Peter Billings

The Treatment of Asylum Seekers in the UK

Immigration and asylum policy has been one of the most politically and publicly divisive issues in the United Kingdom and other liberal democracies in the last 20 years. Reception conditions are central to asylum policy and, therefore, at the heart of this discord. Asylum policy has been a key issue in elections and sparked conflicts between politicians and the judiciary. Challenges to the procedures and policies established by the United Kingdom to give effect to its ‘protection’ obligations to non‐nationals have been the loci of significant developments in the evolution of public law principles and norms. The drama over asylum seekers and social welfare has arisen because of dwindling political and popular support for refugees and the enactment of a statutory bill of rights – the Human Rights Act 1998 (HRA) – which has acted as a normative counterweight to restrictive asylum welfare policies.

Irregular maritime migration and the Pacific Solution Mark II: back to the future for refugee law and policy in Australia?

Following a rise in the number of irregular maritime arrivals seeking refugee protection in Australia, and two successful legal challenges to their refugee processing policies, the Labor Government has resuscitated notorious aspects of the ‘Pacific Solution’ as part of a ‘no advantage’ policy. This strategy seeks to deter ‘irregular’ asylum seekers by treating them no more favourably than refugees seeking protection from overseas awaiting entry to Australia through regular refugee/humanitarian channels. In furtherance of this ‘no advantage’ policy, extraterritorial processing on Nauru and Papua New Guinea has been re-introduced and ‘excision’ provisions are to be extended to mainland Australia placing the continent outside of its ‘migration zone’ and, therefore, asylum seekers beyond the regular laws and processes for protection seekers. This article analyses the seismic shifts in asylum seeker policy that have occurred in Australia over the recent past and the politics underpinning them.

Juridical exceptionalism in Australia: Law, nostalgia and the exclusion of others

Federal government interventions designed to address irregular maritime arrivals and socio-economic conditions in particular Indigenous communities in the Northern Territory have been characterised by juridical exceptionalism – the partial suspension or withdrawal of the juridical order. Perceived emergencies – broadly, border (in)security and physical (in)security – have resulted in the creation of legal spaces in which ‘Others’ are constituted within and without the juridical order by the sovereign. This article critically explores these exceptional spaces – ‘offshore excised places’, immigration detention centres and ‘prescribed’ parts of the Northern Territory – and investigates the ethical, political and historical rationalities underpinning them. Crucially, this includes consideration of how social memories have influenced the regulation of irregular maritime arrivals and the creation of emergency response laws in the Northern Territory. It is argued that social, ‘governmental’ memories about the efficacy and legacy of law/policy responses to border insecurity and the socio-economic problems facing Indigenous communities have, to a degree, been infected by nostalgia. This yearning for the restoration of past experience is associated with a sense of loss, including a loss of state sovereignty due to irregular maritime arrivals, a loss of control over (conditions in) Aboriginal communities and a loss of national unity and identity. This longing has activated politician’s ‘retro’ ideas and the refashioning of legal responses to current social dilemmas. Arguably, such strategies risk discounting or excusing the failings of past social policies, leaving individuals to bear the adverse effects once more.

The Influence of Human Rights Law on the Procedural Formalities of the Asylum Determination Process

The article examines the extent to which the due process norms enshrined in international human rights law have been applied to, influenced, and informed the law and policy of refugee‐receiving states. Such an inquiry is necessary because the international protection regime for refugees is under threat from state practices which are almost universally abrogating procedural standards of fairness in refugee determination processes. Furthermore, domestic due process standards, or natural justice traditions have proved largely impotent in preventing or moderating this lowering of legal procedural safeguards. Thus, it becomes necessary to examine the protection potentially available under human rights law. The examination of the relevant provisions in the UDHR, ICCPR, ECHR AND ACHR comprise the main body of the article, with particular emphasis placed on the jurisprudence of the European Court of Human Rights and European Commission in respect of Article 6(1) and Article 5(4).