with the same situation. The VGH Munich and the 20th Chamber of the VG Ansbach came to the conclusion that refugee status can be revoked if an Iraqi Kurd has visited northern Iraq. The written deliberations mention the contrary decisions of the ARK briefly 46

47 48

NVwZ-Beilage 2002 Nr. I 2, 17 = [2000] UKHL 67 at www.bailii.org/cgi-bin/markup. cgi?doc=/uk/cases/UKHL/2000/69.html&query=[2000]+UKHL+67&method=all. VG Karlsruhe 23 June 2005 – A 2 K 11324/04; 10.03.2005 – A 32 K 12193/03. OVG Magdeburg 26 January 2000 – A 1 S 174/99.

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without any further discussion.49 A single judge of the 12th Chamber of the VG Ansbach concluded that the Iraqi government had enough control in northern Iraq to seize hold of its enemies so that the refugee in question could not be deemed to be secure.50 Furthermore, he concluded that a single person could not live there in dignified circumstances without the support of family members.51 In the cases mentioned earlier, the courts cited the ARK only because the applicant had previously referred to it, and they appeared unwilling to discuss the ARK decisions in detail. In the cases referred to later, the judge refers to and quotes the ARK decision affirmatively for the purpose of strengthening her own arguments challenging the counter-opinion of the VGH Munich. The juris database contains only short summaries of the latter decisions. Consequently, it is not possible to estimate how extensively the judge considered the ARK decisions. Both a decision by the OVG Schleswig and a judgment by the VGH Mannheim from 2004 dealt with the revocation of refugee status of ethnic Albanians from Kosovo and with cessation according to Article 1 C (5) of the Refugee Convention.52 In both cases the applicants referred to a judgment of the ARK of 5 July 2002, according to which the situation in Kosovo could only be considered as sufficiently secure if the political situation were stabilized by the government of Kosovo itself, rather than by international military and police contingents. In both decisions the opinion was rejected by the German courts ruling that the alien enjoys sufficient security if there is no real risk of persecution at present or in the foreseeable future. As a result, the ARK decision referred to by the applicant was declared incorrect both times. Similarly, two further decisions refused to draw on Swiss case law concerning refugees from Afghanistan.53 These cases leave a distinct impression that the German courts engaged with ARK jurisprudence only because the appellant had already referred to it and it was nolens volens necessary to mention it. In comparison, the VG Cologne has made a serious attempt to investigate international practice concerning the question of the prerequisites of Article 1 C (5) of the Refugee Convention.54 In an effort to show its 49

50 51 52

53 54

VG Ansbach 01 February 2001 – AN 20 K 00.32301 –; VGH Munich 15 March 2001 – 23 B 00.30705 – and – 23 B 00.31221. VG Ansbach 20 November 2001 – AN 12 K 01.30656. VG Ansbach 23 January 2001 – AN 12 K 99.33818. OVG Schleswig 03 June 2004 – 3 LA 3/04 – ; OVG Mannheim 16 March 2004 – A 6 S 219/04 –. OVG Schleswig 16 June 2004 – 2 LB 54/03; OVG Bautzen 23 August 2006 – A 1 B 58/06. VG Cologne 12 January 2007 – 18 K 3234/06.A.

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determination, the court discusses at length a leading decision of the ARK of 5 July 200255 and a decision of the House of Lords of 10 March 2005.56 This is further proven by the court’s request for a statement from the United Nations High Commissioner for Refugees (UNHCR) about state practice in other countries. The court analyses the arguments of the ARK and the House of Lords in detail, and largely follows them. On the basis of the foreign decisions examined, as well as the UNHCR report, it reaches the conclusion that on a worldwide scale no country except Germany applies the cessation clause of Article 1 C (5) Refugee Convention to Iraqi refugees and that judging from these conclusions, the prevailing opinion of the German courts has not been in accordance with common and unanimous international state practice. This leads to the refusal of the VG Cologne to follow the case law of several higher administrative courts on this question. The results of this investigation can be summarized as follows. Foreign case law is referred to and used by German courts only in very few cases. Given this background, decisions of the Swiss asylum court play the most relevant role.57 On the day of this inquiry, it was possible to find evidence of substantive discussions in relation to foreign decisions only in 14 out of a total of 5,703 asylum law decisions. Among those were two identical decisions of the same court and on the same date, in fact, proving that only thirteen substantial decisions or 0.23 per cent of all decisions referred to foreign decisions. In cases which dealt with foreign case law this was solely due to the fact that the claimant had previously referred to them. This leads to the conclusion that the members of the various courts do not take a real interest in the foreign decisions referred to, as is further evidenced by their refusal to accept the rulings as part of domestic jurisdiction. In one case referred to earlier the reference serves only to strengthen the judges’ own point of view without proffering any substantive discussion. Only four cases examined evidenced an independent serious discussion of foreign decisions. If translated into percentages, this would represent only 0.07 per cent of all decisions. These are the only four decisions that adopt a systematic practice of foreign jurisprudence to their own jurisprudence. This minimal number of references is of no statistical significance, 55 56 57

EMARK 2002 Nr. 8, S. 53; at www.ark-cra.ch. Hoxha & Anor v. Secretary of State [2005] 1 WLR 1063, [2005] UKHL 19. Since 1 January 2007 the Swiss Asylrekurskommission has been dissolved. The responsibility for asylum law has been overtaken by the new Bundesverwaltungsgericht (Federal Administrative Court) (see www.bundesverwaltungsgericht.ch).

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as what is significant for statistical purposes is the observation that the adoption of foreign jurisprudence does not take place in asylum law cases heard by German administrative courts. In saying this, the possibility of ‘invisible traffic’ ought to be considered at this juncture, namely the possibility that German judges could be influenced by foreign jurisprudence without referencing it as such in their decisions. Unfortunately, it is not possible to determine the weight of the suggested possibility by way of a database research, as the latter must be based on particular key words. However, based on my own professional experience as an administrative judge for nearly three decades, it is highly unlikely that the ‘invisible traffic’ alluded to does in fact occur. Moreover, it appears utterly inconceivable that German judges would adopt foreign jurisprudence without actually citing it in their decisions. The advantage of quoting foreign case law increases the reputation and persuasiveness of the court’s own argumentation and is therefore highly effective. No one court would renounce this opportunity voluntarily. The analysis therefore leads to the inevitable conclusion that the result of the database research is reliable. Put differently, there is no reference made to or use of foreign jurisprudence in asylum law cases emerging from German administrative courts.

Survey among German administrative court judges In addition to presenting an analysis of published administrative court decisions concerning asylum law, this chapter attempted to uncover the practice and the attitude of judges concerning the use of foreign case law by way of a structured survey. Questionnaires were sent to 886 judges in 12 courts of first instance and to 5 courts of second instance. The survey was carried out in May 2007.58 The questionnaires were additionally sent to the presidents of the selected courts, who in turn were asked to distribute them among judges belonging to their court. They were instructed to collect the completed questionnaires and to return them to me. The criterion for the selection of courts was related to the objective of receiving judicial statements from a cross-spectrum of regions in Germany. The selection of courts incorporated regions such as BadenWuerttemberg, Bavaria, Berlin, Brandenburg, Hessen and North RhineWestphalia. In Hessen, where I sit as judge, the questionnaire was sent 58

To see a copy of the questionnaire, please contact Paul Tiedemann <[email protected]>.

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to every administrative court. In the other federal states mentioned, the questionnaire was sent only to the administrative court of second instance and to the largest court of first instance. In the case of North Rhine-Westphalia, for instance, the questionnaire was sent to the courts of Cologne and Düsseldorf, which are of equal size. In Bavaria the questionnaire was also sent to the VG Ansbach, the court with the longest experience of handling asylum law cases. The table below enumerates to the total number of participants for the respective courts that took part in the survey: BadenWuerttemberg asked judges Bavaria asked judges Berlin/ Brandenburg asked judges Hessen asked judges asked judges North RhineWestphalia asked judges asked judges total

VGH Mannheim 36 VGH Munich 65 OVG BlnBrandenb. 36 VGH Kassel 38 VG Giessen 29 OVG Münster

VG Stuttgart 54 VG Munich 70 VG Berlin

VG Ansbach 40 VG Potsdam

100 VG Darmstadt 26 VG Kassel 22 VG Düsseldorf

40 VG Frankfurt 46 VG Wiesbaden 24 VG Cologne

71 886

94 return rate

95 476

The number of administrative judges who participated corresponds to 41 per cent of the entire German administrative judiciary.59 Altogether, 476 judges completed and returned the questionnaire. This figure corresponds to 54 per cent of all judges asked and 22 per cent of the entire administrative judiciary. As far as the representativeness of the result is concerned, it is in accordance with the recognized standards of empirical social research.60 A further questionnaire was sent to the presidents of the courts to find out what equipment for searching foreign case law is available in the 59

60

According to the census of 31 December 2004, there were 2,155 administrative judges in the courts of the first and the second instance in Germany (see www.bmj.de > Service > Statistiken > Personal). See R. Schnell, P. B. Hill and E. Esser, Methoden der empirischen Sozialforschung, 5th edn (R. Oldenbourg, 1995), 286–94.

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particular court. The result of that survey shows that the equipment in all courts researched is of almost equal quality. Every judge has access to the Internet in their offices. Only two courts stock specific publications of foreign asylum law jurisprudence in their libraries (VG Frankfurt: EMARK (Entscheide und Mitteilungen der Schweizerischen Asylrekurskommission); OVG Münster: International Journal of Refugee Law). Apart from three interviewees all respondents were engaged in the field of asylum law or law relating to aliens, or had been working in that field in the past. All judges who responded to the questionnaire were highly experienced in their respective area of the law. The survey was based on the hypothesis of a significant difference in practice and attitude between judges of the first and judges of the second instance, as well as there being a difference in attitude between younger and older judges. The analysis was therefore carried out differently based on the level of instance and age (up to 45 years/46–65 years). Bar some minor aspects, the survey did not show a significant difference in practice or attitude with respect to the instance of the courts or the age of the judges. The result permits the following interpretation. The response rate of only 54 per cent is not a mere coincidence. It is a reflective statement of the attitude of German administrative judges on this topic. Evidently, the fact that half of those questioned were not willing to complete the questionnaire suggests that this is a subject so far-flung as to be of no interest whatsoever to a majority of judges. The number of judges who never engaged with foreign case law, based on the evidence, is more than half. Of the judges who responded, 59 per cent had never undertaken a comparative legal analysis and 52 per cent of those questioned had never used foreign jurisprudence for a factual investigation. These percentages show that the interest in foreign case law is somewhat higher when needed for fact-finding, rather than for law-finding purposes. Admittedly, the proportion of judges who claim to consult foreign jurisprudence at least on occasion (for information of fact: 48 per cent; for information of law: 38 per cent) is very surprising. This result conflicts sharply with the very scarce rate of references to foreign case law in published decisions. The results, rather than offering a hint of the reality of an ‘invisible traffic’ discussed earlier, give ample reason to doubt the truth of these answers. If the claim of a judge, who at least once in his professional life has engaged with foreign jurisprudence, to have published the decision because he deemed it fundamental is to be believed, the results of the database research clearly would not match such a statement. This leads to another interpretation of that surprising finding, namely that the judges did not give an account of their actual past practices, but rather talked

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about procedural steps they felt they ought to follow. It is to be presumed that the questionnaire itself had an impact on their consciousness in terms of what they ought to do, rather than what they are actually doing. A more accurate picture on the use of foreign case law (for example, through citation) in domestic jurisprudence is presented by the number of judges who responded who claim to consult foreign case law ‘more often’. The percentage of judges who claim to use it for factual reasons is 4 per cent, and of those who claim to use it for legal reasons is 3 per cent. The percentage of judges of the second instance who claim to consult foreign case law ‘more often’ is therefore slightly higher, but its impact is more profound. This is to do with the average age of judges of the second instance, which is greater than the average age of judges of the fi rst instance, meaning that the former had greater occasion throughout their professional lives to consult foreign jurisprudence than younger judges. This is the principal explanation for the variations in approach between different age groups. A remarkable observation to note is that the judges’ engagement with foreign case law in both instances is stimulated by the parties to the case themselves just as often as it is based on the judge’s own initiative. Almost half of the judges surveyed claim that they would more frequently engage with foreign jurisprudence if it were easier to access. But a third of the judges had no opinion on that question. It is worth noting that the willingness to consult foreign jurisprudence, given better accessibility, is slightly more distinctive among younger judges (fi rst instance: 55 per cent; second instance: 51 per cent) than among older judges (first instance: 48 per cent; second instance: 43 per cent). In this context it is also worth noting that the interest of judges of the fi rst instance in foreign jurisprudence is higher (51 per cent) than the interest of judges of the second instance (45 per cent). The slightly higher rate of interest among younger judges might be related to a more open-minded attitude that is typically associated with younger professionals. Only a minority of judges view the lack of background information as a reason for considering foreign case law not worth examining. Only a quarter of respondents were of the opinion that foreign jurisprudence should not be used as a source of factual information where the appropriate background information about the number of asylum seekers in the country concerned or the recognition quote had not been provided. Only 40 per cent of judges thought that more legal background information was required in order to gain an appropriate understanding of foreign jurisprudence. Almost a third of judges had no opinion about the relevance of

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background information. The lack of background knowledge thus does not seem to constitute an impediment to engaging with foreign case law. The survey did not only focus on the practice behind the adoption of foreign case law and its obstacles, it also concentrated on the general attitude of German administrative judges vis-à-vis foreign jurisprudence. Less than 10 per cent of the respondents believed that dealing with foreign case law was wholly irrelevant or superfluous. The number of those who believed that the adoption of foreign jurisprudence is only relevant to courts of the second or third instances was even lower (3 per cent). More than 70 per cent of those questioned were of the opinion that foreign case law was useful for the assessment of general facts, such as those concerning the political situations in the countries of origin. While 62 per cent of judges thought that foreign case law was useful for the interpretation of treaty-based law, only 12 per cent believed that foreign case law was necessary for the interpretation of treaty-based law. This result can be interpreted in the following way. Although foreign jurisprudence is not of complete irrelevance, most judges do not believe it to be of particular use. In other words, it is of no greater use than other sources of information concerning general facts or legal questions. It is a widely held belief among those surveyed that factual and legal information can also be obtained through alternative sources. This leads to the conclusion that there is no real need to surmount the specific difficulties and obstacles connected with examining foreign jurisprudence. Only a small minority of respondents considered foreign case law to be an original source of law that should not be ignored under any circumstances. On the other hand, approximately half of the responding judges expected the relevance of foreign case law to increase in the future. This expectation could possibly be based on European-wide harmonization of asylum law based on EC Directives, which could change the present situation and present new challenges for the German judiciary. This trend is in line with the percentage of respondents (77 per cent) considering the publication of foreign case law in German law journals to be desirable, even if translated into the German language. Only 5 per cent of those questioned considered publications of foreign case law an urgent priority, while 65 per cent of the judges questioned, at that time, did not show an interest in improving their skills in interpreting foreign jurisprudence through training. This attitude is synonymous with a cautious curiosity for foreign jurisprudence, as well as a lack of sense of professional need for further familiarization with the matter. This preliminary evaluation is definitively confirmed by the opinion of 50 per cent of respondents, who while believing membership of

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international judicial associations to be useful for professional purposes, only hold such memberships in 7 per cent of all cases. Of the fifteen judges, who made personal statements, five gave rather remarkable accounts. They pointed out that their heavy workloads and the wealth of data they had to manage on an everyday basis left them with no time to direct their attention to foreign case law. Based on these remarks, it is to be observed that a more in-depth use of foreign jurisprudence by German administrative judges is directly related to factors such as more efficient information management and appropriate access to data.

Reasons for the lack of reference to foreign jurisprudence In order to determine the reasons that contribute to the widespread ignorance of foreign jurisprudence by the German administrative judiciary, the question of access needs to be considered first. The arguably greater difficulty in searching for foreign jurisprudence cannot offer a satisfactory explanation for this phenomenon by itself. Therefore, it appears necessary to follow up on additional reasons, namely those that in all likelihood result from the characteristics of German asylum legislation, and those that can be attributed to a general attitude of German judges vis-à-vis non-national jurisprudence.

Access and language The first hurdles to the adoption of foreign jurisprudence lie in the difficulty of gaining access to information. The great support offered by the Internet has only been available in the past few years, and all the participating judges now have a PC with internet access available to them in court. This means that they could easily search the case law coming out of the English asylum courts through the database made available by the British and Irish Legal Information Institute free of charge.61 In order to do so, judges need to have a basic knowledge of appropriate internet sources and of the structure underlying foreign jurisprudence. Without these prerequisites, they would not know where to search and how to conduct their research. Unfortunately, this somewhat basic knowledge is not widespread among German administrative judges. It is only very recently that articles about that subject have started to appear in law journals.62 61 62

www.bailii.org/. See H. Dörig ‘Flüchtlingsschutz in Großbritannien’, Zeitschrift für Ausländerrecht und Ausländerpolitik, 26 (2006), 272–77, at 272; for legal internet sources cf. P. Tiedemann, Internet für Juristen (Darmstadt: Wissenschaft liche Buchgesellschaft , 1999).

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In practice, the court library still represents the primary access to refugee law jurisprudence with the consequence that decisions of the Austrian UBAS, for instance, remain inaccessible to most German administrative judges, as these can only be accessed through the Internet (www.ris.bka.gv.at/ubas/). Closer examination, furthermore, shows that the refugee and public law journals deemed of most relevance and greatest popularity either do not publish any foreign decisions at all, or only a minimum number of decisions. The index of the Zeitschrift für Ausländerrecht (ZAR)63 does not list a single foreign decision since its inception in 1981. The Informationsbrief Ausländerrecht (InfAuslR)64, in circulation since 1980, includes five foreign decisions, two of them in the original language, German; two translated from Turkish and French; and one published in the original language, English, with a short summary in German.65 The Neue Zeitschrift für Verwaltungsrecht (NVwZ)66, in circulation since 1982, has published five foreign decisions, all of which – originally in foreign languages (French and English) – have been translated.67 Only a number of the decisions concern refugee law. In spite of this evidence, gaining access to leading decisions of the Swiss ARK is not difficult. The Swiss Asylrekurskommission published leading decisions from 1993 to 2006 in the collection EMARK, which formerly was released as a printed version (loose-leaf book with four issues yearly), as well as on the Internet (www.ark-cra.ch/).68 The survey reveals that only one of the contacted administrative courts, the VG Frankfurt, holds EMARK in its library. Gaining access to case law in foreign languages is, on the whole, rather difficult. Th is is to do with the absence of a specifically dedicated German law journal to the publication of foreign-language decisions in German. Based on the evidence of the survey, foreign-language journals are not available in the libraries of any of the contacted courts, except for the OVG Münster, which holds the International Journal of Refugee Law. 63 65

66 67

68

64 Nomos Verlag, Baden-Baden. Wolters-Kluwer Verlag, Neuwied. InfAuslR 1986, 169 (Austria); 1994, 398 (Turkey); 1995, 49 (Switzerland), 2000, 166 (France), 2000, 240 (UK). C. H. Beck-Verlag, Frankfurt. NVwZ-Beilage I 1999, 77 (Austria), 2000, 58 (UK), 2000, 120 (France), 2002, 17 (UK), 2003, 81 (Switzerland). The new Swiss Bundesverwaltungsgericht has not yet published asylum decisions. It is likely that in future it will only publish its decisions on the Internet. See www.bundesverwaltungsgericht.ch.

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A fi nal explanation for the dearth of access to case law in foreign languages is to do with language barriers, although this should, in theory, not pose a significant problem. According to the survey responses, more than 52 per cent of all judges are able to read foreign decisions in English and 22 per cent are able to read decisions in French. The problem of access would thus not be insurmountable if judges took a greater interest in conquering present obstacles. The findings, therefore, lead to the realization that German administrative court judges take no active interest in foreign jurisprudence, whether translated into German or published in the original language. Alternative causes for the perceived lack of interest, besides the difficulties of access, are to be inferred from the findings. One conclusion that can be derived from this analysis is that the difficulties associated with access to foreign jurisprudence are not the main cause for the lack of interest – in fact the opposite appears to be the case; it is rather lack of interest that seems to be the driving force behind the reluctance to engage with foreign jurisprudence. If this statement indeed holds true, further factors must be responsible for the lack of judges’ interest in foreign jurisprudence.

The ‘Two-Worlds Doctrine’ A more profound explanation for the absence of interest in foreign case law could be attributed to a fi xation by domestic administrative courts with national law, which in turn blocks their perception of the international dimensions of the law. For example, the average German administrative judge does not directly engage with the Refugee Convention or with its Transformation Act, but rather tends to consult the German Aliens Act. Section 51, paragraph 1 of the 1990 Aliens Act, which deals with the enforcement obligations arising from an order to leave the country, states that an alien may not be refouled to a state in which his or her life or liberty is under threat on account of race, religion, nationality, membership in a particular social group or political opinion. Paragraph 2 states that these categories are to be presumed as legitimate grounds of persecution where the person concerned is a foreigner who enjoys refugee status or is recognized as a foreign refugee outside of the federal territory within the meaning of the Refugee Convention. In other cases the Federal Office was entrusted with the task of determining whether the necessary conditions of paragraph 1 applied. The wording of that regulation shows the following: only in the context of persons who are already recognized as refugees outside of Germany was the Refugee Convention mentioned. In other cases the rule seems to refer to national law only. The new Residence Act that came in force on 1 January

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2005 differs from the old law in its relevant wording. Section 60 paragraph 1 now reads as follows: ‘In application of the Convention of 28 July 1951 relating to the Status of Refugees (Federal Law Gazette 1953 II, p. 559), a foreigner may not be deported to a state in which his or her life or liberty is under threat on account of …’

Here, the law refers explicitly to Refugee Convention and to the National Transformation Act. It clearly states that it respects the application of international law. This was not as clear in the old Aliens Act. It is possible that the old version supports the prevailing opinion among judges that the recognition of a refugee in Germany is a question of national law only and is not related to international law. The prevailing opinion so far is that the new version is not based on the wording of the old law, but is rather founded on the idea that the National Transformation Act cannot constitute the legal basis for the procedure of recognition because the Refugee Convention does not entitle the refugee to a subjective right to asylum. The underlying idea of the National Transformation Act thus only supports the purpose of realizing the constitutional prerequisites for the ratification of the Refugee Convention (Article 59, paragraph 2 of the GG). Moreover, it does not grant a legal entitlement to the alien, such as a subjective right to asylum. Because the judges are not involved in the ratification process, they have to directly engage neither with the National Transformation Act nor with the Refugee Convention. Their only obligation is to consider laws that confer rights on the alien and those laws are pure national laws. Accordingly, the ratification of the Refugee Convention confers rights and duties on all treaty states, but does not apply to the relation between the refugee and the German state.69 In 1957 the BVerwG left open the question of whether the National Transformation Act establishes subjective rights and decided that national law grants such rights to the refugee through the Aliens Act.70 In 1991 the BVerwG decided that the National Transformation Act confers a direct right to asylum.71 Yet, in later decisions it overturned its opinion and held that the right to refugee status follows from Section 51 of the Aliens Act (1993) and not from the National Transformation Act.72 In a 69

70 71 72

Ch. Klos, ‘Deutschlands Verhältnis zur Genfer Flüchtlingskonvention und zur Europäischen Menschenrechtskonvention’, Zeitschrift für Ausländerrecht und Ausländerpolitik, 20 (2000), 202–10, at 202. BVerwG 01 March 1957 – I C 80.55 – § 13. BVerwG 04 June 1991 – 1 C 42/88 – § 13 ff. BVerwG 21 January 1992 – 1 C 21/87 – § 15 f.

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1994 decision the BVerwG decided explicitly that the legislator had ‘added’ a right to refugee status to the National Transformation Act by incorporating rules concerning the recognition procedure and the prohibition of deportation into the Aliens Act and the Asylum Procedure Act.73 According to this view, two parallel worlds serve the protection of refugees – one is at the level of international law and the other is at the level of national law. At the international level only the treaty states play a role, whereas at the national level the refugee enjoys rights, is able to demand rights and can get recognition of his or her rights by fi ling a lawsuit before an administrative court. Neither world interacts with the other in the slightest degree, and it is therefore not within the remit of the courts to consider international law. They are bound only by national law. The ‘Two-Worlds Doctrine’ clarifies why most German administrative courts, following past jurisprudence of the BVerwG, held that the law does not grant refugee status where the alien fears persecution by a non-state-agent.74 The interpretation of national law was thus not deemed to depend on the development of the case law in other countries. According to the ‘Two-Worlds Doctrine’ the interpretation rule laid down in Article 31(3)(b) of the Vienna Convention on the Law of Treaties is of no interest to the national administrative courts, as the latter need to interpret national law on the basis of national interpretation standards. In its 1994 judgment the BVerwG conceded that current state practice in Australia, Canada, France, the UK and the USA accepts persecution by non-state-agents.75 However, it stated that this was of no relevance for the interpretation of national laws concerning refugee protection. The events in the Görgülü case illustrate in an exceptionally dramatic way the degree to which the idea of the ‘Two-Worlds Doctrine’ is still anchored in the brains of German judges. In this case, due to intrigues played out by the mother and social services, Mr Görgülü, the natural father, lost the right to custody for his son, who was born in 1999. The child was put up for adoption and handed over to foster parents. The OLG Naumburg refused legal protection, reasoning that the child had been with the foster parents for two years already and that the psychic strain on the child would be too strong if he were forced to leave that family and come to live with his natural father. Finally, Mr Görgülü successfully appealed to the European Court of Human Rights (ECtHR). The court decided that the withdrawal 73 74

75

BVerwG 18 January 1994 – 9 C 48/92 – § 14. Since 1 January 2005 the new Residence Act includes persecution by non-state-agents, further to Council Directive 2004/83/EG. BVerwG 18 January 1994 – 9 C 48/92 – § 11 ff.

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of the right to custody was a violation of the right to family life (Article 8 ECHR).76 The outcome of the decision was that the responsible magistrates’ court re-granted the right to custody to Mr Görgülü. But the OLG Naumburg set aside the decision, confirmed its earlier opinion, and pointed out that it was not bound by the decision of the ECtHR.77 Judgments of the ECtHR were binding on the Federal Republic of Germany only as a subject of international law, but were not binding on inner state authorities and courts. Mr Görgülü filed a constitutional appeal with the Federal Constitutional Court, which in October 2004 decided that national courts were bound by the decision of the ECtHR.78 In spite of this ruling, the OLG Naumburg once again decided in December 2004 that it did not have to observe the Strasbourg judgment because it had been biased and had not taken into consideration the interest of the foster parents.79 Mr Görgülü thereupon reappealed to the Federal Constitutional Court, which quashed the Naumburg decision, 80 remanding the pending case for further decision to another senate of the Naumburg court. The new senate ensured that Mr Görgülü could at least have regular contact with his son. This case puts on prominent display the vigorous objection of German judges to the binding nature of international law. The OLG Naumburg in an exceptionally persistent and obstinate fashion succeeded in expressing an attitude that is widespread among German judges. Th is attitude reveals an absence of urgency to paying attention or considering foreign law as a characteristic trait among the German judiciary. In spite of these findings, it is to be expected that any further spread of such attitude will decrease in the future. The Federal Constitutional Court – beginning with the Görgülü case – contributes to this development by establishing the constitutional principle of friendliness (comity) with respect to international law. This principle demands that the interpretation of national law be in consistent accordance with international law in order to minimize the occurrence of confl ict between Germany’s international obligations and its national law. Meanwhile the BVerfG applied this doctrine also to the case law of the International Court of Justice.81 It is realistic to assume that the later jurisprudence of the BVerfG 76 77

78 79 80 81

ECtHR 26 February 2004 – 74969/01 – Görgülü v. Germany. OLG Naumburg 30 June 2004 at: www.willkuer.vafk .de/Urteile/40630%20OLG%20 Beschl%20Umgang.pdf. BVerfG 14 October 2004 – 2 BvR 1481/04. www.willkuer.vafk .de/Urteile/41220%20OLG%20Beschl%20Umgang.pdf. www.bverfg.de/entscheidungen/rk20041228_1bvr279004.html. See also BVerfG 19 September 2006 – 2 BvR 2115/01 – § 55.

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will change the attitude of German judges and will lead to their increasing observation and acceptance of international case law. However, it remains to be seen whether this change in attitude will lead to an increasing use of foreign national case law. In 2006, indeed, the BVerfG explicitly stated that in ECHR cases the German courts must not consider foreign national case law.82 However, in the area of refugee law it would make little sense to discourage domestic courts from referring to foreign national jurisprudence. One might argue that it is sufficient enough to obey the jurisprudence of the European Court of Justice (ECJ). However the ECJ can only respond to questions put by the national courts, and in order to ask suitable questions, those courts require a certain imagination. The knowledge of foreign case law increases this imagination. For example, the BVerwG, when requesting a preliminary ruling of the ECJ in asylum law cases, addressed the issues raised by the British case law very meticulously.83 Furthermore, the observance of foreign case law can be a very effective contribution to the relief of the ECJ. 82

83

But see the following statement by the second chamber of the BVerfG in a judgment of 13 December 2006 – 1 BvR 2084/05 – (§ 40): ‘The obligation to consider … the jurisprudence of the European Court of Human Rights follows from the principle of the international friendliness of the Basic Law. Th is obligation does not embrace the duty to consider the jurisprudence of the treaty parties of the European Convention of Human Rights.’ BVerwG 7 February 2008 – 10 C 33/07; 14 October 2008 – 10 C 48.07.

5 The solipsistic legal monologue of Italian authorities Fr ancesco Messineo *

This chapter discusses the lack of transnational legal activity between Italian authorities competent to make decisions on international protection and their European counterparts. It also explains some of the reasons for this lack of traffic in legal ideas. Initially, the chapter considers the general framework of Italian legal thinking as one of the best examples of ‘closed’ civil law systems. The development of the institutional framework of asylum and refugee law in Italy is then analysed with the aim of identifying further key ‘rational’ reasons for the absence of cross-European use of jurisprudence by the Italian courts. The chapter next considers the sparse quantitative data available as evidence of the lack of transnational legal activity in this area of the law, before providing some ‘cultural’ explanation for this lack based on interviews with key practitioners in the field.

A brief introduction to the Italian legal mind Italy is quintessentially a civil law country, somewhat harmoniously situated in a theoretical middle ground between France and Germany, while resolutely aware of its own centuries-long legal tradition. On one hand, much doctrinal debt is owed by Italian legal science to these two * The author would like to thank his friend and colleague Elisa Saccà, dott. giur., PhD candidate (Catania) for her tireless research efforts in Rome and in Sicily. Giusy D’Alconzo, human rights researcher (Amnesty International Italy) attorney-at-law, very generously provided sources, support sensible comments on a previous draft of this chapter. Daniela Nadj, research student and teaching assistant at the University of Westminster, kindly edited the final draft. Many thanks to Anna Adrian, Alessandra Ballerini, Anna Brambilla, Fabiola Conti, Maria Silvia Olivieri, Gianfranco Schiavone all other interviewed experts without whom this chapter could not have been written. All mistakes are the author’s own.

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countries. For instance, the theory of the negozio giuridico (that is, the general theoretical category to which inter alia contracts and unilateral acts both belong) is of German origin (Rechtsgeschäft). Another instance is the first civil code, adopted in Italy in 1865, which was ‘basically a translation’ of the code Napoléon,1 whereas the current codice civile of 1942 has been described as having ‘the form of the French code but the content of the German one’.2 On the other hand, young Italian law students are constantly reminded that this ‘foreign’ theory is simply fi nding its way back home: the times of Cicero, Gaius and Justinian’s Corpus Juris Civilis are always looming in the background of the Italian legal mind (not to mention Bartolus de Saxoferrato or the role of Canon law). In a sense, Italian academics still perceive themselves as part of this glorious tradition. 3 The complexities of a plurality of legal orders in today’s globalization are not new to them because medieval jus commune was complex and plural.4 Their approach to legal writing is rarely outright insular. References to foreign decisions, and foreign doctrine, are often present, even if they are only paid lip-service, and this doctrinal dialogue is Italy’s main contribution to ‘the gradual construction of a global legal system’. 5 With a degree of simplification, it may be said instead that Italian courts more readily embraced Franco-German modernity, applying Italian law almost as a closed conceptual framework of Kelsenian hierarchical beauty trapped inside a Leibnizian monad. Courts do obviously apply European law and international law, but they do so through the prism of the Italian legal order, in what is a largely dualist approach.6 And when they apply domestic laws which are at times identical to their French or German equivalents, they will do so without noticing or taking into consideration the decisions of their French and German counterparts. In sum, the dimension of transnational ‘judicial globalization’ is close to zero in Italy. A good illustration of this judicial attitude comes from the words of the First President of the Court of Cassation in his annual report on the administration of justice in 1

2 3

4 5

6

M. Comporti, ‘La codificazione ed i principali codici europei’ in M. Bessone (ed.), Istituzioni di diritto privato, 14th edn (Turin: Giappichelli, 2008), 28–38, at 32 (author’s translation). Ibid., 35. One of the best historical introductions to modern Italian legal science is to be found in P. Grossi, Scienza giuridica italiana: un profilo storico, 1860–1950 (Milan: Giuff ré, 2000). See e.g. P. Grossi, L’ordine giuridico medievale, 4th ed. (Rome: Laterza, 2008). An expression used by Slaughter in A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004), at 67. But see the caveats explained in note 52 of Chapter 1.

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Italy in 2008.7 After underlining the importance of ‘judicial dialogue’ among European judges as one of the factors in the creation of the European legal order, he nonetheless noticed that ‘the increase in sources of law, both inside and outside the national legal order’ created ‘asymmetries, ample room for choice, but also considerable uncertainties’.8 As a result, it ought to be the role of the courts to act as guardians of the ‘juridical unity of the national legal order’ by ‘controlling’ all this transnational traffic of norms coming from ‘the outside’.9 Rather than suggesting a willingness to participate in a transnational legal dialogue, these words evoke a steady defence of the fortress – a defence, it must be added, which may to a certain extent be understandable and unavoidable on the part of the most senior Italian judge. Indeed, a brief analysis of the relevant (if now outdated) norms leads to the conclusion that foreign law and doctrine are structurally irrelevant to the daily functioning of the Italian legal order. Judges are traditionally expected not to take them into consideration, because they are bound by law to a certain hermeneutic ‘strategy’ for constructing norms and for deciding cases for which norms are unavailable.10 This strategy is contained in the ‘Preliminary Provisions on Law in General’, a series of norms attached to the civil code which address inter alia the criteria for interpretation and those for fi lling legal vacuums (or lacunae).11 No mention of anything else apart from textual criteria and the ‘intention of the legislator’ is made as to construction.12 And even in the rare circumstances in which a certain case is not disciplined by any available norm, the role of the judge will be that of developing the normative framework of the Italian legal system and its underlying values through the use of analogy (analogia legis or analogia juris) as a ‘technique of self-integration of written law’.13 The system is thus designed to exclude all that is not itself in its interpretation and functioning; it is designed as a monad. Being constitutionally bound by these rules, it is no mystery that Italian judges do not use foreign law in their daily work. However, these general rules laid 7

8 9 10

11

12

Corte Suprema di Cassazione, ‘Relazione sull’amministrazione della giustizia nell’anno 2008 del Primo Presidente della Corte Suprema di Cassazione, Vincenzo Carbone’, 30 January 2009, available at www.cortedicassazione.it/Documenti/Relazione%20 anno%20giudiziario%202008.pdf. Ibid., 12 (author’s translation). Ibid. A. Belfiore, ‘L’interpretazione della legge. L’analogia’, Studium Iuris, (2008) no.4, 421–33, at 421. These rules do not apply to criminal law, and may apply differently in the context of constitutional law. See Belfiore, ‘L’interpretazione della legge’, 421–5. 13 Ibid., 427.

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down in 1942 cannot by themselves explain the lack of transnational legal traffic for two reasons. First, they are a formalistic source which is often considered outdated. Second, they do not put Italy in any different legal ground than most other civil law countries, where similar rules on the closure of the system are present. A former president of the Italian constitutional court convincingly sets out the difference between ‘law as a discourse’ and ‘law as the discovery of (legal) truth’: when the latter model is chosen, as it is in Italian judicial practice, external elements are unfortunately perceived of as distractions, if not intrusions.14 There are, however, some important qualifications to this description of a solipsistic conceptual legal framework within which Italian judges operate. First, foreign law may become relevant in certain cases because of rules of private international law and it is thus applicable by Italian courts.15 Second, judges may sometimes be aware of foreign doctrine or cases, but this foreign law remains ‘invisible’ because academic legal writings are never explicitly referred to in judgments, which are short and always unitary (that is, without dissenting or concurring opinions).16 Th ird, the Italian Constitutional court has long engaged in some ‘invisible’ but very tangible dialogue (if not joined efforts) with its counterparts in other European countries, especially at times of crisis in its ‘vertical’ relationship with European courts.17 Finally, the ‘vertical’ dimension of EC law may indirectly lead to the application of norms arising from the legal experience of other European countries through the norm on general principles common to the constitutional traditions of member states.18 14

15

16

17

18

A. Baldassarre, ‘La Corte costituzionale italiana e il metodo comparativo’, Diritto Pubblico Comparato ed Europeo, (2006) no. 2, 983–91 (author’s translation). See e.g. Corte Suprema di Cassazione – Italian Supreme Court of Cassation, Soc. Piave v. Fall. Sattia, n. 61/1962 (sez. III), [1962] Riv. Dir. Int. 275 (16 January 1962) (applying French law). But until the reform of 1995 on international private law, foreign law was considered as a ‘fact’ to be proven by the parties to a dispute, not a ‘legal rule’ in the domain of the court’s power according to the jura novit curia rule. Baldassarre considers this invisibility of the internal dialogue among the judges composing the courts as one of the reasons why comparative law considerations may be relevant in practice but never emerge: Baldassarre, ‘La Corte costituzionale italiana’, 986. See ibid., 989–90; here Baldassarre argues that it was an ill-conceived policy choice of the court he formerly presided over never to mention foreign elements in the judgments even when they were considered, and gives some examples of this invisible traffic. One of these is a famous Italian Constitutional court decision on the relationship of the Italian legal order with EC law, Granital SpA v. Amministrazione delle Finanze, n. 170/1984, 93 ILR 527 (8 June 1984), which silently referred both to American doctrines on federal states and to the German federal constitutional court precedent in ‘Solange I’, 93 ILR 362 (29 May 1974). Article 6, Treaty on European Union.

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International protection in Italy: the institutional framework Old principles of recent implementation Against this backdrop of solipsistic legal arguments generally by Italian judges, refugee law provides no exception. The regulation of the right of asylum in Italy is the result of a complex history of two parallel and underdeveloped systems of protection. The country’s far-reaching constitutional norms recognize asylum in very generous terms, but they are seldom applied in practice. The Refugee Convention was ratified, but implemented rudimentarily (see discussion below). More recently, the right of asylum has fallen victim of the over-politicization of the immigration debate. This led to striking misunderstandings concerning the options legally available to policy-makers and their obligations under international, European and constitutional law: a context inauspicious to transnational legal dialogue. Around the time of its unification in 1861, Italy was a country of emigration – mostly for economic reasons – rather than one of immigration. It remained so for most of the twentieth century.19 During the Fascist era (1922–43), many Italians sought asylum abroad to escape from political persecution. Hence, the drafters of the Italian Constitution in 1947 were highly aware of the importance of granting international protection, as many of them had personally experienced political persecution.20 They adopted Article 10 paragraph 3 among the ‘Fundamental Principles’: A foreigner who is denied the effective exercise of the democratic liberties guaranteed by the Italian Constitution in his or her own country has the right of asylum in the territory of the Italian Republic, in accordance with the conditions established by law.21

On its face, this provision has far broader scope than the refugee status granted under the Refugee Convention.22 However, a law setting out ‘the 19

20

21

22

See e.g. D. R. Gabaccia, Italy’s Many Diasporas (Seattle: University of Washington Press, 2000); L. Incisa Di Camerana, Il grande esodo: storia delle migrazioni italiane nel mondo (Milan: Corbaccio, 2003); G. A. Stella, L’orda: quando gli albanesi eravamo noi (Milan: BUR – Biblioteca Universale Rizzoli, 2006); O. De Rosa and D. Verrastro (eds.), Appunti di viaggio: l’emigrazione italiana tra attualità e memoria (Bologna: Il Mulino, 2007). See P. Bonetti, ‘Il diritto d’asilo – Profi li generali e costituzionali del diritto d’asilo nell’ordinamento italiano’, in B. Nascimbene (ed.), Diritto degli stranieri (Padua: CEDAM, 2004), pp. 1136–88, at pp. 1137–8; L. Chieffi, ‘La tutela costituzionale del diritto di asilo e di rifugio a fi ni umanitari’, Dir. Imm. Citt., (2004) no.2, 25–48, at 25–6. Article 10 paragraph 3, Italian Constitution (English translation), available at: legxven. camera.it/cost_reg_funz/345/346/listaarticoli.asp. Corte Suprema di Cassazione – Italian Supreme Court of Cassation, Allen v. Italian Ministry of the Interior, n. 4674/1997 (sez. un. civ.), 80 Riv. Dir. Int. 843 (26 May 1997); A.

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criteria’ of constitutional asylum was never passed, despite a requirement to that effect by Article 10 paragraph 3. In fact, Italy never established a clear and sustainable policy on asylum, much less adopted precise rules on the issue. This is further evidenced by the historical records detailing Italian participation in the Refugee Convention. The Convention was ratified as early as 1954,23 but it remained largely unimplemented until 1990. At the time of ratification, Italy declared that it would opt for a narrow, geographically limited refugee definition.24 Combined with the temporal limits of the Convention25 and the absence of any domestic enacting provision, this considerably restricted the treaty’s scope of application, and sharply contrasted it with the generous intent of the framers of the Italian Constitution. While the temporal limitation was abolished in 1970, when Italy ratified the 1967 New York Protocol,26 it was not until 1990 that a law was passed removing the original geographical limitation.27 The legislation in question was the ‘Martelli’ Act, which finally introduced a refugee status determination procedure into the Italian legal system that subsequently was extensively modified in 2002 and 2008.28 In fact, until 1990 all forms of international protection granted by Italy were either enacted by the executive on a case-by-case basis29 or were based on the recognition

23

24 26

27

28

29

Cassese, ‘Commento all’art. 10’, in G. Branca (ed.), Commentario alla Costituzione, vol. I – Principi fondamentali: Art. 1–12 (Bologna: Zanichelli, 1975), 485–564, at 531 ff.; P. Ziotti, Il diritto d’asilo nell’ordinamento italiano (Padua: CEDAM, 1988), 173 ff.; G. D’Alconzo and others (eds.), Ricerca giuridica sugli orientamenti giurisprudenziali in materia di asilo (Rome: Jesuit Refugee Service – Italia, 2003), also available at: www.centroastalli.it/dl/ QUAD_4.zip, 11–14; Bonetti, ‘Il diritto d’asilo’, p. 1139; Chieffi, ‘La tutela costituzionale’, 31 ff.; M. Benvenuti, Il diritto di asilo nell’ordinamento costituzionale italiano. Un’introduzione (Padua: CEDAM, 2007), 211 ff.; H. Lambert, F. Messineo and P. Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’, Refugee Survey Quarterly, 27 (2008), 16–32, at 22–4. Italy ratified the Refugee Convention with statute no. 722 of 24 July 1954; it entered into force in Italy on 13 February 1955. Article 1(B)(1), Refugee Convention. 25 Article 1(A)(2), Refugee Convention. 606 UNTS (United Nations Treaty Series) 267 (1967). Italy ratified the Protocol with statute no. 95 of 14 February 1970; it entered into force in Italy on 26 January 1972. Statute no. 39 of 28 February 1990, available (in Italian) at the following web address: www.stranieriinitalia.it/briguglio/immigrazione-e-asilo/2008/ottobre/ sinottico-normativa-19.html. Statute no. 189 of 30 July 2002, also known by the names of two of its proponents (‘BossiFini’); Legislative Decree no. 251 of 19 November 2007 implementing EC Directive 2004/83/EC; Legislative Decree no. 25 of 28 January 2008 implementing EC Directive 2005/85/EC; all are available at the website in note 27 above. These at times were also extraterritorial (e.g., in the Italian embassy in Chile) and admittedly also concerned non-European or post-Second World War refugees: see L. Neri, ‘Il

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of refugee status under the United Nations High Commissioner for Refugees (UNHCR)’s mandate by its local office in Rome.30 As a result, today two parallel systems of asylum rules exist in Italy: constitutional asylum law, on the one hand, and the Refugee Convention, on the other hand. The general system of international protection is then complemented by the recently introduced EC subsidiary protection and by a form of non-refoulement-based protection (see further discussion below). Scholars and non-governmental organizations (NGOs) have long urged the parliament to adopt a comprehensive act regulating the right of asylum in Italy, with a view to fully implementing the constitutional provision and determining the relationship between these systems.31 Recent practice of Italian legislatures – with bills often being tabled but never being approved – does not lend itself to the expectation that a full implementation will occur in the foreseeable future.

The comparatively small number of asylum applications until 2007 and the recent increase The reason for Italy’s failure to engage adequately with its legal framework on the right of asylum has often been attributed to the country’s relative inexperience in addressing immigration and asylum questions.32 Until the early 1990s, Italy was not perceived as a country of asylum, nor was it deemed to be a destination country for international migration purposes. It was typically defined as a ‘transit’ country, where migrants would arrive and stay briefly on their onward journey to northern Europe. However, the situation subsequently changed. The increasingly restrictive policies on immigration of other European countries, the war in the former Yugoslavia and the political situation in Albania were all contributing factors towards what was then perceived by Italian public opinion as a

30

31

32

diritto d’asilo – Profi li sostanziali: lo status di rifugiato’ in Nascimbene (ed.), Diritto degli stranieri, (Padua: CEDAM, 2004), 1189–244, at 1207. UNHCR and local NGOs coordinated their efforts in providing protection either in Italy or abroad through a form of resettlement. See e.g. B. Nascimbene, ‘National Reports: Italy’ in I. Higgins and K. Hailbronner (eds.), Migration and Asylum Law and Policy in the European Union: FIDE 2004 National Reports (Cambridge University Press, 2004), 205–20. Italy’s ‘youth’ is stigmatized in the title by J. Lee, ‘Portrait of a Young Italy: Asylum Practice and Public Opinion’, Contemporary Topics in Forced Migration (Working Paper n. 4), 2005, available at www.ccis-ucsd.org/fml/wrkg4_fml.pdf, 2, who writes of a ‘chaotic, inconsistent, and uniquely Italian system’ of asylum. Despite being needlessly essentialist, the remark is correct.

