tag:theconversation.com,2011:/global/topics/refugee-law-24487/articlesRefugee law – The Conversation2024-03-27T03:24:35Ztag:theconversation.com,2011:article/2267132024-03-27T03:24:35Z2024-03-27T03:24:35ZThe consequences of the government’s new migration legislation could be dire – for individuals and for Australia<p>The Albanese government came to power with <a href="https://twitter.com/AlboMP/status/1154510763433684992?lang=en">a promise</a> to be “strong on borders without being weak on humanity”. </p>
<p>But there was little humanity in parliament yesterday as the government tried to force through some of the most draconian migration laws this country has seen in decades. The draft legislation was distributed to MPs and introduced in the lower house for debate <a href="https://www.abc.net.au/news/2024-03-26/government-suddenly-brings-on-legislation-deportation-powers/103632704">just hours</a> later.</p>
<p>Today, the senate <a href="https://www.abc.net.au/news/2024-03-27/coalition-wont-support-immigration-legislation/103638462">stopped the bill</a> in its tracks, referring it to a committee instead of passing it just before a parliamentary break.</p>
<p>In a radical departure from the existing framework, the government is seeking to further criminalise the migration system. The consequences could be disastrous.</p>
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Read more:
<a href="https://theconversation.com/the-government-is-fighting-a-new-high-court-case-on-immigration-detainees-whats-it-about-and-whats-at-stake-226120">The government is fighting a new High Court case on immigration detainees. What's it about and what's at stake?</a>
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<h2>What would the laws do?</h2>
<p>The <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7179">Migration Amendment (Removal and Other Measures) Bill</a> proposes amendments to the Migration Act to deal with situations where non-citizens subject to removal are not cooperating with government authorities, or where their own government refuses to take them back. </p>
<p>It is widely understood to be a response to the High Court’s ruling in <a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">November 2023</a> that found indefinite immigration detention to be unlawful. </p>
<p>It’s also considered an attempt to pre-empt <a href="https://www.smh.com.au/politics/federal/government-sweats-on-critical-new-court-challenge-on-immigration-detainees-20240315-p5fcro.html">further litigation</a> scheduled in the High Court. The case of an Iranian man refusing to cooperate in his deportation is due before the court <a href="https://theconversation.com/the-government-is-fighting-a-new-high-court-case-on-immigration-detainees-whats-it-about-and-whats-at-stake-226120">next month</a>.</p>
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<p>However, the amendments introduced in the bill go far beyond addressing this issue. They have wide-ranging impacts for how non-citizens are treated in Australia, and indeed for Australia’s relationship with governments around the world. </p>
<p>As such, it is particularly concerning the government tried to rush the bill through parliament without the opportunity for proper scrutiny or review. While a senate committee hearing is a welcome development, it won’t fix everything. </p>
<h2>Criminalising non-cooperation</h2>
<p>The bill gives the minister new powers to compel people who have exhausted their options to stay in Australia to cooperate and take steps towards their own removal. This would apply not only to people affected by the High Court’s ruling last year, but also to certain bridging visa holders. </p>
<p>Extraordinarily, it would also apply to “any other non-citizens” the minister might seek to designate through the migration regulations. </p>
<p>The powers include directing individuals to sign and submit documents to facilitate their departure, attend appointments, and provide any other information as required. In the case of families, if the parents are affected non-citizens, they can be directed to help facilitate the removal of their children, irrespective of whether it is in the child’s best interests.</p>
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Read more:
<a href="https://theconversation.com/government-rushing-through-bill-to-crack-down-on-uncooperative-non-citizens-it-is-trying-to-remove-226615">Government rushing through bill to crack down on 'uncooperative' non-citizens it is trying to remove</a>
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<p>Anyone who fails to comply with these directions without a “reasonable excuse” will face a mandatory jail term of between one and five years, a A$93,900 fine, or both. The fact that someone faces a real risk of persecution or other serious harm will not be considered a reasonable excuse. </p>
<p>These are extraordinary provisions without precedent in Australia. Even in the context of terrorism offences, a failure to comply with a direction does not result in mandatory imprisonment. </p>
<p>The closest comparisons are offences under various state laws concerning failure to disclose identity, which may be punished by up to 12 months’ imprisonment. In some states, reportable offenders, such as child sex offenders, who fail to produce electronic devices when directed by police, may face up to five years in prison. </p>
<p>However, in all these cases, these are maximum sentences, not a mandatory minimum sentence. As the Law Council of Australia President <a href="https://lawcouncil.au/media/media-releases/removal-bill-causes-rule-of-law-and-human-rights-concerns">put it</a>: “In effect, this Bill will implement mandatory sentencing”.</p>
<h2>Concerns for fast-track asylum seekers</h2>
<p>Section 199D of the bill attempts to ensure that the new powers are not used to remove individuals to a country where they would face a real risk of persecution or other serious harm. </p>
<p>But there is a risk the bill could still lead to people who do have protection claims being forced to return to countries where their life or freedom is threatened. There are particular concerns for people assessed under Australia’s fast-track asylum processes. </p>
<p>The Labor party has acknowledged these processes have not been <a href="https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf">“fair, thorough and robust”</a>, meaning people with genuine refugee claims may have been denied protection. </p>
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<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<p>Others could also be at risk of removal contrary to Australia’s protection obligations if their personal circumstances or the situation in their home country has changed since their original protection claim was determined. </p>
<p>The Refugee Council of Australia has warned about these risks and shared its <a href="https://www.refugeecouncil.org.au/new-legislation-puts-refugees-failed-by-fast-track-process-at-risk/">concerns</a> that “those who do have strong claims, but have not had a fair hearing or review, will be sent back to real harm.” </p>
<h2>Countries can be blacklisted</h2>
<p>The bill also gives the minister a new power to “blacklist” entire countries and prevent their citizens from applying for Australian visas.</p>
<p>This is a discretionary power that requires little consultation and is unlikely to be subject to administrative or judicial review. The only limitations on this power are that the minister first consults with the prime minister and minister for foreign affairs. The immigration minister must also detail why they think it is in the national interest to make such a decision.</p>
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<p>The travel bans are intended to force targeted countries to cooperate and accept the return of their own nationals. But in practice, they will prevent people who may wish to work, study in or visit Australia from leaving – through no fault of their own. </p>
<p>Travel bans could also have unintended consequences. Diplomatic relations between countries may sour following such decisions, and countries may opt to <a href="https://sgp.fas.org/crs/homesec/IF11025.pdf">retaliate</a> in other ways, whether through trade, tourism or other matters of international concern. </p>
<p>The issue of international cooperation concerning the return of nationals to their home country is a diplomatic one that should be negotiated in good faith between political leaders. It is quite likely that inducements rather than threats would work better. </p>
<p>Other countries may also simply be unmoved to take any further steps to facilitate returns, or may even welcome their citizens not being able to visit Australia. It is important to remember that not all countries wish for their citizenry to be able to leave.</p>
<h2>Walking the walk</h2>
<p>At a time when the immigration minister has <a href="https://minister.homeaffairs.gov.au/AndrewGiles/Pages/refugee-communities-assoc-aust-conf-21092023.aspx">emphasised</a> the “importance of lived experience in shaping national and international dialogue and policy” and claimed that the “government walk the walk on meaningful participation for refugees”, it is disappointing to see attempts to rush this bill through parliament without any consultation with refugee communities and other stakeholders, and very limited scrutiny. </p>
<p>The Albanese government is continuing the tradition of governments before it by attempting to ram legislation through parliament that severely curtails human rights and is disproportionate to its stated objectives. Both the government and the opposition have a vested interest in passing laws that further expand the minister’s discretionary powers, which are already ill-suited to a liberal democracy. </p>
<p>But the changes will have far-reaching consequences for both our migration program and our foreign policy objectives, and demand further democratic scrutiny.</p><img src="https://counter.theconversation.com/content/226713/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane McAdam receives funding from the Australian Research Council. She is a member of the expert sub-committee of the Ministerial Advisory Council on Skilled Migration. </span></em></p><p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and Wallumatta Legal, and a Special Counsel at the National Justice Project.</span></em></p><p class="fine-print"><em><span>Madeline Gleeson and Tristan Harley do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government has failed in its attempt to ram unprecedented changes to the migration act through parliament. The laws, now being reviewed by a senate committee, could be disastrous.Jane McAdam, Scientia Professor and Director of the Kaldor Centre for International Refugee Law, UNSW SydneyDaniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW SydneyMadeline Gleeson, Senior Research Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyTristan Harley, Senior Research Associate, Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2239572024-02-21T04:06:34Z2024-02-21T04:06:34ZBy boat or by plane? If you’re seeking asylum in Australia, the outcome is similarly bleak<figure><img src="https://images.theconversation.com/files/576913/original/file-20240221-18-tl88st.jpg?ixlib=rb-1.1.0&rect=18%2C0%2C4071%2C2299&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/refugees-boat-floating-on-sea-341539700">Shutterstock</a></span></figcaption></figure><p>Last week, <a href="https://www.abc.net.au/news/2024-02-18/asylum-seekers-moved-to-nauru-mid-political-row/103481494">39 foreign nationals</a> arrived in a remote part of Western Australia by boat. This revived dormant debates about border security.</p>
<p>People without visas come to Australia by air and sea, though we only ever seem to hear about the latter. Unlike unauthorised air arrivals, unauthorised maritime arrivals (people without visas that arrive by boat without permission) are given high media visibility. This feeds a narrative that the country has lost control of its borders, which in turn creates a political problem for the government of the day. </p>
<p>But behind the headlines, what actually happens when people arrive in Australia without permission, whether by boat or by plane?</p>
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<a href="https://theconversation.com/boat-arrivals-sent-to-nauru-and-sovereign-borders-commander-warns-against-politicising-the-issue-223822">Boat arrivals sent to Nauru, and Sovereign Borders commander warns against politicising the issue</a>
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<h2>What is Australia obligated to do?</h2>
<p>Anyone who’s not an Australian citizen is required to have authorisation in the form of a visa to enter and remain in the country. </p>
<p>What Australia can do to deal with unauthorised arrivals is limited by its international treaty obligations. The United Nations Refugee <a href="https://www.unhcr.org/au/about-unhcr/who-we-are/1951-refugee-convention">Convention</a> and <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-relating-status-refugees">Protocol</a> oblige Australia to refrain from sending “refugees” (as defined in those treaties) to places where they will face a real chance of persecution. </p>
<p>Under other treaties to which it is a party, Australia is also obliged to refrain from sending anyone, not just refugees, to places where they will face a real risk of certain serious human rights violations. </p>
<p>These treaty obligations are referred to as “non-refoulement” or protection obligations. People who claim the benefit of such protection obligations are called asylum seekers.</p>
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<h2>What happens to asylum seekers when they arrive?</h2>
<p>The processes for people arriving by boat or plane have similarities, but are slightly different.</p>
<p>Australian policy is for unauthorised air arrivals to be given a screening interview to ascertain whether they could be entitled to Australia’s protection under international law. If not, they are returned to their most recent country of departure. Those who are found to have a possible case are given access to the protection visa application process. </p>
<p>The protection visa is Australia’s main domestic mechanism for implementing its international protection obligations. People who initially entered Australia on a valid visa can also apply for a protection visa. Most applicants fall into this group. </p>
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Read more:
<a href="https://theconversation.com/who-counts-as-a-refugee-four-questions-to-understand-current-migration-debates-219735">Who counts as a refugee? Four questions to understand current migration debates</a>
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<p>Australia imposes penalties on airlines that bring non-citizens without valid visas here. It also posts its officials at overseas airports to help airlines identify people without visas so they can be refused boarding. As a result, there are <a href="https://www.homeaffairs.gov.au/foi/files/2022/fa-220600105-document-released-part-3.PDF">very few</a> unauthorised air arrivals to Australia.</p>
<p>Like people who come by plane, unauthorised maritime arrivals go through a screening process. </p>
<p>Those who are deemed not to be asylum seekers are returned to their most recent country of departure. This is usually, but not always, Indonesia. </p>
<p>Unless the responsible minister grants an exemption, unauthorised maritime arrivals who are found to have a possible asylum claim must be transferred to a regional processing country to have their asylum claims determined there. </p>
<h2>How has regional processing worked?</h2>
<p>Regional processing has a complicated history.</p>
<p>In late 2001, the Coalition government under John Howard entered arrangements with Nauru and Papua New Guinea (PNG) to take unauthorised maritime arrivals to those countries to process their asylum claims. Those arrangements were ended by Labor shortly after it won government in November 2007. </p>
<p>However, a resurgence of unauthorised maritime arrivals led the Gillard Labor government to enter a new set of arrangements with Nauru and PNG in late 2012. These allowed Australia to transfer unauthorised maritime arrivals to processing centres in those countries to have their asylum claims considered by their governments. </p>
<p>The 2012 arrangements left open the possibility that transferees who were found to be refugees might be resettled in Australia. However, when boats kept arriving, the Rudd Labor government decided to get even tougher. In 2013, it <a href="https://webarchive.nla.gov.au/awa/20130730234007/http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-joint-press-conference-2.html">announced</a> future unauthorised maritime arrivals would never be resettled in Australia.</p>
<p>After its election in September 2013, the Coalition government implemented Operation Sovereign Borders, which has been continued by the current Labor government. Many activities come under the Operation Sovereign Borders banner, including the interception of unauthorised maritime arrivals at sea by the Australian navy. Regional processing is now also characterised as being part of the program.</p>
<p>The regional processing arrangement with PNG <a href="https://web.archive.org/web/20220105030919/https:/minister.homeaffairs.gov.au/KarenAndrews/Pages/finalisation-of-the-regional-resettlement-arrangement.aspx">ceased</a> at the end of 2021. As of November 16 2023, there were still <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">64 transferees</a> remaining in PNG. However, the Australian government’s position is that responsibility for these people lies entirely with PNG and not with Australia.</p>
<p>Nauru is still a <a href="https://www.legislation.gov.au/Details/F2023L00093">regional processing country</a> but under a new agreement. At the time it was signed in late 2021, there hadn’t been any transfers for years. However, it was <a href="https://web.archive.org/web/20211218062006/https:/www.dfat.gov.au/geo/nauru/memorandum-understanding-between-republic-nauru-and-australia-enduring-regional-processing-capability-republic-nauru">considered important</a> to maintain an “enduring regional processing capacity” on Nauru as a deterrent to people smugglers. </p>
<p>As previously, the Nauruan government is responsible for processing the asylum claims of transferees and managing them until they depart Nauru or are permanently settled there. However, Australia has contracted and is <a href="https://www.homeaffairs.gov.au/foi/files/2023/fa-221201134-document-released.PDF">paying</a> the processing centre’s service providers.</p>
<p>On June 25 2023, it was reported there were <a href="https://www.theguardian.com/australia-news/2023/jun/25/last-refugee-on-nauru-evacuated-as-australian-government-says-offshore-processing-policy-remains">no transferees</a> remaining in Nauru. This did not mean that a durable solution had been found for everyone who had been transferred to Nauru up until that time. While some people had been resettled in third countries, others had simply been brought to Australia with the legal status of “transitory persons”. This status prevents them from applying for a visa to remain in Australia unless granted ministerial permission to do so. </p>
<p>Australia’s options for resettling this cohort are limited. It has at its disposal the remainder of <a href="https://www.theguardian.com/australia-news/2017/feb/01/white-house-australian-refugees-deal-resettle-extreme-vetting">1,250 refugee places</a> promised by the United States in November 2016 and <a href="https://www.theguardian.com/australia-news/2022/mar/24/australia-agrees-450-refugees-can-be-resettled-in-new-zealand-nine-years-after-deal-first-offered">450 refugee places</a> over three years promised by New Zealand in 2022. Even if all these places are used, hundreds of people will remain in limbo.</p>
<h2>What happens to last week’s arrivals?</h2>
<p>Since Operation Sovereign Borders began, boats have either been intercepted at sea or have managed to make landfall in Australia <a href="https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=dc14c17a-6ca6-4082-8f77-c15a72b19314">every year</a> except 2021. </p>
<p>However, between the start of Operation Sovereign Borders and the end of August 2023, <a href="https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=dc14c17a-6ca6-4082-8f77-c15a72b19314">only two</a> out of the 1,123 boat passengers involved to that point had ever been accepted for regional processing. Both cases were in 2014. </p>
<p>This statistic raised serious concerns about the reliability of the screening process as the people screened included many from known refugee producing countries. </p>
<p>Given this history, it was a little surprising when the Australian government transferred <a href="https://www.abc.net.au/news/2023-10-27/nauru-new-group-detained-processing-centre/103014910">11 unauthorised maritime arrivals</a> to Nauru in September 2023. A further 12 were transferred to Nauru in <a href="https://www.theguardian.com/australia-news/2023/nov/23/wa-border-force-custody-12-asylum-seekers-nauru">November 2023</a>. The 39 people found in Western Australia have just been transferred there too. </p>
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Read more:
<a href="https://theconversation.com/aus-nz-refugee-deal-is-a-bandage-on-a-failed-policy-its-time-to-end-offshore-processing-180241">Aus-NZ refugee deal is a bandage on a failed policy. It's time to end offshore processing</a>
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<p>It seems the screening process has been abandoned or has been vastly improved. While the most reliable way for Australia to meet its international protection obligations would be to give all unauthorised maritime arrivals access to its protection visa application process, giving them all access to regional processing is certainly better than sending them back to their country of departure. </p>
<p>However, resettlement in Nauru of those found to be refugees is not realistic. The country, which has a population of approximately 13,000 people, is only <a href="https://www.adaptation-undp.org/explore/asia-and-pacific/nauru#:%7E:text=Nauru%20is%20an%20isolated%2C%20uplifted,120%20and%20300%20metres%20wide.">2,200 hectares</a> in land area. To put this in context, Melbourne airport <a href="https://www.melbourneairport.com.au/corporate/master-plan">is larger</a> than Nauru. </p>
<p>There is no reason to believe it will be any easier to find third country resettlement for transferees in the future than it has been up to now. For most, the only way out of limbo will be to return home, as eight of those transferred to Nauru in September have <a href="https://www.theguardian.com/australia-news/2024/jan/22/australia-asylum-seekers-nauru-returned-home-country">already done</a>. Regional processing continues to be a policy failure for which vulnerable people will pay the price.</p><img src="https://counter.theconversation.com/content/223957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Savitri Taylor has received funding from the Australian Research Council in the past. She is a member of the Committee of Management of Refugee Legal and a member of the Kim for Canberra party. Views expressed in this article are her own and not attributable to any organisations with she is associated.</span></em></p>With the arrival of 39 foreign nationals in Western Australia, debate around boat arrivals has been re-ignited. What happens if you come by plane instead?Savitri Taylor, Associate Professor, Law School, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005012023-02-23T20:13:17Z2023-02-23T20:13:17ZBiden’s border crackdown explained – a refugee law expert looks at the legality and impact of new asylum rule<figure><img src="https://images.theconversation.com/files/512026/original/file-20230223-26-ranwy5.jpg?ixlib=rb-1.1.0&rect=0%2C134%2C6000%2C3853&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Seeking shelter and asylum on the US-Mexico border.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USAsylumPayingForASponsor/3a0ca617af9d4b468b65c0db1880250e/photo?Query=US%20mexico%20border&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=12461&currentItemNo=8">AP Photo/Gregory Bull)</a></span></figcaption></figure><p><em>Anticipating a potential surge of migrants at the southern border, the Biden administration on Feb. 21, 2023, <a href="https://www.nytimes.com/2023/02/21/us/biden-asylum-rules.html">announced a crackdown</a> on those seeking asylum after unlawfully entering the U.S.</em></p>
<p><em>The proposed rule change – which would see the rapid deportation of anyone who had not first applied for asylum en route to the U.S. – has been <a href="https://www.aila.org/advo-media/press-releases/2023/aila-condemns-biden-administrations-push">condemned by immigration rights groups</a>, which claim it runs counter to the “humane immigration system” that Joe Biden <a href="https://joebiden.com/immigration/#">promised while campaigning</a> for the White House.</em></p>
<p><em>The Conversation asked Karen Musalo, <a href="https://cgrs.uchastings.edu/about/bio/karen-musalo#:%7E:text=Professor%20Karen%20Musalo%2C%20Bank%20of,at%20UC%20Law%20San%20Francisco.">an expert on refugee law</a> at the University of California College of the Law, San Francisco, to explain what the new rule entails, what its impact will be and why it is so controversial.</em></p>
<h2>What is the new policy?</h2>
<p>The Biden administration’s <a href="https://public-inspection.federalregister.gov/2023-03718.pdf">new rule</a> – which is set to come into force on May 11 – will bar from asylum all non-Mexican migrants who arrive at the southern U.S. border without having first sought and been denied asylum in at least one of the countries they passed through on their journey.</p>
<p>The only migrants exempted from this rule are those who use a U.S. government app, <a href="https://www.cbp.gov/about/mobile-apps-directory/cbpone">CBP One</a>, to make an appointment to apply for asylum at an official port of entry. All others will be subject to a presumption of ineligibility unless they can demonstrate “exceptionally compelling circumstances,” such as a medical emergency – which they will have to prove during a rapid <a href="https://www.americanimmigrationcouncil.org/research/primer-expedited-removal">screening process</a> in a border holding cell.</p>
<p>The policy – which immigrant rights <a href="https://justiceactioncenter.org/jac-condemns-bidens-plans-to-revive-trump-era-asylum-ban/">advocates</a>, <a href="https://www.menendez.senate.gov/newsroom/press/menendez-booker-lujan-padilla-joint-statement-on-biden-administrations-proposed-asylum-transit-ban-rule">congressional</a> <a href="https://www.menendez.senate.gov/imo/media/doc/letter_to_president_biden_on_the_administrations_border_policies.pdf">leaders</a> and <a href="https://www.interfaithimmigration.org/2023/02/22/as-biden-moves-forward-with-asylum-ban-faith-groups-and-advocates-gathered-to-demand-restored-access-to-asylum/">faith groups</a> are calling an “asylum ban” or “transit ban” – is almost identical to one implemented by the Trump administration in 2019. The Trump-era rule was later <a href="https://www.aclu.org/cases/east-bay-v-barr">struck down</a> by the courts as unlawful.</p>
<h2>Why is the new rule being proposed now?</h2>
<p>The Biden administration is concerned that the expiration of a pandemic-era rule will lead to <a href="https://www.axios.com/2022/03/17/biden-border-mexico-migrants-title-42">greater numbers of immigrants</a> at the southern border.</p>
<p>In March 2020, the Trump administration totally closed the border to asylum seekers in a <a href="https://www.pbs.org/newshour/nation/what-is-title-42-and-what-does-it-mean-for-immigration-at-the-southern-border">policy referred to as Title 42</a>. It justified the closure as necessary to protect public health during the COVID-19 pandemic. However, these health concerns were <a href="https://doi.org/10.1056/NEJMp2200274">just a pretext</a>; it has been <a href="https://www.cbsnews.com/news/top-cdc-scientist-said-covid-era-health-policy-used-to-expel-migrants-unfairly-stigmatized-them/">well documented</a> that high-level officials in the Centers for Disease Control and Prevention <a href="https://www.cbsnews.com/news/cdc-official-told-congress-migrant-expulsion-policy-not-needed-to-contain-covid/">were opposed</a> to the policy and acceded only under <a href="https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-4ef0c6c5263815a26f8aa17f6ea490ae">intense White House pressure</a>.</p>
<p>Turning away all asylum seekers in this way was totally unprecedented, and <a href="https://www.justsecurity.org/70192/the-trump-administrations-indefensible-legal-defense-of-its-asylum-ban/">inconsistent with</a> U.S. domestic and international legal obligations.</p>
<p>Biden <a href="https://joebiden.com/immigration/">campaigned on promises</a> to restore a humane asylum system. But on assuming the presidency <a href="https://newrepublic.com/article/165439/biden-title-42-trump-migrant-expulsion-mexico">he continued</a> Title 42 and even <a href="https://www.nbcnews.com/politics/immigration/title-42-block-nicaraguans-cubans-haitians-rcna64418">expanded it</a> to include individuals from additional countries.</p>
<p>Immigration rights advocates <a href="https://apnews.com/article/health-united-states-covid-government-and-politics-32251064466f9ed6b51e55c1bbd18680">brought successful legal challenges</a> to terminate the policy, while attorneys general of Republican-led states <a href="https://litigationtracker.justiceactioncenter.org/cases/arizona-v-cdc-az-title-42-termination-district-court">sued to keep it in place</a>. Finally, in January 2023, the Biden administration <a href="https://www.nytimes.com/2023/01/30/us/politics/biden-covid-public-health-emergency.html">announced</a> that on May 11 it would end the coronavirus health emergency, which had provided the legal authority for the border closure.</p>
<p>This means Title 42 also comes to an end on May 11. Unwilling to restore access to asylum as had existed for 40 years before former President Donald Trump’s border closure, the Biden administration proposed the new rule.</p>
<h2>Is the policy legal?</h2>
<p>In 2019, the Trump administration proposed a rule very similar to that put forth by Biden, prohibiting asylum for migrants who did not first apply in countries of transit. The <a href="https://casetext.com/case/covenant-v-trump-2">courts struck</a> <a href="https://s3.documentcloud.org/documents/6981578/East-Bay-2020-07-06.pdf">down the policy</a> for violating the 1980 Refugee Act, which guarantees the right of all migrants who reach the United States to apply for asylum.</p>
<p>A bipartisan Congress passed the Refugee Act to bring the U.S. into compliance with its international obligations under the U.N.’s <a href="https://www.unhcr.org/en-us/1951-refugee-convention.html">1951 Refugee Convention</a> and its 1967 Protocol, which prohibit returning refugees to any country where their lives or freedom would be threatened.</p>
<p>In striking down the Trump-era rule, the 9th U.S. Circuit Court of Appeals <a href="https://s3.documentcloud.org/documents/6981578/East-Bay-2020-07-06.pdf">pointed out</a> that the Refugee Act is very specific about the circumstances under which the government can deny asylum for failure to apply in a transit country. Under the act’s “safe third country” provision, that can happen only if the transit country is safe and has both a robust asylum system and a formal treaty with the United States agreeing to safe third-country status. The court found the Trump administration lacked all three conditions for imposing such a ban.</p>
<p>The Biden rule is somewhat different from Trump’s. It does not apply to individuals who schedule an asylum appointment at ports of entry through the CBP One app. </p>
<p>But this does not make the policy lawful. The Refugee Act expressly permits asylum seekers to access protection anywhere along the border – not just at ports of entry. And it does not require appointments to be made in advance.</p>
<p>In addition, CBP One has been plagued with <a href="https://www.marketplace.org/shows/marketplace-tech/u-s-border-protection-app-causes-tech-headaches-for-asylum-seekers/">significant technical</a> problems, preventing many from even making appointments, and has raised serious equity and <a href="https://www.markey.senate.gov/news/press-releases/senator-markey-calls-on-dhs-to-ditch-mobile-app-riddled-with-glitches-privacy-problems-for-asylum-seekers">privacy concerns</a>.</p>
<p>And more importantly, there is no getting around the fact that most countries of transit neither are safe for migrants nor have functioning asylum systems. </p>
<figure class="align-center ">
<img alt="A girl holds her stuffed animal high above the water as migrants wade across a river." src="https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512079/original/file-20230223-16-gzvo89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Migrants wade across the Rio Grande from Texas to Mexico to avoid deportation.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ExodustoAmerica-AsylumBan/389eb605e83b414fb1a7ba7d554742b2/photo?Query=US%20deporting%20asylum&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=244&currentItemNo=2">AP Photo/Felix Marquez</a></span>
</figcaption>
</figure>
<p>Asylum seekers arriving at the U.S. southern border pass through Mexico, which is <a href="https://humanrightsfirst.org/library/human-rights-stain-public-health-farce/">notoriously</a> <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/mexico/">dangerous</a> for migrants, and countries such as <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/nicaragua/">Nicaragua</a>, <a href="https://crsreports.congress.gov/product/pdf/R/R47083">El Salvador</a>, <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/guatemala/">Guatemala</a> and <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/honduras/">Honduras</a>, which are similarly unsafe and do not have <a href="https://www.justsecurity.org/84977/bidens-embrace-of-trumps-transit-ban-violates-us-legal-and-moral-refugee-obligations/">anything approaching functioning asylum systems</a>.</p>
<p>Costa Rica, the one transit country in the region with an <a href="https://freedomhouse.org/country/costa-rica/freedom-world/2022">admirable human rights record</a> and an established asylum system, is currently receiving 10 times the number of asylum seekers as the United States on a per capita basis, and its system is <a href="https://reporting.unhcr.org/costarica#:%7E:text=Costa%20Rica%20has%20ranked%20among,from%20January%20to%20mid%2D2022">completely overwhelmed</a>. To expect Costa Rica to do more, and take in the refugees the U.S. turns away, is not reasonable or fair.</p>
<h2>What will be the policy’s impact?</h2>
<p>This rule will deny thousands of migrants fleeing persecution their right to seek asylum at the United States’ southern border. They will be returned to Mexico, where <a href="https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border">human rights organizations have documented</a> high levels of violence and exploitation of migrants, or deported to their home countries.</p>
<p>Beyond the individual human impact, the implementation of this rule will send the wrong signal to other countries that have – like the United States – ratified international refugee treaties and passed laws committing to protect those fleeing persecution.</p>
<p>The message is that flouting legal obligations is acceptable, as is the outsourcing of refugee protection to smaller countries with far less resources. The exodus of refugees from Ukraine and <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/26/remarks-by-president-biden-on-the-united-efforts-of-the-free-world-to-support-the-people-of-ukraine/">U.S. efforts to encourage European countries</a> to accept those fleeing the conflict underscore the importance of encouraging nations to take in refugees. Leading by bad example will only undermine that principle.</p><img src="https://counter.theconversation.com/content/200501/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Musalo receives funding from National Science Foundation in the past.
