OpenUCT :: Browsing by Author "Khan, Fatima"

Browsing by Author "Khan, Fatima"

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Open Access
Centring stigmatised underserved groups and limiting State competence to counter structural violence:: (Im)permissibility in International Law and South African Law of arrest and detention of undocumented asylum seekers during the asylum application process
(2023) Solomons, Nasreen; Khan, Fatima
South Africa has the competence to regulate the entry and stay of asylum seekers in the country, and to introduce measures of arrest and detention in asylum applications. It enacted the Refugees Act in 1998, which gave effect to its international law obligations in terms of the three specific international and regional refugee law conventions: the 1951 UN Convention Relating to the Status of Refugees, the 1967 UN Protocol relating to the status of refugees and the 1969 OAU Convention governing the specific aspects of refugee problems in Africa. It committed to providing meaningful protection to displaced persons who fled their home countries out of force and need. A key part of this commitment is to provide displaced persons seeking asylum with documentation to regularise their stay in the country. This study is concerned with South Africa's treatment of undocumented asylum seekers. South Africa's commitments in terms of the Act and to its international law obligations have been undone by its current legal framework and practices. Of particular importance is not only the State's failure to protect undocumented asylum seekers from arrest and detention through meaningful assistance during the application process, but also its preference to keep them in a state of being undocumented and therefore vulnerable to arrest and detention. The recent Refugees Amendment Act 11 of 2017 introduced measures that make it easier to arrest and detain undocumented asylum seekers, creating a precarious environment for those most in need of protection during the asylum application process. The study argues that the 2017 amendments (legal framework) and implementation (practices) create an untenable environment for undocumented asylum seekers and amounts to State structural violence. This finding of structural violence can never be permissible in international and constitutional law; therefore, South Africa's competence to introduce measures of arrest and detention in asylum applications must be limited. To respond to the structural violence, any approach formulated and applied must centre the rights and needs of this underserved group and guarantee positive steps are taken to undo structural violence. The study therefore puts forward standards to the limitation of South Africa's competence to regulate arrest and detention in the asylum application process. These standards may form a basis for a new legal and practical framework that centres the rights and needs of undocumented asylum seekers, protects them more substantively, and brings the State into compliance with its international and constitutional obligations.
Open Access
Enforcement of refugee rights in South Africa through public interest litigation in the spirit of Ubuntu
(2024) Baldauf, Marie Charlotte; Khan, Fatima
This master's thesis addresses the challenge of ineffective enforcement of refugee rights in South Africa, focusing on the right of refugees to seek and enjoy asylum and undergo a fair refugee status determination procedure. The dissertation proposes a solution through the exploration of public interest litigation (PIL) as a method to support refugees in asserting their rights. The central argument posits that enforcing refugee rights through PIL aligns with the African philosophy of Ubuntu, emphasizing interconnectedness and humanity. The thesis contends that PIL, deeply rooted in Ubuntu, can serve as a catalyst for change, fostering a compassionate and inclusive approach to refugee protection in South Africa. The dissertation examines the compatibility between Ubuntu and human rights principles, showcasing Ubuntu as a persuasive tool in PIL cases advocating for refugee rights. The thesis challenges critiques against the applicability of Ubuntu in a legal setting and advocates for acknowledging its potential to serve as a foundation for public morality. Utilizing Ubuntu as an interpretive instrument creates opportunities to incorporate a wide range of human rights into legal discussions, offering a guiding structure for addressing persistent disputes concerning justice. By invoking Ubuntu in PIL, legal practitioners can safeguard constitutional rights while promoting broader public interest and transformative societal change. The research delves into the provisions of international refugee law and domestic South African law, enriched by a comprehensive review of various published articles, journals, and case law related to PIL concerning access to refugee status determination procedures in South Africa. The thesis concludes by asserting that through justice, empathy, and solidarity, the enforcement of refugee rights becomes a manifestation of South African societal values. By embracing the spirit of Ubuntu, South Africa has the potential to emerge as a beacon of hope and a model for effective refugee protection globally