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‘mass influx’ of refugees and migrants.33 In fact, a quick glance at figures of subsequent arrivals in Italy shows that despite an increase in numbers, these never in fact resulted in a ‘mass influx’.34 In relation to international protection, it comes as no surprise that Italian procedures have until recently attracted a proportionally small number of asylum seekers. Every year in the period 2004 to 2007, for instance, Italy received only between 2 and 4 per cent of the share of asylum applications lodged in the 51 ‘industrialized receiving countries’, compared to 9 to 15 per cent in France, 8 to 10 per cent in the UK, and 6 to 9 per cent in Germany.35 If we then consider the total number of refugees and asylum seekers present in the territory of the same states at the end of 2007, Italy’s relative ‘novelty factor’ in dealing with asylum cases appears to be even more pronounced. While Italy was hosting a total of 39,568 people in need of international protection, France had 182,840, the UK 310,618 and Germany as many as 612,942.36 However, the statistics on asylum applications lodged in 2008 showed a striking change. Italy received as many as 31,200 claims, more than two times those received in 2007.37 These figures suddenly turned Italy into ‘the fourth most important destination in the industrialized world’ after the United states, Canada and France.38 According to UNHCR, ‘much of this [increase] can be attributed to the number of irregular arrivals by sea, primarily on the island of Lampedusa, estimated at 36,000 people in 2008’.39

The two Italian asylum procedures Foreigners who are in need of international protection may therefore choose to seek asylum under Article 10 paragraph 3 of the Italian 33

34

35

36

37 38

See F. Piperno, ‘From Albania to Italy: Formation and Basic Features of a Binational Migration System’, Centro Studi di Politica Internazionale – Background paper for the CEME-CeSPI research mission in Italy and Albania (5–9 June 2002), 2002 , available at www.cespi.it/PASTORE/Italy-Albania.PDF. See e.g. one of the very accurate annual statistical reports from the Catholic organization Caritas (ed.), Immigrazione Dossier Statistico ’97, (Rome: Anterem, 1997). The first report was published in 1990. These are the three other EU countries which are also ‘G8’ members. UNHCR, ‘Asylum Levels and Trends in Industrialized Countries (2008): Statistical Overview of Asylum Applications Lodged in Europe and selected Non-European Countries’, 24 March 2009, available at www.unhcr.org/statistics/STATISTICS/49c796572.pdf, 8. UNHCR Statistical Online Population Database (data as of late April 2009), available at www.unhcr.org/statistics/45c063a82.html. UNHCR, ‘Asylum Levels and Trends in Industrialized Countries (2008)’, 6. Ibid. 39 Ibid., 7.

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Constitution, or to apply for recognition of their refugee status under the Refugee Convention.40 In some circumstances they may do both, instituting parallel, subsequent or contemporaneous proceedings.

Constitutional asylum: lack of implementing procedures For complex reasons of administrative law which will not be expounded here, until recently, constitutional asylum was decided upon by both administrative and civil courts. Prior to 1997 the courts had largely acted inconsistently with respect to the scope of Article 10 paragraph 3. It was only in 1997 that the Court of Cassation clarified the scope of the Article and construed it as a justiciable right of the individual, thereby according it the status of a ‘perfect subjective right’ in Italian legal terminology.41 The Article signifies that ‘every foreigner who as a matter of fact is prevented from exercising any of the democratic liberties granted [to Italian citizens] by the [Italian] Constitution has a subjective right to enter and reside in [Italy]’.42 This right, at least in theory, should be recognized by courts when seized of the matter. However, the absence of a law setting out the ‘conditions’ and procedures of constitutional asylum has severely impacted upon its practical significance. The right of asylum has been recognized in very few cases, and courts have often adopted a very restrictive view on the actual content of the right.43 Given that general rules of civil procedure apply to the recognition of asylum, many years may pass before an individual case is decided. Furthermore, the procedure is costly and cumbersome.44 40

41

42 43

44

It is only within the Refugee Convention procedure that subsidiary or humanitarian protection may be granted (see below). Corte Suprema di Cassazione – Italian Supreme Court of Cassation, Allen v. Italian Ministry of the Interior, n. 4674/1997 (sez. un. civ.), 80 Riv. Dir. Int. 843 (26 May 1997). Legal doctrine had recognized this as far back as 1958: C. Esposito, ‘Asilo (diritto di) – Diritto Costituzionale’, in F. Santoro Passarelli and others (eds.), Enciclopedia del diritto, vol. III (Milan: Giuff ré, 1958), 222. On the history of the recognition of the constitutional right of asylum by Italian courts, see D’Alconzo and others (eds.), Ricerca giuridica; Bonetti, ‘Il diritto d’asilo’, 1139 ff.; Benvenuti, Il diritto di asilo, 31–48. Bonetti, ‘Il diritto d’asilo’, 1140 (author’s translation). See the illogical conclusions recently reached by the Italian Court of Cassation in trying to narrow down the scope of Article 10 paragraph 3 (in blatant contrast with its constitutional meaning): Italian Ministry of the Interior et al. v. Aday, n. 25028/2005 (sez. I civile), [2006-I] Foro It. 2851 (25 November 2005); Selimi v. Italian Ministry of the Interior, n. 18549/2006 (sez. I civile), [2007-I] Foro It. 1869 (25 August 2006). On these decisions, see P. Passaglia, ‘Eutanasia di un diritto (la triste parabola dell’asilo) (Osservaz. a Cass. 25 novembre 2001, n. 25028)’, Foro It., (2006-I), 2851–53; E. Cavasino, ‘Un passo indietro nell’interpretazione dei rapporti fra diritto d’asilo e status di rifugiato nell’ordinamento italiano’, Giur. It., 159 (2007), 318–24; Lambert, Messineo and Tiedemann, ‘Comparative Perspectives’, 24–5. Bonetti, ‘Il diritto d’asilo’, 1152–3.

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By way of initial conclusion, constitutional asylum law is ruled upon by the judiciary on application by the asylum seeker. Such application may be filed autonomously, or as a subordinate request when applying for judicial review of the decision of a public authority concerning the entrance to or the forced removal from the country. It can also be included as a subordinate pleading in the application for judicial review of the prior decision not recognizing refugee status under the Refugee Convention or subsidiary or humanitarian protection.

Refugee status determination and subsidiary protection (1) The procedure until 2005 The first refugee status determination (RSD) procedure was introduced in 1990. It was scarcely regulated by way of one Article only, namely Article 1 of the ‘Martelli’ Act,45 with its arguably inadequate implementing regulations.46 An asylum seeker would file a request at the local police headquarters, and would then be asked to return at a later date for a photograph and for the drafting of official minutes to record the individual’s story and detail the reasons for application. The asylum seeker would then receive a provisional receipt of the request for asylum, which at a later time would be replaced by a temporary residence permit. Several months later the applicant would be invited to an interview at the Central Commission for the Recognition of the Status of Refugees in Rome. According to NGOs, the interview would last only a few minutes, often not more than fifteen,47 during which the asylum seeker would not be afforded assistance by a lawyer. The applicant would eventually be notified of the results through the police. The entire procedure would, on average, take more than eighteen months,48 and at times even more than two years.49 During this period the asylum seeker would not be allowed to work, or, in most cases, be given access to welfare support such as housing subsidies. In case of refusal of recognition, the asylum seeker could apply for judicial review of the decision. The procedure usually took place in the administrative courts, until a decision of the Court of Cassation in 1999 declared jurisdictional competence in favour of the civil courts.50 Admittedly, even after 45 47

48

49 50

46 Note 27 above. Presidential Decree no. 136 of 15 May 1990. Medici Senza Frontiere (ed.), Oltre la frontiera: le barriere al riconoscimento del diritto d’asilo in Italia (Milan: FrancoAngeli, 2006), 171. ICS – Consorzio Italiano di Solidarietà and M. S. Olivieri, La protezione negata: primo rapporto sul diritto di asilo in Italia (Milan: Feltrinelli, 2005), 40. Medici Senza Frontiere (ed.), Oltre la frontiera, p. 166. Corte Suprema di Cassazione – Italian Supreme Court of Cassation, Boysele Kumayo v. Italian Ministry of the Interior, n. 907/1999, [2000] 151 Riv. Amm. Rep. It. 229 (8 October 1999).

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1999, on occasion there would be dissenting decisions by administrative courts declaring their own competence,51 but this is an unavoidable scenario in a civil law jurisdiction characterized by the absence of binding precedent. According to the old procedure, therefore, the institution ruling on asylum requests in the first instance was the Central Commission in Rome as established by Article 2 of the implementing regulations of the ‘Martelli’ Act.52 Its composition was determined by a decree of the President of the Council of Ministers, who would nominate a number of civil servants from his or her own department and from the Ministries of the Interior and of Foreign Affairs. The Italian office of the UNHCR could nominate one further advisory member, who was not granted voting rights. Given its structure and affi liation, the Central Commission could be described as an administrative authority dependent on the government.53 (2) The procedure under the ‘Bossi-Fini’ Act On 21 April 2005 another RSD procedure entered into force in Italy. The mechanism was established under the ‘Bossi-Fini’ Act of 2002 mentioned above,54 whose implementing regulations were introduced by the government in September 2004.55 First, seven Local Commissions (Commissioni Territoriali) were established as the new RSD authorities. These are located in Gorizia (responsible for the North-Eastern regions of Italy), Milan (North-West), Rome (Centre and Sardinia), Foggia (Apulia), Crotone (South), Syracuse (Eastern and Southern Sicily) and Trapani (Northern and Western Sicily).56 Each of them is presided over by a senior civil servant of the Ministry of the Interior, and composed of a member of the police forces, a representative of the local administrative authorities, such as a city or county councillor, and a representative from the UNHCR, who now enjoys full voting rights.57 Second, the Central Commission in Rome was renamed the National Commission, and it was assigned a general supervisory role and competence in relation to the revocation of refugee status.58 Third, the 51 52 53

54 55 56 58

See D’Alconzo and others (eds.), Ricerca giuridica, 11 ff. Art. 2, Presidential Decree no. 136 of 15 May 1990. Th is is confi rmed by decisions of the courts which refused it autonomous standing in front of them, but only accepted the Ministry of the Interior as the counterpart in claims against it. See e.g., Corte Suprema di Cassazione – Italian Supreme Court of Cassation, Selimi v. Italian Ministry of the Interior, n. 18549/2006 (sez. I civile), [2007-I] Foro It. 1869 (25 August 2006). Note 28 above. Presidential Decree no. 303 of 16 September 2004, available at above n. 27. 57 Article 12, n. 55 above. Article 1-quater, note 27 above (as amended in 2002). Article 1-quinquies, ibid.

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Act introduced ‘simplified procedures’ allowing for detention of asylum seekers in a vast array of circumstances, despite the declaration in Article 1 to the effect that ‘an asylum seeker cannot be detained solely for assessment purposes to do with the request for asylum’.59 In fact, authorities were permitted to detain asylum seekers in circumstances such as ‘to determine or verify their nationality or identity’, which meant that, on average, 96.4 per cent of asylum seekers were detained during the first year of the new procedures entering into force.60 Unsurprisingly, these provisions were deemed to be unconstitutional by most commentators because they lacked any judicial review procedures and strongly limited the individual’s right to liberty.61 In brief, the procedure worked as follows. 62 Some time after their request, asylum seekers were interviewed by the Local Commission with the assistance of a lawyer, if they so required. The Local Commission subsequently decided on their claim. When it decided not to recognize refugee status, it could nonetheless recommend to the police authorities that a form of subsidiary protection called ‘humanitarian protection’ be granted. Th is consisted of a temporary (one-year) residence permit grounded broadly on the principle of non-refoulement63 and its Soering equivalent.64 Persons granted humanitarian protection were allowed to work and have full access to the Italian national health service, but once the residence permit expired, the procedures for its renewal were 59

60 61

62

63

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See D. Consoli and G. Schiavone, ‘Analisi della procedura semplificata, della procedura ordinaria e delle collegate misure di trattenimento dei richiedenti asilo’, Dir. Imm. Citt., 2 (2005) no.2, 13–27. Medici Senza Frontiere (ed.), Oltre la frontiera, p. 109. Bonetti, ‘Il diritto d’asilo’, pp. 1179 ff.; Neri, ‘Il diritto d’asilo’, p. 1230; Consoli and Schiavone, ‘Analisi della procedura’, 24–5. More diff usely, see Consoli and Schiavone, ‘Analisi della procedura’; G. Vitale, ‘La nuova procedura di riconoscimento dello status di rifugiato: dall’audizione avanti la Commissione territoriale all’impugnativa giurisdizionale’, Dir. Imm. Citt., 4 (2005), 47–65. As enacted in Article 19, statute no. 286 of 25 July 1998 (as amended), available at note 27 above. Article 1-quarter, para 4, note 27 above (as amended in 2002) explicitly mentions Article 3 ECHR. Th is was interpreted as containing a non-refoulement provision by the ECtHR, Soering v. United Kingdom (Plen.), (1989) 11 EHRR 439 (7 July 1989), which dealt with an extradition case; the principle was then extended to migrants and asylum seekers by Cruz Varas v. Sweden (application n. 15576/89), (1992) 14 EHRR 1 (20 March 1991) and a wealth of subsequent decisions: more recently, see Al-Moayad v. Germany (application n. 35865/03), (2007) 44 EHRR SE22 (20 February 2007); Saadi v. Italy (application n. 37201/06) (Merits) (GC), [2008] INLR 621 (28 February 2008).

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quite cumbersome.65 Since the adoption of the ‘Bossi-Fini’ procedure, the number of humanitarian protections granted has notably risen.66 In certain cases the decision of the Local Commission could be reviewed by an ‘Integrated’ Commission consisting of the same Local Commission plus a member of the National Commission. In all instances decisions by Local and Integrated Commissions could be appealed in front of a civil court within fifteen days.67 The appeal would not suspend the effect of a deportation order, and the Act specifically provided that the appeal should be fi led ‘through diplomatic representatives abroad’.68 This norm was strongly criticized because of its unconstitutionality and the possibility that it could lead to serious breaches of Italian obligations under the principle of non-refoulement.69 (3) The new procedure of 2008 arising from EC law A number of concerns relating to the ‘Bossi-Fini’ procedure were addressed when Italy implemented two Common European Asylum System Directives.70 This was done with Legislative Decrees 251 of 19 November 2007 and 25 of 28 January 2008 dealing respectively with qualification and procedures. Further government regulations are expected before the latter provision becomes fully operational.71 Together with a previous decree implementing the Directive on minimum standards for the reception of asylum seekers,72 the legislative decrees constitute a welcome first attempt at implementing a rational systematization of Italian refugee law. Despite formally superseding all previous legislation on the matter, the decrees retained most of the institutional framework of the ‘Bossi-Fini’ procedure. However, the adoption of the EC dichotomy 65 66

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68 69

70 71 72

Medici Senza Frontiere (ed.), Oltre la frontiera, 192 ff. ICS – Consorzio Italiano di Solidarietà and M. S. Olivieri, L’utopia dell’asilo: il diritto di asilo in Italia nel 2005 (Turin: Edizioni Gruppo Abele, 2006), 25 ff.; Medici Senza Frontiere (ed.), Oltre la frontiera, 154 ff. Article 1-ter, para 6 and 1-quater, para 5, note 27 above (as amended in 2002), which finally solved the civil courts vs. administrative courts jurisdictional problem mentioned above. Ibid. Bonetti, ‘Il diritto d’asilo’, p. 1184. See also the opinion of the Constitutional Court on a closely related issue: Corte costituzionale – Italian Constitutional Court, Constitutional legitimacy of a provision regulating the execution of a deportation order, n. 222/2004, [2004] Riv. Dir. Int. 838 (15 July 2004). EC Directives 2004/83/EC of 29 April 2004 and 2005/85/EC of 1 December 2005. Article 38, Legislative Decree 25/2008. As of late April 2009 these were yet to be approved. Legislative Decree 140 of 30 May 2005, which implements EC Directive 2003/9/EC of 27 January 2003.

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between ‘refugee status’ and ‘subsidiary protection’ meant that Local Commissions changed their name to ‘Local Commissions for the Recognition of International Protection’.73 These bodies now have the power to grant subsidiary protection directly, rather than having to invite the police to give ‘humanitarian protection’. Interestingly, however, the ‘humanitarian protection’ provision was not repealed.74 Th is means that in cases where the Commissions decided against granting EC subsidiary protection to an applicant, they continue to be able to recommend that the police authorize residence in Italy on non-refoulement grounds.75 As a consequence, a three-layered system of international protection is now in place in Italy: refugee status, EC subsidiary protection and ‘humanitarian protection’. Moreover, under the new procedures the detention of asylum seekers is limited to a narrower set of circumstances than under the ‘Bossi-Fini’ law.76 Unlike under the latter law, which provided for detention of asylum seekers without travel documents, in this and some other instances asylum seekers will now be ‘hosted’ in special centres and will be allowed to leave during the day.77 Despite the seeming improvement, the provision, at best, is questionable and its actual implications remain to be seen. This is particularly so in light of the fact that, despite their name, ‘hosting centres’ might end up bearing remarkably similar characteristics to night-time detention centres, resulting in significant restrictions of the freedom of movement of the detainees. This obviously depends on the implementing regulations to be approved by the government. But even as it stands now, this provision could be seen as a ‘restriction of personal freedom’ as per Article 13 of the Italian Constitution, which can only be justified ‘by a reasoned warrant issued by a judicial authority’, never by an administrative decision alone.78 The provision would thus be unconstitutional. On a more positive note, appeals against rejection of refugee status or subsidiary protection now automatically suspend the effects of firstinstance decisions.79 In most cases, therefore, asylum seekers will be permitted to stay in Italy until the civil courts have reviewed the decision 73 75 76 78

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Article 4, Legislative Decree 25/2008. 74 Note 64 above and accompanying text. Article 32, para 3, Legislative Decree 25/2008. Article 21, Legislative Decree 25/2008. 77 Article 20, Legislative Decree 25/2008. Article 13, Italian Constitution (English translation note 21 above): ‘No form of detention, inspection or personal search nor any other restriction on personal freedom is admitted, except by a reasoned warrant issued by a judicial authority, and only in the cases and the manner provided for by law’ (emphasis added). Article 35, Legislative Decree 25/2008.

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taken by the Local Commission.80 A remarkable improvement on the previous procedure, it is a welcome result based on long-term campaigning efforts by human rights organizations in both Italy and abroad.

The use of foreign law by authorities deciding on international protection Deciding authorities The preceding discussion of Italian asylum procedures should have clarified that decisions concerning international protection have so far been taken by four types of authorities: (a) The Central Commission for the recognition of the status of refugees, under the 1990 procedure; (b) The seven Local Commissions and the Integrated review version thereof, from April 2005 onwards; (c) Administrative courts reviewing decisions under the 1990 procedure and deciding cases of constitutional asylum; (d) Civil courts deciding cases of constitutional asylum and reviewing decisions by the Central, Local (and Integrated) Commissions under both the old and the post-2005 Refugee Status Determination procedures. While (a) and (b) are administrative authorities dependent on the Ministry of the Interior, (c) and (d) are part of the judiciary, hence independent of any governmental interference.81 The heterogeneity in structure of these two groups warrants their separate consideration.

Administrative authorities: Central, Local and Integrated Commissions Neither the Central Commission, nor the Local or Integrated Commissions appear to have used legal arguments based on foreign case law in their decisions from 1990 onwards. At times they have referred to decisions of other countries in the context of determining the applicability of 80

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A more elaborate procedure to obtain a permission to stay during proceedings is necessary when the asylum application is declared inadmissible (rather than rejected), when the person sought asylum after having been subjected to an expulsion order for different reasons, and in other special circumstances (such as those mentioned in Article 1 F of the Refugee Convention): Article 35, paras. 7–8, Legislative Decree 25/2008. Article 101, Italian Constitution.

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the Dublin Convention or of the Dublin-II Regulation,82 only ultimately to decline competence where a foreign authority had already ruled on the case. However, even on these rare occasions no reference was made to any detail other than the number and source of the foreign decision. It ought to be pointed out that these conclusions only amount to wellinformed guesswork, and are based on the analysis of very sparse data available on the subject and on interviews conducted with key expert practitioners, as demonstrated below. Effectively, the lack of data meant that undertaking quantitative research was difficult, and gathering a statistically meaningful sample of decisions impossible. Despite numerous requests, two of the major NGOs offering legal advice to asylum seekers in Italy refused access to their databases of decisions, presumably on grounds of data protection.83 The NGOs’ refusal to grant access, in itself, is a meaningful finding. Decisions of the Commissions are not reported, nor are they generally the object of legal analysis or research. This seeming gap affects the transparency and accountability of the system, especially when considering that any privacy concerns could easily be solved by anonymizing the data. The only published study to consider the administrative decisions in question was conducted in 2003 under the auspices of the Jesuit Refugee Service – Italy and another NGO operating in Rome.84 Its findings are most relevant here. The study considered 185 cases in which the Central Commission had refused recognition of refugee status between January 2002 and September 2003. It also provided some insight into the structure of these decisions. In most cases the decisions were contained in a single page and followed a predetermined model. While no justifications were provided for decisions recognizing refugee status, refusals of refugee status were succinctly summarized in a few paragraphs, sometimes even in one paragraph only.85 Examples of these provide an enlightening read. For instance, in 2003 asylum was not granted to a Congolese (DRC) citizen, the only motivation being that ‘at the time of his alleged difficulties with the authorities in his country, he duly obtained travel documents from 82

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Decisions are not reported (see below), but this circumstance was confi rmed by most interviewed experts, e.g. Anna Brambilla (telephone interview, 30 July 2007). These were the Italian Council for Refugees (CIR) and ARCI. The former organization never replied when contacted, while officers of the second informally adduced privacy reasons. D’Alconzo and others (eds.), Ricerca giuridica, 149–64. Ibid., 149–51. See also Neri, ‘Il diritto d’asilo’, 1236.

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them, thereby contradicting the grounds for the request of asylum’.86 In another case of 2003, a citizen from Tunisia was refused recognition of refugee status because ‘the movement she adhered to is not legally recognized in Tunisia and the repression exercised by the authorities over members of this group, therefore, does not constitute persecution in the sense of the Geneva Convention’.87 The decisions amount to bewildering legal non sequiturs, yet they are by no means isolated cases. More generally, even where plausible legal reasons were given for the refusal, such as lack of individuality of persecution, they were not discussed in depth. Furthermore, no reference was made to any precedent of the Commission itself, or to legal doctrine or case law of Italian courts. It is then a fortiori extremely unlikely that the Commission ever made reference to foreign law and its doctrines or decisions. As for the Local Commissions, the key experts interviewed confirmed the author’s belief that the decision structure and the overall model had not changed from the old Central Commission’s system. Given that at least in the first few months of application of the 2005 procedure, the time assigned to every interviewee had reportedly increased,88 it would have been reasonable to expect that the new Commissions would, on average, dedicate more time to each claim. Moreover, the presence of lawyers, in theory at least, could have acted as a key factor leading to greater consideration of the legal arguments presented to the new Commissions. However, evidence shows that once asylum seekers were detained, they seldom obtained access to legal assistance at the time of the interview.89 A general observation points to the conclusion that the Commissions appear to be more interested in the factual elements of the asylum claims than with the points of law underlying the cases. The fact that subsidiary protection90 was granted in a number of cases needs to be explored more carefully, despite being a phenomenon that is difficult to analyse conclusively. While subsidiary protection is to be welcomed in principle, it leaves space for doubt that in some cases the use of heightened legal analysis might have led to recognition of refugee status. The denial of refugee status in cases lacking more vigorous scrutiny could be attributed to the structural absence of any such legal analysis. At the same time, the absence of more rigorous standards of scrutiny could also be interpreted as a sign of the Commission’s dependence on the executive, 86 87 88

D’Alconzo and others (eds.), Ricerca giuridica, 161 (author’s translation). Ibid., 162 (author’s emphasis and translation). 89 90 ICS and Olivieri, L’utopia dell’asilo, 62. Ibid., 63. Ibid., 67–8.

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given that its composition leaves ample space for the implementation of government policies on asylum, irrespective of their content, at the expense of legal considerations and international obligations.

Judicial authorities: administrative and civil courts None of the reported administrative or civil court decisions mentioned or made use of foreign law, doctrines and decisions when examining the merits of constitutional asylum law, the Refugee Convention or EC subsidiary protection. As outlined earlier, foreign decisions are occasionally quoted when courts consider issues of admissibility or competence under the Dublin Convention or Dublin-II Regulations. However, the judges do not refer to the legal arguments presented in the decisions, but point to them as obstacles that prevent Italian courts from making judgments in asylum matters. The conclusions reached by the author are based on a combination of quantitative data analysis and interview results, specific to the judicial organ scrutinized. With regard to the Court of Cassation, all available asylum decisions rendered by its civil division were analysed, including those not reported in any legal journal, but available in the internal database of the court. First, it should be noted that the Court of Cassation generally has jurisdictional competence only over the legal (rather than factual) aspect of controversies. This means that it would not, for example, have jurisdiction over the lower courts’ appreciation of the facts of an asylum request, but only with their application of the law. In its history, the court has ruled on asylum law in a relatively small number of cases. The main reason for the dearth of pronouncements is that until the 1997 decision mentioned above,91 administrative courts were primarily in charge of decision-making on refugee status. Moreover, constitutional asylum law was seldom deemed justiciable. Of all 196,272 decisions present in the court’s database since 1990, only 76 deal with asylum or refugee status.92 As many as 69 decisions were adopted from 2004 onwards, of which many 91 92

Note 41 above. Judgments no. 4674/1997; 907/1999; 2790/2002; 4847/2002; 5055/2002; 8067/2002; 9362/2003; 6992/2004; 8423/2004; 8967/2004; 11441/2004; 11716/2004; 13511/2004; 13517/2004; 15492/2004; 15503/2004; 16206/2004; 18434/2004; 23137/2004; 2091/2005; 6077/2005; 11211/2005; 17652/2005; 20468/2005; 23011/2005; 25028/2005; 26278/2005; 26279/2005; 3832/2006; 3845/2006; 3846/2006; 10028/2006; 10028/2006; 12264/2006; 15034/2006; 15035/2006; 15036/2006; 15037/2006; 16948/2006; 18353/2006; 18549/2006; 18620/2006; 18940/2006; 18941/2006; 20546/2006; 21197/2006; 23042/2006; 27422/2006;

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deal with minor judicial competence issues. In fact, if the 477,231 official abstracts (massime) produced by the Court of Cassation concerning its most important decisions since 1946 are considered, instead of looking at full-length decisions, only 21 turn out to be relevant to either constitutional asylum or refugee status, and of those all are taken from post-1997 decisions.93 Not a single one of these decisions either mentions or refers to foreign laws or judgments. In the case of the highest administrative court, the Council of State, its online database reports most decisions rendered from 2000 onwards.94 Of these, only about 50 deal with the right of asylum or with refugee status. After integrating these results with a few earlier relevant decisions considered in the Jesuit Refugee Service study,95 some 61 judgments were analysed as part of the study.96 None made a single reference to foreign law or foreign precedents. Finally, no foreign reference was found in any of the lower civil or administrative court decisions reported in major journals and case law reports, including those specializing in immigration and asylum law. This finding was further confirmed by the interviews conducted, as outlined below. The structure underlying the decisions is one of the ‘rational’ explanations (apart from obvious language barriers) that can be given for the absence of any reference to foreign law. Decisions are often very short, and are frequently concerned with procedural issues or matters of judicial competence. Most of the few decisions that discuss asylum-related legal issues in any depth focus exclusively on the interpretation of Italian norms,

93 94 95 96

2519/2007; 3133/2007; 4162/2007; 4163/2007; 4467/2007; 4629/2007; 4718/2007; 4719/2007; 5155/2007; 5800/2007; 8308/2007; 8309/2007; 8310/2007; 10477/2007; 10492/2007; 10895/2007; 10896/2007; 11916/2007; 11917/2007; 11918/2007; 12473/2007; 12474/2007; 13127/2007; 13138/2007; 13345/2007; 16424/2007; 16425/2007; 16743/2007; data as of early December 2007. Except from an isolated private international law decision, no. 5426/1986. The database is available at: www.giustizia-amministrativa.it/. D’Alconzo and others (eds.), Ricerca giuridica. Judgments no. 1206/1975; 43/1985; 133/1994; 881/1994; 149/1995; 400/1998; 404/1998; 405/1998; 11/1999; 271/1999; 291/1999; 1409/2000; 3545/2000; 5495/2000; 6112/2000; 6710/2000; 2937/2002; 2366/2002; 2437/2002; 3002/2002; 3603/2002; 3604/2002; 3605/2002; 3607/2002; 3874/2002; 3876/2002; 3879/2002; 4336/2002; 4666/2002; 4667/2002; 4668/2002; 4669/2002; 5707/2002; 5708/2002; 5709/2002; 5735/2002; 5749/2002; 5754/2002; 5919/2002; 5935/2002; 5943/2002; 3285/2004; 5531/2004; 8048/2004; 766/2005; 2959/2005; 3835/2005; 6761/2005; 6762/2005; 6763/2005; 6764/2005; 6765/2005; 2868/2006; 4498/2006; 4931/2006; 5605/2006; 7956/2006; 1417/2007; 2533/2007; 2550/2007; 3474/2007; data as of early December 2007.

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such as Article 10 paragraph 3 of the Constitution or the ‘Bossi—Fini’ Act. This is the case also because courts are often called to decide on judicial review cases arising from administrative decisions by the Commissions which, as we saw above, completely lack elaborate legal motivations. The fact that asylum law is not dwelt on at the very first stages of the procedure reverberates up to the higher courts.

The opinion of selected key practitioners The difficulties encountered in obtaining a reasonable sample of decisions by administrative Commissions prompted recourse to other sources, namely a brief consultation with a restricted number of key Italian practitioners in the field of asylum law. The author’s research team contacted around fifteen practitioners, who were selected on the basis of their prominence and long-standing experience in the area of Italian asylum law. Of these, twelve replied to the invitation and provided some interesting insights. The twelve interviewees were a civil servant from the government agency responsible for the organization of welfare services for asylum seekers and refugees, six practising lawyers from different areas of the country, an official of the UNHCR in Italy, a former member of a Local Commission, two NGO officers and a renowned independent expert on immigration and asylum legislation. Indeed, the objective was not to interview a statistically significant number of practitioners. Rather, the interviews served as a way of corroborating the evidence obtained elsewhere with a cursory insight into activities in the field. Moreover, the ‘relative youth’ of Italy as a country of asylum is reflected in the fact that the number of lawyers and NGOs active in the field is quite small in comparison to other European countries. The selected interviewees thus represent a more comprehensive panel than might at first appear to be the case. As expected, none of the key experts interviewed had ever heard of a single case in which Italian authorities had considered foreign precedents or foreign law in their decisions on asylum. When asked why she could not even conceive of considering foreign case law, a Genoa-based lawyer, who in her long career has defended dozens of asylum seekers, eloquently replied: I constantly have a hard time convincing deciding authorities that the European Convention on Human Rights is not a Shakespeare poem, but applicable law in our own legal system. I would never think of using examples or cases from a foreign jurisdiction.97 97

Alessandra Ballerini (telephone interview, 10 December 2007).

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The reluctance of Commissions and judges to apply the European Convention on Human Rights (ECHR), which is perceived as having a ‘foreign element’, was also confirmed by the former member of a Local Commission. The statements made provide graphic examples of the solipsistic nature of the legal discourse inherent in the workings of Italian authorities. The research findings confirmed that even a fully ratified international convention, such as the ECHR, that had been assented to by the Italian parliament, was treated by the judiciary with considerable difficulty. Thus, it cannot be expected that Italian authorities will be engaged in any transnational dialogue. This is the ‘cultural’ element of the findings. On the other hand, the interviews revealed a slightly unexpected trend. Reportedly, in the daily practice of the Local Commissions some regard is given to foreign governmental information concerning the countries of origin of the refugees. Thus, for instance, Italian authorities may refer to English, Canadian or US information on the countries considered. This may in future lead to some degree of traffic of transnational decisions, although this does not seem to be the case thus far.

Conclusion This chapter has sought to analyse key rational and cultural reasons for the lack of engagement by the Italian authorities with any form of transnational legal activity. Administrative Commissions are not usually centred on legal questions relating to the recognition of refugee status or the granting of subsidiary protection, but appear to be more interested in the ascertainment of facts. Their mode of operation does not leave much space for the advancement of legal considerations of a domestic nature, much less for culturally refined comparisons or discussions of precedents in a foreign jurisdiction. On the other hand, when judicial authorities are asked to make decisions relating to asylum, it is mostly for jurisdictional or other minor issues. Decisions are usually short and not diff usely rooted in points of law. When analysing legal problems in depth, they typically refer to the construction of Italian norms, deeming them to be preferable to precedents from a foreign jurisdiction, which are considered unhelpful. Th is is understandable in the case of constitutional asylum, where one does not expect reference to foreign case law to be made in constructing Italian constitutional provisions. But even when discussing the recognition of Convention refugee status, courts only rarely touch upon the interpretation of the meaning of the Refugee Convention, or its scope.

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In fact, as one commentator notes: Italy, not having ever regulated the right of asylum; not having ever had consistent case law on the right of asylum; not having ever experienced a period of time during which its lawyers and scholars seriously addressed in their debates the right of asylum … has so far only given partial and unsatisfactory answers to the problem.98

Indeed, Italian authorities deciding on asylum have so far been too ‘young’ to engage in a legal discourse with their European peers. Moreover, they do not seem to be conscious of the most disputed legal questions arising from instances where the Refugee Convention ought to be applied with some degree of serious consideration. Indeed, the interpretation of the Convention is all too often left to a mechanical exercise, resulting in a single paragraph on a predefined rejection-of-refugee-status model sheet. However, there is one final hint of hope. The picture might be changing. The new procedures introduced in 2008, for the first time, make a passing reference to the transnational dimension of the RSD. In what is perhaps the legislative equivalent of an obiter dictum, the National Commission for the right of asylum has been specifically endowed with the responsibility of liaising with its international peers – or so one would like to think, given the rather obscure formulation characterizing the last phrase of a very long provision dealing with another matter altogether.99

98 99

Cavasino, ‘Un passo indietro’, 322 (author’s translation). Article 5, para 1 (in fine), Legislative Decree 25/2008: ‘The Commission liaises with the Ministry of Foreign Affairs and establishes links of an international nature with relation to its activities.’

6 ‘Thou shalt not judge’… Spanish judicial decision-making on asylum and the role of judges in interpreting the law María-Teresa Gil-Bazo *

Introduction Spain has traditionally been a country of emigration. However, during the mid 1980s, a regular trend of increasing immigration emerged that over time has modified the demographic composition of the country. The number of non-nationals living in Spain has been rising quickly and at 1 January 2009 more than five and a half million foreigners (5,598,691 people) were registered as living in Spain. Of them, 40.18 per cent had received a residence card under European Community (EC) law and 39.73 per cent under the general immigration regime. Accordingly, 20.09 per cent of the foreigners registered in the country at that time were not lawfully resident (although this figure includes lawfully present individuals whose claims were still pending).1 Given that the Spanish census at 1 January 2009 recorded a population of more than forty-six and a half million people,2 about 12 per cent of the Spanish population at that time were * The author is indebted to Professor Bazo-Royo, Professor of Sociology at the University of the Basque Country (Spain) for her invaluable assistance in designing the methodology for this study and her comments on the interpretation of the results. The research on the case law databases was undertaken by Ms Inés Díez de Frutos, Member of the Madrid Bar. The author would also like to thank Virginia Alvarez, Irene Claro, José Alberto Fernández Rodera, José Luis Torrero Chacón, Pablo Zapata Olivares for their generous availability to offer interviews. All views errors remain the author’s. The law is as at 16 March 2009. 1 Sources: Instituto Nacional de Estadística (INE); www.ine.es and Observatorio Permanente de la Inmigración, Extranjeros con certificado de registro o tarjeta de residencia en vigor a 31 de diciembre de 2008 (Madrid, Ministerio de Trabajo e Inmigración, February 2009), 5. 2 The exact figure is 46,661,950; see INE, Avance del Padrón municipal a 1 de enero de 2009. Datos provisionales, press release, 3 June 2009. The provisional data will be confirmed at

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non-nationals. Since then the figure has continued to rise and the number of non-nationals lawfully resident in the country increased to 4,495,349 foreigners lawfully resident at 31 December 2009.3 These figures are relevant, not only as they reveal a clear immigration trend, but also in so far as they include individuals whose grounds for residence arise from a protection claim other than refugee status under the 1951 Convention Relating to the Status of Refugees (Refugee Convention).4 Therefore, individuals granted subsidiary protection or other protection-related statuses are included in these statistics. According to the United Nations High Commissioner for Refugees (UNHCR), Spain saw a decrease in the number of asylum applications in the first half of 2008 by 42 per cent in relation to the same period the year before, amounting to 4,480 applications (among whom Colombian nationals are the single largest group).5 This increase does not necessarily reflect the number of individuals who have lodged an asylum claim, but rather those who are officially admitted into the procedure following an examination of the claim in the so-called ‘inadmissibility procedure’. Against this background, this chapter examines the extent to which the judicial asylum decision-making process in Spain reveals the existence of transnational legal activity between Spain and its EU partners. Given the increase in numbers, as well as the adoption and further transposition of EC law on the matter, the question arises as to whether transnational law is indeed reflected in judicial decisions. This chapter assesses the extent to which reference to foreign (that is, comparative) case law is made in the Spanish judicial decision-making process when interpreting international and EC legislation on refugees and asylum. It also explores possible reasons for the findings. The methodology used includes examination of documentary materials, such as the relevant legislation (domestic, international, and

3

4

5

the end of 2009. The latest official figure was 46,157,822 at 1 January 2008. Real Decreto 2124/2008, de 26 de diciembre, por el que se declaran oficiales las cifras de población resultantes de la revisión del padrón municipal referidas al 1 de enero de 2008; BOE núm 312, of 27 December 2008. Observatorio Permanente de la Inmigración, Extranjeros con certificado de registro o tarjeta de residencia en vigor y Extranjeros con autorización de estancia por estudios en vigor a 31 de marzo de 2009 (Madrid, Ministerio de Trabajo e Inmigración, May 2009), 5. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. UNHCR, ‘Asylum Levels and Trends in Industrialized Countries 2008. Statistical Overview of Asylum Applications Lodged in Europe and selected Non-European Countries’ (Geneva, UNHCR, 24 March 2009).

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EC), judicial decisions and doctrinal views, as well as interviews with relevant actors undertaken over a period of two days in October 2007. A sample of fift y judgments has been analysed corresponding to decisions by the Audiencia Nacional only. The choice of instance is due to the fact that this is the highest judicial body with full competence to examine the merits of an asylum application. Research was undertaken on appeals against the denial of refugee status by Ms Inés Díez de Frutos across existing databases. The fift y judgments have been obtained randomly by selecting the fi rst judgment of every six, ordered chronologically, starting in 2006 (the year of transposition of the EC Qualification Directive6). The analysis that follows, including fi ndings and conclusions, is therefore based on this sample. Anecdotal evidence is provided when appropriate and, in particular, in order to illustrate judicial approaches different from those arising from the sample. On the basis of the analysis of the judgments, interviews were carried out with representatives of the different actors playing a role in the procedure. This includes magistrates (or judges) from the Audiencia Nacional, UNHCR (whose role is established by law), barristers, and Amnesty International. The persons who were interviewed are (in chronological order): Mr Pablo Zapata Olivares, Protection Officer, UNHCR Spain Ms Inés Díez de Frutos, Member of the Madrid Bar Ms Irene Claro, Lecturer in Public International Law (Universidad Pontificia Comillas) and member of Amnesty International Ms Virginia Alvarez, Member of the Madrid Bar and currently at Amnesty International Mr José Luis Torrero Chacón, Magistrate, Audiencia Nacional, Sala de lo Contencioso-Administrativo, Sección Tercera Mr José Alberto Fernández Rodera, Magistrate, Audiencia Nacional, Sala de lo Contencioso-Administrativo, Sección Octava

The interviews addressed the views of the various actors in the Spanish asylum system and the role of the judiciary, including in interpreting international treaties and EC law, making requests for preliminary rulings to the European Court of Justice (ECJ), and referring to judicial 6

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted; [2004] OJ L 304/12.

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decisions from other EU jurisdictions. The interviews also explored possible explanations for the fi ndings arising from the study of judicial decisions on asylum. This chapter first analyses the legal nature of the right to asylum in the Spanish legal order. It then provides an overview of the Spanish asylum procedure, with particular focus on the judicial instance. It further examines the role of judges in interpreting international treaties and EC secondary legislation, as well as the value of jurisprudence and precedent in the Spanish legal order. Finally, it presents the main findings of the study and analyses them against the background presented, suggesting possible explanations for these findings.

Asylum as a subjective right of individuals in the Spanish legal order Spain acceded to the Refugee Convention and to its Protocol7 on 14 August 1978.8 This step was in line with a general process to become a Contracting Party to international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)9 on 27 April 1977,10 and the European Convention on Human Rights (ECHR)11 on 4 October 1979.12 Soon after the promulgation of the Spanish Constitution on 27 December 1978, the government approved a provisional system for the recognition of refugee status and the grant of asylum.13 With this measure, the government sought to fulfil the mandate given by Article 13(4) of the Constitution: The law shall establish the terms under which nationals of other countries and stateless persons shall enjoy the right of asylum in Spain [author’s own translation]. 7

8

9

10

11

12

13

Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267. UNCHR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (UNHCR, Geneva, 1 November 2007), available at: www.unhcr.org/ protect/PROTECTION/3b73b0d63.pdf. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. UNHCHR, ICCPR Status of Ratifications, available at: www2.ohchr.org/english/bodies/ ratification/4.htm. Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS 005. Council of Europe Treaty Offi ce, Chart of Signatures and Ratifi cations , available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF =5/7/2008&CL=ENG. Order of 16 May 1979, BOE núm. 124, of 24 May.

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The Order distinguished between two categories of protected persons, namely refugees under the protection of UNHCR on the one hand, and refugees under the Refugee Convention on the other hand. It further established in Article 1 that persons under the protection of UNHCR could also seek the recognition of their refugee status in Spain. This provisional system was replaced in 1984 by the adoption of the Asylum Act.14 The 1984 Act aimed at fulfi lling the Constitutional mandate. It identified the categories of protected individuals, as well as the status attached. Under the 1984 Act, applying for asylum on any of the grounds established by it conferred on the applicant the right to enter the country as well as the automatic suspensive effect of appeals, thereby allowing applicants to remain in the country during the whole length of administrative and judicial proceedings until a final decision on the merits was reached (Article 5(1)). The 1984 Act established a so-called duality of status: on the one hand refugee status (for individuals under the scope of application of the Refugee Convention), and on the other hand asylum, to be granted both to individuals who meet the requirements of the Refugee Convention, as well as to others that the law identified. While the recognition of refugee status was conceived as a subjective right of individuals who meet the requirements of Article 1 in fulfi lment of Spain’s international obligations under the Refugee Convention, the legal nature of the right of asylum (namely, a protection institution covering a broader category of individuals) was controversial, as a right to be granted asylum was not recognized by any international treaties to which Spain was a party. The question therefore arose as to whether it was a discretionary act of the state or a subjective right of individuals, and the constitutional provision itself was ambiguous as to whether it conferred a fundamental right (to asylum) on individuals or whether it was a discretionary act of the state. The preparatory works on this provision clearly show that there was consensus not to confer a clearly established subjective right to be granted asylum, for reasons that included the geostrategic position of Spain and the fear of a future rise in applications.15 The terms were carefully chosen to confer on the legislator the power to regulate the matter. In this regard, the 1984 Act explicitly stated that asylum was a discretionary act of the 14

15

Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado; BOE núm. 74, of 27 March. For a discussion on this point, see F. M. Mariño Menéndez, ‘Algunas observaciones sobre la futura ley de asilo española’, Revista de Estudios Internacionales, 2 (1981), 955–65; N. Pérez Sola, La regulación del derecho de asilo y refugio en España (Granada, Adhara, 1997), 75–8.

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state, and therefore the question arose as to whether it was excluded from judicial control and other safeguards. To be clear, the discussion on this point refers to the right to be granted asylum, as there was no doctrinal discussion regarding the interpretation of the legal provisions regarding the recognition of refugee status. As stated above, the latter was generally conceived as a right of individuals derived from the Refugee Convention. The distinction becomes relevant in so far as asylum is a far-reaching protection institution, including not only individuals who meet the requirements of the Refugee Convention, but also other categories listed in Article 3 of the Act. These included (apart from recognized refugees under the Refugee Convention or Convention refugees) political offenders, other individuals at risk of persecution, and persons who have committed crimes in order to obtain the recognition of rights and fundamental freedoms protected by the Spanish legal system or to fight against non-democratic systems. Following a debate within the Council of State in 1990, the matter was settled and the view established that the granting of asylum could not simply be an ex gratia concession at the discretion of the determination authorities and outside the rule of law, but rather that the administration must act strictly within the legal requirements and give reasoned motivations for its refusals. While asylum may be a discretionary act of the state, it cannot be arbitrary, and therefore it is subjected to the rule of law, including the principle of legality and the principle of judicial review of the acts of the administration. The right to be granted asylum was thus conceived as an individual subjective right that the administration was obliged to recognize when the individual met the requirements established by law.16 Santolaya further argues that the legal nature of asylum is of constitutional rank; its content is determined by the legislator whose powers to regulate it are severely restricted by other constitutional rights, such as legal certainty, effective access to justice, and, generally, the rule of law.17 Ten years later the asylum system was reformed by a new Asylum Act 9/1994.18 By then, Spain had become a Member of the European Community (1986) and had ratified the Schengen Convention (July 16

17

18

D. Blanquer, Asilo político en España. Garantías del extranjero y garantías del interés general (Madrid, Ministerio del Interior, 1997), 163–72. P. Santolaya Machetti, El derecho de asilo en la Constitución española (Valladolid, Lex Nova, 2001), 53. Ley 9/1994, de19 de mayo, de modificación de la Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado; BOE núm. 122, of 23 Mayo. For an

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1993). The Preamble stated that the deficiencies in the system, as well as new international instruments on the matter, required a revision of the recognition of refugee status and the granting of asylum in order to avoid the fraudulent use by economic migrants of the system for the protection of refugees and others in need of protection. Article 3(1) of the 1994 Act took stock of the jurisprudential debate around the legal nature of asylum and established an unequivocal obligation to grant asylum to any foreigner who met the relevant criteria.19 Interestingly, the law does not limit asylum to individuals within the scope of the Refugee Convention, but rather leaves it open to other categories recognized by international treaties: Refugee status shall be recognised, and therefore asylum shall be granted, to every foreigner who meets the criteria in the international instruments ratified by Spain and in particular, in the [Refugee] Convention] and [its Protocol]. 20

The 1994 Act therefore merges the previously existing duality of status. On the one hand, it retains asylum as an individual right whenever it may be recognized in international instruments and in particular for Convention refugees. On the other hand, it excludes all other protection categories and brings them into the general immigration regime. Having confirmed the jurisprudential construction of the legal nature of asylum as a subjective right of individuals that Spain is internationally bound to protect, its scope of application was therefore restricted to Convention refugees, leaving the door open for future categories of internationally protected persons. For other persons in need of protection, who until 1994 enjoyed asylum, their exclusion from this institution meant that, while the grounds allowing them to reside and to access socio-economic rights find their foundation in the need for protection of the individual in question, the status granted is a general immigration one (which has obvious important consequences in relation to termination and expulsion). 21

19

20 21

overview of the main modification and of the newly established system after the adoption of the Implementing Rules, see C. Gortázar Rotaeche, ‘The Implementation Rules of the New Spanish Asylum Law’, International Journal of Refugee Law, 7 (1995), 506–10. For an analysis of the procedural safeguards that apply in the recognition of asylum as a fundamental right, see C. M. Montero Elena, ‘Garantías procesales del derecho de asilo’ in F. M. Mariño Menéndez (ed.), Derecho de extranjería, asilo y refugio, 2nd edn, (Madrid, Ministerio de Asuntos Sociales, 2003), 803–16. Asylum Act 9/1994, Article 3(1). For an analysis of the rights of non-nationals in the Spanish legal order, see S. García Vázquez, El estatuto jurídico-constitucional del extranjero en España (Valencia, Tirant Lo Blanch, 2007).