I am a full-time law professor and director of the law school's Center for Gender & Refugee Studies.</span></em></p>With the expiration of a pandemic-era restriction, the Biden administration is set to impose a new rule to curtail immigration at the US-Mexico border.Karen Musalo, Professor of International Law, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1876642022-08-26T12:18:33Z2022-08-26T12:18:33ZSome refugees stay in temporary status indefinitely – how they still manage to create homes and communities<figure><img src="https://images.theconversation.com/files/480646/original/file-20220823-2358-lf0rxb.jpg?ixlib=rb-1.1.0&rect=51%2C0%2C5760%2C3819&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A cafe in Cairo, Egypt, that is predominantly visited by Sudanese migrants, in August 2017.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-walks-by-a-sudanese-flag-near-a-cafe-that-predominantly-news-photo/991484150?adppopup=true">Oliver Weiken/picture alliance via Getty Images</a></span></figcaption></figure><p>More than 6.5 million <a href="https://data.unhcr.org/en/situations/ukraine">Ukrainian war refugees are now scattered across Europe</a> and <a href="https://www.cbsnews.com/news/us-admits-100000-ukrainians-in-5-months-fulfilling-biden-pledge/">North America</a>, most with temporary emergency residency allowing them to <a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/ukraine-measures/key-figures.html">stay in host countries</a> for one to three years. </p>
<p>But roughly half a year into Russia’s full-scale invasion of Ukraine, the war looks unlikely to end soon. Ukrainians may be unable to return to their home country for years to come. </p>
<p>They are not alone in their plight.</p>
<p>Refugees from around the world are living with displacement longer than they did three decades ago. Host countries in North America and Europe that traditionally granted refugees permanent resettlement are increasingly offering <a href="https://www.taylorfrancis.com/chapters/oa-edit/10.4324/9780429351730-13/end-asylum-jessica-schultz?context=ubx&refId=f3d45994-14d2-47d5-88e4-76b481be9189">temporary status only</a>. At the same time, the displaced population is rising. In 2021, the United Nations estimated <a href="https://www.unhcr.org/uk/globaltrends.html">more than 89 million people worldwide were forced to flee</a> their homes, up from 43 million in 2012.</p>
<p>Today, the average refugee remains in a state of temporary residence <a href="https://www.brookings.edu/blog/order-from-chaos/2018/06/19/when-refugee-displacement-drags-on-is-self-reliance-the-answer/">for 10 to 26 years</a>, up from about <a href="https://www.unhcr.org/uk/excom/standcom/40c982172/protracted-refugee-situations.html">nine years in 1993</a>. </p>
<p><a href="https://refuge.journals.yorku.ca/index.php/refuge/issue/view/2299">Our academic research</a> focuses on what refugees and other displaced people do to make homes for themselves even as their lives remain in flux – sometimes for decades on end. </p>
<p>Understanding these practices could help create more pragmatic refugee policies. As <a href="https://www.theguardian.com/news/2022/aug/18/century-climate-crisis-migration-why-we-need-plan-great-upheaval">migration becomes increasingly more common and more necessary</a>, laws that stand in the way of the universal human need to make a home also prevent societies from learning how to cope with refugee crises.</p>
<h2>Practices of survival and sustenance</h2>
<p>Between 1990 and 2018 we conducted <a href="https://refuge.journals.yorku.ca/index.php/refuge/article/view/40149">wide-ranging research</a> with long-term <a href="https://refuge.journals.yorku.ca/index.php/refuge/article/view/40141">refugees and other displaced people</a> in the Middle East, Africa, Europe and North America. Our work shows that displaced people find creative ways to settle into life despite refugee policies that keep them in limbo. </p>
<p>From Sudanese refugees living in Egypt to <a href="https://doi.org/10.1080/09502386.2015.1113633">Georgians</a> and <a href="https://doi.org/10.1111/j.1467-9493.2008.00334.x">Sri Lankans</a> <a href="https://doi.org/10.25071/1920-7336.40141">displaced within their own countries</a>, we found that most started making homes quickly. They sent their children to school, cooked meals and scrounged furniture.</p>
<p>These daily practices are essential for “holding things together,” our research participants told us, with many of them explaining that they had to <a href="https://doi.org/10.3167/sa.2015.590102">keep going because of their children</a>. </p>
<p>Most of the refugees also kept their living space clean, whether it was a room in an abandoned hotel, a tent or a shelter. They have shown us that maintaining and modifying one’s living space is essential for a feeling of <a href="https://doi.org/10.1016/B978-0-08-047163-1.00313-1">autonomy, dignity and respect</a>. </p>
<p>These observations are supported by other research on displaced people. In New Orleans, Hurricane Katrina survivors who were residing in FEMA trailers that they were <a href="https://doi.org/10.1007/s10901-008-9124-y">not allowed to personalize</a> showed poor health outcomes and depression after a few years in these conditions.</p>
<p>Those who aren’t refugees can likely relate to these feelings. People try to make home even when they do not feel at home, in ways many people would recognize.</p>
<figure class="align-center ">
<img alt="A tall person in a red coat accompanies a smaller person toward a glass building." src="https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=352&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=352&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=352&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=443&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=443&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480643/original/file-20220823-15-korzbp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=443&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ukrainians walk toward a refugee shelter set up in an exhibition hall in Dresden, Germany, in March 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/march-2022-lower-saxony-hanover-a-woman-and-a-child-walk-in-news-photo/1239102319?adppopup=true">Julian Stratenschulte/picture alliance via Getty Images</a></span>
</figcaption>
</figure>
<p>While daily practices of survival and sustenance are important, refugees need more to create homes in exile. For <a href="https://doi.org/10.25071/1920-7336.40149">one of our studies</a>, co-author Anita Fabos accompanied Sudanese refugees living in exile in Cairo, Egypt, on daily visits to other Sudanese families. </p>
<p>One hot summer afternoon, she went on a 10-hour social tour of the city with a 26-year-old secretary named Khalda after she finished work. They set off on foot to a nearby Sudanese human rights office for a quick visit with Khalda’s activist friends, then took the Metro several stops to board a minibus that took them an hour outside of Cairo to greet a newly arrived Sudanese refugee family over tea and biscuits. Back in her own neighborhood, Khalda paid several more calls to fellow Sudanese. </p>
<p>Khalda’s social rounds were an exhausting daily ritual. But for Sudanese in Egypt, giving and receiving hospitality was a way to rebuild their communal sense of home in a new and insecure place.</p>
<h2>What is home?</h2>
<p>Our work also reveals that “home” means different things to different people. It can be a house, a familiar ritual, a homeland or social relations – or many things at once. </p>
<p>This multifaceted understanding of home was reflected in a young displaced man <a href="https://scholar.google.com/scholar?hl=en&as_sdt=0%2C22&q=Cathrine+Brun&btnG=">co-author Cathrine Brun</a> interviewed in <a href="https://www.sciencedirect.com/science/article/pii/B9780080471631003131?via%3Dihub">Sri Lanka in the late 1990s</a>. Home, for him, was the place he had been forced to leave nine years earlier. At the same time, he felt at home in the familiar camp where he lived because he knew everyone around him. When the young man left the camp, he sometimes faced abuse by locals who called him a “refugee.” Only then did he feel homeless. </p>
<p>Listening to refugees and displaced people share their home-making strategies showed us that “home” does not refer just to a person’s country of origin. </p>
<p>Instead, refugees develop what we call “<a href="https://doi.org/10.25071/1920-7336.40138">constellations of home</a>.” They participate in daily life locally while remaining connected to other home places. They nurture relationships, memories and ideals as additional dimensions of their home constellations. </p>
<h2>Policy limbo</h2>
<p>For refugee agencies, however – and often <a href="https://www.marketwatch.com/story/we-all-live-in-some-kind-of-limbo-its-been-six-months-since-russia-invaded-ukraine-and-ukrainian-war-refugees-long-for-home-01661201431">news stories about refugees</a> – “home” generally <a href="https://doi.org/10.1093/jhuman/hux021">refers only to a specific country</a>. </p>
<p>International policy recognizes only three “durable solutions” to refugee displacement. Ideally, conditions in the country of origin improve enough for refugees can return. Alternatively, host countries allow refugees to naturalize and build new lives. If neither is possible, refugees may be sent permanently to a third country. </p>
<p>Refugee status, in other words, is designed to be temporary; it is resolved internationally, either by being taken in or taken back. But as conflicts persist and host countries increasingly resist offering refugees a permanent new home, more people are becoming “permanently temporary” instead.</p>
<p>Our research argues against rigid policies that treat refugees as homeless until they are absorbed back into the international system. By understanding our constellations of home model, refugee agencies and host countries could move past trying to achieve “durable solutions” that are scarce and have the real-world effect of keeping people in limbo.</p>
<p>Take Egypt’s approach to <a href="https://www.berghahnbooks.com/title/FabosBrothers/loc">Sudanese refugees in the early 1990s</a>. </p>
<p>Sudanese in Cairo rented their own apartments, sent their children to local schools and set up self-help organizations largely on their own. They were free to move across the city, visiting one another and creating a homey feeling of life “back in Sudan.” </p>
<p>Because neither Egypt nor the U.N. imposed temporary conditions on their exile, they could recreate livelihoods even while dispersed: Many left to find work in wealthy Arab Gulf countries, sending money to family members still in Cairo and returning to visit. </p>
<p>Egypt was not Sudan. But Sudanese refugees in Cairo managed to create constellations of home while on the move because they had the freedoms and rights necessary to do so. </p>
<p>A refugee policy that incorporates the constellations of home model is more than a <a href="https://www.unhcr.org/uk/the-global-compact-on-refugees.html">self-reliance strategy</a>. It can work only when all dimensions of the constellation – from daily practices of survival to feelings of community membership and the ability to plan for the future – are fulfilled.</p>
<p>As the war in Ukraine rages on, both host societies and refugees themselves would benefit by moving beyond the politics of limbo and toward recognizing that home is more than just a country.</p><img src="https://counter.theconversation.com/content/187664/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anita H. Fábos receives funding from the National Science Foundation. Research presented in this article was funded by the Social Science Research Council, the Population Council, the Mellon Foundation, and Clark University.</span></em></p><p class="fine-print"><em><span>Cathrine Brun receives funding from the Economic and Social Research Council (UK), the Research Council of Norway, The International Development Research Centre (Canada) and the European Union's Horizon 2020 research and innovation programme. In addition to her affiliation with the Lebanese American University, she is a professor (part-time) at the Centre for Development and Emergency Practice, Oxford Brookes University, and a visiting scholar at the Faculty of Education, University of Cambridge. </span></em></p>It’s not just Ukrainians. In 2021, nearly 90 million people were forced to flee their homes.Anita H. Fábos, Professor of International Development, Community, and Environment, Clark UniversityCathrine Brun, Deputy Director for Research, Centre for Lebanese Studies at Lebanese American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1857582022-07-28T12:25:13Z2022-07-28T12:25:13ZWestern countries are shipping refugees to poorer nations in exchange for cash<figure><img src="https://images.theconversation.com/files/475506/original/file-20220721-24-ynnef4.jpg?ixlib=rb-1.1.0&rect=595%2C109%2C3967%2C3030&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rwandan Foreign Minister Vincent Biruta shakes hands with U.K. Home Secretary Priti Patel. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rwandan-foreign-minister-vincent-biruta-r-shakes-hands-with-news-photo/1239993628?adppopup=true">Cyril Ndegeya/Xinhua via Getty Images</a></span></figcaption></figure><p>The U.K. government was due to begin its first deportation flight to remove asylum-seekers to the East African country of Rwanda on June 14, 2022, exactly two months after signing the <a href="https://www.aa.com.tr/en/africa/rwanda-uk-sign-major-deal-on-asylum-seekers-amid-criticism/2564054">U.K.-Rwanda agreement</a>. The asylum-seekers were from several <a href="https://www.aljazeera.com/news/2022/6/8/uk-rwanda-deportation-refugees">war-torn and politically unstable countries</a>, including Syria, Sudan and Iran. </p>
<p>Each year, thousands of people – many fleeing repressive governments or poverty – attempt to cross the English Channel in fragile boats in the hope of starting a new life in the U.K.</p>
<p>Boris Johnson, the U.K. prime minister, defended the U.K.-Rwanda deal in June 2022, saying it would “<a href="https://www.straitstimes.com/world/europe/britains-boris-johnson-defends-migrant-deal-on-rwanda-visit">remove the illegal cross-Channel trafficking of people whose lives are being put at risk</a>.”</p>
<p>In exchange for Rwanda receiving the deportees, the U.K. has paid the country <a href="https://reliefweb.int/report/united-kingdom-great-britain-and-northern-ireland/uk-rwanda-agreement-represents-another-blow">about US$142 million</a> to cover the initial costs of operating the program as well as economic development projects in Rwanda. </p>
<p>The U.K. deportees were expected to <a href="https://www.aa.com.tr/en/africa/rwanda-uk-sign-major-deal-on-asylum-seekers-amid-criticism/2564054">integrate their lives into Rwandan social communities</a>. </p>
<p>But the first Rwanda deportation flight did not take off as planned. </p>
<h2>Deterring refugees and asylum-seekers</h2>
<p>The <a href="https://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights</a>, the regional judicial human rights body in Europe, issued what are called <a href="https://theconversation.com/rwanda-deportations-what-is-the-european-court-of-human-rights-and-why-did-it-stop-the-uk-flight-from-taking-off-185143">interim urgent measures</a> to stop the scheduled flights. </p>
<p>Such measures are most often issued in cases where there is <a href="https://ijrcenter.org/european-court-of-human-rights/">imminent risk of death or torture</a>. </p>
<p>Member states are bound by the decisions of the Court, and its rulings are enforced by the Committee of Ministers of the <a href="https://www.coe.int/en/web/about-us/who-we-are">Council of Europe</a> – Europe’s leading human rights organization.</p>
<p>But instead of abiding by the decision, the U.K. government not only <a href="https://www.ft.com/content/253313d2-cc88-406e-8cc4-da48e66781a4">stressed its commitment to deportation flights</a>, it also signaled its intention to pull out of the European Court of Human Rights.</p>
<p>As a <a href="https://www.american.edu/sis/faculty/sajjad.cfm">scholar of refugees and postwar reconstruction</a>, I see the deportation flights to Rwanda as part of a growing list of what are euphemistically known as <a href="https://journals.sagepub.com/doi/pdf/10.1177/233150241700500103">migrant deterrence practices</a>. These practices are used by Western countries to deter future migration of mainly people of color from countries in Latin America, Asia, Africa and Oceania, collectively known as the Global South. </p>
<p>In exchange for money paid to the receiving country, asylum-seekers are sent to those poorer countries to enable wealthier nations to circumvent international legal obligations to those seeking asylum.</p>
<h2>Beyond Rwanda</h2>
<p>The use of countries like Rwanda by Western states is on the rise. </p>
<p>The recent <a href="https://immigrationforum.org/article/explainer-the-migrant-protection-protocols/">U.S.-Mexico Migrant Protection Protocol</a> and the U.S.-Guatemala <a href="https://foreignpolicy.com/2019/07/30/trumps-safe-third-country-agreement-with-guatemala-is-a-lie/">“third country safe” agreement</a> follow a similar principle. </p>
<p>Since 1992, Australia has had <a href="https://time.com/13682/australia-asylum-seeker-policy-compared-to-guantanamo/">a mandatory detention policy</a> for “unauthorized” arrivals, which have included asylum-seekers. </p>
<p>Since 2001, it has also been <a href="https://www.kaldorcentre.unsw.edu.au/publication/australias-refugee-policy-overview">removing asylum-seekers</a> to Manus Island in Papua New Guinea and <a href="https://www.theguardian.com/world/2016/aug/10/a-short-history-of-nauru-australias-dumping-ground-for-refugees">Nauru</a> – a poor island country in the Pacific Ocean – for processing. </p>
<p>This has been the case even if arrivals applied for asylum in mainland Australia immediately upon arrival. </p>
<p>According to the United Nations High Commissioner for Refugees, “<a href="https://www.unhcr.org/en-au/news/press/2021/7/60f558274/unhcr-statement-on-8-years-of-offshore-asylum-policy.html">externalization of Australia’s asylum obligations has undermined the rights of those seeking safety and protection and significantly harmed their physical and mental health</a>.”</p>
<p>European countries have also been pursuing similar programs with <a href="https://www.tandfonline.com/doi/full/10.1080/1369183X.2022.2061930">Libya</a>, <a href="https://comparativemigrationstudies.springeropen.com/articles/10.1186/s40878-019-0128-4">Morocco</a>, <a href="https://euobserver.com/migration/154812">Egypt, Tunisia</a> and West African nations such as <a href="https://www.asileproject.eu/eu-external-migration-management-policies-in-west-africa/">Nigeria</a>. </p>
<p>They each provide financial aid packages to the respective low-income countries in exchange for preventing migrant mobility and absorbing deported asylum-seekers. </p>
<p>Thus far, <a href="https://www.thetimes.co.uk/article/austria-tells-europe-to-imitate-uks-rwanda-migrant-deal-7trf5p3w6">Austria</a>,
<a href="https://www.theguardian.com/uk-news/2022/apr/15/sending-uk-asylum-seekers-to-rwanda-will-save-money-says-minister">Denmark and the Flemish far-right in Belgium have welcomed</a> the U.K.-Rwanda agreement with the hope that more European states will seek partnerships with countries outside the continent to address irregular immigration. </p>
<p>Johnson’s <a href="https://www.bbc.com/news/av/uk-62070755">resignation</a> on July 7, 2022, is not expected to halt the U.K. government’s plans to continue deportations to Rwanda. But in a new turn of events, Rwanda said on July 22 that it can only <a href="https://www.telegraph.co.uk/politics/2022/07/22/rwanda-can-hold-just-200-channel-migrants-cant-stop-returning/">accommodate 200 deported asylum-seekers</a> and will not be able to stop their efforts to cross the English Channel again.</p>
<h2>The 2022 Nationality and Borders Act</h2>
<p>Deportations to Rwanda are part of the U.K.’s <a href="https://www.legislation.gov.uk/ukpga/2022/36/contents/enacted">2022 Nationality and Borders Act</a>, a law that drastically changed citizenship and asylum rules in the U.K. </p>
<p>In addition to deportations, the act allows the government to <a href="https://theconversation.com/stripping-british-citizenship-the-governments-new-bill-explained-173547">strip citizenship</a> from British people without notice for reasons related to, among other things, national security or counterterrorism. </p>
<p>In the U.K., the reasons to strip citizenship can be <a href="https://journals.sagepub.com/doi/10.1177/1743872116655305">defined broadly</a> and may affect about <a href="https://www.newstatesman.com/politics/2021/12/exclusive-british-citizenship-of-six-million-people-could-be-jeopardised-by-home-office-plans">6 million Britons from immigrant backgrounds</a>.</p>
<p>The 2022 Nationality and Borders Act also allows for the criminal prosecution of those who cross the English Channel on small boats to seek asylum. </p>
<p>The <a href="https://www.unhcr.org/en-us/">U.N. Refugee Agency</a> has criticized the legislation on which the act is based for being at “<a href="https://www.unhcr.org/uk/615ff04d4.pdf">odds with the United Kingdom’s international obligations under the Refugee Convention</a>.” These obligations include “not expelling refugees who are lawfully in the territory except on grounds of national security or public order.”</p>
<h2>Back into chaos</h2>
<p>Deportations under such conditions are controversial because they are violations of the <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf">principle of non-refoulement</a> in international refugee law. </p>
<p>The goal of the principle is to prevent individuals from being returned to countries where they have fled and may still be in danger of torture, persecution or death.</p>
<figure class="align-center ">
<img alt="a police officer stands on the beach and watches people get off of a lifeboat." src="https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475539/original/file-20220721-24-woz2tj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A British police officer stands guard as migrants disembark from a lifeboat after they were picked up at sea while attempting to cross the English Channel.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/british-police-officer-stands-guard-on-the-beach-of-news-photo/1241322925?adppopup=true">Ben Stansall / AFP/via Getty Images</a></span>
</figcaption>
</figure>
<p>Despite this, the U.K. and other European countries have continued to deport asylum-seekers to such places.</p>
<p>Between 2007 and 2016, <a href="https://www.aa.com.tr/en/politics/uk-underestimates-number-of-young-deported-to-war-zones/519001">the U.K. deported</a> 2,748 young people to war-torn and unstable countries such as Afghanistan, Iraq, Iran, Libya and Syria. </p>
<p>At least <a href="https://www.thebureauinvestigates.com/stories/2015-07-16/schooled-in-britain-deported-to-danger-uk-sends-600-former-child-asylum-seekers-back-to-afghanistan">605 of them were Afghans</a> who had arrived unaccompanied as asylum-seeking children from their war-ravaged country.</p>
<p>According to Amnesty International, many of the deportees face <a href="https://www.amnesty.org.uk/press-releases/european-governments-return-nearly-10000-afghans-risk-death-and-torture-new-report">arbitrary detention, kidnapping, torture and even death</a> in the the countries where they’re sent. </p>
<p>In addition, studies have shown deportations like the kind that have taken place in Europe have caused long-term damage. </p>
<p>These include <a href="https://www.frontiersin.org/articles/10.3389/fpsyt.2020.00148/full">undue burdens</a> on family members, such as loss of family income to meet basic needs, <a href="https://www.birmingham.ac.uk/news/2021/reports-highlight-the-harms-faced-by-uk-families-threatened-with-a-family-members-deportation">family separation</a> that causes psychological damage including depression and trauma, especially in children. </p>
<h2>Rwanda’s acceptance of asylum-seekers</h2>
<p>In recent years, Rwanda has become a host country for approximately <a href="https://reliefweb.int/report/rwanda/unhcr-operational-update-rwanda-february-2022">130,000 refugees</a> from around East Africa, particularly from the Democratic Republic of Congo and Burundi.</p>
<p>In addition, between 2013 and 2018, Israel paid <a href="https://www.middleeasteye.net/news/israel-pay-rwanda-5000-every-african-refugee-it-accepts">$5,000 for every African migrant deported to Rwanda</a> under a “voluntary” migration agreement. </p>
<p>Israel made a <a href="https://www.ynetnews.com/articles/0,7340,L-4424022,00.html">similar arrangement with Uganda</a>. Under the terms of the controversial arrangement, several thousand Sudanese and Eritrean asylum-seekers had to <a href="https://blogs.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/10/moving-under">choose between immigration detention</a> in Israel or to “voluntarily” agree to be deported to Rwanda and Uganda. </p>
<p>Many of those deported to Rwanda have consistently <a href="https://www.haaretz.com/israel-news/2018-02-02/ty-article/asylum-seekers-who-left-israel-for-rwanda-warn-those-remaining-dont/0000017f-db59-d856-a37f-ffd97da60000">struggled with lack of documentation and poverty, and have mostly fled the country</a> and <a href="https://www.bbc.com/news/world-61882542">attempted to return to Europe</a>. </p>
<p>Facing international and national criticism, the Israeli program was later <a href="https://www.theguardian.com/world/2018/apr/02/israel-agrees-un-deal-scrap-plan-deport-african-asylum-seekers">abandoned</a>.</p><img src="https://counter.theconversation.com/content/185758/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tazreena Sajjad does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A UK plan to move asylum seekers on its shores to Rwanda has been met with stiff opposition from human rights organizations. But the UK persists, and Rwanda is all too willing.Tazreena Sajjad, Senior Professorial Lecturer of Global Governance, Politics and Security, American University School of International ServiceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1807792022-07-20T01:14:25Z2022-07-20T01:14:25ZDoes Australia’s harsh asylum seeker policy matter to the average Australian? It depends whether they have to get off the couch<p>The Albanese government’s turnback of a Sri Lankan <a href="https://www.smh.com.au/politics/federal/albanese-government-turns-around-its-first-asylum-seeker-boat-20220524-p5ao2y.html">asylum seeker vessel</a> just a day after being sworn in suggests it’s business as usual for Australia’s treatment of arrivals by boat. </p>
<p>Ever since the 2001 <a href="https://www.theguardian.com/australia-news/2021/aug/22/the-tampa-affair-20-years-on-the-ship-that-capsized-australias-refugee-policy">Tampa Incident</a> – when a freighter rescued several hundred drowning refugees from a dilapidated fishing boat but was prevented from bringing them to Australian shores – “boat arrivals” have featured prominently in public debates.</p>
<p>Australia’s <a href="https://www.kaldorcentre.unsw.edu.au/publication/australias-refugee-policy-overview">draconian</a> refugee policies receive bipartisan support and high <a href="https://poll.lowyinstitute.org/charts/asylum-seekers">public approval</a>, despite attracting widespread criticism overseas. </p>
<p>In <a href="https://www.cambridge.org/core/journals/international-organization/article/abs/attitudes-and-action-in-international-refugee-policy-evidence-from-australia/543308408106402667E9207B58289708">new research</a>, we asked Australians what they thought of the country’s boat arrivals policy – and studied whether their views changed when they were told the policies breached international law, were immoral, or harmed Australia’s international reputation.</p>
<h2>International criticism</h2>
<p>The UN has repeatedly told Australia its boat arrivals policies <a href="https://www.theguardian.com/australia-news/2017/oct/30/australias-asylum-boat-turnbacks-are-illegal-and-risk-lives-un-told">violate international law</a>, including a key <a href="https://www.theguardian.com/australia-news/2015/mar/09/un-reports-australias-immigration-detention-breaches-torture-convention">anti-torture treaty</a>. They also breach the <a href="https://humanrights.gov.au/our-work/national-inquiry-childen-immigration-detention-background-paper-1-introduction">UN Convention on the Rights of the Child</a>. </p>
<p>Doctors Without Borders says the mental health suffering in detention facilities is among the worst it has <a href="https://msf.org.au/sites/default/files/attachments/indefinite_despair_3.pdf">seen</a>. Others describe the facilities as <a href="https://www.theguardian.com/australia-news/2021/jul/08/un-human-rights-expert-decries-boat-turnbacks-as-australia-criticised-for-secrecy-of-on-water-matters">cruel and inhumane</a>. </p>
<p>Still others argue Australia’s policy <a href="https://theconversation.com/cruel-costly-and-ineffective-australias-offshore-processing-asylum-seeker-policy-turns-9-166014">harms its international reputation</a>, <a href="https://theconversation.com/on-the-ground-at-australias-universal-periodic-review-50525">entrenching the nation’s pariah status</a> on the issue.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1039315247956467713"}"></div></p>
<h2>Our study</h2>
<p>Our <a href="https://www.cambridge.org/core/journals/international-organization/article/abs/attitudes-and-action-in-international-refugee-policy-evidence-from-australia/543308408106402667E9207B58289708">recent research</a> involved a survey using a nationally representative sample of over 2,000 Australians. </p>
<p>We found that over 56% of them agreed or strongly agreed with the policy. Only 37% disapproved or strongly disapproved. That’s generally consistent with what <a href="https://poll.lowyinstitute.org/charts/asylum-seekers/">other surveys have found</a>, although those views <a href="https://www.lowyinstitute.org/the-interpreter/polls-apart-how-australian-views-have-changed-on-boat-people">may be shifting</a>.</p>
<p>We were also specifically interested in whether it matters how Australia’s policy is framed. </p>
<p>After (randomly) dividing our respondents into four groups, we then told one group that Australia’s policy breached international law, one group that it was immoral, and one group that it harmed Australia’s international reputation. The fourth group received no additional information.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-temporary-visa-system-is-unfair-expensive-impractical-and-inconsistent-heres-how-the-new-government-could-fix-it-185870">Australia's temporary visa system is unfair, expensive, impractical and inconsistent. Here's how the new government could fix it</a>
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<p>Everyone who received negative information was more critical of current policy. It isn’t altogether surprising that negative information makes people more negative. But given how entrenched Australia’s policy has become, it’s interesting that attitudes are still movable.</p>
<p>Even more interestingly, we found that describing current policy as a breach of international law is far more effective at dampening support than describing it as morally egregious or harmful to our international reputation.</p>
<p>Of the three frames, the international reputation argument got the least traction. This lends some credence to former Prime Minister Tony Abbott’s claim that Australians are “<a href="https://www.smh.com.au/politics/federal/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html">sick of being lectured to by the UN</a>”.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1528613628081225729"}"></div></p>
<h2>Getting people to act is much harder</h2>
<p>We did find emphasising international law or morality makes people more willing to mobilise (compared to accentuating reputational harm). </p>
<p>But overall, most people just aren’t motivated to take political action – even if they strongly dislike the policy. </p>
<p>Our study found less than 30% of respondents were willing to sign a petition against current policy, and less than 10% were interested in protesting or donating.</p>
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<strong>
Read more:
<a href="https://theconversation.com/the-biloela-family-are-going-home-but-what-will-labor-do-with-thousands-of-other-asylum-seekers-in-limbo-in-australia-183621">The ‘Biloela family’ are going home – but what will Labor do with thousands of other asylum seekers in limbo in Australia?</a>
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<p>These findings are consistent with a longstanding body of research which shows people are less willing to mobilise as the costs of action go up. </p>
<p>They also corroborate an age-old challenge for activists. Most forms of political activism involve some cost in terms of time or money. Particularly when your own rights or interests aren’t at stake, turning that outrage into action rarely looks as appealing as staying on the couch.</p><img src="https://counter.theconversation.com/content/180779/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jill Sheppard is the recipient of an Australian Research Council Discovery grant (DP210101517).</span></em></p><p class="fine-print"><em><span>Jana von Stein does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our study found that overall, most people just aren’t motivated to take political action against Australia’s refugee policies – even if they strongly dislike them.Jill Sheppard, Senior Lecturer, School of Politics and International Relations, Australian National UniversityJana von Stein, Associate Professor, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1858702022-06-29T23:24:15Z2022-06-29T23:24:15ZAustralia’s temporary visa system is unfair, expensive, impractical and inconsistent. Here’s how the new government could fix it<p>The election of the Albanese Labor government brings an opportunity to end one of the most detrimental elements of Australian refugee law and policy in the past decade: the use of temporary visas. </p>
<p>Temporary protection has been the only option available for asylum seekers who arrived by boat a decade ago and were recognised as refugees. Known as the “legacy caseload”, these people are caught in a system of law and policy that keeps them in a state of perpetual limbo. </p>
<p>As the new government committed to end temporary protection, we have <a href="https://www.kaldorcentre.unsw.edu.au/news/new-kaldor-centre-policy-brief-proposes-reforms-australia%E2%80%99s-temporary-protection-system">just published a policy brief</a> with the Kaldor Centre for International Refugee Law outlining how this could be achieved.</p>
<p>Our report sets out practical reforms that can be implemented relatively simply, within existing legislative provisions and with only minimal changes to policy and regulations. </p>
<p>The 17 recommendations were produced in consultation with refugees and asylum seekers living on temporary protection visas and bridging visas. We also consulted civil society, including former and current temporary protection visa holders and legal groups working with refugees.</p>
<p>The impact of temporary protection and the fast-track system on refugees and
asylum seekers has left many <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/inm.12325">depressed and suicidal</a>. <a href="https://www.theguardian.com/commentisfree/2022/jun/29/the-new-government-gives-me-hope-that-the-cruel-limbo-of-temporary-protection-visas-might-end">Expectations</a> from those living on temporary visas and the wider refugee advocates are high and there is significant apprehension about the transition.</p>
<p>The new government understands it will need to approach reforms carefully. Our recommendations are accompanied by a trauma-informed strategy to help reduce mental distress, deterioration and retraumatisation of asylum seekers, while also increasing community engagement.</p>
<h2>The current system is damaging</h2>
<p>Australia’s temporary protection system is <a href="https://www.kaldorcentre.unsw.edu.au/news/new-kaldor-centre-policy-brief-proposes-reforms-australia%E2%80%99s-temporary-protection-system">unfair, expensive, impractical and inconsistent</a> with our international human rights obligations.</p>
<p>In 2014, the Coalition government reintroduced a Howard-era three-year Temporary Protection Visa (TPV) and a five-year Safe Haven Enterprise Visa (SHEV) for the more than 30,000 people who arrived by boat between August 13 2012 and January 1 2014. </p>
<p>However, unlike the earlier Howard policy, the temporary visas this time provided no realistic prospect of applying for permanent protection. </p>
<p>The number of people in this “legacy caseload” as <a href="https://www.homeaffairs.gov.au/research-and-stats/files/uma-legacy-caseload-may-2022.pdf">of May 2022</a> is 31,256. </p>
<p>They come from many countries. The largest number are from Afghanistan, Iran, Pakistan and Sri Lanka. The majority – around 19,500 people – have been found to be refugees and have been granted TPV and SHEV. </p>
<p>The 10,000 who have been refused a visa were assessed through a “fast-track” process that has <a href="https://theconversation.com/how-the-biloela-tamil-family-deportation-case-highlights-the-failures-of-our-refugee-system-123685">been neither fair nor fast</a>. </p>
<p>People who have been refused have been living in the Australian community for ten years or more while awaiting the outcome of appeals. </p>
<p>Some (<a href="https://theconversation.com/the-biloela-family-are-going-home-but-what-will-labor-do-with-thousands-of-other-asylum-seekers-in-limbo-in-australia-183621">such as the Nadeselingham family</a>) are working or have had children in Australia.</p>
<p>There are also many asylum seekers from Afghanistan who have been refused visas but who cannot return due to the reemergence of the Taliban in August 2021. </p>
<p>In other words, some of those refused visas may well be refugees or have other ties to the Australian community. However, the current legal system does not allow them to apply for other visas without going through cumbersome, expensive appeals and ministerial intervention processes. </p>
<p>People who hold TPVs and SHEVs are allowed to work but not to reunite with family or travel freely overseas.</p>
<p>Others live on precarious short-term bridging visas, some without the right to work. Many are without access to income support. In either situation, the uncertainty is damaging people’s mental health and well-being. </p>
<h2>Key recommendations</h2>
<p>The focus of the policy brief was to set out reforms either within the current legislative and policy framework, or with minimal changes. </p>
<p>This means changes can occur within a relatively short time frame. </p>
<p>Key recommendations include: </p>
<ul>
<li><p>refugees on TPVs and SHEVs should be moved onto permanent visas known as Resolution of Status visas. People who have not yet been assessed or who have previously been refused protection should also be able to apply for a permanent visa that does not require another assessment of their protection claims</p></li>
<li><p>restrictions on travel for TPV and SHEV holders should be removed, pending the grant of a permanent visa and includes specific recommendations in relation to travel documents. Travel is essential for re-establishing links to separated family</p></li>
<li><p>family reunion, particularly partners and children, should be prioritised. Granting people permanent visas allows them to begin the process of family reunion through the family or humanitarian programs</p></li>
<li><p>the government should establish a specialised team in the Department of Home Affairs to work closely with migration agents, lawyers and refugee communities. This group could identify other options for allowing reunification of close relatives and children who, under current law, may not fall within the definition of “member of a family unit”. Families have been separated for at least 10 years; many left children at home who have now reached ages where they will no longer be considered dependent. </p></li>
</ul>
<p>In 2014, the new minister for immigration, citizenship and multicultural affairs Andrew Giles <a href="https://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/a275472e-b699-46e7-ac29-bcf2fb8ee942/0018/hansard_frag.pdf;fileType=application%2Fpdf">said</a></p>
<blockquote>
<p>Labor has a longstanding policy of opposing TPVs, for good reason. They do not provide a sustainable solution for refugees. The uncertainty exacerbates real mental health issues and denies people the capacity to live full lives. As well as significant international law concerns with these provisions, they put people in limbo. There is no deterrence value here, even if you accept that to be a valid policy objective – they only place vulnerable people in a place of uncertainty.</p>
</blockquote>
<p>He now has significant power to put those words into action.</p><img src="https://counter.theconversation.com/content/185870/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received funding from the Australian Research Council and sitting fees from the Department of Home Affairs.</span></em></p><p class="fine-print"><em><span>Ali Reza Yunespour is a Board Member of Community Refugee Sponsorship Australia (CRSA) and volunteer Partnership Coordinator with Indigo Foundation Australia. </span></em></p><p class="fine-print"><em><span>Carol Grech is a board member of the Rosemary Bryant Research Foundation. </span></em></p><p class="fine-print"><em><span>Nicholas Procter has previously received grant funding and sitting fees from from Department of Health and Department of Home Affairs. </span></em></p>Our report sets out practical reforms that can be implemented relatively simply, within existing legislative provisions and with only minimal changes to policy and regulations.Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityAli Reza Yunespour, Academic Internships Coordinator, The University of MelbourneCarol Grech, Professor, University of South AustraliaNicholas Procter, Professor and Chair: Mental Health Nursing, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1828922022-05-18T13:27:42Z2022-05-18T13:27:42ZThe rights of refugees in Africa are under threat: what can be done<figure><img src="https://images.theconversation.com/files/462963/original/file-20220513-21-iuuv5g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Sudanese children play at a refugee camp in northern Uganda.
