To see the other types of publications on this topic, follow the link: Constitutional right of asylum.
Journal articles on the topic 'Constitutional right of asylum'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 journal articles for your research on the topic 'Constitutional right of asylum.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
Bendor, Ariel L., and Michael Sachs. "The Constitutional Status of Human Dignity in Germany and Israel." Israel Law Review 44, no. 1-2 (2011): 25–61. http://dx.doi.org/10.1017/s0021223700000959.
Full textAbstract:
This article applies comparative law tools to portray eight significant aspects of the constitutional right to human dignity in Germany and Israel. The elements considered are: the constitutional status of human dignity; the nature of the right; its effect on other constitutional rights; its scope and definition; waiver of human dignity; human dignity after death; negative and positive aspects of the right; and the right to asylum. The textual foundations of the respective constitutional guarantees are as different as human dignity's core meaning. In Germany, such guarantees are held to be absolute, immune to restriction, and therefore quite narrow in scope. In Israel, the scope of the right is much broader, but it is subject to limitations when placed against the public interest. Still, based on the findings of our comprehensive comparison, similar dynamics can be identified in Germany and Israel The constitutional coverage of both absolute and relative principles is broad, as are the constitutional lacunas, which are those dimensions of constitutional law neglected by the written constitution.
2
Semyonova, Olga O. "To the Concept of Asylum. Right or Duty of the State?" Herald of Omsk University. Series: Law 17, no. 4 (December 28, 2020): 65–74. http://dx.doi.org/10.24147/1990-5173.2020.17(4).65-74.
Full textAbstract:
Introduction. The article is devoted to the concept and legal characteristics of asylum. The relevance of the topic is due to the eclectic character of the research available in the literature on this issue. Purpose. Definition of the concept of asylum, as well as research on whether asylum is a right or an obligation of the state. Methodology. The study of problems was carried out on the basis of scientific analysis and synthesis, formal-logical, system, comparative-legal methods, the method of interpretation of law, etc. The theoretical basis of the research is the scientific works of domestic and foreign legal scientists, practicing lawyers in the field of general theory of state and law, public international law, constitutional law of Russia and Germany. Results. Asylum should be considered in three aspects: as a legal institution, as a form of protection of human rights, and as a legal position. Asylum as a form of protection is the temporary territorial protection of fundamental human rights granted by the state to a refugee (as defined in the 1951 Convention relating to the status of refugees), whose main characteristics are security, dignity, fundamental human rights and freedoms, family unity and confidentiality. The human right to asylum as temporary protection is a fundamental human right. The provision of permanent protection and integration in the state of asylum is the sovereign right of states. Conclusion. For the effective functioning of the asylum system in Russia and to avoid conflicts in law enforcement practice, it is necessary to consolidate the concept of asylum at the legislative level. When improving the legal framework for granting asylum in Russia, it is necessary to take into account the following characteristics of the right to asylum in accordance with international standards and to provide legal guarantees for granting asylum on a temporary basis.
3
Jones, Thomas C. "Establishing a constitutional ‘right of asylum’ in early nineteenth-century Britain." History of European Ideas 46, no. 5 (March 31, 2020): 545–62. http://dx.doi.org/10.1080/01916599.2020.1746078.
Full text
4
Semenova, Olga O. "INSTITUTE OF THE RIGHT TO ASYLUM IN THE DRAFTS OF CONSTITUTIONAL COMMISSION AND CONSTITUTIONAL MEETING." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 24 (June 1, 2017): 102–11. http://dx.doi.org/10.17223/22253513/24/11.
Full text
5
Kivistö, Hanna-Mari. "Rights of Noncitizens." Contributions to the History of Concepts 9, no. 1 (June 1, 2014): 60–73. http://dx.doi.org/10.3167/choc.2014.090104.
Full textAbstract:
Post–World War II developments concerning citizenship and access as one of the dimensions of citizenship are examined through the prism of noncitizenship and rights, using the drafting of the asylum paragraph of the 1949 Grundgesetz of the Federal Republic of Germany as a specific case study. The aim of this article is to look into the creation of the right to asylum in West Germany, to examine its political history by exploring its development and by searching for its conceptual, political, and rhetorical origins. The article investigates the birth of the unique conceptualization of asylum in the debates of the Parliamentary Council, the constitutional and quasi-parliamentary assembly responsible for the writing of the postwar Basic Law, and examines the political choices, motivations, and compromises behind its creation. To connect the matter of asylum to a wider problematic related to noncitizens and rights, the article benefits from the political philosophy of Hannah Arendt, with reference to her writings on human rights and refugees in the immediate post–World War II period.
6
Świrgoń-Skok, Renata. "Subjective and Territorial Scope of confugium ad ecclesias, and Christian Ideas." Studia Prawnicze KUL, no. 4 (December 31, 2019): 195–211. http://dx.doi.org/10.31743/sp.10614.