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The Spanish asylum procedure Another important novelty of the Act of 1994 is that it introduces a two-tier process by incorporating a so-called ‘inadmissibility’ procedure before an applicant can be formally allowed to enter the procedure and, therefore, formally be considered an asylum seeker for the purposes of accessing all rights and benefits that asylum seekers are entitled to (Articles 4 and 5).22

Admissibility procedure As indicated above, all asylum applications are first examined for admissibility purposes. Article 5(6) of the 1994 Act establishes that the claim is inadmissible whenever any of the following grounds are present: (a) Those foreseen by Articles 1F and 33(2) of the Refugee Convention; (b) No grounds for refugee status are given; (c) The claim is a repeated application of one already refused in Spain and no new grounds exist; (d) The application is based on facts, information or statements which are manifestly untrue, lack credibility or, due to their lack of actual relevance, do not constitute grounds establishing the need for protection; (e) When Spain is not responsible for their examination in accordance with the international agreements to which it is a party; (f) When the applicant has already been recognized as a refugee in a third country and is entitled to reside or to be granted asylum there, or when he or she comes from a third state in which protection could have been sought. As one can immediately see, some of these grounds (such as those in paragraphs (a), (d), and (f)) can only be ascertained in an examination on the merits. In fact, owing to their far-reaching scope, for a number of years up to 95 per cent of all applications lodged were declared inadmissible, which in turn led to an increase in the number of judicial appeals.23 The Supreme Court examined this matter and established that inadmissibility should 22

23

However, this system is challenged by Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L 31/18. In Article 2(c) this instrument defi nes an asylum seeker as ‘a third country national or a stateless person who has made an application for asylum in respect of which a fi nal decision has not yet been taken’. Amnesty Internacional, El asilo en España: Una carrera de obstáculos (September 2001).

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only apply to claims so manifestly unfounded that they do not deserve an examination on the merits. Admissibility does not require full evidence of persecution. It is enough for a claim to be admissible that the account of the persecution not be manifestly false or lacking in credibility. As long as the account is possible and information is offered about the case in question, the application is to be considered admissible, even in the absence of evidence. Evidence of the alleged persecution is relevant during the examination on the merits, and lack of it may result in the refusal of the claim, but this is not to be examined at the admissibility stage.24 The Spanish judicial asylum procedure falls within the general legislation on Administrative Law. Accordingly, decisions of inadmissibility can currently be appealed to the Central Courts competent to examine judicial appeals against acts of the Administration (Juzgados Centrales de lo Contencioso Administrativo), in accordance with Article 9(1) of the Act ruling judicial examination of decisions of the Public Administration (hereinafter, LJ).25 The claim is examined in the abbreviated procedure (Article 78 LJ), and the decision can be further appealed to the Audiencia Nacional (Articles 81 and 9 LJ). Apart from the introduction of the two-tier system, the legal reform introduced in 1994 established two types of procedures: an accelerated one (to be conducted at the border) and an ordinary one (for in-country applications).

Applications at the border Applications lodged at the border are processed through a fast-track procedure governed by Article 5(7) of Act 5/1984 as modified by Act 9/1994 and Article 19 of its 1995 Implementing Regulations (RD 203/1995).26 The application is lodged before the National Police (who are competent to control the entry of persons into Spanish territory) or before the officials of the Spanish Office on Asylum and Refuge (OAR) , who are present only at Madrid airport. The application is then examined by the OAR, who must give a decision within seventy-two hours from the time of application regarding the admissibility of the claim. Should the application be 24

25

26

Recurso 5281/2003, STS 4353/2006, of 30 June 2006, available at: www.poderjudicial.es/ jurisprudencia. Ley 29/1998, de 13 de julio, reguladora de la jurisdicción contencioso-administrativa, BOE núm. 167. Real Decreto 203/1995, de 10 de febrero, por el que se aprueba el Reglamento de aplicación de la Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado, modificada por la Ley 9/1994, BOE núm. 52, of 2 March.

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declared admissible, the applicant is allowed to enter Spanish territory and receives the necessary documentation regarding his or her status as an asylum seeker. Should the application be declared inadmissible, the applicant can lodge an administrative appeal (for the re-examination of the claim) within twenty-four hours, which the government in turn must decide within forty-eight hours. Should the claim be denied, the applicant can lodge a judicial appeal as described above. This appeal has automatic suspensive effect only if the denial is made against a positive recommendation by UNHCR. In all other cases, the individual can appeal for leave to stay, but in practice the authorities may remove him or her before the court has had the chance to pronounce itself on this request. While this seems to have been a systematic practice in the past according to Amnesty International and the Ombudsman’s Annual Reports, an informal agreement appears to have been reached with the administration to ensure that no forced removals of failed asylum seekers would take place before a judicial decision on the suspensive effect of the appeal.

In-country applications Individuals who find themselves in Spanish territory may apply for asylum at any time before the expiration of their entitlement to stay in Spain or, if they have entered the country without the necessary permits, they must apply within one month of their irregular entry.27 The application must be lodged before the OAR if the applicant is in Madrid, or before the National Police anywhere else in the country, and it will be examined in the ordinary procedure (rather than a fast-track one). An interview is conducted with the applicant and the proceedings are forwarded to the OAR.28 UNHCR must be informed of all applications and its recommendations are to be sought. The OAR must make a decision within seventy days of the application. In the absence of a decision, the rule of ‘positive administrative silence’ applies and the application is considered admissible. Should the application be declared inadmissible, the applicant may lodge administrative and judicial appeals as described above. Examination on the merits An examination on the merits takes place in an ordinary procedure and can lead to the following outcomes: 27

Article 7 RD 203/1995

28

Article 8 RD 203/1995

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1. Recognition of refugee status and granting of asylum.29 2. Refusal of the claim, which is served together with an order to leave Spanish territory within fifteen days of notification.30 This order cannot be executed, so should the individual not leave the territory voluntarily, an expulsion procedure can be initiated. 3. Refusal of asylum and grant of a permit to stay in Spain on other grounds.31 The refusal of recognition of refugee status or the grant of a status other than asylum can be appealed to the Audiencia Nacional32 within two months of notification, in the procedure established by Articles 43–77 LJ. A denial of this appeal can be further appealed in casación before the Supreme Court33, which in turn must be based exclusively on one or more of the following grounds34: (a) Abuse, excess or defective exercise of jurisdiction; (b) Lack of competence or lack of appropriate procedure; (c) Breach of formal requirements relating to the judgment or the procedural guarantees, provided that this has led to the party being unable properly to defend their case; or (d) Breach of the law or jurisprudence applicable to deciding the matters under examination. Therefore, while the Supreme Court has decision-making powers in asylum cases, it is in the Audiencia Nacional that interpretation of the grounds for refugee status and any other relevant legal interpretation is made. For these reasons, this chapter examines a sample of decisions reached by the Audiencia Nacional, rather than the Supreme Court.

The Spanish legal order: the role of judges in interpreting international treaties and the value of jurisprudence and precedent According to Article 96(1) of the Spanish Constitution, international treaties which have been signed and ratified in accordance with the law shall be part of the internal legal order once they are officially published in Spain. Accordingly, they can be directly invoked before national courts by the parties without the need for prior domestic legislation incorporating them into the legal order. This applies to all relevant treaties, including the 29 32

30 31 Article 29 RD 203/1995 Article 31 RD 203/1995 Article 17 Aliens Act 33 34 Article 11(1)a LJ Article 86 and 12(2)a LJ Article 88 LJ

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Refugee Convention, the European Convention on Human Rights and the Treaty Establishing the European Community (TEC).35 Given that the principle jura novit curia applies to all spheres of judicial action, judges are required to identify and apply all relevant norms, including those in international treaties and EC secondary legislation, even if the parties have not invoked them. Therefore, while it is for the applicant to establish a credible claim and provide sufficient evidence, the role of judges in identifying, interpreting and applying the applicable law is crucial. Given the limited value that judicial precedent and jurisprudence have in the Spanish legal order, the interpretation of international treaties and other relevant norms needs to be determined on a case-by-case basis. Article 1(1) of the Spanish Civil Code establishes that the sources of the Spanish legal order are law, custom and general principles. Therefore, judicial jurisprudence or precedent does not constitute a source of law. Nevertheless, Article 1(6) of the Spanish Civil Code establishes that jurisprudence shall complement the legal order with the repeated doctrine established by the Supreme Court when interpreting the law, custom and general principles. Therefore, jurisprudence, understood as the repeated interpretation of the sources of law by the Supreme Court, has some legal value in so far as it complements the Spanish legal order. In the absence of further legislation on the matter, it is for the Supreme Court itself to establish the requirements for jurisprudence to be ascertained. Jurisprudence requires as a minimum the existence of two judgments interpreting a norm in the same way. However, once the existence of jurisprudence on a particular point of law is ascertained, the interpretation of the norm by an inferior court in a manner contrary to that jurisprudence does not make the decision void, but rather constitutes a ground for appeal in casación before the Supreme Court. And it will be for the Supreme Court itself to confirm that jurisprudence or to give a different interpretation of the norm at any time. This apparent lack of legal certainty is tempered, however, by the application of the general principles underpinning the legal order. In fact, given the prohibition of arbitrary action by state bodies, should the Supreme Court decide to modify its established jurisprudence, it must do so by providing reasons for the interpretation. A related concept is that of precedent, which refers to the legal reasoning given by the Supreme Court which does not satisfy the requirements to be considered. Precedent has no normative value and therefore, while 35

[2002] OJ C325/33.

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it may be invoked in support of a particular line of argument, it does not bind the courts. Within this context, it is not difficult to see why case law is rarely (if ever) used in judicial proceedings. In fact, in the judgments examined, while some references to Supreme Court jurisprudence appear in relation to the relevant points, such as standards for the admissibility of an asylum claim,36 or in relation to the application of interim measures,37 no reference is made to decisions by lower courts or by the Audiencia Nacional itself. No reference either can been found to any decisions or legislation of foreign jurisdictions.

Analysis of case law and main findings The analysis of the sample shows that reference is often made to the Refugee Convention, the ECHR and Spanish relevant legislation. However, no references could be found to case law interpreting these instruments, either from other jurisdictions or from the Spanish Supreme Court.38 The decisions considered all follow a very similar structure, offering an overview of the facts, a mere reference to the applicable instruments, and a statement that the facts do not show that the individual falls under the relevant legislation, and that therefore recognition of refugee status is to be denied. While judgments may state that the claim needs to be considered in relation to the above-mentioned instruments, no further reference or analysis is made to specific points of law that may apply to the case in question and the criteria or standards that need to be ascertained. Therefore, there is no effective analysis as to whether the facts actually meet (or not) the standards of the relevant provision. In this context, serious issues arise as to the lawfulness of judicial decisions that do not enter into an effectively reasoned examination of the legal provisions applicable and the legal relevance of the facts proven. For instance, in a decision of July 2006 adopted by the Audiencia Nacional,39 it is stated that sufficient evidence of ‘persecution and a well-founded and rational fear’ must be provided. It then goes to say that ‘a number of circumstances concur to 36 37 38

39

Recurso 32/2007, AN judgment of 3 May 2007. Recurso 171/2006, AN judgment of 8 November 2006. For a discussion on the interpretation to be given to the relevant international and domestic legislation within the Spanish legal order, see R. K. Polo Guardo and V. Carmona Muñoz (eds.), Guía sobre el derecho de asilo (Madrid, Ministerio de Trabajo y Asuntos Sociales, 2005), 27–68. Recurso 409/2004, AN judgment, of 19 July 2006.

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determine that the applicant’s account cannot be considered credible’ and the claim is therefore rejected. The judgment does not elaborate on what constitutes ‘persecution’ or a ‘well-founded and rational fear’, either by directly invoking and interpreting the relevant international or domestic legislation or by reference to jurisprudence, precedent or other judicial decisions. And while it rejects the claim as not meeting the standards of credibility, it does not elaborate on what criteria apply for a claim to meet such standards. Furthermore, despite the fact that according to Article 38 of the EC Qualification Directive the transposition period expired on 10 October 2006, reference to this EC Directive is found in only one case – and no references to other pieces of EC legislation were found in the sample. The EC Qualification Directive is thus referred to in a judgment of May 2007, but only in order to state that nothing in this instrument confers a right on the applicant to be granted asylum without establishing first that he or she meets the criteria established by the law. Surprisingly, no reference is made to the criteria in the Directive, despite the implicit recognition that this instrument is a source of legally binding rules regarding the criteria and interpretation for the recognition of refugee status.40 This judgment also invokes the case law of the European Court of Human Rights ‘in a judgment of 30 October 1991’ (for which no further reference or citation is given), to the effect that states have the right to control the entry into and stay of non-nationals in their territories. Furthermore, while the claim is rejected on credibility grounds, no reference is made to Article 4 of the Directive on the assessment of facts and circumstances, which provides procedural standards for the assessment of the claim, including on credibility grounds. The lack of reference to other EU countries’ jurisprudence needs to be examined in light of another important finding, namely that all decisions in the sample were reached only on the assessment of the credibility of the claim, rather than on interpretation of the criteria that need to be met. In all cases but one41 the appeal was refused. The interviews confirmed that, in fact, the vast majority of judicial decisions are determined on the basis of credibility. All individuals interviewed seem to agree broadly on this point. This worrying absence of an interpretation exercise may contribute to explain the absence of transnational legal activity, including the absence of reference to foreign case law. The only evidence found of some 40 41

Recurso: 287/2006, AN judgment, of 18 May 2007. Recurso: 225/2001, AN judgment, of 27 June 2006.

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transnational activity in the interpretation of legislation regarding the recognition of refugee status appears in a judgment of December 2006. However, this judgment did not come out in the sample, and therefore it only constitutes anecdotal evidence. In this decision, the Audiencia Nacional referred extensively to the criteria in the EC Qualification Directive, notably to the concept of ‘membership of a particular social group’. The decision examined the facts explicitly in relation to Articles 2, 10(d) and 9(1) of the EC Qualification Directive, which were partly reproduced.42 This judgment is the only example found which examines transnational law, and it is believed that it constitutes the only instance so far of a detailed examination of an instrument of EC law. The analysis of the sample therefore shows a lack of interpretation of the criteria for refugee status in the relevant legislation, as well as a lack of argumentation regarding standards of evidence. Both criteria as well as the standards of evidence are now governed by EC law and therefore these norms are legally binding on the Spanish legal order. As pointed out above, a further obligation exists on judges to identify and apply the law, and to do so by providing sufficient reason, in order to meet the standards of the rule of law and the prohibition of arbitrary action on the part of the state. As to the possible reasons for this bleak picture, a rational account clearly emerges from the sample and the interviews, as one considers the role of the different actors in the procedure, notably judges, lawyers and international organizations. Magistrates (or judges) in the asylum decision-making process in the Audiencia Nacional belong to the Contencioso Administrativo area of this Court. They are not specialized judges on asylum matters, but rather have jurisdiction with regard to any judicial claim against the administration. This approach has a positive reading, in so far as it brings asylum procedures within the general process for the judicial review of the acts of government. It therefore offers asylum seekers (the administrados) the same protection and procedural safeguards that Spanish nationals enjoy in their relations with the administration. However, it has been suggested that asylum matters may not be given sufficient attention as they compete with a great variety of claims dealing with other matters. Each magistrate is rapporteur in approximately three hundred cases a year, involving a range of complex cases, for instance collective action against the National Health System. Moreover, little administrative support is provided, and magistrates write 42

Recurso: 8233/2003, AN judgment, of 14 December 2006.

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the judgments themselves. Within this context, asylum appeals seem to be perceived as a minor matter, relatively speaking, and while it is the responsibility of judges to identify and apply the law, the lack of sufficient means described above may explain the prioritization of resources at judicial level. Therefore, examination of the role of other actors seems appropriate. It is generally agreed that very little legal argumentation is offered by the applicants’ lawyers themselves in a significant number of cases. Therefore, while the judges may not have engaged in any sophisticated legal reasoning, the lawyers acting on behalf of asylum seekers seem not have done so either. As a possible explanation, it has been suggested that a high proportion of all cases go through the administrative procedure in the absence of legal assistance and therefore of legal argumentation presented on behalf of the applicant. In relation to this point, it has also been suggested that, in a significant number of cases, lawyers acting on legal aid are appointed only at the time of judicial appeal and it is at that moment that they receive the fi le from the OAR. While they still have time to develop legal argumentation at this instance, it has been suggested that lawyers may not always interview their clients and that therefore the legal argumentation may be based only on the information contained in the administrative fi le. Explanations for this lack of communication between lawyers and asylum seekers have been offered, including the fact that the clients’ whereabouts may be unknown in a significant number of cases (for instance, if they applied for asylum at the Spanish enclaves in North Africa (Ceuta and Melilla) and were eventually allowed access to the mainland). The fact that under the Spanish legal system traditionally only lawyers who are members of the Madrid Bar have been allowed to act before the Audiencia Nacional has also been suggested as a possible explanation for the lack of communication (even though the system currently allows more flexibility), if clients reside in a province other than Madrid and their lawyers transfer the fi le to a colleague in Madrid. As to the role of international organizations, as mentioned above, UNHCR has an important standing during the administrative procedure, both at the admissibility stage and on the merits. However, once UNHCR expresses its views on the case, it does not seem to intervene regularly before judicial instances. It appears to be generally understood that judicial requests to UNHCR or other organizations, such as Amnesty International, are made to provide supporting evidence for the account

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made by the author as to the individual risk of persecution, and that this is usually something which cannot be provided. In summary, there seems to be general consensus that the judicial side of the asylum procedure suffers from a lack of legal argumentation by all parties involved, and that, therefore, there is little room for reference to foreign law. Apart from the general absence of argumentation by all parties, other reasons given for the lack of transnational legal activity include the lack of resources. The workload of the magistrates and the little support they receive have been identified as preventing further research on judicial decisions in other jurisdictions. And even if time and support were not an issue, while magistrates have access to a variety of legal databases, these do not seem to include information regarding transnational decision-making. Magistrates are aware of the existence of the International Association of Refugee Law Judges (IARLJ), have sometimes been invited to attend their meetings and value the benefits of such collaboration. However, it has been suggested that the cost of participating in these events (in both monetary and time terms) is perceived as disproportionate, in a context of a large backlog of cases, including very complex administrative law matters.

Conclusion Th is chapter examined the way in which the asylum judicial decisionmaking process in Spain reflects the existence of transnational legal activity. A sample of fi ft y judgments was analysed corresponding to decisions by the Audiencia Nacional. Th is analysis was complemented by interviews with representatives of the different actors who have a role in the procedure, including magistrates from the Audiencia Nacional, UNHCR representatives, barristers and Amnesty International members. It has been found that reference to international, EC and other forms of foreign law rarely occurs in the Spanish judicial decisionmaking process. The analysis shows that very little interpretation of relevant legal criteria, international and domestic, takes place and that the vast majority of decisions are made on credibility grounds. Explanations for the lack of judicial interpretation include the limited value of jurisprudence, the lack of legal argumentation by all parties involved at any stage of the procedure, the lack of effective resources in support of the judicial

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instances, and the perception that asylum is a minor matter in the broader context of judicial review of government action. The fi ndings show a worrying picture in so far as individuals have a subjective right to be granted protection as a matter of international, EC and Spanish legislation, and yet do not always seem to have their claims effectively examined.

7 The British judiciary and the search for reciprocal relations with its continental partners Hélène Lambert, with the assistance of R aza Husain *

Introduction The underlying theme of this volume is that of a transnational dialogue between refugee law judges in the European Union (EU). Most academics and practitioners agree that the dialogue of judges has become an important reality in the area of public law,1 but in the United Kingdom (UK) it is a rather new phenomenon. Until the Practice statement of the House of Lords of 1966, ‘dialogue with (living) academics’ was forbidden.2 A first step in that direction can be traced back to the mid 1970s, when leading British judges began to publish academic papers. The significant point here is that many of these papers offered comparisons with other jurisdictions.3 This trend gained real momentum during the 1990s, when Lord Goff of Chieveley (the then Senior Law Lord) made * Thanks to Dr Hugo Storey (Senior Judge, Asylum and Immigration Tribunal) for his consistent help and strong support during this project. Thanks also to Nick Oakeshott (Refugee Legal Centre now at Asylum Aid) for agreeing to be interviewed; and to Karen Wylie, Kathryn Howarth and Patricia Ypma for their assistance in carrying out the survey of the English and Scottish case law. The law is stated as at 1st May 2009. 1 B. Stirn (Judge at the Conseil d’État), comments/speech at a one-day conference at the British Institute of International and Comparative Law: ‘European Influences on Public Law: 5 years of the HRA 1998 in English Law and Recent Developments in France’ (October 2005). 2 B. S. Markesinis and J. Fedtke, ‘The Judge as a Comparatist’, Tulane Law Review, 80 (2005), 11–167, at 16. 3 E.g., Lord Scarman’s Hamlyn Lectures on ‘English Law – The New Dimension’ (1974), and Mr Justice (now Lord) Sedley, ‘Human Rights: A Twenty-First Century Agenda’, Public Law 1995, at 386.

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quite extensive use of continental materials, and started holding regular meetings between senior judges from different European countries with the aim of discussing developments in the law.4 Lord Goff ’s commitment to the use of comparative law in his judicial work was supported by many other leading judges, such as Lord Cooke of Thorndon, Lord Woolf and Lord Bingham. The latter in particular saw the use of case law from other European countries, ‘whatever their legal tradition’, not so much as ‘establishing a new tradition but reverting to an old and preferable one’.5 So, many leading British judges recognize the benefits of using foreign law (from both common and civil law traditions) in the area of public law. However, in the area of refugee law, foreign law is still primarily understood to mean the law of other Commonwealth jurisdictions, in particular Australia, New Zealand and Canada. Th is affi nity with foreign jurisprudence from Commonwealth courts is due no doubt to shared legal cultures and a historical common allegiance to the Privy Council.6 The Tolley’s Immigration, Asylum and Nationality Law Journal and the International Journal of Refugee Law have assisted this process of referring to foreign cases by publishing key decisions from these jurisdictions.7 Th is chapter first discusses the concept of asylum and the asylum decision-making process in the UK, with a particular emphasis on the appeal system. It then surveys the case law in order to identify if, where and when reference happens in refugee law cases between British courts and other Europeans courts. Finally, it examines two basic jurisprudential explanations for the volume and direction of this transnational traffic of legal ideas: a rational account based on language, time constraints and access, and training, and a cultural account based on judicial perceptions about the (non-) usefulness of foreign law. 4

5

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7

M. Andenas and D. Fairgrieve, ‘Introduction: Finding a Common Language for Open Legal Systems’, in G. Canivet, M. Andenas and D. Fairgrieve (eds.), Comparative Law before the Courts (London: British Institute of International and Comparative Law), at: www.iarLj.org. Sir T. Bingham, ‘ “There is A World Elsewhere”: The Changing Perspectives of English Law’, International and Comparative Law Quarterly, 41 (1992), 513–29, at 527. Decisions from the US Board of Immigration Appeals and the Circuits of the Court of Appeals have also been cited in refugee law cases but they have generally been found less useful because they are less developed and more insular. M. Symes and P. Jorro, Asylum Law and Practice, (London: Lexis-Nexis, 2003), at para. 1.12. See also, REFWORLD (available at: www.unhcr.org/cgi-bin/texis/vtx/refworld/ rwmain) and the database of the International Association of Refugee Law Judges (available at: www.iarLj.org).

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Conception of asylum and the decision-making process in the United Kingdom The UK ratified the Refugee Convention in 1954 but did not incorporate the Convention into national immigration law until 1993. 8 Until then, refugees and asylum were not mentioned in the immigration statutes, but the entry and stay of asylum seekers in the UK were regulated by the Immigration Rules (that is, administrative rules in the practice of immigration control laid before Parliament).9 These rules have the force of law in the immigration appellate system, and domestic public law also requires adherence to them. The Asylum and Immigration Appeals Act 1993 introduced dramatic changes in ensuring a right of appeal on Refugee Convention grounds in relation to all administrative immigration decisions which the Home Secretary could take in the context of a claim. Previously, where there was no right of appeal (for example, in ‘port’ cases), the sole recourse was judicial review, where the legality (but not the merits) of the underlying decision was in issue. The 1993 Act, in particular, imposes a general obligation on the Home Secretary to act in accordance with the Refugee Convention.10 However, as noted above, even following the 1993 Act, asylum seekers still could not appeal against refusal of asylum or refugee status as such, but rather their appeal would only lie against an immigration decision, for example refusal of leave to enter or deportation.11 The Nationality, Immigration and Asylum Act 2002 introduced for the fi rst time a discrete right of 8

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11

Under settled UK law, an international treaty can only form the source of directly enforceable rights and obligations once it has been incorporated and so transformed into domestic legislation. See sections 3–4, Immigration Act 1971. Immigration and asylum issues have been linked to one another since the adoption of the Aliens Act 1905, described as a major breakthrough in the establishment of an administrative and legislative framework for deciding refugee cases. D. Stevens, UK Asylum Law and Policy – Historical and Contemporary Perspectives (London: Sweet & Maxwell, 2004), at 42. Laws LJ in the Court of Appeal in European Roma Rights Centre v. Secretary of state for the Home Department and Immigration Officer Prague, UNHCR Intervening [2003] EWCA Civ 666, [2004] QB 811, para. 99: ‘It is commonplace to suppose that the 1951 Convention has been “incorporated” in domestic law. But this is in context a loose expression.’ An exception is when a person has been granted humanitarian protection or discretionary leave. Saad, Diriye and Osorio v. Secretary of State for the Home Department, Court of Appeal, [2001] EWCA Civ 2008, [2002] INLR 34. H. Lambert, ‘Asylum, Exceptional Leave to Remain and the Right of Appeal’, Oxford University Commonwealth Law Journal, 3 (2003), 127–35.

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appeal against the refusal (in certain circumstances) to recognize a person as a refugee per se.12 Since October 2000 – the coming into force of the Human Rights Act – the ‘one-stop procedure’ requires that any grounds for permission to remain in the UK other than asylum, such as human rights grounds, are considered alongside a claim for asylum.13 And in April 2003 – in preparation for the adoption of the EC Qualification Directive 2004/83 – ‘exceptional leave to remain’ was abolished and replaced by two new statuses: humanitarian protection14 and discretionary leave.15 In addition, ‘leave outside the rules’ may be granted for non-asylum applications. In summary, asylum provisions in the UK are an integral part of the law relating to non-citizens (that is, immigration law). Nonetheless, strong conceptual links exist between the right of asylum and international law to the extent that the domestic provisions on asylum are presented as an application of the Refugee Convention and the European Convention on Human Rights (ECHR), and this is clearly illustrated by the practice of ‘humanitarian protection’. The Home Secretary (the Secretary of State for the Home Department) has further retained the power to allow some of those who fall outside the humanitarian category to stay on an exceptional, discretionary basis.16

Initial decision Formally speaking, the Home Secretary is responsible for the determination of asylum claims. In practice, however, it is the Asylum Directorate (at the Border and Immigration Agency of the Home Office) which administers the asylum process. Initial decisions are made by caseworkers or immigration officers who are trained in asylum law. A decision is made by assessing the contents of the Statement of Evidence Form (SEF), the interview and any other documents provided by the applicant. This information 12

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In Saad, Diriye and Osorio v. Secretary of state for the Home Department, Court of Appeal, [2001] EWCA Civ 2008, [2002] INLR 34, the Court of Appeal expressly preserved the possibility that in appropriate cases it may be for the courts to recognize refugee status. See further, N. Blake and R. Husain, Immigration, Asylum and Human Rights (Oxford University Press, 2003), 18–63. ‘Humanitarian protection’ protects asylum seekers against return to a country where they may face a real risk of treatment contrary to Articles 2 and 3 ECHR (except for medical condition). ‘Discretionary leave’ applies to persons who are at risk of being returned to a country in violation of Article 8 ECHR, in violation of Article 3 ECHR (medical cases), or in violation of other protected human rights (but only in very limited circumstances). Available at: www.ukba.homeoffice.gov.uk/asylum.

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is assessed in light of country reports and documentation compiled by the Country of Origin Information (COI) service (within a section of the Home Office). Under the Nationality, Immigration and Asylum Act 2002, an independent Advisory Panel on Country Information was established to consider and make recommendations to the Secretary of State for the Home Department about the content of country information. There are three possible outcomes of an initial asylum application: refugee status is granted (that is, five years’ limited leave to remain initially), an alternative form of protection is recognized (for example, ‘humanitarian protection’ – five years’ limited leave to remain initially – or ‘discretionary leave’ – three years’ limited leave to remain initially), or the application is rejected.

Appeals In April 2005 (with the coming into force of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004), the single-tier Asylum and Immigration Tribunal (AIT) replaced the two-tier immigration appellate authority which had existed for over thirty years. The AIT hears appeals against decisions made by the Home Office on asylum, immigration and nationality matters. Appeals rights are denied to individuals detained under the fast-track procedure, individuals detained because their application is clearly unfounded, individuals identified as third country cases, and individuals who have benefited from an earlier right of appeal. Also if the person’s expulsion from the UK is in the interest of national security, a right of appeal may instead lie with the Special Immigration Appeals Commission (SIAC). Appeals at the AIT are heard by one or more immigration judges, who are sometimes accompanied by non-legal members of the tribunal. Immigration judges and non-legal members are appointed by the Lord Chancellor, and form an independent judicial body. A full hearing takes place following a Case Management Review which confirms that the case is ready for appeal. Hearings are attended by the appellant, their legal representative and a representative from the Home Office (a Home Office Presenting Officer). Witnesses may also attend the hearing, as well as an interpreter appointed by the court if needs be. Appeals are heard by an immigration judge (or panel) who will decide whether to allow the appeal or to dismiss it.17 The decision is provided in writing (and is called a ‘determination’). ‘Reconsideration’ of the determination by a senior 17

In Bugdaycay v. Secretary of State for the Home Department [1987] AC 514, the House of Lords held that asylum claims involved matters of such great importance that judicial bodies should subject each case to ‘the most anxious scrutiny’.

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immigration judge (and possibly the AIT) is possible on the ground that the judge or panel has made an error in law. If reconsideration is refused, then there is a right to request that a High Court Judge considers the case on paper. There is no right of appeal against a negative decision of a High Court Judge.18 It is possible to bring a judicial review against the underlying decision of the AIT in extreme cases of exceptionality (for instance, in cases of bias). Whether or not judicial review jurisdiction is conventionally available was recently decided in the negative.19 Unlike an appeal, where the merits of the underlying decision can be considered, judicial review only examines the legality and fairness of the decision reached. Negative decisions following reconsideration20 can be appealed (with leave) to the Court of Appeal on a point of law. A further appeal to the House of Lords can be brought (with leave); this is the highest court in the UK (it has now been reconstituted and renamed the ‘Supreme Court’). Asylum seekers are also entitled to apply to the Administrative Court for judicial review (with permission) of decisions taken during the course of the asylum process. But in relation to decisions of the AIT, on present authority, the Courts have held that statutory review on paper is the appropriate remedy, and only exceptionally will judicial review lie. There is no separate system of administrative law in the UK, and both the executive and the individual are subject to the rule of law administered by the ordinary courts (that is, High Court, Court of Appeal and House of Lords) . Publicly funded legal advice and representation are available throughout the process for asylum seekers who either have no income or a very low income. The Community Legal Service Fund is administered by the Legal Services Commission, but from 1 April 2004 publicly funded legal representation is no longer available at the asylum interview stage; instead, the interview may be recorded at the request of the claimant.21

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With effect from 15th February 2010, the AIT will be abolished and its functions transferred to the First-Tier Tribunal. See: www.tribunals.gov.uk. BF (Mongolia) v. Secretary of State for the Home Department, House of Lords Business, Session 2007–2008, Judicial Business, 18 January 2008 (available at: www.publications. parliament.uk/pa/ld200708/minutes/080121/ldordpap.htm). The House of Lords invited the Secretary of State’s objections to the grant of permission to appeal. Leave to appeal was refused. Or in cases where reconsideration is not possible, that is where the AIT sat as a panel of three or more legally qualified members when it heard the original appeal. G. Clayton, Immigration and Asylum Law, 3rd edn (Oxford University Press, 2008) at p. 416.

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As part of its five-year strategy for immigration and asylum, the British Government announced, in 2005, the New Asylum Model (NAM) according to which asylum claims are to be allocated to a particular segment following screening (such as ‘third country cases’, ‘minor’ or ‘late/opportunistic’). The Immigration, Asylum and Nationality Act 2006, among other measures, requires the implementation of NAM, and since 5 March 2007 all new asylum applications have been dealt with by the Home Office through the NAM. The novelty is that one person, called a Case Owner, deals with the same case from start to finish; that is, they interview the person seeking asylum, make the asylum decision, present any appeals if the case is refused, maintain ongoing contact with the applicant, provide and manage support, help to organize any voluntary returns or removal back home, and help with access to integration programmes in the UK if a person is granted refugee status. The aim is to deal with and conclude an asylum case within six months.

The use of foreign law in the British courts: empirical focus The search for an authority (or subsequent state practice)22 is an important component of a court’s decision. To this end, the British courts have often explicitly referred to Anglo-Saxon jurisprudence in asylum cases, in particular to decisions from Canada, New Zealand, Australia and the USA when interpreting certain provisions of the Refugee Convention.23 They have also increasingly relied upon the jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Former Yugoslavia, and the European Court of Human Rights (ECtHR).24 They have also often drawn on distinguished academic writing, in particular the work of Professors Guy S. Goodwin-Gill and James C. Hathaway.25 22 23

24

25

Article 31(3)(b), Vienna Convention on the Law of Treaties, 1969. E.g., Lord Bingham’s opinions in Sepet v. Secretary of State for the Home Department [2003] 1 WLR 856 and Januzi v. Secretary of State for the Home Department [2006] 2 AC 426, and Lord Steyn’s opinion in Islam v. Secretary of State for the Home Department [1999] 2 AC 629. E.g., R (Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368; R (Limbuela) v. Secretary of State for the Home Department, R (Tesema) v. Secretary of State for the Home Department , R(Adam) v. Secretary of State for the Home Department[2006] 1 AC 396; Jones v. Ministry of Interior [2007] 1 AC 270; and A and others v. Secretary of State for the Home Department (No. 2) [2004] EWCA Civ 1123, [2005] 1 WLR 414. E.g., K v. Secretary of State for the Home Department [2007] 1 AC 412; Horvath v. Secretary of State for the Home Department [2001] 1 AC 489; Islam v. Secretary of State for the Home Department [1999] 2 AC 629.

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However, judges only rarely refer to jurisprudence from other EU member states (‘continental jurisprudence’). This section focuses on three empirical questions raised in this volume: (1) What is the precise extent of the use of national jurisprudence from other EU countries by British judges in refugee law cases? (2) When does such use happen? And (3) where does it happen? In order to answer these questions, an in-depth and systematic qualitative case-study of all published court decisions in England and Scotland (until January 2008) was carried out through www.bailii.org and www.ein.org.uk.

House of Lords The House of Lords has referred explicitly to continental jurisprudence in two cases, albeit not asylum cases: A (No. 2) – the torture case, and Jones – the immunity case. In A (No. 2),26 the question for consideration by the House of Lords was whether the SIAC could receive evidence which has or may have been procured by torture inflicted by officials of a foreign state without the complicity of the British authorities. German jurisprudence came to play centre stage for both the majority and minority on the standard of proof issue (in particular the views of Lord Bingham as against those of Lord Hope). Lord Hope, in particular, relied on a German case27 in support of his approach to Article 15 of the UN Convention Against Torture, which favoured the exclusion of any statement that ‘is established’ to have been made under torture. Jones v. Ministry of Interior concerned immunity and universal civil jurisdiction.28 Lord Bingham, in particular, referred to a ‘wealth of authority’, including cases from the highest courts in Germany, Italy, Greece, the USA, Canada and Ireland, as well as cases from the International Tribunal for the Former Yugoslavia, the ICJ and the ECtHR.29 However, the usefulness of some of this foreign material was found to be rather limited. Looking specifically at a US authority and a decision of the Italian Court of Cassation, he explained: These are interesting and valuable materials, but on examination they give the claimants less support than at first appears.30 26

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A and others v. Secretary of State for the Home Department (Conjoined Appeals) [2005] 3 WLR 1249. El Motassadeq, Hanseatic Court of Appeals, Criminal Division, Hamburg, 14 June 2005, NJW 2005, particularly paras. 122 and 125. [2007] 1 AC 270. 29 Ibid., at para.10. 30 Ibid., at para.17.

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And he went on to dismiss US authorities on the ground that they did not as yet ‘express principles widely shared and observed among other nations’.31 He also dismissed the decision of the Italian Court of Cassation (in Ferrini v. Federal Republic of Germany) because it: cannot in my opinion be treated as an accurate statement of international law as generally understood; and one swallow does not make a rule of international law.32

Looking at asylum cases more specifically, the House of Lords has made general references to French and German jurisprudence on three occasions. All three cases concern the application of the Refugee Convention in a Dublin Convention context.33 In R (Yogathas) v. Secretary of State for the Home Department, a case about removal from the UK to Germany by application of the Dublin Convention, general references to ‘the jurisprudence of the German Constitutional Court’ and to German legislation were made in order to ascertain the German approach to the risk of persecution by nonstate agents.34 Similar non-specific references were made in R (Zeqiri) v. Secretary of State for the Home Department, a case of removal from the UK to Germany under the Dublin Convention,35 and in R v. Secretary of State for the Home Department, ex p Adan, French and German interpretations of the Convention were mentioned, but not any specific cases.36 Two other judgments of the House of Lords may also be noted because they refer indirectly to the continental experience. One such example is Lord Steyn’s opinion in Islam v. Secretary of State for the Home Department, which refers to cases from the USA, Canada, Australia and New Zealand 31 32

33

34 35 36

Ibid., at para.20. Ibid ., at para.22. See also Lord Hoff mann: ‘It is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’ (para. 63). Convention establishing the criteria and mechanisms for determining the Member state responsible for examining an asylum application lodged in one of the member states by a third country national, signed in Dublin on 15 June 1990. Replaced with Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member state responsible for examining an asylum application lodged in one of the member states by a third-country national. Official Journal L 50 of 25 February 2003. [2002] UKHL 36, [2003] 1 AC 920, at para. 56. [2002] UKHL 3, [2002] Imm AR 296. [2001] 2 AC 477. In some cases the House of Lords has simply referred to state practice, rather than specifically to particular jurisprudence; see, for instance, Sepet v. Secretary of State for the Home Department [2003] 1 WLR 856 and R (Hoxha) v. Special Adjudicator[2005] UKHL 19, [2005] 1 WLR 1063.

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in support of a liberal interpretation of what constitutes a ‘particular social group’ under Article 1A(2) Refugee Convention.37 Among these authorities was a case from the New Zealand Refugee Status Authority that draws extensively on the case law and practice of Germany, the Netherlands, Sweden and Denmark. One other example is Lord Lloyd of Berwick’s opinion in R v. Secretary of State for the Home Department, ex parte Adan which used Goodwin-Gill’s book on The Refugee in International Law (2nd edn.) as a medium to finding the views of the French and German courts on the issue of individual and differential impact above and beyond the ordinary risk of being persecuted.38

English Court of Appeal and Scottish Court of Session Judgments from the Court of Appeal on refugee issues do on occasion refer to foreign law in general terms (such as German domestic law or French and German practice), particularly in the context of safe third countries and the application of the Dublin principles.39 However, explicit references to foreign jurisprudence are hard to find. Three cases nonetheless may be mentioned, even though none of them raise an asylum or refugee law issue, and only the last one discusses explicitly another European jurisdiction’s case. First, in a landmark decision, EB (Ethiopia), the Court of Appeal found that persecution may take the form of administrative and other measures which are discriminatory.40 In reaching this conclusion, the Court of Appeal relied heavily upon the decision of the US Supreme Court in Trop v. Dulles, Secretary of State from 1957.41 Second is A (No. 2) v. Secretary of State for the Home Department, a case of detention pending deportation, in which the Court of Appeal made numerous references to the jurisprudence of the Strasbourg Court, the UN Committee against Torture and the International Tribunal for the Former Yugoslavia in seeking to establish an approach to the admissibility of evidence gained under torture .42 It used these decisions as a source of guidance, as well as to show how close the Strasbourg Court’s jurisprudence was to the common law.43 It also referred to 37 39

40 42

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[1999] 2 AC 629. 38 [1999] AC 293. E.g., R (Yogathas) v. Secretary of State for the Home Department, [2002] UKHL 36, [2003] 1 AC 920. 41 [2007] EWCA Civ 809. 356 US 86. Court of Appeal, [2004] EWCA Civ 1123. Note that this case went to the House of Lords – see discussion above. Ibid., para. 264.

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a decision of the Israeli Supreme Court (Public Committee against Torture in Israel & Ors v. Israel & Ors of 1999). 44 Lord Justice Laws explained: ‘the ratio of the Israeli Supreme Court’s decision […] marches with the common law’, and so he fully embraced the Israeli ratio to support his argument.45 Third is M v. London Borough of Islington and the Secretary of State for the Home Department,46 a case of a parent from Guyana of an infant child born in the UK seeking the right to remain in the UK, in which the Court of Appeal referred to a case decided by the Irish Supreme Court (Lobe v. Minister for Justice) where a very similar issue was addressed, and which itself was strongly inf luenced by a US authority. However, the Court of Appeal noted: If that authority can be applied in our case, then the status of the child as a British citizen becomes effectively irrelevant. I would wish to approach that proposition with caution.47

So, the Court of Appeal distinguished the situation in both Ireland and the US from that in the UK, and went on to explore the issue further.48 In an asylum context, perhaps the most illuminating decision by the Court of Appeal on the use of foreign law by the British court is Secretary of State for the Home Department, ex parte Adan, Subaskaran, Aitseguer (see discussion above on the House of Lords decision).49 In that case, three asylum seekers were claiming asylum on the ground of persecution by non-state agents. Two had arrived in the UK having first passed through Germany, the other through France. The judgment by the Court of Appeal includes a comprehensive discussion of the respective approaches by the French, German and English courts to persecution by non-state agents. This discussion focused on the requirement laid down in German and French law, the general position of the German and French courts, and the views of academics (for example, Professor Hailbronner). However, it failed to refer explicitly to any specific case law. The Court found that while all this foreign material deserved respect, it did not necessarily require detailed scrutiny.50 Indeed, it 44 45 46 48

49 50

A case about the use of torture in the interrogation of persons suspected of terrorist crimes. Court of Appeal, [2004] EWCA Civ 1123, para. 250. 47 Court of Appeal, [2004] EWCA Civ 235. Ibid., Para. 27. The Court of Appeal also made a brief passing reference to a decision by the Irish Supreme Court (in Finucan v. McMahon (1990)) in Z, A, M v. Secretary of State for the Home Department (Court of Appeal, [2002] EWCA Civ 952), a case about three applicants from Zimbabwe, all homosexuals. Court of Appeal, [1999] 3 WLR 1274. See discussion above on the House of Lords decision. Ibid., at para.48.

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follows from Kerrouche v. Secretary of State for the Home Department51 and Secretary of State for the Home Department, ex parte Iyadurai52 that: Th is exercise involves examining the approach adopted in the third country against the proper international interpretation of the provisions of the Convention. It remains the situation that the Secretary of State is not required ‘to become deeply involved in a comparative analysis of the law of different signatories to the Convention’ (Kerrouche at p. 615) and the third country can be complying with the Convention although it expresses its approach in different language to that which would be used in this country.53

The Court of Appeal then went on to distinguish between interpretation and application and found that most cases are ‘application’ cases.54 These must as a matter of fact be subject to the ‘anxious scrutiny’ test (ex parte Bugdaycay), and a proper respect must be accorded to the system and practice of the third country in question. ‘Interpretation’ cases deal with the essence of the Refugee Convention, for example Article 1A(2) and Article 33. As a matter of law, these cases may be the subject of judicial review on illegality grounds. For instance, in dealing with the meaning of ‘particular social group’ within Article 1A(2), the jurisprudence in the highest courts of Canada, Australia and England has consistently treated the question as one of legal principle.55 In such cases, it is not appropriate: to investigate the reasons of history or culture why some states – here Germany and France – adopt one construction and the courts of the United Kingdom … adopt another. Th is involves no disrespect to the French and German jurisdictions.56

There is indeed no supranational court capable of giving authoritative interpretations to the provisions of the Refugee Convention. In such cases it is for the courts in each country to arrive at an authoritative interpretation themselves, i.e., the true interpretation of Article 1A(2), and to apply it, bearing in mind that there is only one true ‘international’ interpretation and there is no room for differing views regarding the essence of the Refugee Convention.57 51 52 53 54

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[1997] EWCA Civ 2263, [1997] Imm AR 610 (Court of Appeal). [1998] EWCA Civ 959, [1998] Imm AR 470 (Court of Appeal). [1998] Imm AR 470, 475. See, for example, R (Adan (Lul Omar)) v. Secretary of State for the Home Department [1999] 3 ELR 1274, 1293–8. Ex parte Adan, [1999] 3 WLR 1274, 1295. 56 Ibid. The distinction between interpretation and application cases was impliedly accepted in the House of Lords in Adan itself, and has not subsequently been questioned. Th is issue is discussed further in the concluding Chapter 11.

