Despite the well-settled grounds for complementary protection, international and regional human rights bodies and courts have emphasized that this list is not closed and there may be other situations which preclude removal. The UN
Committee on the Rights of the Child has made clear that the non-refoulement obligation is ‘by no means limited to’
provisions relating to threats to life or to torture or cruel, inhuman, or degrading treatment or punishment, and applies in any case where there are substantial grounds for believing that there is a real risk of ‘irreparable harm’ if the person is removed (2005: para. 27). The UN Human Rights Committee has accepted that the (p. 206) obligation may be triggered ‘when considerations of non-discrimination...and respect for family life arise’ (UN Human Rights Committee 1986, 1989, 2004).
The European Court of Human Rights has held that states must not return people to countries where they will face a
‘flagrant denial of justice’ (ECHR, Art. 6), such as when evidence obtained by torture is admitted in criminal proceedings (e.g. Othman v UK). It has also accepted, at least in principle, that a sufficiently flagrant breach of Article 5 (right to liberty and security) or Article 9 of the European Convention on Human Rights (ECHR) could give rise to a non- refoulement obligation (e.g. Tomic v UK; Z and T v UK). In Ullah, the House of Lords (as it then was) acknowledged that a breach of any human right could potentially engage a non-refoulement obligation if the breach were so flagrant as to completely deny or nullify the right. However, both courts have pointed out that it would be difficult to envisage a case where a sufficiently flagrant violation would not already be encompassed by the prohibition on return to ‘inhuman or degrading treatment’ under Article 3 of the ECHR (Z and T v UK; Ullah).
Both courts also accept that Article 8 of the ECHR, which protects the right to respect for private and family life, may preclude return in certain circumstances (e.g. Bensaid; Razgar). The threshold is high and the interference must be balanced against considerations set out in Article 8(2)—whether the interference is ‘necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. This always involves striking ‘a fair balance between the rights of the individual and the interests of the community’, but ‘[d]ecisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis’ (Razgar, para. 20; see also para. 59).
Finally, Article 3 of the Convention on the Rights of the Child mandates that in any decision involving a child, the child’s best interests must be a primary consideration. This means that the child’s interests should be considered first, and only outweighed if some other consideration (either individual or cumulative) is inherently more significant (ZH; Wan). While there is a general presumption in favour of family reunification, in some cases this will not be in the child’s best interests.
This might be because of the risk of harm in the place to which return is contemplated, or because of the risk represented by the parents themselves, such as if they have been involved in trafficking the child in the past, or are unable to protect the child from being trafficked in the future (UNICEF 2012: 42).
The Relationship between Refugee Law and Complementary Protection
Properly applied, complementary protection does not supplant or compete with the Refugee Convention. By its very nature, it is complementary to refugee status (p. 207) determination, which means it should only be considered following a comprehensive evaluation of a person’s claim against the Refugee Convention definition and a finding that the applicant is not a refugee (UNHCR 2003: Goal 1, Objective 3; Executive Committee Conclusion No. 103, para. q). Thus, the legislative framework of the EU, Australia, and New Zealand, for instance, requires decision makers to assess refugee claims first, before turning to the complementary protection grounds.
This is intended to safeguard the ‘primacy’ of the Refugee Convention and ensure that decision makers remain mindful of the evolving meaning of ‘persecution’ in refugee law, thus developing refugee jurisprudence accordingly. Indeed, human rights law has been very influential on refugee law, helping to increase the latter’s ‘strength and relevance’ (Fitzpatrick 2000). Superior courts around the world have recognized the Refugee Convention as a human rights treaty and have interpreted its provisions in light of other international law obligations arising under CAT, the ICCPR, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and customary international law, thus enabling ‘account to be taken of changes in society and of discriminatory circumstances
2
which may not have been obvious to the delegates when the Convention was being framed’ (Islam, 657). Human rights law has helped to inform key concepts such as the meaning of ‘persecution’ and ‘particular social group’.
Standards of Treatment
Human rights treaties set out a comprehensive range of rights to which all people are entitled. Some of the most pertinent include:
ICCPR:
• the right to an effective remedy for breaches of human rights (Art. 2);
• the right to life (Art. 6);
• the right to freedom from torture or cruel, inhuman, or degrading treatment or punishment (Art. 7);
• the right to be treated with humanity and respect for the inherent dignity of the human person when deprived of liberty (Art. 10);
• the right to freedom from arbitrary detention (Art. 9);
• the right to freedom of movement (Art. 12);
• procedural rights against expulsion (Art. 13);
• the right to recognition before the law (Art. 16);
• the right not to be free from arbitrary or unlawful interference with privacy or family (Art. 17);
• the right to protection of the family (Art. 23);
• the rights of children (Art. 24; see also the Convention on the Rights of the Child);
• the right to equal protection before the law and non-discrimination (Art. 26);
(p. 208) ICESCR:
• the right to work, as well as the right to just and favourable conditions of work (Arts. 6 and 7);
• the right to social security (Art. 9);
• the right of the family to the ‘widest possible protection and assistance’ (Art. 10);
• the right to an adequate standard of living (including food, clothing, and housing) (Art. 11);
• the right to the highest attainable standards of physical and mental health (Art. 12);
• the right to education (Art. 13).