Open Access
From Persecution to Detention: A reflection on the non-application of Article 31(1) of the 1951 Refugee Convention on asylum seekers in Zambia
(2020) Longwe, Abel; Khan, Fatima
Despite Zambia's ratification of several of international and regional human rights instruments, the country's domestic legislation frustrates its international obligations in so far as protection of asylum seekers human rights is concerned. Principally there are two main pieces of legislation which create this ‘quagmire,' but also make provision for the entry and exit of persons in Zambia, these are the Immigration and Deportation Act No. 18 of 2010 (hereinafter referred to as the Immigration Act) and the Refugees Act No. 1 of 2017 (hereinafter the Refugees Act). Although these two pieces of legislation apply to different types of migrants, there is a predisposition on the part of the authorities of enforcing immigration laws and not refugee laws on asylum seekers especially those found unlawfully present in country. This is in contravention of the non-penalisation clause under the 1951 Convention Relating to the Status of Refugees (hereinafter the 1951 Refugee Convention), which creates a dilemma for asylum seekers. Zambia has an international obligation to receive and not to expel asylum seekers present within its territory irrespective of their mode of entry, this responsibility emanates from Article 31(1) and Article 33(2) 1951 Refugee Convention. However, the misapplication of the Immigration Act on asylum seekers conflicts with this obligation.
Open Access
Gender Identity, Refugeehood, and Belonging: Transgender Asylum-Seekers and International Refugee Status Determination (RSD)
(2022) Deakin, Christina Mihoko; Khan, Fatima
This research deals with transgender asylum-seekers and refugee status determination (RSD). It considers the excessively complex legal developments and discourse surrounding gender-related asylum applications and challenges the strict interpretation of the 1951 Convention Relating to the Status of Refugees and limited understandings of sex, gender, and sexual orientation by decision makers. This research adopts a queer critical analysis of international refugee law and provides a nuanced understanding of transgender identities to explain the shortcomings and misunderstandings that arise from gender-related asylum cases. This article provides recommendations for the advancements of appropriate legal approaches to gender-related asylum claims that will improve the protection of transgender asylum-seekers during the RSD process, provide a foundation for conceptual change to the asylum system, and promote the rule of law and human rights.
Open Access
How to Address the Inadequacies in the Protection of Transgender Female Refugees in Countries of Refuge?
(2018) Louw, Kiegen; Khan, Fatima
Despite their prevalence in the global refugee system, the unique struggles faced by transgender female refugees in countries of refuge has remained silent. Although existing as places of refuge, host states have remained particularly hostile to these refugees. The term ‘transgender’ is still relatively new and this thesis aims to outline the plight of transgender female refugees through the various forms of violence directed against them. Thus, an extended definition of violence must be taken to be able to contemplate the ways in which the transgender woman is assaulted, whether that takes the form of physical, sexual, economic, or medical violence. Moreover, despite an international and regional legal system existing, which delineates the human rights of refugees across the globe, there still appears to be a disconnect between the law and the lived realities of the transgender female refugee. The law itself is no ally to the transgender women due to its inherent patriarchal nature; the transgender women is perceived as a threat to the existing patriarchal and heteronormative structures in place in society. Moreover, the 1951 Convention Relating to the Status of Refugees was drafted at a time when the needs of transgender female refugees were not known and thus most of the existing international human rights instruments all pre-date the emergence of transgender rights. This disconnect is further fueled by the lack of hate crime in the international arena as a tool to enforce and protect transgender female refugees. Lastly, it was further seen that South Africa, as a country of refuge for African transgender refugees, provides a good example of ways in which the transgender woman can be assisted, such as through the development of Ubuntu and hate crime legislation.