</span> <span class="attribution"><span class="source">Geovien So/SOPA Images/LightRocket via Getty Images</span></span></figcaption></figure><p><em>In April 2022, 70 refugees from the Democratic Republic of Congo (DRC) were reportedly <a href="https://www.news24.com/news24/africa/news/zimbabwe-deports-drc-refugees-who-allegedly-looted-food-at-refugee-camp-20220414">detained and then deported</a> by the Zimbabwe government. Once back in the DRC, their government rejected 15 of them, who were sent back to detention facilities in Harare. The incident raises legal questions around human rights and the obligations of states that are signatories to the <a href="https://www.unhcr.org/uk/1951-refugee-convention.html">1951 Refugee Convention and its 1967 Protocol</a>. <a href="https://www.unhcr.org/zimbabwe.html">Zimbabwe hosts</a> 22,400 refugees and asylum seekers. Parvati Nair, a professor of migration studies, answers questions about the rights of refugees and the obligations of states.</em> </p>
<hr>
<h2>What are the obligations to refugees under international law?</h2>
<p>In the aftermath of World War II, the international community came together to shape and commit to the human rights of displaced persons. </p>
<p>The <a href="https://www.unhcr.org/uk/1951-refugee-convention.html">1951 Refugee Convention and 1967 Protocol</a> marked a milestone in framing the responsibilities of states to protect those fleeing untenable or dangerous contexts. These include conflict, disasters, political oppression and other severe conditions. </p>
<p>It also gave refugees and asylum seekers the right to have their cases go through legal processes. A key principle within this framework is that of <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf">non-refoulement</a>, a core legal protection for displaced persons seeking asylum. It puts the onus on hosting states to safeguard asylum seekers. </p>
<p>Situations such as those of the Congolese refugees in Zimbabwe offer examples of how states disregard the law, transporting refugees across borders with no regard for their rights. </p>
<p>Africa exemplifies many of the challenges faced by refugees, as well as many of the ways in which states fail to honour cross-border obligations to asylum seekers. </p>
<p>The continent hosts a high population of displaced persons. Uganda, Kenya, Nigeria and Ghana are examples of countries that host large numbers of refugees. </p>
<p>As political scientist <a href="https://www.waterstones.com/book/the-challenges-of-refugees-and-internally-displaced-persons-in-africa/sabella-o-abidde/9783030566494">Sabella Abide states,</a> many refugees and asylum seekers suffer protracted mental and physical abuse and suffering. Four years ago, the United Nations confirmed the <a href="https://www.unhcr.org/5c658aed4">Global Refugee Compact</a> as a blueprint for how states should support refugees and host communities. </p>
<p>Key priorities included upholding refugees’ human rights and ensuring their security. But many countries are still far from achieving this.</p>
<p>States are <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199278381.001.0001/acprof-9780199278381">contravening international law</a> at the cost of the dignity, safety and rights of forcibly displaced people. </p>
<p>This is not an African phenomenon. There are numerous examples of refugee rights being disregarded from Australia to the UK and the US. </p>
<h2>Are humanitarian priorities being eroded?</h2>
<p><a href="https://theconversation.com/refugee-or-migrant-sometimes-the-line-is-blurred-79700">Human displacement</a> has been on the rise globally. This trend is set to <a href="https://journals.sagepub.com/doi/10.1177/00208728211022791">continue</a>. </p>
<p>Across the world, there are more than <a href="https://www.unhcr.org/refugee-statistics/">84 million forcibly displaced persons</a>. This means that one person out of at least every 94 is forcibly displaced.</p>
<p>In the face of such rising numbers, as well as the rise in <a href="https://www.leuvenpubliclaw.com/no-refuge-for-the-refugee-right-wing-populism-in-the-eu-and-the-denial-of-a-safe-haven/">populist </a>and neoliberal ideologies, the humanitarian priorities that led to the establishment of refugee law are <a href="https://gho.unocha.org/">profoundly threatened</a>. There are rising concerns around border protection policies and mechanisms among states, and questions of national sovereignty.</p>
<p>Indeed, Africa is partnering with the European Union in the proliferation of securitised borders. The union’s coast guard agency <a href="https://frontex.europa.eu">Frontex</a> is working with West African states to <a href="https://www.fmreview.org/externalisation/gkliati-kilpatrick">construct European borders on African soil</a>.. This is aimed at preventing the northward movement of refugees and migrants to Europe. Such actions further alienate and ring-fence displaced persons. </p>
<p>As the Australian criminologist <a href="https://www.tandfonline.com/doi/abs/10.1080/10345329.2005.12036348">Sharon Pickering</a> has pointed out, state responses to displaced persons as unwelcome intruders – and increasingly stringent border policies – have led to the obscuring of international obligations to asylum seekers and refugees. </p>
<p>Deportation is sadly an aspect of <a href="https://www.unhcr.org/3e59de764.pdf">refugee management,</a> yet it goes against refugee rights. </p>
<p>Today, the notion of the refugee as a person needing safety has altered in practice, if not in law. <a href="https://www.languageonthemove.com/refugees-in-the-media-villains-and-victims/">Representations in the media</a> abound of displaced persons as law breakers, deviants and criminals who are burdens on a state and its citizens. </p>
<p>As a result, the legal principle of <a href="https://www.unhcr.org/3ae6a0c34.pdf">non-refoulement has been overshadowed</a>. This has had profoundly negative, even deadly, consequences on the already <a href="https://www.thriftbooks.com/w/the-refugee-and-non-refoulement-obligation-redefining-the-refugee-and-analyzing-the-consequences-of-the-non-refoulement-obligation_vani-manoraj/36846637/#edition=64710973&idiq=52689712">harsh realities</a> of refugees.</p>
<p>Take the example of migrants, refugees and asylum seekers crossing multiple African countries in their northward trek to Europe. Their journey is fraught with the dangers of push back from countries like Libya or Morocco. </p>
<h2>Does Africa have a particular set of challenges?</h2>
<p>Africa hosts approximately a third of the world’s population of <a href="https://www.unhcr.org/449267670.pdf">displaced persons, asylum seekers and refugees</a>. </p>
<p>Poverty, instability, conflict and climate emergencies form the context in which people are forced to leave home and seek shelter across international borders. They then find themselves housed, often for indefinite periods of time, in already overcrowded camps. </p>
<p>The movement of refugees across Africa is not new. What has shifted over the past half century is the rise in numbers. Today, <a href="https://www.un.org/en/academic-impact/migration-dynamics-refugees-and-internally-displaced-persons-africa">one in every 76 Africans</a> is a refugee. </p>
<p>If we add to this the great number of <a href="https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa">internally displaced persons</a> – often facing more dire conditions than refugees because they do not have the same access to aid from international agencies – then we see that addressing displacement, asylum and rights is of paramount importance. </p>
<p>Also different from before are the ways in which <a href="https://www.researchgate.net/publication/274528807_Refugees_the_State_and_the_Politics_of_Asylum_in_Africa">states manage</a> this growing displaced population. </p>
<p><a href="https://www.jstor.org/stable/24328609">Previously</a>, refugees were supported to settle in rural areas and become self-sufficient through agricultural and other endeavours. Today, many refugees are enduring <a href="https://www.unrefugees.org/news/protracted-refugee-situations-explained/">protracted displacement</a>. They are encamped, subject to state or donor support in countries with struggling economies. They are living in legal and economic limbo. </p>
<p>Additionally, reliance on donors from the global north has increased. The result is that refugees have become pawns in larger socio-economic and political deals.</p>
<p>The latest in this context is the <a href="https://theconversation.com/how-the-uks-plan-to-send-asylum-seekers-to-rwanda-is-21st-century-imperialism-writ-large-181501">UK’s proposed deal</a> to send refugees to Rwanda. </p>
<p>Lastly, taking into account the poor human rights records that often feature in many African countries, refugee law – forged in the <a href="https://www.cambridge.org/core/books/human-rights-in-africa/03DEA3AF2E9ADFD63E8D63406CB540B8">language of human rights</a> and applicable to already very vulnerable people – drops from view. This has dire social and personal consequences. </p>
<h2>Are there solutions?</h2>
<p>The <a href="https://heinonline.org/HOL/Page?handle=hein.journals/cjtl36&div=37&g_sent=1&casa_token=rXEfK4Iag74AAAAA:3Th618oxjdZi_99cYz3n3rs6DBlE4nMGBHwthkpIC7sey67xJ7g3r_Dk8_vrubhxjzn23iM&collection=journals">international community</a> has an obligation to support African states and Africa’s refugees. This should be in ways that are equitable and offer actual benefits for refugees and hosts alike. </p>
<p>The international community must understand that the rising tide of refugees may be most intense in Africa, but is globally prevalent. Good refugee management is key to a sustainable and equitable world. Environmental crises and other global challenges mean that forced human mobility is here to stay. </p>
<p>Shaped by colonial legacies, and political and economic challenges, Africa remains enmeshed in relations of <a href="https://www.brookings.edu/events/understanding-the-drivers-of-inequality-in-africa-and-implications-for-human-development/">dependency and inequality</a> with donor states and entities. </p>
<p>A clear prioritisation is urgently needed to separate responsibility for refugees from short-term economic gains or cross-border struggles. A key step would be to reposition humanitarian obligations as central to development to counter existing dynamics of dependency. </p>
<p>In line with the <a href="https://sdgs.un.org/goals">Sustainable Development Goals</a> and their promise <a href="https://www.un.org/en/desa/leaving-no-one-behind">to leave no one behind</a>, African states have the chance to make refugee rights key obligations of states and spearhead the issue, which is of global relevance.</p>
<p>African states must also take responsibility for much more efficient processing of asylum claims and resettlement, and support one another. They should link refugee protection to other core interests, such as health, youth futures and social inclusion. In this way, refugee protection and support become key features of development, which should be people-centred. </p>
<p>Only by honouring legal humanitarian commitments and empowering its refugees can African states develop in ways that are sustainable.</p><img src="https://counter.theconversation.com/content/182892/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Parvati Nair does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Refugee law puts humanitarianism above considerations of state sovereignty.Parvati Nair, Professor of Hispanic, Cultural and Migration Studies, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1784822022-03-09T13:18:29Z2022-03-09T13:18:29ZThe Ukrainian refugee crisis could last years – but host communities might not be prepared<p><a href="http://data2.unhcr.org/en/situations/ukraine">More than 2 million</a> Ukrainians – <a href="https://www.bbc.com/news/world-europe-60539104">almost all women and children</a> – have fled Ukraine since Russia invaded on Feb. 24, 2022. The sudden exodus of Ukrainian refugees is at a <a href="https://www.wsj.com/articles/refugees-fleeing-ukraine-now-represent-biggest-movement-of-people-in-europe-since-world-war-ii-11646493910">scale not seen in Europe since World War II</a>. </p>
<p>The migration of Ukrainian refugees has prompted a swift international and regional response, including everything from celebrity online fundraising campaigns that have <a href="https://www.gofundme.com/f/stand-with-ukraine">raised more than US$18 million</a> to European countries opening their doors to Ukrainians. </p>
<p>But this momentum is unlikely to sustain itself. That’s in part because refugee assistance is <a href="https://reporting.unhcr.org/sites/default/files/Underfunding-Report-2021.pdf">chronically underfunded</a> across the world, leaving forcibly displaced populations on the <a href="https://www.washingtonpost.com/politics/2021/05/24/donors-are-cutting-food-aid-refugees-rwanda-thats-devastating-people-unable-work/">brink of starvation and without critical supplies</a>. </p>
<p>As <a href="https://www.storymodelers.org/absorptivecapacity">experts on forced migration</a> and host communities, our research shows that in order to sustain a large humanitarian response, it’s important to balance the needs of both refugees and host communities with financial and policy support. This reduces refugees’ vulnerability and assists those who welcome them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A child holds a baby, looking straight at a camera, with the backdrop of a full room and beds accommodating Ukrainian refugees" src="https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/450785/original/file-20220308-17145-1tidepo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A child holds an infant in a temporary shelter for Ukrainian refugees in Przemysl, Poland, on March 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/girl-plays-a-an-infant-in-a-temporary-shelter-hosting-the-ukrainian-picture-id1239022870?s=2048x2048">Louisa Gouliamaki/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Understanding forced displacement from Ukraine</h2>
<p>Russian military attacks have killed <a href="https://reliefweb.int/sites/reliefweb.int/files/resources/2022_protection_cluster_snapshot_2-5_march_eng.pdf">more than 400 Ukrainian civilians</a>. <a href="https://app.powerbi.com/view?r=eyJrIjoiZGQ2MzgwNDMtYTFiNC00NDUzLWE1N2EtNWE5ZjY0NDE5ZDE0IiwidCI6ImU1YzM3OTgxLTY2NjQtNDEzNC04YTBjLTY1NDNkMmFmODBiZSIsImMiOjh9">There’s been widespread destruction of civilian homes and shelters</a> and cases of <a href="https://www.wsj.com/articles/russia-pummels-ukrainian-civilian-targets-ahead-of-talks-11646645852">Russians targeting civilians</a> as they flee. </p>
<p>The <a href="https://data2.unhcr.org/en/documents/details/91114">United Nations Refugee Agency expects</a> that the number of displaced Ukrainians will top 4 million by July 2022. </p>
<p>Approximately <a href="http://data2.unhcr.org/en/situations/ukraine">59% of Ukrainian refugees</a> are temporarily settling in record numbers <a href="https://www.reuters.com/world/europe/ukrainians-fleeing-fighting-arrive-poland-record-numbers-2022-03-06/">in neighboring Poland</a>. Humanitarian aid agencies and <a href="https://www.theguardian.com/commentisfree/2022/mar/06/polish-ukrainian-border-humanity-refugees">local citizens there are scrambling</a> to provide food, clean water, shelter, transportation and money to arriving Ukrainians. </p>
<p>Around <a href="https://data2.unhcr.org/en/documents/details/91114">40% of Ukrainians are expected to end up in Poland alone</a>, with 410,000 in other neighboring countries, such as Hungary, Moldova, Romania and Slovakia. The remaining 1.8 million are expected to settle in other countries.</p>
<p>The U.N. and partner organizations have so far <a href="https://hum-insight.info/plan/1102">received only 7% of the US$1.1 billion</a> they are asking countries to give to support Ukrainian refugees and host communities from March through May 2022.</p>
<p>Both ordinary citizens and corporations, like Netflix and AirBnB, have stepped forward <a href="https://www.washingtonpost.com/world/2022/03/03/donate-ukraine-money-crypto/">with millions of dollars’</a> worth of donations to help the refugees. </p>
<p>But our research suggests that public attention to <a href="https://link.springer.com/chapter/10.1007/978-3-030-80387-2_11">refugees is often fleeting</a>, far shorter than the amount of time <a href="https://blogs.worldbank.org/dev4peace/2019-update-how-long-do-refugees-stay-exile-find-out-beware-averages">refugees typically remain away from their homes and need help</a>.</p>
<p><a href="https://digitalcommons.odu.edu/gpis_etds/121/">Host communities tend to become tired</a> of humanitarian responses as they continue on for years. Also, these responses are expensive, limiting refugees’ access to housing, cash and medical services, among other things, to live in their new countries. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two soldiers support an elderly woman, wearing a maroon coat and white hat, as she walks over a destroyed bridge in Ukraine. Behind her, a row of people, some of them walking dogs, wait to also cross the remnants of the bridge." src="https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/450788/original/file-20220308-25-1i3bwh0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ukrainian soldiers help an elderly woman cross a destroyed bridge as she leaves Irpin, Ukraine, on March 7, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/ukrainian-soldiers-help-an-elderly-woman-to-cross-a-destroyed-bridge-picture-id1239000819?s=2048x2048">Dimitar Dilkoff/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>A new kind of refugee response</h2>
<p>The European Union agreed to a <a href="https://www.euronews.com/my-europe/2022/03/03/eu-countries-agree-to-trigger-a-never-used-law-to-host-ukrainian-refugees">new plan on March 3</a> that allows Ukrainian refugees to legally stay in its 27-member countries for up to three years without first applying for asylum. <a href="https://ec.europa.eu/home-affairs/policies/migration-and-asylum/common-european-asylum-system/temporary-protection_it">This never-before-used policy</a> will give Ukrainian refugees residence permits and access to work, health care and education. </p>
<p>The decision was not only unprecedented for the European Union, but it marked a major policy reversal for many of its members. </p>
<p>Poland was at the center of controversy in November 2021 after border police forcibly stopped <a href="https://www.hrw.org/news/2021/11/24/belarus/poland-abuse-pushbacks-border">Syrian, Yemeni and Iraqi migrants</a>, resulting in several deaths. The human rights organization Council of Europe reported in May 2019 that Hungary was <a href="https://www.nytimes.com/2019/05/21/world/europe/hungary-migrant-abuse-report.html?">starving and caging refugees</a>. </p>
<p>The suddenness of these governments’ turnabouts is unprecedented, when considering other refugee situations. </p>
<p>The Syrian war, for example, started in 2011. It wasn’t until 2014 that <a href="https://www.loc.gov/item/global-legal-monitor/2019-08-14/turkey-istanbul-governorate-to-enforce-movement-restrictions-on-syrians-under-temporary-protection/">Turkey – a major destination for Syrian refugees – announced</a> a policy that granted Syrians the legal right to work and get certain public services. </p>
<p>In Colombia, it took five years and several attempts to offer <a href="https://theconversation.com/colombia-gives-nearly-1-million-venezuelan-migrants-legal-status-and-right-to-work-155448">similar protections, including health care and education, to 1.8 million Venezuelan refugees</a>. </p>
<p>The speed, unanimity and permissiveness of the EU’s new policy shows how governments can capitalize on political will to provide timely humanitarian solutions for refugees when they want to.</p>
<p>So far, the EU’s protections have not extended to <a href="https://www.nytimes.com/2022/02/26/us/politics/ukraine-europe-refugees.html">all refugees</a>, including African students and immigrants in Ukraine who have not been <a href="https://www.vox.com/22962300/ukraine-russia-refugee-racism">permitted or had difficulty crossing into other countries.</a></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a dark coat poses with two young girls, also in winter clothing, and a man next to them." src="https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/450790/original/file-20220308-21-1xvgj6b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A family of Ukrainian refugees stands in front of a migration registration office in Hamburg, Germany, on March 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/march-2022-hamburg-ukrainian-refugees-svetlana-omid-and-their-and-picture-id1239026374?s=2048x2048">Marcus Brandt/picture alliance via Getty Images</a></span>
</figcaption>
</figure>
<h2>Supporting Refugee Host Communities</h2>
<p>Based on <a href="https://www.storymodelers.org/absorptivecapacity">our research</a> on host communities’ responses to refugees, we have observed patterns in how attitudes change over time. </p>
<p>As we see now in Ukraine’s neighboring countries, <a href="https://www.unhcr.org/news/stories/2022/3/621dd8214/people-across-poland-show-solidarity-refugees-ukraine.html#_ga=2.173670177.321976809.1646680752-345794119.1644953559">regular citizens and civil society groups are stepping up</a> to help refugees. </p>
<p>But this might change as large aid organizations settle in host communities and take over those roles. </p>
<p>We have observed, particularly when refugees live in camps, that large movements of people can result in <a href="https://academic.oup.com/jrs/article/10/1/19/1560308?login=true">environmental degradation caused by trash buildup, or when refugees cut down trees for firewood in places like Greece.</a> </p>
<p>While refugees <a href="https://www.pnas.org/doi/abs/10.1073/pnas.1604566113">bring positive</a> <a href="https://www.annualreviews.org/doi/abs/10.1146/annurev-resource-090518-095629">economic impacts</a> to host communities in the long term, we have also observed that their arrival results in competition over <a href="https://doi.org/10.1086/676458">low-wage jobs with local people</a>. </p>
<p>People often connect long-term refugee stays <a href="https://www.tandfonline.com/doi/abs/10.1080/1369183X.2018.1459183">with more crime</a>, even though <a href="https://link.springer.com/chapter/10.1007/978-3-319-72159-0_26">data shows otherwise</a>. </p>
<p>Our interviews with host community members, aid workers and government representatives in Greece, Colombia and South Africa from 2017 to the present found that people began to feel that their towns were unrecognizable after hosting refugees and large aid operations for a few years. </p>
<p>People also told us that they did not know how to process the trauma of witnessing human suffering.</p>
<p>As scholars of forced migration, we believe the European citizens who see their towns turn into transit or host communities for Ukrainian refugees will begin to long for a time before the conflict, as we have heard in other host communities. </p>
<p>While it is not yet clear what the practical stresses on European host communities will be, the disruption to their towns and cities will likely wear down local residents. We have found that even in big towns and cities of more than 1 million people, locals observe the presence of refugees. </p>
<p>As this happens, our research suggests that a few steps focused on transparency would be helpful for maintaining long-term social stability. </p>
<p>Colombia, for example, hosts routine town halls across migration hot spots, where they explain migration policies and trends to communities. </p>
<p>This also means governments should continue to invest in host communities’ infrastructure. If there is an influx of refugees, governments can make sure that local sewage systems can accommodate more people. They can also give more money to hospitals to match larger populations’ needs. </p>
<p>Practices like these help host communities have a say in the future of their towns and feel confident about their growth. They also prevent the spread of rumors that can lead to anti-immigrant sentiments. </p>
<p>Ukrainian refugees may not be able to return home for years. Measures like the EU’s new policy give Ukrainians safe places to wait out the war and become self-sufficient during their stay. </p>
<p>[<em><a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/178482/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research is funded by grant number N000141912624 by the Office of Naval Research through the Minerva Research Initiative; none of the views reported in the study are those of the funding organization.</span></em></p><p class="fine-print"><em><span>This research is funded by grant number N000141912624 by the Office of Naval Research through the Minerva Research Initiative; none of the views reported in the study are those of the funding organization. </span></em></p>More than 2 million Ukrainians have fled the country since the Russian invasion. The EU has welcomed the refugees, but research shows that host communities may tire of the newcomers.Jose J. Padilla, Research Associate Professor, Old Dominion UniversityErika Frydenlund, Research Assistant Professor, Old Dominion UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1737142022-01-13T19:48:52Z2022-01-13T19:48:52ZEnvironmental disasters are fuelling migration — here’s why international law must recognize climate refugees<figure><img src="https://images.theconversation.com/files/440721/original/file-20220113-27-1jjcje5.jpg?ixlib=rb-1.1.0&rect=98%2C91%2C4604%2C3044&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman wades through mud to collect items from her home in San Pedro Sula, Honduras. The devastation brought by hurricanes Eta and Iota in Honduras in November 2020 contributed to a sharp rise in northward migration. </span> <span class="attribution"><span class="source">(AP Photo/Moises Castillo)</span></span></figcaption></figure><p>When hurricanes Eta and Iota barrelled into Central America in November 2020, they flooded towns and cities, caused catastrophic losses in the agricultural sector and contributed to food insecurity. In all, <a href="https://reliefweb.int/report/guatemala/central-america-hurricanes-eta-iota-6-months-operation-update-mdr43007">4.7 million Hondurans were affected</a>, and tens of thousands decided to leave, forming <a href="https://www.aljazeera.com/news/2021/1/26/the-spiralling-crisis-pushing-hondurans-to-flee-north">migrant caravans</a> in a desperate attempt to rebuild their lives in the United States. </p>
<p>Scientists ultimately linked that record-breaking Atlantic hurricane season to climate change, making it clear that climate change is already influencing migration. </p>
<p>My research studies the relationships between law, people and the environment. In refugee law, people become refugees when they have a well-founded fear of persecution in their country of origin. Persecution is currently limited to grounds of race, religion, nationality, membership of a particular social group or political opinion. That means when people move due to environmental degradation or disaster, they are not, in the legal sense of the word, “refugees.” </p>
<p>But international refugee and human rights law can no longer place the focus solely on social and political persecution. It must be overhauled to consider climate change and include “deadly environments” as a form of persecution. </p>
<p>The concept of deadly environments accounts for the social, political and ecological conditions that force someone to move. Including it in legal definitions would establish the environment as contributing to conditions of human rights deprivation and persecution.</p>
<h2>Deadly environments absent in refugee law</h2>
<p>The World Bank estimates that without radical and concerted efforts to slow climate change, <a href="https://openknowledge.worldbank.org/handle/10986/36248">216 million</a> people will be displaced within their own countries by 2050. With the scale of climate-induced migration, it’s <a href="https://www.theglobeandmail.com/opinion/article-the-climate-refugees-are-coming-countries-and-international-law-arent/">inevitable</a> that millions will seek refuge across borders, even if they are <a href="https://www.vancouverisawesome.com/highlights/is-it-time-for-canada-to-open-its-doors-to-climate-migrants-4345242">invisible to refugee law</a>. </p>
<p>Migration researchers agree that it is often inaccurate to link migration choices to a <a href="https://www.routledge.com/Forced-Migration-Current-Issues-and-Debates/Bloch-Dona/p/book/9781138653238">single event</a>. It has become common to examine climate change as one in a nexus of factors, including <a href="https://www.refworld.org/docid/5c2f54fe4.html">violence, conflict and disaster</a>. </p>
<p>The uncertain speed of climate disruptions complicates matters further. Their onset can be slow, like ongoing droughts that cause food insecurity, or fast, like hurricanes and floods that destroy homes and crops.</p>
<figure class="align-center ">
<img alt="A woman sits outside a small brick house in a chair with a toddler on her lap, while a man walks towards her carrying a bowl of corn, and another walks past her carrying tall stalks of corn." src="https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/440724/original/file-20220113-13-yxaiii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Residents of a drought-affected region of China were relocated to new homes in the Ningxia Hui autonomous region in October 2015.</span>
<span class="attribution"><span class="source">(AP Photo/Ng Han Guan)</span></span>
</figcaption>
</figure>
<p>Given this, how can we define people who have been displaced by climate? There is no internationally accepted definition of climate-impacted migrants. </p>