Full textAbstract:
Beginnings of asylum (asylum, ius asyli, confugium) in ancient Rome dates back to Romulus times. In subsequent periods of the development of the Roman state, the right of asylum was further developed and included in the norms of material and legal nature. In the Republic Period there were no comprehensive legal regulations regarding ius asyli, although temple asylum was known. It was only during the empire that legal regulation of asylum was in place and two of its forms were developed, confugium ad statuum (asylum, escape to the monument to the emperor) and confugium ad ecclesias (church asylum). That study focuses on answering the question of whether Christian ideas had an impact on the subjective and territorial scope confugium ad ecclesias. After the Edict of Milan in the year 313, Christianity, being able to worship publicly, began to influence the consciousness of the inhabitants of the empire. The Church was conceived as an institution protecting the weak, persecuted and those in need. The right of asylum was also enriched with some Christian elements, especially mercy (misericordia), in relation to individuals entitled to benefit from asylum protection. The territorial extent is also expanded to include places belonging to temples, such as the bishop’s house, cemetery and monasteries. An important novelty was the validity of confugium ad ecclesias in every Christian temple because it was not the emperor’s decision that was in force of ius asylum and the sanctity of the place. However, imperial constitutions played a more important role in shaping the right of asylum in the 4th and 5th centuries than the synodal legislation.
7
Lenaerts, Koen. "Exploring the Limits of the EU Charter of Fundamental Rights." European Constitutional Law Review 8, no. 3 (October 2012): 375–403. http://dx.doi.org/10.1017/s1574019612000260.
Full textAbstract:
Scope of application of Charter – What does ‘implementing Union law’ mean? – Application of v. derogation from EU law – Asylum cases, N.S. – Familiapress, Schmidberger, Viking – Implementing to include derogation – Annibaldi and Dereci – Interpretation of the Charter – ‘Provided for by law’ – The ‘essence’ of a right or freedom – Legitimate objectives and proportionality – Rights both in EU Treaties and in Charter: citizenship – Charter and ECHR – Constitutional Traditions, level of protection and deference – Article 53 not according to Solange, but like Omega and Sayn-Wittgenstein – Principles and Rights
8
Lee, Il. "Korea’s Landmark Case for Improving the Legal Process for Asylum Seekers." Korean Journal of International and Comparative Law 3, no. 2 (November 13, 2015): 171–88. http://dx.doi.org/10.1163/22134484-12340057.
Full textAbstract:
The purpose of this article is to analyze the principle of non-refoulement as applied in four important recent Korea court decisions regarding the asylum-seeking process at ports of entry. Incheon District Court decision 2014 Gu-Hab 30385 and Seoul High Court decision 2014 Nu 52093 concern a non-referral decision; Inchon District Court decision 2014 In 39 concerns illegal airport detention; and Constitutional Court decision 2014 Heon-Ra 592 concerns the right to counsel. In these cases, the courts ordered changes to the previous detention and deportation system and recognized the right to counsel by asylum applicants at ports of entry. As the Korean refugee status determination process is biased towards denying entry to unwelcome foreigners and biased against recognizing refugees, it is important to recognize the duty of the government to develop a better system at ports of entry in order to prevent the unjustified deportation of asylum seekers back to their country of origin.
9
Alfaro-Velcamp, Theresa. "“Don’t send your sick here to be treated, our own people need it more”: immigrants’ access to healthcare in South Africa." International Journal of Migration, Health and Social Care 13, no. 1 (March 6, 2017): 53–68. http://dx.doi.org/10.1108/ijmhsc-04-2015-0012.
Full textAbstract:
Purpose Asylum seekers, refugees and immigrants’ access to healthcare vary in South Africa and Cape Town due to unclear legal status. The purpose of this paper is to shed light on the source of this variation, the divergence between the 1996 South African Constitution, the immigration laws, and regulations and to describe its harmful consequences. Design/methodology/approach Based on legal and ethnographic research, this paper documents the disjuncture between South African statutes and regulations and the South African Constitution regarding refugees and migrants’ access to healthcare. Research involved examining South African jurisprudence, the African Charter, and United Nations’ materials regarding rights to health and health care access, and speaking with civil society organizations and healthcare providers. These sources inform the description of the immigrant access to healthcare in Cape Town, South Africa. Findings Asylum-seekers and refugees are entitled to health and emergency care; however, hospital administrators require documentation (up-to-date permits) before care can be administered. Many immigrants – especially the undocumented – are often unable to obtain care because of a lack of papers or because of “progressive realization,” the notion that the state cannot presently afford to provide treatment in accordance with constitutional rights. These explanations have put healthcare providers in an untenable position of not being able to treat patients, including some who face fatal conditions. Research limitations/implications The research is limited by the fact that South African courts have not adjudicated a direct challenge to being refused care at healthcare facility on the basis of legal status. This limits the ability to know how rights afforded to “everyone” within the South African Constitution will be interpreted with respect to immigrants seeking healthcare. The research is also limited by the non-circulation of healthcare admissions policies among leading facilities in the Cape Town region where the case study is based. Practical implications Articulation of the disjuncture between the South African Constitution and the immigration laws and regulations allows stakeholders and decision-makers to reframe provincial and municipal policies about healthcare access in terms of constitutional rights and the practical limitations accommodated through progressive realization. Social implications In South Africa, immigration statutes and regulations are inconsistent and deemed unconstitutional with respect to the treatment of undocumented migrants. Hospital administrators are narrowly interpreting the laws to instruct healthcare providers on how to treat patients and whom they can treat. These practices need to stop. Access to healthcare must be structured to comport with the constitutional right afforded to everyone, and with progressive realization pursued through a non – discriminatory policy regarding vulnerable immigrants. Originality/value This paper presents a unique case study that combines legal and social science methods to explore a common and acute question of health care access. The case is novel and instructive insofar as South Africa has not established refugee camps in response to rising numbers of refugees, asylum seekers and immigrants. South Africans thus confront a “first world” question of equitable access to healthcare within their African context and with limited resources in a climate of increasing xenophobia.