Open Access
The importance of administrative justice rights in international refugee law: a case study of South Africa
(2018) Harris, Thomas; Khan, Fatima
International human rights law instruments are not prescriptive regarding the procedure for processing refugees by an individual state. However, they do provide an extensive set of rights, and it is these rights that form the focus of this study. One of the main principles of international law is to protect human rights and human dignity. In the South African context, the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) reinforces section 33 of the Constitution, the objective of which is to provide just administrative action for everyone – whether they are South African nationals or otherwise. The Department of Home Affairs (‘DHA’) is responsible for processing refugee applications under the Refugees Act 130 of 1998, and as a public body performing a public function it is obliged to adhere to the laws prescribed by PAJA. The Refugees Act states in the preamble the intention for the law to give effect to the relevant international legal instruments to which South Africa is party and the principles and standards relating to refugees contained within. These international instruments are the 1951 Convention Relating to the Status of Refugees, the 197 Protocol Relating to the Status of Refugees and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. The preamble of the Refugees Act also refers to ‘other human rights instruments’ which includes legislation such as the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. It is the recognition of the obligations assumed under the international instruments, combined with domestic legislation in PAJA and the Constitution, that provide a stringent set of rights designed to give refugees appropriate administrative justice by way of having applications processed and decided upon according to the law, including reviews and appeals if necessary. As is apparent from many studies and scholarly articles on this topic, refugees seeking protection in South Africa are not always treated as the law intended. This has a number of different consequences, some of which can pose a danger to life. This emphasises the gravity of making the correct legal decision on a refugee application. This study will focus on the procedural failings of the DHA, and how these failings often amount to insufficient administrative justice and in turn fail to provide refugee applicants with the rights to which they are entitled. The study examines this issue from a human rights and human dignity perspective – both of which are materially affected by the absence of administrative justice rights.
Open Access
In chronic exile: A critique of South Africa's legal regime for refugees in protracted refugee situations
(2017) Khan, Fatima; Chirwa, Danwood
The major thrust of refugee protection worldwide is directed towards providing assistance to refugees in emergency situations. In South Africa, a large number of refugees have moved beyond this initial emergency phase such that the extended nature of their refugee status has left them in a state of continuous vulnerability. Their prolonged exile has led to violations of various rights recognised by international law and South Africa’s own constitutional and refugee law. Faced with restricted access to rights, refugees in South Africa live in poverty, are frustrated, and do not realise their full potential, to say nothing about the overt and brutal attacks they constantly face as victims of xenophobia. Their continued status as refugees deprives them of opportunities and subjects them to constant fear of harassment and exploitation. Even though neither the UNHCR nor the South African government has classified refugees living in South Africa as being in a protracted situation, many refugees have been in South Africa for five years or longer, with no durable solution in sight. This thesis highlights the plight of refugees in protracted refugee situation in South Africa and recommends suitable solutions to the problems this situation raises.
Open Access
Investigating disparate approaches to refugee management in Europe and Africa
(2021) Widmann, Fiona; Khan, Fatima
The global refugee population is at an all-time high and is expected to continue to rise in the near future. Recent crises in Europe as well as the refugee situation in Africa have once again highlighted the challenges in managing the world's refugees. While both regions are currently host to a significant number of refugees, their approaches to managing the situation appear to differ greatly. Therefore, this thesis sets out to investigate approaches to refugee management in Europe and Africa. In addition, it aims to find an answer to the question of how the chosen approach affects long-term refugee management and, in turn, the prospect of achieving durable solutions for refugees in the respective regions. Through an examination of the applicable laws, both internationally and regionally, as well as by consulting secondary sources, the ‘European approach' and the ‘African approach' to refugee management were identified. Furthermore, a closer look at two case studies, one from each region, provided more insight into how international and regional policies are translated in the domestic context, and what the ensuing prospects are for durable solutions. Deterrence appeared to be prevalent in both contexts, albeit arguably due to different circumstances. As significant shortcomings in achieving a dignified and rights-respecting approach to refugee management were identified, this thesis concludes with three recommendations.
