Abstract European countries will sooner or later inevitably be confronted—again—with important legal issues that transcend the current short-term crisis management (reception of refugees, ‘bed-bath-bread’ and other logistical issues). This article will take a closer look at one of the long-term legal concerns, namely the cross-border portability of refugees’ personal status (age, parental status, marital status, etc.). It will discuss legal problems encountered by asylum seekers/refugees with regard to their personal status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). At present, insufficient research data exists on the interaction between international refugee law (relating to the rights and obligations of states regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These interactions are not new, but the current refugee flows into Europe prove in a striking way how ineffective the interplay between the two sets of rules is. The article will discuss the private international law concept of personal status in international refugee law and the international refugee protection in private international law instruments. Introduction In our globalized world, an ever-increasing number of people live in a country that is not their own. Not a day goes by without the media showing painful images of refugees fleeing to Europe. In 2015, over a million asylum seekers and migrants crossed into Europe (Eurostat, http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics (accessed September 2017); Guild and Carrera 2016). The conflict in Syria continues to be by far the biggest driver of the migration. But also ongoing unrest in Afghanistan, Iraq, Iran, Somalia and Sudan and poverty in the Balkans (Kosovo, Serbia, Albania) are driving people to look for a new life elsewhere. European leaders have held one emergency meeting after another to address the challenges this unprecedented influx presents. The European Agenda on Migration has set out a number of (short-term) measures such as assigning additional funding to Frontex, strengthening Europol’s role and establishing ‘hotspots’ (Communication from the European Commission, 13 May 2015). The EU Member States seem to have prioritized the reception of asylum seekers and the development of short-term assistance programmes. Yet strategies to tackle the long-term legal consequences of the refugee flows into Europe are less clear. While those short-term interventions are of course important, European countries will sooner or later inevitably be confronted with important legal issues that transcend the reception of refugees, the ‘bed-bath-bread’ and other logistical issues. This article will take a closer look at one of the long-term legal concerns, namely the cross-border portability of refugees’ personal status (age, parental status, marital status, etc.). This difficult issue is considered in the ‘Declaration on the Legal Status of Applicants for International Protection from Third Countries to the European Union’ (September 2015) of the European Group for Private International Law (GEDIP) to stress the importance of recording and recognizing facts and documents concerning the personal status of asylum seekers and refugees, such as births, marriages and deaths. The declaration pinpoints the crucial link between international refugee law and private international law. This article aims to identify and to map interactions between the asylum procedure and the cross-border portability of the refugees’ personal status. It will discuss legal problems encountered by asylum seekers/refugees with regard to their personal status acquired in one country and transferred to another country. At present, insufficient research data exists on the interaction between international refugee law (relating to the rights and obligations of states regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context), least of all empirical research data (exceptions in legal literature: Carlier 2007; Chetail 2014; Corneloup 2014; van Loon 2008). The lack of in-depth empirical research is all the more worrying as the continuing flow of refugees into Europe will create multiple complex legal issues: How do people prove their family ties? How do asylum and migration authorities assess foreign documents that relate to the civil status of refugees? What if no (authentic) documents can be presented? What if an Afghan couple, claiming for asylum, produce a marriage certificate, proving a religious marriage concluded when the girl was 16? How does a Syrian man prove that a child is his when it was born in a Lebanese refugee camp and there is no birth certificate? Will an Iraqi woman be able to remarry in the country of asylum if she cannot provide a death certificate of her deceased husband? These and many other crucial private international law questions remain—due to the short-term crisis management—underexposed. This article will first map several interactions between international refugee law and private international law in the field of registration and recognition of the personal status of refugees and their families. It will then expand on the private international law concept of personal status in international refugee law and lastly on international refugee protection in private international law instruments. Registration and Recognition of Personal Status of Refugees and Their Families Interactions between International Refugee Law and Private International Law In the field of legal research and education, a clear distinction exists between public international law and private international law. Nevertheless, both disciplines do share some common ground. Asylum and migration are areas where public international law and private international law can no longer be seen as two independent disciplines. Each asylum seeker searching for protection in Europe would like to see the facts relating to his/her personal status (such as birth, name, marriage/partnership, parentage, death) registered and recognized in the country of asylum. This is where the rules of private international law