<p>The Canadian Association of Refugee Lawyers uses the term “<a href="https://carl-acaadr.ca/wp-content/uploads/2021/11/CARL-Climate-Migration-Report-FINAL-AB-1.pdf">climate migrant</a>,” whereas a report by the White House uses “<a href="https://www.whitehouse.gov/wp-content/uploads/2021/10/Report-on-the-Impact-of-Climate-Change-on-Migration.pdf">climate change related-migration</a>” as an umbrella term. Some use the term <a href="https://doi.org/10.4324/9781315638843-1">environmental migrants</a>, others use <a href="https://doi.org/10.1111/area.12193">environmentally displaced peoples</a>. Like some other adamant outliers, I use the phrase <a href="https://doi.org/10.4324/9781315109619">climate refugees</a> to underscore the agency of those seeking refuge. </p>
<p>The debate over definitions misses the point. As British geographer Calum T. M. Nicholson explains, “<a href="https://doi.org/10.1111/geoj.12062">the key issue is not the cause of movement, but the rights violations suffered by migrants</a>.” </p>
<p>According to the <a href="https://www.ohchr.org/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf">Office of the United Nations High Commissioner for Human Rights</a>, climate change impacts the human rights to life, self-determination, development, health, food, water and sanitation, adequate housing and cultural rights. One only need to think about the 400,000 livestock herders in <a href="https://www.internal-displacement.org/sites/default/files/publications/documents/21_0318_Local_integration_in_Ethiopia.pdf">Southern Ethiopia</a> who were displaced by climate-related drought between 2015 and 2019. They continue to require assistance for food, water and shelter. </p>
<h2>Deadly environments and border practices</h2>
<p>Shifting the focus to deadly environments makes it clear that they are produced not only by climate change, but also by the practices upheld along borders. </p>
<p>The Transnational Institute, an international research and advocacy institute, reports that the world’s wealthiest countries <a href="https://www.tni.org/en/publication/global-climate-wall">spend more on militarizing their borders than they do on responding to the climate crisis</a>. This often includes building walls, developing surveillance technologies and hiring armed border guards. According to the institute, rich countries are building a “global climate wall” to keep out people forced to migrate due to climate change with deadly consequences.</p>
<p>In her book <em><a href="https://www.upress.umn.edu/book-division/books/the-death-of-asylum">The Death of Asylum: Hidden Geographies of the Enforcement Archipelago</a></em>, Alison Mountz, a geographer at Wilfrid Laurier University, describes the steady development of asylum processing in places far away from physical borders, such as <a href="https://www.hrw.org/news/2021/07/15/australia-8-years-abusive-offshore-asylum-processing">Australia’s offshore processing camps</a> in Papua New Guinea and Nauru. Mountz argues that the growth of offshore detention centres contributes to the physical deaths of asylum-seekers, as well as their political deaths, as news of drowned migrants becomes mundane and normalized.</p>
<figure class="align-center ">
<img alt="A backlit photo of the border wall with the silhouettes of six people walking along a ridge with the river below." src="https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/440725/original/file-20220113-13-1m7tl2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A pair of migrant families from Brazil passes through a gap in the border wall to cross from Mexico into Yuma, Ariz., in June 2021.</span>
<span class="attribution"><span class="source">(AP Photo/Eugene Garcia)</span></span>
</figcaption>
</figure>
<p>The <a href="https://missingmigrants.iom.int/">UN International Organization for Migration</a> (IOM) has documented the deaths of nearly 46,000 migrants en route to safety since 2014. An estimated 23,000 have drowned in the Mediterranean Sea. </p>
<p>The border-crossing between the United States and Mexico is particularly deadly, with 2,980 deaths recorded since 2014. <a href="https://missingmigrants.iom.int/region/americas">According to the IOM</a>, the “main direct causes of death identified in this area are drowning … and deaths caused by harsh environmental conditions and lack of shelter, food and water.”</p>
<p>International refugee and human rights law must be urgently overhauled to recognize deadly environments as sites of persecution.</p>
<h2>Towards a new protection regime</h2>
<p>The United Nations Refugee Agency has already established links between climate change and persecution. It finds that when a state is unwilling to respond to humanitarian needs that are the result of climate change, there is a “<a href="https://www.refworld.org/docid/5f75f2734.html">risk of human rights violations amounting to persecution</a>.” </p>
<p>Deadly environments, including those transformed by climate change whether suddenly or over long periods of time, need to be considered sites of persecution. Their presence should trigger state obligations to provide protection for peoples forcibly displaced by climate change. </p>
<p>Central to this effort is establishing relationships among law, humans and the environment. This is one step towards recognizing that people displaced by climate change are, in fact, refugees.</p><img src="https://counter.theconversation.com/content/173714/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel L. Huizenga receives funding from Social Sciences and Humanities Research Council. </span></em></p>International refugee law must be overhauled to consider climate change and include “deadly environments” as a form of persecution.Daniel L. Huizenga, Postdoctoral Fellow, Human Geography, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1685562021-09-24T16:37:45Z2021-09-24T16:37:45ZHaitian migrants at the border: An asylum law scholar explains how US skirts its legal and moral duties<figure><img src="https://images.theconversation.com/files/423157/original/file-20210924-26-fj91z8.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3839%2C2975&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. envoy resigned over "inhumane" treatment of Haitian migrants</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BorderHaitianRacism/698458add41b4d3997107a6663cd318f/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=9">AP Photo/Felix Marquez</a></span></figcaption></figure><p>The U.S.’s top envoy to Haiti <a href="https://www.cnbc.com/2021/09/23/us-special-envoy-to-haiti-resigns-over-migrant-expulsions.html">resigned abruptly on Sept. 22, 2021</a>, over the Biden administration’s “inhumane” treatment of Haitian migrants crossing the border via Mexico into Texas.</p>
<p>The resignation came amid debate over the U.S. decision to <a href="https://fox8.com/news/thousands-of-haitian-migrants-deported-from-us/">deport thousands of Haitians</a> entering the U.S. in search of asylum or a better life. Criticism over the policy mounted as <a href="https://apnews.com/article/donald-trump-immigration-united-states-health-coronavirus-pandemic-083b5ac02cc17a1ce06b6ac0048e99ec">images of U.S. Border Patrol</a> <a href="https://www.reuters.com/world/us/us-homeland-security-chief-heads-border-removal-migrant-camp-accelerates-2021-09-20/">agents on horseback and carrying whip-like cords</a> while encountering migrants gained widespread media attention and criticism from the White House. Border <a href="https://www.dailymail.co.uk/news/article-10014399/Texas-border-agents-DENY-whipping-migrants-accuse-Biden-administration-deflection.html">agents denied using whips</a> on migrants.</p>
<p>The Conversation asked Karen Musalo, an <a href="https://www.uchastings.edu/people/karen-musalo/">expert on refugee law and policy</a>, to unpack what went on at the U.S. border and whether the Biden administration is shirking its moral and legal obligations in deporting the Haitian migrants.</p>
<h2>What’s behind the recent surge of Haitian refugees at the Texas border?</h2>
<p>Haiti is beset by extraordinarily desperate conditions of political chaos and natural disasters, as well as the COVID-19 pandemic. The assassination of President Jovenel Moïse in July 2021 catapulted the country into <a href="https://www.nytimes.com/2021/09/14/world/americas/haiti-henry-moise-assassination.html">political turmoil</a>. The post-assassination power struggle exacerbated <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">pre-existing political violence</a> and dysfunction. Violent gangs, often <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">with ties to the state</a>, are increasingly a threat.</p>
<p>In addition, Haiti suffered a devastating 7.2 magnitude earthquake in August, just two days before being hit directly by tropical storm Grace, with a <a href="https://disasterphilanthropy.org/disaster/2021-haiti-earthquake-and-tropical-storm-grace/">combined toll</a> of <a href="https://www.nbc12.com/2021/08/22/haiti-raises-earthquake-death-toll-passes-2200/">over 2,200 dead</a>, 12,000 injured and hundreds of thousands displaced, many in remote regions that have yet to receive aid. The pandemic has exacerbated these woes. Less <a href="https://ourworldindata.org/covid-vaccinations?country=OWID_WRL">than one-half of 1%</a> of the population has received even a first dose of a vaccine.</p>
<p>This has undoubtedly swelled the number of people trying to leave the nation. But many of the migrants arriving in the U.S. in recent weeks left Haiti before the recent turmoil. Haitian migrants have been <a href="https://cgrs.uchastings.edu/sites/default/files/A-Journey-of-Hope-Haitian-Womens-Migration-to%20-Tapachula.pdf">trapped in Mexico</a> for several years under various <a href="https://www.latimes.com/politics/la-na-pol-central-americans-asylum-protections-20190715-story.html">Trump-era policies that limited</a>, and then eliminated, the possibility for them to request asylum in the United States. At the same time, others who left Haiti in years past for countries in South America have suffered from <a href="https://www.houstonpublicmedia.org/articles/news/in-depth/2021/06/11/400406/many-haitians-are-migrating-to-the-u-s-after-facing-racism-poverty-in-latin-america/">deep antipathy and racism</a> in their host countries, living in perilous conditions with only precarious legal status at best.</p>
<p>It appears many asylum seekers in Mexico, including Haitians, took heed of Biden’s promises during the presidential election campaign <a href="https://joebiden.com/immigration/">to restore the asylum system</a>. That may have been a factor in their decision to present themselves at the Texas border seeking the <a href="https://ijrcenter.org/refugee-law/">protection guaranteed under law</a> for those fleeing persecution.</p>
<figure class="align-center ">
<img alt="A uniformed Mexican police officer talks with a Haitian migrant wearing a mask." src="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A Haitian migrant pleads with a Mexican police officer blocking access to the Rio Grande river.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MexicoUSBorderMigrants/243ec96d0e9749eda7e7ccd02b18ef56/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=41">AP Photo/Felix Marquez</a></span>
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<p>It should be remembered that the U.S. has long played a role in Haiti’s troubles. When Special Envoy for Haiti Daniel Foote resigned, coverage <a href="https://www.thedailybeast.com/daniel-foote-abruptly-quits-over-inhumane-deportation-of-haitian-migrants">focused on his protest</a> against what he described as the inhumanity of returning Haitians to a “collapsed state … unable to provide security or basic services.” Overlooked was his equally damning indictment of the <a href="https://www.washingtonpost.com/context/read-resignation-letter-from-u-s-special-envoy-for-haiti-daniel-foote/3136ae0e-96e5-448e-9d12-0e0cabfb3c0b/">U.S. as a puppet master</a> in Haiti’s political breakdown, for example by supporting the unelected prime minister and his political agenda.</p>
<h2>Doesn’t the US have a legal obligation to process asylum seekers?</h2>
<p>Both <a href="https://ijrcenter.org/refugee-law/">international</a> and <a href="https://www.law.cornell.edu/uscode/text/8/1158">U.S. law</a> recognize the basic human right to seek asylum. The U.S. has ratified two treaties, the <a href="https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol">1967 Protocol Relating to the Status of Refugees</a> and the <a href="https://www.ohchr.org/en/professionalinterest/pages/cat.aspx">1984 Convention against Torture</a>, which prohibit the U.S. from returning people to countries where they risk persecution or torture. As a practical matter, this means that people must be able to request asylum at the U.S. border, or within U.S. territory, so that they have the opportunity to prove whether or not they fit within the category of persons legally protected from forced return.</p>
<p>This international legal framework has been codified in U.S. law, primarily through the <a href="https://www.acf.hhs.gov/orr/policy-guidance/refugee-act">Refugee Act of 1980</a>, along with later statutes and regulations. It is universally acknowledged, including <a href="https://www.justice.gov/file/23326/download">by the Supreme Court</a>, that in passing these laws Congress intended to bring U.S. law into conformity with the United States’ international treaty obligations.</p>
<p>It is entirely legal to approach U.S. borders and request asylum. Statements by the administration that <a href="https://www.bbc.com/news/world-us-canada-57387350">people should not come</a>, that they are doing something illegal when they seek protection, and that there is a right way and wrong way to seek asylum are, in my opinion, not only callous and cruel but also false statements of the law.</p>
<p>The <a href="https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/23/press-briefing-by-press-secretary-jen-psaki-september-23-2021/">White House has asserted</a> that Haitians are not coming into the country through “legal methods,” which would indeed be impossible since all legal methods have been foreclosed to them.</p>
<p>As part of the Trump administration’s dismantling of the asylum system, the White House in March 2020 <a href="https://www.cdc.gov/coronavirus/2019-ncov/order-suspending-introduction-certain-persons.html">ordered the Centers for Disease Control and Prevention</a>, over the objections of its own scientists, to use a 1944 public health law known as “<a href="https://www.npr.org/2021/08/02/1023187217/title-42-foes-go-back-to-court-to-try-to-end-covid-measure-blocking-asylum-seeke">Title 42</a>” to bar asylum seekers from entering the United States. This law had never been used before to dictate the movement of people across U.S. borders, which is instead the province of immigration laws. And despite the Biden’s campaign promises to restore the country’s asylum system, the administration continues to rely on Title 42 – <a href="https://thehill.com/opinion/immigration/573016-why-is-the-biden-administration-turning-its-back-on-asylum-seekers?rl=1">despite most Americans now being vaccinated</a> – to keep asylum seekers out. </p>
<h2>Can you tell me a little more about Title 42?</h2>
<p>Even before COVID-19 struck, Trump administration aide <a href="https://www.hrw.org/news/2021/04/08/qa-us-title-42-policy-expel-migrants-border">Stephen Miller had inquired</a> about using the government’s public health authority to shut U.S. borders to people seeking asylum. He was told there was no legal authority to do so. The emergence of the pandemic provided a pretext for the unprecedented use of this little-known law dating back over 75 years. It formed part of the <a href="https://www.ssa.gov/policy/docs/ssb/v7n8/v7n8p15.pdf">Public Health Service Act of 1944</a> to allow for the quarantine of anyone, including a U.S. citizen, arriving from a foreign country. It was never intended, nor until 2020 was used, to expel noncitizens from the United States. In fact, when Congress enacted the initial version of this law, references to immigration were deliberately omitted precisely to avoid the use of its provisions to discriminate against immigrants.</p>
<p>But the March 2020 order by the Trump administration <a href="https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-urge-us-officials-withdraw-order-enabling-mass-expulsion-asylum-seekers">targets one group, and one group only</a>: noncitizens who lack documentation and arrive by land.</p>
<p>All other people arriving in the U.S., including American citizens, lawful permanent residents and tourists arriving by plane or ship, are exempt. As currently employed by the government, this public health law has displaced existing immigration law, which allows people to request asylum. And in doing so it has also eliminated the due process protections that are part of our immigration laws.</p>
<p>On Sept. 16, a federal court found the use of Title 42 to expel people seeking asylum to be a clear violation of U.S. law and <a href="https://cgrs.uchastings.edu/news/federal-court-blocks-title-42-expulsions-families-seeking-safety">granted a preliminary injunction</a> against the practice. The court stayed its own order for 14 days to allow the government an opportunity to appeal its decision.</p>
<h2>Is there a history of discriminatory US migration policy against Haitians?</h2>
<p>Haitians have suffered from <a href="https://www.washingtonpost.com/national/haitian-migrants-racism/2021/09/22/e400793e-1be1-11ec-bcb8-0cb135811007_story.html">discriminatory treatment in immigration</a> for decades, and it would, I believe, be naïve to attribute this adverse treatment to anything other than systemic racism, which pervades so many aspects of American society. Shortly after the U.S. enacted the <a href="https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf">1980 Refugee Act</a>, it <a href="https://www.everycrsreport.com/reports/RS21349.html">began to stop</a> Haitians on the high seas and to return them to Haiti so that they could not apply for asylum in this country. This violation of international law was upheld by the Supreme Court in 1993, and the practice continues to this day. Before the border was closed to them, Haitians who reached the U.S. and applied for asylum were denied at a <a href="https://apnews.com/article/immigration-race-and-ethnicity-mexico-haiti-asylum-seekers-a81ac1148118db38824d2d8f62139b87">higher rate than just about any other nationality</a> – notwithstanding the dire human rights conditions in their country.</p>
<p>After Haiti’s catastrophic earthquake in 2010, the government gave <a href="https://www.federalregister.gov/documents/2010/01/21/2010-1169/designation-of-haiti-for-temporary-protected-status">Temporary Protected Status to Haitians</a> already in the United States, thus shielding them from removal. In 2017 the Trump administration <a href="https://www.nytimes.com/2017/11/20/us/haitians-temporary-status.html">terminated the status for Haitians</a>, giving them until July 2019 to leave or to face deportation.</p>
<p><em>Editor’s note: This story was updated on Sept. 26 to add a denial from border agents.</em></p><img src="https://counter.theconversation.com/content/168556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Musalo receives funding from the National Science Foundation,</span></em></p>The Biden administration has used a public health provision to deport thousands of Haitian migrants entering the US via Mexico.Karen Musalo, Professor of International Law, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1622612021-06-08T00:48:39Z2021-06-08T00:48:39ZFederal Court awards $350,000 to unlawfully detained asylum seeker, opening door to further claims<figure><img src="https://images.theconversation.com/files/404960/original/file-20210608-28202-1nwq72z.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5414%2C3620&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In a <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0600">significant judgment</a>, Federal Court judge Geoffrey Flick on Monday ordered the Australian government to pay A$350,000 in damages to a Iraqi asylum seeker who was found to have been unlawfully held in immigration detention for over two years.</p>
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<p>It’s an important case because it represents a rare litigation win for an asylum seeker. While the asylum seeker doesn’t automatically get the right to stay in Australia, he has won damages — and that is unusual.</p>
<p>This case (and another known as “the AJL20 case”, which we’ll get to later) open the door to the possibility others in the same position might also be able to claim damages. </p>
<p>It leaves open the prospect of compensation claims for asylum seekers who have been in detention, where no effort has been made to remove them. </p>
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Read more:
<a href="https://theconversation.com/is-australias-india-travel-ban-legal-a-citizenship-law-expert-explains-160178">Is Australia's India travel ban legal? A citizenship law expert explains</a>
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<h2>The facts of the case</h2>
<p>The asylum seeker — a 26-year-old man referred to only by the pseudonym “MZZHL” — arrived in Australia by boat in 2012. He applied for a protection visa, and was rejected. He appealed, twice, and was unsuccessful. Despite this, it’s possible that MZZHL may be a genuine refugee. As Justice Flick noted in his judgment, information that emerged much later suggests that the decision to reject his protection claim may have relied on incorrect assumptions. </p>
<p>While his appeals were underway, and for some time after, MZZHL was allowed, by ministerial discretion, to live in the Australian community on a bridging visa. Eventually this bridging visa expired. </p>
<p>Under Australia’s Migration Act, a non-citizen who does not hold a valid visa is an
“<a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s14.html">unlawful non-citizen</a>”, and must be <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s189.html">detained</a> in immigration detention.</p>
<p>In circumstances like MZZHL’s, where options to apply for a visa have been exhausted, this detention must be for the <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s196.html">purpose of removal from Australia</a>, and the government must seek to remove the non-citizen from Australia “<a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s198.html">as soon as reasonably practicable</a>”.</p>
<p>MZZHL was taken into immigration detention in August 2018, and the Department of Home Affairs made initial efforts to arrange his removal from Australia. In October 2018, he made a request in writing to be removed to Iraq, which the department made attempts to fulfil. </p>
<p>Up to this point, Justice Flick found that MZZHL’s detention was lawful, because it was for the purposes of removal from Australia, and the government was making active efforts to remove him as soon as practicable.</p>
<h2>When did the detention become unlawful?</h2>
<p>In March 2019, MZZHL withdrew his request to be removed to Iraq. He feared if he returned his life would be in danger, because authorities had come searching for him and had burned his family home to the ground. </p>
<p>At this point, the government ceased any efforts to remove him from Australia. It did not explore the possibility of finding a country other than Iraq that might have been willing to accept him. </p>
<p>The government also did not explore the prospect of sending MZZHL to Iraq against his will. </p>
<p>This might seem like a good thing, given that a forced return to Iraq may have exposed MZZHL to harm, contravening Australia’s <a href="https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf">non-refoulement obligations</a> under international law. </p>
<p>However, <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s197c.html">section 197C</a> of the Migration Act says that, for the purposes of removing a non-citizen from Australia, Australia’s non-refoulement obligations are “irrelevant”. Section 197C has been <a href="https://jade.io/j/?a=outline&id=812739">amended in the last fortnight</a>, but, at the time MZZHL’s case was heard, it required the government to actively seek to remove him to the first available place — even if this was somewhere where he might face grave harm.</p>
<p>The Commonwealth accepted that, by failing to take active steps to pursue MZZHL’s removal, it had breached its obligation to remove him from Australia as soon as practicable. Nonetheless, it argued MZZHL’s detention was lawful because it was for the legitimate purpose of removal. </p>
<p>Justice Flick disagreed. He held that </p>
<blockquote>
<p>the pursuit of any “purpose”, let alone a “purpose of removing [MZZHL] from Australia” had been abandoned. </p>
</blockquote>
<p>On this basis, he found MZZHL had been unlawfully detained. </p>
<h2>Alternatives to removal</h2>
<p>As Justice Flick noted, there was another option available to the government.</p>
<p>The immigration minister has a power, under <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s195a.html">section 195A</a> of the Migration Act, to grant a visa to a person in detention, where this is in the public interest. The minister has no <em>duty</em> to consider exercising this power — it is simply an option available to them.</p>
<p>On May 4, the first day that MZZHL’s case was listed for hearing, the minister exercised the power under section 195A to grant him a bridging visa. This is not a long term right to remain in Australia, merely an option to live in the community instead of detention until departure becomes possible. </p>
<p>Justice Flick also noted the Commonwealth could have considered whether MZZHL had additional protection claims that had not been determined, in light of the evidence of attacks on his family home, and other information suggesting that, contrary to earlier assessments, he may have been an Iraqi citizen.</p>
<p>For over two years prior to the hearing, none of these options were pursued, and the government also made no efforts to remove MZZHL from Australia. It simply did nothing.</p>
<h2>Damages</h2>
<p>The Commonwealth argued that even if MZZHL’s detention was unlawful, the only available remedy was a court order demanding that it fulfil its obligation to pursue MZZHL’s removal. </p>
<p>Justice Flick disagreed. He concluded MZZHL had been unlawfully deprived of his liberty, and should have been released from detention “soon after March 2019”. </p>
<p>He awarded MZZHL $350,000 in damages, calculated in a similar manner to that used in false imprisonment cases. </p>
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<h2>What next? The future is uncertain for MZZHL</h2>
<p>Last year, in another Federal Court case, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1305.html">AJL20 v Commonwealth</a>, Justice Bromberg made similar findings to Justice Flick. </p>
<p>The Commonwealth <a href="https://www.hcourt.gov.au/cases/case_c16-2020">appealed to the High Court</a>, which is yet to deliver a judgment. It remains to be seen whether the outcome of the AJL20 appeal will affect the MZZHL finding. </p>
<p>If the Commonwealth loses, both Federal Court decisions will stand. </p>
<p>But even if the Commonwealth succeeds in overturning the Federal Court decision in AJL20, the decision in MZZHL may stand, because Justice Flick used slightly different reasoning to Justice Bromberg.</p>
<p>Whatever the outcome in the AJL20 appeal, the future is uncertain for MZZHL. He is currently on a bridging visa, but still has an obligation to leave Australia. </p>
<p>The minister has the option to grant him <a href="https://immi.homeaffairs.gov.au/what-we-do/refugee-and-humanitarian-program/onshore-protection/protection-visa-cancelled">another opportunity to apply for a protection visa</a>. </p>
<p>If this isn’t granted, and his bridging visa expires, he will once again face detention and removal, albeit under a statutory regime that has seen some <a href="https://www.kaldorcentre.unsw.edu.au/news/joint-statement-refugee-law-organisations-response-migration-amendment-clarifying-international">recent changes</a>.</p>
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<strong>
Read more:
<a href="https://theconversation.com/with-billions-more-allocated-to-immigration-detention-its-another-bleak-year-for-refugees-160783">With billions more allocated to immigration detention, it's another bleak year for refugees</a>
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<img src="https://counter.theconversation.com/content/162261/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This article is part of a series on asylum seeker policy supported by a grant from the Broadley Trust.</span></em></p>This important case because represents a rare litigation win for an asylum seeker. He doesn’t automatically get the right to stay in Australia, but he’s won damages — and that’s unusual.Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1593562021-04-21T14:24:27Z2021-04-21T14:24:27ZWhy Kenya is on thin ice in its justification for sending Somali refugees back home<figure><img src="https://images.theconversation.com/files/396275/original/file-20210421-23-158w7co.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Somali refugee shops for fresh produce at a market in the Hagadera camp within the sprawling Dadaab complex.</span> <span class="attribution"><span class="source">Tony Karumba/AFP via Getty Images</span></span></figcaption></figure><p>In March 2021, the Kenya government gave the United Nations High Commissioner for Refugees a <a href="https://www.standardmedia.co.ke/kenya/article/2001407329/kenya-gives-unhcr-14-day-ultimatum-to-close-dadaab-kakuma-refugee-camps">14-day ultimatum to submit plans</a> for the closure of the country’s two main refugee camps. The camps in northern Kenya – Dadaab and Kakuma – hold more than 400,000 people. Kenya emphasised there would be <a href="https://twitter.com/InteriorKE/status/1374625496147886080">no room for further negotiations</a>.</p>