Open Access
Investigating South Africa's protection of refugee womxn: Refugee womxn's access to housing, inclusion into the labour market and protection from gender-based violence
(2020) Louw, Danielle; Khan, Fatima
This paper investigates the integration experience of refugee womxn in South Africa. It focuses on the areas of access to housing, employment and protection from gender-based violence. Through a human rights approach, influenced by intersectional feminist theory, it analyses the international normative and South African domestic framework and discusses its gaps and challenges. Thereafter, an overview of the experience of refugee womxn's access to housing, employment and protection from gender-based violence internationally and in South Africa is presented. Lastly, recommendations are made to the South African state suggesting reform in law, policy and practice.
Open Access
Musical chairs: selected questions of burden-sharing in international refugee law
(2017) Gregusson Svartdal, Fridtjof; Khan, Fatima
The number of refugees worldwide has never been higher, with an estimate of 65.3 million forcibly displaced persons by the end of 2015. The brunt of the material, economic and social burdens these waves of often destitute persons represent is borne by a minority of closeproximity States, ill-equipped to handle mass influxes of people in dire need of protection and assistance. This dissertation explores the legal obligations of States to share the burden of international refugees, through four select research questions. Firstly, the existence of universal and regional obligations to burden-share are examined. Secondly, the legality of the 'third safe country' notion is examined under international law. Thirdly, the economic responsibilities of refugee-generating States towards refugees, asylum States and the UNHCR is examined. Fourthly, the obligations of States to rescue asylum seekers in distress at sea, and to process their asylum claims is examined. The fundamental observation of the dissertation is that although the 1951 Convention provides a generous set of rights to persecuted persons, its primary shortcoming in the context of this dissertation, is the lack of a clear and positive obligation, ensuring a fair distribution of the burdens of refugees between the signatory States. However, regional efforts do, to a degree, mitigate this issue by establishing obligations which seek to distribute the costs and burdens of refugees.
Open Access
Protection of the right of asylum-seeking children not to be unlawfully detained: a look into the laws of Botswana
(2021) Slave, Oratile; Khan, Fatima
Botswana acceded to the 1951 Convention on the Status of Refugees and its 1967 Protocol and entered a reservation on section 26 relating to the freedom of movement of refugees within its borders justified on reasons of national security. As such, Botswana adopts a restrictive detention policy which requires that asylum seekers, whether alone or accompanied by their children, be held at the Francistown Centre for Illegal Immigrants pending transfer to the Dukwi Refugee Camp if their application for refugee status is successful or deportation if unsuccessful. Botswana is therefore notorious for detaining asylum seekers including children for prolonged periods, in undesirable physical conditions, and in the process violating the asylum-seeking children's rights to among others, not to be unlawfully detained, the right to an adequate standard of living, family unity, the highest attainable standard of health, and basic education. The study therefore seeks to explore the laws safeguarding the right of asylum-seeking children not to be unlawfully detained in Botswana in an effort to assess the extent to which such laws comply with the standards set by the Convention on the Rights of the Child as the core international standard for the protection of children's rights, and other relevant international and regional instruments. In addition, the study will assess the extent to which such laws are given effect in practice. The study will also explore best international and regional practices on the protection of the right of asylum-seeking children not to be unlawfully detained with specific emphasis on the laws of Sweden and South Africa. The study concludes with recommendations based on standards set out in the Convention on the Rights of the Child and other relevant international and regional instruments, and best practices in the laws of Sweden and South Africa which Botswana may draw valuable lessons in order to effectively safeguard the right of asylum-seeking children not to be unlawfully detained.