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The Court of Appeal has also on occasion made references to foreign law other than case law, such as a German legislation, 58 a Danish factfi nding report, 59 or German practice.60 It has also referred to British or other Commonwealth countries’ case law that discusses continental jurisprudence,61 or to academic work that discusses continental jurisprudence.62 In Scotland no instances referring to case law from specific European countries were found. The only examples of European cases mentioned are ones that have been decided by the ECtHR. These Strasbourg cases are referred to mostly in the Court of Session, during a judicial review of a refusal to allow leave to remain in the UK or appealing a determination made by the AIT. The other occasions on which reference was made to specific European countries were in the context of the application of provisions of the Dublin Convention. But any such cases only referred to where those claiming asylum in the UK first entered Europe, and not to any case law from those jurisdictions. Cases from Canada, Australia, the USA and New Zealand are referred to at least as frequently as Strasbourg cases, and it is mainly the representatives of appellants in the Court of Session who make the references.

High Court The law or practice of foreign jurisdictions (mostly Germany) is referred to occasionally, in safe third country cases or extradition,63 but specific references to continental jurisprudence are lacking. 58

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E.g., R (on the application of Al Rawi & Others) v. The Secretary of State for Foreign and Commonwealth Affairs & Another [2006] EWCA Civ 1279, [2007] 2 WLR 1219. E.g., Gedow, Abdulkadir, Mohamed v. Secretary of State for the Home Department (Court of Appeal) [2006] EWCA Civ 1342; E v. Secretary of State for the Home Department (2006); GH (Iraq) v. Secretary of State for the Home Department (Court of Appeal) [2005] EWCA Civ 1182; Secretary of State for the Home Department v. International Transport Roth GmbH & others [2002] EWCA Civ 158 [2002]. E.g., AE and FE v. Secretary of State for the Home Department (Court of Appeal) [2003] EWCA Civ 1032. E.g., J v. Secretary of State for the Home Department (Court of Appeal) [2006] EWCA Civ 1238. E.g., E and R v. Secretary of State for the Home Department (Court of Appeal) [2004] EWCA Civ 49. E.g., R v. Secretary of State for the Home Department, ex parte Batjam Zeqiri [2002] UKHL 3, [2002] Imm AR 296 and R v. Secretary of State for the Home Department, ex parte Gashi [1999] Imm AR 231, [1998] EWHC Admin 1054 (Divisional Court); [1999] EWCA Civ 1099, [1999] Imm AR 415 (Court of Appeal).

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Administrative Court With one exception, none of the cases decided by the Administrative Court specifically mentions a foreign case. The one exception is not an asylum case but is concerned with the extradition of a British national and involves the European Arrest Warrant (EAW). Here, the Administrative Court made specific reference to two rulings of the German Federal Constitutional Court which declared the German EAW Act invalid and void.64 It furthermore made passing references to the Polish Constitution, the Supreme Court of Cyprus and the Greek Constitutional Court. Finally, the Administrative Court does on occasion make general references to the approach of other European (national) courts,65 or it refers to continental jurisprudence, but through indirect means such as previous UK cases discussing French or German cases.66 It also uses foreign law other than case law, such as legislation, states’ or courts’ practice, or correspondence.67 In a recent case it referred to a decision by the Court of Session in Scotland to support its argument, as well as to judgments of the ECtHR.68 All the references to foreign law so far have occurred in the context of the application of the Dublin Convention.

Asylum and Immigration Tribunal Judges at the AIT (formerly the Immigration Appeal Tribunal) refer regularly to Australian, New Zealand and Canadian cases; references to US decisions are less common, although US State Department country reports are often cited. Tribunal judges also frequently referred to general materials from other EU member states, such as fact-fi nding mission reports, government statements and views shared by governments. However, so far the Tribunal has seldom made explicit references to the case law of other European jurisdictions. In RD (Algeria) v. Secretary of State for the Home Department, the Tribunal considered a decision from the French Council of State69 put forward by the appellant’s representative 64 65 66

67

68

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E.g., Oliver v. Secretary of State for the Home Department [2006] EWHC 1847 (Admin). E.g., R (Sopa) v. Secretary of State for the Home Department [2004] EWHC 904 (Admin). E.g., R (Benda) v. Secretary of State for the Home Department (No. 2) [2002] EWHC 2101 (Admin). E.g., R (Razgar) v. Secretary of State for the Home Department (No. 2) [2002] EWHC 2554 (Admin); R (Mohammed) v. Secretary of State for the Home Department [2002] EWHC 57. Javad Nasseri v. Secretary of State for the Home Department, [2007] EWHC 1548 (Admin). Conseil d’État (France), application no.78055, Thevarayan, 13 January 1989.

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saying that the renewal of a national passport in itself without any other elements does not automatically give rise to a presumption that a person has voluntarily availed himself of the country of his nationality. The Tribunal found: That is not a decision that binds us and it did not bind the Immigration Judge when he decided the appeal.70

It was of the view that a passport is ‘very strong evidence’ that a person is a citizen of the country which issued it, that the holder can be presumed to intend to invoke the protection of that country, although the inference can be rebutted. And in Fadil Dyli v. Secretary of State for the Home Department, the Tribunal was considering whether ‘at present’ in Article 1D of the Refugee Convention meant ‘at the time the Convention entered into force’ or ‘at the time of status determination’. It concluded for the latter: this interpretation was adopted by the German Federal Administrative Court in a decision of 4 June 1991 (Bverwg I C 42.88) and is described as suggested by common sense in Professor Greenwood’s opinion.71

In sum, empirical research suggests that British judges commonly refer to the jurisprudence of other Commonwealth jurisdictions (as well as that of the USA) and increasingly also to the jurisprudence of international bodies when interpreting the Refugee Convention. However, explicit references to continental jurisprudence are rare. When such reference happens, it takes place mostly in the context of the application of the Dublin Convention/Dublin II Regulation (that is, when considering the likely conduct of a court in a third country),72 or when interpreting certain controversial provisions of the Refugee Convention (such as persecution by non-state agents). In such cases the use of foreign law is made quite openly by judges themselves in the actual text of the decisions of the courts. What is certain is that in the UK foreign law is only being used at a senior level, that is, that of appeal and beyond, not at the initial first-instance level in the decision-making process. It appears from the few cases discussed 70 71

72

RD (Cessation – burden of proof – procedure) Algeria [2007] UKAIT 00066, para. 30. Fadil Dyli (Protection – UNMIK – Arif – IFA – Art1D) Kosovo CG * [2000] UKIAT 00001, para. 43. For an application of Dyli, see El-Ali (Palestinian: Article 1D) Lebanon v. Secretary of State for the Home Department [2002] UKIAT 00159. The Tribunal expressed the view that ‘it is only with the greatest circumspection that we should differ from the majority of expert opinion, the UNHCR, and the Bundesverwaltungsgericht’ (para. 35). Other foreign material, such as foreign statutes or practice, is also occasionally referred to in the context of the application of the Dublin Convention.

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above that British judges use foreign law because it is interesting; that is, they are curious about finding out how other judges have responded when faced with a similar issue. In such cases the aim is ‘less to borrow than to benefit from comparative deliberation’.73 In most cases also where foreign law is being discussed, such exercise appears to lend legitimacy to the values espoused by judges when carrying out their judicial functions, particularly in instances where the law is ambiguous.74 Thus, recourse to foreign law in the British courts – and to continental jurisprudence in particular – helps reinforce legitimacy and ‘guides the exercise of judicial discretion’;75 the use of foreign law in this context seems to be about the protection of judges themselves, in that it provides a form of reassurance and checks on their own power.76 This is best illustrated by cases where deviations between foreign and domestic approaches were found. In such cases British judges consider it important to distinguish judgments of foreign courts if these go against the conclusion that they intend to reach. For example, the House of Lords found the Canadian approach to Article 1(A)(2) unreliable on account of the terms of its statutory incorporation into that country’s domestic law.77 Such instances clearly show that British judges are actively engaged in a dialogue with other judges, not just European judges, and that they are using foreign law as persuasive authority.

Reasons for the lack of traffic in jurisprudence between the UK and its EU partners This section seeks to explain the reasons why the British courts refer so little to continental jurisprudence in the area of asylum and refugee law. We suggest two basic jurisprudential explanations: a rational account and a cultural account (see Chapter 1). 73 74

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A.-M. Slaughter, A New World Order (Princeton University Press, 2004), at 75. W. Lacey, ‘Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere’, Melbourne Journal of International Law, 5 (2004), 108–32, at 113. Ibid., at 114. Cherie Booth, remarks at a one-day conference at the British Institute of International and Comparative Law: ‘European Influences on Public Law: 5 years of the HRA 1998 in English Law and Recent Developments in France’, October 2005. See also, J. Bell, Judiciaries within Europe – A Comparative Review (Cambridge University Press, 2006), at 9–10. Lord Hope in Horvath v. Secretary of State for the Home Department [2001] 1 AC 489, 499.

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Rational account A rational account focuses mainly on language, time constraints and access, and training, and it looks at the extent to which these constitute obstacles to the volume and direction of the dialogue between senior judges in the UK and in other EU countries. The basic premise is that the degree of the obstacles is a determinant on the volume of dialogue and also on the direction. This explanation is said to be rational because it is based on opportunity cost, that is, the balance between the benefits of seeking foreign references and the costs that such an exercise entails.78

Language It is clear from the empirical research that English judges commonly refer to jurisprudence from other Commonwealth countries (all Englishspeaking), but that there are hardly any references to decisions from nonEnglish speaking countries. Language may therefore be regarded as an obstacle to the volume and direction of the dialogue between senior British judges and other European judges. On occasion, key decisions of the superior courts of European countries may be translated into English, but this is very rare. One such example is France where a summary (more rarely the full text) of important decisions of the Refugee Appeals Board/National Asylum Court and of the Council of State are translated into English. Time constraints and access The NAM aims at dealing with and concluding an asylum case within six months. So, asylum seekers’ interviews now take place six days after initial screening. Fast-track cases (namely, ‘manifestly unfounded’ or ‘late and opportunistic’ applications) are decided within eleven days, and all other decisions are made within one month. As a result, judges in the lower courts have very little time to undertake any research into foreign case law. However, at the more senior level such tight time limits do not apply. As regards access to and availability of decisions, the full text of most cases decided by the British courts is published and is easily accessible to the public, but this is not so in all other European countries. Furthermore, even where the text of other European countries’ decisions is fully available through the Internet, access still requires judges to be at least familiar with the general system of law in that country, and the asylum legal system in particular. 78

See Note 45 in H. Lambert, Chapter 1 – ‘Transnational law, judges and refugees in the European Union’.

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Training It has been argued that the appointment of judges in the UK is changing rapidly. Bell notes in particular the move from ‘election of members to a club’ to more ‘professionalism in judicial appointment, and a greater recognition of a career’.79 Greater emphasis is also put on judicial training in contrast to the long tradition of ‘learning on the job’,80 but such training does not include the study of comparative systems of law. Therefore, it remains the case that elements of comparative law and jurisprudence are only used by British judges when put forward by counsel and/or academics, or when they are individually intellectually curious about how it is done elsewhere. Insufficient knowledge of other legal systems, however, means that judges will often only refer to decisions from legal systems they know and are familiar with. In this regard, the UK’s legal system may be distinguished from that of other European countries by its adversarial nature. In such a system the judiciary are arguably more dependent than elsewhere on the material placed in front of them. Looking at the relationship between judges and practitioners, Bell argues that ‘the judges primarily influenced the tone and content of the arguments of counsel’. 81 Th is suggests that a British judge deciding a refugee law case would be able to request that counsel provide foreign jurisprudence on the issue being considered – such practice, albeit still infrequent, is starting to be used at the AIT. In addition, the adoption of new EC laws establishing a Common European Asylum System has created the need (and necessity) for an increase in training, for example, by the International Association of Refugee Law Judges (European Chapter) and the European Commission. An obvious ‘invisible traffic’ of legal ideas and exchange of key principles and good practice between judges of the EU member states is beginning to happen by way of such training.82 In sum, the rational account (in particular, insufficient access and training) goes some way in explaining the lack of transnational use of jurisprudence between British judges and other national EU judges. 79 80 82

Bell, Judiciaries within Europe, at pp. 312–13. 81 Ibid., at p. 319. Ibid., at p. 326. We are grateful to Hugo Storey for the expression ‘invisible traffic’. Note that a proposal for establishing a European Asylum Support Office in the context of the development of a Common European Asylum System is being discussed at the time of writing (COM (2009) 66 final, 18.02.2009). This proposal includes among the tasks of the new European Asylum Support Office that of organizing training at EU level in order to develop a more consistent and transparent asylum policy (Article 6).

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Cultural account A cultural account suggests that judges do not in fact resort to any cost/ benefits analysis. Rather, this account is based on social perceptions about the (non-) usefulness of foreign decisions, resulting in default rejection of foreign jurisprudence. These social perceptions (for example, a foreign decision is not worth considering) are produced by culture and would create an exaggerated sense of the barriers to dialogue. For the purpose of this project, and drawing on scholarship on legal culture and comparative law, we look at three elements: the style of judgments (as an indication of legal culture), the conceptual legal framework within which the judge operates (as an indication of an open versus a closed judicial mentality), and the domestic dynamic surrounding cases (as an indication of the role of civil society in this system of legal reasoning). In a sense, what we are doing here is emphasizing the cultural characteristics of the common– civil law divide.

Style of judgments It has been argued that ‘style more than anything else may set different systems apart’.83 In the case of the common law judgment, it is the ‘use of language’ that gives it ‘its distinctive edge’.84 The broad use of language in the common law judgment makes it particularly ‘informative of what is really going through a judge’s mind when he is trying a case’,85 and in particular of the motives behind judges’ decisions to consider foreign law.86 Such a characteristic makes the common law judgment highly ‘suitable for export’.87 It can thus be inferred that the English judgment – alongside the English language – will necessarily constitute an important element that will shape the European legal culture in the area of asylum and refugee law. 83

84 86

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B.S. Markesinis, ‘A Matter of Style’, Law Quarterly Review, 110 (1994), 607–28, at 607 referring to the thesis advanced by Zweigert and Kötz, An Introduction to Comparative Law, 2nd edn (Oxford: Clarendon Press, 1987). 85 Markesinis, ‘A Matter of Style’, at 608. Ibid., at 610. These may be of three kinds: to help shape their own law, to help towards a better understanding of the problem to be solved, or ‘as a mere “padding” for a judgment already reached on other grounds’. Markesinis and Fedtke, ‘The Judge as Comparatist’, at 25–6. See also, C. McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’, Oxford Journal of Legal Studies 20 (2000), 499–532, at 523: the purpose of using foreign law may be manifold: it may be to fi ll a gap in the law, to interpret domestic refugee law provisions, or to be used as a ‘security blanket’ – to be seen to be doing a good job. Markesinis, ‘A Matter of Style’, at 610.

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The English judgment has other characteristics. In particular, it allows judges and representatives of the parties to refer to foreign judgments. To this end, the British courts have often referred to judgments of other Commonwealth countries which fit the same style. They have also increasingly relied upon the jurisprudence of the Strasbourg Court, particularly in those cases directly involving provisions of the ECHR (where section 2 Human Rights Act 1998 requires them to take that case law into account),88 in spite of the more condensed and even opaque tradition of Strasbourg reasoning.89

The conceptual framework within which the judge operates Unlike other European countries, the conceptual framework within which a British judge operates can be described as flexible. Much reference is indeed made by British judges to sources of law that are not necessarily binding on the British courts. To take two examples, in the case of K (FC) v. Secretary of State for the Home Department, the five judges made plenty of references to United Nations High Commissioner for Refugees (UNHCR) guidelines, academic writing and foreign judgments from Canada, Australia, New Zealand and the USA as valuable authority.90 In R v. Secretary of State for the Home Department, ex p Adan, Subaskaran and Aitseguer, Laws LJ held: While the [UNHCR] Handbook is not by any means itself a source of law, many signatory states have accepted the guidance which on their behalf the UNHCR was asked to provide, and in those circumstances it constitutes in our judgments, good evidence of what has come to be international practice within art 31(3)(b) of the Vienna Convention.91

British judges indeed have long been preoccupied with searching for and reaching ‘international consensus’ or ‘broad consensus’ on the interpretation of the Refugee Convention, whether through foreign authority or 88

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R (Razgar) v. Secretary of State for the Home Department (Article 8 ECHR – mental health) [2004] 2 AC 368; A (FC) and others (FC) v. Secretary of State for the Home Department and X (FC) and another v. Secretary of State for the Home Department (Article 5 ECHR – detention of suspected terrorists) [2004] UKHL 56, [2005] 2 AC 68. E.g., compare the House of Lords’ decision in R (Pretty) v. Director of Public Prosecution and Secretary of State for the Home Department [2001] UKHL 61, [2002] 1 AC 800 with the reasoning in Pretty v. United Kingdom (2002) 35 EHRR 1 (European Court of Human Rights); the former is more fluid and full. [2006] UKHL 46, [2007] 1 AC 412. [1999] 1 AC 293, [1999] 3 WLR 1274. See further, Symes and Jorro, Asylum Law and Practice, at 7–12.

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academic writing.92 In doing so, they have referred extensively to the jurisprudence of other common law countries with which they have longestablished reciprocal relations that are conducive to dialogue. These reciprocal relations have also been reinforced by the belief that some European countries interpret the Refugee Convention less flexibly than the UK. This would be the case of Sweden, for instance, where the Aliens Appeals Board has been criticized for being too strict and too politicized, or of France and Germany which for many years followed a restrictive approach to the interpretation of ‘persecution’ in Article 1A(2) Refugee Convention. British judges have also from time to time been willing to confirm principles of law which may have been disputed in this yet sensitive area. One such example is the case of Musisi v. Secretary of State for the Home Department in which the House of Lords held that the principle of nonrefoulement applies to indirect as well as direct refoulement.93 This ‘principle’ of protection was later referred to by Lord Steyn in R v. Secretary of State for the Home Department, ex p Adan as: a long standing principle of English law that if it would be unlawful to return the asylum seeker directly to his country of origin where he is subject to persecution in the relevant sense, it would equally be unlawful to return him to a third country which it is known will return him to his country of origin.94

The domestic dynamic surrounding refugee law cases Refugee law as a specialized subject has caught the attention of academics for many years and it has been taught for over a decade in some universities. Research and teaching centres have been built around the subject, broadly considered, and Britain is home to two specialized academic journals and one ‘institutional’ journal on the topic (namely the International 92

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See Lord Lloyd’s opinion in R v. Secretary of State for the Home Department, ex parte Adan, House of Lords, [1999] 1 AC 293, [1999] 3 WLR 1274. See also, Lord Millet in Islam v. Secretary of State for the Home Department [1999] 2 AC 629, 659–60; and Sepet v. Secretary of State for the Home Department [2003] 1 WLR 856, paras. 19–20. [1987] 1 AC 514. G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn (Oxford University Press, 2007), 205, note 16. [2001] 2 AC 477, 515. See also the statement by Lord Hutton: ‘Under the law of the United Kingdom, as decided by this House in Adan v. Secretary of State for the Home Department [1999] 1 AC 293 an asylum-seeker is entitled to the protection of Article 33 notwithstanding that the state in whose territory he fears persecution is not complicit in that persecution. Th is is an important human right …’. R v. Secretary of State, ex parte Adan et al [2001] 2 AC 477, 526.

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Journal of Refugee Law, the Journal of Refugee Studies and the Refugee Survey Quarterly), all published by Oxford University Press.95 In addition, academic writing is often used by judges.96 For instance, in R v. Secretary of State for the Home Department, ex p Adan, Lord Lloyd noted that in cases where no precedents exist, the works of academic writers ‘provide the best hope of reaching international consensus on the meaning of the Convention’.97 In T v. Secretary of State for the Home Department, Lord Mustill observed that in the area of public international law ‘the writings of scholars have always exerted great authority’.98 In the case of Jones v. Ministry of Interior, albeit not an asylum case, Lord Bingham and Lord Hoffmann dismissed relevant foreign case law (mainly put forward by representatives of the parties) by relying on critical comments made by distinguished academics.99 So, British judges are frequently engaged in a dialogue with academics.100 Legal interventions by international governmental organizations (IGOs), such as UNHCR, and international non-governmental organizations (INGOs) , such as Amnesty International, are also part of the overall picture, at least in the senior courts.101 The role of non-governmental organizations (NGOs) is also particularly strong. Broadly speaking, three kinds of NGOs deal with refugees and asylum issues in the UK. The first kind includes NGOs that focus on legal representation and so perform the functions of lawyers, such as the Refugee Legal Centre (now Refugee and Migrant Justice), the Immigration Advisory Service, and AsylumAid. The second kind is composed of NGOs that provide support and perform more of a welfare function. These are heavily involved in policy work and campaigning, such as the Refugee Council, Refugee Action, and Migrant Helpline. The third kind is made up of small refugee organizations based in the populations of refugees and migrants themselves, often around nationalities. Of the three kinds, the first is clearly made up of NGOs that play a significant role in the asylum determination process. In this regard, the role of the Refugee Legal Centre/Refugee and Migrant Justice (RLC/ 95

96 99 100

101

See also the more practitioners-orientated Tolley’s Immigration, Asylum and Nationality Law Journal. For references see footnote 25. 97 [1999] AC 293, 307. 98 [1996] AC 742, 763. [2007] 1 AC 270, paras. 22 and 63. See further on the relationship between judges and academics, Bell, Judiciaries within Europe, at 326–9. E.g., Fornah and K(FC) v. Secretary of State for the Home Department and UNHCR (Intervener) [2007] 1 AC 412, and amicus curiae brief submitted to the Nigerian Federal High Court reviewing refugee status granted to Charles Taylor (23 September 2004, available through REFWORLD at: www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain).

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RMJ) is worth considering, for it has a strong focus on case work. The RLC was founded in 1992 as a centre for the provision of (free) quality legal representation for asylum seekers from the very first initial stage of the asylum determination process up to the Court of Appeal and House of Lords stage.102 One team of caseworkers specializes in the initial phase of the asylum determination process, another team does the appeal work at the AIT, while a third team deals with strategic litigation in the High Court, Court of Appeal and House of Lords.103 It is within these last two teams that great interest lies in what is going on in other countries for producing cutting-edge jurisprudence. In this context, RLC/RMJ is always looking at other countries’ interpretations of the Refugee Convention, and now of the EC Qualification Directive. Another issue on which foreign jurisprudence is proving useful in informing the refugee status determination process is that of safe third countries.104 It has been observed that neighbouring states are of particular concern and that it is particularly important to know about their jurisprudence in the context of the new EC Directives (particularly the Qualification Directive).105 Since 2000–1 the UK government has moved away from best practice to considering minimum standards, such as fairness in asylum procedures. In response to such changes, RLC/RMJ started to get involved in strategic litigation with a view to bringing about changes in policy (that is, a case is taken in the name of the organization against the government). One such example is the case of R (on the application of the Refugee Legal Centre) v. Secretary of State for the Home Department, in which Lord Justice Sedley declared: The challenge is brought by the Refugee Legal Centre […] Rightly, no objection has been taken by the Home Office to the standing of the RLC in these proceedings […] Th is application is thus a good example of how a body such as the RLC may not only have standing but be best 102

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RLC/RMJ also contributes to the public debate on asylum policy and procedures at the national and European level. It is an independent, not-for-profit organization and registered charity. The quality of its work is subject to the regulations of the Legal Services Commission and the Office of the Immigration Services Commissioner. More specifically, it is funded by a contract with the Legal Services Commission on the basis of a merit test (that is, a case must be found to have more than 50 per cent of chances of success for the RLC to be allowed to represent the applicant). See, for example, R (Bagdanavicius) v. Secretary of State for the Home Department [2005] 2 WLR 1309, [2005] 1 All ER 263(House of Lords). For instance, Javad Nasseri v. Secretary of State for the Home Department [2007] EWHC 1548 (Admin). Lambert’s interview with Nick Oakeshott, Head of Legal Services, Refugee Legal Centre, London, 19 July 2007.

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The Court of Appeal concluded: ‘like Collins J, we do not consider that the system itself is inherently unfair and therefore unlawful’, provided it allows for flexibility in its operation.107 In sum, academics and NGOs are very much involved in asylum cases in the UK. They also sometimes look at the jurisprudence of other European countries, although so far such references appear to be mostly driven by the EC Qualification Directive.

Conclusion Prior to the adoption of EC legislation in the area, asylum and refugee law was primarily regulated by the Refugee Convention (that is, an international treaty) and domestic legislation. Consideration of a treaty such as the Refugee Convention requires a focus on international law, as Article 31 of the Vienna Convention on the Law of Treaties indicates. Article 31(3)(b), in particular, requires that subsequent state practice be taken into account, together with the context, as evidence of state agreement regarding the interpretation of the Refugee Convention. To this end, the British judge has traditionally referred to the jurisprudence (and academic writing) of the common law countries with which it has long-established reciprocal relations that are conducive to dialogue, while references to the jurisprudence of other EU countries remain extremely rare. The reasons for this lack of traffic of legal ideas between the UK and its EU partners have been identified as a mix of rational and cultural explanations. In the former category, language, access and an insufficient knowledge of other EU legal systems through lack of training appear to be the most important reasons for British judges’ reluctance to refer to continental jurisprudence. Social perceptions about the non-usefulness of decisions in other European countries also contribute (to some extent) towards the belief that continental practice is not worth referring to. The style of the common law judgment is indeed very informative, the conceptual framework within which the British judge operates is flexible, and British judges are thus often engaged in a dialogue with judges from other common 106

107

R (on the application of the Refugee Legal Centre) v. Secretary of State for the Home Department, [2004] EWCA Civ 1481, at para. 5. Ibid., at para. 25.

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law countries, academics, IGOs, INGOs and NGOs, leading to fruitful exchanges of information on state practice. However, the adoption of key EC Directives in this area is forcing the British judiciary to look at state practice and evidence of state agreement within the European Union. The British judiciary thus finds itself in the position of having to learn about its European partners so as to be able to establish reciprocal and trustworthy relations with its new partners, while still continuing a dialogue with its usual partners, also Contracting Parties to the Refugee Convention. Here, perhaps, lies the real challenge for British judges in the years ahead.

8 Speaking across borders: the limits and potential of transnational dialogue on refugee law in Ireland Siobhán Mullally *

Introduction Refugee law and policy have expanded rapidly in Ireland over the last decade. Historically a land of emigration, it is only in recent years that questions relating to asylum law have been at the centre of legal and political debate. Refugee law and policy have developed in Ireland against a background of significant transnational legal activity. As in most other areas of Irish law, judges, lawyers and policymakers, frequently engage with and draw upon the decisions of other national courts in deciding upon refugee matters. Transnational legal activity, and judicial dialogue in particular, has had a significant impact on the evolution of refugee law in Ireland. The more recent development of refugee law in Ireland is particularly relevant in examining the scope of transnational judicial dialogue in this field. The ready availability of foreign law in recent years has ensured that a diverse range of legal sources can be cited and drawn upon with relative ease by Irish courts. As refugee law in Ireland has developed largely in the last ten to fifteen years, this easy availability of foreign law sources has contributed to an emerging consensus on the meaning of key legal concepts in refugee law. Another notable feature of the development of refugee law in Ireland is the frequent reference to leading academic authorities in the field, in particular Guy S. Goodwin-Gill and James Hathaway.1 * I am grateful to Darren O’Donovan, IRCHSS scholar, for his research assistance on this chapter. 1 G. S. Goodwin-Gill and J. McAdam, Th e Refugee in International Law, 3rd edn, (Oxford: University Press, 2007) and J. C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991).

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Ironically, the easy availability of case law from other jurisdictions is not matched domestically. This chapter draws upon an empirical analysis of the published decisions of the Refugee Appeals Tribunal and judicial review proceedings of the superior courts in the area of asylum. As will be discussed below, however, access to decisions of the Tribunal is restricted.2 To date only twenty decisions of the Tribunal have been published. Th is limits the scope of the empirical study that can be undertaken. Nonetheless, it is possible both from the published Tribunal decisions, and from the extensive judicial review proceedings that have taken place in this field, to gain an insight into the transnational judicial dialogue that is taking place in the area of asylum. Unlike most of the other jurisdictions examined in this volume, there is a well-established practice in the Irish legal system of engaging with foreign law and of citing and cross-referencing the case law of other national jurisdictions. This practice is to a large extent, however, limited to engagement with the judicial decisions of other common law courts. Ireland has a common law legal system, though, unlike other common law jurisdictions, it is not a member of the Commonwealth.3 The common law–civil law divide that is identified, in this volume, in the exploration of transnational judicial dialogue in Europe, is also evident in judicial dialogue in the Irish legal system. While lawyers, judges and policymakers frequently cite the judicial decisions of UK and other common law courts, it is much less common to find cross-referencing to the national courts of EU member states with civil legal systems.4 2

3

4

See below at 156. In Atanasov & Others v. Refugee Appeals Tribunal [2007] 4 IR 94, the Supreme Court concluded that the Tribunal had a constitutional duty to ensure ‘reasonable access’ to selected decisions. The Supreme Court’s judgment was firmly based on the constitutional entitlement to natural justice and fair procedures. The Supreme Court acknowledged that the Tribunal had a statutory discretion, pursuant to section 19(4A), not to publish decisions that are not of legal importance. See John Stanley, ‘The Refugee Appeals Tribunal and the Publication of Previous Decisions’, The Researcher, The Refugee Documentation Centre Newsletter, Issue 3, September 2006. In the early stages of development of refugee law in Ireland, courts and legal practitioners referred more frequently to foreign law, in part as a consequence of this restriction. For some time this hindered the development of Irish law in this field. The Republic of Ireland Act 1948, which entered into force on 18 April 1949, withdrew Ireland from the Commonwealth. It repealed the Executive Authority (External Relations) Act 1936 which represented the last remaining link between Ireland and Britain. The term judicial dialogue is perhaps not the most accurate description of the transnational legal activity that one views between Ireland and the UK. Dialogue would suggest a two-way process. However, while Irish courts draw upon decisions of the UK courts, both as interesting and persuasive authorities, the reverse does not occur. As was noted in Chapter 1 of this volume, there has been some increase in the use of foreign law

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It is possible to offer both rational and cultural explanations for the limited scope of transnational judicial dialogue in Ireland. Legal education and judicial studies are deeply rooted in the common law system. There is a lack of familiarity with civil law systems and perhaps an uncertainty as to how or whether the practice of civil law systems will translate across borders. Linguistic barriers are clearly a factor constraining transnational judicial dialogue as is the diversity in styles of legal reasoning. The ready availability and familiarity with common law jurisdictions among lawyers and non-governmental organizations (NGOs), ensures that it is the case law of those jurisdictions that is most likely to be pleaded in court, and most likely to enter into the process of judicial dialogue. Legal internationalism has a limited history in Irish courts. While there has been openness to transnational dialogue across horizontal networks of legal actors in common law jurisdictions, there has also, at times, been a resistance to a vertical dialogue between international and national courts. Ireland is a dualist state, and has maintained a strict division between the international and domestic legal orders, including with reference to customary and general principles of international law.5 Resistance to international law continues to be evident and, given Ireland’s relatively poor record of incorporation of international treaties, this aspect of judicial culture limits the impact of international law on the domestic legal system.6 The adoption of the European Convention on

5

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in UK courts, prompting Lord Bingham to herald ‘a new dawn of internationalism in the English legal world’. See Hélène Lambert, Chapter 1 above. However, this internationalism tends to confi ne itself to dialogue with common law courts outside of the EU. This position is based upon Article 29.6 of the Irish Constitution, which states that: ‘No international agreement shall be part of the domestic law of the state save as may be determined by the Oireachtas.’ In the case of Kavanagh v. Governor of Mountjoy Prison [2002] 3 IR 97, the Supreme Court held that Article 29.6 ‘establishes an unmistakable distinction between domestic and international law’ (per Fennelly J at p. 129). Thus where the government wished the terms of an international agreement to have the force of domestic law, this required that the Oireachtas (both houses of parliament) pass the necessary legislation. Mr Kavanagh (above note) had successfully claimed that his conviction represented a violation of Article 26 (equality before the law) of the International Covenant on Civil and Political Rights, with the Human Rights Committee having directed the state party to provide the author with an effective remedy: UN Doc. CCPR/C/71/D/819/1998. His unsuccessful domestic litigation was framed in terms of this need for an effective remedy. The status of international law is also addressed by Article 29.3 of the Constitution which provides: ‘Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.’ The Irish language of wording of the Article, which uses the phrase ‘ina dtreoir’ (‘as a guide’) has been invoked as meaning that general principles of international law are not mandatorily incorporated into domestic law: see the ruling of Henchy J in The State (Sumers Jennings) v. Furlong ([1966] IR 183) at p. 199. Further controversy has attached to the phrase ‘in its relations with other States’,

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Human Rights (ECHR) Act 2003 has had a significant impact on judicial engagement with human rights law. The Act imposes an obligation on all ‘organs of the state’ to perform their functions in ‘a manner compatible with the State’s obligations under the Convention provisions’.7 Organs of the state include the courts, and since the commencement of the ECHR Act, the jurisprudence and standards of the ECHR have come to play an increasingly prominent role in judicial discourse, including, in particular, on questions of asylum. The adoption of the ECHR Act has also changed the nature of transnational judicial dialogue on fundamental rights. Previously the Irish courts, in disputes on questions of fundamental rights, drew primarily on the jurisprudence of the USA, given its similar constitutional traditions. More recently, however, the decisions of the UK courts under the 1998 Human Rights Act are also cited as persuasive authorities, in relation to the application of the ECHR Act.

Asylum determination in Ireland: the process Prior to 1985 asylum seekers arriving in Ireland were met with a legislative and administrative vacuum. Although Ireland had signed and ratified the 1951 Convention relating to the Status of Refugees in 1956, no further action was taken to incorporate the Convention into domestic law. Prior to the introduction of the 1996 Refugee Act, the only statutory framework in place was that provided by the Aliens Act 1935 and the orders adopted thereunder. These gave considerable powers to immigration officers to refuse foreign nationals leave to enter the state. Concern was repeatedly expressed that Ireland was not complying with the principle of non-refoulement, protected under international law, and also protected under domestic constitutional law.8 In 1985 a letter sent on behalf of the Minister for Justice to the then UNHCR (United Nations High Commissioner for Refugees)

7 8

which may be interpreted as implying that the provision may be invoked only in an interstate dispute rather than by an individual against a state. A less conservative approach to the status of customary international law is seen in the High Court judgment of Barr J in MV Toledo: ACT Shipping Ltd. v. Minister for Marine [1995] 2 ILRM 30, at p. 45 where he held that ‘the general position in Irish law would appear to be that the established principles of international law may be part of Irish municipal law, provided they are not contrary to the Constitution, statute law or the common law’. European Convention on Human Rights Act 2003, section 3. For an overview of the historical failure of refugee policy in Ireland, see Eilis Ward, ‘Ireland’s Refugee Policies: A Critical Historical Review’, in Dennis Driscoll (ed.) Irish Human Rights Review 2000, (Dublin: Roundhall Ltd, 2000) at 157–75.

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Representative in London, Ruprecht von Arnim, undertook to assess all asylum applications submitted in Ireland in accordance with the procedures set out in the Refugee Convention. From 1985 to 1997 the von Arnim letter provided the legal basis for the determination of asylum applications in Ireland. In Fakih & Ors v. Minister for Justice,9 the High Court held that the letter sent by the Minister had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the Refugee Convention. In Gutrani v. Minister for Justice,10 the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the Refugee Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution (requiring a determination by the Oireachtas (parliament) before an international agreement is incorporated into domestic law). At this early stage in the development of the asylum process in Ireland, evidence of transnational judicial dialogue, albeit limited, is evident. In Fakih, the High Court noted that the most persuasive authority on the application of the doctrine of legitimate expectation in this case was the decision of the Privy Council in Attorney General of Hong Kong v. Ng Yuen Shiu, in a case centred on the right to fair procedures for undocumented migrants.11 The court also drew upon several decisions of the UK House of Lords,12 clearly identifying these as persuasive to its conclusions. In Gutrani, solicitors for the applicant drew on established jurisprudence from the UK (R. v. The Home Secretary, Ex p. Bugdaycay,13and R v. The Home Secretary, Ex p. Khawaja),14 to support their claim that the duty to give reasons was inextricable from the fair procedures to which the applicant had a legitimate expectation and right.15 Both cases arose out of decisions of the Minister for Justice to refuse applications for refugee status and for leave to remain in Ireland. 9 10 11 12

13 14 15

Fakih & Ors v. Minister for Justice [1993] ILRM 274. Gutrani v. Minister for Justice [1993] 2 IR 427. Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629. Amalgamated Properly Co. Ltd v. Texas Bank Ltd. [1981] 3 All E.R. 577 and Council for Civil Service Unions v. Minister for the Civil Service [1984] 3 All E.R. 935. R. v. Secretary of State for the Home Department, Ex p. Bugdaycay [1987] AC 514. R v. Secretary of State for the Home Department, Ex p. Khawaja) [1984] AC 74. Footnote 10 above, p. 430.

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In 1996 the Refugee Act was enacted with all-party support. Section 2 of the Act sets out the definition of a refugee, and most notably provides that persecution on grounds of gender, membership of a trade union or sexual orientation is included within ‘membership of a social group’. Although the Act was adopted by consensus, it was not until 20 November 2000 that it finally came into force. On 10 December 1997 the von Arnim letter was replaced by a further letter, sent to Hope Hanlan, the then UNHCR Representative to the United Kingdom and Ireland. The Hope Hanlan letter set out interim procedures to be applied pending the entry into force of the 1996 Act. The new procedures were far more comprehensive than those provided for under the ‘von Arnim’ regime and were deemed necessary in the light of the increasing number of people applying for refugee status in Ireland. It was felt that the von Arnim procedures, involving formal consultation with the UNHCR in many cases, were no longer workable and that a new approach was necessary to deal with the several thousand fi les then on hand. The Hope Hanlan procedures established a formal asylum appeals mechanism – the Appeals Authorities – independent of the Minister. For the first time, the procedures allowed claims determined as ‘manifestly unfounded’ to be fast-tracked, ‘not only in the interests of administrative convenience, but also in the interests of dealing reasonably promptly with genuine applications’.16 When the Refugee Act finally came into force on 20 November 1996, it had changed from a relatively progressive piece of legislation to one that left much to be desired in terms of the legal safeguards provided to asylum seekers. By that time it had been substantially amended through a process of incremental change and reactive measures. A change of government and the dramatic increase in the numbers of asylum applicants were to explain this delay in implementation.17 The primary legislation in this area is the Refugee Act 1996.18 Under the Act, as amended, an application for a declaration as a refugee is considered at fi rst instance by the independent office of the Refugee 16

17

18

Desclau v. Minister for Justice, Equality and Law Reform, per O’Sullivan J, 1998 No.226 JR, 9. In the years 1992–4, the total number of applicants numbered 492; in the next three-year period 1995–7 this increased to 5,486. Office of the Refugee Applications Commissioner, Dublin, Annual Report 2002 (Dublin, 2002). See also the Immigration Act 1999; the Illegal Immigrants (Trafficking) Act 2000; the Immigration Act 2003; the Immigration Act 2004 and the Health Act 2004. See also the European Communities (Eligibility for Protection) Regulations 2006 (S.I. 518 of 2006) which affect the determination of refugee applications.

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Applications Commissioner, and on appeal by the Refugee Appeals Tribunal.19 The Refugee Appeals Tribunal was established on 4 October 2000, in accordance with Sections 14 and 15 of the Refugee Act 1996. The Tribunal is a statutorily independent body and exercises a quasi-judicial function under the 1996 Act. Members of the Tribunal are appointed by the Minister for a term of three years and must have been practising barristers or solicitors for at least five years to qualify for appointment. Based on the recommendation of the Refugee Applications Commissioner or the Refugee Appeals Tribunal, a decision as to whether or not to grant refugee status is taken by the Minister for Justice, Equality and Law Reform.20 According to the regulations on subsidiary protection, it is only at the point that the Minister for Justice, Equality and Law Reform issues a notification to deport that the applicant has the right to apply for subsidiary protection.21 Also, in the context of the deportation process the Minister must consider whether a person is entitled to stay in the state to prevent refoulement. The asylum determination process in Ireland has not been without controversy to date. The Refugee Appeals Tribunal (RAT), in particular, has encountered a series of controversies, leading to highly contested judicial review proceedings on a range of questions of due process. In the Atanasov proceedings, the Supreme Court concluded that the Tribunal had a duty to provide reasonable access to its decisions.22 Failure to provide access, where requested, was ‘in breach of the applicant’s rights to fair procedures and natural and constitutional justice under Article 40.3 of the Constitution’. However, the Court allowed considerable discretion to the Tribunal in determining how best to implement this requirement, noting that the Tribunal could provide such access ‘in whatever form the Tribunal considers fit’.23 A more serious challenge to the RAT arose from the allegations of bias brought before the courts in the Nyembo proceedings.24 In this case the courts were asked to consider whether statistical evidence alone could constitute a basis for a fi nding of actual or apparent bias, and whether such evidence was admissible in court.25 The 19 20 21

22 23 25

Refugee Act (as amended) 1996, sections 13 and 16 respectively. Refugee Act (as amended) 1996, section 17. European Communities (Eligibility for Protection) Regulations 2006, S.I. number 518 of 2006. See also, N. & Anor v. Minister for Justice, Equality and Law Reform [2008] IEHC 107 (24 April 2008). Atanasov & Others v. Refugee Appeals Tribunal [2007] 4 IR 94, at paragraph 35. Ibid. 24 Nyembo v. Refugee Appeals Tribunal [2008] 1 ILRM 289. Ibid., at paragraph 3.

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case arose out of allegations of bias against one Tribunal member, Mr James Nicholson, in relation to whom there was uncontested evidence submitted that refugee law solicitors were of the view that applicants had no prospect of success if appearing before him. Subsequently the state settled the case before it proceeded to trial and no substantive findings were made on the allegation of bias. The case is nonetheless significant given the findings on the role of statistical evidence in establishing claims of bias.26 Significant changes to the asylum determination procedure were proposed in legislation presented to the Oireachtas in 2008. The Immigration Residence and Protection Bill 2008 proposes the introduction of a new Single Procedure to determine asylum and other protection claims. This procedure will consider whether a person is entitled to refugee status, to subsidiary protection or to stay in the state for any other compelling reason, including on grounds of the prohibition of refoulement.27 The proposal to introduce a single procedure has been broadly welcomed. However, concerns remain. Under the proposed changes, the Minister for Justice, Equality and Law Reform will take over the functions of the Refugee Applications Commissioner.28 On a day-to-day level, the Minister’s functions will be carried out by the Irish Naturalisation and Immigration Service (INIS). INIS 26

27

28

The grounds upon which leave were granted were that statistics available to Mr Nyembo, compiled by one of the main legal practitioners in the area of refugee law, led to the conclusion that there was no prospect of success for him when appearing before the secondnamed respondent. The applicant had been informed that, to the legal practitioner’s knowledge, the second-named respondent never found in favour of an appellant in an oral hearing, despite having determined hundreds of cases. By reason of this Mr Nyembo had objective and reasonable grounds for his belief that the second-named respondent is biased and predisposed against him. However, in granting this leave to judicial review, Butler J appeared to signal that this was an exceptional case, by noting that counsel for the Refugee Appeals Tribunal had ‘convincingly argued that statistics alone are not enough to prove bias and he put forward strong authorities in that regard’. Nevertheless, he found that ‘the situation here is unique in that in any cases involving an oral hearing before the Refugee Appeals Tribunal, no Applicant has succeeded before’. Ibid., at paragraph 2. There are some indications that the Canadian judiciary may also be willing to examine allegations of a reasonable apprehension of bias based on statistical evidence of the refugee adjudicator’s low grant rates. See for example Canadian Council for Refugees v. R., 2007 FC 1262 at paragraph 152 and Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 at paragraph 39. These and other cases are discussed by Sean Rehaag in ‘Troubling Patterns in Canadian Refugee Adjudication’, Ottawa Law Review 39 (2008), 1–31 at 26. The Immigration Residence and Protection Bill 2008, section 53 prohibits nonrefoulement. The guarantee of subsidiary protection is contained in sections 61 and 63. Ibid., at sections 74 and 139.

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is an integral part of the Department of Justice, Equality and Law Reform (‘the Department’). The much-troubled Refugee Appeals Tribunal29 would be replaced by the Protection Review Tribunal, the members of which would be appointed by the Minister for Justice, Equality and Law Reform. The Protection Review Tribunal (‘PRT’) will consider appeals both on refugee status and eligibility for subsidiary protection.30 The appointment of Tribunal members is problematic, given that first instance decisions will now be taken based on recommendations from INIS.31 Access to judicial review in matters relating to asylum or immigration is restricted. The Illegal Immigrants Trafficking Act 2001 introduced a fourteen-day (calendar day) time limit to apply to judicial review proceedings challenging immigration or asylum related decisions. At the time that it was introduced, it was argued that this reduced time limit would render access to the courts so ‘excessively difficult as to be arbitrary, unreasonable and therefore, unconstitutional’.32 The inadequacy of the existing system of legal aid and inadequate translation services already created substantial difficulties for foreign nationals in gaining access to the courts. For asylum seekers, these difficulties were compounded by the government policy of ‘dispersal’ and ‘direct provision’, under which asylum seekers are moved to accommodation centres throughout the state.33 In giving its judgment on the constitutionality 29 30 31

32

33

The Nyembo case, note 24 above, underlined the weaknesses of the Tribunal. Note 27 above, at section 84. Th is lack of independence has been strongly criticized by the Irish Human Rights Commission: Irish Human Rights Commission, Observations on the Immigration and Residence Bill 2008 (Dublin, 2008) at 7, and the Irish Refugee Council, The Right to Protection: Submission to the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights on the protection aspects of the Immigration, Residence and Protection Bill 2008, (Dublin 2008). Available at: www.irishrefugeecouncil.ie/pub08/Submission_ to_Committee.doc (last Accessed 29 June 2009). The Bill was referred to the Supreme Court by the President under Article 26 of the Constitution which allows for the constitutionality of a Bill’s provisions to be considered by full hearing. Counsel assigned by the Court to argue for the unconstitutionality of the Bill’s provisions made this argument against the time limit. Article 26 and the Illegal Immigrants (Trafficking Bill) 1999 [2000] 2 IR 360 at paragraph 19. The government policy of ‘ direct provision’ was introduced on foot of an administrative circular issued by the Minister for Social, Community and Family Affairs on 10 April 2000 (SWA Circular 04/00). Under the system of direct provision, asylum seekers are housed in accommodation centres throughout the country. Bed and board is provided together with a Supplementary Welfare Allowance payment of £15IR per week. Prior to the introduction of direct provision, asylum seekers received a weekly welfare payment of £76IR per week, and were provided with rental allowance to cover the cost of private rented accommodation. The introduction of direct provision has been widely viewed as a response to the decision of the British Government to introduce a ‘ voucher’ system. See,

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of the reduced time limit, the Supreme Court noted that asylum seekers would often be ‘strangers to its [the state’s] culture, its language and its way of life’.34 However, the Court refused to accept that a fourteenday time limit was unreasonable. The possibility of an extension being granted was crucial to the Court’s conclusion that the reduced time limit was not unconstitutional. Access to the remedy of judicial review is limited to cases where ‘substantial grounds’ are identified for challenging the impugned decision.35 The Immigration, Residence and Protection Bill 2008 proposes further restrictions on access to the remedy of judicial review, prompting much criticism from the UNHCR, the Irish Human Rights Commission, the Irish Refugee Council and others.36 The Bill further restricts the grounds on which the High Court can extend the fourteen-day time limit, creating additional difficulties for persons seeking to challenge immigration decisions.37 These additional restrictions are likely to render the judicial review remedy in relation to asylum decisions ineffective in practice and, as the Irish Human Rights Commission and others have noted, may lead to a confl ict with the right to an effective remedy, protected under Article 13 of the ECHR. The Bill also includes provision for an adverse costs order to be made against a lawyer, where the court deems an application for judicial review to be frivolous or vexatious. 38 Th is addition to the existing restrictions on judicial review reflects a desire to further curtail and limit access to the courts for asylum applicants.