<p><a href="https://www.the-star.co.ke/news/2021-03-24-matiangi-issues-14-day-ultimatum-to-unhcr-on-closure-of-dadaab-kakuma-refugee-camps/">Planned terror threats from the two refugee camps</a> were cited as the main reason behind the closure. Citing similar threats, Kenya <a href="https://www.aljazeera.com/news/2021/3/24/kenya-orders-closure-of-dadaab-kakuma-refugee-camps#:%7E:text=The%20Dadaab%20and%20the%20Kakuma,whom%20are%20from%20South%20Sudan.&text=hosting%20400%2C000%20people-,Citing%20national%20security%20concerns%2C%20authorities%20in%20Nairobi%20first%20announced%20their,Somalia%20than%20Kakuma%2C%20in%202016.">attempted</a> to close Dadaab camp in 2017. The plan was <a href="https://www.bbc.com/news/world-africa-38917681">blocked by the country’s high court</a>, which called the move unconstitutional.</p>
<p>The Dadaab complex was <a href="https://www.unhcr.org/ke/dadaab-refugee-complex#:%7E:text=The%20Dadaab%20refugee%20complex%20has,cross%20the%20border%20into%20Kenya.">first set up</a> in 1991, when refugees fleeing the civil war in Somalia started to cross the border into Kenya. Today the complex houses 224,462 refugees. Most are from Somalia. But there are also migrants from South Sudan, Sudan, Somalia, the Democratic Republic of the Congo, Burundi, Ethiopia and Uganda.</p>
<p>But how does Kenya’s argument fit in with its legal, and moral obligations?</p>
<p>In a <a href="https://www.tandfonline.com/doi/abs/10.1080/13642987.2018.1482045">2018 paper</a> I set out to address why Kenya’s arguments that Somali refugees – and refugee camps – are falsely, and in blanket fashion, cast as abetting terrorism. Kenya has <a href="https://www.language-and-society.org/the-securitization-of-political-discourse-in-reinforcing-regimes-of-power-in-kenya/">repeatedly </a> framed Somali refugees as a threat to national security. It’s pretext has been the <a href="https://doi.org/10.1093/acrefore/9780190277734.013.785">periodic terror attacks</a> carried out by the Somali-based terrorist group Al-Shabaab. </p>
<p>My argument is that the Kenyan state has labelled refugees as a threat to national security so that it can prioritise the implementation of refoulement – the forced repatriation of refugees.</p>
<p>In my view Kenya’s disregard for the doctrine of non-refoulement has implications for its international standing as a key host country for refugees. The country’s Constitution and Refugees Act are compatible with international law. But the state has failed to comply with the law. </p>
<p>Under the guise of security, the state has abused its executive authority and <a href="https://www.tandfonline.com/doi/abs/10.1080/13642987.2018.1482045">disregarded its commitments to international humanitarian obligations</a>. By securitising refugees – in this case accusing them of instigating acts of terror – the Kenyan government is compromising their social, economic and political rights as set out in international law.</p>
<p>I conclude that the Somali refugees should not be compulsorily returned to Somalia – unless an exception applies in an individual case.</p>
<h2>Kenya’s case – according to the law</h2>
<p>The 1951 Convention on the Status of Refugees <a href="https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html">prohibits</a> states from returning a refugee or asylum seeker to countries or territories where the person’s life or freedom would be threatened. This could be on account of race, religion, nationality, membership of a particular social group, or political opinion. </p>
<p>Exceptions to non-refoulement on grounds of security are stipulated in Article 33 (2) of the convention. This provides for the withdrawal of refugees rights. These exceptions have the potential to overrule non-refoulement.</p>
<p>Article 33 (1) of the convention is reflected in Kenya’s <a href="http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/RefugeeAct_No13of2006.pdf">Refugee Act</a> passed in 2006. The Act conforms with international law and international and regional treaties or conventions. It also conforms to particular articles in Kenya’s Constitution. </p>
<p>But I argue that Kenya has <a href="https://www.tandfonline.com/doi/abs/10.1080/13642987.2018.1482045">derogated from its responsibilities</a> of protecting refugees by citing threats to national security. </p>
<p>Somali refugees forced back home face <a href="https://www.refworld.org/country,,,,SOM,,60760b4e4,0.html">considerable risk</a>. For example, Somalia cannot guarantee the sustainable safety and dignity of returning refugees. This is because the state is <a href="https://link.springer.com/referenceworkentry/10.1007%2F978-3-319-74336-3_46-1">virtually absent</a> in large parts of the country. In addition, there are <a href="https://www.refworld.org/country,,,,SOM,,60760b4e4,0.html">limited livelihood opportunities</a> and a lack of basic services and poor infrastructure.</p>
<p>If the government wishes to repatriate on the basis of internal security, it needs to consider this on a case-by-case basis. In other words it needs to assess whether an exception applies in an individual case. </p>
<p>Although international and domestic refugee laws provide exemptions for non-refoulement, the Kenyan government argues that refugees are returning on a voluntary basis. As a country that has signed, ratified and domesticated the aforementioned international and domestic refugee instruments, the Kenyan government is required to facilitate voluntary returns. </p>
<p>But, in my view, a decision made by a refugee to voluntarily return home must be <a href="https://www.tandfonline.com/doi/abs/10.1080/13642987.2018.1482045">qualified</a>. A number of factors challenge refugees’ rights to make genuinely voluntary choices based on free will. </p>
<p>These <a href="https://www.unhcr.org/ke/19945-kenya-unhcr-presents-sustainable-and-rights-based-solutions-for-refugees-residing-in-camps.html">rights-based concerns</a> are repeatedly raised by the UNHCR whenever Kenya threatens to close refugee camps. </p>
<h2>Next steps</h2>
<p>Kenya’s high court has once again <a href="https://www.aljazeera.com/news/2021/4/8/kenyan-court-rules-against-govt-plan-to-close-refugee-camps">blocked the closure</a> of two refugee camps, albeit temporarily. Meanwhile, the UN refugee agency has proposed a set of measures for refugees living in the Dadaab and Kakuma refugee camps. These <a href="https://www.unhcr.org/ke/19945-kenya-unhcr-presents-sustainable-and-rights-based-solutions-for-refugees-residing-in-camps.html">rights-based measures</a> include:</p>
<ul>
<li><p>safe and dignified enhanced voluntary repatriation under COVID-19 pandemic movement restrictions; </p></li>
<li><p>providing alternative-stay arrangements to East African Community refugees so that they can contribute to the local economy; </p></li>
<li><p>expediting issuance of Kenyan national identity cards to those registered in the refugee database; and </p></li>
<li><p>resettling those refugees, unable to return home and face protection risks, to third countries. </p></li>
</ul>
<p>Kenya’s argument that refugees are threats to national security to justify the closure of refugee camps and forced repatriation of refugees compromises its moral and legal obligations to protect refugees. This erodes its international image as a country that has hosted refugees safely for a long time. It also more has serious implications for refugees by threatening their safety from disease, hunger and repression when forcibly returned to their home countries.</p><img src="https://counter.theconversation.com/content/159356/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Oscar Gakuo Mwangi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>By securitising refugees, in this case accusing them of instigating terror, the Kenyan government is compromising their social, economic and political rights as set out in international law.Oscar Gakuo Mwangi, Associate Professor, Political Science, National University of LesothoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1372172020-05-27T21:42:33Z2020-05-27T21:42:33ZRefugees at increased risk of coronavirus due to barriers to healthcare<figure><img src="https://images.theconversation.com/files/330439/original/file-20200424-163136-egc5vn.jpg?ixlib=rb-1.1.0&rect=784%2C289%2C5268%2C3829&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A migrant covered with a blanket passes in front of dumped garbage outside the Moria refugee camp on the island of Lesbos, Greece, Jan. 21, 2020.</span> <span class="attribution"><span class="source">(AP Photo/Aggelos Barai)</span></span></figcaption></figure><p>Despite the coronavirus pandemic, wars and conflicts have not stopped. While some countries have successfully grappled with the virus, in refugee camps the situation remains fraught.</p>
<p>Researching the social epidemiology of zoonotic disease risks in displacement and international human rights law, we have seen firsthand the intersection between health and human rights. Susceptibility to zoonoses — diseases transmitted between animals and humans — is influenced by <a href="https://doi.org/10.1016/j.socscimed.2013.03.017">complex biological, environmental, socio-economical, political and technological processes</a>. For the sake of global health, it is therefore important to ensure that people made marginalized have access to robust services, including health care.</p>
<p>Conflict and disease transmission are often linked. For example, research has found that the collapse of health systems and disease control in Syria led to an increase in <a href="https://doi.org/10.1016/j.ijid.2013.06.001">leishmaniasis, rabies</a> and <a href="https://dx.doi.org/10.1371%2Fjournal.ppat.1007014">tuberculosis</a>, including in refugee populations. When polio re-emerged due to a decline in vaccination rates, <a href="https://doi.org/10.1080/21645515.2015.1096457">neighbouring countries rapidly responded</a>. </p>
<p>Two months ago, one of us returned from fieldwork in Jordan, studying the risks of zoonotic disease transmission among Syrian refugees, <a href="https://www.reuters.com/article/us-health-coronavirus-jordan/jordans-monarch-announces-state-of-emergency-to-combat-coronavirus-idUSKBN2141FA">just before the country closed its borders</a>. These concerns have become increasingly pressing as COVID-19 pushed humanitarian workers to mitigate the potentially devastating effects of the pandemic on refugees and migrants in incredibly challenging conditions.</p>
<h2>The risk of infection in refugee camps</h2>
<p>The <a href="https://doi.org/10.1371/journal.pntd.0000313">risk posed by infectious diseases among vulnerable populations depends on a range of factors</a> with political and socio-economic factors playing an important role. <a href="https://www.theguardian.com/world/2020/may/01/covid-19-deaths-twice-as-high-in-poorest-areas-in-england-and-wales">Poverty and inequality</a> both influence the occurrence and severity of the disease. In refugee settings, these risks are exacerbated by overcrowding and unhygienic living conditions, while <a href="https://doi.org/10.1016/S0140-6736(20)30526-2">interpersonal relations</a> within households and communities further impact risks of infection. </p>
<p>Besides facing overpopulation, refugees often tend to have lower immunity levels due to limited quantities and quality of food, water, medical provisions and pre-existing conditions <a href="https://dx-doi-org.ezp.lib.cam.ac.uk/10.1136%2Fbmjgh-2017-000647">such as respiratory and gastrointestinal infections</a>.</p>
<p>Unfortunately, the most effective responses to COVID-19 such as <a href="https://www.theguardian.com/world/2020/mar/18/scientists-say-mass-tests-in-italian-town-have-halted-covid-19">testing, social distancing and quarantine</a> are nearly impossible to implement in many displaced populations due to <a href="https://www.theguardian.com/global-development/2020/may/14/coronavirus-cases-among-refugees-on-lesbos-spark-fresh-calls-for-evacuation">overpopulation of camps</a> and shelters and inadequate access to resources. In refugee camps, where families often <a href="https://doi.org/10.1016/S2542-5196(20)30086-3">share washing and sanitation facilities</a>, disease control is difficult.</p>
<p>Lockdowns and reduced access of health-care workers to regions with widespread poverty, in combination with a scarcity of essential supplies, are likely to exacerbate poor health. <a href="https://www.unhcr.org/uk/news/stories/2020/5/5eb294fb4/pandemic-stressed-production-transportation-unprecedented-ways.html">The United Nations High Commissioner on Refugees (UNHCR) warned</a> of the challenges the organization faces in getting supplies to refugees from their network of regional stockpiled warehouses due to a lack of transportation. </p>
<h2>Worsening living conditions amid a pandemic</h2>
<p>In early April, the first cases of the novel coronavirus were confirmed in a Greek refugee camp on Lesbos, which has hosted hundreds of thousands of refugees since the start of the war in Syria. </p>
<p>In early 2020, Lesbos saw an <a href="https://www.theguardian.com/world/2020/feb/09/tensions-refugees-and-islanders-crisis-on-lesbos">increase of hundreds of refugee arrivals a day</a>. The refugees who remain stranded on the Greek island have strained relations with local residents, resulting in <a href="https://www.theguardian.com/world/2020/feb/25/clashes-over-greeces-migrant-detention-camp-plans-continue">violence targeted at sites planned for new or expanded facilities</a> and the departure of NGOs that provided essential food and medical services. These worsening living conditions in the camps and informal tented settlements greatly increase the <a href="https://www.theguardian.com/world/2020/feb/09/moria-refugee-camp-doctors-story-lesbos-greece">risk of this population to COVID-19 infection</a>.</p>
<p>As the number of refugees increases, their protection against disease can only be safeguarded through resettlement into better living conditions and robust asylum procedures that protect human rights. However, the two UN agencies mandated to resettle refugees and migrants, UNHCR and the International Organization for Migration, <a href="https://news.un.org/en/story/2020/03/1059602">stopped all resettlement travel indefinitely</a>. Such measures are in direct contravention of the UNHCR’s own <a href="https://www.refworld.org/publisher,UNHCR,,,5e7132834,0.html">international standards</a>. Furthermore, there is limited evidence of the effectiveness of <a href="https://www.who.int/bulletin/volumes/92/12/14-135590/en/">travel bans in pandemic disease control</a>. </p>
<p>Thousands of refugees will die if they remain in camps with no means of accessing vital health care.</p>
<h2>Political choices and people made vulnerable</h2>
<p>Migration and the global response are always political exercises. People on the move have long been seen as harbingers of disease that must be stopped at all costs. <a href="https://www.aljazeera.com/indepth/opinion/world-grips-epidemic-dangerous-coronavirus-200220183206485.html">Xenophobia and racism</a> is already rampant as the world looks for scapegoats for the current outbreak. </p>
<p>While local initiatives such as <a href="https://www.theguardian.com/global-development/2020/mar/18/the-greek-refugees-battling-to-prevent-covid-19-with-handmade-face-masks">homemade masks</a> and COVID-19 helplines are stopgaps, we need a coordinated global response that strengthens universal access to health care including for people crossing borders and claiming asylum.</p>
<p>Refugee camps are full of contradictions: they hold so much pain, yet also showcase the resiliency and complexity of the human spirit. By their very nature, they are a bridge between belonging and uncertainty, locking people in time and space. </p>
<p>The conditions in camps make people vulnerable and exacerbate global health emergencies like the ongoing coronavirus pandemic. Our response to the intersection between migration, the coronavirus and systemic barriers to health will determine how and when we get a grip of this disease, a decision which will eventually affect all of us.</p><img src="https://counter.theconversation.com/content/137217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dorien Braam receives funding from the Gates Cambridge Trust. </span></em></p><p class="fine-print"><em><span>Petra Molnar receives funding from The Mozilla Foundation. </span></em></p>Based on how other diseases have moved through refugee camps, there is an urgent need to protect refugees in camps and informal settlements from COVID-19.Dorien Braam, PhD Gates Scholar with the Disease Dynamics Unit at the Department of Veterinary Medicine, University of CambridgePetra Molnar, Adjunct professor and acting director, International Human Rights Program, Faculty of Law, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1182692019-06-11T11:23:32Z2019-06-11T11:23:32ZMigrants will pay the price of Mexico’s tariff deal with Trump<p>Mexican President Andrés Manuel López Obrador is <a href="https://www.theguardian.com/world/2019/jun/09/mexican-president-leads-celebration-rally-after-us-tariffs-dropped">celebrating</a> an agreement avoiding <a href="https://twitter.com/realdonaldtrump/status/1134240653926232064">U.S. tariffs</a> as a major political and diplomatic triumph for his government. </p>
<p>“We didn’t win everything, but we were able to claim a victory with there being no tariffs,” <a href="https://www.jornada.com.mx/ultimas/2019/06/09/no-se-gano-todo-pero-salimos-con-la-dignidad-intacta-ebrard-5998.html">said chief negotiator Marcelo Ebrard</a>, Mexico’s foreign affairs secretary, on June 9.</p>
<p>The two neighbors have been at odds since United States President Donald Trump on May 30 <a href="https://twitter.com/realdonaldtrump/status/1134240653926232064">threatened</a> to hit all Mexican imports with steadily rising tariffs unless Mexico successfully halted the northward flow of Central American migrants fleeing <a href="https://theconversation.com/migrants-stories-why-they-flee-114725">extreme poverty and violence</a> through Mexico toward the United States.</p>
<p>Approximately <a href="https://fas.org/sgp/crs/row/RL32934.pdf">80% of Mexican exports</a> are destined for the United States. Tariffs would have devastated Mexico’s economy. </p>
<p>To keep its goods untaxed, Mexico had to convince President Trump that it was serious about <a href="https://twitter.com/realDonaldTrump/status/1137155056044826626">stopping migration</a>. After a week of frantic negotiations, Mexico <a href="https://www.state.gov/u-s-mexico-joint-declaration/#.XPsUHg60a">said it would</a> <a href="https://www.gob.mx/sre/prensa/negotiations-with-the-united-states-continue">deploy</a> up to 6,000 National Guard troops to its southern border with Guatemala to stop migrants from entering Mexico.</p>
<p>As part of the agreement, a <a href="https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf">Trump administration program</a> known as “<a href="https://www.amnesty.org/en/latest/news/2019/04/usa-government-must-stop-illegal-pushbacks-of-asylum-seekers-to-mexico/">Remain in Mexico</a>,” which forces <a href="https://www.law.cornell.edu/uscode/text/8/1225">some migrants</a> to wait in Mexico while their asylum claims are processed in the U.S., will also be expanded.</p>
<p>At a June 8 rally “for the dignity of Mexico and friendship with the U.S.” held in the border city of Tijuana, López Obrador <a href="https://lopezobrador.org.mx/2019/06/08/discurso-de-andres-manuel-lopez-obrador-presidente-de-mexico-en-el-acto-en-defensa-de-la-dignidad-nacional-y-en-favor-de-la-amistad-con-eeuu-en-tijuana-baja-california/">pledged</a> that Mexico will reinforce its southern border while still “applying the law and respecting the human rights” of migrants.</p>
<p>Ebrard added at the rally that Mexico had emerged from a near trade war with its “dignity intact.” </p>
<h2>Doing the dirty work</h2>
<p>As a law professor who <a href="https://lha.uow.edu.au/law/contacts/UOW155522.html">teaches human rights</a>, I believe that dignity will come at great cost to both Mexico and to the migrants fleeing <a href="https://theconversation.com/migrants-stories-why-they-flee-114725">extreme poverty and violence</a> in Central America.</p>
<p>Many Mexican lawmakers, including allies of the president, have expressed <a href="https://vanguardia.com.mx/articulo/munoz-ledo-expresa-inconformidad-por-acuerdo-entre-mexico-y-estados-unidos">outrage</a> that their immigration policy is now bound by an “immoral and unacceptable” deal that effectively turns Mexico itself into <a href="https://theconversation.com/the-wall-and-the-beast-trumps-triumph-from-the-mexican-side-of-the-border-68559">Trump’s border wall</a>.</p>
<p>The agreement violates the campaign promises of López Obrador, who took office in December <a href="https://theconversation.com/mexicos-next-president-likely-to-defy-trump-on-immigration-98912">promising to protect migrants’ rights</a> and pledging not to do the U.S.’s “<a href="https://theconversation.com/mexico-seeks-to-become-country-of-refuge-as-us-cracks-down-on-migrants-97668">dirty work</a>” on border enforcement. </p>
<p>It also violates the Mexican Constitution and international law. </p>
<p>According to <a href="https://cms.emergency.unhcr.org/documents/11982/55726/Convention+relating+to+the+Status+of+Refugees+%28signed+28+July+1951%2C+entered+into+force+22+April+1954%29+189+UNTS+150+and+Protocol+relating+to+the+Status+of+Refugees+%28signed+31+January+1967%2C+entered+into+force+4+October+167%29+606+UNTS+267/0bf3248a-cfa8-4a60-864d-65cdfece1d47">international refugee law</a> asylum-seekers with demonstrable fear of persecution in their home countries are entitled to seek protection in the place of their choosing. <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/1_060619.pdf">Mexican law goes further</a>. As of 2011, legitimate asylum-seekers are entitled not just to seek but to be granted asylum in Mexico.</p>
<p>Trump’s economic threats against Mexico may not even have been legal. Both the current <a href="https://www.nafta-sec-alena.org/Home/Texts-of-the-Agreement/North-American-Free-Trade-Agreement">North American Free Trade Agreement</a> and the newly signed – but not yet ratified – <a href="https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/agreement-between">United States-Mexico-Canada Agreement</a> require most trade between North American countries to be tariff-free.</p>
<p>Even before the recent negotiations, López Obrador was already quietly <a href="https://www.theguardian.com/world/2019/jun/06/mexico-migrants-border-guatemala-tariffs">complying</a> with U.S. demands to do more to prevent migrants from reaching the U.S.</p>
<p>Between January and May of this year, Mexico <a href="https://www.animalpolitico.com/2019/06/migrantes-detenciones-amlo-trump/">detained</a> 74,031 migrants – a 36% increase compared to the same period last year under former <a href="https://theconversation.com/how-the-us-is-outsourcing-border-enforcement-to-mexico-69272">Mexican president Enrique Peña Nieto</a>. The number of migrants deported from Mexico tripled from <a href="http://www.politicamigratoria.gob.mx/work/models/SEGOB/CEM/PDF/Estadisticas/Boletines_Estadisticos/2018/Boletin_2018.pdf">5,717</a> in December 2018 to <a href="http://www.politicamigratoria.gob.mx/es_mx/SEGOB/Extranjeros_presentados_y_devueltos">15,654</a> in April 2019, government statistics show.</p>
<p>Sending troops out to target migrants, as Mexico has now promised to do, will almost certainly result in the <a href="https://www.businessinsider.com/mexico-marines-killing-more-suspects-raising-concerns-about-oversight-2019-3">excessive use of force</a> against these migrants. </p>
<p>The Mexican National Guard is an untested <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/LGN_270519.pdf">new military police force</a> with immigration enforcement powers. Its creation <a href="https://www.animalpolitico.com/2019/04/militares-guardia-pruebas-confianza/%C3%A7">in early 2019</a> was highly controversial in Mexico given the Mexican military’s <a href="https://theconversation.com/mexicos-military-is-a-lethal-killing-force-should-it-really-be-deployed-as-police-75521">extraordinarily violent law enforcement record</a>. </p>
<p>Between 2007 and 2017, when troops were helping police fight Mexican drug cartels, the National Human Rights Commission received <a href="https://www.eleconomista.com.mx/politica/Sedena-con-10917-quejas-por-violaciones-a-DH-20171109-0168.html">over 13,700 complaints of human rights violations</a> committed by soldiers against civilians. These included accusations of arbitrary arrests, torture and extrajudicial killings.</p>
<h2>Mexico is not a safe country</h2>
<p>Beyond avoiding tariffs, Mexico’s main victory in its negotiations with the United States appears to be having resisted <a href="https://www.politico.com/story/2018/05/16/trump-mexico-asylum-immigration-547919">pressure</a> to sign a <a href="https://journals.sagepub.com/doi/abs/10.1177/016934411503300104">a “safe third country” agreement</a>. </p>
<p>Under such an agreement, refugees are required to apply for asylum in the country where they first land and not the country where they ultimately want to settle. This means that one country can reject a person’s asylum application if they have already been granted asylum by another country.</p>
<p>Canada and the U.S. signed such an <a href="https://www.treaty-accord.gc.ca/details.aspx?id=104943">agreement</a> in 2002, and Trump has been pushing Mexico to do the same since <a href="https://politico.mx/minuta-politica/minuta-politica-gobierno-federal/videgaray-m%C3%A9xico-no-ser%C3%A1-tercer-pa%C3%ADs-seguro-como-plante%C3%B3-eua/">spring 2018</a>. Under this proposal, thousands of migrants in Mexico who have already applied for asylum in the United States and are now waiting for an answer would see their <a href="https://www.elfinanciero.com.mx/nacional/mexico-rechaza-propuesta-de-eu-para-ser-tercer-pais-seguro-para-migrantes-videgaray">applications invalidated</a>.</p>
<p>Foreign Secretary Ebrard consistently rejected that proposal. He <a href="https://www.jornada.com.mx/ultimas/2019/06/03/solucion-comun-a-choque-con-eu-plantea-ebrard-1364.html">insisted that a safe third country arrangement</a> would violate the Mexican Constitution and Mexico’s <a href="https://refugeesmigrants.un.org/migration-compact">international human rights agreements</a>. </p>
<p>But it is not actually clear how the newly expanded “<a href="https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration">Remain in Mexico</a>” program – the details of which have <a href="https://www.capitalmexico.com.mx/nacional/compromisos-mexico-suspension-de-aranceles-estados-unidos-marcelo-ebrard-2019/">not yet been released</a> – will differ in practice from a safe third country agreement. </p>
<p>Migrants may end up staying in Mexico for years while they await their asylum hearing in the United States. During that period, Mexico will be responsible for housing, feeding and protecting refugees. </p>
<p>Jorge Castañeda, Mexico’s secretary of foreign affairs from 2000 to 2003, has <a href="https://www.elfinanciero.com.mx/opinion/jorge-g-castaneda/unidad-nacional-con-amlo">derided Mexico’s commitment</a> as a “light” safe third country agreement.</p>
<p>The mere idea that Mexico is safe is “a particularly cynical bout of wishful thinking,” as Mexican journalist León Krauze <a href="https://www.washingtonpost.com/opinions/2019/05/02/us-push-designate-mexico-safe-third-country-refugees-is-farce/?noredirect=on&utm_term=.d93b845a9393">put it in a recent Washington Post op-ed</a>. </p>
<p>Mexico is one of the <a href="https://theconversation.com/is-mexico-actually-the-worlds-second-most-murderous-nation-77897">world’s most dangerous places</a>. An estimated <a href="https://www.nytimes.com/es/2019/05/12/homicidios-lopez-obrador/">33,000 people were murdered</a> there last year – <a href="https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/murder">twice the average annual homicides in the United States</a> in a country with less than half the population. </p>
<p>Dozens of Central Americans have <a href="https://theconversation.com/dozens-of-migrants-disappear-in-mexico-as-central-american-caravan-pushes-northward-106287">disappeared</a> from migrant caravans journeying northward in Mexico. Over 90% of migrants say they do not feel safe in Mexico, according to a <a href="http://americanimmigrationcouncil.org/sites/default/files/general_litigation/letter_urges_sec_nielsen_end_migrant_protection_protocols_policy.pdf">survey</a> of 500 Central American asylum-seekers conducted in February 2018.</p>
<h2>Mexico must do more with less</h2>
<p>The “Remain in Mexico” policy is likely to result in a significant increase in claims filed for asylum in Mexico, where the immigration system is already under enormous strain. </p>
<p>Around 29,000 people applied for asylum in Mexico in 2018, according to <a href="https://news.un.org/es/story/2019/04/1454561">United Nations data</a>. This year, between January and March, Mexico received 12,716 asylum applications – 43% of last year’s total in just three months. </p>
<p>The Mexican Commission for Refugee Assistance, which processes asylum claims, currently has a <a href="https://www.upi.com/Mexico-facing-two-year-backlog-as-asylum-requests-soar/2031535567041/">two-year backlog</a>. </p>
<p>It will now have to do more with less. </p>
<p>Under López Obrador’s <a href="https://theconversation.com/lopez-obrador-clashes-with-courts-after-vowing-poverty-for-mexican-government-109357">austerity policies</a>, the commission’s 2019 budget was <a href="http://fundar.org.mx/wp-content/uploads/2018/12/Ana%CC%81lisis-del-Paquete-Econo%CC%81mico-2019-3.pdf">cut 20%</a>, to about US$1 million – its lowest budget since 2011.</p>