In addition to being a ground on which removal to a country can be opposed, the prohibition on cruel, inhuman, or degrading treatment is central to safeguarding the proper treatment of asylum seekers and other forced migrants within the country in which they are seeking protection. At the very least, states must ensure that there are policies and structures in place so that no one is forced to live in inhuman or degrading conditions. In a series of cases concerning asylum seekers denied state support and the right to work, the UK courts said that treatment is inhuman or degrading ‘if, to a seriously detrimental extent, it denies the most basic needs of any human being’ (Adam, para. 7). While there is no general public duty to house the homeless or provide for the destitute, the House of Lords held that such a duty would arise if an asylum seeker ‘with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’ (Adam, para. 7). Relevant factors include the asylum seeker’s ‘age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation’ (Adam, para. 8). The overall question is ‘whether the treatment to which the asylum- seeker is being subjected by the entire package of restrictions and deprivations that surround him is so severe that it can properly be described as inhuman or degrading treatment’ (Adam, para. 58). The highest appellate courts of France, Germany, Belgium, and South Africa have similarly acknowledged that even people without any formal immigration status are entitled to minimum health and other social services, as a matter of basic dignity (see cases cited in Bouteillet-Paquet 2002: 240; Watchenuka, para. 32).
Human Rights and Forced Migration
Although it has not ruled directly on the matter of status in this context, the European Court of Human Rights has acknowledged that poor living conditions may violate Article 3 of the ECHR if they reach a minimum level of severity (e.g.
Pancenko; BB; HLR; Sisojeva), which may include living without any social protection. The court’s recent decision in MSS v Belgium and Greece suggests that asylum seekers must benefit from a minimum level of economic and social rights, irrespective of their formal recognition as refugees or beneficiaries of subsidiary protection. Elsewhere, the court has suggested that the longer a person remains in a country, the greater his or her personal, social, and economic ties, and the greater his or her claim on the state’s resources (Nasri).
(p. 209) Refugees’ rights are set out in the Refugee Convention and are supplemented by human rights law. When it comes to beneficiaries of complementary protection, state practice affirms that they should be accorded some form of domestic legal status. Whether this should be the same as that granted to Convention refugees has been the subject of some academic debate (Goodwin-Gill and McAdam 2007; McAdam 2007, 2009; cf. Hathaway 2010; Pobjoy 2010;
Durieux 2013), but in the jurisdictions where domestic complementary protection exists, there is now a clear trend towards granting an identical status. Canada, New Zealand, and Australia provide the same status to refugees and beneficiaries of complementary protection, and a 2008 survey showed that most EU countries did so as well, even though the Qualification Directive did not require this at that time (ECRE 2008). The recast 2011 version of the
Qualification Directive has significantly narrowed the gap between the status of Convention refugees and beneficiaries of subsidiary protection, although there are still differences in the length of residence permits granted (Art. 24), and social assistance can be limited to core benefits for beneficiaries of subsidiary protection (Art. 29) (although this is intended to be the exception rather than the rule). Furthermore, the regional African and Latin American refugee instruments envisage Convention refugee status extending to the broader categories of people they protect. UNHCR has argued that the rights and benefits granted to forced migrants should be based on need rather than the grounds on which a person has been granted protection, and that there is accordingly no valid reason to treat beneficiaries of complementary protection any differently from Convention refugees (UNHCR 2001, 2009).
However, some scholars are wary of this approach, arguing that it may undermine the refugee protection regime (Hathaway 2010; Durieux 2013). Implicit in their analysis is a concern that equal treatment might ultimately dilute the special protection provided to refugees by the Refugee Convention. While conceding that it may be ‘good policy’ to grant an identical legal status to both groups (Hathaway 2010: 506) and acknowledging the legal, political, and ethical dilemmas in trying to articulate a justification for a ‘refugee privilege’, they nevertheless place the international refugee regime on a pedestal, arguing that ‘such an articulation [of a refugee privilege] is essential to the universal regime’
(Durieux 2013: 253–4). Hathaway, in particular, has persistently argued that compared to other forced migrants, refugees are ‘doubly deserving’ of protection: ‘not only is the risk they have fled profoundly serious, but their exposure to such risk is based on characteristics which are either unchangeable (like race or nationality) or so fundamental that they should not have to be renounced in order to be safe (like religion or political opinion)’ (Hathaway 1997, 2007: 352).