Status of foreign case law The courts have commented several times on the role that case law from other jurisdictions plays in the interpretation and application of

34 35

36

37

N. Haughey, ‘ Legal Query on Asylum-Seekers Voucher System’, Irish Times, 3 December 1999; P. O’Mahony, ‘Direct Provision – A Recipe for Social Exclusion’, Poverty Today, 47 (July/August 2000), at 6. Note 32 above, at paragraph 37. Th is represents a higher threshold than for judicial review in other areas, which under Order 84 of the Rules of the Superior Courts require the applicant to establish arguable grounds for contending he or she is entitled to the reliefs sought. See G v. DPP [1994] 1 IR 374. United Nations High Commissioner for Refugees, Comments on the Immigration, Residence and Protection Bill 2008 (Dublin: UNHCR, 2008). For the criticisms of Irish Human Rights Commission and the Irish Refugee Council see footnote 31 above. Footnote 27 above, at section 121(3). 38 Footnote 27 above, at section 121(7).

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refugee law in Ireland. In E.M.S. v. Minister for Justice, Equality and Law Reform , 39 Clarke J noted that where questions before the court touched upon the state’s obligations under the Refugee Convention, it was, in his view, arguable that Irish courts should regard authorities of other courts as persuasive. The Australian case of Kuthyar v. Minister for Immigration and Multicultural Affairs40 was cited as relevant, both in determining whether a particular social group existed and whether discrimination on grounds of HIV status could amount to persecution for the purposes of the Convention. A procedural question had also arisen, specifically as to how fresh applications for asylum were to be assessed, under s.17(7) of the 1996 Act, which required Ministerial consent. Clarke J concluded that there were substantial arguable grounds to support the view that the relevant jurisprudence of the UK courts would be followed in Ireland, and that a similar test, therefore, should be applied.41 Clarke J’s statements were cited with approval again in COI v. the Minister for Justice, Equality and Law Reform .42 In the COI case, the High Court noted that while there were differences in the legislation applicable in the area of refugee law as between the UK and Ireland, the courts of each jurisdiction had followed broadly similar approaches in matters of asylum. Here the question before the Court was the appropriate standard of review to be applied to ensure compliance with the state’s obligations under the Refugee Convention. Citing Bingham MR in R v. Secretary of State for the Home Department, ex parte Onibiyo, on the need for ‘particular care at all stages in the administrative and appellate processes’,43 the High Court concluded that the standard of anxious scrutiny was appropriate and essential to ensure compliance with the Refugee Convention. In ascertaining whether or not fair procedures have been followed in the asylum determination process, the courts have frequently referred to case law from a range of jurisdictions. Th is use of foreign law is

39 40

41

42 43

E.M.S. v. Minister for Justice, Equality and Law Reform (Clarke J) 2004 IEHC 398. Kuthyar v. Minister for Immigration and Multicultural Affairs [2000] FCA 110 (Unreported, Einfeld J, 11 February 2000). R. v. Secretary of State for the Home Department ex parte Onibiyo [1996] 2 WLR 490, Singh (Manvinder) v. Secretary of State for the Home Department (8 December 1995, Court of Appeal) and R v. Secretary of State for the Home Department ex parte Nazir (1999) INLR 92. COI v. the Minister for Justice, Equality and Law Reform [2007] 2 ILRM 471. R. v. Secretary of State for the Home Department ex parte Onibiyo [1996] 2 WLR 490, at 497.

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particularly notable, given the well-established Irish constitutional jurisprudence on the standards to be applied to ensure that requirements of constitutional and natural justice are met. Cases cited, however, are not necessarily followed, but are considered in determining whether or not procedures followed in the asylum process are fair. These are considered through the lens of established Irish constitutional jurisprudence on requirements of natural justice and fair procedures, and, in some instances, with an eye to what is viewed as a distinct migration context. The use of accelerated procedures, common in many jurisdictions, has generated some controversy. The absence of an oral hearing on appeal for claims determined to be manifestly unfounded was the subject of judicial review proceedings in Zgnat’ev v. Minister for Justice, Equality and Law Reform.44 Zgnat’ev, a Russian national, claimed that if returned to Russia, he would face persecution on grounds of his Jewish background and his political opinions. His application for asylum was determined as manifestly unfounded, both at first instance and on appeal.45 He subsequently sought leave to apply for a judicial review of the determination, arguing, inter alia, that the absence of a right to an oral hearing on appeal infringed his right to fair procedures, protected as a ‘personal right’ under Article 40.3 of the Constitution.46 In granting leave to apply for judicial review, the High Court was influenced by the findings of the US Supreme Court in Goldberg v. Kelly.47 In that case, Brennan J held that the right to be heard must be tailored to ‘the capacities and circumstances of those who are to be heard’.48 There is little to suggest, however, that the dictum of Brennan J had any lasting impact on the High Court. In a judgment delivered on 17 July 2001, Finnegan J concluded that the absence of an oral hearing on appeal did not violate Zgnat’ev’s constitutional right to fair procedures.49 Though recognizing that the ‘credibility 44

45

46

47 49

Zgnat’ev v. Minister for Justice, Equality and Law Reform [2001] IEHC 70 (29 March 2001). Paragraphs 14(a), (b) and (c) of the Hope Hanlan letter were invoked. These correspond to sections 12(4)(a), (b) and (c) of the Refugee Act 1996. Personal rights are guaranteed regardless of legal status. As Barrington J stated in Finn v. Attorney General [1983] IR 154, the personal rights protected under Article 40.3.2 derive, ‘not from a man’s citizenship but from his nature as a human being’. Although Article 40.3.2 refers specifically to the personal rights of citizens, Barrington J held that the ‘whole scheme of moral and political values’ accepted by the Constitution indicated the duty of the state to defend and vindicate the rights of non-citizens. The state, he held, does not create these rights; it recognizes and promises to protect them. 48 Goldberg v. Kelly 397 U.S. 254. Ibid., at 268–9. Zgnat’ev v. Minister for Justice, Equality and Law Reform [2001] IEHC 105 (17 July 2001).

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and veracity’ of an applicant often lies at the heart of a decision that an application is manifestly unfounded, he nonetheless chose to ignore Brennan J’s conclusion that written submissions are a ‘wholly unsatisfactory basis’ for such decisions.50 He accepted that neither the decision-maker at first instance, nor the Appeals Authority on appeal, had an adequate opportunity to assess the applicant’s credibility. He accepted also that the consequences of an erroneous decision on an application for refugee status are at least as serious as those faced by the welfare recipients in Goldberg v. Kelly. However, he concluded that in providing for ‘a single oral procedure’ at the interview stage, the procedures for dealing with ‘manifestly unfounded applications’ satisfy both the constitutional requirements of natural justice and the standards laid down by the UNHCR in its Handbook on Procedures and Criteria for Determining Refugee Status.51 In Hakizimana v. Minister for Justice, Equality and Law Reform and others52 the High Court drew upon decisions of the UK courts (R (Dirshe) v. Secretary of State for the Home Department,53 and Mapah v. Secretary of State for the Home Department)54 in arriving at a lengthy statement of principles to be applied in determining the fairness of procedures. The Court emphasized, in particular, the inquisitorial nature of the asylum determination process. On the specific question raised, as to whether the requirement of fair procedures implied an obligation to tape-record interviews, the High Court distinguished the procedures followed in Ireland and the UK, noting that the procedures followed in Ireland were significantly different in important respects. In particular, the High Court concluded that tape-recording of interviews was not necessary as the determination process did not seek to provide a verbatim account of the interview and, therefore, a central finding of the Court of Appeal in R (Dirshe) v. Secretary of State, to the effect that tape-recording was the only sensible method was not relevant.55 The right of applicants to have access to previous decisions of the Refugee Appeals Tribunal arose in the Atanasov case, discussed above.56 There, the 50 51

52

53 54 55

Note 47 above, at 269. Note 49 above, at paragraph 11. Finnegan J also held that the UNHCR Handbook was a ‘legitimate aid’ to interpretation of the Convention. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-edited 1992). Hakizimana v. Minister for Justice, Equality and Law Reform and others 2006 IEHC 355 (14 November 2006). R(Dirshe) v. Secretary of State for the Home Department [2005] 1 WLR 2685. Mapah v. Secretary of State for the Home Department [2003] EWHC 306 (Admin). 56 Note 53 above. Note 2 above.

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Supreme Court concluded that ‘reasonable access’ to previous decisions was necessary to vindicate applicants’ constitutional rights to natural justice and fair procedures. In particular, where the advocates opposing the applicant had full access to previous decisions, an equality of arms question arose. The High Court had cited with approval the dicta of Woolf MR in Manzeka v. the Secretary of State for the Home Department57 that access to the decisions of an appeals tribunal would be beneficial to the ‘general administration of asylum appeals’, and further that consistency in the treatment of asylum seekers was important.58 The Supreme Court noted that the submissions made to it had referred extensively to the systems and procedures in other jurisdictions. The Court noted, in particular, that the UK had an elaborate system of categorizing decisions for publication. The Court, however, took the view that the practices and procedures of other systems and jurisdictions were ‘of very little relevance in considering what are the constitutional requirements of fair procedures in this jurisdiction’.59 Distinguishing the kinds of challenges that might arise in Ireland, the Court noted simply that the UK was a ‘very large country with obvious practical problems involving numbers’.60 The context within which asylum procedures developed limited the relevance of transnational dialogue in this case, despite the fact that the issues arising were of universal concern. The courts have also engaged in transnational dialogue on substantive questions, contributing to a continued engagement across judicial borders on the meaning of core concepts of refugee law. In L.D. v. The Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform,61 the High Court drew on the jurisprudence of the New Zealand courts to conclude that the internal relocation or fl ight alternative correctly formed part of ‘a holistic determination of refugee status’.62 The question of how persecution is to be defined has also been the subject of judicial review proceedings and has generated a significant amount of transnational dialogue. In Rostas v. Refugee Appeals Tribunal,63 Gilligan 57 58 59 61

62

63

Manzeka v. The Secretary of State for the Home Department [1997] Imm AR 524. Ibid., cited by the Supreme Court at paragraphs 16 and 17 of its judgment, Note 2 above. 60 Note 2 above at paragraph 29. Note 2 above at paragraph 41. L.D. v. The Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2006] 3 IR 439. Butler v. Attorney General [1999] NZAR 205. Also citing in support the judgment of Clarke J in Imoh v. Refugee Appeals Tribunal [2005] IEHC 220, (Unreported, High Court, Clarke J., 24 June, 2005) at 7. Rostas v. Refugee Appeals Tribunal, Unreported, High Court, 31 July 2003.

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J engaged in a thorough review of the concept of persecution, drawing on the case law of other national courts, including, in particular, statements on the cumulative effects of discrimination in R v. Immigration Appeals Tribunal, Ex p. Shah and Islam.64 In Msengi v. Minister for Justice, Equality and Law Reform and another,65 the High Court sought guidance from the Australian courts on whether discrimination based on HIV status could amount to persecution. Citing Kuthyar v. Minister for Immigration and Multicultural Affairs,66 the High Court concluded that it was arguable that persecution could be established, and the threshold necessary to grant leave for judicial review proceedings was established. On whether a woman who was a rape victim and diagnosed as HIV positive could be deemed to be a member of a particular social group, the Court drew upon Lord Hoff mann’s statements in R v. Immigration Appeals Tribunal Ex p. Shah and Islam v. Secretary of State for the Home Department67 and Auld LJ in the Court of Appeal in Skenderai v. Secretary of State for the Home Department.68 On the meaning of particular social group, the 1996 Refugee Act specifically included persecution on grounds of gender, trade union membership or sexual orientation within its scope.69 In interpreting the Act, the Irish courts have consistently drawn upon, and accepted as persuasive, leading cases on the concept of a particular social group, from the USA, Canada and the UK.70 On the principles to be followed in assessing credibility, in Kramarenko v. Minister for Justice, Equality and Law Reform and Ors.,71 Finlay Geoghegan J concluded that there are substantial grounds for asserting that there is an obligation to assess the credibility of the applicant in the context of country of origin information. Specifically she drew on and found to be applicable the principles set out by Pearl J in Milan Horvath

64

65

66 68 69 70

71

Islam (A.P.) v. Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal and Another Ex parte Shah (A.P.) (Conjoined Appeals) (1999) 2 AC 629 at 653. Msengi v. Minister for Justice, Equality and Law Reform and another Unreported, High Court, [2006] IEHC 241. Note 40 above. 67 Note 64 above. Skenderai v. Secretary of State for the Home Department [2002] 4 All ER 555. Section 1 of the Refugee Act 1996. In re Acosta (1985) 19 I. & N. 211, Canada (Attorney General) v. Ward (1993) 2 RCS 689 and Shah and Islam, note 64 above. Kramarenko v. Minister for Justice, Equality and Law Reform and Ors [2005] 4 IR 321.

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v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening):72 that credibility findings can only really be made on the basis of a complete understanding of the entire picture. […] one cannot assess a claim without placing that claim into the context of the background information of the country of origin.

Subsequently she concluded, placing reliance on the decision of the United States Court of Appeals for the Ninth Circuit in Aguilera-Cota v. INS,73 that a specific adverse finding as to the appellant’s credibility must be based upon reasons which bear a legitimate nexus to the adverse finding. However, the High Court’s acceptance of and reliance on the Horvath principles was later qualified. In Imafu v. The Refugee Appeals Tribunal,74 Peart J held that while ‘as a general proposition’, the Horvath principle was ‘a good one’, there might be: an exceptional type of case where the Tribunal Member can quite adequately and completely assess and reach a conclusion on the personal credibility of the applicant, such that there would be no possible benefit to be derived from seeing whether the applicant’s story fits into a factual context in his country of origin.

Peart J’s statement, justifying a departure from the general proposition in Horvath, has been cited with approval in subsequent cases.75 On the standard of test to be applied to determine adequacy of state protection, in Rasheed Ali v. The Minister for Justice,76 Peart J referred to Hathaway, The Law of Refugee Status77 and affi rmed the principles outlined by the Australian courts in Rajudeen v. The Minister of Employment and Immigration.78 Again drawing on Hathaway,79 Peart J cited from a decision of the Immigration Appeal Board in Ganganee Janet Permanand,80 requiring the overt or covert concurrence of the state in determining its unwillingness to discharge its duties of protection. As the corpus of Irish case law on matters of asylum has expanded, it is noticeable that there is 72

73 74 75

76 77 78 79

Milan Horvath v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] INLR 7. Aguilera-Cota v. INS 914 F. 2d 1375, (9th Cir. 1990). Imafu v. The Refugee Appeals Tribunal, Unreported [2005] IEHC 416. See for example C. v. Refugee Appeals Tribunal & Anor [2007] IEHC 359 (19 October 2007) and Y. v. Refugee Appeals Tribunal & Anor [2008] IEHC 17 (16 January 2008). Rashid Ali v. The Minister for Justice (unreported, High Court, Peart J. 26 May 2004). Hathaway, The Law of Refugee Status. Rajudeen v. The Minister of Employment and Immigration [1985] 55 NR 129 (FCA). 80 Hathaway, The Law of Refugee Status, at 126. T87–10167, 10 August 1987.

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less frequent reference to the decisions of other jurisdictions, and a predictably greater reliance on the authorities of the Irish courts. Where gaps still exist, however, the courts continue to draw upon the case law of other jurisdictions. More recently, for example, in S.H.M v. The Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform,81 the High Court drew upon Revenko v. Secretary of State for the Home Department82 in concluding that statelessness per se does not confer refugee status: a well-founded current fear of persecution on Convention grounds must be demonstrated.

Selected decisions of the Refugee Appeals Tribunal In defining key concepts of refugee law, and in the interpretation of the 1996 Refugee Act, the Tribunal draws frequently upon the jurisprudence of other jurisdictions. Again, similarly to the transnational dialogue that takes place in the superior courts, it appears to be exclusively a dialogue with other common law jurisdictions. The scope of dialogue that takes place varies considerably, depending on the Tribunal member adjudicating, and on the submissions made to the Tribunal. On the meaning of key refugee law concepts, there are repeated references throughout the case law to the leading cases of Horvath,83 Sivakumaran,84 Shah and Islam85 and Ward.86 This transnational dialogue clearly draws on the jurisprudence of other jurisdictions as persuasive, in many cases, without questioning its applicability to Irish law. On defi ning a ‘well-founded fear’, the Tribunal has repeatedly cited as ‘the correct approach’87 that outlined by Sedley LJ in Karanakaran v. Secretary of State for the Home Department.88 While the Tribunal has primarily drawn upon the jurisprudence of other jurisdictions to assist in the interpretation of key refugee law concepts, it has also drawn upon foreign case law – in particular, case law of the UK IAT/AIT (Asylum

81

82 83 84

85 87

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S.H.M v. The Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2009] IEHC 128. Revenko v. Secretary of State for the Home Department [2001] 1 QB 601. Note 71 above. R. v. Secretary of State for the Home Department (ex parte Sivakumaran) [1988] 1 All ER 193. Note 64 above. 86 Note 70 above. Refugee Appeals Tribunal, Published Decisions of Refugee Appeals Tribunal Volume 1, (Afghanistan) Applicant Reference 1. Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449.

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and Immigration Tribunal) – in arriving at its factual assessment of risk in a country of origin.89 On the question of the risk posed to a woman by blood feuds in Albania, the Tribunal member noted that in KOCI,90 the UK Immigration Appeals Tribunal found that while blood feuds are a serious problem in Albania, there is clear evidence that the authorities and others are taking effective steps to deal with the problem. The Tribunal Member also noted that in the case of Skenderaj the Supreme Court of Judicature held that families involved in the blood feuds were not a distinct social group and that the threat to Skenderaj was a private matter. Ultimately, the applicant was found not to fall within the Convention defi nition of a particular social group, though perhaps had a claim to remain on a humanitarian basis. On how to assess the credibility of the applicant, the Tribunal has cited the jurisprudence of other jurisdictions, including that of the Australian, Canadian, US and UK courts.91 On the relevance of a material change of circumstances, for example, the Tribunal member noted that it was clear, from a review of the case law of other jurisdictions,92 that any such change of circumstance must be of substantial political significance to be relevant to an asylum determination. On whether or not harassment amounts to persecution, the Tribunal has relied upon the tests set out in the Federal Court of Canada ; namely, were the incidents of harassment ‘sufficiently serious’ such that the applicant’s ‘physical or moral integrity was threatened’.93 The presumption of state protection as formulated in Ward has repeatedly been applied, with the Tribunal drawing also on New Zealand authorities, including In Re Ellm.94 The Tribunal has also drawn upon the jurisprudence of US courts, in determining, for example, the meaning of ‘well-founded fear’.95 On the 89 90 91

92

93

94

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Albania (Applicant) Reference No.2, Tribunal member, Elizabeth O’Brien B.L. DK (Protection, Blood feud) Albania [2002] UKIAT 08006 (1 April 2003). See for example Refugee Appeals Tribunal, Published Decisions of Refugee Appeals Tribunal Volume 1, Angola (Applicant) Reference 4, Tribunal Member Paul McGarry B.L. Citing Chan v. Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379 and Vallaj v. Special Adjudicator [2001] EWCA Civ 78. See (Croatia) Applicant, Reference 7, at 4, citing Kadhm, Federal Court of Canada [IMM 652–97]. In Re Ellm Refugee Appeal No. 70074/96, (New Zealand Refugee Status Appeals Authority 1996) (Haines, Deputy Chair). See Refugee Appeals Tribunal, Published Decisions o f Refugee Appeals Tribunal Volume 1, (Croatia) Applicant, Reference 8, citing Chanchavac v. INS 207 F.3d 584 and VallecilloCastillo v. INS 121 F. 3d 1237.

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question of an internal relocation alternative, the Tribunal has stated that the tests referred to in R v. Secretary of State for the Home Department & Immigration Appeal Tribunal96 were ‘very helpful’ in considering whether an applicant has an alternative.97 Also on the question of relocation and localized failure of state protection, the Tribunal has drawn upon the Canadian courts, including Zhuravlvev.98 On the meaning of a particular social group, the Tribunal has relied extensively on the authorities of the UK and Canadian courts.99 Though only a limited empirical study of the Tribunal’s decisions is possible, given publication restrictions, it is nonetheless possible to see that an ongoing transnational judicial dialogue is taking place in the determination of asylum claims. It is likely that as the body of Tribunal case law has developed, more recent decisions of the Tribunal will increasingly draw on domestic case law. In the early stages of development of refugee law in Ireland, there has clearly been a willingness to apply the case law of foreign jurisdictions, and not to confi ne the scope of judicial dialogue to the boundaries of the domestic law.

Conclusion Transnational judicial dialogue has played a significant role in the development of refugee law in Ireland to date. State practice, subsequent to the adoption of the Refugee Convention, has informed both practice and policy development in this field. As in other areas of Irish law, this dialogue has been almost exclusively with common law courts. Informal traffic, between policymakers and NGOS, is also primarily with Ireland’s common law neighbour, the UK. This raises questions for the harmonization agenda of the European Union in asylum matters, and the extent to which there will be an ongoing sharing of state practice and intra-European

96

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99

R v. Secretary for Home Department & Immigration Appeal Tribunal [1997] EWCA Civ 2089. Refugee Appeals Tribunal, Published Decisions of Refugee Appeals Tribunal Volume 1, (Croatia) Applicant Reference 8, at 13. Zhuravlvev v. Canada (Minister of Citizenship and Immigration) FCC IMM 3603–99, 14 April 2000, cited in (Ghana) Applicant, Reference 10, at 14. See for example, Refugee Appeals Tribunal, Published Decisions of Refugee Appeals Tribunal Volume 1, (Iraq) Applicant, Reference 11, which cites Mason, Rawlson v. S.S.C. (F.C.T.D., IMM – 2503–94), Espinoza v. MCI (IMM-5033–93), Munir Ahmed v. SSHD [2001] EDWCA Civ 306, Quijano v. SSHD [1997] Imm AR227, Ivanauskiene v. Special Adjudicator [2001] EWCA Civ 1271.

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dialogue between judges. As the European Court of Justice begins to take on an increasingly important role in asylum, a greater impetus for dialogue may emerge. The rational and cultural factors currently hindering the development of such a dialogue will continue. Civil society networks (such as ECRE (European Council on Refugees and Exiles)) or networks of academic lawyers (such as Odysseus) can play an important role in encouraging dialogue across borders, and in breaking down such barriers. In turn, such networks may contribute to greater transnational judicial dialogue. Increased sharing of state practice across civil and common law divides may, in turn, inform the practice of courts and contribute to an ongoing European dialogue.

9 The absence of foreign law in Danish asylum decisions – quasi-judicial monologue with domestic policy focus? Jens Vedsted-Hansen

Introduction As it will appear from this chapter, decisions on asylum applications in Denmark are generally made without references to foreign law. The absence of such references is probably not merely an expression of the lack of influence of foreign law on Danish asylum practices, but can be seen as an indication of a more general tendency towards the exclusion of transnational law, whether foreign or international, as a source of asylum law. Thus, while the central international legal instruments concerning refugee protection – in particular the UN Refugee Convention, the UN Convention Against Torture and the European Convention on Human Rights – are binding on Denmark and even formally incorporated into Danish law,1 the past few years have seen quite significant examples of asylum applications being turned down on the basis of interpretation and application of these treaties that could be, and indeed have been, considered questionable. The analysis here is mainly based on publicly accessible decisions of the Danish Refugee Appeals Board, a quasi-judicial body with specialized competence to review negative asylum decisions. Since the Board is in practice the only body reviewing asylum decisions in substance, 1

See Aliens Act (Consolidation Act No. 808 of 8 July 2008) sections 7(1) and 31(2), incorporating Articles 1 and 33, respectively, of the Refugee Convention, and sections 7(2) and 31(1) incorporating Article 3 of the European Convention on Human Rights and Article 1 of Protocol 6 to the Convention, as well as Article 3 of the UN Convention Against Torture. Furthermore, the European Convention on Human Rights was generally incorporated into Danish law by Act No. 285 of 29 April 1992 (Consolidation Act No. 750 of 19 October 1998).

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judicial case law from the ordinary courts cannot add anything to the picture in this regard. The decisions of the Danish Immigration Service, examining asylum applications in the first instance, are not accessible, but there is no reason to believe that the fi rst instance administrative practices would disclose deviation from the precedents of the Refugee Appeals Board. Before presenting the empirical findings on references to foreign law in Danish asylum decisions (in a third section), the next section will provide an overview of the organization and procedure of decision-making on asylum applications. Likely reasons for the absence of transnational law in Danish asylum decisions will be discussed in the last section, pointing to organizational and procedural particularities of the asylum system that may eventually reinforce certain traditionalist attitudes towards international law which are otherwise losing influence within the Danish judiciary. The particular status of Denmark vis-à-vis the harmonization of EC asylum law and policy is seen as yet another reason explaining, at least indirectly, the present state of affairs. While the former reasons can be seen as the combined effect of rational and cultural factors, the impact of the Danish reservation towards EC harmonization is difficult to relate to either of these two types of factors. Finally, potential challenges to the present situation in Danish asylum law will be considered as part of the concluding observations.

Procedure and organization of the decision-making process General features of judicial control of the executive In accordance with ‘West Nordic tradition’, Denmark – as opposed to Sweden and Finland, but in line with Norway – has no system of specialized administrative courts. Thus, judicial control of the executive is normally exercised by the ordinary courts, whose competence in this regard is expressly stated in section 63 of the Danish Constitution. 2 While the absence of administrative courts has not been beyond dispute, the legislative power has been reluctant to establish such a specialized system, partly because other review mechanisms were considered appropriate to remedy the problems flowing from the present system of judicial control. 2

Danmarks Riges Grundlov [Constitution of Denmark], Act No. 169 of 5 June 1953.

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Instead, two alternative solutions have mainly been resorted to, both of which can be found within the field of Danish immigration and asylum law: a mechanism of direct access to judicial review of certain decisions on residence rights,3 and a specific organization of administrative appeals bodies, often with quasi-judicial procedures, as is the case for the Refugee Appeals Board dealing with asylum appeals.4 These control mechanisms under the Aliens Act are as such quite typical of the preferred alternatives to specialized administrative courts, yet they have also developed various particularities as compared with other regulatory areas. Needless to say, these particularities must be understood as resulting from the specific problems within immigration and asylum law and policy, as can probably be seen most distinctively from the features of the Refugee Appeals Board.

Admissibility issues and first instance examination of asylum applications The Danish asylum procedure is based on a clear-cut distinction between admissibility issues and the examination of asylum applications in substance. The level of procedural safeguards differs significantly along the same line of division. When an alien claims to be in need of international protection either as a refugee under the Refugee Convention or under the supplementary provision on ‘protection status’,5 the initial stage of decision-making is concerned exclusively with the application of the Dublin II Regulation6 and the additional Danish ‘safe third country’ rule.7 These decisions are made within the administrative organization, in the first instance by the Danish Immigration Service whose decisions may be appealed to the Ministry of Refugee, Immigration and Integration Affairs according to section 48d of the Aliens Act. Notably, such appeals carry no suspensive effect, and the alien may in principle be transferred 3 5

6

7

See section 52 of the Aliens Act. 4 See sections 53–58 of the Aliens Act. See section 7(1) and(2) of the Aliens Act, incorporating the defi nition in Article 1 of the Refugee Convention and the personal delimitation of the prohibition of refoulement under the European Convention on Human Rights, respectively. Council Regulation No. 343/2003 of 18 February 2003 (OJ 2003 L 50). Due to the Danish reservation towards the EU, Denmark has concluded an agreement extending the provisions of the Dublin II Regulation to apply under international law between the Community and Denmark: see Council Decision 2006/188 of 21 February 2006 (OJ 2006 L 66). The agreement was implemented in Danish law as of 1 April 2006: see Ministerial Order No. 235 of 17 March 2006. See sections 48a–48e of the Aliens Act.

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or retransferred to another Dublin Member State or deported to a third country presumed to be safe immediately after the decision is made that the application and the applicant are inadmissible in Denmark. If neither the Dublin II Regulation nor the ‘safe third country’ rule leads to the refusal of admissibility, the application is admitted into the substantive examination procedure, and the asylum seeker is allowed to remain in Denmark while the application is being examined. That examination is then also carried out by the Danish Immigration Service in accordance with general rules and principles of administrative procedure. As a quite significant exception from general organizational principles in Danish administrative law, despite its status as a directorate under the Ministry of Refugee, Immigration and Integration Affairs, the Danish Immigration Service is officially considered to be an independent body in terms of substantive examination and decision-making in asylum cases. While this seems to be at variance with the express provision in section 46(4) of the Aliens Act,8 the political advantages flowing from the perceived independence of the Immigration Service are quite obvious, as the inherent absence of ministerial competence allows the Minister to decline approaches from political actors and the media concerning concrete cases or even general criteria for the recognition of asylum seekers.

Appeals procedure As mentioned above, various forms of appeals board procedures have been established as an alternative to reviewing administrative decisions in specialized court systems. This kind of administrative control has a long tradition in Denmark, a fact that can probably be explained by at least three different factors. An important reason behind establishing special administrative appeals boards has been the increased procedural safeguards flowing from such appeals procedures, as compared to those in place in traditional administrative review carried out by a ministerial office. In order to achieve this, certain appeals boards have been designed as quasi-judicial bodies allowing for procedural safeguards more or less equivalent to those provided in ordinary courts. Second, special appeals boards will normally be able to include various kinds of expertise that can hardly be available in ministerial review proceedings. A third, and partly 8

See J. Vedsted-Hansen, ‘Grundbegreber og hovedsondringer i udlændingeretten’ [Basic concepts and distinctions in aliens law], in L. B. Christensen et al., Udlændingeret [Aliens Law], 3rd edn (Copenhagen: DJØF Publishing, 2006), 16–17.

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interrelated, feature of such appeals boards is their ability to include a corporatist element, channelling the influence of various societal actors affected by the regulatory measures in issue, thereby often attempting to engage the responsibility of such actors in the decisions and solutions adopted by the representatives who are members of the appeals boards. The Refugee Appeals Board has been, and to some extent still is, a clear example of these general characteristics. Due to its procedural safeguards, the Board is normally described as a quasi-judicial body. In order to enhance the level of expertise and the legitimacy of decisions made in this rather sensitive policy area, the Refugee Appeals Board previously included representatives of two non-governmental organizations: the Danish Refugee Council and the Council of the Bar and Law Society. The former organization lost its right to nominate members of the Refugee Appeals Board in 2002,9 whereas the Bar and Law Society still has this right as such, yet with a somewhat weakened influence on the representation of its membership on the Board.10 Such external participation may be seen as a feature of Danish corporatist tradition, while at the same time these two particular organizations have been providing additional expertise, rather than representing specific interests of society, in the asylum appeals procedure. As specified in section 53 of the Aliens Act, when reviewing individual asylum cases, the Refugee Appeals Board is normally composed of the chairman or an alternate chairman, and two other members among whom one shall be nominated by the Minister for Refugee, Immigration and Integration Affairs, while the other shall be nominated by the Council of the Bar and Law Society. Given that the chairman and the alternate chairmen shall be judges in the ordinary courts, the Refugee Appeals Board is secured a high degree of independence. This is indeed so in the functional dimension of independence, as it is expressly stated in section 53(1) of the Aliens Act that the Board members are independent and may not receive or seek instructions from the appointing or nominating authority or organization. In contrast, however, independence in the personal dimension is questionable as regards the Board members nominated by the Minister for Refugee, Immigration and Integration Affairs, as it follows from section 53(2) in connection with section 53(4) of the Aliens Act that these members cannot continue sitting on the Board if they no longer hold posts within the central department of that Ministry. Given 9 10

Act No. 365 of 6 June 2002, amending the Aliens Act. Act No. 324 of 18 May 2005, amending the Aliens Act.

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the hierarchical organization of ministries, these members are subject to the Minister’s and the leading Ministry officials’ discretionary decisions as regards continued job functions within the ministerial organization. Thus, their formal independence, as well as their right to be reappointed by the chairman of the Refugee Appeals Board, is significantly, yet rather discretely, modified by way of being conditioned upon the exercise of ministerial influence on personnel matters.11 Due to the rules of procedure of the Refugee Appeals Board,12 this review mechanism offers procedural safeguards beyond the average traditional administrative control in Denmark. However, the Refugee Appeals Board cannot reasonably be considered equivalent to a full-fledged judicial instance, either in terms of personal independence and impartiality of the totality of its membership, or in terms of procedural safeguards and transparency of the examination proceedings in individual cases. Against this background, the absence of ordinary judicial review is a quite significant aspect of the Danish asylum procedure, as further discussed below in the section ‘Finality clause’.

Special review procedure in manifestly unfounded cases A particular phenomenon in the organization of the Danish asylum procedure is the set-up and the scope of application of the special procedure for asylum applications considered manifestly unfounded. If the Danish Immigration Service considers an application manifestly unfounded, it may submit it to the Danish Refugee Council for assessment of the case according to section 53b of the Aliens Act. If the Danish Refugee Council agrees that the application is manifestly unfounded, the Immigration Service is authorized to determine that the refusal of asylum cannot be appealed to the Refugee Appeals Board.13 Although this is a rather unique form of accelerated procedure – allowing for final negative decisions to 11

12

13

See J. Vedsted-Hansen, ‘Klageproceduren i asylsager’ [The appeals procedure in asylum cases], in L. B. Christensen et al., Udlændingeret [Aliens Law], 3rd edn (Copenhagen: DJØF Publishing, 2006), 474–5. Sections 54 and 55 of the Aliens Act, and Rules of Procedure for the Refugee Appeals Board, laid down in Order No. 192 of 15 March 2006, issued by the chairman of the Refugee Appeals Board pursuant to section 56(9) of the Aliens Act. For a detailed account of this procedure, see K. U. Kjær, ‘Åbenbart grundløs-proceduren’ [Th e manifestly unfounded cases procedure], in L. B. Christensen et al., Udlændingeret [Aliens Law], 3rd edn (Copenhagen: DJØF Publishing, 2006), 505–28. See also R. Byrne and A. Shacknove, ‘The Safe Country Notion in European Asylum Law’, Harvard Human Rights Journal , 9 (1996), at 225.

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be made by the administrative first instance, but with the approval of a non-governmental organization which thereby has a procedural right of veto – it does not raise any particular issues concerning the use of foreign or international law in the decision-making process, so it is not discussed further.

The use and absence of foreign law Method and premise of the study Based on experience from the author’s previous membership of the Refugee Appeals Board, this examination of the potential use of foreign law set out from the premise that such legal sources were quite unlikely to be quoted in decisions made by the Board. Only one single case, dating back to the period 1987–94, could be recalled in which the lawyer representing the asylum applicant had made reference to judicial practice in similar cases in another country, yet neither the case nor the position taken by the Refugee Appeals Board could be identified. In order to provide an empirical basis for any conclusion on the present state of affairs, systematic searches were made in the five most recent annual reports from the Refugee Appeals Board (2002–6).14 In addition to general information about the Board’s activities, the legal basis for decisions on asylum applications and the procedural rules applying in the review of such decisions and selected legal issues pertaining to asylum, the annual reports contain surveys of the Board’s practices in the form of summaries of decisions on applications from the most important countries of origin. This necessitates the caveat that in theory the full text of the decisions might give a different picture as regards possible references to foreign law. However, decisions from the Refugee Appeals Board are not publicly accessible in full text, and the summary decisions can be assumed to provide sufficient empirical basis for the purpose of this study. Any occurrence of such references to legislation, judicial practice or other sources from foreign jurisdictions would in all probability reflect principled issues of law that would warrant express mention in the case summaries published in the Board’s official reports. Therefore, it seems to be only a matter of hypothetical uncertainty as to the conclusions that can be drawn from the reported summaries of the Refugee Appeals Board’s decisions. 14

The Refugee Appeals Board, Annual Reports issued by the Executive Committee: 11. Report 2002, 12. Report 2003, 13. Report 2004, 14. Report 2005, and 15. Report 2006.

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Case law reports from the Refugee Appeals Board In the five annual reports from 2002 to 2006, searches were carried out for a number of selected keywords that can be considered likely to occur in connection with references to sources of foreign law in decisions made by the Refugee Appeals Board. In addition, the English and the Danish title of the UNHCR Handbook15 were included in the search, as well as the names of two authors central in the international doctrine of refugee and asylum law. Thus, the searches encompassed the following indicative words (or parts thereof in order to broaden the search, as quoted in Danish in brackets): British (britisk); America/ American (amerika); Canada/Canadian (canad ); German (tysk); French ( fransk); Norwegian (norsk); Swedish (svensk); foreign ( fremmed and udenlandsk); Handbook (håndbog and Handbook); Goodwin-Gill; Hathaway. The Danish words referring to the various other states mentioned above did occur in a number of the summarized decisions, as well as in other parts of the reports. Notably, none of these references were made to sources of refugee law such as legislation, judicial or other forms of precedents, or general guidelines for decision-making in asylum cases in the various states. Instead, the references to other states were mainly dealing with four kinds of factual matters: (1) Countries in which the asylum seeker had been staying or through which he or she had been transiting on the way to Denmark, sometimes including information about asylum applications lodged in these countries, in some instances also mentioning the outcome of such applications. (2) Countries in which family members, friends, political or organizational associates of the asylum seeker were staying, sometimes including information about the residence status, asylum applications, and so on, of such persons. (3) General information about countries of origin provided by the asylum authorities of the states mentioned, either based on common fact-fi nding missions carried out by these foreign authorities and the Danish Immigration Service or made available by them to the latter. 15

Office of the UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1979). A Danish translation of the Handbook was published in 2002.

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(4) Representatives of some of the above-mentioned states in the asylum applicant’s country of origin, most importantly US or British military forces present in Iraq since the 2003 invasion. A few references were actually made to foreign court decisions. However, these decisions appeared not to deal with refugee law, but instead they were ordinary criminal sentences passed on the asylum applicant during a previous stay in the relevant country.16 The two different Danish words for ‘foreign’ did not occur in any of the case summaries in the five annual reports. As far as references to international law are concerned, the two authors of leading refugee and asylum law books were not mentioned at all. On the other hand, the Refugee Appeals Board has made a – possibly increasing – number of references to the UNHCR Handbook: 2002 – 3 references (including 2 to the English title); 2003 – 2 references; 2004 – 2 references; 2005 – 15 references; 2006 – 5 references (including 2 to the English title).

Survey of practising lawyers With a view to broadening the basis for conclusions about the limited use of foreign law in Danish asylum decisions, a number of practising lawyers were asked for information about cases in which foreign legislation or precedents had been quoted or at least discussed. Out of more than one hundred lawyers17 contacted, only one responded. This lawyer said that in numerous cases since 2001 before the Refugee Appeals Board, the High Courts and the Supreme Court he had been invoking all the judgments contained in a British case law volume,18 as well as ‘James Hathaway’s textbooks’. None of these bodies had made any reference to these sources in their decisions or judgments.19 While this information seems to support the above-mentioned conclusion, it should also be mentioned that, 16

17

18

19

See Refugee Appeals Board, 14. Report 2005, at 143 and 175 (criminal sentences in Germany), and 15. Report 2006, 127 (criminal sentence in Norway). Approximately 125 practising lawyers were contacted by email on 2 January 2008. Some uncertainty exists about the number of relevant persons in this inquiry, because the email asking for information was sent to the addresses on a list established within a network of lawyers for the purpose of disseminating information on asylum law and related issues. Therefore, some of the addresses may have been out of date, and some of the lawyers on the list may in practice have little experience with asylum cases. Reference was here made to M. Symes, Caselaw on the Refugee Convention (London: Refugee Legal Centre, 2001). See also, M. Symes and P. Jorro, Asylum Law and Practice (London: LexisNexis UK, 2003). Email of 3 January 2008 (on fi le with the author).

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according to two sample case statements annexed to the reply from this lawyer, the foreign sources had been invoked in the form of extensive quotations, yet with little concrete argumentation as to their specific relevance to the cases in issue. Considering the lack of response from the rest of the lawyers who were contacted, it can be safely assumed that foreign law is never, or at least only extremely rarely, resorted to in decisions by the Refugee Appeals Board.

Explanatory context – and potential challenges to the absence of transnational law Denmark’s reservation towards EC harmonization If the occurrence of references to transnational law in connection with asylum decisions in other European jurisdictions is considered a natural – and perhaps even necessary and desirable – consequence of the emerging EC harmonization of law and policy on asylum, one factor springs to mind that might to a significant degree explain the absence of such sources in Danish case law. As is well known, Denmark has a special position as regards EC legislation under Title IV TEC, according to a Protocol adopted by the 1997 Amsterdam Treaty and annexed to the Treaty on European Union and the Treaty Establishing the European Community (TEC).20 Referring to the 1992 Edinburgh Decision of the European Council concerning certain problems raised by Denmark on the Treaty on European Union, Article 1 of the Danish Protocol provides that Denmark will not take part in the adoption by the Council of proposed measures pursuant to Title IV TEC. According to Article 2 of the Protocol, none of the provisions of Title IV TEC, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Community pursuant to that Title, and no decision of the European Court of Justice interpreting any such provision or measure shall be binding upon or applicable in Denmark; no such provision, measure or decision shall in any way affect the competences, rights and obligations of Denmark; and no such provision, measure or decision shall in any way affect the acquis communautaire or form part of Community law as they apply to Denmark.21 20

21

Protocol 5 on the position of Denmark, annexed to the TEU and the TEC pursuant to the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts (OJ 1997 C 340; consolidated version in OJ 2006 C 321 E). Ibid.

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These exemptions do not apply to measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the member states, or measures relating to a uniform format for visas (see Article 4 of the Protocol). An additional modification of Denmark’s exemption from participation in the EC harmonization of asylum and immigration law follows from Article 5 which sets up a special procedure regarding supranational development of the Schengen acquis. Under this procedure, Denmark may decide, within six months after the Council has decided on a proposal or initiative to build upon the Schengen rules under Title IV TEC, whether it will implement this decision in its national law. If it decides to do so, this will create an obligation under international law between Denmark and the other member states. If Denmark decides not to implement the Council decision, the other member states will consider appropriate measures to be taken towards Denmark (see Article 5(2) of the Protocol). The special position under the Protocol does not mean that Denmark is unaffected by the EC harmonization measures within the field of asylum.22 First, Denmark can be expected to adjust its domestic legislation so as to keep it in conformity with those EC measures which are a development of the Schengen acquis under Title IV TEC, simply because Denmark is indirectly bound to enter into agreements adhering to the EC legislative measures adopted, and to align domestic legislation to these measures notwithstanding the formal reservation towards supranational harmonization. Second, Denmark is likely to adjust domestic legislation if this appears necessary in order to conclude parallel agreements associating Denmark with other legislative measures under Title IV TEC which are considered of vital interest to the country, in particular the Dublin II Regulation. Third, in some areas of harmonization it may be considered appropriate for political reasons to amend Danish legislation in accordance with EC developments, either because more restrictive rules could be perceived incompatible with state interests or because EC law or policy can be invoked as justification for amendments of Danish legislation.23 22

23

See J. Vedsted-Hansen, ‘Denmark’, in I. Higgins (ed.), Migration and Asylum Law and Policy in the European Union. FIDE 2004 National Reports (Cambridge University Press, 2004), 65–87. For a general account, see Danish Institute for International Studies, De danske forbehold over for den Europæiske Union [Report on the Danish opt outs from the European Union] (Copenhagen: DIIS, 2008). For a discussion of such legitimacy mechanisms in domestic policy-making, see R. Byrne, G. Noll and J. Vedsted-Hansen, ‘Understanding Refugee Law in an Enlarged European Union’, European Journal of International Law 15 (2004), 355, 364–7.

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In some instances there may therefore be legal or policy reasons to include EC legislation into Danish decision-making on asylum issues. Furthermore, at least in the longer term, there may also be incentives to take legislation or precedents from other EU jurisdictions into account in administrative and judicial practice concerning asylum applications. As regards the legal sources applied in present case law, however, the Danish reservation has resulted in the inapplicability of substantive EC legislation, such as the Qualification Directive.24 Thus, the Refugee Appeals Board has not been exposed to the incentive to seek interpretive inspiration from other EU member states which might have influenced the interpretation and application of the provisions of the Directive, in particular as long as the case law of the European Court of Justice pertaining to the Directive is limited.