10
Schlag, Themas. "Gewissen und Recht: Ethisch-theologische Aspekte zur Debatte über das Kirchenasyl." Zeitschrift für Evangelische Ethik 40, no. 1 (February 1, 1996): 38–56. http://dx.doi.org/10.14315/zee-1996-0106.
Full textAbstract:
AbstractSince relevant changes in German constitutionallaw concerning the guaranteed right of territorial asylum for political refugees have taken place, a widespread public debate on interpretation and institutional shaping of this fundamental human right can be registered. As a valid part in this debate, efforts from within the Church have been made to instaU a compensation for the diagnosed loss of lawfullness and to point out the present deficiency of the composed constitutional right, fixed in the new article 16 a of the Grundgesetz. These efforts, manifested in the specific form of sanctuary, put on the agenda the general question of the relevance of christian conscience within the public context.Reminding the protestant tradition of the concept of conscience and confronting it with the philosophical concept of recognition, it can be said that from a christian point of view, the engagement in keeping fundamental human rights established, is a constituent part both of christian self-understanding and meaningful existence in society.
11
Favilli, Chiara. "The standard of fundamental rights protection in the field of asylum: The case of the right to an effective remedy between EU law and the Italian Constitution." Review of European Administrative Law 12, no. 2 (December 31, 2019): 167–83. http://dx.doi.org/10.7590/187479819x15840066091295.
Full textAbstract:
Asylum is an example of multilevel protection of fundamental rights in the European legal space, where different standards apply at both national and European level. As far as EU law is concerned, the current standard of protection is mainly regulated by secondary legislation. However, the search for compromisebased solutions when adopting EU legislative measures nurtures a decreasing trend in terms of the level of protection guaranteed to the rights of asylum seekers or refugees. The result at the national level, at least in some Member States, is the decrease of the standard deriving from national constitutions in the name of European harmonization. The right to an effective remedy in the field of asylum is an example of this phenomenon, with poor obligations deriving from the relevant EU legislation and an approach of the CJEU that appears to be more restrictive than that of the ECtHR. In order to contain this perverse trend, the EU institutions involved in the law-making process and the Court of Justice should take seriously their duty – now firmly grounded on EU primary law provisions, notably in the Charter – to avoid conflicts with national standards and to ensure the coherence with the standard of protection guaranteed to the right to an effective remedy by the ECHR.
12
Lenzerini, Federico. "THE EVOLUTION OF ITALIAN JURISPRUDENCE CONCERNING THE RELATIONSHIP BETWEEN THE CONSTITUTIONAL RIGHT OF ASYLUM AND THE RECOGNITION OF REFUGEE STATUS." Italian Yearbook of International Law Online 19, no. 1 (2009): 137–56. http://dx.doi.org/10.1163/22116133-90000125.
Full text
13
Linden-Retek, Paul. "The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination." German Law Journal 22, no. 4 (June 2021): 506–33. http://dx.doi.org/10.1017/glj.2021.28.
Full textAbstract:
AbstractThis Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.
14
O’Sullivan, Charles, and Delia Ferri. "The Recast Reception Conditions Directive and the Rights of Asylum Seekers with Disabilities: Opportunities, Challenges and the Quest for Reform." European Journal of Migration and Law 22, no. 2 (June 19, 2020): 272–307. http://dx.doi.org/10.1163/15718166-12340077.
Full textAbstract:
Abstract In recent years, the European Union (EU) has, like much of the developed world, experienced a sustained period of inward migration from refugee-producing States in Africa and the Middle-East. This ‘refugee crisis’ has placed a strain not only on the political will of the EU institutions and Member States to find a satisfactory resolution to deal with the flow of migrants, but also on their ability to put in place fair processes for any resulting claims for asylum and to adequately support the needs of asylum seekers while those claims are being processed. This article discusses the latter issue from a discreet angle, focusing on how the EU has addressed the needs of asylum seekers with disabilities. As a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which enjoys sub-constitutional status within the EU legal order, the EU is obligated to interpret all legislation in light of the Convention. Thus, this article seeks to assess the degree to which Directive 2013/33/EU on the material reception conditions for asylum seekers can protect and promote the rights of asylum seekers with disabilities and fulfill the ‘human rights model of disability’ embedded within the CRPD. It also assesses the most recent proposal to replace the Directive, and examines whether the potential shortcomings within it have been addressed thus far. Ultimately, it finds that the ambiguities and lack of procedural certainty within the current Directive provide too much room to derogate from the standards arguably mandated by the Convention, and these have yet to be addressed within the new Proposal.
15
Zalar, Boštjan. "Constitutionalisation of the Implementing Act of the Procedures Directive: The Slovenian Perspective." European Journal of Migration and Law 10, no. 2 (2008): 187–217. http://dx.doi.org/10.1163/157181608x317345.
Full textAbstract:
AbstractThe author identifies the initial challenging questions that will be posed to judges in relation to the application of implementing act and the Procedures Directive. The arguments put forth are directed towards the need for interpreting the transposition act and the minimum standards from the Procedures Directive in a way that would be consistent with the international and constitutional human rights law standards. The actual situation and prospects of this challenge for the case of Slovenia are examined from the period before and after the adoption of the Procedures Directive through the analysis of administrative practice and jurisprudence in relation to the grounds for abuse of the asylum procedure within the accelerated procedure, the procedural requirements for the use of country of origin information and the right to free legal assistance. In the section on the main challenges for the protection of fundamental rights in relation to the Procedures Directive, the author focuses on methods of interpreting Community law, the question of the scope of Community law, the concept of judicial cooperation for the protection of human rights, conditions for annulling Community provisions due to violation of fundamental rights, and the effects of international law standards on the protection of fundamental rights under Community law.
