Protection from Refuge

Abstract

This thesis addresses one of the most significant problems facing the refugee protection regime: that the places in which people in need of international protection seek refuge are of-ten as dangerous and bleak as the conditions they fled. In response, many refugees and asylum seekers travel within and across borders in attempts to secure what they believe to be places of genuine sanctuary. While there are studies of these journeys by anthropologists, sociologists and criminologists, there is little investigation of the role courts play. This is despite refugees and asylum seekers in numerous jurisdictions increasingly turning to courts and other adjudicative bodies to ask for protection, not from persecution in their home country, but from a place of ostensible 'refuge'. I call these legal challenges 'protection from refuge' claims, and they have been made across four continents: Africa, Europe, North America and Oceania. Accordingly, the refugee litigants rely on different areas of domestic, regional and international law to frame their claims. This is the first study to group these cases together to examine how decision-makers respond to them and the consequences for refugees' journeys in search of safe havens.

While there are a number of examinations of how judges and other adjudicative decision-makers interpret refugee definitions, this thesis contributes to the literature by assessing how they approach the remedy: refuge. Many scholars put forward ideas of what refuge is or should be and legal experts outline the protections to which refugees are entitled. However, there is no dedicated study of how adjudicative decision-makers draw the contours and con-tent of refuge through the prism of different areas of domestic, regional and international law. This thesis also adds new dimensions to gender scholarship by investigating how these judicial conceptualisations of refuge facilitate or hamper journeys for those who face the greatest challenges in reaching places of sanctuary such as single women and unaccompanied minors.

I argue that when protection from refuge claims first come before courts and other adjudicative bodies, decision-makers adopt rich and robust ideas of refuge beyond basic notions of safety and survival. These judicial approaches enable large numbers of refugees to use courts to access places where they believe they can attain a sense of refuge, but decision-makers are also sensitive to the ways factors such as gender, age, sexuality, disability and care responsibilities relate to a person's protection needs. However, these legal victories are ephemeral. In each jurisdiction, decision-makers transition from purposive and comprehensive understandings of refuge to rudimentary ones. They also reframe these legal challenges in a way that creates additional legal hurdles for refugees who have the greatest difficulties in attaining refuge such as female-headed families, children and those with disabilities. This trajectory of judicial approaches to protection from refuge claims indicates that courts can play a powerful role in enabling access to refuge and addressing injustices and inequities in refugee protection, but, ultimately, legal decision-makers compound the difficulties inherent in finding sanctuary, perpetuate global inequities in refugee responsibility and render refuge elusive.