Finality clause: no ordinary judicial review Another structural factor that might partly explain the absence of transnational law in asylum cases, namely, the absence of court review of the decisions made by the Refugee Appeals Board, must also be considered. Because of the modifications of traditional judicial safeguards mentioned earlier, and of the often highly politicized aspects of decision-making in asylum cases, the conclusion seems inevitable that review within the ordinary judicial framework could be an opportunity to remedy some of the shortcomings of the administrative system. That might be important not only as a last resort for individual asylum applicants, but also from the more general perspective of effective legal remedies and as a possibility to improve the interpretive development of refugee law and the level of protection of human rights in this sensitive area. However, in 1997 the Supreme Court decided by a narrow majority to refuse access to judicial review of decisions from the Refugee Appeals Board.25 The legal premises of this judgment, based on the finality provision in section 56(8) of the Aliens Act, are open to question and debate, and the interpretation of this provision has indeed been discussed, and to some extent clarified in subsequent Supreme Court judgments slightly 24 25

Council Directive 2004/83 of 29 April 2004 (OJ 2004 L 304). Supreme Court judgment of 16 June 1997, reported in Ugeskrift for Retsvæsen [Weekly Legal Magazine] 1997, 1157. For a critical discussion, see K. U. Kjær, ’En grov tilsidesættelse af grundlovens klare ord …’ ,[A manifest infringement of the clear text of the Constitution…], Juristen [legal magazine ‘The Lawyer’] (1998), 45–55.

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modifying the finality effect.26 However, it is hard to avoid the assumption that the Supreme Court majority was to some degree influenced by the arguments submitted by the Government Advocate representing the Refugee Appeals Board, claiming that the Board should be considered largely analogous to a court or tribunal within the meaning of Article 6 of the European Convention on Human Rights, and that if access to judicial review were to be allowed, that would imply a serious burden for the ordinary courts. Th is somewhat unrealistic appraisal of the constitutional status of, and the legal safeguards inherent in the procedures before, the Refugee Appeals Board would seem to imply a role and a level of judicial formalization which the Board cannot, and normally should not, live up to. More importantly, the state of law thereby introduced has resulted in quite sizeable judicial resources being spent not on interpreting or applying refugee and human rights law in asylum cases, but instead on delimiting the effects of the finality provision in the Aliens Act.27 In this process, it seems that the Refugee Appeals Board and the Government Advocate have been determined to avoid any meaningful role for the ordinary courts in asylum cases. One impact of such judicial review proceedings might have been the enhanced possibility to consider sources of foreign law and their relevance in comparable Danish decisions.

Dualistic tradition and judicial pragmatism From a formal perspective, the above-mentioned strategy of the Refugee Appeals Board to avoid judicial review of its decisions on asylum applications, thereby significantly reducing the role of the courts within this area of law, could be assumed to have minimal impact on the interpretation of the international legal instruments incorporated into the Aliens Act, inasmuch as the chairman and the alternative chairmen of the Refugee Appeals Board are judges in ordinary courts, acting in that capacity most of their time alongside those having part-time functions on the Board. Nonetheless, in reality the particular procedural set-up for the examination of cases before the Refugee Appeals Board, as well as the composition 26

27

See in particular Supreme Court judgments of 26 January 2001, 28 November 2001, 29 August 2003 and 2 December 2003, reported in Ugeskrift for Retsvæsen [Weekly Legal Magazine] 2001, 861; 2002, 406; 2003, 2405; and 2004, 727, respectively. See J. Vedsted-Hansen, ‘The Borderline Between Questions of Fact and Questions of Law’, in G. Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (The Hague: Martinus Nijhoff Publishers, 2005), 57–65.

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of the Board28 and the organization of its secretarial activities,29 may have the effect of keeping the proceedings more streamlined and more narrowly focused on domestic legislation and practice as regards the sources of law taken in consideration, than would have been the case under a system of ordinary court review. Probably the discussion of these factors cannot go much beyond the speculative. It seems likely, however, that the Refugee Appeals Board, as a quasi-judicial administrative body with a rather closed decision-making procedure, with little transparency and with much political focus on its activities, will appear less susceptible to tendencies of internationalization than the judiciary in general. In this connection it has to be taken into account that Denmark has rather strong traditions of dualism regarding the sources of law, and of judicial pragmatism regarding the interpretive approach and the legal reasoning made accessible in the courts’ judgments. While the Supreme Court, and to some extent also the lower courts, has been prepared to modify these traditions during the last couple of decades,30 the factors mentioned above may provide structural explanations as to why these tendencies do not seem to be similarly identifiable within the review proceedings of the Refugee Appeals Board. Instead, the Board keeps its focus primarily on the domestic sources of asylum law, sometimes even disregarding relevant international sources.31 At the same time, the Refugee Appeals Board maintains formal and informal contacts with foreign authorities and international organizations. The annual reports of the Board32 contain information about visits by officials from asylum authorities of other countries, and the Board participates on a regular basis in various fora of international cooperation on asylum, in particular at EU level. This may provide the basis for informal exchanges that could involve forms of ‘invisible traffic’ of sources of law and fact pertaining to asylum decision-making. Again, organizational factors may have the effect of reducing the impact of transnational 28 29

30

31

32

See the section ‘Appeals procedure’ above. According the section 53(11) of the Aliens Act, the secretariat is organizationally within the structure of the Ministry of Refugee, Immigration and Integration Affairs. For a general discussion, see I. E. Koch and J. Vedsted-Hansen, ‘Judicialised Protection of International Human Rights and the Issue of Power Balance’, in M. Scheinin (ed.), Welfare State and Constitutionalism – Nordic Perspectives, (Copenhagen: Nordic Council of Ministers, 2001), 177–83. See J. Vedsted-Hansen, ‘Konkret og individuelt’ [Concretely and individually], in A. Møller-Sørensen and A. Storgaard, Jurist uden omsvøb. Festskrift til Gorm Toftegaard Nielsen (Copenhagen: Christian Ejlers’ Forlag, 2007), 599–616. See references above in the section ‘Method and premise of the study’.

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sources, as most of these exchanges take place through representatives of the Board’s secretariat, which may be seen as representing the Ministry of Refugee, Immigration and Integration Affairs just as much as the Refugee Appeals Board does.

The ‘domestication’ dilemma – and the emerging challenges There is no doubt that Danish asylum law during the past decade has found itself in a dilemma between clearly restrictionist tendencies at the domestic policy level and the official preparedness to uphold the fulfi lment of international obligations. The latter may be seen as an expression not only of existing legal commitments, but also of the national interest in continued participation in EC/EU cooperation such as the Dublin II Regulation, notwithstanding the Danish reservation towards supranational harmonization. This was aptly illustrated by the government’s insistence that the Danish Aliens Act contain asylum provisions which are in line with the EC Qualification Directive,33 although the incompatibility would seem quite easy to identify.34 At the same time, however, both the Refugee Appeals Board and the Minister for Refugee, Immigration and Integration Affairs have made public statements suggesting that Danish asylum law may be interpreted and applied in a manner which is sometimes bound to differ from otherwise accepted international standards.35 Even if such statements may have been influenced by complex political and administrative circumstances, the underlying position does not seem to be particularly conducive to the impact of foreign national sources on decision-making in asylum cases. It is hardly surprising, therefore, that no traces of foreign law were found in Danish asylum decisions. On the other hand, this approach is likely to become increasingly challenged, partly as a result of the expanding and still more intensified EC harmonization of 33 34

35

Council Directive 2004/83 of 29 April 2004 (OJ 2004 L 304). Section 7(2) of the Aliens Act, as compared to Article 15(c) of the Qualification Directive. Remarkably, the official statement of compatibility was made in Denmark’s 17th periodic report of 2 September 2005 to the UN Committee on the Elimination of Racial Discrimination (see UN doc. CERD/C/496/Add.1, para. 59). The difference of Danish legislation was confi rmed by the interpretation of Article 15(c) of the EC Qualification Directive given by the European Court of Justice in its judgment of 17 February 2009, Elgafaji, C-465/07. See, as clear examples, statements by the chairman of the Refugee Appeals Board quoted in the newspaper Berlingske Tidende 26 January 2007, 12, and the statements of the Minister for Refugee, Immigration and Integration Affairs in the parliament on 27 February 2008, answering Question S 735.

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asylum law and policy and its increasing importance and legal relevance, although often indirect, for Denmark. Such developments might in turn also prove to be an incentive for considering and using foreign law as a source of inspiration in Danish asylum decisions. While the present state of affairs can probably be explained as a result of the combination of traditionalist attitudes towards sources of international law in the domestic legal system, judicial pragmatism and the specific organizational and procedural set-up of the Danish asylum system, these factors of both a cultural and rational nature will not necessarily remain as unaffected by European and international developments as seems to have been the case hitherto.

10 Foreign law in Swedish judicial decision-making: playing a limited role in refugee law cases Rebecca Stern *

Introduction Sweden has traditionally been, and has also considered itself to be, a country with a generous and humane policy on asylum and migration. The asylum system and the politics of asylum and migration are often debated, not least because of the large number of Iraqi asylum seekers that have arrived in Sweden in the past few years.1 The asylum procedure was the subject of a major reform in 2005. The 2005 reform introduced a new system in which the appeals procedure was to be handled in the administrative court system by special Migration Courts and a Migration Court of Appeal. The first instance is the Migration Board. Important aims of the reform were to improve the opportunities to hold oral proceedings, to transform the asylum procedure into a ‘two-party process’ (similar but not identical to an adversarial process) and to enhance transparency.2 By taking these measures, it was hoped that the often-criticized asylum system would gain credibility among those involved in it, as well as among the general public.3 In the * Th is chapter is based on the results of a project initiated by the Swedish Red Cross (co-financed by the European Refugee Fund) which aimed to analyse the case law developed in the reformed Swedish asylum procedure. The project results were published in a report: R. Stern, Ny utlänningslag under lupp (‘The New Aliens Act Under the Magnifying Glass’), Svenska Röda Korset, 2008. A summary in English is available at www.redcross.se. 1 Much has been written about this debate. One good example is L. Granestrand, I Sveriges väntrum (Stockholm: Norstedts, 2008). 2 Prop. (Government Bill) 2004/05:170 Ny instans- och processordning i utlännings- och medborgarskapsärenden, 105–6. 3 Ibid.

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previous system, decisions at first instance were made by the Migration Board and, on appeal, by the Aliens Appeals Board, both of which were administrative authorities.4 The decision-makers at the Aliens Appeals Board, however, were judges specially appointed to adjudicate in refugee law cases. In certain circumstances either of the two authorities could refer cases to the government for the final decision. The Aliens Appeals Board was abolished on 31 March 2006 when the new asylum system came into force. The reform also meant the introduction of a new Aliens Act.5 However, the substantive rules of the new legislation, with a few important exceptions, resemble the former 1989 Aliens Act. The most radical changes made were thus to the procedural rules. Sweden has been positive towards the idea of joint responsibility of the member states of the European Union (EU) regarding refugees and asylum seekers, and to the development of a Common European Asylum System (CEAS).6 Swedish judges, however, have not been as eager as the politicians in striving to achieve harmonization. This chapter explores the extent to which Swedish judges in refugee law cases refer to and use foreign law when making their decisions on asylum and subsidiary protection, and to discuss possible reasons, to date, for the lack of transnational dialogue between Swedish refugee law judges and their European colleagues.

Sweden and public international law Sweden ratified the 1951 Geneva Convention Relating to the Status of Refugees7 (Refugee Convention) in 1954. Sweden is also a party to almost all of the major international human rights treaties: for example, the European Convention on Human Rights8 (ECHR) (ratified in 1952), the International Covenant on Civil and Political Rights9 (ratified in 1971) and the UN Convention on the Rights of the Child10 (ratified in 1990). Sweden adheres to the dualist tradition regarding public international law, and international treaties must therefore in some way be turned into 4

5 6

7 8 9

10

H. Lambert, Seeking Asylum – Comparative Law and Practice in Selected European Countries (Leiden: Martinus Nijhoff, 1995), at 30–4 and 60–5. Swedish Code of Statutes – SFS 2005:716. See e.g., speech by the Swedish Prime Minister Fredrik Reinfeldt to the European Parliament on 19 February 2008, available at: www.sweden.gov.se/sb/d/10296/a/98630. 189 UNTS 150, entered into force 22 April 1954. ETS No. 5, entered into force 3 September 1953. GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force 23 March 1976. 1577 UNTS 3, entered into force 20 November 1989.

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Swedish law in order that they can apply in national courts. The ECHR became part of Swedish law in 1995 and is, so far, the only human rights treaty that has been accorded this status.11 In the hierarchy of norms, the ECHR is placed somewhere between the fundamental laws (sometimes called the ‘Constitution’) and ordinary legislation. However, the ECHR is seldom referred to in judgments and the tendency (at least in the lower courts), more than ten years after it became part of Swedish law, is to apply legislation where the norms of the ECHR have been remodelled into national law rather than to seek guidance from the source itself. This procedure of transforming international instruments into Swedish law is also the most common approach to the inclusion of international norms in the Swedish legal system.12

The judicial system General comments There are two parallel types of Swedish court: general courts, dealing with criminal and civil cases, and general administrative courts, dealing with cases relating to public administration. The general courts are organized in a three-tier system: district courts, courts of appeal and the Supreme Court. The administrative courts also have three tiers: county administrative courts, administrative courts of appeal and the Supreme Administrative Court. In addition, a number of special courts and tribunals are established to hear specific kinds of case and matter. There is no system of binding precedents in Sweden, but in practice judgments of the supreme courts are very influential and will ordinarily be followed by the lower courts; they are therefore a secondary source of law. Foreign legal decisions have no legal authority as such in Swedish law.13 11 12

13

Swedish Code of Statutes – SFS 1994:1219. It is worth pointing out that there is not much academic writing on the Swedish dualist approach to international law – it is a concept most often seen as inherent and thus taken for granted. The ‘fact’ that Sweden is a dualist country is referred to in textbooks on Sweden and international law (e.g., O. Bring and S. Mahmoudi, Sverige och folkrätten, 3rd edn (Stockholm: Norstedts Juridik, 2007) as well as in official documents (e.g. SOU (Swedish Government Official Report) 2003:117 Rättslig status vid samverkan inom Partnerskap för fred och EU: s krishantering m.m. – en översyn, 111–14 and SOU (Swedish Government Official Report) 2006:41 Internationella sanktioner, 193–4), but an in-depth analysis of the validity of the concept, its origins and consequences remains to be written. On the Swedish judicial system and jurisprudence, see S. Strömholm Rätt, rättskällor och rättstillämpning, 5th edn (Stockholm: Norstedts Juridik, 1996), chapters 15–18.

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The autonomy of the courts, and their independence from the Riksdag (the Swedish parliament), the government and other public agencies, is guaranteed through provisions in the Swedish Instrument of Government on the independence of the courts and the employment conditions of judges, as well as by Article 6 of the ECHR.14 The Instrument of Government is one of the four fundamental laws that together form the Swedish Constitution.

The Swedish asylum procedure According to the 2005 reform of the court hierarchy and the procedural arrangements in asylum cases and other matters concerning residence, the Migration Board remains the fi rst level at which applications for a residence permit and Swedish citizenship are examined. It is stated in the preparatory works of the 2005 Aliens Act that when examining asylum and citizenship cases, the emphasis should be on the inquiry of the Migration Board.15 All relevant circumstances and all evidence or other material adduced, therefore, should be presented at this fi rst level, if possible. The Migration Board may not issue a refusal of entry or expulsion order for an asylum seeker unless an oral procedure has been held. According to Chapter 13 of the Aliens Act, this procedure can take the form of an oral hearing. An applicant who wishes to challenge a decision submits an appeal to the Migration Board, which may correct the initial decision if it is held to be incorrect. Under the new act the Migration Board has a greater scope to re-examine earlier decisions. In cases where the Migration Board stands by its original decision, the appeal is referred to one of the three county administrative courts – in Stockholm, Gothenburg and Malmö – that have been designated Migration Courts. Approximately 50 per cent of the cases are tried in Stockholm, 25 per cent in Gothenburg and 25 per cent in Malmö.16 The county administrative courts are normally courts of fi rst instance but, in the asylum system, have been designated courts of appeal. The judges of these courts are not formally required to be specialists in refugee and asylum law in order to be appointed. The judges in the administrative 14 15 16

The Instrument of Government (Swedish Code of Statutes – SFS 1974:152) Chapter 11. Prop. (Government Bill) 2004/05:170 153–6. Joint report by the Migration Courts of Stockholm, Gothenburg and Malmö Kartläggning och analys av bifallsfrekvenserna i migrationsdomstolarna published online 31 May 2007, 9. Available at: www.domstol.se/upload/Verksamheten/Pressrum/ Kartlaggning_migrationsdomstolarna.pdf.

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courts are complemented by three lay assessors (nämndemän) selected by the political parties in proportion to their respective mandates in the municipality. The judge has the casting vote in the decision-making process but can be defeated by the votes of the three lay assessors combined. Th is process replaces the review by the Aliens Appeals Board in the previous system and thereby introduces a two-party process into the asylum procedure. The court procedure generally commences with a written process. The facts presented by the applicant and the Migration Board to the court are communicated to the parties for them to comment on. In matters relating to applications from abroad for residence permits (for example, cases concerning family reunification and residence permits for foreign students) and citizenship cases, the decision of the court is usually based only on the written material. However, oral proceedings are often used for asylum cases. Oral proceedings can take place on the initiative of either the applicant or the court. An oral hearing must be held at a Migration Court if an alien who is bringing an action so requests, if the hearing is not unnecessary and there are no special grounds for not holding it.17 Oral proceedings are important, especially in cases where the credibility of the applicant is questioned and where the applicant therefore should be given the opportunity to present and explain the circumstances referred to in person. If an applicant, despite a summons and without valid reason, fails to appear at the proceedings, the court can make its decision based on the material already presented in the case. In the Migration Court, the Migration Board is represented by a ‘Proceedings Officer’, who appears as the applicant’s respondent. A judgment by one of the three Migration Courts can be appealed to the Migration Court of Appeal. This Court is a division of the Administrative Court of Appeal in Stockholm, which is one of four courts of second instance in the general administrative judicial system. The Supreme Administrative Court is the court of final instance. However, in the asylum procedure the Migration Court of Appeal, with a few exceptions, is the court of last resort. Leave to appeal is required for a case to be reviewed by the Migration Court of Appeal. If leave to appeal is not granted, the decision of the Migration Court stands. Leave to appeal is issued if it is of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal, or if there are other exceptional grounds for examining the appeal.18 The Migration Court of 17

Aliens Act, Chapter 16, Section 5.

18

Aliens Act, Chapter 16, Section 12.

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Appeal can also remit decisions to a Migration Court or to the Migration Board.19 As regards possible impediments to enforcement, the Migration Board is obliged to review whether such exist before each refusal of entry or expulsion is enforced. The Migration Board can conduct a review either on its own initiative or at the request of the person denied a residence permit. The latter possibility is only available if the impediments to enforcement which are raised relate to the issue of protection and the applicant shows a valid excuse for not previously having invoked these circumstances.20 In cases where impediments to refusal of entry or expulsion are medical or practical, the ruling of the Migration Board applies and its decision may not be appealed.21 If new refugee or protection claims are put forward, however, a rejection decision from the Migration Board can be appealed to the Migration Court.22 If the Migration Court finds that such impediments do exist, the matter is referred back to the Migration Board for further examination and a new decision.

A survey of national case law on asylum Methodology As mentioned above, the current Swedish asylum procedure has only been in force since 31 March 2006. In order to provide the necessary materials for the analysis to be sufficiently comprehensive to enable conclusions to be made, case law from the previous appeals authority, the Aliens Appeals Board, and when relevant the government, has been included in the survey. Case law concerning asylum, subsidiary protection and humanitarian grounds from 1992 to April 2008 has been examined. The case law of the Aliens Appeals Board and the government is available in a database now owned by a private publishing firm (access was previously available through the Board’s website). The case law from the Migration Courts and the Migration Court of Appeal can be accessed through the joint website23 of the Swedish courts, the Migration Board Lifos database and through the databases of private companies. It should, however, be noted that a complete collection of the case law from the Migration Courts cannot be obtained unless one requests each court to send a paper copy of each of its judgments (or by visiting the court). 19 20 22

See e.g., UM 1203–06 (MIG 2007:3) and UM 457–07. 21 Aliens Act, Chapter 12, Section 19. Aliens Act, Chapter 12, Section 18. Aliens Act, Chapter 12, Section 19. 23 See: www.dom.se.

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The case law from the Migration Courts presented here is therefore to be seen as a representative selection. The case law included in the survey was examined in order to answer the questions raised in the introduction to this volume, namely, what is the precise extent of the use of decisions from other EU countries by judges in the area of refugee law, when does such use of each other’s jurisprudence happen, and where does it happen?24

Government In the previous asylum procedure the Migration Board and the Aliens Appeals Board could leave the final decision-making to the government if, for example, a case concerned issues of particular interest for national security, or was considered important for the guidance of the application of the law in relation to a group of people with similar claims, or if guidance was otherwise considered necessary in a particular case. The government thus had an opportunity to exercise direct influence on the outcome of an individual asylum case. The Aliens Appeals Board and the Migration Board (the latter not as often as the former) occasionally utilized this opportunity, especially in cases where the decision could have considerable political or economic consequences. Examples are decisions concerning the meaning of becoming a refugee sur place, the extent to which serious illness could be grounds for a residence permit, and the political situation in a certain country as regards the nature of an ongoing conflict.25 Approximately ninety-seven asylum-related cases were decided by the government between 1992 and 2005. In forty-three of these decisions reference was made to international legislation or materials from other European countries. In eight cases reference was made to the Refugee Convention.26 In thirteen cases the government referred to United Nations High Commissioner for Refugees (UNHCR) documents, most often the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, but also to selected position papers, UNHCR assessments of the situation in a particular country or region and, on two occasions, to Executive Committee Conclusions and to the 2001 24

25 26

See H. Lambert, Chapter 1, ‘Transnational law, judges and refugees in the European Union’. See e.g., reg. 85–98, reg. 21–94 and reg. 99–04. Reg. 71–96, reg. 74–97, reg. 75–97, reg. 76–97, reg. 85–98, reg. 93–00, reg. 95–02 and reg. 98–03.

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Global Consultations.27 Reference to EC Directives (namely, the Asylum Procedures Directive, 28 the Qualification Directive29 and the Family Reunification Directive30) was made in four cases and reference to the Dublin Regulation was made in three cases.31 In three further cases reference was made to the Convention on the Rights of the Child.32 The ECHR and a statement by the Committee Against Torture were referred to by the government in one decision.33 Finally, in none of the cases examined did the government make any reference to decisions by judges from other European countries.

Aliens Appeals Board Of all the decisions made by the Aliens Appeals Board between 1992 and 2006, approximately 240 were considered jurisprudence on asylumrelated issues.34 In eighteen decisions, particular mention was made of the Refugee Convention.35 UNHCR-related documents – the same as those mentioned above – were referred to in thirty-one decisions.36 Reference to EC Directives was made in four decisions37 and to the Dublin Convention or Dublin Regulation in fi fteen decisions.38 Reference to international human rights instruments and bodies was found in about sixteen

27

28 30 31

32 34

35

36

37 38

Reg. 18–93, reg. 9–94, reg. 65–96, reg. 71–96, reg. 73–97, reg. 74–97, reg. 75–97, reg. 76–97, reg. 83–98, reg. 85–98, reg. 93–00, reg. 95–02, reg. 99–04. 29 Council Directive 2005/85/EC. Council Directive 2004/83/EC. Council Directive 2003/86/EC. References to EC Directives were found in reg. 85–98, reg. 89–00, reg. 90–00 and reg. 91–00. References to the Dublin Regulation were found in reg. 93–00, reg. 95–02 and reg. 100–05. 33 Reg. 63–96, reg. 62–97 and reg. 101–05. Reg. 95–02. The number of decisions, 240, was settled on after a search of the decisions database; however, it is not certain that the search included all relevant decisions as the decisions are registered under different headings. UN 21–93, UN 45–93, UN 198–04, UN 271–95, UN 310–97, UN 328–97, UN 341–97, UN 348–98, UN 362–99, UN 385–00, UN 403–00, UN 419–00, UN 410–01, UN 415–01, UN 439–03, UN 449–03, UN 450–03, UN 464–04. UN 48–92, UN 30–93, UN 31–93, UN 32–93, UN 44–93, UN 45–93, UN 45–93, UN 75–93, UN 97–93, UN 193–94, UN 198–94, UN 236–94, UN 260–95, UN 271–95, UN 287–95, UN 356–96, UN 312–97, UN 321–97, UN 328–97, UN 341–97, UN 320–98, UN 351–99, UN 365–99, UN 373–99, UN 376–99, UN 393–00, UN 412–00, UN 417–00, UN 419–00, UN 421–01, UN 415–01 and UN 491–05. UN 232–94, UN 478–05, UN 480–05 and UN 481–05. UN 348–98, UN 362–99, UN 364–99, UN 398–99, UN 385–00, UN 428–02, UN 430–02, UN 450–03, UN 452–04, UN 460–04, UN 461–04, UN 462–04 and UN 469–04.

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decisions.39 Reference to academic works by foreign scholars was found in four decisions.40 No references to judgments from other European countries were found in the survey.

Migration Courts Of 250 examined cases from all three Migration Courts, foreign legislation or case law was referred to in thirty-two judgments.41 Reference to foreign legislation was mostly to the Qualification Directive and the Dublin Regulation.42 In one case reference was made to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.43 The Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights were mentioned in one judgment.44 Case law from the European Court of Human Rights (ECtHR) was referred to in one judgment.45 The judgments examined also contained references to international reports on human rights and other relevant issues in different countries, UNHCR Guidelines, position papers and similar documents.46 Case law from national courts in other European countries, or other countries in general, is conspicuous by its absence.

Migration Court of Appeal From 31 March 2006 to 15 April 2008, ninety-two judgments from the Migration Court of Appeal were registered in the Migration Board’s case law database. Complementary case law was taken from a private website.47 In close to forty of these judgments, asylum-related claims were the main issue. International legal materials – although not case law – in the area of 39

40 41

42

43 46

47

UN 16–93, UN 198–94, UN 274–95, UN 312–97, UN 326–97, UN 328–97, UN 341–97, UN 365–99, UN 417–00, UN 420–00 and UN 482–05 to UN 489–05. Most references are to the UN Convention on the Rights of the Child. UN 45–03, UN 365–99, UN 441–03 and UN 198–04. UM 72–06, UM 121–06, UM 147–06, UM 326–06, UM 718–06, UM 724–06, UM 726–06, UM 727–06, UM 1291–06, UM 1318–06, UM 1319–06, UM 1671–06, UM 1743–06, UM 31–07, UM 47–07, UM 721–07, UM 854–07, UM 1007–07, UM 1031–07, UM 1112–07, UM 1144–07, UM 1167–07, UM 1348–07, UM 1586–07, UM 1972–07, UM 2016–07, UM 2026–07, UM 2035–07, UM 2923–07, UM 6295–07, UM 6696–07 and UM 795–08. E.g. UM 72–06, UM 47–07 and UM 1031–07 (Qualification Directive) and UM 2016–07 and UM 2026–07 (Dublin Regulation). 44 45 UM 718–06. UM 721–07. UM 31–07. References were found both in judgments referring to foreign legislation and case law and in judgments not including such references. See: www.pointlex.se.

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refugee law and human rights law, as well as country of origin information from the UNHCR, other countries or non-governmental organizations (NGOs), are referred to in twenty-four of the judgments.48 The majority of the references are made to the Qualification Directive,49 the Dublin Regulation50 and to the UNHCR Handbook.51 The Refugee Convention was referred to in two cases52 as was the Convention on the Rights of the Child.53 No references were found to other human rights instruments. References to non-Swedish academic written works were found in one judgment.54 However, no references to case law from national courts in other European countries were found in any of the judgments examined.

‘Invisible traffic’ ‘Invisible traffic’, for the purpose of this research project, is defi ned as the exchange of information through face-to-face meetings between judges and/or information networks.55 One example of such a network is the International Association of Refugee Law Judges (IARLJ). Th is kind of exchange can be very influential on both the wording and content of judgments but is, for obvious reasons, difficult to trace. It is also difficult to measure the impact of discussions with fellow European judges on the reasoning of an individual judge. Correspondence with selected Swedish refugee law judges indicates that there is some interest in information exchange, but the intensity of that interest varies, depending on the individual judge.56 Formal exchange exists through occasional conferences and meetings where judges from different countries meet. 48

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50 51 52 54 56

UM 23–06, UM 121–06, UM 130–06, UM 131–06, UM 233–06, UM 402–06, UM 475–06, UM 540–06, UM 607–06, UM 716–06, UM 837–06, UM 887–06, UM 930–06, UM 1140–06, UM 1344–06, UM 34–07, UM 177–07, UM 318–07, UM 732–07, UM 1436–07, UM 1869–07, UM 1906–07, UM 2092–07 and UM 2546–07. E.g., UM 23–06, UM 233–06, UM 475–06 and UM 1140–06. The Qualification Directive has not yet been incorporated into Swedish legislation, but its provisions are nonetheless directly applicable in Swedish courts. E.g., UM 34–07 and UM 607–06. E.g., UM 475–06, UM 887–06, UM 318–07 and UM 732–07. UM 475–06 and UM 2546–07. 53 UM 1906–07 and UM 2546–07. 55 UM 233–06. See Lambert, Chapter 1. In both April and August 2008, twelve judges (from the Migration Courts and the Migration Court of Appeal) responded to a questionnaire designed for the purpose of this chapter and sent out to thirty judges. Although a small number, their answers provide some indication to the existing attitudes of Swedish judges to transnational dialogue. The attitude of judges towards international legal materials was also studied while working on the parallel Swedish Red Cross project Ny utlänningslag under lupp.

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Workshops are arranged by the Migration Courts in order to provide judges with the opportunity to keep up to date with current developments in this particular area of law and with new and relevant case law from European institutions and from other European countries. A few judges (in both the Migration Court and in the Migration Court of Appeal) are members of associations such as the IARLJ, with some eight Swedish judges being members of the latter at the time of writing. 57 Other judges in these courts, however, are not even aware of the existence of such a network. One of the judges contributing to the project, a member of the IARLJ, considers the exchange of information and judicial development at European level as a very positive aspect of her professional practice and would like to see it further developed.58 Others state that the differences between the legal systems of the European countries mean that experiences from another national legal context can only be of limited use in the refugee status determination process. The underlying reasons for these different attitudes are considered in the discussion below.

General comments on the survey As shown above in the account of the results of the survey, reference to foreign legal materials occurs in Swedish asylum judgments, albeit not in all cases. However, reference to foreign case law or jurisprudence is rare. This conclusion applies both to the previous and the present systems. The Refugee Convention is referred to at times, as are the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the ECHR. As regards EC legislation, the legal instruments most often referred to are the Asylum Procedures Directive, the Qualification Directive, the Family Reunification Directive and the Dublin Convention/Dublin Regulation. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, along with the Conclusions of the UNHCR Executive Committee, are seen as an important source of law – a position clearly declared in a judgment by the Migration Court of Appeal and in the 57

58

See the IARLJ website www.iarlj.nl. The number of Swedish members can be compared with Denmark (one) and Finland (two), but also with Ireland (thirty-nine) and the United Kingdom (ninety-eight). Judge Sara Renman, the Migration Court in Stockholm, 9 April 2008.

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preparatory works of the Aliens Act.59 At least the Handbook is fairly often referred to as such in the case law. However, neither the Handbook nor the Executive Committee Conclusions, or any other documents issued by the UNHCR, are regarded as part of Swedish legislation.60 Country of origin information from other countries, both within and outside the EU, is sometimes used. International case law from the UN system, the ECtHR and the European Court of Justice (ECJ) is occasionally mentioned. The same cannot be said about case law from other national courts, which is not referred to in any of the judgments examined in the survey. When foreign legal material is referred to, it is used to confirm that a proposed interpretation or solution has a solid foundation in foreign legal materials, or as a source of facts relating to a specific country or social group. The statutes or case law referred to so far seldom seem to be considered as having an independent value on which a complete argument can be built: they are instead primarily used as support for the Swedish statute or previous interpretations made by the court. It should be emphasized, however, that the asylum procedure at the time of the survey had only been in force for slightly over two years and it is not excluded that the attitude towards the inclusion of foreign materials might change. Moreover, Swedish lawyers and non-governmental organizations, even though they would perhaps benefit from it, have not been known to use foreign case law when arguing cases, except on isolated occasions. Whether this depends on lack of interest, lack of knowledge or because it is not encouraged by the courts, is difficult to know. Most likely, it is a combination of these and other elements.

Possible reasons for the lack of reference to foreign jurisprudence in Swedish refugee law judgments Two basic accounts, the rational and the cultural, are suggested in this book as possible explanations for the lack of reference to foreign jurisprudence in refugee law cases.61 The focal points of the rational account are language, time constraints and access, and training. The cultural account, on the other hand, focuses on perceptions of the usefulness of foreign decisions or materials in decision-making in the national asylum procedure. The attitudes inherent in the domestic legal system and domestic legal culture exercise an important influence over or perhaps 59 60

See UM 122–06 (MIG 2006:1) and prop. (Government Bill) 2004/05:170, 94. See UM 837–06. 61 See Lambert, Chapter 1.

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even determine how foreign law is used and perceived. To measure the causal impact of ‘culture’ is always difficult.62 Attitudes, perceptions and mentality are factors that vary from person to person, although they are undoubtedly influenced by the dominant culture, in this case the legal culture of Swedish courts.

Rational account Language may indeed be an obstacle to using foreign jurisprudence as it is difficult to penetrate the legal arguments of a judgment if one’s proficiency in a foreign language is inadequate for this particular purpose. Judgments in English (originally or translated from another language) would not appear to be a problem for Swedish judges (or other groups involved professionally in the asylum procedure), as references to documents in English, such as country of origin information and UNHCR recommendations, can be found in their judgments. References to documents in other languages, however, are rare, which indicates either that such materials are not as common as their English equivalents or that non-English materials are not as easily accessible or understood as documents in English. It must be noted here that Swedish case law is generally not translated into other languages. Time constraints combined with the demands on an effective yet legally secure process in the Migration Courts constitute another reason for the lack of reference to the jurisprudence of other EU countries.63 Judges, at least at the lower level, do not consider themselves to have the time to research foreign case law, particularly when such research has to be undertaken individually by each judge since access to foreign case law is not (so far) organized in the courts. In at least at one of the three Migration Courts, however, some effort has been made to organize how country of origin information is shared and distributed among the judges and presenting officers and it is possible that, at least in the future, this also could include foreign case law.64 At the Migration Court of Appeal, the same time constraints might not be applicable which, at least in theory, leaves more time for the judges to deliberate on their judgments. 62 63

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To start with, the definition of ‘culture’ is a difficult task in itself. See e.g. the views of a younger judge in P. Lundh, ‘Domarrollen och kraven på domare – en yngre, relativt nyutnämnd, domares reflektioner’, Svensk Juristtidning, 3 (2004), 320–3. R. Stern Ny utlänningslag under lupp (Stockholm: Svenska Röda Korset, 2008), s. 173.

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The issue of training at law schools in general, and of judges in particular, is a matter which has been discussed in the context of the internationalization of law and the new demands that this development puts on judges.65 It is no longer sufficient to have only a basic knowledge of international law, but many senior judges were educated at a time when the influence of international law on national law was much less pronounced than it is today. Younger judges might have a different attitude towards using foreign sources as an inspiration.66 On the other hand, new judges are inevitably inducted into a certain culture at the courts, which could constitute an obstacle when introducing new or different approaches.

Cultural account The cultural account or element, although difficult to define, is perhaps the most adequate explanation as to why a transnational dialogue between Swedish and foreign judges so far is limited. The barriers to dialogue can sometimes be more prominent in the minds of those involved than they are in practice. In the following paragraphs, a few of the suggested cultural accounts are discussed in relation to the Swedish context. The style of judgments can serve as an indication of the legal culture in a particular country. Section 30 of the Administrative Court Procedure Act67 states that: The determination of a case by a court shall be based on what is contained in the documents and what has otherwise been established in the case. The decision shall state the reasons that determined the outcome.

Section 31 of the same Act states that: A decision whereby the court determines the case shall be presented to a party through a document that states fully the decision.

As can be seen, these statutes do not go into detail about what should be included in a decision, such as, for example, references to applicable law, how the evidence presented has been assessed, or what has actually been proved in the case. For further guidance, one instead can turn to the 65

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See e.g., P. H. Lindblom, ‘Domstolarnas växande samhällsroll och processens förändrade funktioner – floskler eller fakta?’, Svensk Juristtidning, 3 (2004), 229–62, and S. Strömgren, ‘Domarrollen och kraven på domare – några blickar framåt’, Svensk Juristtidning, 3 (2004), 309–14. H. Eklund ‘Rättsbildningen i en ny miljö – hur har domstolarnas roll och betydelse förändrats?’ Svensk Juristtidning, 3 (2004), 205–28. Swedish Code of Statutes – SFS 1971:291.

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preparatory works of the Administrative Court Procedure Act in which it is stated that those aspects that have been decisive for the outcome should be included, that these reasons must be objective and that the decisions should be written in such a style that the parties understand the reasoning underlying the outcome of the decision.68 The judges thus seem to have quite a lot of discretion in how they choose to formulate their judgments. For example, it can be noted that the frequency of references to foreign legal materials varies between the three Migration Courts, but whether this is due to the different traditions at different courts or the style of judgment preferred by individual judges is hard to say. In practice, Swedish judgments are in general rational, objective and rarely express any reference to the values of the individual judge, even though personal values inevitably have a role to play, directly or indirectly, in the reasoning that has led up to a particular decision.69 One can say that the judgments seldom show any traces of the subjective motives that might have played a role in the outcome of a case. Swedish courts have been described by the distinguished scholar Aleksander Peczenik as ‘holding a relatively weak position in relation to the legislative powers’70 and their case law as being characterized by ‘carefulness, pragmatism and loyalty’71 towards the state. Peczenik continues by saying that Swedish judges often consider the mission of the court to be to execute the political intentions codified in the legislation rather than to interpret the law in the light of morals or values.72 This attitude can be traced back to the legal positivism of the Uppsala school of thought which has had a very strong influence on the Swedish legal system and legal reasoning in Sweden in general, and which is still reflected in the style of judgments.73 The conceptual legal framework in which the Swedish judge operates is mainly determined by the sources of national law: the statutes 68

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SOU (Swedish Government Official Report), Lag om förvaltningsförfarandet, 27 (1964), 441–9. For an in-depth study of Swedish judges and their views on their own role, see O. Ställvik Domarrollen – rättsregler, yrkeskultur och ideal (Uppsala University, 2009). A. Peczenik ‘Lagstift ningen, domstolarna, rättsmedvetandet och rättsvetenskapen’ in SOU (Swedish Government Official Report), Löser juridiken demokratins problem?, 58 (1999), 7–55 (11). Ibid. 72 Ibid. For a short introduction to the Uppsala school and Scandinavian realism, see H. McCoubrey and N. D. White, Textbook on Jurisprudence, 3rd edn, (London: Blackstone, 1999), 178–202. See also A. Peczenik, On Law and Reason (Dordrecht: Kluwer Academic, 1989), 258–68, and J. Bjarup, ’The Philosophy of Scandinavian Legal Realism’, Ratio Juris, 18 (2005), 1–15. For a discussion on contemporary Swedish judges, see Ställvik, Domarrollen.

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themselves, the preparatory works, case law and works of distinguished scholars.74 At least in asylum cases, the works of distinguished scholars are seldom adduced, although this does occur sometimes. As mentioned above, regarding the relationship between national and international law, Sweden adheres to the dualistic tradition of public international law, in which national law enjoys primacy. The influence of international law on Swedish legislation and adjudication is therefore less clear than it would be if international treaties were directly applicable in Swedish courts. The fact that international law is not often referred to in Swedish case law on asylum is most likely a consequence of this dualistic approach, in which international and national law are perceived as two separate systems of law. An additional reason for the lack of reference to foreign case law in Swedish judgments may be that conclusions or reasoning found there are not considered as being of more than limited use, since the asylum procedures vary considerably from country to country.75 Refugee law as a specialist subject is taught at most Swedish universities as part of the law programme or in independent courses. However, no research or teaching centres specialize in this particular area of law, and there is no chair in refugee law. Issues of asylum and refugee law are usually dealt with within the context of public international law or administrative law, although the concept of ‘migration law’ is increasingly used.76 So far, the number of academic publications on the topics of refugee and migration law in the Swedish context is limited, with some notable exceptions.77 Existing works concerning Swedish asylum law mostly consist of legal commentaries, handbooks and textbooks rather than jurisprudential analyses.78 Hopefully, the nature of this domestic dynamic surrounding refugee law cases will change in the future. Interest in asylum and 74 75 76

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Strömholm, Rätt, rättskällor och rättstillämpning, chapters 15–18. A view expressed by several of the judges interviewed for the purpose of the chapter. One example is the fairly new advanced course in ‘Migration Law’ at the Faculties of Law at Stockholm University. In course descriptions, the expression ‘migration law’ is increasingly used in order to signal to the prospective student that the course covers a wider field than traditional refugee law. One example is Gregor Noll, Professor of International Law at Lund University, who has published extensively on refugee law and migration law issues. See, G. Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Law (Leiden/Boston: Martinus Nijhoff Publishers, 2005) and R. Byrne, G. Noll and J. Vedsted-Hansen, New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union (The Hague: Kluwer Law International, 2002). Another example is E. Nilsson, Barn i rättens gränsland (Uppsala: Iustus, 2007). See e.g., G. Wikrén and H. Sandesjö, Utlänningslagen med kommentarer, 8th edn (Stockholm: Norstedts Juridik, 2006) and C. Diesen, A. Lagerqvist Veloz Roca,

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migration law appears to be on the increase among academics, which in turn might have an effect on the way and the extent to which academic publications are referred to and included in the working process of the individual judge and the case law he or she creates. A number of intergovernmental and non-governmental organizations are very active both in the discussion of refugee law policy and, wherever applicable, in individual cases. The Swedish Red Cross, Amnesty International, Save the Children Sweden, the Swedish Refugee Advice Centre and Swedish Refugee Aid are a few examples. UNHCR also plays a role in this national context. One example of the NGO community taking a very active position is the debate following the controversial Migration Court of Appeal judgment of February 2007, in which the Court decided that the situation at the time in Iraq did not fulfi l the prerequisites according to international law of an internal armed confl ict.79 The organizations argued strongly that the Court had not interpreted international law correctly and that the Geneva Conventions had been misinterpreted. However, for NGOs and international governmental organizations to refer to foreign case law in their lobbying or when arguing individual cases is rare.

Conclusion To sum up, judging from the Swedish case law examined in the survey conducted for the purpose of this chapter, Swedish refugee law judges do not allow foreign legal materials or foreign case law to have other than a limited impact on their decision-making. The system of legal reasoning within which these judges operate thus appears to be of a rather ‘closed’ nature – this said, the difficulty of knowing what actually influences the decision-maker should be borne in mind. When reference is made to other than domestic materials, it is often as sources of information rather than as sources of law (for example, country of origin information), or as a support for the Swedish legislation. Two important exceptions, however, are the use of the UNHCR Handbook as a source of law and the references made to the EC Qualification Directive. One possible explanation of this approach is the twin effect that dualism and the tradition of legal positivism has, and has had, on Swedish judges. The most important obstacles to Swedish refugee law judges participating in transnational dialogue thus

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K. Lindholm-Billing, M. Seidlitz and A. Wahren, Prövning av asylärenden. Bevis 8 (Stockholm: Norstedts Juridik, 2007). UM 23–06. For a discussion of the judgment, see Stern, Ny utlänningslag under lupp, 73–82 and 119–22.

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seem to be based on culture rather than on rational accounts. Whether this will change in an increasingly Europeanized context, where harmonization is the buzzword of today, depends on the extent to which Swedish judges will be willing to – and able – to change their approach as to which elements are considered appropriate to include in a written judgment. It is likely that with the influence of a fully implemented CEAS, such a change of attitudes will slowly take place.

11 The search for the one, true meaning … Guy S. Goodwin-Gill

Introduction The raison d’être of the project which lies behind this collection rests on a relatively simple thesis: that states, interpreting and applying the 1951 Convention relating to the Status of Refugees through their legislation, courts and tribunals, ought to have some regard to relevant case law from the jurisdictions of other states party to the Convention. Described in this way, the thesis leaves many questions hanging, among them, what is ‘relevant’ case law, and to what purpose and how exactly is it to be put to use. The preceding chapters have all shown how great are the obstacles in the way of developing a coherent, harmonized, case-based approach to the Refugee Convention, notwithstanding the common history of refugee protection, recent institutional and regional initiatives, and a range of technological developments. Indeed, the opportunities for the transnational dissemination and use of comparative jurisprudence could hardly be more favourable, and increasing numbers of refugee decisions are readily available on the Web, either sponsored by the national refugee determination authority, or through the medium of third-party legal information institutes with a multi-jurisdictional content.1 Nevertheless, as we have seen, barriers remain. Language is still an issue and a problem that impedes access. Knowledge or sufficient knowledge of others’ legal systems, hierarchy of authority, and ways of thinking, reasoning and writing are often understandably lacking, and to this may be added a measure of uncertainty regarding quite why foreign case law may be useful – not because it is binding, of course, but perhaps because it is illustrative, or 1

For example, the UNHCR alone now has some 8,000 decisions on-line in its Refworld database, available at: www.unhcr.org.

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confirms an actual or emerging practice among states regarding accepted interpretation, or because it is persuasively reasoned. The lack of a clear understanding of why and when to use foreign case law can open the way to simple opportunism on the part of decision-makers, picking and choosing to suit and support an interpretation already made. It may be that the idea of a fully uniform system is an impossible target, even within the European Union and a Common European Asylum System. Many currently perceived divergences in national practice under the Refugee Convention may be more about the facts and appreciations of facts, than about law or ‘interpretation’, strictly so called. Nevertheless, the twenty-seven member states of the European Union are engaged in a common endeavour. Their approach to issues of interpretation is shared by the other 120 or so states party to the Refugee Convention/Protocol, but EU states have the added potential advantage of working within a regional law and policy framework which the members have established with the declared purpose of achieving harmonization consistently with international law. The European Union – a community committed to the removal of internal borders, each constituent state of which is party to the Refugee Convention – might be expected to have a particular interest in a single, regionally valid refugee status, to be enjoyed throughout the Union without discrimination. But as with many issues apparently touching on the residual sovereign competence of its members, the EU has not pursued the greater goal, preferring to work instead for harmonization, in particular, through the adoption of the 2004 Qualification Directive.2 Among other aims the Directive looks forward to the ‘full and inclusive application’ of the Refugee Convention (Recital 2), and to the main objective, which is ‘to ensure that member states apply common criteria for the identification of persons genuinely in need of international protection’ (Recital 6). To this end, the Directive itself sets out ‘common criteria’ for identifying refugees sur place, sources of harm and persecution, internal protection, persecution, and reasons for persecution, including ‘membership of a particular social group’.3 Clearly, the stated intention is that the ‘common criteria’, as a matter of law, should conform with the treaties recognized as ‘the cornerstone 2

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EU Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: Official Journal of the European Union 30.9.2004, L 304/12/. See Articles 5–10.