Perhaps one’s approach to this issue depends in part on whether refugee law is regarded as a subset of human rights law, or as a separate regime that needs to be quarantined to preserve the privileged status it extends to refugees. For human rights scholars, an insistence on the primacy of refugee status is counter-intuitive (if not inconsistent) with underlying premisses of human rights law, such as the principle of non-discrimination. Relying on this principle, Pobjoy (2010) has argued that the protection granted to refugees and beneficiaries of complementary protection should be the same (see also Fitzpatrick 2000: 9–10; McAdam 2007: 220).
(p. 210) The Importance of Domestic Implementation
One of the main obstacles to the fulfilment of human rights in practice is translating them from international obligations into domestic law. In some countries, duties assumed under international treaties automatically become part of domestic law, but in others (such as the UK and Australia), they need to be formally adopted into national law before they are enforceable. Nevertheless, if a country fails to give effect to the human rights commitments that it has voluntarily undertaken by ratifying treaties, then it will be in breach of its obligations under international law (e.g. ICCPR, Art. 2).
Domestic human rights frameworks, such as bills of rights, provide a tool for measuring countries’ compliance with their international obligations and for offering redress in circumstances where human rights are breached. They also facilitate the formulation of better laws and policies by requiring human rights issues to be taken into account at the beginning of the legislative process. The ECHR, Europe’s regional human rights framework, has proved to be a very powerful
mechanism for forced migrants—preventing removal through the expanded principle of non-refoulement and safeguarding rights in European host countries.
The absence of domestic human rights mechanisms on the rights of forced migrants is aptly illustrated by Australia’s policy of mandatory detention. Introduced in 1992, it requires that all non-citizens who enter Australia without a valid visa be detained until they are either granted a visa or removed. Human rights law has an important role to play in establishing the limited circumstances in which a person may be detained and what constitutes acceptable standards of treatment during detention. Holding asylum seekers in immigration detention is not per se an impermissible breach of their rights, but the circumstances and length of detention may be such that the detention cannot be justified in the particular case.
Deprivation of liberty strikes at the very heart of human rights protections, since without liberty a person is unable to enjoy other rights. In order for detention to be consistent with international human rights law, it must be shown to be necessary in the individual case (rather than the result of a mandatory, blanket policy); subject to periodic review by the judiciary or another authority, with the power to release detainees if detention cannot be objectively justified; be reasonably proportionate to the reason for the restriction (e.g. national security); and be for the shortest time possible.
All the major UN human rights bodies have condemned Australia’s system of mandatory detention as a violation of Article 9 of the ICCPR because it does not satisfy these conditions. However, without a domestic human rights instrument in place, there is no basis on which such detention, its length, or its conditions can be challenged in the Australian courts.
Finally, human rights provisions may also have procedural benefits for asylum seekers and refugees. For instance, in Jabari v Turkey, an asylum seeker successfully challenged (p. 211) a deportation order which had been issued because she had failed to lodge her asylum claim within five days (the time limit stipulated by Turkish law). The European Court of Human Rights held that, owing to the irreversible nature of the harm she feared if removed, Turkey had an obligation to conduct a meaningful assessment of her claim, notwithstanding the time limit in its domestic law. The court stated that the automatic and mechanical application of such a short time limit was at odds with the fundamental protection embodied in Article 3 of the ECHR. It also found that Turkey had violated the asylum seeker’s right to an effective remedy.
Conclusion: The Evolution of Protection over Time
The significant jurisprudential and legislative developments in human rights-based non-refoulement over the past 25 years, and the readiness of decision makers to reassess the classification of particular forms of harm over time, suggests that the kinds of ill-treatment from which forced migrants may be protected remains open, albeit not unlimited. Thus, much contemporary scholarship is concerned with the protection gaps and prospects for those displaced by the impacts of climate change and natural disasters (McAdam 2012; Kälin and Schrepfer 2012), development projects (Bennett and McDowell 2012), humanitarian crises (e.g. ‘crisis migration’), and basic ‘survival’ needs (Betts 2010). The evolving nature of human rights law means that the protection needs of such groups will need to be perennially revisited against
prevailing legal concepts. Irrespective of the potential scope of the principle of non-refoulement, however, states are already obliged to observe their voluntarily assumed responsibilities under human rights law with respect to all people within their territory and jurisdiction—including forced migrants. Even individuals who might ultimately be returnable have human rights that must be respected.
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