Open Access
Refugee children's access to critical healthcare services in South Africa
(2023) Kaponda, Tatenda; Khan, Fatima
Access to socio-economic rights in a host country by refugees is important in ensuring successful integration. Despite rights being afforded to refugees in international law in theory, their practical realisation is often fraught with difficulties. This study sought to focus on the most vulnerable of the refugee population, children, and their access to critical healthcare services in South Africa. It sought to analyse refugee children's access to critical healthcare services from a human rights approach focusing on the key principles of non-discrimination and human dignity. The study found that although refugee children's access to critical healthcare services is widely provided for in theory, several barriers exist to the realisation of this right. The study concludes by making recommendations on how various parties can contribute to improving refugee children's access to critical healthcare services
Open Access
The right to education of asylum seeker and refugee children
(2018) Mweni, Sabelo Kenneth; Khan, Fatima
This research reviews the application of the law on the right of refugee children to education and the challenges inhibiting this right. Radical changes in the legal framework protecting refugee children's right to education has occurred since South Africa became a democratic state in 1994. The enactment of international law into the 1994 Constitution contributed into the protection of various children right and insured equal access into the education system. However, refugee children have been prejudiced in the right to access education based on numerous challenges. The lack of access education for refugee children is an unconstitutional practice in schools rather than a legislative injustice. This paper uses journal reports, newspaper articles, academic writing on both national and international perspective on the infringement of education rights on refugee children. The findings provide clarity on unconstitutional practices and the legal standpoint on such practices. The right to education constitutes a valuable foundation for integration. South Africa is obligated by both national and international law to provide immediate education to refugee children.
Open Access
Self-reliance and the rights to work for refugees: lessons from the case studies of South Africa and Germany for the implementation of the Global Compact on refugees by the European Union
(2021) Heiss, Marie-Isabelle; Khan, Fatima
The right to work is a fundamental human right and regarded essential for a life in dignity. It is explicitly granted to refugees in international and regional law, as well as in numerous national constitutions. In practice, however, refugees have to overcome many obstacles in order to participate in working life in the host country. This paper uses South Africa and Germany as case studies to explore causes and remedies for this discrepancy. To this end, the legal provisions regarding the right to work and their implementation in practice in South Africa and Germany are assessed against the respective socio-economic background. Subsequently, proposals for a coherent future EU policy on the access to work and the promotion of refugee self-reliance as driven by the UN Global Compact on Refugees are made. South Africa is the scene of an increasingly restrictive handling of traditionally generous refugee laws. Administrative or bureaucratic hurdles undermine the right of refugees to work or receive social benefits. Xenophobia often leads to further marginalization against the backdrop of high unemployment. In Germany, protective labour market regulations have been gradually relaxed since 2013 to address labour shortage. However, new restrictions were introduced in 2018 that make it more difficult for asylum seekers in particular to access the labour market. As in South Africa, the long duration of asylum procedures and processing backlogs keep them in limbo for a long time with very limited work opportunities. Legal scholars and researchers agree that the realization of the right to work can increase social cohesion by turning formerly aid-dependent refugees into integrated, self-reliant, and contributing members of their host society. This gives rise to the call for targeted support measures to provide more effective access to fair, paid work for refugees as early as possible. In implementation of the Global Compact on Refugees (GCR), the EU should lead by example by applying a protection-based approach in their own legislation and policies and support developing countries in promoting refugee's self-reliance.
Open Access
Sexual violence against refugee and asylum seeking women in the Dadub and Kakuma refugee camps in Kenya : challenges and prospects for securing the duty to protect
(2012) Chatira, Aminata Tinashe; Khan, Fatima
This dissertation will argue that the normative and procedural protection framework established under the international refugee law regime is inadequate to provide protection to refugee victims of sexual violence. It will also argue that the various duty bearers vis-a-vis the right to security of refugee women in Kenya are not living up to their legal obligations. It will also illustrate the po- tential benefits of using the human rights law regime to enhance the protection of refugee women from sexual violence. The study includes a detailed analysis of the international and regional treaties, declarations, general comments and resolutions which make explicit and implicit reference to the right to life, security of person, freedom from torture or cruel, inhuman or degrading treatment and the right to health and draws upon relevant case law which outlines the obligations of the various duty bearers.