16
Kanstroom, Daniel. "The “Right to Remain Here” as an Evolving Component of Global Refugee Protection: Current Initiatives and Critical Questions." Journal on Migration and Human Security 5, no. 3 (September 2017): 614–44. http://dx.doi.org/10.1177/233150241700500304.
Full textAbstract:
This article considers the relationship between two human rights discourses (and two specific legal regimes): refugee and asylum protection and the evolving body of international law that regulates expulsions and deportations. Legal protections for refugees and asylum seekers are, of course, venerable, well-known, and in many respects still cherished, if challenged and perhaps a bit frail. Anti-deportation discourse is much newer, multifaceted, and evolving. It is in many respects a young work in progress. It has arisen in response to a rising tide of deportations, and the worrisome development of massive, harsh deportation machinery in the United States, Germany, the United Kingdom, France, Mexico, Australia, and South Africa, among others. This article's main goal is to consider how these two discourses do and might relate to each other. More specifically, it suggests that the development of procedural and substantive rights against removal — as well as rights during and after removal — aids our understanding of the current state and possible future of the refugee protection regime. The article's basic thesis is this: The global refugee regime, though challenged both theoretically and in practice, must be maintained and strengthened. Its historical focus on developing criteria for admission into safe states, on protections against expulsion (i.e., non-refoulement), and on regimes of temporary protection all remain critically important. However, a focus on other protections for all noncitizens facing deportation is equally important. Deportation has become a major international system that transcends the power of any single nation-state. Its methods have migrated from one regime to another; its size and scope are substantial and expanding; its costs are enormous; and its effects frequently constitute major human rights violations against millions who do not qualify as refugees. In recent years there has been increasing reliance by states on generally applicable deportation systems, led in large measure by the United States' radical 25 year-plus experiment with large-scale deportation. Europe has also witnessed a rising tide of deportation, some of which has developed in reaction to European asylum practices. Deportation has been facilitated globally (e.g., in Australia) by well-funded, efficient (but relatively little known) intergovernmental idea sharing, training, and cooperation. This global expansion, standardization, and increasing intergovernmental cooperation on deportation has been met by powerful — if in some respects still nascent — human rights responses by activists, courts, some political actors, and scholars. It might seem counterintuitive to think that emerging ideas about deportation protections could help refugees and asylum seekers, as those people by definition often have greater rights protections both in admission and expulsion. However, the emerging anti-deportation discourses should be systematically studied by those interested in the global refugee regime for three basic reasons. First, what Matthew Gibney has described as “the deportation turn” has historically been deeply connected to anxiety about asylum seekers. Although we lack exact figures of the number of asylum seekers who have been subsequently expelled worldwide, there seems little doubt that it has been a significant phenomenon and will be an increasingly important challenge in the future. The two phenomena of refugee/asylum protections and deportation, in short, are now and have long been linked. What has sometimes been gained through the front door, so to speak, may be lost through the back door. Second, current deportation human rights discourses embody creative framing models that might aid constructive critique and reform of the existing refugee protection regime. They tend to be more functionally oriented, less definitional in terms of who warrants protection, and more fluid and transnational. Third, these discourses offer important specific rights protections that could strengthen the refugee and asylum regime, even as we continue to see weakening state support for the basic 1951/1967 protection regime. This is especially true in regard to the extraterritorial scope of the (deporting) state's obligations post-deportation. This article particularly examines two initiatives in this emerging field: The International Law Commission's Draft Articles on the Expulsion of Aliens and the draft Declaration on the Rights of Expelled and Deported Persons developed through the Boston College Post-Deportation Human Rights Project (of which the author is a co-director). It compares their provisions to the existing corpus of substantive and procedural protections for refugees relating to expulsion and removal. It concludes with consideration of how these discourses may strengthen protections for refugees while also helping to develop more capacious and protective systems in the future. “Those guarantees of liberty and livelihood are the essence of the freedom which this country from the beginning has offered the people of all lands. If those rights, great as they are, have constitutional protection, I think the more important one — the right to remain here — has a like dignity.” Supreme Court Justice William O. Douglas, 19522 “We need a national effort to return those who have been rejected … and we are working on that at the moment with great vigor.” Angela Merkel, October 15, 20163
17
Schmidt, Paul Wickham. "An Overview and Critique of US Immigration and Asylum Policies in the Trump Era." Journal on Migration and Human Security 7, no. 3 (August 14, 2019): 92–102. http://dx.doi.org/10.1177/2331502419866203.
Full textAbstract:
Executive Summary This article provides an overview and critique of US immigration and asylum policies from the perspective of the author’s 46 years as a public servant. The article offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens), associate members (lawful permanent residents, refugees, and “asylees”), friends (nonimmigrants and holders of temporary status), and persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and constitutional rights that extend to noncitizens. It ends with a series of recommendations for reform of the US asylum system, and a short conclusion.
18
Thym, Daniel. "The End of Human Rights Dynamism? Judgments of the ECtHR on ‘Hot Returns’ and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy." International Journal of Refugee Law 32, no. 4 (December 1, 2020): 569–96. http://dx.doi.org/10.1093/ijrl/eeab004.