<p>More migrants, less money, extreme violence and a recalcitrant, unpredictable northern neighbor – these are the ingredients of a <a href="https://elpais.com/internacional/2019/06/05/america/1559754137_929788.html">refugee crisis</a>, not a diplomatic victory. </p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=thanksforreading">Thanks for reading! We can send you The Conversation’s stories every day in an informative email. Sign up today.</a></em> ]</p><img src="https://counter.theconversation.com/content/118269/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luis Gómez Romero does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mexico says it emerged from tariff negotiations in Washington with its ‘dignity intact.’ But that dignity comes at great cost to the migrants fleeing extreme violence in Central America.Luis Gómez Romero, Senior Lecturer in Human Rights, Constitutional Law and Legal Theory, University of WollongongLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1151432019-05-03T05:20:00Z2019-05-03T05:20:00ZIssues that swung elections: Tampa and the national security election of 2001<figure><img src="https://images.theconversation.com/files/271658/original/file-20190430-194620-1fbunak.jpg?ixlib=rb-1.1.0&rect=14%2C16%2C1572%2C1432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Front pages from Australian newspapers covering terrorist attacks on the United States. </span> <span class="attribution"><a class="source" href="https://photos.aap.com.au/search/2001%20australia%20terrorist?q=%7B%22pageSize%22:100,%22pageNumber%22:1%7D">AAP Image</a></span></figcaption></figure><p><em>With taxes and health care emerging as key issues in the upcoming federal election, we’re running a series this week looking at the main issues that swung elections in the past, from agricultural workers’ wages to the Vietnam War. Read other stories in the series <a href="https://theconversation.com/au/topics/issues-that-swung-elections-69985">here</a>.</em></p>
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<p>The 2001 Australian federal election was a remarkable contest. Widely expected to see the Howard coalition government lose office after two lacklustre terms, the Tampa refugee crisis and the September 11 terrorist attacks in the United States allowed the government to turn its political fortunes around. </p>
<p>Winning a presumed unwinnable election on the back of a strong national security agenda gave Howard’s team renewed impetus and assured its place in history. It fundamentally reshaped Australia’s political culture.</p>
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Read more:
<a href="https://theconversation.com/leaders-try-to-dodge-them-voters-arent-watching-so-are-debates-still-relevant-115456">Leaders try to dodge them. Voters aren't watching. So, are debates still relevant?</a>
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<p>The Howard government had rocky start to 2001. It had won the 1998 GST election, but failed to gain a majority of the popular vote. Resentment over the GST remained strong. Ultraconservative voters were turning to Pauline Hanson’s One Nation Party, and Newspoll <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02rp11#app3">surveys</a> showed the Coalition’s approval ratings trailing Labor’s (39 to 45).</p>
<p>Conservative governments fell in Western Australia and the Northern Territory, and voter support for the coalition parties collapsed in the Queensland state election. The loss of the once safe seat of Ryan, and the leaking of a report by the Liberal Party president stating that the Coalition was <a href="https://www.heraldsun.com.au/tablet/former-liberal-chief-shane-stone-speaks-out-over-mean-memo-given-to-john-howard/news-story/353b85ba891095d60d3a9734255f8d75">mean, tricky and out of touch</a>, added fuel to the fire. Most political analysts agreed that the government was doomed. </p>
<h2>The Tampa crisis</h2>
<p>Howard tried to stem the flow, and victory in a byelection in the Victorian seat of Aston in July suggested some progress. But, the real circuit-breaker came in August, with <a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">the Tampa crisis</a>. Those dramatic events saw the arrival of a Norwegian tanker in Australian waters – and the refusal of the Howard government to accept the passengers seeking asylum – give birth to the infamous “Pacific Solution”. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Asylum seekers wait on board the MS Tampa after being denied entry to Australian waters.</span>
<span class="attribution"><a class="source" href="https://photos.aap.com.au/search/tampa%20boat?q=%7B%22pageSize%22:100,%22pageNumber%22:1%7D">Wallenius Wilhelmsen/AAP</a></span>
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</figure>
<p>What followed was a highly politicised and militarised <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/maritimeincident/report/c01">response</a> to the “problem” of unauthorised maritime arrivals. This included the excising of islands from Australia’s migration zone in order to prevent asylum-seekers making visa applications, the legalisation of offshore processing, the removal of boats from Australian territorial waters by the navy, and the co-opting of Pacific nations like Nauru and Papua New Guinea into offshore detention management programs.</p>
<p>Some commentators have interpreted <a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">Howard’s Tampa battle</a> as pure political opportunism. But, this ignores the evidence that his government was already primed for a fight on border control. After <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/BoatTurnbacks">low levels of boat arrivals</a> for most of the 1990s, they rose to 3,721 in 1999, declined slightly in 2000 then rose significantly again in 2001 to 5,516. </p>
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<strong>
Read more:
<a href="https://theconversation.com/fixing-the-gap-between-labors-greenhouse-gas-goals-and-their-policies-115550">Fixing the gap between Labor's greenhouse gas goals and their policies</a>
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<p>Concern for the irregular boat arrivals began to build. This was made visible by increasingly strident public discourse and tough border control measures, like the Border Protection Legislation Amendment Act 1999 and Migration Legislation Amendment Act 1999. The treatment of asylum-seekers caught in indefinite mainland detention was a source of constant media attention and political embarrassment for the government. </p>
<p>Tampa was Howard’s line in the sand. It profoundly challenged his commitment as leader to the protection of national security and sovereignty. It confirmed his affinity with the mood and aspirations of the Australian people – a bond powerfully articulated in his <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22library/partypol/1178395%22">declaration</a> that: </p>
<blockquote>
<p>We will decide who comes to this country and the circumstances in which they come. </p>
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<p>As a seasoned politician, Howard also recognised Tampa’s electoral potential. From the beginning, his government was willing to politicise the issue. Labor’s evident ambiguity towards the Border Protection bills – agreeing, then refusing to support the Coalition’s legislation, and finally buckling under political pressure – was seen as “wishy-washy”. <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber/hansardr/2001-09-19/0034;query=Id:%22chamber/hansardr/2001-09-19/0000%22">Claims were made</a>
in parliament that Labor was prepared to put the interests of people smugglers and “illegal immigrants” ahead of Australians.</p>
<h2>September 11</h2>
<p>Within weeks of Tampa, catastrophic terrorist attacks took place in the United States. Howard, in Washington DC at the time, was deeply affected and invoked the 50-year-old ANZUS treaty in support of its ally. </p>
<p>By October, when the <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02rp11#app3">election</a> was called, the public mood had changed. Polls showed the Coalition’s approval ratings now at 50%, compared to Labor’s 35%. Howard’s personal rating was at a five-year high of 61%.</p>
<p>Incumbents enjoy advantages in campaigns. Nevertheless, <a href="https://trove.nla.gov.au/work/9862161?selectedversion=NBD23251549">the Howard government’s political mastery</a> was evident in its ability to reframe the election as a referendum on national security. It created a link between the twin “threats” of terrorism and asylum-seekers in the public’s mind, and asserted its superior national security credentials. </p>
<p>The ALP campaigned well on some issues, but failed to provide a convincing counter-narrative to Howard’s agenda. Howard repeatedly pointed to Opposition Leader Kim Beazley’s ambivalence over the Pacific Solution as proof that he <a href="https://www.theage.com.au/national/beazleys-inner-demons-have-a-lot-to-answer-for-20030701-gdvyv1.html">lacked the “ticker”</a> to be prime minister. </p>
<p>Evidence that the government manipulated the facts surrounding the scandalous “<a href="https://www.smh.com.au/national/credibility-overboard-20011108-gdf9oq.html">children overboard</a>” affair did not curb the popular view that dangerous times demanded strong leadership. In the end, <a href="https://www.abc.net.au/elections/federal/2004/guide/summary.htm">the government was re-elected</a> on November 10 with a swing of almost 2%, though barely any seats changed hands.</p>
<h2>National security still on the agenda</h2>
<p>The 2001 election changed Australia. It sealed Howard’s reputation as a strong leader, and gave him six more years in office. Success legitimated his hawkish outlook, and set the policy agenda for almost two decades. Australian troops, already committed to the conflict in Afghanistan as part of the US-led War on Terror, became ensnared in the illegal Iraq war.</p>
<p>Stringent anti-terrorism laws enhanced executive power, undermined civil liberties and alienated Muslim-Australians. Refugees, terrorism and national security remained major issues for both parties, but Labor struggled to establish its own agenda. Legislation to prevent irregular boat arrivals <a href="https://www.smh.com.au/national/the-boat-that-changed-it-all-20110819-1j2o2.html">hardened into</a> one of the harshest asylum-seeker regimes in the world, polarising public opinion.</p>
<p>Have the dynamics of that political contest dissipated? </p>
<p>In the current campaign, healthcare, climate change and economics have dominated, but the lure of “national security” for electoral advantage is <a href="https://www.theaustralian.com.au/nation/politics/morrison-sets-test-for-shorten-over-security/news-story/9e50b332be28ac466871631c57d8b932">still difficult to resist</a>. </p>
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Read more:
<a href="https://theconversation.com/state-of-the-states-more-preference-deals-as-pre-polling-begins-116364">State of the states: more preference deals as pre-polling begins</a>
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<p>Many of the policy and political priorities established in 2001 remain intact. Both major parties are committed to offshore processing, mandatory detention and push-backs as deterrent mechanisms for asylum seekers. The fact that <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">915 refugees and asylum-seekers</a> are still languishing on Nauru and Manus Island, confirm that politics, not pragmatism or human rights, still shapes Australian asylum-seeker policy. </p>
<p>The fight against terrorism continues. Extreme right-wing political movements are growing, emboldened by the the politics of hate unleashed in 2001. It is almost 20 years since Tampa and 9/11, but those events continue to cast their shadow over the Australian political landscape.</p><img src="https://counter.theconversation.com/content/115143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gwenda Tavan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 2001 federal election was a watershed moment for Australian national security that has set a policy agenda for almost two decades.Gwenda Tavan, Associate Professor, Politics and International Relations, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1083632018-12-11T15:58:19Z2018-12-11T15:58:19ZSyrian refugees remain trapped and marginalised by Lebanon’s power-sharing politics<p>World leaders gathered in Marrakesh on December 10 to <a href="https://www.theguardian.com/global-development/2018/dec/10/un-states-agree-historic-global-deal-to-manage-refugee-crisis">sign a historic agreement</a> safeguarding the rights of migrants. Despite the <a href="https://theconversation.com/global-compact-for-migration-what-is-it-and-why-are-countries-opposing-it-106654">withdrawal of some countries</a>, the Global Compact on Migration was approved by 164 countries. It follows the Global Compact on Refugees, <a href="https://www.nrc.no/news/2018/november/the-global-compact-on-refugees-approved-with-overwhelming-support-by-un-member-states-bar-one-the-united-states/">approved at the UN</a> in mid-November by all countries, bar one – the United States. </p>
<p>Despite the <a href="https://news.un.org/en/story/2018/12/1028031">current optimism</a> around the potential good these new global compacts on refugees and migrants will have, the current political situation in Lebanon – home to 1.1m Syrian refugees – shows why there is still a long way to go. Infrastructure to accommodate the refugees in host countries such as Lebanon, Turkey and Jordan is still dire and requires <a href="https://www.unhcr.org/news/latest/2018/12/5c0f976b4/syrian-refugee-aid-plan-launched-births-exile-hit-1-million.html">emergency funds</a> to ensure basic needs are met. </p>
<p>In Lebanon, Syrian refugees are viewed not only as an economic burden, but a political threat so severe that their presence threatens the country’s delicate power-sharing balance. Even in the aftermath of <a href="https://fas.org/sgp/crs/mideast/IN10900.pdf">elections in May 2018</a> that brought a modicum of political stability in Lebanon – although still <a href="https://www.reuters.com/article/us-lebanon-government-aoun/lebanons-aoun-intervenes-to-help-form-government-avoid-catastrophe-idUSKBN1OA144">no agreement on cabinet positions</a> – Syrian refugees are still scapegoated by Lebanese politicians. Increasingly xenophobic rhetoric has <a href="https://www.alaraby.co.uk/english/news/2018/9/5/outrage-after-lebanon-doctor-blames-cancer-on-syria-refugees">worsened</a>. </p>
<p>Meanwhile, Lebanon has stepped up efforts to <a href="https://www.reuters.com/article/us-mideast-crisis-syria-lebanon-refugees/fifty-thousand-syrians-returned-to-syria-from-lebanon-this-year-official-idUSKCN1M51OM">return Syrian refugees</a>, committing significant resources to ensure the return of as many people as possible. But this is highly controversial. Many Syrians fear reprisals or arrest by the Assad regime, possible conscription into the army and a basic lack of infrastructure when they arrive.</p>
<p>Even with the prospects of new international agreements on refugees, no discernible positive impact can be expected for Lebanon’s Syrian refugees. Lebanon <a href="https://www.unhcr.org/528a0a2da.pdf">has not signed</a> the <a href="https://www.unhcr.org/1951-refugee-convention.html">1951 Refugee Convention</a>, so that it isn’t legally required to protect the <a href="https://www.unrwa.org/where-we-work/lebanon">estimated 450,000 Palestinian refugees</a> who also live in the country. The convention provides the legal parameters to ensure refugees are given the right to work, education, housing and non-discrimination.</p>
<h2>Memory of the past</h2>
<p>Part of the reason why Lebanon has ignored this international mandate for refugee rights is a reflection of the divided nature of Lebanese politics, which values stability between the Lebanese elite above all else. But the cost of that stability is currently being paid disproportionally by Syrian and Palestinians as they face marginalisation and exclusion.</p>
<p>Since the outbreak of the Syrian war in in 2011, Syrians who sought refuge in Lebanon have faced systemic marginalisation through policies that limited their ability to gain residency and labour rights. For Lebanon’s political elite, the presence of Syrian refugees represents a dangerous <a href="http://pure.diis.dk/ws/files/739488/Diis_Report_2016_12_Web.pdf">reminder</a> of the Palestinian refugees who played an important role in the Lebanese civil war of 1975-1990, and are now commonly, and wrongly, blamed for being one of the causes of the conflict.</p>
<p>Lebanese political power-sharing is based on a prescriptive sectarian parliamentary balance between Christians and Muslims. The focus on a demographic balance between Christians and Muslims within Lebanon’s institutions has a direct influence on political decision making: from ensuring representation in the <a href="https://www.thenational.ae/world/mena/lebanon-s-leaders-and-the-marathon-task-of-cabinet-formation-1.736823">cabinet</a> to enshrining the rejection of the right for Palestinian refugees to settle in the constitution.</p>
<p>Because of this, the Christian political elite view Syrians and Palestinians not as vulnerable groups in need of basic assistance, but as a potential seismic demographic shift. The common theory explained to me on a recent research trip to Lebanon was that if either group were to be settled in Lebanon permanently, the balance of sects would shift to favour to Sunnis and result in their dominance over the political arena at the expense of Shia and Christians. </p>
<h2>What’s old is new again</h2>
<p>It was clear that for many of the Christian political elite I spoke to, the Syrian refugees were viewed as an existential threat that could undermine the delicate sectarian balance in the country and destroy the power-sharing agreement that guarantees representation for all Lebanese groups. </p>
<p>In the face of all this, Lebanon’s response to the presence of refugees has been uncharacteristically cohesive. It introduced a national strategy in 2014 entitled the “policy on Syrian displacement”, aimed primarily at ensuring that Syrians were limited in their ability to settle <a href="https://www.thenation.com/article/will-lebanon-force-a-million-syrian-refugees-to-return-to-a-war-zone/,">permanently in Lebanon.</a></p>
<p>Now, arguments that have been used to marginalise Palestinians are now repeated in reference to Syrians. In May 2018, former foreign minister Gebran Bassil <a href="https://www.hrw.org/news/2018/10/03/lebanon-discriminatory-nationality-law">proposed</a> that Lebanese women would finally be allowed to pass on nationality to their children, unless they were married to a Syrian or Palestinian. Previous arguments on why this right should be denied to Lebanese women were made in reference to children of <a href="https://www.thenational.ae/world/mena/law-that-deprives-lebanon-s-children-of-their-nationality-1.473073">Palestinians only</a>. </p>
<p>The focus on maintaining sectarian equilibrium will always be an obstacle for international legal instruments designed to give refugees their rights in Lebanon. For the Syrian and Palestinian refugees living in the country, the power-sharing system will continue to entrap them as they face systemic exclusion, with politicians trying to make their living conditions as difficult as possible to ward off potential settlement. If stability in Lebanon continues to be managed by sectarian head counting, any mechanisms to protect refugees will not be implementable and suffering will continue unabated.</p><img src="https://counter.theconversation.com/content/108363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Drew Mikhael works on the ESRC funded project: Exclusion Amid Inclusion: Power-Sharing and Non-Dominant Minorities. </span></em></p>The intricacies of Lebanese politics mean Syrian refugees continue to be scapegoated.Drew Mikhael, Research Fellow in the School of History, Anthropology, Philosophy and Politics, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/982272018-06-13T23:12:23Z2018-06-13T23:12:23ZU.S.-Canada agreement on refugees is now unconstitutional<figure><img src="https://images.theconversation.com/files/222888/original/file-20180612-112608-ppvstx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A group of asylum seekers arrive at the temporary housing facilities at the border crossing Wednesday May 9, 2018 in St. Bernard-de-Lacolle, Quebec. Thousands of asylum seekers came into Canada illegally across the Canada-U.S. border in the first quarter of the year, but only a fraction were removed from the country during that time. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Ryan Remiorz</span></span></figcaption></figure><p>Since President Donald Trump’s election there has been much discussion about the <a href="https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html">Canada-U.S. Safe Third Country Agreement</a>. Under this agreement, asylum seekers at land border crossings are turned back to the United States without having their refugee claims heard in Canada.</p>
<p>The 2002 agreement only applies at official land border crossings. <a href="http://www.irb-cisr.gc.ca/Eng/res/stat/Pages/Irregular-border-crosser-statistics.aspx">Thousands</a> of asylum seekers who are already in the United States circumvent the agreement by crossing the Canadian border at irregular sites, <a href="http://montrealgazette.com/news/local-news/roxham-redux-the-road-into-quebec">including Roxham Road in Québec</a>. Politicians continue to debate how to best respond.</p>
<p>The <a href="https://www.thestar.com/news/canada/2018/05/29/immigration-minister-offers-plan-to-modernize-safe-third-country-agreement.html">Liberal government</a> wants to renegotiate an expanded agreement — though <a href="http://www.cbc.ca/news/world/trump-trudeau-twitter-trade-1.4700485">recent events</a> suggest international negotiations with the U.S. are fraught with difficulties. It’s also safe to assume Trump <a href="https://theconversation.com/its-time-to-abolish-the-inhumane-canada-u-s-deal-on-asylum-seekers-96107">will not agree</a> to expand an international treaty preventing asylum seekers from leaving the U.S. for Canada.</p>
<p>The opposition <a href="http://www.cbc.ca/news/politics/conservative-motion-illegal-border-crossings-1.4633076">Conservatives</a> say Canada should unilaterally expand the agreement by declaring the entire U.S. border to be an official border crossing. This is a fantasy. Canada cannot send people to the United States without the U.S. agreeing any more than other countries can send people to Canada without permission.</p>
<p>The <a href="http://www.ndp.ca/news/ndp-suspend-safe-third-country-agreement-save-lives">NDP</a> proposes scrapping or suspending the agreement, arguing that the U.S. is no longer safe for refugees.</p>
<p>On this point, the New Democrats are supported by <a href="https://www.amnesty.ca/news/safe-third-country-agreement-must-be-suspended-say-canadian-council-refugees-and-amnesty">Amnesty International</a>, the <a href="https://ccla.org/ccla-calls-for-concrete-action-from-canadian-government-on-u-s-travel-ban/">Canadian Civil Liberties Association</a> and over <a href="https://www.thestar.com/news/immigration/2017/02/01/canadian-law-profs-join-fight-to-suspend-refugee-pact-with-us.html">200 law professors</a> across the country. But civil servants are worried this might increase the number of asylum claimants coming to Canada, straining the refugee determination system’s limited resources.</p>
<h2>Illegal U.S. asylum policies</h2>
<p>These political debates are now largely irrelevant. People can reasonably disagree about whether the agreement was ever good policy, but after a series of announcements by U.S. officials in recent weeks, the agreement cannot stand constitutional scrutiny in Canada.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/chaos-coming-to-canada-after-u-s-decision-on-refugees-98233">Chaos coming to Canada after U.S. decision on refugees</a>
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<p>As has been <a href="https://www.nytimes.com/2018/06/06/us/family-separations-migrants-court.html">widely reported</a>, the U.S. instituted a policy of detaining asylum seekers and separating children from their families. This policy aimed to discourage irregular migration.</p>
<p>The policy was <a href="https://www.nytimes.com/2018/06/05/world/americas/us-un-migrant-children-families.html">illegal</a> and violated <a href="http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html">international refugee law,</a> which prohibits penalties on asylum seekers for irregular arrival.</p>
<p>It also violated <a href="http://www.un.org/en/universal-declaration-human-rights/">international human rights law</a> — which protects the integrity of the family — and <a href="https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx">international law relating to children</a>, which requires the best interests of children be considered when applying government policy and that children only be detained as a last resort.</p>
<p>Beyond being illegal, it was also just plain wrong. Canada’s experience with the devastating <a href="http://nationalpost.com/news/world/rachel-notley-formally-apologizes-to-60s-scoop-survivors">intergenerational harms</a> caused by the shameful removal of Indigenous children from their families offers a window into the immorality of the policy.</p>
<p>After unprecedented domestic and global condemnation, Trump finally <a href="https://www.nytimes.com/2018/06/20/us/politics/trump-immigration-children-executive-order.html">signed an executive order</a> June 20 to alter the policy by allowing families to stay together while being detained at the border.</p>
<p>However, it is not yet clear whether this will be legally sustainable because previous U.S. court decisions limited the amount of time minors can be kept in a detention centre to 20 days. Even if the executive order is found to be legal, it will not end the practice of detaining asylum seekers. It will, however, extend that detention to include children.</p>
<p>If all that that wasn’t enough, the Trump administration <a href="https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html">announced</a> June 11 that refugees facing persecution due to domestic violence or gang violence will no longer receive asylum. Again, this leaves the U.S. in breach of <a href="http://www.unhcr.org/3d58ddef4.pdf">international refugee law</a>. It also conflicts with <a href="http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx">Canadian interpretations</a> of refugee law.</p>
<p>Putting these announcements together, here is where we stand: some people who meet the refugee definition under Canadian law, if sent back to the U.S., are likely to be detained, possibly separated from their children and certainly deported to face persecution.</p>
<p>In this context, there is now no longer any question the agreement — at least as it is applied to refugees facing domestic violence or gang related violence — is unconstitutional under Canadian law.</p>
<h2>Safe Third Country Agreement Unlawful</h2>
<p>Regardless of political persuasion, no one who takes Canadian constitutional law seriously can contend that Canada may lawfully send a person who meets the Canadian refugee definition to a country where they will be detained, possibly separated from their children and then deported back to the country where they face persecution.</p>
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<img alt="" src="https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/223048/original/file-20180613-32304-1r171j2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In this photo from April 17, 1982, the Queen and Canadian Prime Minister Pierre Trudeau sign Canada’s constitutional proclamation. Guarantees under Canada’s Charter of Rights and Freedoms are now threatened by the Canada-U.S. Safe Third Country Agreement.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/File photo</span></span>
</figcaption>
</figure>
<p>Indeed, it may not be possible for Department of Justice lawyers to even argue in court that the agreement is constitutional without breaching professional obligations as lawyers and civil servants. And any lawyers asked to do so should take a long hard look at the experience of others who have defended the undefendable elsewhere — such as lawyers who argued that torture was a lawful response to national security concerns or lawyers who defended apartheid in South Africa.</p>
<p>So there are now only two options. The government can take proactive measures and suspend or scrap the agreement — thereby restoring the orderly processing of refugees that existed prior to the agreement — or the government can wait for the courts to strike the agreement down as unconstitutional.</p>
<p>Prime Minister Pierre Trudeau gave Canada the <a href="http://laws-lois.justice.gc.ca/eng/Const/page-15.html">Charter of Rights and Freedoms</a>in 1982. Prime Minister Justin Trudeau must now decide whether his government will take steps to protect those rights or whether he will do nothing and make the courts do it for him.</p>
<p>Either way, the Canada-U.S. Safe Third Country Agreement is dead.</p><img src="https://counter.theconversation.com/content/98227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sean Rehaag has served as a consultant and/or expert witness for organizations working on refugee rights, including the Canadian Association of Refugee Lawyers and the United Nations High Commission for Refugees. He has received funding for his research from the Social Sciences and Humanities Research Council. He is a member of the Canadian Association of Refugee Lawyers, the Refugee Lawyers Association, the Canadian Law and Society Association, the Canadian Association of Law Teachers, and the Osgoode Hall Faculty Association. He is the Academic Director at Parkdale Community Legal Services.</span></em></p>The Safe Third Country Agreement between the United States and Canada was originally intended to deal with refugees seeking asylum. But recent U.S. developments mean the agreement’s days are numberedSean Rehaag, Associate Professor, Osgoode Hall Law School, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/901072018-02-01T17:57:38Z2018-02-01T17:57:38ZFriday essay: the Chauka bird and morality on our Manus Island home<figure><img src="https://images.theconversation.com/files/202715/original/file-20180121-110084-qft1jj.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How will our children view this period in Manus in the future?