Open Access
The African refugee crisis – challenging the notion of burden-sharing in Africa
(2022) Nyirongo, Rachael; Khan, Fatima
For decades, Africa has faced a large number of refugees and this has been rapidly growing since 2010. Although there has been another recent spike in refugees on the continent, the cause of refugees today is largely due to the increase in conflict on the continent, whilst in earlier years this was due to colonialism. The rise of intra and interstate conflicts shows a correlation with the increase in the number of refugees. Africa has the largest population of refugees in the world, according to the Population Division of the United Nations Department of Economic and Social Affairs (DESA). In 2019, Africa was hosting 26 million migrants and 7 million refugees, including asylum seekers. The top five African refugee-generating countries all have ongoing conflicts or are in a state of dealing with the conflicts through peace agreements. In addition to displacement as a result of conflict, African countries have complex issues that contribute to the rise in these numbers and these issues range from economic struggles, social security deficiencies, political tensions and displacement as a result of climate change. The distribution of refugees is not even as most refugees choose to stay in neighbouring countries, and resettlement numbers have been dropping in recent years. As conflicts are the main cause of refugees on the continent, East African countries bear the biggest burden of refugees as many countries in the region are dealing with severe insecurities. This large influx of refugees in that region causes a genuine concern about whether they can sustainably provide for them and protect their rights. Most of these countries are developing countries with a low Human Development Index (HDI) and are already struggling to provide for their locals. This thesis aims to look at three of the top four African refugee-hosting countries which are located in East Africa. It will look into what responsibilities these hosting states have concerning protecting the basic rights and providing the basic needs of the refugees, to what extent they are able to provide for the refugees and what gaps are they unable to fulfil with their own efforts. After determining a need for more burden-sharing practices on the continent, it will analyse what practices are already taking place and what more can be done by African states and the international community as a whole.
Open Access
The Criminalisation of Asylum Seekers: Arbitrary Detention in South Africa
(2019) Kalla, Tasneem; Khan, Fatima
This minor dissertation is a research paper on the use of arbitrary detention to criminalise asylum seekers in South Africa. After the democratic transition in 1994 South Africa became a leading destination for asylum seekers from across the African continent. South Africa’s post-apartheid immigration and refugee system were based on a human-rights approach and aimed at creating a culture of inclusion and tolerance. Despite a progressive Refugee Act, the most prominent aspect of the South African asylum system is its use of arbitrary detention as a form of immigration control. The goal of this research is to analyse the criminalisation of asylum seekers through arbitrary detention in South Africa. This is done through an analysis of the roles the Refugee Act and the Immigration Act play in the asylum process. In understanding the nexus between arbitrary detention and the deprivation of liberty, this research analyses the normative frameworks that inform international and South African legislation. The use of detention as an immigration tool has resulted in a cycle of criminalisation. The South African institutions and erroneous application of immigration laws has criminalised the act of seeking asylum - a universal human right. After an in-depth analysis of the asylum process in South Africa and how arbitrary detention has criminalised asylum seekers, this research discusses the alternatives to detention most applicable in the case of South Africa. The erroneous application of laws, politicization of asylum seekers and use of detention for administrative and deterrence reasons are the primary reasons for the unlawful detention of asylum seekers in South Africa. This research reveals that there are alternatives to the use of detention as the first port of call, this largely lies in the reform of the country’s implementation of refugee law. The progressive nature of the Refugee Act guarantees protection from arbitrary detention, by redressing the management of the asylum process and institutions, the Refugee Act can be better implemented to reflect the human-rights approach it embodies.