Full textAbstract:
Abstract Two controversial rulings of the Grand Chamber of the European Court of Human Rights (ECtHR) deserve global attention, since they declined to scrutinize on human rights grounds the prevalent move towards enhanced border controls and externalization practices that define European asylum law and policy at this juncture. In ND and NT, judges deemed the Spanish policy of ‘hot returns’, without access to basic procedural guarantees, of those climbing border fences to be compatible with human rights. A few weeks later, the Grand Chamber thwarted enduring hopes for judicial innovation in MN when it reasserted a ‘primarily territorial’ understanding of State jurisdiction and declared inadmissible the claim of a Syrian family from the war-torn town of Aleppo to a humanitarian visa. While the decision on humanitarian visas means that ‘non-arrival’ policies cannot usually be challenged, critical inspection of the ND and NT judgment displays a confounding combination of restrictive arguments and dynamic elements beneath the surface of a seemingly clear-cut outcome. This lack of judicial precision, which was bound to cause heated debate about the practical implications of the judgment, reflects the basic tension between the prohibition of refoulement and the absence of a right to asylum in classic accounts of international refugee law. It will be argued that the judicial vindication of the Spanish ‘hot returns’ policy does not call into question non-refoulement obligations; it aims at identifying graded procedural standards for different categories of refugees and migrants. By contrast, the novel insistence on the abstract availability of legal channels of entry presents itself as a humanitarian fig leaf for the acceptance of strict control practices. At an intermediate level of abstraction, the two rulings mark a watershed moment, indicating the provisional endpoint of an impressive period of interpretative dynamism on the part of the ECtHR, which has played a critical role in the progressive evolution of international refugee and human rights law over the past three decades. Experts in asylum law who have become accustomed to supranational courts advancing the position of individuals will benefit from the insights of constitutional theory and the social sciences to rationalize why the former vigour has given way to a period of hesitation and potential standstill, at least in Europe. This analysis employs the perspective of strategic litigation to discuss contextual factors hindering the continued dynamism of human rights jurisprudence in Europe at this juncture.
19
Gibney, Matthew J. "Crisis of Constraint: The Federal Republic of Germany's Current Refugee Imbroglio." Government and Opposition 28, no. 3 (July 1, 1993): 372–93. http://dx.doi.org/10.1111/j.1477-7053.1993.tb01323.x.
Full textAbstract:
THE WEST GERMAN STATE HAS FACED TWO DAUNTING challenges brought about by the movement of refugees into its territory since the end of the Second World War. The first occurred immediately after the end of the war and involved the resettlement of ten million refugees of German nationality expelled from East European countries and 3.5 million evacuees from Soviet-controlled East Germany. It was a challenge that was met with dramatic success. With the help of a number of governmental programmes, and a rapidly expanding economy, these refugees were fully integrated into West German society in the two decades after 1945. Indeed, by the end of the 1960s, the success of this massive resettlement attempt, along with the country's uniquely broad constitutional article which recognized a right of asylum for all political refugees, had rendered the Federal Republic, in spite of its catastrophic past, something of a model for all states in the handling of refugees
20
Fontana, Sina. "MIGRATION MANAGEMENT WITHIN FAMILY REUNIFICATION." Administrative law and process, no. 4 (27) (2019): 47–64. http://dx.doi.org/10.17721/2227-796x.2019.4.05.
Full textAbstract:
Family reunification is one of the purposes of stay within the Residence Act. The granting of the residence permit is fundamentally designed as a claim and must be granted if the requirements are met. In the course of ongoing forced migration, family reunification has become the focus of debates for ways to limit refugee migration. Since Article 6, Paragraphs 1 and 2 of the German Basic Law on the protection of marriage and family do not give rise to a right to entry, although its scope of protection must be taken into account when designing regulations on family reunification, the legislative scope for action is limited. The German legislature has decided that family reunification should be limited for persons with subsidiary protection status. Subsidiary protection is an element of protection that is shaped by EU law, which occurs alongside national asylum law and refugee protection, which is also shaped by EU law. Different requirements apply to these protective elements. Upon recognition, a humanitarian residence permit is issued, which differs in length depending on the protection status. While in the case of recognition as a person entitled to asylum or refugee status, the residence permit is initially issued for a period of one year, the duration in the case of subsidiary protection is only one year. In all cases there is the possibility of an extension. This different length of stay and the lower prospect of staying are the starting point for the restriction of family reunification for persons entitled to subsidiary protection in Section 36a of the Residence Act. As specified in the regulation as an example, family members of a person with subsidiary protection status can be granted a residence permit for the humanitarian reasons. The family reunification is now made dependent on the existence of further prerequisites in addition to family ties and is also designed not as a right but as a discretionary clause. In addition, the number of visas is limited to 1000 per month. Concerns about this restriction of family reunification were raised, in terms of possible violation of Article 6 Paragraphs 1 and 2 and Article 3 Paragraph 1 (Equality before the law) of the German Basic Law. Based on this, the following article carries out a constitutional analysis.
21
Moreno-Lax, Violeta. "Solidarity’s reach." Maastricht Journal of European and Comparative Law 24, no. 5 (October 2017): 740–62. http://dx.doi.org/10.1177/1023263x17742338.