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of the international legal regime for the protection of refugees’ (Recital 3). In Elgafaji, the European Court of Justice (ECJ) was called upon to interpret Article 15(c) of the Qualification Directive in the context of ‘subsidiary protection’.4 It specifically invoked Recital 24, which describes subsidiary protection as being ‘complementary and additional to’ refugee protection; and Recital 25, which affi rms that the criteria for subsidiary protection ‘should be drawn from international obligations under human rights instruments and practices existing in member states’. Just as subsidiary protection is to be interpreted and understood in light of member states’ international human rights obligations, so clearly also is the interpretation of the Directive’s provisions on refugee status and protection to be derived from relevant international sources, namely, the Refugee Convention/Protocol, considered in context, with due regard to the treaty’s object and purpose, and in the light of the general practice of states and the United Nations High Commissioner for Refugees (UNHCR).5 In that context, where both the international text and the tools of interpretation are the same and held by all, one would expect individual jurisdictions to have at least a working interest in what is happening on the other side of the wall. The contributions above show that the interest remains academic at best. The question is, whether the situation would be improved by focusing, promotionally in the fi rst instance, on a theory of relevance and second, on a methodology of synthesis and presentation.

Basic principles of interpretation The 1951 Convention relating to the Status of Refugees possesses a number of distinct features, with which European decision-makers will be generally familiar. First, as an international text, it must be interpreted in accordance with the general principles of international law now recognized as incorporated in the 1969 Vienna Convention on the Law of 4

5

Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, European Court of Justice, 17 February 2009. See K v. Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46, where the House of Lords so interpreted Article 10(1)(d) of the Qualification Directive (reading ‘and’ to mean ‘or’), so as to ensure its consistency with international law; see Lord Bingham at §16. In Januzi v. Secretary of State for the Home Department [2006] 2 AC 426, [2006] UKHL 5, Lord Bingham had also noted that the 2004 Qualification Directive ‘is an important instrument, because it is binding on member states of the European Union who could not, consistently with their obligations under the Convention, have bound themselves to observe a standard lower than it required.’: §17.

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Treaties.6 Second, like the European Convention on Human Rights itself, the Refugee Convention also is a ‘living instrument’, to be interpreted in the light of present-day conditions and in accordance with developments in international law.7 In addition, however, the Refugee Convention/Protocol are marked by the absence of an in-built monitoring system.8 Article 38 of the Convention and Article IV of the Protocol provide for submission to the International Court of Justice of any dispute between the parties relating to interpretation or application, but no references have ever been made and none are anticipated. Each state, therefore, must start by determining the scope of its own obligations. In so doing, it cannot lay down the law for any other state,9 but must necessarily undertake this task if only ‘for the 6

7

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1969 Vienna Convention on the Law of Treaties: 1155 UNTS 331; UN doc. A/CONF.39/27; text also in I. Brownlie, Basic Documents in International Law, 5th edn, (Oxford University Press, 2008), 270. The European Court of Human Rights has regularly endorsed the Vienna Convention’s rules on interpretation; see, for example, Golder v. United Kingdom (Application no. 4451/70), 21 February 1975, §29; Saadi v. United Kingdom (Appl no. 13229/03), 29 January 2008, paras. 26–8, 61–2; but see note 7 below. Saadi v. United Kingdom (Appl no. 13229/03), 29 January 2008, §55 – the views of UNHCR summarized by the Court. The European Court of Human Rights has ‘qualified’ its approach to the European Convention by reference to certain overarching principles. So, for example, as a ‘law-making treaty’, the ECHR is to be interpreted so as best to realize the aim and achieve the object of the treaty, and therefore not in a way which would restrict to the greatest possible degree the obligations undertaken by the Parties: Wemhoff v. Germany (Applications nos 2122/64), 27 June 1968, §8; Brogan and others v. United Kingdom (Applications nos. 12209/84; 11234/84; 11266/84; 11386/85), 29 November 1988, §59. Moreover, and in particular, the Court has stressed that ‘it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory’. It is ‘a living instrument which must be interpreted in the light of present-day conditions’: Mamatkulov and Askarov v. Turkey, (Applications nos. 46827/99 and 46951/99), 4 February 2005, §121; see also Johnston and Others v. Ireland, 18 December 1986, § 53; Tyrer v. the United Kingdom, 25 April 1978, § 31. See also further below, 231–7. The role of UNHCR under Article 35 is examined more fully below. Leo Gross, commenting in 1962 on the judgment of the International Court of Justice in the Asylum case, noted that ‘an authoritative, that is, a binding interpretation, can only result from agreement among the states at variance or from the decision of a tribunal established by common agreement. Th is is one of the central features of international law today. It may not be a satisfactory one, but it is for the states to create the necessary institutional devices and to empower them to interpret their rights and obligations authoritatively and with binding effect.’ L. Gross, ‘Some Observations on the International Court of Justice’, 56 American Journal of International Law, (1962), 33, 51; see also, H. Lauterpacht, The Function of Law in the International Community, 1933, 3; J S. Watson, ‘Autointerpretation, Competence and the Continuing Validity of Article 2(7) of the UN Charter’, 71 American Journal of International Law, 60 (1977). In the absence of a formally established treaty supervisory mechanism, it is the totality of the states parties themselves which are competent to provide authoritative interpretation. Indeed, this is expressly

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sole purpose of determining its own conduct’.10 With many states engaged on an identical process, then, as Leo Gross also remarked: [W]e may never know, or, in some cases, we may not know for a time, which autointepretation was correct … Th is is, for better or worse, the situation resulting from the organizational insufficiency of international law.11

Equally, a collective interpretation, such as the EU’s Qualification Directive, is politically important and certainly binds the twenty-seven EU member states inter se; but while it may bind them internationally as a statement of obligation,12 yet it too is non-opposable to the other 120 states party to the Convention and Protocol. In this context, five articles of the Vienna Convention are particularly relevant to the good faith implementation of treaty obligations. The first is the well-settled rule of pacta sunt servanda, which is expressed in Article 26.13 The second confirms the general rule of international law, that a state party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty …’.14 The third, Article 31, sets out the basic rules of treaty interpretation, and emphasizes ordinary meaning, context, and object and purpose,15 while also including subsequent agreement or recognized in Article 31(3)(a) of the Vienna Convention on the Law of Treaties, though this is scarcely a workable hypothesis on a day-to-day basis in the case of a multilateral treaty such as the Refugee Convention. 10 Asylum Case [1950] ICJ Reports 266, 274, quoted in Gross, ‘Some Observations on the International Court of Justice’. 11 L. Gross, ‘States as Organs of International Law and the Problem of Autointerpretation’ in G. A. Lipsky (ed.) Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (Berkeley: University of California Press, 1953), 59, 76–7; see also, Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit international public, 7th edn, 2002 , 255: ‘émanant d’une seule partie, elle ne peut être considérée comme donnée par celui «qui a le pouvoir de modifier» la règle et n’est pas opposable aux autres États parties.’ 12 Cf. Status of South West Africa , Advisory Opinion, [1950] ICJ Reports, 135–6: ‘Interpretations placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its own obligations under an instrument.’ 13 Article 26 – Pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ 14 Article 27. 15 Article 31 – General rule of interpretation: ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was

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practice establishing the agreement of the parties regarding interpretation, as well as any applicable rules of international law. The fourth, Article 32, permits the use of ‘supplementary means of interpretation’ in order to confirm or determine meaning in cases of ambiguity or obscurity, or to avoid manifestly absurd or unreasonable results.16 Finally, Article 33 provides with regard to treaties in two or more languages, among other matters, that the terms of the treaty are presumed to have the same meaning in each authentic text.

‘Subsequent practice’ and the UNHCR Handbook The notion of ‘subsequent practice’ in Article 31(3)(b) of the Vienna Convention is broad enough to bring in the decisions of national courts as one of many possible indicators of relevant juridical acts, but the general requirements for such practice to give rise to a new, binding interpretation are severe. In particular, the practice in question would need to be common to and/or accepted by all the parties.17 However, if judicial decisions fail, for technical reasons, to satisfy the test of ‘subsequent practice’,18 they

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made by one or more parties in connexion with the conclusion of the treaty and accepted by all the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context, (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’ ‘Supplementary means’ include, but are not necessarily limited to, the travaux préparatoires. The travaux to the Refugee Convention are commonly relied on in argument in the UK, although the courts have rarely found them of great use; see, for example, Lord Steyn in Islam v. Secretary of State for the Home Department [1999] 2 AC 629, at 638 (‘uninformative’); Lord Hoff mann, ibid., 650 (‘shed little light’); also, R v. Asfaw [2008] 2 WLR 1178, [2008] UKHL 31, §53, Lord Bingham. Whether they would be used at all in an interstate case or an advisory opinion, should that ever arise, is a moot point, given that only 26 of the 144 states currently party to the Convention actually participated in the drafting. See Territorial Jurisdiction of the International Commission of the River Oder, PCIJ (1929), Ser. A, No. 23, (Order of 20 August 1929), 42. I am grateful to Dr Agnès Hurwitz for bringing this point to my attention. See Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester University Press, 1984), 138; Anthony Aust, Modern Treaty Law and Practice, 2nd edn (Cambridge University Press, 2007), 241–3. Given that there are now 147 states party to the Refugee Convention and/or the Protocol and that many do not have either a refugee status procedure or a related body of jurisprudence, judicial decisions are unlikely ever to present a picture of uniform and consistent interpretation common to all or most of the parties.

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might nevertheless serve as ‘supplementary means’,19 being illustrative (and perhaps evolutive) of meaning, so far at least as they are demonstrably based in the underlying principles of refugee protection and human rights; their authority may be the greater if they are ‘translated’ into national jurisdictions by an appropriate body. In this context, the existence of UNHCR’s 1979 Handbook on Procedures and Criteria for Determining Refugee Status raises a number of interesting questions, particularly with regard to its provenance and standing. After some earlier discussion in UNHCR’s Executive Committee about the need for uniformity in the determination of refugee status, in 1977 UNHCR submitted a note on the question which pointed out that the basic criteria were the same for all states party to the Refugee Convention/ Protocol. Nevertheless, ‘due to the large number of States involved and the diversity in their internal systems, there may indeed be discrepancies in … interpretation … and in resulting practice.’20 While continuing to stress the value of consultation with UNHCR and of UNHCR’s participation in procedures, one representative at the Sub-Committee suggested that it would be useful if the Office would prepare ‘a simple but authoritative handbook on criteria and procedures …’ for use by governments, and another suggested that it arrange for the systematic circulation of significant decisions. Notwithstanding some concerns about confidentiality, the Sub-Committee21 and the Executive Committee duly approved these proposals.22 At the 1978 Executive Committee meeting, the High Commissioner reported that an advance copy of the English version of the Handbook had already been sent to governments,23 and in 1979 states expressed their appreciation for the then recent issue of 19 20

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Sinclair, The Vienna Convention on the Law of Treaties, 138. ‘Note on the Determination of Refugee Status under International Instruments’, Executive Committee of the High Commissioner’s Programme, Sub-Committee of the Whole on International Protection, UN doc. EC/SCP/5, 24 August 1977, para. 19. ‘Report on Meeting of the Sub-Committee of the Whole on International Protection’, Executive Committee of the High Commissioner’s Programme, Sub-Committee of the Whole on International Protection, UN doc. EC/SCP/6, 7 November 1977, paras. 25, 28(g). ‘Report on the 28th Session of the Executive Committee of the High Commissioner’s Programme’, UN doc. A/AC.96/549, 19 October 1977, para. 53.6(g). ‘Report on the 29th Session of the Executive Committee of the High Commissioner’s Programme’, UN doc. A/AC.96/559, 20 October 1978, paras. 43, 56. The Handbook in fact is the successor to the 1940s Manual for Eligibility Officers, used by the International Refugee Organisation, UNHCR’s own internal Eligibility: A Guide for the Staff of the Office of the UNHCR (1962), and the ‘Eligibility Bulletins’ and ‘Legal Bulletins’ also prepared by the Legal Division under the directorship of Paul Weis up until his retirement in 1967.

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the printed version. Several representatives also indicated that, ‘while their Governments were essentially in agreement with its contents, they would like to submit certain constructive comments. The Director of Protection indicated that the Handbook would be formally submitted to Governments for comment and discussion.’24 The following year, the ‘usefulness’ of the Handbook was cited again, and a number of governments added that they had submitted comments which it was hoped would be taken into account when a new version was prepared.25 The Preface to the original 1979 version declares: The ‘criteria for determining refugee status’ set out in this Handbook are essentially an explanation of the defi nition of the term ‘refugee’ given by the 1951 Convention and the 1967 Protocol. The explanations are based on the knowledge accumulated by the High Commissioner’s Office over a period of about 25 years, since the entry into force of the 1951 Convention on 21 April 1954, including the practice of States in regard to the determination of refugee status, exchanges of views between the Office and the competent authorities of Contracting States, and the literature devoted to the subject over the last quarter of a century. As the Handbook has been conceived as a practical guide and not as a treatise on refugee law, references to literature etc. have purposely been omitted.26

As this account demonstrates, the Handbook was produced on the initiative and at the request of states’ members of the UNHCR Executive Committee. It was based on UNHCR’s accumulated knowledge – the 24

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‘Report on the 30th Session of the Executive Committee of the High Commissioner’s Programme’, UN doc. A/AC.96/572, 19 October 1979, para. 68. ‘Report on the 31st Session of the Executive Committee of the High Commissioner’s Programme’, UN doc. A/AC.96/588, 20 October 1980, para. 36. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status , (Geneva: UNHCR, 1979), Preface, para. (v), 1. In the 1992 ‘re-edited’ version, the Preface is re-titled ‘Foreword’ and ‘signed’ by the then Director of International Protection. The Foreword notes that since its fi rst publication, ‘the Handbook has been regularly reprinted to meet the increasing demands of government officials, academics, and lawyers concerned with refugee problems. The present edition updates information concerning accessions to the international refugee instruments including details of declarations on the geographical applicability of the 1951 Convention and 1967 Protocol.’ However, no substantive changes were made to the text, which remained and remains unchanged. No new version has been prepared, but changes and new challenges to the interpretation and application of the Convention refugee definition have been addressed in the ‘Guidelines’, particularly those published after a series of expert seminars and extensive consultations conducted by UNHCR between 2000–2. See the Preface and Foreword in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003); published in French as La protection des réfugiés en droit international (Bruxelles: Editions Larcier, 2008).

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practice of states and of UNHCR in its relations with states – and on experience gained directly and through the Office’s participation in various national refugee determination procedures. Here, UNHCR’s role in the transnational promotion of consistency in decision-making draws clearly on its statutory protection responsibility of promoting ‘the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’.27 Moreover, states party to the Refugee Convention/Protocol have expressly undertaken to cooperate with UNHCR in the exercise of its functions and, in particular, to ‘facilitate its duty of supervising the application of the provisions’ of the Convention and the Protocol.28 The ‘authority’ of the Handbook in this sense has not been challenged by states, and neither has the programme of complementary guidelines on international protection which UNHCR initiated under its ‘Agenda for Protection’ in 2000.29 From the perspective of treaty interpretation, however, the Handbook does not clearly come within the Vienna Convention’s frame of reference. It has been suggested that it falls under Article 31(3)(b) as evidence of subsequent practice establishing agreement on interpretation,30 and the circumstances of its preparation and the availability to states of an international forum – the UNHCR Executive Committee – in which to express dissent or qualification are good grounds for accepting this argument, at least in relation to practice in the period 1954–79. The same could be said for UNHCR’s later Guidelines as likewise mediating practice and judicial decisions through the prism of international interpretation and UNHCR’s 27

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UNHCR Statute, para. 8(a); annexed to UNGA resolution 428(V), 14 December 1950; see also para. 8(b), referring to UNHCR’s promotion of special measures, ‘to improve the situation of refugees and to reduce the number requiring protection.’ Article 35, 1951 Convention; Article II, 1967 Protocol. See UNHCR, ‘Note on International Protection’, UN doc. EC/55/SC/CRP.12, 7 June 2005, para. 19; ‘Note on International Protection’, UN doc. EC/54/SC/CRP.9, 9 June 2004, para. 16; Conclusion on Protection from Sexual Abuse and Exploitation, ‘Report of the 54th Session of the Executive Committee’, UN doc. A/AC.96/987, 10 October 2003, para. 23(b) (i). See also, UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/975, 2 July 2003; ‘Update on Implementation of the Agenda for Protection’, UN doc. EC/53/SC/ CRP.10, 3 June 2003, paras. 36–7. In R v. Secretary of State for the Home Department, ex parte Sivakumaran (UNHCR Intervening) [1988] 1 AC 958, 981, to the question on what basis the Court might have regard to the Handbook, counsel for UNHCR replied, ‘as evidence of state practice in the interpretation and application of the Convention: see Article 31 of the Vienna Convention on the Law of Treaties’. See also M. Symes and P. Jorro, Asylum Law and Practice, (London: Lexis-Nexis, 2003), 7.

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particular responsibility to supervise the application of the Convention.31 However, the practice of courts and tribunals, particularly in the United Kingdom, reveals a degree of uncertainty and inconsistency.

The theory and practice of treaty interpretation What national courts and tribunals do – the case law on the refugee definition and other aspects of the Refugee Convention – has long been recognized as important interpretive material.32 National courts are not ‘competent to bind’ states, but ideally, when they come across issues of international law, will seek impartially to give their view of what that law is.33 Clearly, however, the national judge is not always able to come to international law independently and impartially, and his or 31

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Between 2002 and 2004, UNHCR issued the following Guidelines on International Protection: ‘Religion-Based Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees’, HCR/GIP/04/06, 28 April 2004; ‘Guidelines on Internal Flight or Relocation Alternative within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, HCR/GIP/03/04, 23 July 2003; ‘Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’, HCR/GIP/03/05, 4 September 2003; ‘Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees’, HCR/GIP/03/03, 10 February 2003; ‘“Membership of a Particular Social Group” within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’: HCR/GIP/02/02, 7 May 2002; ‘Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’: HCR/GIP/02/01, 7 May 2002. With their origins in an international process of consultation which began in the fi rst years of the Millennium, the Guidelines have benefited from widespread participation, including that of governments, have been widely disseminated and have been open to comment or qualification in the Executive Committee. See the lists of participants following Parts 2–10 of Feller, Türk and Nicholson, Refugee Protection in International Law. See K v. Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46, §10: ‘Since the Convention is an international instrument which no supra-national court has the ultimate authority to interpret, the construction put upon it by other states, while not determinative … is of importance … But the starting point of the construction exercise must be the text of the Refugee Convention itself, because it expresses what the parties to it have agreed.’ See also Fairchild v. Glenhaven Funeral Services Ltd [2003] AC 32, [2002] UKHL 22, §32, cited in Robert Reed, ‘Foreign Precedents and Judicial Reasoning: The American Debate and British Practice’, 124 Law Quarterly Review (2008) 253–73, 266–7. In a leading United Kingdom case on state immunity, Lord Denning MR said that it is ‘for the courts to determine the rules of international law, seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions’: Trendtex [1977] 1 All ER 881, 888.

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her ‘take’ on international law and the meaning of terms will be affected by the prevailing national legal culture, by constitutional principles, by statute, and sometimes by executive fiat.34 Judicial decisions are not a source of law, in the sense that they directly bind the state whose courts hand them down, but ‘the cumulative effect of uniform decisions of national courts is to afford evidence of international custom.’35 This simple statement, of course, masks a number of variables, including the status of the courts in question and the intrinsic merits of the decision, 36 and it is premised on a standard of achievement – uniformity – which is often said to be missing in the refugee law context. Moreover, national refugee and asylum law judges do not act in a vacuum. Frequently their approach to the meaning of terms is effectively controlled by the content of local legislation which may, or may not, be consistent with international obligations. Article 31(3)(b) of the Vienna Convention nevertheless opens the door to the emergence of consensual interpretations by way of judicial decisions, for both legislation and judicial decisions constitute ‘state practice’. 37 In assessing the legal weight to be attached to such practice in international law, it is relevant to consider not only its extent, uniformity and consistency, but also which states are involved, whether the practice represents all or a significant majority of the states party, or ‘significant actors in refugee protection’, or a regional group. In the absence of a supranational court, this assessment is likewise a matter for other national courts, although clearly there is a role here for the UNHCR.38 34

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If courts commit errors of interpretation or decline to give effect to the treaty, or cannot do so because national law is inadequate or obstructive, then ‘their judgments involve the state in a breach of treaty’: A. D. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), 346. R. Y. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th edn., (London: Longman, 1992), 41–2, para. 13. Ibid. I. Brownlie, Principles of Public International Law, 7th edn, (Oxford University Press, 2008), 2. The importance of the jurisprudential dimension, in both the protection of individual refugees and the development of doctrine, has long been recognized by UNHCR, which began the collection of case law in electronic form in the mid 1980s and which pioneered availability through Gopher even before the advent of the World Wide Web. Abstracting, however, was given up, primarily for cost reasons, but also because the rapid development of ‘search in free text’ soft ware was thought likely to reduce the need to invest in the skilled exercise of reducing judicial decisions to their accurate essence. Ironically, the opposite has resulted; on the one hand, the collection and publication of refugee decisions in full text has become easier – the RefCas component of UNHCR’s Refworld now holds nearly 8,000 decisions from some 45 national and 10 international jurisdictions; but on the other hand, it has become harder to determine relative value and authority.

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Treaty concepts are essentially evolutionary. As the International Court of Justice has noted in another context: Interpretation cannot remain unaffected by the subsequent development of the law … Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation.39

In addition, interpretation requires account to be taken of any relevant rules of international law, whether treaty or customary, which apply in the relations between the parties, or which govern the conduct of states in relation to the protection of individuals and their human rights. Long ago in 1958, Hersch Lauterpacht expressed the view that the established canons of construction: must be supplemented by the principle that when the intention of the parties is not clear it must be assumed that they intended a result which is in conformity with general international law … In many a case of treaty interpretation the effect of the treaty will depend on our view as to the position of customary international law on the question.40

It is not clear that this dimension – which also reflects the general principle that a state must exercise its rights consistently with its international obligations – has so far been fully appreciated at the national level; or that the opportunities for constructive development have been fully grasped.41 Despite formal acknowledgement of interpretation in context and by 39

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Namibia, Advisory Opinion, [1971] ICJ Reports 16, 31. See also Aegean Sea Continental Shelf Case (Greece v. Turkey), [1978] ICJ Reports 3, 32, applying a presumption that a generic term (sc. ‘the territorial status of Greece’) is ‘intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time.’ H. Lauterpacht, The Development of International Law by the International Court, (London: Stevens, 1958), 27–8. See also, E. Zoller, La bonne foi en droit international public, (Paris: Editions Pedone, 1977), 202–3. Some national courts, such as the UK House of Lords, may be overly cautious in approaching arguments based on customary international law (and apply unnecessarily high standards of proof), for fear of trespassing on Parliament’s legislative competence, particularly where ‘new’ rules are advanced; see, for example, R (European Roma Rights Centre and others) v. Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1. A standard French text, the seventh edition of Nguyen Quoc Dinh’s Droit international public edited by Patrick Daillier and Alain Pellet, notes (at 237–8) the inherent ambiguity of the constitutional norm (Articles 26, 28 of the 1946 Constitution, Article 55 of the 1958 Constitution), that treaties have ‘force de loi’, but also remarks on the ‘timidity’ of judges when called upon to apply international treaties or faced with the question of interpretation or confl icts with national law. This may now be changing, and the Conseil d’État

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reference to object and purpose, more often than not it is the primacy of the text that seems to prevail, irrespective of developments generally in related areas of international law. Article 31(1) of the Vienna Convention invites the national judge charged with applying the Convention, to interpret it ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Auto-interpretation, therefore, is not licence, but is based on a fundamental principle of international law which, while it acknowledges the strict letter of the law, also recognizes exceptions and room for development.42 In fact, the permissible parameters of the search for true meaning have long been contested. During the 1950s, Hersch Lauterpacht and Gerald Fitzmaurice argued this point in the Institut de Droit International, where Lauterpacht was for the expansive approach to interpretation, and Fitzmaurice for the textual.43 But what emerged after the debates of the 1950s and 1960s, and after the Vienna Conference, was an interpretative approach which employs good faith to link the text in its ordinary meaning to context and object and purpose. At one and the same time it limits both formalism, and the search for intentions beyond the words. Good faith cuts both ways; where the language is clear, the interpreting judge is constrained to apply the text, and a good faith determination permits no modification.44 But in a multilateral convention involving the protection of individual rights, rather than sovereignty, good faith may require

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has moved to assert its own interpretative competence, which until then had been left to the Minister of Foreign Affairs. See Hélène Lambert and Janine Silga in Chapter 4 above. Gentile, De Jure Belli Libre Tres, III, chap. XIV, cited in Zoller, La bonne foi, 207: ‘toutes les subtiles exceptions juridiques devraient être laissées de côté, et on ne devrait dire que ce qui est digne d’un souverain. Une exception fondée sur les points délicats du droit ne convient pas à ceux qui désirent être considérés parfaitement comme dignes de confiance.’ A good account generally of the issues involved can be found in two articles by Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain other Treaty Points’, British Yearbook of International Law, 28 (1951), 1, and ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’, British Yearbook of International Law, 33 (1957), 203. Lauterpacht was elected to the International Court of Justice, while Fitzmaurice followed Brierly as the International Law Commission’s Special Rapporteur on the Law of Treaties, and was in turn succeeded by Sir Humphrey Waldock. See Acquisition of Polish Nationality, PCIJ, Ser. B, No. 7, 20; Admissions, Advisory Opinion, [1950] ICJ Reports 8. In some circumstances, such strictness might be said to accommodate the general principle that limitations on the sovereignty of states should not be presumed; however, there is no general rule that texts are to be ‘strictly’ applied; see further below, Lord Bingham at n. 97; also, n. 118.

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a more nuanced approach, sometimes even a ‘reasonable interpretation’,45 or a response more particularly in harmony with changed circumstances and evolving understanding. This encompasses what the European Court of Human Rights identifies as ‘effectiveness’;46 it also takes account of the general principle which requires the interpretation and application of treaty obligations by reference to ‘any relevant rules of international law applicable in the relations between the parties’.

‘Subsequent practice’ and ‘ foreign citation’ In his 2008 Law Quarterly Review article, Robert Reed suggested that the practice of ‘foreign citation’ has not received the degree of reflection it deserves, particularly as regards the ‘how and why’ of selection.47 Jeremy Waldron made a similar point in the Harvard Law Review in 2005, lamenting in relation to the US Supreme Court decision in Roper v. Simmons (on the juvenile death penalty) that no one in the Court, for all the disputation, had ‘bothered to articulate a general theory of the citation and authority of foreign law’.48 Each comes to the issue with a particular perspective: Waldron is commenting on a jurisdiction in which originalist or textual approaches carry considerable weight, especially in the matter of constitutional interpretation, while Reed speaks of one in which the propriety of citing foreign law is not an issue in itself, where originalist theories do not appear to be entrenched, but where there may nevertheless be underlying doubts about the impact of ‘foreign law’ on ‘our’ distinctive culture and values, which the law itself should also reflect.49 45

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See Barcelona Traction, [1970] ICJ Reports 3, 48, para. 93: ‘it is necessary that the law be applied reasonably’. As the arbitral tribunal in Cayuga Indians remarked in 1910, ‘The demand is based on an elementary principle of justice that requires us to consider the substance and not to allow ourselves to stick in the bark of the legal form.’ Cited in Zoller, La bonne foi, 229. In McCann v. United Kingdom 21 EHRR 97, (Application No. 18984/91), 27 September 1995, at §146, the European Court of Human Rights set out a position that it has repeated many times since, namely that its approach ‘must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective’. See also Lauterpacht, The Development of International Law by the International Court, 227–30. Reed, ‘Foreign Precedents and Judicial Reasoning’, at 254–5. The author is primarily concerned with the comparative use of foreign domestic law judgments, rather than with foreign judgments referring to or interpreting international law. However, much of what he says can sensibly be applied to both situations. Jeremy Waldron, ‘Foreign Law and the Modern Ius Gentium’, Harvard Law Review 119 (2005), 129–47, at 129. Reed, ‘Foreign Precedents and Judicial Reasoning’, 260.

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Both Reed and Waldron are understandably concerned by the potential scope which ‘foreign citation’ allows to judicial discretion, the opportunities for selective use, and the risks inherent in not properly comprehending to what purpose citation is employed. Many of these concerns are borne out by the review of cases which follows, but it is submitted nonetheless that foreign law does have an important role to play in the interpretation and application of the Refugee Convention/Protocol. What other jurisdictions actually do is potentially relevant from a number of angles: fi rst, for example, a foreign court’s reasoning and analysis may be persuasive in their own right, revealing or confirming legal meaning on the basis of an extensive review of the sources, such as the travaux préparatoires and the practice of states; second, the foreign court’s decision may be evidence of an evolving or consolidating standard – in itself, state practice50 – which, on that account, ought to be incorporated into the interpretation of the Convention, considered as a living instrument responsive to changing circumstances; and third, the foreign decision may reflect or be consistent with UNHCR’s position on interpretation, itself the product of jurisprudential review and consultation with governments and others in the exercise of its responsibility to ‘supervise the application’ of the Convention.51 Eyal Benvenisti has also noted the value of international law as a source of collective standards and ‘an invaluable tool for national courts’: By referring to each other’s interpretation of a shared text, they may not only signal readiness to cooperate, but also to a certain extent impede the future retreat of one of them from the shared interpretation: as courts carefully watch each other, the one that backs away has to offer an explanation to its peers.52

The role of UNHCR The exact nature of UNHCR’s role in relation to interpretation of the law is somewhat uncertain. The UNHCR Statute and the Convention both mention the Office’s responsibility for supervising the application of the 50

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Provided, of course, that the court in question is sufficiently authoritative that its decision(s) are accepted by the state, and not evidently likely to be overturned by legislation. Article 35, 1951 Convention; Article II, 1967 Protocol; Paragraph 8(a), Statute of UNHCR, annexed to UNGA res. 428(V), 14 December 1950. Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’, American Journal of International Law, 102 (2008), 241–74, 252. Among other sources, Benvenisti draws particularly on Convention/Protocol jurisprudence; ibid., 262–67.

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Convention, but UNHCR is not a party to the Convention.53 Its responsibility to supervise the ‘application’ of the Convention and the Protocol is accepted by states, but whatever this responsibility may entail – and the travaux préparatoires offer little or no guidance – UNHCR is clearly not a treaty supervisory body as that is understood today.54 It does not claim to be, and is not accepted as, the final authority on the meaning of words; indeed, on matters of interpretation it might be argued that it is no better placed than any state party. Moreover, UNHCR possesses no clear, single mechanism through which to express its views, otherwise perhaps than by ‘official’ publication. On the other hand, UNHCR now has nearly sixty years’ experience of working with states in the provision of protection and the promotion of solutions; its Statute provides it with a refugee definition broadly equivalent to that in the Convention and Protocol, and it has considerable crossjurisdictional experience. In addition, states have requested its guidance, accepted the Handbook as an authoritative basis of interpretation, and encouraged the promulgation of later Guidelines on protection issues, particularly the application of the refugee definition. These Guidelines, in turn, have been developed by UNHCR on the basis of its experience and in the light of jurisprudential developments, and in consultation with states and other interested parties; they have been published widely, and remain subject to evaluation by states in the Executive Committee. So far as national courts may be less accommodating and have occasionally rejected UNHCR positions on the law, practice in the UK suggests that this is as much due to opportunism as to a lack of clarity on the part of all concerned regarding the exact nature of the Office’s role. For example, it is one thing for UNHCR to focus its interventions on the interpretative possibilities of the Convention, working within the meaning of the words themselves, considered in context and with due regard to object and purpose; but quite another to address recommendations to states in their law- and policy-making capacity, arguing for seriously progressive development, and for change and amendment beyond the meaning of words. The former is an area in which courts can play a role, although it will obviously vary between jurisdictions and depend on the extent to which 53

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For a recent proposal to establish a body having authoritative, if not binding competence in matters of interpretation, see Anthony M. North and Joyce Chia, ‘Towards Convergence in the Interpretation of the Refugee Convention: A Proposal for the Establishment of an International Judicial Commission for Refugees’, in Jane McAdam, ed., Forced Migration, Human Rights and Security, Oxford: Hart Publishing, 2008, 225. But see generally, V. Türk, ‘The Role of UNHCR in the Development of International Refugee Law’, in F. Nicholson and P. Twomey, Refugee Rights and Realities, (Cambridge University Press, 1999), 153.

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international law is incorporated or is otherwise a relevant source. Even so, what is still needed is a rational basis for dealing with the decisions from other jurisdictions, together with a clearer understanding of the role and responsibility of UNHCR towards the Convention as a living instrument. Although this notion is not mentioned in the Vienna Convention, Fitzmaurice was perhaps one of the first to detect the rise of the ‘theory of emergent purpose’. For him, however, this was an ‘extreme and dynamic form of the teleological approach’, and likely to lead judges to assume a legislative rather than interpretative function.55 He was prepared to accept that it had some role to play, particularly in the case of general multilateral conventions, but he would certainly have viewed the extent to which both the Refugee Convention and the European Convention on Human Rights have been interpreted in this way with concern.56 Nevertheless, it is now widely accepted that ‘human rights’ treaties call for a more dynamic approach to interpretation than is offered by the ‘textual’ and ‘intentions’ methods.

Approaches to interpretation in the case law of the United Kingdom The following pages aim to identify the approaches adopted by the higher courts in the United Kingdom to the criteria and methodology of interpretation as applied to the Refugee Convention/Protocol,57 and to the uses made of foreign decisions in their own right and as ‘incorporated’ by UNHCR in the development of its own legal positions vis-à-vis the Convention. The United Kingdom is not like every other jurisdiction, of course. The courts have accepted the authority of the Vienna Convention on the Law of Treaties, they remain remarkably open to the citation of foreign case law, which they have long recognized as relevant 55

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Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4’, 203, 208. For a succinct summary of the drawbacks of the various methods of treaty interpretation – intentions, textual and teleological – see also Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’ at 2; and on the problems with divining intention in multilateral treaties, particularly in the case of later accessions by states which played no part in the drafting; ibid., 4. See, for example, his separate opinion in Golder v. United Kingdom, (Application no. 4451/70), 21 February 1975. The legislative history and background to the processes of asylum decision-making and appeal in the United Kingdom are described above by Hélène Lambert and Raza Husain in Chapter 7, which also highlights the relatively few specific references to continental jurisprudence by UK courts, by comparison with the number of citations to other common law jurisdictions.

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to the interpretation of international treaties, they are generally familiar with the use of supplementary means of interpretation, such as travaux préparatoires, 58 and they have traditionally accepted UNHCR as an ‘intervener’ in appeal proceedings, even if there is some inconsistency in approaching its submissions. The general approach of UK courts to treaty interpretation is illustrated by the case of King v. Bristow Helicopters Ltd. (Scotland),59 which involved Article 17 of the Warsaw Convention on International Carriage by Air. Here, the House of Lords emphasized the importance of ‘international uniformity … if possible, consistent with the mainstream views expressed in leading overseas authorities’.60 Lord Hope, in particular, stressed that the Convention should be considered as a whole, and given a ‘purposive construction’. He referred to the need to look for a meaning ‘which can be taken to be consistent with the common intention of the states which were represented at the international conference’,61 to which he added: In an ideal world the Convention should be accorded the same meaning by all who are party to it. So case law provides a further potential source of evidence. Careful consideration needs to be given to the reasoning of courts of other jurisdictions which have been called upon to deal with the point at issue, particularly those which are of high standing. Considerable weight should be given to an interpretation which has received general acceptance in other jurisdictions. On the other hand a discriminating approach is required if the decisions conflict, or if there is no clear agreement between them.62

Lord Hope also considered whether the Warsaw Convention was one of the ‘always speaking’ type, so that it should be interpreted in the light of current scientific evidence.63 In his view, the meaning of the words in the Convention ‘must be the meaning which was to be attributed to them when the Convention was entered into in 1929’, although the application of that meaning to the facts would depend on the evidence. While it would not be right to use subsequent practice to show that the meaning of words had changed, for the proper way to change meaning 58

59 60

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See, for example, Buchanan & Co. v. Babco Ltd. [1978] AC 141 (Lord Wilberforce at p. 152); Fothergill v. Monarch Airlines Ltd. [1981] AC 251 (on aids to interpretation, including foreign decisions and travaux préparatoires). [2002] 2 AC 628, [2002] UKHL 7. Ibid., §5 (Lord Nicholls), §7 (Lord Mackay). Given the important position of the USA in air travel, particular attention was paid to US decisions. 62 Ibid., §§76, 77. Ibid., §81. The point at issue was whether the concept of ‘bodily injury’ as used in 1929 was now (in 2002) to be interpreted as including mental, that is, non-physical injury.

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is by amending the Convention, some evidence of settled practice by all contracting states would be helpful in showing what they had always understood the words to mean.64 Whether the same approach to the contemporary meaning of treaty terms is appropriate for all international agreements is open to question, however, although much practice tends in this direction. As already emphasized, treaties for the protection of human rights and of those in fl ight from the actual or apprehended violation of human rights require a theory and a methodology which is consistent with their underlying object and purpose, considered in context and with due regard to changing circumstances.65 Here, practice and decisions from elsewhere play a somewhat different role, not necessarily as ‘authorities’ in their own right, but as potentially helpful in developing national and international understanding of the evolving sense of words, once account is taken of their position in the local hierarchy, the reasoning adopted and their relationship to developments at the international level.

The search for ‘autonomous meaning’ The higher courts have been conscious of the ‘formidable difficulties’ in the way of fi nding ‘international meaning’. In the Court of Appeal in Adan (Hassan Hussein) v. Secretary of State for the Home Department, Thorpe LJ referred to Nehemiah Robinson’s reference to the ‘obscurities’ of Article 1 in his 1953 publication Convention relating to the Status of Refugees: Its History, Contents and Interpretation, adding: ‘If that was the contemporary view of the obscurity of the text it is not surprising that its interpretation 46 years later continues to perplex even specialist and skilled interpreters …66 When that case came to the House of Lords, Lord Lloyd was moved to note: One cannot expect to fi nd the same precision of language as one does in an Act of Parliament drafted by parliamentary counsel … It follows that one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were

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King v. Bristow Helicopters Ltd. (Scotland) [2002] 2 AC 628, [2002] UKHL 7, §§82, 98. See, in particular, George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007), Ch. 3, ‘Intentionalism, Textualism, and Evolutive Interpretation’. [1997] 1WLR 1107, at 1114.

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seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach.67

In a similarly named case in the Court of Appeal two years later, which involved a challenge to the proposed return of an asylum seeker to a ‘safe third country’ which did not recognize non-state actors as potential sources of persecution, Laws LJ referred to the notion of ‘international meaning’, as it had been explained earlier by Lord Woolf MR in the case of Iyadurai,68 and asked himself the question: ‘Where is the dividing line to be found between those instances where the third country’s application or interpretation of the Convention falls beyond this range of tolerance, or violates the treaty’s international meaning, and those where it does not?’69 One dividing line, he suggested, might be between matters of interpretation and matters of appreciation, where interpretation is an essentially legal question requiring uniformity, consistency and adherence to international meaning, while appreciation involves questions of fact in particular, on which states retain a measure of discretion, at least up until the point where the exercise of discretion exceeds its legal bounds.70 In the instant case, the Court found that those fearing persecution by non-state actors, where the state is not complicit but is unable or unwilling to provide protection, were entitled to protection under the Convention – an interpretation which it considered to be supported by paragraph 65 of the UNHCR Handbook.71 This approach was endorsed by the House of Lords in Adan (Lul Omar) v. Secretary of State for the Home Department, where Lord Slynn and Lord Steyn both rejected the idea that there could be ‘a list of permissible or legitimate or possible or reasonable meanings’ of the Convention.72 The task is to find ‘the meaning of the Refugee Convention as properly 67

68 69 70

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Adan (Hassan Hussein) v. Secretary of State for the Home Department [1999] 1 AC 293, at p. 305. [1998] Imm AR 470. Adan (Lul Omar) v. Secretary of State for the Home Department [2001] 2 AC 477, at p. 496. Ibid., 497–500. In English law the traditional bounds to the exercise of discretionary powers lie in the Wednesbury principles, according to which a reviewing court will strike down a discretionary decision if no reasonable decision-maker, properly directing themselves, could have come to the conclusion in question; see Associated Provincial Picture Houses Ltd v. Wednesbury Corpn [1948] 1 KB 223. Adan (Lul Omar) v. Secretary of State for the Home Department [2001] 2 AC 477, at 500. Ibid., per Lord Slynn at 509.

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interpreted … to determine the autonomous meaning of the relevant treaty provision. This principle is part of the very alphabet of customary international law …’73 Lord Steyn went on to develop an approach based in principle on the ‘autonomous interpretation of convention concepts’ common to human rights treaties:74 Closer to the context of the Refugee Convention are human rights conventions where the principle requiring an autonomous interpretation of convention concepts ensures that its guarantees are not undermined by unilateral state actions. Thus the European Court of Human Rights has on a number of occasions explained that concepts of the European Convention for the Protection of Human Rights and Fundamental Freedoms … must be given an autonomous meaning, e.g. concepts such as ‘civil right’ and ‘criminal charge’…75

After referring to Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which he understood as codifying ‘already existing public international law’, Lord Steyn added: It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in articles 31 and 32 and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: article 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court of Justice is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.76

The place of the UNHCR Handbook in the pursuit of autonomous meaning Apart from a number of exceptions mentioned below, the superior courts generally have been fairly supportive of the positions adopted by UNHCR, 73

74 76

Ibid., per Lord Steyn at 515. Cf. the notion of ‘autonomous concepts’ in the practice of the European Court of Human Rights; see Letsas, A Theory of Interpretation of the European Convention on Human Rights, Ch. 2. Adan (Lul Omar), 513–5. 75 Ibid., 516. Ibid ., 516–7. During the 1951 Conference of Plenipotentiaries, the representative of the Inter-Parliamentary Union, Mr Rollin, remarked that something different was needed, as ‘the persons really concerned were not States, but individuals’. He suggested the grant of ‘consular powers’ to the High Commissioner for Refugees, and the

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whether in the Handbook, later Guidelines or in submissions as intervener. However, the Asylum and Immigration Tribunal, (formerly the Immigration Appeal Tribunal) has been somewhat more equivocal. Content to invoke it to support various interpretations,77 the Tribunal has also regretted that the Handbook has not gone far enough.78 It has said that it should differ from UNHCR ‘only with the greatest circumspection’,79 but has not hesitated to qualify its ‘very great respect’80 with insisting that UNHCR’s views ‘are not … binding on us and they do not necessarily reflect the correct interpretation of the Convention’.81 For example, the Tribunal has explicitly rejected paragraph 163 of the Handbook on the personal scope of Article 1F(c),82 although without regard to the inter-temporal dimensions and the law’s capacity for development; and it has suggested that paragraph 157 – to the effect that a sentence served, pardoned or amnestied creates a presumption that the exclusion is not to be applied – is ‘in contradiction of the Convention which says no such thing’.83 Likewise in the same case, the Tribunal dismissed paragraph 155 of the Handbook as an ‘unwarranted gloss’ on the meaning of ‘serious’ crime, but again in studied disregard of the Handbook’s provenance and, indeed, of the practice, amply evidenced from other sources, which it represents.84 Other Tribunal decisions have followed a similar line,85 in circumstances suggesting a disinclination to see UNHCR as the body charged by states members of the

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right to seek advisory opinions from the International Court of Justice: UN doc. A/ CONF.2/SR.10. See, for example, Gashi (Asylum; Persecution) Kosovo [1996] UKIAT 13695. See, for example, Smith v. SSHD [2000]UKIAT 00TH02130 (on the determination of the country of former habitual residence in the case of a stateless asylum seeker: §41). El-Ali v. Secretary of State for the Home Department [2002] UKIAT 00159, §35. KK (Article 1F(c), Turkey) [2004] UKIAT 00101, §68. Ibid., citing Sivakumaran v. SSHD [1988] AC 958 and El-Ali v. SSHD [2003] Imm AR 179, as disapproving a passage from the Handbook and the effect of general UNHCR guidance respectively. In fact in Sivakumaran, it is by no means clear that paragraph 42 of the Handbook bears the meaning which Lord Goff ‘rejected’; see at 999–1000. On El-Ali, see further below. AA (Exclusion clause) Palestine [2005] UKIAT 00104, §§52–3. Ibid., §65. In fact, the terms of the Convention neither support nor oppose the UNHCR position, which is therefore manifestly not a contradiction; rather, it is an interpretation which the judge has chosen to disregard. Notwithstanding its various protestations of respect, the Tribunal concludes, though without regard to authority: ‘The UNHCR Handbook is a source of guidance as to the law and is not a source of legal obligation. It is not necessarily a guide to state practice, because it may not relate to state practice in any particular paragraph but more to UNHCR’s exhortations. Its exhortations may also reflect the humanitarian perspective, wider than the Refugee Convention, which UNHCR sometimes adopts. Interpretation or guidance from UNHCR is entitled to great respect but it may also be inaccurate or tendentious.’ Ibid., §67. See, for example, IH (s72; ‘Particularly Serious Crime’) Eritrea [2009] UKIAT 00012, §§42, 43.