Open Access
The failure of the European Union to offer adequate protection to refugee women
(2019) Gwaka, Chiedza; Khan, Fatima
The majority of refugee and migrant women who are travelling to Europe to seek asylum in the European Union are coming from war-torn countries in order to seek asylum from war or gender-based violence. This is due to the fact that women and children are often targets during war. They may be victims of forced marriages, forced abortions, genital mutilation, genderbased violence, sexual gender-based, rape and murder. Furthermore, these crimes are taking place on refugee routes leading into the European Union and in informal camps within the Union. These informal camps grow rapidly and the refugee populations always outgrow the availability of resources. As a result men and women cannot be housed separately thereby putting women at risk of gender-based violence, sexual harassment and rape. The dilemma therefore faced by refugee women is two-fold; the 1951 Refugee Convention does not mention gender as grounds upon which women can seek asylum meaning women who have suffered persecution and violence on the basis of their womanhood cannot qualify for refugee status and international protection. Secondly, the unsafe conditions of camps and some reception centres in Europe which exposes women to further forms of violence serves to compound their suffering and trauma and also amounts to further violations of their rights. Although EU Member States are aware of these matters, not much practical action has been taken to ensure safety and protection for refugee women.
Open Access
Unbearing burden of the refugee crisis on developing countries: Is the global compact on refugees the solution?
(University of Cape Town, 2020) Rimber, Kimberly Wangeci; Mfubu, Popo; Khan, Fatima
This research analyses the Global Compact on Refugees("GCR"), adopted in 2018 by the United Nations General Assembly. It aims to discuss whether the document, a non-legal document offers durable solutions to developing countries who host more than 80% of the world´s refugees and asylum seekers population. The paper does this by outlining the key components of the GCR, doing a comparative study of Kenya and Jordan, and looking at what impact the GCR might have had on the programs already running in Kenya and Jordan. The two countries were chosen as they were part of the Comprehensive Refugee Response Framework countries, which greatly influenced the development of the GCR. The paper comes to the conclusion that the GCR has great potential in dealing with the Refugee crisis in the world, but this is hinged on the political will of the developed countries and international cooperation. The research underlines topical issues in international refugee protection such as "accidents of geography" that leads to most refugees seeking refuge in neighbouring countries, which more often are not are developing countries. The research paper further gives the strengths of the GCR, critiques it and gives recommendations based on the comparative studies.
Open Access
What does border externalization mean and what impact do the migration policies of the EU have on migrants' and refugees' human rights? What are the legal consequences for states that commit the human rights violations?
(2021) Winter, Isabella; Khan, Fatima
The EU is well-known for its policy of externalisation, that is, shifting the migration control away from its own borders (as a second, destination country) and towards third countries. This practice challenges human rights law. The thesis addresses the meaning and development of the border externalization. Furthermore, it explains how the migration policies are impacting migrants' and refugees' human rights. Finally, the thesis argues that states can be held responsible for the human rights violations happening due to the EU's policy of externalisation. Thus, overall, the thesis is concerned with the EU migration control and its member states and the human rights situation in Libya. The migration policies have changed in the past to new forms of non-entrée in which the border control is carried out by the authorities of the state of origin or transit. This is, because the early non-entrée practices were legally challenged, and did not protect European states from legal accountability. By funding the Libyan Coast Guards and entering agreements with a politically unstable country that also has a poor human right record, the EU and its member states are supporting the violations of migrants' and refugees' rights. These violations range from breaches of the right to life, the right to seek and enjoy asylum, the principle of non-refoulment, the right against torture and ill-treatment, the right to liberty, and the right to remedy. The violations are especially grave in migration-related detention in Libya where detainees experience inhuman living conditions and abuse. The thesis argues that the EU and its member states, particularly Italy due to the special cooperation between the Italian and Libyan authorities, are in breach of international as well as European law. The thesis concludes that state responsibility follows from Article 16, 17, and 47 ARSIWA are violated as well as Article 3 ECHR.

Browsing by Author "Khan, Fatima"

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