Last year the Court of Justice of the European Union issued two judgments on the Syrian refugee crisis. Both cases concerned Europe’s externalization of migration policy – i.e. the legal and practical measures taken to enforce refugee exclusion outside or at the borders of the territories of EU member states. These policies have been labeled as the politics of non-entrée by Hathaway & Gammeltoft-Hansen. In the judgments, the Court decided that it was not competent to rule on the cases because it had no jurisdiction. As I have argued more extensively in an article published open access in the Journal of Refugee Studies, the result of this is that law is not only an instrument for excluding people from European territory. The exclusion now runs through law itself. Although European fundamental human rights law is still formally neutral, the exclusion of non-Europeans is becoming a core element of European law.
The Supreme Court issued an order yesterday regarding President Trump’s revised Refugee Executive Order (EO) that provided comfort to both the Administration and Hawaii, which has challenged the EO. The Court left in place the portion of Hawaii U.S. District Court Judge Derrick Watson’s injunction barring application of the EO to foreign nationals abroad with U.S. relatives such as grandparents, grandchildren, uncles, aunts, nieces, nephews, and cousins.
Two items worth noting. First, the State Department has again begun processing for refugee admissions, despite President Trump's Executive Order putting the program on hold and capping admissions for the current fiscal year at 50,000. Second, the Federal Court of Appeals for Fourth Circuit issued a scathing opinion affirming (nearly all parts of) a lower court's preliminary injunction against the revised Trump Order.
The idea of "international migration law" is not new, but it is receiving increased attention from a number of legal scholars. In some degree, they are responding to the domination of refugee law in discussions of international law relating to the movement of people. AJIL Unbound (the online edition of the American Journal of International Law) has recently published a "Symposium on Framing Global Migration Law," in which Jaya Ramji-Nogales has a piece well-worth reading: "Moving Beyond the Refugee Law Paradigm."
Last year, the Kenyan government announced that it would close Dadaab refugee camp, repatriate Somali refugees, and disband the Department of Refugees. On February 9, 2017, a decision of the High Court in Nairobi invalidated the government’s planned course of action. The court held that return of Somali refugees would violate the 1951 Refugee Convention’s norm of non-refoulement and constitute discrimination prohibited by the Kenyan Constitution. The failure to consider individual cases under prevailing law was deemed to violate the Kenyan Fair Administrative Action Act. Further, the court held that the government lacked authority to close the Department of Refugees, which would require legislation enacted by the Parliament.
The Australian government has been criticized for a raft of its asylum seeker policies, perhaps the most notorious of which is its removal of “unlawful non-citizens” to two offshore processing centers—one in Manus Island in Papua New Guinea and the other in the Republic of Nauru—and the protracted detention of asylum seekers in those facilities. This is an ongoing human rights concern. Notwithstanding the government’s announcement late last year that it would settle some of these detainees in the United States, the Prime Minister has said that that arrangement is a “one-off”; it will not be repeated. The Immigration Minister has stated that the offshore detention policy will not change and that Nauru, at least, “will remain in its current status forever”. In any event, the fate of the US-Australia deal is anything but certain, after President Trump blasted it as the “worst deal ever”.