</span> <span class="attribution"><span class="source">Michelle Rooney, 2017</span></span></figcaption></figure><p><em>This piece is republished with permission from <a href="https://griffithreview.com/editions/commonwealth-now/">Commonwealth Now</a>, the 59th edition of Griffith Review. You can read the full version <a href="https://griffithreview.com/articles/chauka-yu-we/">here</a>.</em></p>
<hr>
<blockquote>
<p>The bell rings, school is over. I hear the sea break on the beach. I smell the sea in the wind. I laugh with my schoolmates and jump. Salt water fills my mouth. Chauka calls. I laugh with joy. Like little fish. My brothers and sisters play in the sea.</p><p>
I catch a bus to Lombrum. The glassy sea at the Loniu Passage is melancholy; tenderly cradles the bus across the Loniu Bridge. Sea takes us across Lolak Bridge. Chauka calls. In the afternoon the bus returns to town. Wind blows in my face. I smell the sea. The sun goes down. </p><p>
The sun rises, time for school. I hear the news and announcements on the Radio Manus, ‘the voice of Chauka is very happy to bring you all the news and announcements. This is the Chauka’s Voice.’ Chauka calls. Our grandmothers and grandfathers stay. We walk to school. The sea breaks on the beach. Chauka calls. </p><p>
Wake, sleep, eat, and walk with the Chauka. Happiness, cross, and work.</p><p>
Custom, work for money, work for government, work for church. Chauka calls. </p><p>
-<strong>Excerpt from the poem Chauka, yu we?</strong></p>
</blockquote>
<p>Manus Island is home. Until I reached the age of 12 in 1984, Lorengau town – the urban administrative, political and commercial centre of Manus Province, Papua New Guinea – was my parents’ anchor. From there they navigated our lives between Manus, Port Moresby and beyond. They managed their careers, their growing family, their social obligations and their children’s education, while striving to get by as a bi-racial couple among PNG’s emerging educated elite who had helped lead the nation to independence.</p>
<p>In the late 1970s, they bought a small house at the east end of Lorengau town. This is a few minutes’ walk from the site of the Australian-funded <a href="https://www.theguardian.com/australia-news/2017/nov/26/manus-island-msf-denied-access-to-refugees-as-thousands-rally-in-australia">East Lorengau Refugee Transit Centre</a> for asylum seekers and refugees.</p>
<p>By the time I reached primary school, Mum had been elected as a member of parliament for the Manus open electorate and was regularly in Port Moresby. They settled my siblings and me into school on Manus Island, and between 1980 and 1984, bar a few months away in 1983, I lived and schooled between Lorengau town and the Lombrum Naval Base. Most of this time was spent attending the government-funded Pombrut community school at the west end of Lorengau. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202726/original/file-20180122-110090-173mosu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The author with her parents, Bulihan Village, circa 1977/1978.</span>
<span class="attribution"><span class="source">Allen Rooney</span></span>
</figcaption>
</figure>
<p>For about a year we went to a tiny private international school based at Lombrum, which was attended by a dozen or so children whose parents were white people or elites of Manus Island. We travelled to Lombrum by a school bus especially arranged to take us. When we reached Lombrum, the bus would stop and a uniformed officer would smartly salute as he raised the boom gate to allow us entry into this exclusive space.</p>
<p>The school routine was punctuated by countless hours swimming at the beach, regular visits and holidays to Mum’s ancestral and childhood villages: Lahan and Bulihan, and M’Bunai on the south coast. Life was full of adventures involving boat outings and visits to other islands, swimming in rivers and attending customary events and funerals. Our home was always full. It was a transit place for family and friends visiting the town, either from the villages or returning from other provinces. From the villages they came to trade their garden produce and other products at the Lorengau market, to seek treatment from the hospital, to send a family member off, share news or surplus garden produce, or simply to take a breather. When someone died outside the province, their body and their families would pass through our home en route to their final resting place in Bulihan or M’Bunai. These were idyllic, happy days.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202716/original/file-20180121-110117-ycp8ia.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mama’s childhood home is the Lahan area of M’Bunai Village, Manus Island.</span>
<span class="attribution"><span class="source">Michelle Rooney</span></span>
</figcaption>
</figure>
<p>I outline this personal history because it coincides spatially, and to an extent “socially” and “administratively”, with the spaces now brought to international infamy by the Australian off-shore detention centre. These urban spaces on Manus Island and my childhood memories of them, as well as my own migratory story, form the ethnographic material I draw from in this poetic reflection on the current situation on Manus.</p>
<p>My naive and happy childhood memories co-exist with the brutality of the Manus detention centre. The Chauka bird emerged as a quintessential and enduring theme within and beyond Lorengau and Lombrum. My childhood memories also provide a historical backdrop for a time when narratives of PNG’s development and independence were, at least from my perspective, focused on how best to achieve such aspirations. This somewhat benign narrative is, of course, markedly different from the focus on state and regional security and power that has shaped the wider representation of Manus Island today.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/three-charts-on-whats-going-on-at-manus-island-87354">Three charts on: what's going on at Manus Island</a>
</strong>
</em>
</p>
<hr>
<h2>A symbol of identity</h2>
<p>The Chauka bird always has been, and always will be, a symbol of Manus identity and morality. As Manus Islander scholar Dr Bernard Minol has documented, and as is reflected in Manus Island songs, Chauka means many things to many people. Chauka is represented in Manus folklore as a guide, a timekeeper and a voice of caution and forewarning. It is depicted on the official Manus flag along with another Manus icon, the green snail. </p>
<p>According to some Manus jokes, the flag is a parody: the leaders talk a lot like the Chauka while development is slow like the green snail. Others see the Chauka on the flag as representing mobility from the outer islands towards the Manus mainland. In some legends, Chauka is represented as a moral reminder of why people migrate – either due to conflict or lack of resources. In day-to-day life, the Chauka bird is audible: loud, interjecting and present. Yet it has a “taken for granted” presence. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/203686/original/file-20180128-100902-1ylgltb.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Chauka bird is depicted on the Manus Provincial Flag. Both now feature on contemporary Manus cultural artefacts.</span>
<span class="attribution"><span class="source">Michelle Rooney</span></span>
</figcaption>
</figure>
<p>The local government-funded radio station is called Maus Bilong Chauka (The Chauka’s Voice). Preceding the news and announcements a recording of the Chauka call accompanies a jingle that starts proudly: “The Chauka’s voice is happy to spread the news and announcements. This is the Chauka’s voice.” In the evenings, tired after the day’s games and swimming, full from our meals and safe among family, we would sit by the radio and listen to the news and the toksave program – a public announcement program where the public can place messages to be read on air. </p>
<p>Toksave ranges from death notices to customary event notifications, personal messages, school dates, community meetings and other important matters. These contemporary renderings of Chauka’s natural voice have helped to normalise the presence of government in Manus communities. Migration is a natural part of Manus life. As Manus Islander poet Kumalau Tawali, and other scholars, depict in their writings, migration is also synonymous with employment and remittances. </p>
<p>Like many Manus Islanders, my parents aspired to secure their children’s education. I aspired to continue it. The larger world beckoned; as school took me further away for longer periods, Manus remained the anchor that defined my identity and bound my social consciousness. By adulthood, employment and marriage and children also meant I visited Manus less frequently.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202719/original/file-20180121-110087-1wzsm59.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The National Broadcasting Commission, Radio Manus, ‘Maus bilong Chauka’.</span>
<span class="attribution"><span class="source">Michelle Rooney</span></span>
</figcaption>
</figure>
<p>For Manus, the Chauka remains a symbol of identity. It is a reminder of who we are, our moral values and our obligations to home and family. Those who have succeeded in securing incomes are reminded that money is powerful, but it is only really meaningful at home when deployed according to these moral codes that privilege social relationships and collective harmony, and if it enables you to retain your place at home.</p>
<h2>Kastam</h2>
<p>The prime ministers of PNG and Australia, Peter O’Neill and Kevin Rudd, appeared on TV in 2013, smiling and shaking hands after announcing they had cemented a deal: asylum seekers would be detained on Manus Island, with no hope of ever settling in Australia. Perhaps most troubling was that this deal, brokered between the two states, pitched Manus Islanders and asylum seekers against each other in media representations. Over the subsequent years, what has emerged in the news and on the island has no doubt left a chasm in the moral and political economy of Manus Island, which festers at local levels but reverberates globally.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/lyumolBGPOY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>On the back of the deal, Manus Islanders were led to expect significant local development – a promise that was left hanging. As the Manus Regional Processing Centre evolved, so too did the confusion and arguments over this promise. This contestation sometimes reminds me of kastam. Kastam is the Tok Pisin word for customs, customary gift exchange, social obligations and traditions that are integral to the way of life on Manus and much of PNG. From sharing and trading surplus produce to elaborate gift exchanges, these practices – so thoroughly studied by anthropologists – are at the same time political, economic and social. Important customary events are planned and negotiated months in advance amid considerable contestation over myriad issues.</p>
<p>Some issues date back to previous events where disputes over land or claims to leadership remain unresolved. Migrant remittances are an important feature of these relationships for both migrant and kin alike. Some migrants try to resist requests for remittances and involvement in kastam, which can often be draining on their incomes, but do so at the cost of alienating themselves from kin at home. Many migrants find that their new lives draw them away and they renegotiate their social obligations among their new kin. Contestations and moral values guide the relationships between migrants and their kin at home.</p>
<p>In keeping with kastam, people are often obliged to participate and some feel they give more than others and receive far less than they expected. When this happens there is resentment, anger, misunderstanding and, indeed, manipulation on the part of powerful actors. Old feuds are ignited and new relationships form. Questions arise over who can deliver on their obligations and commitments based on ongoing cycles of exchange. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-how-australia-decides-who-is-a-genuine-refugee-72574">Explainer: how Australia decides who is a genuine refugee</a>
</strong>
</em>
</p>
<hr>
<p>Power is relative; those with money negotiate with those who have the skills to tend gardens, weave baskets, raise or access pigs, and generate other cultural resources. At the end of the day, everyone concedes that maintaining the social fabric is important. As the saying goes, “If you hold a grudge you do not know kastam”. By promising development and economic benefits in exchange for hosting the detention centre, the states – Australia and PNG – have pursued and entangled themselves in the Manus local scene, and in doing so can be
interpreted as trying to “play” kastam.</p>
<p>Inhumane treatment is the hallmark of the Australian offshore detention centres. In the months after the announcement, news reports began to emerge of high-security cells for the incarceration of the most difficult asylum seekers. Not only did the representation of Manus Island as a “hell hole” assume common currency, but the Manus Island icon – Chauka – gained notoriety among media outlets. Chauka became the name given to the solitary confinement cells. </p>
<p>This new rendering of Chauka portrayed a place of invisibility and silence. In isolation, one can easily imagine darkness, sadness, loneliness and fear – horrific secrecy. One can imagine unspeakable and unseeable human transformations among those who are forcibly incarcerated, among those controlling what can be seen and heard, and among Manus Islanders, whose day-to-day lives knowingly or unknowingly absorb the fallout of the human transformations taking place in their presence. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202981/original/file-20180123-182962-yd4syj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supplied image obtained January 16 2015 of authorities handling a hunger strike by asylum seekers at the Manus Island detention centre.</span>
<span class="attribution"><span class="source">Refugee Action Collective</span></span>
</figcaption>
</figure>
<p>One day, while reading yet another horrific media report about the abuses inflicted on those detained, I angrily thought, <em>Inogatkastam blong tumbuna, we ol i pasim man olsem pik blong wokim wok kastam</em>. (There is not one ancestral custom in which men are fenced like pigs to be exchanged during traditional events.) As disturbing as this analogy is, it is an important one for those of us who identify as Manus because it speaks to the heart of our moral economy of kastam. Pigs have significant cultural, symbolic, mythical and moral meaning in Manus, PNG and Melanesian customary practices. They mediate and symbolise power, morality and social relationships.</p>
<p>In my poem Chauka, Yu We?, I use the analogy to bring out the brutal implications that the detention centre has for the moral economy and codes that underpin the bilateral relationship between Australia and PNG. The notion of development aid as a benign noble gesture by a wealthy neighbour has been replaced by a harsher bilateral regime of power negotiated to enhance regional security. Asylum seekers have come to embody and symbolise the multiple tiers of social, political and economic relationships that exist between themselves and locals, between governments and their people and between the media and others.</p>
<h2>Papu</h2>
<p>Papu is a kinship term used in many Manus languages. Papu can mean father or grandfather. In recent use, it has taken on currency as a term used in deference to an elder man or to refer to one who has become incorporated into the social group or who is deemed relationally close. It acknowledges the seniority and status of the person called Papu. I have also noticed on my Facebook feed and some media reports that Manus locals now refer to refugees and asylum seekers in the community as Papu. In referring to asylum seekers as Papu, there is hope that asylum seekers will be incorporated as important and valued members of Manus society.</p>
<p>In 2017, Behrouz Boochani, a detainee on Manus Island, produced a film in collaboration with Europe-based producer Arash Kamali Sarvestani, using footage he had filmed on a mobile phone. They called it Chauka, Please Tell Us the Time. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/EwaVMPYEzrA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Yet again, Chauka is thrown into the international limelight. But this time Chauka is a symbol of freedom, of how the detainee’s voice spread word of the Manus detention centre. Boochani acknowledges the Chauka as an important indigenous icon that has been appropriated by PNG and Australia. This acknowledgement reflects how asylum seekers increasingly interact and engage with Manus – no longer as transitory detainees but as local actors.</p>
<h2>Returning</h2>
<p>Returning home to Manus briefly in August 2017, many things remained the same. Cognisant that it had been some time since I had visited, I decided not to talk about the detention centre and instead focused on renewing my own relationships and introducing my children to family, the island and my childhood neighbourhood. I listened and chatted to gauge what mattered to people.</p>
<p>What struck me most were the discussions that took place when I met relatives at the market. People were focused on their day-to-day struggles to get by, on customary events with kin at home and with migrants like me, on planning and investing in their children’s education. People were worried about the increasing levels of crime and alcohol abuse. Many I met at the market had woken at 3am to walk down the highway to the point where the road was accessible by car. By the time they arrived it was nearly midday. As a child we made this trip regularly, only returning to town before nightfall.</p>
<p>There is no doubt that the detention centre has generated some benefits for Manus. In Lorengau, the once gravel road from the airport to town is now sealed. There is a wonderful new market, and a new police station is under construction. Signboards promoting Australia’s aid programs are scattered throughout the town, fading and covered in dust.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202717/original/file-20180121-110090-1jadwqs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An Australian Aid signboard.</span>
<span class="attribution"><span class="source">Michelle Rooney</span></span>
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</figure>
<p>Unless you live near Lombrum, you would be forgiven for not knowing the detention centre exists. The transit centre in Lorengau is also hidden among the trees and not accessible to the public. Asylum seekers, refugees – Papu – intermingle in the markets and walk throughout town. At the international level, the deadline for the closure of the centre loomed and images of asylum seekers peacefully protesting this closure occupied international news reports about Manus Island.</p>
<p>On 31 October 2017, amidst international and local outcry over the duty of care for asylum seekers and the wellbeing of the residents of Lorengau, both the governments of PNG and Australia steadfastly stuck to their joint commitment to close the centre. Water, food, medical and other services were cut off and more than 600 male asylum seekers were ordered to move into alternative accommodation centres purposely built for them in Lorengau. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/manus-island-takes-australia-to-the-edge-of-outsourcing-23647">Manus Island takes Australia to the edge of outsourcing
</a>
</strong>
</em>
</p>
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<p>Efforts by local Manus Islanders to convene and to fight for both their rights and those of the asylum seekers in their midst also appeared futile. The PNG Immigration and Border Security Minister confirmed that the Lombrum Detention Centre had been decommissioned and Lombrum is an active PNG defence force base. An application on behalf of Behrouz Boochani to the PNG Supreme Court to restore services was rejected.</p>
<p>At the time of finalising this paper in November 10 2017, the refugees and asylum seekers have been given 24 hours to move out of Lombrum or face forced removal. On the same day on a more positive, albeit ironic, note, the Australian television network SBS also <a href="https://www.sbs.com.au/news/love-at-first-sight-refugee-who-met-his-wife-on-manus-pleading-to-stay">reported a story</a> about an asylum seeker who was granted refugee status and fell in love with a local Manus woman. Pictured with his local Manus partner and their young children, he reportedly speaks about the difficulties of obtaining PNG citizenship. I know that these children will occupy a special place in the future narratives of Manus and will one day have their own memories and their own stories to tell.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=459&fit=crop&dpr=1 600w, https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=459&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=459&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=577&fit=crop&dpr=1 754w, https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=577&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/203683/original/file-20180128-100896-1jmc3a4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=577&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Refugee Alex Harun Rashid and his partner Molly Noan.</span>
<span class="attribution"><span class="source">Stefan Armbruster SBS World News</span></span>
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</figure>
<h2>Chauka as metaphor</h2>
<p>The Manus Island detention centre has been and will continue to be a policy and social experiment that has forever changed the nature of the bilateral relationship between PNG and Australia. Its genesis played on the morality of saving lives and securing Australia’s borders and regional security. It is an Australian-centric political economy, and a state-centric bilateral arrangement. It foregrounded the power of aid money as an enticement for compliance by Manus Islanders and PNG more broadly. As it stands today, it is hard to forecast the future except to say that the deal has emboldened the PNG state both in terms of its relation to Australia and to its people on Manus. </p>
<p>Those behind its architecture fail to appreciate the underlying moral code inherent in kastam that is meant to repair local relations and maintain longer-term collective social harmony. This failure will reverberate bilaterally. Locally, this means that it will likely be left to Manus Islanders to exercise their innate moral codes to mediate and renegotiate local relations to maintain their valued social harmony.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202718/original/file-20180121-110106-8lwx7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Locals and newcomers trade together at the market.</span>
<span class="attribution"><span class="source">Michelle Rooney</span></span>
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<p>My poem Chauka, yu we? started as an angry reaction to the appropriation of the Chauka and the inhumane treatment of asylum seekers. As a scholar and as a Manus Islander, I have tried to reason through the historical, political, social and moral issues that gave rise to the detention centre. At the same time I am left angry, sad and guilty that my silence could be interpreted as complicity. These reflections and emotions have engendered poetic reflection. Many scholars, most famously Margaret Mead, have explored how Manus people, and children in particular, have responded to changes brought upon them by the world. But I write for a future generation of Manus Islanders. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-a-bit-na-ta-exhibition-reminds-us-of-our-forgotten-links-to-papua-new-guinea-89034">The A Bit na Ta exhibition reminds us of our forgotten links to Papua New Guinea</a>
</strong>
</em>
</p>
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<p>I hope that they will engage with this moral conversation to ask how their own Papu – their forefathers – would have reasoned with the incarceration of men in exchange for development and money. I try to depict the moral responsibility that Manus people might wish to consider in moving from being recipients and passive actors towards asking moral questions about the changes that they are asked to bear. </p>
<p>Government authorities have attempted to appropriate the Chauka to symbolise their power and secure secrecy within the detention centre. Asylum seekers have sent Chauka, in the form of a movie, into the world as a symbol of their voice and their aspirations for freedom. It has become a metaphor for Manus’s moral consciousness during the period 2012–17. It also poses questions about Manus morality, customs and intersections with the states of PNG and Australia. </p>
<p>In saying “Manus”, I include asylum seekers who are now forever etched in Manus spaces and Chauka’s voice. By “Manus spaces”, I mean not only the spaces on Manus Island where states have enabled the transformation of human life, but I also mean the mental, moral and diasporic spaces that include Manus Islanders like myself, who move in and out of our Manus identities, and also those asylum seekers whose destinies have brought them to Manus, detained and seeking voice and freedom beyond it.</p>
<p>To me, the Chauka bird and voice has come to embody all these. I wonder how the children on Manus today – indeed, all of our children – will view this period, and Chauka, in the future?</p>
<p><em>14 November 2017</em></p>
<p><em>This is an edited version of an essay published in <a href="https://griffithreview.com/editions/commonwealth-now/">Griffith Review 59: Commonwealth Now</a>.</em></p>
<p><em>You can read the full version of Chauka, yu we? <a href="https://griffithreview.com/articles/chauka-yu-we/">here</a>.</em></p><img src="https://counter.theconversation.com/content/90107/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Nayahamui Rooney does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The detention centre for asylum seekers generated some economic benefits for Manus Islanders. But how would their forefathers have reasoned with the incarceration of men in exchange for development and money?Michelle Nayahamui Rooney, Research Fellow, Development Policy Centre, Crawford School of Public Policy, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/796482017-09-05T09:30:47Z2017-09-05T09:30:47ZAs Rohingyas flee Myanmar, India needs to drop religious criteria in its refugee law<p>More than 90,000 Rohingyas, victims of a new surge of violence in Myanmar, are fleeing the country and pouring into Bangladesh, while 30,000 people are <a href="http://edition.cnn.com/2017/09/04/asia/rohingya-refugees-myanmar-military/index.html">still trapped</a> near the border. At the same time, the government of the prime minister of India – who is due to <a href="https://www.thenational.ae/world/asia/india-s-modi-to-address-rohingya-issue-during-myanmar-trip-1.625277">visit Myanmar</a> this week – has announced that 40,000 Rohingya refugees are to be deported. A plea against this decision, made by two Rohingya asylum seekers in Delhi, is being reviewed by India’s <a href="http://www.financialexpress.com/india-news/supreme-court-to-hear-plea-against-deportation-of-rohingyas-today/839871/">supreme court</a>.</p>
<p>According to those supporting the government move, deporting the Rohingya refugees is <a href="http://www.dailyo.in/voices/rohingya-pakistan-refugee-myanmar/story/1/19305.html">necessary</a> as their continued presence would encourage Islamic fanaticism. Newspaper columns have argued that the crisis in Myanmar has become <a href="http://www.dnaindia.com/analysis/report-rohingya-refugees-why-is-myanmar-s-humanitarian-crisis-a-terror-concern-for-india-2542851">a terror concern</a> for India.</p>
<p>But how can India, a country which has hosted refugees ever since its foundation as a nation, deport thousands of people based on their ethnicity and faith? India’s <a href="https://www.indianbarassociation.org/indias-refugee-policy">refugee policy</a> could provide further insight. </p>
<h2>Poor refugee laws</h2>
<p>India has been hosting large numbers of refugees without any specific law in place since 1971, when a massive flow of people came from war-torn Bangladesh. It relied on the United Nations High Commissioner for Refugees (UNHCR) recommendations – or what is also also called <a href="https://indiankanoon.org/doc/383397/">customary international law</a>.</p>
<p><a href="http://data.worldbank.org/indicator/SM.POP.REFG?locations=IN">According to the UN data</a> India takes in between 150,000 to 200,000 people a year. </p>
<p>In the first half of 2014, the UN Refugee agency counted more than <a href="http://www.thehindu.com/news/national/india-home-to-200000-refugees-in-first-half-of-2014-unhcr/article6771040.ece">2m people as refugees</a> living in India. They arrived during peak migration crises and conflicts, including partition in 1947, the Tibet crisis of 1959, the creation of Bangladesh 1971, civil wars in Sri Lanka and wars in Afghanistan. </p>
<p>Refugees not only come from devastated neighbours but <a href="http://www.unhcr.org.in/index.php?option=com_content&view=article&id=18&Itemid=103">also from African and Middle Eastern countries</a> such as Congo, Eritrea, Iran, Iraq, Nigeria, Rwanda, Somalia, Rwanda, Somalia. </p>
<h2>Religious discrimination</h2>
<p>To counter such flows, the Indian government developed a new strategy last year. It has proposed amending <a href="http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/172_2016_LS_ENG.pdf">the Citizenship Act of 1955</a> and make the naturalisation process easier – except for displaced persons of Muslim faith.</p>
<p>The new bill would indeed benefit people belonging to Buddhist, Christian, Hindu, Jain, Zoroastrian and Sikh faith, which are considered minority religions in their countries of origin, such as Afghanistan, Bangladesh, and Pakistan, but not Muslims persecuted in their countries of origin, such as the Burmese Rohingyas. Hence the latest proposal to deport Rohingya.</p>
<p>In India, there are 9,200 refugees from Afghanistan, of which, <a href="https://hinduexistence.org/category/pakistani-hindu-refugees-in-india">8,500 are Hindus</a> . There are also more than 400 <a href="https://hinduexistence.org/2016/06/03/india-may-soon-grant-citizenship-to-hindu-refugees-from-pakistan-and-bangladesh/">Pakistani Hindu refugee settlements</a> in major Indian cities. These are mainly in Gujarat and Rajasthan – states that border Pakistan. </p>
<p>Other groups who could benefit from the new special status comprise indigenous tribes such as Buddhist <a href="http://indianexpress.com/article/explained/why-chakmas-and-hajongs-are-indias-nowhere-people/">Chakmas</a> and Hindu <a href="http://indianexpress.com/article/explained/why-chakmas-and-hajongs-are-indias-nowhere-people/">Hajongs</a> from Bangladesh.</p>
<h2>Persecuted Muslims</h2>
<p>Yet, Muslim minorities are also regularly mistreated and seek refuge. <a href="http://www.hindustantimes.com/world-news/ahmadi-muslims-a-minority-community-once-welcomed-in-pakistan-now-persecuted/story-jcTVOfMNX5E4e9gejGP3BI.html">Ahmadiyya Muslims</a>, who follow a 19th century prophet <a href="https://books.google.de/books?id=C2DxBwAAQBAJ&printsec=frontcover&redir_esc=y#v=onepage&q&f=false">Mirza Ghulam Ahmad</a>, face persecution in Pakistan and in Bangladesh. Similarly, <a href="http://www.hazarapeople.com/2016/11/18/the-persecution-of-the-hazara-people-is-a-holocaust-in-afghanistan/">Hazaras</a> (mainly found in Afghanistan and Pakistan) are persecuted.</p>
<p>In today’s Myanmar, <a href="http://www.independent.co.uk/news/world/asia/burma-rohingya-muslims-whats-behind-persecution-aung-san-suu-kyi-a7449126.html">Rohingya Muslims</a> face the wrath of right-wing Buddhist monks and ideologists. In Sri-Lanka, <a href="https://www.colombotelegraph.com/index.php/the-persecution-of-muslims-in-sri-lanka-and-the-indifference-of-muslim-mps/">Tamil Muslims</a> are also discriminated against by hardliners who want to impose <a href="https://www.nytimes.com/2015/01/03/opinion/sri-lankas-violent-buddhists.html">a Buddhist supremacy</a>.</p>
<p>People from such backgrounds have fled to India. But, according to the new bill, they will not be granted refugee status. Even 14,000 Rohingyas officially registered with the <a href="https://www.dawn.com/news/1351068">UNHCR</a> could be deported if they are dubbed illegal by the Indian government.</p>
<p>The new proposal infringes the right to equality guaranteed under <a href="http://www.pmindiaun.org/adminpart/uploadpdf/77442Annexure%20II%20of%20the%20UPR%20National%20Report.pdf">Article 14</a> of the Constitution of India. This prohibits <a href="https://berkleycenter.georgetown.edu/quotes/constitution-of-india-article-15-prohibition-of-discrimination-on-grounds-of-religion-race-caste-sex-or-place-of-birth">discrimination</a> on the grounds of race, religion, caste, creed, sex or place of birth. It contradicts other <a href="http://www.gktoday.in/blog/right-to-freedom-and-six-basic-freedoms-in-india/">fundamental freedoms</a> too.</p>
<p>For example, India grants full protection and assistance through the UNHCR to people (non-Muslims) <a href="http://www.thehindu.com/news/international/australia-working-with-india-and-sri-lanka-to-resettle-refugees/article18509041.ece">from Sri Lanka</a> and <a href="http://timesofindia.indiatimes.com/india/tibetan-refugees-to-get-indian-passports/articleshow/58231841.cms">Tibet</a>, helping them to get documents with a range of legal benefits. On the other hand, <a href="http://www.hrln.org/admin/issue/subpdf/Refugee_populations_in_India.pdf">refugees from Myanmar, Palestine, and Somalia</a> are seldom helped. </p>
<h2>The role of the SAARC region</h2>
<p>Instead of being pointed to as the country that deported thousands of helpless people such as the Rohingyas, India could actually become a model for South Asia with regard to the treatment of refugees.</p>
<p>For instance, it could use the auspices of the South Asian Association for Regional Cooperation (<a href="http://www.eurasiareview.com/19052017-saarc-towards-exploring-idea-south-asian-ness-regional-consciousness-analysis/">SAARC</a>) to consider the January 2004 <a href="https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0ahUKEwjSjd6-tr_UAhWIL48KHWaNCwQQFgheMAk&url=http%3A%2F%2Fsas-space.sas.ac.uk%2F5184%2F1%2FRLI_Working_Paper_No.11.pdf&usg=AFQjCNElTPXBDqLTTighQwfSvPc55Of_xw&sig2=-mDtE-ZngEKwanktqxujBA">South Asian Declaration on the Refugees and Eminent Persons Group’s</a> proposal that formulated <a href="http://shodhganga.inflibnet.ac.in/bitstream/10603/56707/17/17_suggestropaedia.pdf">an ideal law</a> respecting global human rights standards.</p>
<p>Based on <a href="http://wghr.org/wp-content/uploads/2017/03/Fact-Sheet-19-Refugees-and-Asylum-Seekers.pdf">international conventions and on 1984 Cartagena Declaration on Refugees</a> it expanded the definition of “refugee”. And India needs a law with a faith-free definition of refugee status to ensure all can be granted security in the world’s most religiously diverse country.</p><img src="https://counter.theconversation.com/content/79648/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nafees Ahmad does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The recent move by Modi’s government to deport Rohingyas from India reveals the religious based-discrimination at the heart of the country’s refugee policies.Nafees Ahmad, Assistant Professor, International Refugee Law & Human Rights, South Asian University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/797002017-06-20T04:42:25Z2017-06-20T04:42:25ZRefugee or migrant? Sometimes the line is blurred<p>A dozen years before the <a href="https://theconversation.com/how-heartbreaking-images-from-aleppo-could-actually-change-international-norms-70697?sr=13">influx of refugees and migrants to Europe’s shores</a> would force policymakers to take heed, Michael Winterbottom’s 2002 docudrama <a href="http://www.imdb.com/title/tt0310154/">In this World</a> brought the inside story of international migration to the big screen. </p>
<p>In charting the risky, clandestine journey to Europe of two Afghans – the teenage Jamal and 30-something Ineyatullah from the Shamshatoo Refugee Camp in Pakistan’s northwest – the film demonstrates the simple but not uncontroversial truth: Jamal and Ineyatullah are at once refugees and migrants. </p>
<p>Like so many immigrants, they simply seek a better life, one of freedom, opportunity and dignity. At the same time, these Afghans are also refugees – people displaced by conflict and poverty – seeking a better life.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/VhR-w5b-LYg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Michael Winterbottom’s 2002 film ‘In This World’ follows the journey of two Afghans trying to make it to Europe.</span></figcaption>
</figure>
<p>From languishing in Peshawar and nearly suffocating in the back of a truck during the crossing into Europe, to working without papers in London, theirs is a story of displacement, struggle and marginalisation. </p>
<p>It’s also a story of the economic and political borders that fence people in. Transcending these invisible frontiers requires taking inordinate risks. For Ineyatullah, doing so cost his life. </p>
<p>Jamal’s tale has a happier ending: <a href="https://www.theguardian.com/culture/2003/feb/28/artsfeatures.immigration">after applying for asylum in England</a>, he was adopted by a British family who’d seen Winterbottom’s film, finally giving the boy a place to call home. </p>
<h2>World Refugee Day</h2>
<p>June 20 is World Refugee Day, a time to reflect on not just refugees but on those people who, like Jamal and Ineyatullah, are both refugees and migrants. </p>
<p>The day of commemoration comes at a historic moment: for the first time ever, all United Nations member states are working together to develop <a href="https://theconversation.com/global-compact-on-migration-should-focus-on-harnessing-its-win-win-benefits-72967?sr=2">two new global compacts</a>. The first is on shared responsibility for refugees and the second on more humane, coordinated and dignified approaches to governing global migration.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"877095694443708416"}"></div></p>
<p>The project began in September 2016, when the UN adopted the landmark <a href="http://www.un.org/ga/search/view_doc.asp?symbol=A/71/L.1">New York Declaration</a> to forge a coordinated architecture for global governance of both refugees and migrants within two years.</p>
<p>Both compacts are scheduled for completion by 2018. For them to work, policymakers must consider the many millions of people currently in transit whose situations confound the conventional demarcation between refugee and migrant. </p>
<p>Under international law, the rights of refugees – those forced to leave their country because of war or persecution – are enshrined in the <a href="http://www.unhcr.org/1951-refugee-convention.html">1951
Convention for Refugees</a> and its subsequent 1967 protocol.</p>
<p>People who are perceived to have pulled up stakes by choice, on the other hand, lack any comprehensive global rights or protections. Migrants do benefit from the <a href="http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf">Universal Declaration of Human Rights</a>, which was signed in 1948 to respond to the refugee flows resulting from the second world war. </p>
<p>But beyond some basic protections, many displaced people today defy the parameters used by policymakers to define who is entitled to what rights. And this legal limbo puts many migrants in grave danger. </p>
<h2>Migrant or refugee?</h2>
<p>All people who cross international borders without papers, whether they are Central Americans <a href="https://theconversation.com/the-wall-and-the-beast-trumps-triumph-from-the-mexican-side-of-the-border-68559?sr=1">riding the trains through Mexico</a> to get to the United States or <a href="https://theconversation.com/famine-creeps-in-on-africa-while-the-worlds-media-looks-elsewhere-76340?sr=1">Ethiopians</a> escaping hunger in unseaworthy dinghies, face myriad risks. They include the underworld of smugglers, inhumane treatment by authorities and the mental and physical dangers of invisibility and exploitation. </p>
<p>A recent article in the <a href="https://www.theguardian.com/world/2017/jun/15/un-says-film-of-migrants-held-captive-in-libya-seems-authentic">Guardian</a>, for example, reported that criminal gangs in Libya have been holding hundreds of migrants to ransom. </p>
<p>Since 2015, the waters of the Mediterranean have been replete with such traumas, as migrants and refugees from sub-Saharan Africa, Somalia, Ethiopia and Eritrea to Pakistan, Bangladesh, Syria and Afghanistan <a href="https://theconversation.com/libyas-illegal-migration-the-urgent-need-for-a-new-strategy-78364?sr=1">try desperately</a> to get to Europe. </p>