Full textAbstract:
Solidarity has a key role to play in the allocation of responsibility for refugee protection, as is implied by Article 80 TFEU. Yet, EU law fails to provide a definition and a clear indication of what it entails, especially as for its external reach. Against this background, this article embarks on a theoretical/practical investigation of the normative bases of ‘EU solidarity’. Building on a cosmopolitan vision, it unpacks the multi-polar/multi-functional nature of the concept, as a founding value and constitutional (meta-)principle of EU law. In such a guise, it will posit that solidarity gives rise to an (autonomous) primary law duty of responsibility sharing/good faith cooperation that requires ‘fairness’ and ‘respect for fundamental rights’, as a uniform/all-pervading structural command generally applicable across policy fields. So configured, solidarity governs intra/extra-EU relations (based on the principle of coherence). The institutional, material, and procedural aspects of solidarity are thus explored to distil its horizontal, vertical, and systemic facets. Combined, they arguably produce a triple duty of conduct, loyalty, and result that permeates EU integration as a whole, calling into question the self-serving approach currently guiding the Common European Asylum System’s (CEAS) ‘external dimension’, as exemplified by the EU-Turkey ‘deal’.
22
Asta, Francesca. "Arbitrary Decision-making and the Rule of Law." Etikk i praksis - Nordic Journal of Applied Ethics, no. 2 (December 21, 2020): 107–36. http://dx.doi.org/10.5324/eip.v14i2.3491.
Full textAbstract:
Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution
23
Mujuzi, Jamil Ddamulira. "Mauritian Courts and the Protection of the Rights of Asylum Seekers in the Absence of Dedicated Legislation." International Journal of Refugee Law 31, no. 2-3 (June 2019): 321–42. http://dx.doi.org/10.1093/ijrl/eez036.
Full textAbstract:
Abstract Mauritius became a party to the 1951 Refugee Convention through succession but is yet to accede to the 1967 Protocol relating to the Status of Refugees. It has signed but not yet ratified the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and has not signed the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. Unlike many other countries in Africa, Mauritius has not yet enacted domestic legislation dealing with the issue of refugees. However, international human rights obligations and domestic legislation allow the rights of asylum seekers to be protected in Mauritius. This article argues that the principle of non-refoulement bars Mauritius from extraditing or deporting an asylum seeker to a country where he or she will be persecuted or where his or her rights will be violated, and that asylum seekers and citizens are equally protected by the Constitution with regard to absolute rights. However, limitations may be imposed on asylum seekers in their enjoyment of non-absolute rights. For such limitations to be lawful, they must aim to achieve the objectives stipulated in section 3 of the Constitution.
24
Savino, Mario. "The Refugee Crisis as a Challenge for Public Law: The Italian Case." German Law Journal 17, no. 6 (November 1, 2016): 981–1004. http://dx.doi.org/10.1017/s2071832200021568.
Full textAbstract:
Since 2014, the refugee crisis has determined a sharp increase in the number of unauthorized arrivals on the Italian shores. However, contrary to what happened in other less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full compliance with EU norms regulating external border controls with the observance of the most compelling humanitarian obligations. The results have been mixed. Both the functionalist bias that is inherent in the administrative action and the legislative inertia during the crisis have produced a detrimental impact on the fundamental freedoms of the migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative authorization for the imposition of coercive means in the context of the “hotspot approach”; (2) the deficiencies of the Italian system for the reception of asylum seekers and refugees, which became a source of destabilization of the Dublin system and the Schengen area; (3) the low level of due process protection that is guaranteed to migrants that are subject to return procedures; and (4) the problematic need to cooperate with third countries that do not adequately protect human rights. The Italian case illustrates a distinctive, yet more general trend. For member states who are geographically exposed to migration flows and whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need more—rather than less—Europe because they cannot stop the migration inflow. And they need to effectively manage it because it is the only way to keep the Schengen area alive—and not to be excluded from it.
25
Camminga, B. "“Gender Refugees” in South Africa: The “Common-Sense” Paradox." Africa Spectrum 53, no. 1 (April 2018): 89–112. http://dx.doi.org/10.1177/000203971805300105.
Full textAbstract:
South Africa is the only country on the African continent that constitutionally protects transgender asylum seekers. In light of this, it has seen a marked rise in the emergence of this category of person within the asylum system. Drawing on research carried out between 2012 and 2015, I argue that transgender-identified refugees or “gender refugees” from Africa, living in South Africa, rather than accessing refuge continue to experience significant hindrances to their survival comparable with the persecution experienced in their countries of origin. I argue this is in part due to the nature of their asylum claim in relation to gender as a wider system of “common-sense” dichotomous administration, something which remains relatively constant across countries of origin and refugee-receiving countries. Rather than being protected gender refugees, because they are read as violating the rules of normative gender, they find themselves paradoxically with rights, but unable to access them.
26
Берченко, Григорій Валерійович. "Constitutional Right To Resist." Problems of Legality, no. 151 (December 8, 2020): 18–30. http://dx.doi.org/10.21564/2414-990x.151.215651.
Full text
27
Bernstein, Lawson. "Constitutional Right At Issue." Psychiatric News 41, no. 12 (June 16, 2006): 31. http://dx.doi.org/10.1176/pn.41.12.0031a.
Full text
28
Jack Geiger, H. "US doctors defend right to asylum." Lancet 347, no. 9018 (June 1996): 1816. http://dx.doi.org/10.1016/s0140-6736(96)91624-4.
Full text
29
Lazaridis, Gabriella, and Mariangela Veikou. "RETRACTED: The Right to Asylum and EU Asylum Procedure in Greece." Sociological Research Online 20, no. 2 (May 2015): 91–102. http://dx.doi.org/10.5153/sro.3654.
Full text
30
Slingenberg, Lieneke. "Asylum – A Right Denied: A Critical Analysis of European Asylum Policy." International Journal of Refugee Law 27, no. 3 (August 27, 2015): 522–25. http://dx.doi.org/10.1093/ijrl/eev041.
