The law of asylum in the Middle East and Asia: Developing legal engagement at the frontiers of the international refugee regime

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Abstract

Is someone a refugee if he or she has fled to a state that hasn't signed the Refugee Convention or recognised refugees in its domestic law? If this person isn't a refugee, what rights does he or she have? What protection is owed to him or her by the new state of residence?

From Lebanon through to Malaysia, millions of refugees live in a broad, contiguous swath of states that have not signed up to the core international agreements concerning how refugees should be protected. In such locations, refugees are often treated as "outside of the law" and subject to discrimination, abuse and other serious human rights violations. The answers to the opening questions for these people are too often in the negative and the result can be catastrophic for refugees. Refugees in these locations suffer a range of mistreatment as result of being seen as outside of the law, including irregular status, discriminatory treatment from landlords and employers, sexual harassment and assault with impunity (including at the hands of state officials), arbitrary arrest and indefinite detention (often in conditions so severe as to put their life at risk), and corporal punishments such as canning. This project seeks to systematically explore some recent successes by local providers of legal aid to refugees in such situations and to determine whether these successes can form the basis for a new approach to refugee protection.

Working with four leading providers of legal aid to refugees in Egypt, India, Malaysia and Hong Kong, the project will evaluate the experiences of refugees, lawyers and legal aid organisations in using innovative legal arguments and frameworks to protect refugees. The project will support the mapping of the relevant local legal frameworks through doctrinal legal analysis, interviews and workshops with legal experts, and discussion with refugee community leaders. The project will provide funding to local lawyers to pursue legal advocacy for the rights of refugees drawing on a range of innovative sources of law, including other international treaties, local constitutional law, various local legislative provisions, local jurisprudence, and common-law principles. It will collect detailed stories about 120 of these legal encounters; these stories will be documented over time, using a range of material, and from multiple points of view. Forty of the stories will be turned in to multi-media, digital stories for further online discussion and advocacy.

The project will work closely with project partners. Three international workshops will ensure that partners receive training and capacity building in the research methods of the project and fully participate in the analysis of the data produced by the project. The findings of the project will be shared with the scholarly and professional communities through sub-regional workshops hosted in each of the four countries under study and through the presentation of the findings at a range of international conferences and meetings.

The goal of the project is to support new refugee legal aid programming in the Global South, particularly in places where such programming has been overlooked because either or both the lack of the Refugee Convention and the absence of local refugee legislation. It aims to develop a better understanding of the process of litigation and factors that influence its success. As both the UN more generally and UNHCR more specifically move towards a renewed emphasis on the rule of law, the project will suggest pathways to protection that are consistent with this new emphasis and which pay attention to the expertise and agency of local legal and refugee communities.

Planned Impact

The project seeks to benefit the following groups in the described manner:

(i) Refugees: The primary beneficiary of the project is refugees. The project takes as its point of departure that the existing approach to protection in difficult environments such as exist in the Middle East and Asia is inadequate. The project seeks to examine an alternate approach (based on the law of asylum) that would improve protection through greater legal engagement. A core focus of the inquiry of the project is the experience of legal encounters by refugees; it seeks to support the expansion of legal engagement programming and the development of policies that similarly support legal engagement. As a result of the project, in the long term, it is hoped that refugees will have better access to refugee legal aid that better meets their needs and understandings of protection.

(ii) Current and potential providers of refugee legal aid: The project will work closely with providers of refugee legal aid in four jurisdictions. These organisations (and key individuals within each organisation) will benefit from training, international networking, and very concrete and improved understandings of their legal environment, possibilities for programming, and the effects of their programming. The project partners will also be able to use the findings and key outputs such as the digital stories produced by the project to support their advocacy and fundraising. Beyond the project partners, the wider community of providers of refugee legal aid will benefit from the resources developed by the project (and will be able to participate in the discussion of project findings through workshops and online commentary on the digital stories).

(iii) Other civil society organisations: Other civil society organisations working with refugees in the Middle East and Asia will benefit from an increased awareness and understanding of the possibility of legal engagement and the activities of key actors (project partners) in the region.

(iv) Governmental and intergovernmental organisations: Government ministries responsible for the justice system and the protection of refugees will benefit from a more robust evidence base about the importance and effects of legal engagement for refugee protection. Intergovernmental policy makers, such as UNHCR, will similarly benefit from an expanded evidence base. In the case of UNHCR, this will benefit it by informing its evaluation of its own policies (eg. its urban refugee policy) and its further development of existing policies (eg. on RSD, judicial engagement, and the rule of law).

The impact with respect to each of these beneficiaries will be generated through three pathways: (i) organisational networking and capacity building of project partners; (ii) awareness raising and capacity building of civil society; and, (iii) agenda setting of governmental and inter-governmental policy. The first pathway is primarily local; the latter two pathways will also be developed at regional and/or international levels. All members of the core research team (PI and Co-Is) have experience in delivering impact at the various levels outlined above: public awareness, policy change, and building networks and capacity. For example the PI has consulted to UNHCR and governments on a range of refugee law policy, including legal engagement. He is active and has disseminated past research findings through APRRN meetings and UNHCR's Annual Consultations. The PI and the Co-I Nah serve in leadership capacities in the key networks for dissemination (IDC, APRRN and SRLAN). Members of the project's advisory board are all key individuals within international practice and policy making. Their involvement in the project will ensure the articulation of the findings of the project speak to key emerging issues and further enhance their credibility. The project partners are similarly well-regarded and networked within legal and refugee communities.

This is a dataset from ESRC funded project ES/P00461X/1.