Cathryn Costello

Non-refoulement as Custom and Jus Cogens ? Putting the Prohibition to the Test

The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of ‘custom plus’ we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.

The human rights of migrants and refugees in European law

1. Introduction: Destination Europe 2. The Human Rights of Migrants and Refugees in a Pluralist Setting 3. Constructing Legal and Illegal Migration 4. The Human Right to Family Life and Family Migration 5. Defining Protection: Refugeehood, Non-refoulement, and Human Rights 6. Access to Territory and Protection 7. Immigration Detention

The Recast Asylum Procedures Directive 2013/32/EU: Caught between the Stereotypes of the Abusive Asylum Seeker and the Vulnerable Refugee

This piece provides a detailed analysis of the Recast Asylum Procedures Directive (Recast APD). Although we are now two decades into harmonization of asylum procedures at the European Union (EU) level, we begin in Part 2 by revisiting the rationale for this process. We contend that the most persuasive rationale for procedural harmonization, in an EU legally committed to refugee protection, is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. The original Asylum Procedures Directive (APD) failed to meet this aim by a long margin. The Recast APD is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament’s relatively new role as co-legislator on asylum matters. Our analysis reveals that the Recast APD contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out ‘abusive’ claims. In contrast, there is also a strong acknowledgement that some asylum seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (RSD) as a process for recognising refugees, on the assumption that many (although of course not all) of those who apply will be so recognised.

EU Migration and Asylum Law: A Labour Law Perspective

The purpose of this chapter is survey EU migration and asylum law from a labour law perspective. A labour law perspective is concerned with the work relationship, and focuses not only on the worker, but also the employing organisation and any intermediary involved in labour supply. Examining EU migration and asylum law using this multifaceted prism of labour law reveals that EU migration and asylum law has a profound impact on labour law. That impact may be understood has having three different dimensions. (1) It affects the supply and demand for migrant workers. In this sense, migration law can be a form of labour market regulation. (2) migration and asylum law create different migration statuses that in turn determine, at least in part, labour rights. The move to re-introduce status over contract as a determinant of workers’ rights divides the subjects of labour law. (3) Migration status and the fact of migration may be risk factors for labour exploitation. In order to examine these three facets, the particular role of the EU in this field must be explained. Part 1 provides a sketch of the role of states and markets in the regulation of migration. It sets the scene to understand the profound but limited role of the EU in this context. Part 2 examines the status of EU Citizenship, and the forms of liberalised free movement in the EU’s internal market, that principally benefit those who hold the nationality of an EU Member State. I also consider two important derivative statuses for so-called third country nationals (TCNs), who gain EU rights as family members of EU Citizens and so-called ‘posted workers’. Part 3 concerns those TCNs who require permission to live and work in the EU, and provides an overview of some of the different statuses created by EU law, and their labour rights content. Part 4 explores the notion of ‘irregular status’, and the EU Employer Sanctions Directive and the ruling of the Court of Justice of the European Union (CJEU) in Tumer contrasted. In the final part, Part 6, I briefly highlight some features of migration status that are risk factors for labour exploitation. A recent EU Fundamental Rights Agency Report details the links between migration and extreme labour exploitation. Current responses focus unhelpfully on trafficking, or on forced labour, and look in particular to criminal law for solutions. This chapter recalls some responses from within labour law. It is suggested that further research is required into the question of which regulatory approaches and combinations thereof work best to protect migrant workers from exploitation.