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United Nations with the general responsibility to provide international protection to refugees and as having specific functions in regard to the Refugee Convention/Protocol.86 This contrasts with the position of the Court of Appeal and the House of Lords. Lord Woolf MR recognized the provenance and context of the UNHCR Handbook in ex parte Robinson: There is no international court charged with the interpretation and implementation of the Convention, and for this reason the Handbook on Procedures and Criteria for Determining Refugee Status, published in 1979 by the Office of the United Nations High Commissioner for Refugees, is particularly helpful as a guide to what is the international understanding of the Convention obligations, as worked out in practice.87

The Court of Appeal has thus accepted that the Handbook reflects UNHCR’s experience, ‘including experience as to the practice of states’.88 In Adan (Lul Omar) v. Secretary of State for the Home Department, Lord Steyn called in aid the view of a majority of other states, in conjunction with paragraph 61 of the Handbook. In relation to UNHCR he noted specifically: Under articles 35 and 36 of the Geneva Convention, and under article II of the 1967 Protocol, the UNHCR plays a critical role in the application of the Refugee Convention: compare the Statute of the Office of the United Nations High Commissioner for Refugees, General Assembly Resolution 428(V) of 14 December 1950, para 8. Contracting states are obliged to co-operate with UNHCR. It is not surprising therefore that the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals …89 86

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The Tribunal has nevertheless expressed its support for the idea of autonomous international meaning; see KK (Article 1F(c), Turkey) [2004] UKIAT 00101, §§60, 61; also §§42, 66, 72, 132. R v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, at 938. See also at 940, referring to the Secretary of State’s acceptance ‘that it was appropriate to interpret this country’s obligations under the Convention by reference to what is set out in paragraph 91 of the Handbook ’. See Revenko v. Secretary of State for the Home Department [2001] QB 601, Pill LJ at 622; Clarke LJ at 629–30. See also Lord Clyde in Horvath v. Secretary of State for the Home Department [2001] 1 AC 489, at 515: the Handbook ‘has the weight of accumulated practice behind it’; the Joint Position of the European Union adopted on 4 March 1996 (Official Journal 1996 L63, p. 2), cited by Laws LJ in Adan (Lul Omar) v. Secretary of state for the Home Department [2001] 2 AC 477, at 490. Ibid., 519. See also R (Sivakumar) v. Secretary of State for the Home Department [2003] 1 WLR 840, [2003] UKHL 14, drawing support from paragraph 85 of the Handbook, save that in the sentence, ‘Such excessive or arbitrary punishment will amount to persecution’, the Court would have substituted the word ‘may’ for the word ‘will’: (§7 (Lord Steyn), §30 (Lord Hutton).

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More recent House of Lords decisions, discussed below, have adopted a similar position.

Express words and the limits to interpretation The problem of what to do with express words is well illustrated by the case of R (Hoxha) v. Special Adjudicator, R (B) v. Immigration Appeal Tribunal.90 Here, the Court of Appeal was faced with the application of Article 1(C)(5) of the Convention, which provides that it shall cease to apply to refugees who, because the circumstances in connection with which they have been recognized have ceased to exist, can no longer continue to refuse to avail themselves of the protection of their country of nationality. An exception is provided, however, and ‘this paragraph shall not apply to a refugee falling under Section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.’ The Court was asked to accept that the limitation by reference to Article 1(A)(1) – that is, primarily to ‘statutory refugees’, including those recognized under earlier international instruments – should be ‘read up’ so as now to include all Convention refugees. In support of this position, it was argued inter alia that the provision reflected a general humanitarian principle, which had been adopted in the laws of some and in the practice of other states. The Court of Appeal, however, rejected this argument. It rested the first premise of its judgment on the Handbook and the cautious language of paragraph 136, which speaks only of what ‘could’ and ‘should’ be done. Having reviewed the evidence, it found that there was no sufficient widespread and general practice establishing a legal obligation, and it rejected UNHCR’s argument from principle.91 The House of Lords agreed. In Lord Hope’s words: Care … needs to be taken, when analysing the evidence on which the appellants rely, to distinguish between the meaning of the words which article 1 of the Convention uses to identify those who are entitled to the status of refugee and the practices which contracting states have chosen to adopt in their discretion to give effect to these humanitarian principles. A large and liberal spirit is called for when a court is asked to say what the Convention means. But there are limits to this approach. The court must recognise the fundamental fact that the Convention is an agreement between states. The extent of the agreement to which the states 90

[2003] 1 WLR 241, [2002] EWCA Civ 1403.

91

Ibid., per Keane LJ at §§36–49.

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Guy S. Goodwin-Gill committed themselves is to be found in the language which gives formal expression to their agreement.92

Good faith interpretation does not justify reading into a treaty words which are not there, or expanding ‘the limits which the language of the treaty itself has set for it’.93 Lord Brown also noted the Handbook ’s language of ‘aspiration and exhortation’, and tracked the development of UNHCR’s position from 1979 onwards, through a Conclusion adopted by the UNHCR Executive Committee in 1992, UNHCR guidelines issued in 1999, and then eventually to a statement of ‘obligation’ in revised guidelines published in 2003.94 He did not accept that the evidence justified such a progression, or that the practice of states was sufficiently consistent or general as to indicate agreement on a change in the meaning of the terms.95 The clarity of the wording used to describe the exception suggests that this was a case in which UNHCR’s intervention would have been better concentrated on the state, in an effort to persuade it either to amend its laws in the direction of the humanitarian principle, or to exercise its discretion accordingly.96 The case of Januzi v. Secretary of State for the Home Department illustrates a related problem, namely, the extent to which words or meaning can be implied into a particular treaty provision. Here, the House of Lords was faced with the issue, not specifically addressed in the refugee definition, of whether and when a putative refugee should in fact be expected and required to make use of an ‘internal flight alternative’, that is, to seek protection from persecution elsewhere in his or her country of origin; and if so, whether he or she might nevertheless still secure recognition as a 92

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R (Hoxha) v. Special Adjudicator, R (B) v. Immigration Appeal Tribunal [2003] 1 WLR 241, [2005] UKHL 19, per Lord Hope at §8. On the other hand, the idea that states always have clear, concrete ideas about the content and extent of their treaty obligations, particularly in the human rights field, is probably an illusion; see Letsas, A Theory of Interpretation of the European Convention on Human Rights, 57, 74–9. R (Hoxha) v. Special Adjudicator, R (B) v. Immigration Appeal Tribunal [2003] 1 WLR 241, [2005] UKHL 19, §§9, 16–19. Ibid., §§76–9. Ibid., §82–3. See also R (European Roma Rights Centre and others) v. Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1, §§11–16 (Lord Bingham). In this case the claimants faced on insuperable obstacle in regard to their Convention-based claims; they were not outside their country of origin and so did not satisfy the words of a key element of the refugee definition – something which interpretation could not overcome. In fact, UK policy was in general to follow the humanitarian argument; see Lord Brown, R (Hoxha) v. Special Adjudicator, R (B) v. Immigration Appeal Tribunal [2003] 1 WLR 241, [2005] UKHL 19, §84.

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refugee if the alternative failed to ensure ‘basic norms of civil, political and socio-economic human rights’. Said Lord Bingham: As a human rights instrument the Convention should not be given a narrow or restricted interpretation. None the less, the starting point of the construction exercise must be the text of the Convention itself … because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text or from uniform acceptance by states that they would have agreed or have subsequently done so.97

Quoting paragraph 91 of the UNHCR Handbook, he nevertheless noted that the ‘relocation alternative’ had long been accepted as a reason for denying protection, subject only to the requirement that it should be reasonable and not entail undue harshness. Lord Bingham rejected the argument for a certain level of human rights protection, fi nding that such a rule could not be implied into the Convention and that it was not currently supported by the necessary uniformity of international practice and consensus of opinion to establish a rule of customary international law.98 He nevertheless found ‘valuable guidance’ on the reasonableness standard in UNHCR’s 2003 Guidelines on international protection.99

Interpretation in the face of ambiguity or obscurity Article 32 of the Vienna Convention permits recourse to ‘supplementary means of interpretation’, including the travaux préparatoires, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31, ‘(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’. UK courts have accepted that the travaux can be helpful,100 but have generally advised caution, so far as the material may not indicate a view held in common.101 97

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Januzi v. Secretary of State for the Home Department [2006] 2 AC 426, [2006] UKHL 5, §4. Ibid ., §§16, 18 (Lord Bingham); see also §§46–50 (Lord Hope), §§64–67 (Lord Carswell). Ibid., §20. See, for example, Fothergill v. Monarch Airlines Ltd [1981] AC 251, 278 (Lord Wilberforce); In re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495, §54 (Lord Mance). King v. Bristow Helicopters Ltd. (Scotland) [2002] 2 AC 628, [2002] UKHL 7, §79 (Lord Hope).

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In practice, the travaux may indicate the origins of the ambiguity, such as lack of draft ing time, but not necessarily provide a clear indication of exactly what was intended.102 It may also be that states participating in the draft ing process did not anticipate a future problem, and resolving the ambiguity or obscurity will then depend on later practice and related developments. The case of El Ali v. Secretary of State for the Home Department concerned the interpretation and application of Article 1D of the Convention,103 and specifically the question whether the Convention should apply ‘automatically’ to Palestinians outside the area of operations of the UN Relief and Works Agency (UNRWA), whose situation remained unresolved.104 One question to emerge was whether the benefit of Article 1D extended only to Palestinians who were refugees on some anterior date, such as 26 July 1951, when the Convention was opened for signature; or whether it should extend also to the descendants of such refugees. The travaux préparatoires made no mention of any critical date governing the Convention entitlements of Palestinians, but they clearly confirmed, among other matters, that Palestinians were considered to be refugees by the United Nations by reason of the political and military events attending the emergence of the state of Israel; and that a political solution to their plight was anticipated relatively quickly. The history of subsequent developments also provided ample evidence of Palestinian refugees’ continuing need for protection, whether within or outside UNRWA’s area of operations. Faced with an admitted lack of clarity in the text, the Court of Appeal opted out of the ‘living instrument’ approach which Laws LJ, the leading judge in the case, had unhesitatingly endorsed – with House of Lords approval – in R v. Secretary of State for the Home Department, ex parte 102

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As Fitzmaurice noted long ago, the travaux can be ‘extremely confused and confusing’, ‘actively misleading’, and ‘reference to the records will be, at best, futile, and quite possibly mischievous’: Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’, 15–16; see also Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4’, 203, 216–20; Lauterpacht, The Development of International Law by the International Court, 116–42; McNair, The Law of Treaties, pp. 411–23; J. K Klabbers, ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’ Netherlands International Law Review 50 (2003), 267. Article 1D provides: ‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.’ El Ali v. Secretary of State for the Home Department [2003] 1 WLR 95.

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Adan.105 Article 1D was thus interpreted without reference to context or object and purpose, and the Court avoided extending protection to certain Palestinian refugees by relying on an essentially intentions approach to the problem of ambiguity: ‘What matters is what the parties to the Convention in fact agreed in 1951, not what they might have agreed had they envisaged a state of affairs which they did not foresee at the time.’106 However, there was no clear evidence of intention at all, and notwithstanding the scope left to it by the absence of express words, the Court gave no weight to the significant body of international practice which UNHCR adduced in support of its interpretation. It took little or no account of the fact that UNHCR, in exercising its own statutory competence, had determined that Palestinians outside UNRWA’s region of operations do fall within its mandate, and that in doing so, it had based itself on, among other materials, relevant resolutions of the UN General Assembly dealing with the definition and description of ‘Palestinian refugees’. Despite UNHCR’s complementary role in relation to the application of the Refugee Convention, the Court did not explain why it should not follow the protection lead given by UNHCR, otherwise than by adopting its contrary choice of meaning.107

The ‘living instrument’ approach Although from one perspective they would seem to be obviously in tension, even in contradiction, UK courts have consistently upheld the notion that the terms of the Refugee Convention possess a ‘single autonomous meaning’, while also being responsive to changing times and circumstances. In Sepet v. Secretary of State for the Home Department,108 for example, Lord Bingham agreed that the Court must respect Articles 31 and 32 of the Vienna Convention, but added: It is plain that the Convention has a single autonomous meaning, to which effect should be given in and by all member states, regardless of where a decision falls to be made … It is also … plain that the Convention must 105 106

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[2001] 2 AC 477, 500; see below, text to note 107. El Ali v. Secretary of State for the Home Department [2003] 1 WLR 95, 125, para. 66 (Lord Phillips of Worth Matravers MR). The reader should know, if he or she has not already suspected as much, that the author is an interested party in this affair, having acted as counsel pro bono for UNHCR intervening in El Ali; UNHCR’s submissions in the case are available on Refworld: www.unhcr. org. For further discussion of this case, see G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn, (Oxford University Press, 2007), 156–61. Sepet v. Secretary of State for the Home Department [2003] 1 WLR 856.

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Guy S. Goodwin-Gill be seen as a living instrument in the sense that while its meaning does not change over time its application will.109

He expressly agreed with an earlier observation by Sedley J, as he then was, in R v. Immigration Appeal Tribunal, Ex p Shah: Unless it [the Convention] is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism.110

Lord Bingham likewise endorsed a comment in similar vein by Laws LJ in R v. Secretary of State for the Home Department, ex parte Adan: It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world. In our view the Convention has to be regarded as a living instrument: just as, by the Strasbourg jurisprudence, the European Convention on Human Rights is so regarded.111

The facts raised the question, among others, whether a conscientious objector to military service with a well-founded fear of persecution might come within the Convention refugee definition. This in turn invited consideration of a number of familiar issues, including the reasons for any such fear (social group, political opinion, and so forth), whether prosecution and punishment under a law of general application or the availability of alternative service had a bearing on the issue, and whether the treatment in fact accorded to conscientious objectors amounted to persecution. The judgment in Sepet, however, neglected the opportunities for aligning protection with the times, to which the ‘living instrument’ approach might otherwise seem to have opened the way. On the contrary, certain of the assumptions underlying the decision, not expressly mentioned in the Convention, may well prove obstacles to protection. Although the House of Lords was prepared to recognize that ‘the reach of an international human rights convention is not forever determined by the intentions of those who originally framed it’,112 and notwithstanding the fact that the UNHCR Handbook paragraphs dealing with conscientious objection to military service dated from 1979, Lord Bingham and the Court were not prepared to give such weight to developments since then as would bring the conscientious objector within the protective scope of Article 1A(2) of the Refugee Convention. Having determined, 109 112

111 Ibid., §6. 110 [1997] Imm AR 145, 152. [2001] 2 AC 477, 500. Sepet v. Secretary of State for the Home Department [2003] 1 WLR 856, §11.

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in the absence of express words to this effect, that ‘persecution’ requires the violation of a ‘fundamental human right’, and having further found that ‘conscientious objection to military service’ is not recognized in customary international law as a fundamental human right,113 the Court effectively ruled itself out of adopting a living instrument approach to protection. For there is certainly nothing in the Convention which stands in the way of such an interpretation and, while the Handbook in 1979 may have fallen short of a clear statement of obligation, it was open to the Court to adopt an interpretation more consistent with the object and purpose of the treaty and with the evolving understanding of the individual’s freedom of conscience in his or her relationship with the state.114 In this context, where no revision to the express words of the treaty is called for, the Court has no need to find the existence of some new rule of customary international law, or to identify a body of concordant practice among the state parties in applying a treaty sufficient to indicate agreement as to how the terms of that treaty should be interpreted.115 Rather, it needs to look for the interpretation most consistent with the object and purpose of the Convention and its underlying values. Such an approach can be seen to work effectively when the court reasons within the bounds of the words themselves, as it did in the more recent cases of K and Fornah116 and Asfaw.117 In the joined appeals of K and Fornah, the House of Lords faced questions arising in regard to the interpretation of ‘membership of a particular social group’, including, first, whether a family may be a social group, and second, whether a fear of female genital 113

114

115

116 117

Ibid., §11: ‘it is plain that several respected human rights bodies have recommended and urged member states to recognise a right of conscientious objection to compulsory military service, to provide a non-combatant alternative to it and to consider the grant of asylum to genuine conscientious objectors. But resolutions and recommendations of this kind, however sympathetic one may be towards their motivation and purpose, cannot themselves establish a legal rule binding in international law.’ Ibid., §18: ‘the evidence before the House does not disclose a uniformity of practice.’ The Court could also have characterized the confl ict between individual and state as essentially political, and as involving a dispute about the respective limits of competing rights; see Goodwin-Gill and McAdam, The Refugee in International Law, 112–6. Article 31(3)(b), 1969 Vienna Convention on the Law of Treaties. Compare R (Hoxha) v. Special Adjudicator, R (B) v. Immigration Appeal Tribunal [2003] 1 WLR 241, [2002] EWCA Civ 1403, per Keane LJ at §§36–49 (where what was argued for was effectively a revision of the ‘exception’ to Article 1C(5) of the Convention, so as to extend its benefit to all refugees, and not just those so-called statutory refugees who had been recognized in accordance with Article 1A(1)). K v. Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46. R v. Asfaw (United Nations High Commissioner for Refugees intervening) [2008] 2 WLR 1178, [2008] UKHL 31.

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mutilation (FGM) would be for reasons of the appellant’s membership of a particular social group. The Court began by recalling that ‘the starting point of the construction exercise must be the text of the Refugee Convention itself, because it expresses what the parties to it have agreed.’118 Thereafter, on the question of the family as a social group, Lord Bingham cited both domestic authority and a number of Australian, Canadian and US cases,119 but paid particular attention to UNHCR’s convening of an expert meeting on the question of social group120 and to its subsequent issue of Guidelines.121 He noted expressly that UNHCR’s position indicated acceptance of views advanced in Applicant A122 and in Shah,123 and concluded that the Guidelines, ‘clearly based on a careful reading of the international authorities, provide a very accurate and helpful distillation of their effect’.124 On the second point, Lord Bingham noted that claims based on FGM had been recognized or upheld ‘all around the world’; in addition to domestic decisions, he cited authorities from the USA, Australia, Austria and Canada, which he noted were consistent with the clearly expressed opinions of UNHCR, with the view of the European Parliament, with guidelines issued by national authorities, and with the humanitarian objectives of the Convention.125 Baroness Hale quoted with approval paragraph 5 of the 2002 UNHCR Guidelines on gender-related persecution, to the effect that ‘the analysis 118

119

120

121

122 123 124

125

K v. Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46, §10 (Lord Bingham). Fidelity to the text does not have to be strict, of course, but can also be creative; see Letsas, A Theory of Interpretation of the European Convention on Human Rights, 68–72. Lord Bingham and other members of the Court referred, in particular, to Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Applicant S v. Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; In re Acosta (1985) 19 I & N 211 (US Board of Immigration Appeals); Canada (Attorney General) v. Ward [1993] 2 SCR 689; Chan v. Canada (Minister of Employment and Immigration) [1995] 3 SCR 593; Chen Shi Hai v. Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; Minister for Immigration and Multicultural Affairs v. Sarrazola (No 4) [2001] FCA 263; Thomas v. Gonzales (2005) 409 F 3d 1177. The expert group and the background paper by T. Alexander Aleinikoff make up Part 4 of Feller, Türk and Nicholson, Refugee Protection in International Law, 263–315. ‘ “Membership of a Particular Social Group” within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’: HCR/ GIP/02/02, 7 May 2002. Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. R v. Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629. K v. Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46, §15; see also §52 (Lord Hope), §85 (Baroness Hale). Ibid., §26.

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and understanding of sex and gender in the refugee context have advanced substantially in case law, in state practice generally and in academic writing [and] have run parallel to, and have been assisted by, developments in international human rights law and standards’.126 After further examination of the Guidelines on membership of a social group and its background, she too found that they were consistent with the approach adopted earlier by the House of Lords.127 In Asfaw, the Court was faced with the interpretation and application of Article 31 of the Refugee Convention,128 substantially incorporated into UK law by section 31 of the Immigration and Asylum Act 1999. Article 31 itself provides that Contracting States shall not impose penalties on refugees who, coming directly from a country in which they fear persecution and showing good cause, illegally enter or are present. In this case the refugee, having illegally entered the United Kingdom, then sought to leave it illegally using another false passport, and for this act of attempted exit she was prosecuted. By a 3:2 majority, the House of Lords held that the immunity accorded to a refugee by reason of his or her ‘illegal entry or presence’ should not be limited to offences of entering or remaining illegally in an intermediate country, but should include offences committed when leaving it to seek asylum elsewhere. The express terms of Article 31 do not appear to cover the ‘onwards’ movement of refugees in search of asylum, but the fact that they frequently do have to keep moving was recognized from the start.129 The one qualification, added at the insistence of the French representative, was that the immunity from penalties should not enable refugees settled or resident in other countries of asylum to exercise a de facto right of immigration and settle elsewhere at will. The majority of the House of Lords held that the Convention was to be given a ‘purposive construction’ consistent with its humanitarian aims, and that immunity from criminal penalties should also cover infractions of the law reasonably or necessarily committed in the course of flight from persecution, including a refugee’s attempt to leave a country following a short stopover in transit. 126 128

129

Ibid., §§85–6, 98. 127 Ibid., §103. Article 31, entitled ‘Refugees unlawfully in the country of refuge’, provides in relevant part: ‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ For further discussion of the drafting history and scope of Article 31, see Goodwin-Gill and McAdam, The Refugee in International Law, 264–7.

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As he had done so often in previous cases, Lord Bingham emphasized that the starting point must be ‘the literal meaning of the words used’, but he then underlined that ‘the words must be construed in context, and an instrument such as the Refugee Convention must be given a purposive construction consistent with its humanitarian aims.’130 Unusually, perhaps, the travaux préparatoires were considered helpful, particularly because of their focus on the crossing of land borders, ‘and there was accordingly no consideration of the position of refugees changing planes in the course of escape to a country of intended asylum.’131 Lord Bingham referred with approval to various opinions expressed by UNHCR, including through the Handbook, Guidelines and in the context of the 2001 UNHCR Geneva Round Table on Article 31 held as part of the Global Consultations on International Protection.132 He added that ‘the opinion of the Office of the UNHCR … is a matter of some significance, since by article 35 of the Convention member states undertake to co-operate with the office in the exercise of its functions, and are bound to facilitate its duty of supervising the application of the provisions of the Convention.’133 In an approach reminiscent of that adopted by the European Court of Human Rights in Golder v. United Kingdom,134 Lord Bingham concluded: 54. … the best guide is to be found in the evolutionary approach that ought to be taken to international humanitarian agreements. It has long been recognised that human rights treaties have a special character. Th is distinguishes them from multilateral treaties that are designed to set up reciprocal arrangements between states. Humanitarian agreements of the kind to which the Convention belongs are entered into for a different purpose. Their object is to protect the rights and freedoms of individual human beings generally or falling within a particular description … 55. … In this case a meaning has to be given to the words ‘on account of their illegal entry or presence’ in article 31(1) which identify the type of penalties that the contracting states are not to impose on refugees who satisfy the requirements of the article. I would not confine the meaning of that expression to the particular situations that the framers had in mind 130

131 132

133 134

R v. Asfaw (United Nations High Commissioner for Refugees intervening) [2008] 2 WLR 1178, [2008] UKHL 31, §11. Ibid. Ibid., §§12–13, 19. The Geneva Round Table, for which the author prepared a background paper, is the subject of Part 3 of Feller, Türk and Nicholson, Refugee Protection in International Law, 185–260. R v. Asfaw., §13. Golder v. United Kingdom, (Application no. 4451/70), 21 February 1975. See further, Letsas, A Theory of Interpretation of the European Convention on Human Rights, 61–8.

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in this case either. The overall context is provided by the preamble to the Convention. It refers to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. It states that ‘the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’. This is an indication that a generous interpretation should be given to the wording of the articles, in keeping with the humanitarian purpose that it seeks to achieve and the general principle that the Convention is to be regarded as a living instrument. 56. The single most important point that emerges from a consideration of the travaux préparatoires is that there was universal acceptance that the mere fact that refugees stopped while in transit ought not deprive them of the benefit of the article …135

Dissenting, both Lord Rodger and Lord Mance preferred to stay close to the literal meaning of Article 31 which, on their view, was all about entry and presence and said nothing about leaving.136 Notwithstanding the fact that the express words of Article 31 required no effective rewriting in order to reach the conclusion adopted by the majority, Lord Mance argued for a strict approach to its interpretation, which would have required extensive evidence of state practice sufficient to establish the agreement of the parties,137 rather than one based on the essential object and purpose of the provision – immunity from penalty – considered in the context overall of the Convention’s aim to ensure protection. Interpreted and applied within the concept of the Convention as a ‘living instrument’, Article 31 is clearly capable of bearing the meaning attributed to it by the majority and it does no disservice to the protection objective.

Conclusion There is no doubt that cases requiring interpretation will come up with some regularity in the immediate future, if for no other reason than that the courts of EU member states must now work out exactly what the Qualification Directive means, and that divergences between jurisdictions 135 136 137

R v. Asfaw, §§54–6 (emphasis added in §54). Ibid., §82 (Lord Rodger). Ibid., §§125–32 (Lord Mance). Lord Mance relied extensively on the travaux préparatoires, and annexed extracts to his judgment; however, these tend to show, as Lord Bingham had found, that the principal aim was to ensure that refugees in flight were not prosecuted, subject to their meeting the concerns of some states, principally France, that their limited immunity from prosecution should not be exploited by refugees simply

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are more likely than not. Among others, there is still uncertainty regarding the scope of political opinion and of serious non-political crime, the meaning of persecution, the compatibility of protection by non-state actors with the Convention, and whether the House of Lords got it right, as a matter of international refugee law, in its reading of the social group provisions of Article 10 of the Qualification Directive. Although much of the available national case law derives from jurisdictions which were involved in or otherwise associated with draft ing the original text, there are good reasons to approach interpretative judgments based on original intent with a measure, if not of scepticism, then of openness of mind. The fact is that today some 120 states party to the Convention did not participate in the draft ing, and therefore cannot be presumed to share in the drafters’ intent;138 on the contrary, though they came to a common text, they necessarily brought their own understanding of its terms, itself likely modelled on or influenced by senses of meaning shaped by international law as it had by then developed.139 The challenge, where the text allows, is to fi nd that interpretation which is fi rstly, consistent with the object and purpose of the Convention; secondly, responsive to emerging protection needs; and thirdly, rationally related to the underlying values of the refugee regime. At first glance, the guidance provided by the Vienna Convention on the Law of Treaties might appear to place greater emphasis on the ordinary meaning of words, to the exclusion of a more dynamic approach. For example, as many of the cases suggest, foreign judgments are unlikely on their own to meet the threshold requirements of ‘subsequent practice’, however valuable and illustrative in their own right, and for that reason are unlikely to be taken as persuasive evidence of a new or revised meaning accepted by states. On the other hand, national judgments, particularly of the higher courts, have contributed to identifying and understanding meaning and to the development of international refugee law. Moreover, and in the absence of any agreed hierarchy of authority, it is those judgments from

138

139

interested in changing their asylum country without going through regular migration channels. The claimant in Asfaw not having received asylum in any country at the moment of her attempted departure to the state of hoped-for durable refuge, the interpretation adopted is nevertheless consistent with this overall purpose. Letsas, A Theory of Interpretation of the European Convention on Human Rights, 72–3. More than half the states party to the Refugee Convention ratified that instrument twenty-five years or more after it was opened for signature; since 1976, seventy-four States have become party to the Convention, and eighty-two to the 1967 Protocol.

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different nations which stand out by reason of their rigorous analysis and use of materials that carry persuasive force. The precise value of foreign judgments, however, will always depend on context, and on what exactly a court is being asked to do. If express words need changing, rewriting or to be ignored, then a court will necessarily look for good evidence that states, by way of agreement or later practice, have clearly accepted an alternative meaning. But if ambiguity or obscurity need to be resolved, or if meaning has to be attributed to words in context, then the court is, and ought to be, open to progressive interpretation in the light of the object and purpose of the treaty and the necessity to ensure that its terms and the protection for which it provides are effective and in accord with changing times and circumstances. Here, a series of judgments from various jurisdictions may have weight, not because they meet the Vienna Convention requirements of subsequent practice, but as ‘supplementary means’ of interpretation, particularly if ‘translated’ into guidance on the current meaning of words, and filtered through an international process of consultation and verification. In this regard, the UK cases reviewed above present a somewhat mixed picture of inconsistency and opportunity. Thus, the decisions in Hoxha140 and Roma Rights141 clearly involved arguments for changes in or disregard of the actual words of the treaty; in the absence of agreement or subsequent practice, it was beyond the competence of the Court to effect the necessary change by way of interpretation. El Ali,142 on the other hand, was a case of ambiguity or obscurity in a provision which the Court could have rendered more effective in the sense of protection, but which it chose to resolve in favour the interests of the state. The case of Sepet,143 too, was clearly open to a human rights approach more precisely aligned with the individual dimensions to freedom of conscience, where the fundamental goal of protection did not need to wait on the development of an internationally recognized right of conscientious objection to military service.144 The House of Lords judgments in K and Fornah,145 and Asfaw146 stand in contrast to the restrictive approach, and reveal the protection possibilities of working within the terms of the treaty as a living instrument. Much of this book is about and witness to resistance to the citation and use of foreign judgments, even within the EU and between legal systems 140 142 144

145

See above, 227. 141 See above, note 95. 143 See above, 230–1. See above, 231–3. On not waiting for the emergence of customary international law, see Letsas, A Theory of Interpretation of the European Convention on Human Rights, 123–4. 146 See above, 233–5. See above, 235–7.

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in principle committed to a harmonized approach to refugee protection consistent with international law. Nevertheless the challenges here will need to be addressed in the interests of local and regional goals, and if the international legal regime of refugee protection is to remain responsive and effective. The practice reviewed above displays and confirms some of the possibilities, notwithstanding the element of unpredictability which seems to result from the absence of serious jurisprudential understanding of the exact role of foreign judgments and of UNHCR’s function across jurisdictions. Within the EU, where the harmonization process remains nevertheless subject to international law,147 the challenge is to find an acceptable way by which the wealth of jurisprudence can be integrated into the reasoning of national and regional institutions responsible for the interpretation and application of the Refugee Convention/Protocol and the measures taken for their implementation. Clearly, UNHCR has a role here, but how to ensure its standing in many member states and before the ECJ has yet to be worked out. This might follow directly, for example, by accepting UNHCR as an intervener or amicus curiae in proceedings, including references to the ECJ; or indirectly, through greater willingness to recognize the authority148 which attaches to the Opinions and Guidelines of the Office. That authority has its basis in the UNHCR Statute, accepted by all UN member states, and in the Refugee Convention/ Protocol. Moreover, in so far as UNHCR may seek to influence the progressive development of international refugee law, whether by way of new international agreements, national legislation or the evolutive interpretation of existing texts, it remains accountable for its exercise of its responsibilities to the Executive Committee and thereafter to the Economic and Social Council and the General Assembly. UNHCR’s methodology, therefore, must be open and the processes of research, consultation, discussion and governmental input which preceded the promulgation of many of the recent Guidelines may be a model of what is required. Similarly, whether in the formulation of guidelines or in the structuring of its interventions, UNHCR needs to be clearly focused if it is to ensure the continuing effectiveness of the Refugee Convention/Protocol. It must distinguish carefully between positions which deal with matters of interpretation – that is, those which can be adopted, consistently with the meaning of words in context and in the light of the object and purpose 147 148

See above, 205–6. The word ‘authority’ here is not used to signify ‘competence to bind’, but rather something similar to, or perhaps stronger than, the good faith obligation described in Goodwin-Gill and McAdam, The Refugee in International Law, 430–2.

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of the Convention, and which a court therefore can accommodate within the process of reasoning and deciding – and those which are more in the form of recommendations for amendment – that is, those which go beyond the Convention and which are better addressed to states in their executive and legislative capacity, seeking to influence states to adopt that ‘subsequent practice’ which, over time, may come to mark their acceptance of changed interpretation. The search for the one, true meaning, like the pursuit of democracy, is not necessarily one with an end in sight.

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INDEX

academics, 54, 65, 146, 201 accelerated procedures, 161, 175 access, 31, 49, 78–9, 141, 159, 162 Administration (Spain), 112, 121 Administrative Court, 130, 138 Administrative Court Procedure Act (Sweden), 199 administrative courts (Germany), 57–84 administrative courts (Italy), 102–4 administrative judges, 39, 61, 73–8 admissibility, 18–20, 114–16, 172–3 adversarial system, 13 AIT see Asylum and Immigration Tribunal Albania, 167 Aliens Act (Belgium), 24, 33 Aliens Act (Denmark), 174, 184 Aliens Act (Germany), 58, 80, 81 Aliens Act (Ireland), 153 Aliens Act (Sweden), 187, 189 Aliens Appeals Board (Sweden), 145, 187, 190, 191, 192, 193–4 ambiguity, 229–31, 239 appeals, 64, 116, 129–31, 172, 173–5, 190 ARK, 79 see Asylrekurskommission Article 1A (1) Refugee Convention, 71 Article 1A (2) Refugee Convention, 25 Article 1C (5) Refugee Convention, 227 Article 1D Refugee Convention, 139, 230–1 Article 1F Refugee Convention, 47 Article 31 Refugee Convention, 235–7 Article 38 Refugee Convention, 207 Article 68 EC Treaty, 8 assessment of risk, 167

Asylrekurskommission (ARK), 70–2 asylum, 92–9 see also refugee law Asylum Act (Spain), 111 Asylum and Immigration Appeals Act 1993, 127 Asylum and Immigration Tribunal (AIT), 69, 129–30, 138–40, 225–6 asylum claims admissibility, 18–20 asylum decisions, 153–9, 191–7 Asylum Directorate, 128 ‘asylum judges’ asylum jurisprudence, 11 asylum law see refugee law asylum procedures, 171–6, 189–91 asylum rights, 89, 91, 110–13 asylum seekers, 10, 55, 58, 60, 91–2, 108, 121, 172–3 in-transit stops, 235–7 Audiencia Nacional (Spain), 117, 119, 121, 123 auditorat (Belgium), 32–3 Australia, 45 autonomous meaning, 224–7 BAFI see Federal Office for the Recognition of Refugees Basic Law (Germany), 57 Belgium, 14 case law, 25–9 civil law, 29 judges, 23–4, 32–3 legal culture, 31–2 legal framework, 22–4 merits of the claim, 20–2 Refugee Convention, 25–7

255

256

Index

Belgium (cont.) refugee law, 17–34 refugee status determination, 17–29 similar facts, 27–9 transnational dialogue, 17–34, 30 Benvenisti, Eyal, 218 bias, 157 Bingham, Lord, 2, 132, 229, 231–2, 236–7 blood feuds, 167 border applications, 115–16 Bossi-Fini Act, 95–7 Britain see United Kingdom CALL , 32–3 see Council for Alien Law Litigation Canada, 45, 47, 168 case law, 10, 159–66, 177–9, 191–7, 204 see also transnational dialogue background information, 76 Belgium, 25–9 European Court of Human Rights, 29 France, 40 Germany, 63–5 Spain, 119–23 transnational referencing, 12 United Kingdom, 220–37 CEAS see Common European Asylum System Central Commission (Italy), 95, 99–101 CGRSP see Commissioner General for Refugees and Stateless Persons Chechnya, 28 child custody, 82–3 civil code, 86, 87, 118 civil courts, 99, 102–4 civil law, 152 civil society, 168 Commissaire du Gouvernement (France), 36, 47 see also rapporter public (France) Commissioner General for Refugees and Stateless Persons (CGRSP), 19 Common European Asylum System (CEAS), 5 Commonwealth, 4, 15, 144 communitarisation, 15

comparative law, 142 compatibility arguments, 63 Čonka v. Belgium (ECtHR), 29 conscientious objection, 232–3 consistent jurisprudence, 83 constitutional asylum, 93–4, 105 Constitutional Court (France), 35, 41 Constitutional Court (Italy), 88 continental jurisprudence, 138, 139, 140, 148 Council for Alien Law Litigation (CALL), 21–2 Council of State (Belgium), 22, 25, 32–3 Council of State (France), 35, 36, 39, 42, 43, 51, 52 Council of State (Italy), 103 Council of the Bar and Law Society (Denmark), 174 Cour de Cassation (France), 35, 42 Court of Appeal, 69–70, 134–7, 148, 226, 227 Court of Cassation (Italy), 86, 93, 94, 102 Court of Session (Scotland), 137 courts and foreign law, 67–78 credibility, 164, 167 cultural account of transnational dialogue, 31–4, 51–5, 143–8, 199–202 database research, 68, 71, 73, 78 Denmark, 14, 170–85 appeals, 173–5 asylum procedures, 171–6 asylum-seekers, 172–3 ‘domestication’ dilemma, 184–5 foreign law, 170 lawyers, 178–9 reservation to EC law, 179–81 transnational dialogue, 179–85 deportations, 156 detention, 98 divergent interpretation, 64 dualism, 182–4, 187, 201 Dublin Convention, 47, 133, 137 EC legislation, 6, 97–9, 120, 121, 149, 179–81

Index EC Qualification Directive 2004, 48, 120, 121, 128, 181, 205–6, 208, 237 ECHR see European Convention on Human Rights ECJ see European Court of Justice ECtHR see European Court of Human Rights28 English language, 30, 49, 67, 198 EU see European Union European Commission, 6 European Convention on Human Rights (ECHR), 24, 105, 152–3, 187 European Court of Human Rights (ECtHR) European Court of Justice (ECJ), 8–9, 84 European Union (EU), 168, 205–6, 239 communitarisation, 15 judges, 1–16 refugee law, 1–17 exclusion clauses, 27 express words, 227–9, 233 fact-finding, 66 Federal Constitutional Court (Germany), 83 Federal Court (Canada), 167 Federal Office for the Recognition of Refugees (BAFI) (Germany), 59 female genital mutilation (FGM), 44, 234 Fitzmaurice, Gerald, 220 forced marriage, 45–7 foreign citation, 217–18 foreign law, 11, 14–15, 16, 176–85, 217 see also transnational dialogue cultural perceptions, 13 Denmark, 170 fact-finding, 66 France, 41, 53, 55 Germany, 66, 67–78 Ireland, 151, 159–66 Italy, 87, 99–105 Sweden, 186–203 United Kingdom, 126, 131–40 France, 14 asylum procedures, 37–41

257

case law, 40, 56 courts’ use of foreign law, 41–8 foreign law, 41–8, 53, 55–6 judges, 52–3 legal culture, 52 National Asylum Court, 7 refugee law, 35–56 transnational dialogue, 48–55 French language, 49, 67 fundamental rights, 40 Germany, 14 asylum seekers, 58, 60 case law, 63–5 courts’ use of foreign law, 67–78 foreign law, 66, 73–8 judges, 61, 66, 73–8 refugee law, 57–84 refugee status determination, 28 transnational dialogue, 78–84 GG see Grundgesetz (Constitution of Germany) good faith, 216, 228 Görgülü case, 82–3 government asylum decisions, 192–3 Gross, Leo, 208 Grundgesetz (Constitution of Germany) (GG), 57 Hale, Baroness, 234 harmonization, 77, 168 Denmark’s reservation to, 179–81 Hathaway, James, 4, 7, 27 High Court, 130, 137 High Court (Australia), 45 High Court (Ireland), 161, 162, 163, 166 HIV status, 164 Hope Hanlan procedures, 155 Hope, Lord, 221, 227 Horvath principles, 165 House of Lords, 69, 130, 132–4, 221, 226, 228, 232, 233 humanitarian protection, 98, 128 see also protection IARLJ see International Association of Refugee Law Judges

258

Index

Illegal Immigrants Trafficking Act 2001 (Ireland), 158 immigration, 91 Immigration, Asylum and Nationality Act 2006, 131 Immigration Residence and Protection Bill 2008 (Ireland), 157, 159 Immigration Rules (UK), 127 Immigration Service (Denmark), 172, 173, 175 immunity, 235 in-country applications, 116 INIS see Irish Naturalisation and Immigration Service initial decisions, 128–9 Integrated Commissions (Italy), 99 International Association of Refugee Law Judges (IARLJ), 5, 195 International Court of Justice (ICJ), 215 ‘international friendliness’ international law, 24, 64, 82, 148, 152, 187–8, 199, 201, 206 interpretation of, 213–41 national law consistency, 83 internationalism, 152 internet, 78, 79 ‘invisible traffic’, 10, 55, 73, 75, 88, 105, 142, 183, 195 Iran, 28 Iraq, 72, 186, 202 Ireland, 15 asylum decisions, 153–9 case law, 11 foreign law, 151, 159–66 refugee law, 150–69 transnational dialogue, 150–69 Irish Naturalisation and Immigration Service (INIS), 157 Israel, 230 Italy, 14 asylum procedures, 92–9 asylum-seekers, 91–2 foreign law, 87, 99–105 judges, 86, 88 key practitioner survey, 104–5 legal culture, 85–8

refugee law, 89–99 transnational dialogue, 85–106 journals, 78, 79, 145 judges Belgium, 23–4, 32–3 conceptual frameworks, 32–3, 52–3, 144–5, 200–2 European Union, 1–16 France, 52–3 Germany, 61, 66, 73–8 Italy, 86, 88 mentality, 14 Spain, 117–19 Sweden, 195–6, 202 United Kingdom, 125, 138–40, 142, 144–5 judicial mentality, 14 judicial pragmatism, 183 judicial reviews, 161, 163, 172, 175–6, 181–2 jura novit curia, 118 juris database (Germany), 68, 71 jurisprudence, 10–11 see also refugee law Kosovo, 71 language, 30–1, 49, 67, 79, 141, 198 Lauterpacht, Hersch, 215, 216 Laws, Lord Justice, 135 lawyers, 178–9 legal argumentation, 122, 123 legal culture, 31–2, 52 legal internationalism, 152 legal positivism, 200 living instrument approach, 231–7 Lloyd, Lord, 222 Local Commissions (Italy), 96–7, 98, 99, 101, 105 magistrates (Spain), 121–2, 123 Mance, Lord, 237 ‘Martelli’ Act (Italy), 90 merits of the claim, 20–2 Migration Board (Sweden), 186, 189, 190, 191, 192

Index Migration Court of Appeal (Sweden), 190, 191, 194–5, 198, 202 Migration Courts (Sweden), 189, 191, 194, 198 migration law, 17 military service, 232–3 Montesquieu, 22 NAM see New Asylum Model National Asylum Court (France), 7, 38–9, 40, 42, 49, 50, 52, 53, 54 see also Refugee Appeals Board (France) National Commission (Italy), 95, 106 national courts, 213, 219 national judiciaries, 2 National Transformation Act (Germany), 81–2 Nationality, Immigration and Asylum Act 2002, 129 New Asylum Model (NAM), 131 non-governmental organizations (NGOs), 54, 100, 146, 202 OAR, see Spanish Office on Asylum and Refuge obscurity, 229–31, 239 OFPRA (Office français de protection des réfugiés et apatrides), 38, 49, 50 onwards movement of refugees, 235–7 oral hearings, 161–2, 190 Palestinian refugees, 230–1 Peczenik, Aleksander, 200 Permanent Refugee Appeals Commission (PRAC) (Belgium), 20–1, 25 persecution, 26, 43, 44–5, 69, 80, 82, 120, 134, 164, 227, 232, 233 policy harmonization, 3–9 positivism, 200 PRAC, 26, 27, 28 see Permanent Refugee Appeals Commission pragmatism, 183 precedents, 23, 62, 118 prerogatives, 39 Privy Council, 154

259

prostitution, 45 protection, 27, 165, 167, 223, 228 Protection Review Tribunal (PRT) (Ireland), 158 Rapporteur public (France), 36, 42, 43, 47 RAT see Refugee Appeals Tribunal rational account of transnational diaglogue, 30–1, 48–51, 141–2, 198–9 Reed, Robert, 217 Refugee Act 1996 (Ireland), 155–6, 164 Refugee Appeals Board (Denmark), 170, 172, 174–6, 177, 181–2, 182, 183 Refugee Appeals Board (France), 38, 42, 43–8, 49, 55 see also National Asylum Court (France) Refugee Appeals Tribunal (RAT) (Ireland), 151, 156–7, 162, 166–8 Refugee Convention, 4, 9, 21, 24, 38, 57, 65, 71, 72, 80–1, 89, 105–6, 111, 112, 113, 127, 133, 136, 139, 148, 154, 160, 204, 205–6 interpretation of, 144, 206–20, 218, 222–41 living instrument approach, 231–7 Refugee Council (Denmark), 175 refugee law, 15, 17 Belgium, 17–34 Denmark, 170–85 domestic dynamic, 33, 53–5, 145–8 European Union, 1–16 France, 35–56 Germany, 57–84 Ireland, 150–69 Italy, 89–99 Spain, 107–24 Sweden, 186–203 transnational approach, 9–16 United Kingdom, 127–40 Refugee Legal Centre (RLC), 146–8 refugee status determination (RSD), 17–29, 70–1, 89–91, 94–9, 153–9, 210–11

260

Index

Residence Act (Germany), 81 risk assessment, 167 RLC see Refugee Legal Centre RSD see refugee status determination Russia, 28 safe third country, 173 Schengen Convention, 47, 180 scholars see academics Scotland, 137 Slaughter, Anne-Marie, 4 social group, 44–7, 136, 164, 167, 233 Spain admissibility, 114–16 asylum procedures, 114–17 asylum seekers, 108, 121 case law analysis, 119–23 immigration, 107–8 international treaties, 117 judges, 117–19 lawyers, 122 legal order, 110–13, 117–19 refugee law, 107–24 transnational dialogue, 119–23 Spanish Office on Asylum and Refuge (OAR), 115, 116 special reviews unfounded applications, 175–6 state practice, 214 state prerogatives, 39 state protection, 27, 165, 167 Steyn, Lord, 133, 145, 224, 226 style of judgments, 31–2, 52, 143–4, 199–200 subsequent practice, 209, 212, 238, 241 subsidiary protection, 94–5, 98, 101 Supreme Court (Denmark), 181 Supreme Court (Ireland), 159, 163 Supreme Court (Spain), 114, 117, 118 Supreme Court (UK), 130 Sweden, 14 asylum procedures, 189–91 case law, 191–7 foreign law, 186–203 government decisions, 192–3 international law, 187–8 judges, 195–6, 202

judicial system, 188–91 legal framework, 200–2 refugee law, 186–203 transnational dialogue, 197–202 tape recordings, 162 time constraints, 31, 49, 141, 198 torture, 132, 134 training, 142, 199 transnational dialogue, 50–1, 179–85, 204 Belgium, 17–34, 30 France, 48–55 Ireland, 150–69 Italy, 85–106 Spain, 119–23 Sweden, 197–202 United Kingdom, 140–8 transnational refugee law, 9–16 see also refugee law travaux préparatoires, 229–30, 236, 237 treaty interpretation, 213–17 see also international law; Refugee Convention Tunisia, 101 Turkey, 46, 61 ‘Two-Worlds Doctrine’, 80–4 unfounded applications, 175–6 UNHCR (United Nations High Commissioner for Refugees), 111, 122, 144, 192, 220, 240–1 UNHCR Guidelines, 228, 229, 234, 240 UNHCR Handbook, 196, 210–13, 223, 224–7, 228 United Kingdom (UK), 14, 15, 125–49, 163, 219 asylum decisions, 127–40 case law, 220–37 foreign law, 126, 131–40 judges, 125, 138–40, 142, 144–5 refugee law, 127–40 transnational dialogue, 140–8 United Nations High Commissioner for Refugees see UNHCR; UNHCR Guidelines; UNHCR Handbook

Index

261

United States (US), 167

Von Arnim procedures, 154

VCLT see Vienna Convention on the Law of Treaties Verwaltungsgericht (VG), 59 Vienna Convention on the Law of Treaties (VCLT), 12, 82, 148, 208–9, 214, 216, 238

Waldron, Jeremy, 217 Warsaw Convention on International Carriage by Air, 221–2 welfare organizations, 146 Woolf, Lord, 223, 226 written law, 23