Full text
31
Penasa, Simone, and Graziella Romeo. "Sovereignty-based Arguments and the European Asylum System: Searching for a European Constitutional Moment?" European Journal of Migration and Law 22, no. 1 (February 26, 2020): 11–38. http://dx.doi.org/10.1163/15718166-12340067.
Full textAbstract:
Abstract The article expresses a twofold claim: a) sovereignty-based argument finds a fertile ground in EU’s weaknesses in terms of asylum strategy and b) sovereignty arguments in asylum issues can (and must) be confronted with the legal instruments afforded by the existing framework of EU law. To develop the argument, this article is divided into two parts. The first part addresses sovereignism in asylum law and policies, by exploring sovereignist claims and their translation into domestic legislation and policies, with specific reference to the Italian context. It then analyses the recent changes in asylum strategy, within the EU, to test to what extent arguments based on sovereignty stand as a bulwark against full cooperation among EU member states. In the second part, the article examines the legal instruments that EU institution can use and develop to implement solidarity and reduce the margin for the use of sovereignty-based arguments in asylum policies.
32
Oudejans, Nanda. "The Right to Have Rights as the Right to Asylum." Netherlands Journal of Legal Philosophy 43, no. 1 (March 2014): 7–26. http://dx.doi.org/10.5553/njlp/221307132014043001002.
Full text
33
Ryan, James E. "A Constitutional Right to Preschool?" California Law Review 94, no. 1 (January 1, 2006): 49. http://dx.doi.org/10.2307/20439027.
Full text
34
Maillot, Agnès. "Right to work: Dáil narratives on asylum." Studies in Arts and Humanities 4, no. 2 (January 30, 2019): 19–32. http://dx.doi.org/10.18193/sah.v4i2.139.
Full text
35
Nicolosi, Salvatore Fabio. "Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law." International Human Rights Law Review 4, no. 2 (November 13, 2015): 303–32. http://dx.doi.org/10.1163/22131035-00402005.
Full textAbstract:
Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.
36
LAWRENCE, Jessica C. "Constitutional Pluralism's Unspoken Normative Core." Cambridge Yearbook of European Legal Studies 21 (November 4, 2019): 24–40. http://dx.doi.org/10.1017/cel.2019.12.
Full textAbstract:
AbstractThis article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.
37
Borland, Emma Jane. "Fairness and the right to legal aid in asylum and asylum related cases." International Journal of Migration and Border Studies 2, no. 3 (2016): 245. http://dx.doi.org/10.1504/ijmbs.2016.077643.
Full text
38
Stevens, Dallal. "The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum." Modern Law Review 61, no. 2 (May 20, 2003): 207–22. http://dx.doi.org/10.1111/1468-2230.00138.
Full text
39
Johnston, Vanessa. "Australian asylum policies: have they violated the right to health of asylum seekers?" Australian and New Zealand Journal of Public Health 33, no. 1 (February 2009): 40–46. http://dx.doi.org/10.1111/j.1753-6405.2009.00336.x.
Full text
40
Freedman, Jane. "Women’s Right to Asylum: Protecting the Rights of Female Asylum Seekers in Europe?" Human Rights Review 9, no. 4 (April 11, 2008): 413–33. http://dx.doi.org/10.1007/s12142-008-0059-1.
Full text
41
Wiedmer, Caroline. "Forced Entanglements: Stories of Expulsion, Sovereign Power and Bare Life." Kulturwissenschaftliche Zeitschrift 3, no. 2 (May 29, 2019): 67–85. http://dx.doi.org/10.2478/kwg-2018-0016.
Full textAbstract:
Abstract This article explores the contemporary practice of forced detainment and expulsion in Switzerland from two distinct perspectives: the 1995 law on coercive measures that first introduced the practice in Switzerland, as well as the cultural context that led to its constitution, and the documentary Le vol spécial by Fernand Melgar, made some fifteen years after the law was first introduced, which records the law’s consequences for the daily lives of rejected asylum seekers awaiting expulsion. Using Giorgio Agamben’s theoretical work on the states of exception and bare life, I seek to uncover what I call the narrative of expulsion, arguing that narrative politics operates on a number of interrelated levels not only to shape the context and practice of forced expulsion that undergird the asylum politics in Switzerland, and other countries, today, but ultimately also to change the post-enlightenment narrative of the political subject and challenge the efficacy of the Human Rights regime the world over.
42
BENALI, Djamila. "PROTECTION OF THE RIGHT OF ASYLUM IN INTERNATIONAL LAW." RIMAK International Journal of Humanities and Social Sciences 03, no. 03 (March 1, 2021): 152–62. http://dx.doi.org/10.47832/2717-8293.3-3.13.
Full textAbstract:
The question of asylum was considered a key issue in the International Code of charters and the Code of Human Rights. It is a human right enshrined in international conventions and confirmed by regional conventions. The 1951 Convention for the Protection of Refugees and the 1967 Protocol relating to Refugees constitute a fundamental reference for the protection of the right of asylum. In addition, international humanitarian law has also contributed to the protection of the right of asylum through the provisions of the Fourth Geneva Convention of 1949.
43
Utami, Dian Wahyu, Rahmat Saleh, and Irin Oktafiani. "Indonesia's Constitutional Immigration Policy: A Case of Rohingya Ethnic Group Refugees." Journal of Indonesian Social Sciences and Humanities 8, no. 2 (December 28, 2018): 119–32. http://dx.doi.org/10.14203/jissh.v8i2.84.