<p>Some of these people may well fit the legal definition of a refugee. Others have set off on their dangerous journeys as migrants, in pursuit of jobs and opportunities. </p>
<p>Too many never make it. In 2016, it’s estimated that <a href="http://www.aljazeera.com/news/2016/12/mediterranean-migrant-deaths-2016-pass-5000-161223130357172.html">over 5,000 people died</a> crossing the Mediterranean, highlighting the dire need to offer some form of humanitarian protection to migrants, legal status aside. </p>
<h2>Children on the road</h2>
<p>Minors are among the most poignant examples of this quandary. </p>
<p>Take Abdallah, now 19. In February 2017, he was being supported at the <a href="https://www.bayt-al-thaqafa.org/">Bayt al-Thaqafa Foundation</a> in Barcelona, an organisation that helps resettle young immigrants.</p>
<p>A decade ago, when he was just nine years old, Abdallah’s family in Morocco made a choice for him about his future. His uncle smuggled him from a village in the Rif mountains into the Spanish colonial city of Ceuta. </p>
<p>Abandoned on the streets, Abdallah begged for several weeks until he was picked up by local authorities. After spending some time in a centre for minors, he was sent to Barcelona, where he lived the next nine years in a residence for children who, like him, who had crossed an international border without papers. </p>
<p>Over time, peers and mentors there replaced Abdallah’s family back home. He learned Spanish and Catalan, learned computer skills and earned a high school degree.</p>
<p>On his 18th birthday, time ran out. His residency permit allowed Abdallah to stay in Barcelona, but not to work. It was Spain’s legal right to send Abdallah back “home” to a family he no longer remembered well. </p>
<p>But where is home, really, for someone like Abdallah, who spent his formative years far from his birthplace through no choice of his own? And what obligations do countries have to protect these young people?</p>
<h2>Just “ordinary immigrants”</h2>
<p>As Hannah Arendt, the preeminent political theorist and herself a refugee, wrote in her 1943 essay <a href="https://www-leland.stanford.edu/dept/DLCL/files/pdf/hannah_arendt_we_refugees.pdf">We Refugees</a>: </p>
<blockquote>
<p>In the first place, we don’t like being called ‘refugees’…. We did our best to prove to others that we were just ordinary immigrants…. We wanted to rebuild our lives, that was all.</p>
</blockquote>
<p>That same idea fuels the struggle of displaced persons today. Whether driven by hunger, violence or poverty, they arrive in their host country hoping to become ordinary – different in ethnicity and culture, perhaps – productive citizens. </p>
<p>As the UN and its member states aim to tackle the policy needs of human mobility in its entirety, developing one compact each for refugees and migrants, let them not forget that millions of migrants and refugees experience blurred and interconnected situations, and everyone is just seeking a place to call home.</p><img src="https://counter.theconversation.com/content/79700/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Parvati Nair does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are refugees, there are migrants and then there are the millions of people who live in legal limbo because they defy easy categorisation. But everyone is just looking for a place to call home.Parvati Nair, Director of United Nations University Institute on Globalisation, Culture and Mobility and Professor of Hispanic, Cultural and Migration Studies at Queen Mary University of London, United Nations UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/736772017-03-02T03:47:51Z2017-03-02T03:47:51ZAustralia has kept disabled migrant children out for decades – it’s time we gave them protection instead<p>Assistant Immigration Minister Alex Hawke <a href="http://www.sbs.com.au/news/article/2017/02/24/deportation-order-reconsidered-eleventh-hour-bangladeshi-teen">recently intervened</a> to allow a 16-year-old girl with autism spectrum disorder, who had been ordered to leave Australia, to stay in the country. </p>
<p>Sumaya Bhuiyan had been living in Australia for eight years, but was rejected for permanent residency in 2013. Her mother, a practising doctor in Sydney, <a href="http://www.smh.com.au/national/health/girl-with-autism-to-be-deported-after-failing-immigration-health-checks-20170223-gujz9h.html">told newspapers</a> the immigration department had found Sumaya’s “moderate developmental delay” would be a burden to taxpayers.</p>
<p>Hawke’s personal intervention followed media coverage of the situation and a <a href="https://www.change.org/p/department-of-immigration-and-border-protection-please-do-not-deport-daughter-of-2-full-time-doctors-because-of-her-developmental-delay">change.org petition</a> that received nearly 38,000 signatures.</p>
<p>This isn’t the first time a minister intervened to prevent deportation of a family who have a dependent with a disability. In 2015, a Bangladeshi couple - also two doctors - with an autistic son had their <a href="http://www.sbs.com.au/news/thefeed/article/2016/08/25/its-completely-inappropriate-australian-immigration-deporting-people-disabilities">application to stay in Australia</a> approved. </p>
<p>For two years the Banik family exhausted all other avenues against the rejection of their autistic son for permanent residency. Their only recourse was to appeal directly to the immigration minister to intervene on compassionate grounds. After a widespread public appeal, Peter Dutton decided to let them stay. </p>
<p>Australia’s immigration laws require migrants to be screened for medical conditions. This is to prove they will not be a “burden” on the community, specifically its health services. Children are most affected by this policy, as <a href="http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=mig/disability/report.htm">costs are calculated over a lifetime</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=849&fit=crop&dpr=1 600w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=849&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=849&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1066&fit=crop&dpr=1 754w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1066&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1066&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.humanrights.gov.au/sites/default/files/CI-PIC-6.jpg">Australia is causing significant mental harm to children in detention.</a></span>
</figcaption>
</figure>
<p>For someone found to be “burdensome”, the outcome isn’t always as positive as for Sumaya and the Baniks. A <a href="http://www.sbs.com.au/news/thefeed/article/2016/08/25/its-completely-inappropriate-australian-immigration-deporting-people-disabilities">dozen or so families</a> or their disabled members are deported from Australia every year. </p>
<h2>Australian policies</h2>
<p>Democracies have a long history of excluding people deemed undesirable as migrants. Those considered to have mental or physical disabilities are targeted most forcefully. </p>
<p>Australia has done little to ameliorate restrictions on disability in immigration policy. This is despite a 2010 parliamentary inquiry into the issue that recommended several changes to loosen them.</p>
<p>The chair of the Joint Standing Committee on Migration <a>said at the time</a>:</p>
<blockquote>
<p>Australia needs a modern migration health assessment, with scope to positively recognise individual or overall family contributions to Australia and that takes into consideration development of contemporary medicine and social attitudes.</p>
</blockquote>
<p>The Migration Act was amended in 1958 to remove restrictions based on race. But the health clause excluding people with disabilities remained. Despite ratifying the <a href="https://www.humanrights.gov.au/our-work/disability-rights/international/united-nations-convention-rights-persons-disabilities">UN Convention on the Rights of Persons with Disabilities</a>, the government ensured the Migration Act remained exempt from its own <a href="http://www.humanrights.gov.au/our-work/disability-rights/guides/brief-guide-disability-discrimination-act">1992 Disability Discrimination Act</a>.</p>
<p>This means immigration is effectively quarantined from these national and international human rights instruments. The result is often that all able-bodied family members will receive permission to migrate to Australia, or gain permission to stay if they are already here, while a disabled child is refused. Families are either broken up or forced to leave. </p>
<p>The public has little awareness of this issue, due in part to the secrecy surrounding the formulation of migration criteria and policy.</p>
<p>The truly tragic dimensions of the issue were exposed most forcefully in the case of <a href="http://www.abc.net.au/news/2003-03-24/man-set-himself-alight-over-visa-rejection-fears/1822542">Sharaz Kiane in 2001</a>. Kiane set himself on fire outside Parliament House in Canberra in protest of the government refusing him a visa. This seems to have been based on the fact his 10-year-old daughter had disabilities that required expensive medical treatment. </p>
<p>Kiane died of his injuries. An <a href="http://www.ombudsman.gov.au/__data/assets/pdf_file/0018/26253/investigation_2001_07.pdf">Ombudsman’s report described</a> the history of Kiane’s case as “one of administrative ineptitude and of broken promises”.</p>
<h2>A history of exclusion</h2>
<p>My research has <a href="https://academic.oup.com/hwj/article-lookup/doi/10.1093/hwj/dbw021">explored stories of families</a> who gave up their disabled children in the period after the second world war. They often did this under duress to forge new lives in countries like Australia, the US and Canada. </p>
<p>They were known as Displaced Persons, mainly of eastern European origin. Most had survived Nazi concentration camps and forced labour schemes. Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=603&fit=crop&dpr=1 600w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=603&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=603&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=758&fit=crop&dpr=1 754w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=758&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=758&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/a/ae/Displaced_Persons_and_Refugees_in_Germany_BU6638.jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>These were largely created to satisfy the labour demands of postwar economies. Physical fitness for manual work was the <a href="https://books.google.com.au/books/about/In_War_s_Wake.html?id=q9pzIcE4ig4C&redir_esc=y">most important factor</a> in assessing potential migrants for countries like Australia and Canada. Single, able-bodied men were therefore most desirable.</p>
<p>In family units, dependants were not allowed to outnumber breadwinners. Despite the proclaimed motives of rescue and humanitarianism towards Nazism’s victims, western migrant selection missions carefully checked each displaced person for traces of physical or mental damage. They excluded anyone who didn’t meet the strict requirements.</p>
<p>Many survivors of concentration camps and Nazi forced labour were rejected, as were the elderly and handicapped. A mass check of more than 100,000 displaced persons in 1948, for example, revealed <a href="http://www.worldcat.org/title/international-refugee-organization-a-specialized-agency-of-the-united-nations-its-history-and-work-1946-1952/oclc/2019210">half of them were still suffering</a> from the effects of malnutrition and hardship. </p>
<p>Children who were disabled were also categorically rejected, often forcing parents with other children to make drastic decisions. Moral pressure by allied welfare workers to institutionalise disabled children contributed to children being left behind in Europe by families who emigrated.</p>
<p>The break-up of families is a relatively well-known consequence of Nazi Germany’s policies of forced labour, population transfers and liquidations. There has been far less recognition of the ways western governments furthered these separations through immigration policies that ignored postwar humanitarian ideals.</p>
<h2>What now for Australia?</h2>
<p>An irony is while Australia is actively excluding those classified as a burden because of their disability, it is disabling people by its policy of offshore detention. </p>
<p>As has been widely documented, children detained in Australia’s remote offshore detention centres <a href="https://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive">suffer from sexual and physical assault</a>. Some have self–harmed or threatened suicide. </p>
<p>Research also shows that <a href="https://theconversation.com/detained-children-risk-life-long-physical-and-mental-harm-37510">children who spend time in immigration detention</a> are often plagued by nightmares, anxiety, depression and poor concentration. They may suffer from post traumatic stress disorder for many years after the experience.</p>
<p>The protection of children is often hailed as the strongest evidence of a civilised society. This claim cannot, at present, be held by Australia if its most vulnerable members – children who are refugees and who might require first-world care because they are disabled – are being actively discriminated against in the name of an impoverished calculus of burden, cost and contribution.</p><img src="https://counter.theconversation.com/content/73677/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ruth Balint does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There has been little recognition of how western governments furthered separation of families with disabled children, through immigration policies that ignored postwar humanitarian ideals.Ruth Balint, Senior Lecturer in History, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725742017-02-23T03:42:23Z2017-02-23T03:42:23ZExplainer: how Australia decides who is a genuine refugee<p>Every year, Australia <a href="https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee">provides protection to thousands</a> of refugees under its humanitarian program. <a href="http://www.border.gov.au/ReportsandPublications/Documents/statistics/humanitarian-programme-outcomes-offshore-2015-16.pdf">In 2015-16</a>, the government issued 15,552 visas to people in need of humanitarian assistance overseas. These included people determined to be refugees by the United Nations High Commissioner for Refugees (UNHCR) in camps outside Australia. </p>
<p>A further 2,003 people received “onshore” permanent protection visas after being found to be refugees by the Australian government. </p>
<p>The term <a href="http://www.pbs.org/newshour/rundown/why-australia-us-refugee-deal-is-contentious/">“genuine refugee”</a> is thrown around often, yet many take for granted the complicated process of how someone is deemed to be one. So, what is a refugee? And how does the Australian government make the decision?</p>
<h2>Who is a refugee?</h2>
<p>Australia has signed and ratified the <a href="http://www.unhcr.org/en-au/1951-refugee-convention.html">United Nations Convention Relating to the Status of Refugees</a> and several other human rights treaties. These set the definition of a refugee and create a legal obligation not to return a person to a country where they will face persecution or serious harm. </p>
<p>Australia <a href="https://theconversation.com/factcheck-does-australia-take-more-refugees-per-capita-through-the-unhcr-than-any-other-country-47151">resettles</a> refugees from camps outside the country as part of the government’s humanitarian program, not out of legal obligation. In <a href="https://theconversation.com/factcheck-how-are-the-12-000-extra-refugees-coming-to-australia-chosen-51324">choosing these refugees</a>, Australia works with the UNHCR to resettle those considered most vulnerable.</p>
<p>We do have a legal obligation to determine whether those who seek asylum when already in Australia need protection. This is regardless of whether they arrive by boat or plane.</p>
<p>A refugee is <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5h.html">defined</a> as someone who does not want to return to their country of origin owing to a <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5j.html">“well-founded fear of persecution”</a> on the grounds of race, religion, nationality, membership of a particular social group or political opinion. </p>
<p>The person can also receive <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s36.html">complementary protection</a> if there are “substantial grounds for believing that there is a real risk he or she will suffer significant harm”.</p>
<h2>What is the refugee determination process?</h2>
<p>The Refugee Convention does not set out the procedures that must be followed to determine whether a person is a refugee. But, to comply with its international obligations, Australia must have a procedure to identify accurately the people to whom it owes protection.</p>
<p>The onshore refugee determination process begins when a person applies for a <a href="https://www.border.gov.au/Trav/Visa-1/866-">protection visa</a>. The Department of Immigration and Border Protection assesses their claim. The purpose of this assessment is to decide whether the person engages Australia’s protection obligations as set out in the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act</a>.</p>
<p>Essentially, the decision-maker must decide whether the person faces a “real chance” or “real risk” of serious harm if they return home. The ultimate objective of refugee determination is humanitarian, so the refugee status isn’t based on a standard of “beyond reasonable doubt” or “balance of probablities” as it would be in other areas of law. </p>
<p>In Australian law, “real chance” means the fear of persecution is “likely” and not remote or far-fetched.</p>
<h2>How is ‘real chance’ determined?</h2>
<p>The Immigration Department considers the applicant’s personal account along with independent information about their country of origin. The department will interview the person about their claim. Interpreters are present if needed, and the person may have a migration agent in the interview.</p>
<p>For example, a woman may claim she cannot return to Afghanistan because she fears violent attacks from other community members due to her work as a human rights activist. The department would need to assess if her fear is well-founded by considering evidence that may corroborate her story. This may be independent information from government sources, NGOs and the <a href="http://www.refworld.org/publisher,UNHCR,COUNTRYPOS,AFG,570f96564,0.html">UNCHR</a> about the treatment of female human rights defenders in Afghanistan.</p>
<p>If the department decides she fits the definition of refugee, they will grant a permanent <a href="https://www.border.gov.au/Refugeeandhumanitarian/Pages/grant-of-a-permanent-protection-visa.aspx">protection visa</a>. The applicant will have to satisfy other health, character and security requirements. </p>
<p>People who have their initial application for protection refused can apply for an <a href="http://www.aat.gov.au/migration-and-refugee-division">independent merits review</a>. A tribunal member will have a hearing with the asylum seeker and consider the case again. They will take into account any new or additional evidence, such as country information that might have changed since the original decision was made. </p>
<p>The member may find the person to be a refugee and return the case to the Immigration Department for reconsideration. Or the original decision may be upheld.</p>
<h2>What about those who come by boat?</h2>
<p>In 2014, the government introduced a <a href="http://www.kaldorcentre.unsw.edu.au/publication/refugee-status-determination-australia">different determination process</a> for those who arrived in Australia by boat after August 2012. Under the <a href="http://www.ima.border.gov.au/en/Applying-for-a-protection-visa/Fast-Track-Assessment-process">fast-track assessment</a> process, timeframes for the provision and assessment of claims are truncated. </p>
<p>If the department rejects the claim, it may be referred to the <a href="http://www.iaa.gov.au/about">Independent Assessment Authority</a>. Reviews by the authority are on the basis of the original information provided by the asylum seeker. Only in “exceptional circumstances” will the authority accept new information or interview the applicant. </p>
<p>If found to be owed protection, boat arrivals will be <a href="https://www.border.gov.au/Trav/Refu/protection-application-information-and-guides-paig/grant-of-a-temporary-protection-visa-or-safe-haven-enterprise-visa">eligible</a> only for a three-year Temporary Protection Visa or a five-year Safe Haven Enterprise Visa. </p>
<p>People who arrived in Australia by boat after July 2013, and who have been transferred to Manus Island or Nauru, undergo refugee status determination in those countries. <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-refugee-status-determination-asylum-seekers-manus-island">Papua New Guinea</a> and <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-refugee-status-determination-asylum-seekers-nauru">Nauru</a> are both signatories to the Refugee Convention and have their own refugee determination procedures. </p>
<h2>Is the process fair?</h2>
<p>Asylum seekers rarely have documentary evidence that strongly supports their claim for protection. They may also have difficulty presenting a comprehensive account of their claims due to literacy, language, culture, shame, problems with memory and difficulty in recounting traumatic experiences.</p>
<p>Determinations may also vary depending on the decision-maker. Some studies have identified a “culture of disbelief” in certain areas of decision-making, including claims <a href="https://academic.oup.com/ijrl/article/21/1/1/1550619/The-Ring-of-Truth-A-Case-Study-of-Credibility">based on sexual orientation</a>. Some decision-makers who hear many cases may consciously or unconsciously <a href="http://www.unhcr.org/en-au/protection/operations/51a8a08a9/full-report-beyond-proof-credibility-assessment-eu-asylum-systems.html">form predetermined</a> views on certain types of claims. </p>
<p>In 2014, the government <a href="http://www.kaldorcentre.unsw.edu.au/publication/legal-assistance-asylum-seekers">made cuts</a> that severely limited access to vital legal assistance for asylum seekers. Research conducted in the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/199962/horr70.pdf">UK</a> and <a href="http://www.irishrefugeecouncil.ie/wp-content/uploads/2014/09/Providing-Protection_Access-to-ELA-for-asylum-seekers.pdf">Ireland</a> shows legal assistance increases the confidence of asylum seekers and improves the quality of decisions.</p>
<p>The <a href="http://www.kaldorcentre.unsw.edu.au/publication/%E2%80%98fast-tracking%E2%80%99-refugee-status-determination">UNHCR and other human rights organisations</a> have raised concerns that accelerated assessments of protection claims may lead to vulnerable people being returned to places where they are at risk of serious harm.</p>
<p>It is unclear whether Australia’s fast-tracking process allows the <a href="https://theconversation.com/fast-track-asylum-processing-risks-fairness-for-efficiency-35146">possibility</a> to arrive at a fair and true decision.</p><img src="https://counter.theconversation.com/content/72574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has received funding from the Australian Research Council. She receives sitting fees from the Department of Immigration and Border Protection.</span></em></p>The term ‘genuine refugee’ is thrown around often, yet few know the complicated process of how someone is deemed to be one.Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/720072017-01-27T16:09:40Z2017-01-27T16:09:40ZQ&A: what legal obligation does the US have to accept refugees?<p><em>Donald Trump <a href="https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html?_r=0">signed</a> an executive order on January 27 which temporarily bans the majority of refugees from coming to the US and <a href="http://www.reuters.com/article/us-usa-trump-refugees-idUSKBN15B2HL">suspends visas</a> for those from seven, mainly Muslim, countries. The Conversation asked Liam Thornton, lecturer in law at University College Dublin, whether the plans breach international law.</em></p>
<p><strong>If a person arrives on US soil and claims asylum, does the US have to deal with their claim under international law?</strong></p>
<p>Yes. Not only does the US have an <a href="http://www.unhcr.org/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html">international legal obligation</a> to do so, based on the requirement of complying with the object and purpose of the <a href="http://www.unhcr.org/uk/1951-refugee-convention.html">1951 Refugee Convention</a>, and implementing legal obligations in good faith, it has an obligation to do so under its <a href="https://www.gpo.gov/fdsys/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf">own domestic law</a>.</p>
<p>The <a href="https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html?_r=0">executive order</a> cannot displace domestic legal obligations. So those who, with great difficulty, manage to reach the US will have to have their asylum claims examined. The duty not to return a person to a state where they may face torture or other serious harms is absolute under the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx">UN’s Convention Against Torture</a>. The US has <a href="http://indicators.ohchr.org/">signed and ratified</a> this convention. </p>
<p>However, with the likely increase in asylum detention of people crossing the US-Mexico border that will arise from one of Trump’s <a href="https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements">earlier executive orders</a>, there is potential for decisions on whether a person is a refugee being made in an exceptionally tight time frame. It’s possible that, more generally, asylum decisions will be rushed through and the law not properly adhered to.</p>
<p><strong>Under international law, can the US ban asylum seekers from certain countries?</strong></p>
<p>Under international law, the US cannot ban <a href="http://www.unhcr.org/asylum-seekers.html">asylum seekers</a> from certain countries. The US has signed and ratified a number of international treaties that prohibit religious and race discrimination in the operation of legal systems, and this extends to operating a migration system in line with international non-discrimination protections. </p>
<p>That said, a person cannot claim asylum unless they are on US soil. The executive order will generally suspend issuing visas for 90 days for Iranian, Iraqi, Libyan, Somalian, Sudanese, Syrian and Yemeni citizens under the <a href="https://uk.usembassy.gov/visas/visa-waiver-program/non-immigrant-visa-waiver-program-vwp/">US visa-waiver programme</a>. An exception for “religious minority” – such as Christians from these countries – appears to be nothing more than a poorly attempted disguise to try to ban Muslims from these countries from reaching US soil. </p>
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<p>However, this prevention of safe, legal and accessible routes is not unique to the US. In the <a href="http://fra.europa.eu/sites/default/files/fra-focus_02-2015_legal-entry-to-the-eu.pdf">European Union</a>, the imposition of visa rules for countries that produce the greatest number of refugees, is precisely what is leading thousands of migrants and refugees to make the perilous <a href="http://data.unhcr.org/mediterranean/regional.php">Mediterranean crossing</a>. So while you have a right <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx">to leave your country</a>, all too often your right to claim asylum in another country <a href="http://dx.doi.org/10.1080/17449626.2016.1253034">can be ignored by states</a> through imposing harsh visa requirements which prevent potential refugees arriving in a country and lodging an asylum claim. For example, a Syrian refugee living in Turkey who is unlikely to get a visa to enter Europe’s Schengen zone, may choose to resort to crossing the Mediterranean in a boat.</p>
<p><strong>Why is the refugee admissions programme being paused?</strong></p>
<p>The <a href="https://www.state.gov/j/prm/ra/admissions/index.htm">US Refugee Admissions Programme</a> (USRAP) deals with people referred from the UNHCR, a US embassy or assigned non-governmental organisations, or a limited <a href="https://www.state.gov/j/prm/releases/factsheets/2016/254650.htm">direct application scheme</a>. It is open to people who already have refugee status (or would be likely to qualify), who are outside the US, but may wish the US to consider them for entry as a resettled refugee. The US had been due to take in <a href="https://www.state.gov/j/prm/releases/docsforcongress/261956.htm">110,000 refugees</a> under USRAP in 2017, but in the executive order Trump indicates he wants this number to be more than halved to an intake of 50,000 refugees. The executive order calls for USRAP to be paused for all refugee applicants for a period of 120 days. The reason Trump offers for this suspension is to ensure the <a href="https://www.uscis.gov/refugeescreening">already complex vetting processes</a> are strengthened.</p>
<p>The US takes the largest number of people under <a href="http://www.unhcr.org/resettlement.html">UNHCR’s resettlement programme</a>. Looking to international law, there is no legal obligation to have or operate a resettlement programme.</p>
<p>Yet, an exceptionally concerning aspect of the executive order is to exclude Syrian refugees from being resettled in the US under USRAP. This exclusion is to remain in place until such time as Trump has determined that entry of Syrian refugees aligns “with the national interest”. Trump has <a href="http://www.reuters.com/article/us-usa-trump-safezones-idUSKBN15B0E5">proposed that “safe zones”</a> are to be planned for refugees within Syria as a result of the Syrian citizen exclusion from USRAP.</p>
<p><strong>How many asylum seekers are we talking about?</strong></p>
<p>From 2013 to 2015, only 1,823 Syrian refugees were accepted under USRAP. Therefore, Syrian refugees constituted an exceptionally small number of the almost 210,000 <a href="https://www.dhs.gov/immigration-statistics/yearbook/2015/table14">refugees accepted for resettlement</a> in the US between 2013 and 2015. Outside of USRAP, the number of individual Syrians <a href="https://www.dhs.gov/immigration-statistics/yearbook/2015/table17">claiming asylum</a> on the territory of the US between 2013 and 2015 was exceptionally low. This is because visa laws already in place manage to deflect most Syrian asylum applicants from ever reaching the US. The proposed visa prohibition will mean the numbers of Syrians claiming asylum at US borders will decrease.</p>
<p><strong>What means does the international community have to punish the US if it breaches international refugee or asylum law?</strong></p>
<p>Well, that is the significant issue with international legal obligations and domestic enforcement of these obligations. International refugee and international human rights law relies heavily on attempting to embarrass or pressure a state to comply with their international legal obligations. This can have some effect on smaller states – for example in Ireland, the UN Human Rights Committee added to the chorus of activist agitation for seeking to change <a href="http://humanrights.ie/constitution-of-ireland/the-hrcs-decision-on-irelands-abortion-law-is-a-referendum-now-required/">misogynistic laws on abortion</a>. </p>
<p>However, a country as powerful as the US can easily set aside international legal obligations to which they had previously adhered. So I would be surprised to see any “punishment” from the international community. If the international community is genuinely outraged by this decision, other countries need to start planning to increase their own refugee resettlement programmes, along with ensuring safe, legal and accessible routes of entry for those seeking sanctuary. But, given the current political climate in Europe, Australia and elsewhere, I’d expect a rather muted response to the executive order.</p>
<p><em>This article was updated on January 28th after the executive order, a draft of which had been widely leaked, was signed.</em></p><img src="https://counter.theconversation.com/content/72007/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liam Thornton previously received funding, in 2007, to conduct research on Irish compliance with EU asylum directives from the EU Commission. Liam offers ad-hoc research assistance to a number of Irish NGOs on issues of asylum law and policy. </span></em></p>As Donald Trump orders a temporary ban on most refugees to the US, here is what the international law says.Liam Thornton, Lecturer/Assistant Professor, School Of Law, University College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/658392016-09-21T23:00:36Z2016-09-21T23:00:36ZRefugees, migration addressed in first-time UN summit: What was accomplished?<p>This week the United Nations General Assembly held the first-ever <a href="http://refugeesmigrants.un.org/summit">Summit for Refugees and Migrants</a>.</p>
<p>According to <a href="https://www.un.org/sg/en/content/sg/speeches/2016-09-19/remarks-opening-session-high-level-plenary-meeting-address-large">U.N. Secretary-General Ban Ki-moon</a>, the summit represented “a watershed moment to strengthen governance of international migration and a unique opportunity for creating a more responsible, predictable system for responding to large movements of refugees and migrants.”</p>
<p>The Obama administration and U.S. State Department organized a parallel program on Sept 20. The <a href="http://www.state.gov/p/io/c71574.htm">Leaders’ Summit on Refugees</a> emphasized similar themes.</p>
<p>The shared goals of the summits focused on the increase in the number of refugees. Refugees are a subset of the more than <a href="http://www.unhcr.org/en-us/figures-at-a-glance.html">65.3 million displaced people</a> worldwide and include approximately <a href="http://www.unhcr.org/576408cd7.pdf">21 million</a> men, women and children. </p>
<p>In response, the General Assembly and its 193 member states <a href="http://refugeesmigrants.un.org/sites/default/files/un_press_release_-_new_york_declaration_-_19_september_2016.pdf">adopted an agreement</a> committed to developing standards of care that include providing better educational opportunities for refugee children; improving the working conditions for displaced adults and fighting to counter xenophobia, fear and what British Prime Minister <a href="https://www.theguardian.com/world/2016/sep/19/theresa-may-united-nations-right-claim-asylum-migration-refugees">Theresa May</a> has described as the “liberal” rules of the Geneva Conventions. </p>
<p>Ban <a href="https://www.un.org/sg/en/content/sg/speeches/2016-09-19/remarks-opening-session-high-level-plenary-meeting-address-large">declared</a> the results of the summit were “a breakthrough in our collective efforts to address the challenges of human mobility.” </p>
<p>Nevertheless, critics of the summit said it did not go far enough. <a href="http://www.nytimes.com/aponline/2016/09/19/world/ap-un-united-nations-refugee-summit.html?_r=0">Philipe Bolopion</a>, the deputy director for Human Rights Watch, said the U.N. General Assembly fell short. “We’re facing an historic crisis and the response is not historic,” Bolopion said.</p>
<p>Based on our work with migrants and refugees in Europe and the U.S., we believe the main issues that remain unaddressed are the root causes – that is, insecurities – uprooting millions around the world.</p>
<h2>The UN summit on refugees and migrants</h2>
<p>First, the summit participants spent little time addressing the <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1467-9515.2005.00458.x/full">root causes of forced displacement</a> and insecurities that drive refugees to flee and encourage migrants to set off for new destinations. Refugees and migrants do not simply appear, as we argue in our book <a href="http://utpress.utexas.edu/index.php/books/cohmig">“Cultures of Migration.”</a> Rather, they are a response to unrest and insecurity. Insecurity can take many forms and range from small-scale, interfamilial disputes to large-scale violence and clashes that threaten life. Insecurity defines both what is lacking as well as how someone is motivated or forced to leave home.</p>
<p>Programs that address unrest and tackle insecurity, such as the <a href="https://www.wfp.org/countries/uganda">World Food Program in Uganda</a>, may not always stop a civil war, counter displacement or foster economic growth, but they can help. Nevertheless, a focus on the root causes of displacement and migration can also expose the ways in which political regimes and state systems, among other players, manipulate their citizens, take advantage of marginal groups, <a href="http://time.com/4116633/paris-attacks-syrian-refugees/">including religious minorities</a>, and <a href="https://www.wsws.org/en/articles/2016/07/11/euaf-j11.html">build relief programs around despots</a>.</p>
<p>Second, too often programs like the ones discussed in the summit and meant to address the status of refugees and migrants, portray refugees as victims suffering from insecurities. This approach does not acknowledge the costs of displacement for refugees and other movers nor the insecurities they may face.</p>
<p>Furthermore, it describes migrants in contrast to refugees. The implication is that migrants are motivated by the pull of well-paying jobs, do not suffer and may be a threat. This is evident in the <a href="http://www.iza.org/highlights/manage_highlights/docs/083_ManagingMigrationintheEuropeanWelfareState_Oxford2002.pdf">xenophobic characterizations</a> of North Africans in Europe and Mexicans in the U.S. These distinctions can only fuel anti-immigration sentiments.</p>
<h2>The Leaders’ Summit on Refugees</h2>
<p>Participants in the leaders’ summit convened by the U.S. State Department and Obama administration focused on building material support for <a href="https://www.whitehouse.gov/the-press-office/2016/09/20/fact-sheet-white-house-announces-commitments-call-action-private-sector">refugee resettlement</a> programs globally. </p>
<p>In the meeting, 11 countries including the US doubled their financial contributions to refugee assistance programs. Also, <a href="https://www.whitehouse.gov/the-press-office/2016/09/20/private-sector-participants-call-action">51 U.S.-based companies</a> committed millions of dollars in support. The support ranged from direct financial contributions to contributions of goods, services and expertise to support resettlement, education and workforce participation while fighting xenophobia.</p>
<p>Money for resettlement is certainly a critical and important need. But there needs to be more emphasis on efforts to facilitate integration and recognition of the two-way nature of the adaptation process. Better programming including projects to rebuild and <a href="https://www.iom.int/news/iom-usaid-support-rehabilitation-services-conflict-affected-colombian-municipalities">resettle refugees in their former homes</a> may help avoid another crisis in the future. </p>
<h2>What happens next?</h2>
<p>The response to refugees and migrants is often <a href="http://www.pewresearch.org/fact-tank/2016/09/16/european-opinions-of-the-refugee-crisis-in-5-charts/">xenophobic nationalism</a> and fear. In the minds of many citizens, terrorists masquerade as Syrian refugees, while Mexican migrants engage in criminal activity. And in nearly every case, there is a <a href="http://www.theatlantic.com/international/archive/2016/04/refugees-crime-rumors/480171/">fear</a> that refugees and migrants will access public assistance at the cost of citizens’ welfare.</p>
<p>To be fair, the General Assembly and the Obama administration are aware that the future of refugees and migrants is far from settled, and that it is critical to respond to xenophobia if solutions are to be found. </p>
<p>Resolving the causes and challenges of the refugee crisis will not be easy. Nevertheless, the U.N. and U.S. State Department summits are an important, if imperfect, start as we engage migrants and refugees, listen to their stories and confront the insecurities that drive them.</p><img src="https://counter.theconversation.com/content/65839/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The U.N. and other leaders met to discuss coordinating an international response to unprecedented numbers of refugees and migrants. Two migration experts examine issues the summits left unresolved.Jeffrey H. Cohen, Professor of Anthropology, The Ohio State UniversityIbrahim Sirkeci, Professor of Transnational Studies and Marketing & Director of Regent's Centre for Transnational Studies, Regent's University LondonLicensed as Creative Commons – attribution, no derivatives.