Full textAbstract:
In this increasingly dynamic world, international migration especially international refugee and asylum seeker has become a hot issue in many countries, including Indonesia. For example, a communal conflict between Rakhine and Rohingya ethnic groups in Myanmar in 2012 calls the attention of the international community, especially in Southeast Asia regions. The socio-political situation forced the ethnic minority Rohingya to leave Myanmar to move (migrate) or seek asylum to the neighbouring countries, such as Indonesia. In Indonesia, Rohingya refugees are mostly surviving in the boats "Manusia Perahu camp in Aceh since 2015. The influx of refugees such as Rohingya into Indonesia constitutes a new problem in constitutional and social terms. This paper aims to explain Indonesia's constitutional immigration policy and the public responses to asylum seekers taken from the case of Rohingya ethnic group in Indonesia. This study uses the literature review methods to explain the social problems and application of Indonesian regulations towards Rohingya refugees in the boats Manusia Perahu camp in Aceh. This study finds that a more explicit regulation is needed to regulate the entry of refugees, so that the locals will not be disturbed and still create security between countries.
44
Deacon, H. J. (Jaco). "The balancing act between the constitutional right to strike and the constitutional right to education." South African Journal of Education 34, no. 2 (May 26, 2014): 1–15. http://dx.doi.org/10.15700/201412071108.
Full text
45
Hong, Seok-No. "The Constitutional Citizen and the Constitutional Right to Civic Education." Korea Law Review 86 (September 30, 2017): 271–98. http://dx.doi.org/10.36532/kulri.2017.86.271.
Full text
46
Kartashov, Aleksandr S. "The Right to a City as a Constitutional Right." Constitutional and municipal law 4 (April 15, 2020): 73–80. http://dx.doi.org/10.18572/1812-3767-2020-4-73-80.
Full text
47
Gammeltoft-Hansen, Hans, and Thomas Gammeltoft-Hansen. "The Right to Seek – Revisited. On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU." European Journal of Migration and Law 10, no. 4 (2008): 439–59. http://dx.doi.org/10.1163/157181608x380219.
Full textAbstract:
AbstractThis article compares the "right to seek and enjoy asylum" enshrined in Art. 14 of the Universal Declaration of Human Rights with the current EU policy developments to "externalize" or "extraterritorialise" migration control and refugee protection. Examining the genesis of Art. 14 during the negotiations of the Universal Declaration, it is argued that while Art. 14 clearly falls short of granting a substantive right to be granted asylum, its formulation was intended to maintain a procedural right – the right to an asylum process. While the Universal Declaration is not a legally binding instrument, going back to the fundamental norms expressed herein nonetheless provides an important starting point for evaluating current policies, especially in light of recent critiques against overly expansive interpretation of human rights law. As such, the article concludes that the current EU policies to shift migration control and refugee protection away from Europe in important respects contravenes "the right to seek asylum" as it was conceived exactly 60 years ago.
48
Rizki, Aufar. "Presence of The Right Wing: Threatening the Refugee Crisis?" Jurnal Sentris 1, no. 1 (August 19, 2020): 97–120. http://dx.doi.org/10.26593/sentris.v1i1.4160.97-120.
Full textAbstract:
The presence of the right wing in The Western Europe, such as The Front National in French that is led by Marine Le Pen, Alternative Für Deutschland in Germany by Alexander Gauland, and Partij Voor de Vrijheid by Geert Wilders in Netherlands, are the whimsicality phenomenon in European political scene. The rise of the right wing groups in some countries, could impend the pluralism value in the respective country. Furthermore, this movement will be inducing the humanitarian crisis, specifically the refugee crisis. European Union has asylum policy for the refugees, but precisely the migrants who received the asylum policy are somehow causing the instability and insecurity in the country they are migrated to. That is a dilemma of conducting the asylum policy; first consideration is to receive the refugees with main purpose of decreasing the humanitarian crisis, but on the other hand it could induce instability, or other consideration is to close the asylum policy as the right wing postulate, which will increase refugee crisis but give more stable nation.
49
Potrzeszcz, Jadwiga. "The natural human right to security and security as a constitutional human right." Studia Prawnicze KUL, no. 2 (December 30, 2020): 219–33. http://dx.doi.org/10.31743/sp.5606.
Full textAbstract:
In this article it was formulated the thesis on the existence of a natural human right to security, and subsequently the analyse of the issue of the relationship between the natural human right to security and security as a constitutional human right. The primary objective of the research was to answer the question whether the natural human right to security influences the existence of security as a human right, guaranteed by positive law, in particular in constitutional law.
The above analysis of the provisions of the Polish Constitution proved that the right to security as a constitutional human right was not expressly stated in any of these provisions. Certainly, the formulation of an explicit constitutional human right to security raises concerns about the scope of the citizen’s ability to enforce this right from the state, e.g. by means of a constitutional complaint.
Regardless of the difficulties raised, it is worth interpreting the constitutional human right to security from all the regulations of the Polish Constitution as a function of fundamental rights. In justified individual cases of violations, the constitutional human right to security may be derived from art. 30 of the Polish Constitution, which stipulates that the inherent and inalienable dignity of man is the source of his rights and freedoms.
50
HAILBRONNER, KAY. "The Right to Asylum and the Future of Asylum Procedures in the European Community." International Journal of Refugee Law 2, no. 3 (1990): 341–60. http://dx.doi.org/10.1093/ijrl/2.3.341.
Full text