interact with those of international refugee law: on the one hand, there is the asylum application and the search for protection; on the other hand, there is the (legitimate) expectation of the asylum seeker/refugee to be given the same personal status in the country of asylum as in the country of origin. This cross-border portability of personal status of refugees and their families, however, is not self-evident and certainly not in an asylum context. In its ‘Declaration on the Legal Status of Applicants for International Protection from Third Countries to the European Union’ (September 2015), the GEDIP calls on the institutions of the European Union and its Member States to ensure the recording and the recognition of facts and documents relating to civil status: Regarding any national of a third country and any stateless person present on the territory of a Member State of the European Union having presented an application for recognition of refugee status or granting of subsidiary protection status, or having obtained such status, registration as soon as possible—even provisionally—of the important facts relating to their personal status, such as births, marriages and deaths, as well as recognition of these records and documents relating thereto within the European Union. The registration of facts and documents relating to someone’s personal status brings us to the field of private international law, more specifically to the rules on recognition of foreign decisions and authentic instruments. This recognition requires the presentation of a document, such as a foreign divorce decision, birth or marriage certificate. This document must be legalized or be accompanied by an Apostille in order to certify the authenticity of the signature and the capacity in which the person signing the document has acted. Legalization or Apostille does not certify the content of the underlying document itself. At this point, the private international law rules on recognition provide for specific grounds for non-recognition. For example, the recognition in Sweden of a marriage concluded in Syria or Turkey requires two things: first, the persons involved must present authentic documentary evidence of their marriage and, second, the content of the marriage certificate must be recognized by the authorities of the country of asylum. In the case of a marriage concluded before religious authorities in Turkey (during their stay in a refugee camp), a Syrian couple are unlikely to be able to present a ‘legalized’ document. Or, a Syrian couple might be confronted with a ‘substantive’ ground for non-recognition, such as the fact that one of the spouses is a minor. Child marriages celebrated abroad are regarded invalid in Sweden (Jänterä-Jareborg 2016: 21; Lambertz 2016: 85–110). Non-recognition of the foreign marriage means that there is no registration of the marriage in the country of asylum and it therefore lacks the legal consequences of a marriage. Let us briefly take a closer look at these two private international law hurdles: absence of documentary evidence and non-recognition of a personal status acquired abroad. Absence of Documentary Evidence In the asylum and refugee context, the mere duty to submit a document can itself be a hurdle. For example, in many countries, marriage and birth certificates are either not issued or are unreliable, or individuals are unable to access the official authorities at the time of marriage or birth. Moreover, in most cases, a person fleeing from persecution will have arrived with the bare minimum and very frequently even without any documents of identity and status. Thus, refugees may find themselves unable to prove their personal status (and this goes further than purely ‘identity’ documents, as described in Hathaway 2005: 614–626). Although Article 25 of the 1951 Geneva Refugee Convention relating to the status of refugees obliges authorities in the receiving states to assist in the provision of documentation (Hathaway 2005: 639ff.; Zimmerman et al. 2011: 1129–1146), the absence of documents may generate problems during the asylum process, as illustrated by the following case that came before the Austrian Constitutional Court (Verfassungsgerichtshof, 7 March 2012, U1558/11, http://www.asylumlawdatabase.eu/en/case-law/austria-constitutional-court-7-march-2012-u155811 (accessed September 2017)). A young man, claiming to be 17 years old, applied for asylum in Austria after entering Europe via Italy. His asylum claim was rejected on grounds of the Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin Regulation) and an expulsion order to Italy was issued. The Austrian Federal Asylum Office did not accept the copy of the applicant’s birth certificate and thus the documentary proof that he was a minor. The Constitutional Court ruled that the majority age had not been confirmed with absolute certainty and the applicant should therefore have been treated as a minor. The fact that only a copy of the birth certificate was submitted was not a sufficient base to doubt its authenticity. Actually, the lack of documents proving one’s status can also generate (even greater) problems in the long(er) term. Take the example of a couple from Afghanistan who, when claiming asylum, declared that they were married. In Belgium, this declaration will be registered in the so-called ‘waiting register’, even without documentary evidence. After being recognized as refugees by the Commissioner-General for Refugees, the couple remain registered as married in the national register. Should the marriage break down and divorce proceedings be initiated in Belgium, the couple would need to submit a legalized marriage certificate from Afghanistan. In some cases, the Office of the Commissioner-General for Refugees and Stateless Persons issues a marriage certificate to recognized refugees (according to their website, both spouses need to reside in Belgium; see www.cgrs.be/en/documents (accessed September 2017)). This is in accordance with the duty of administrative assistance to refugees (Article 25 of the Refugee Convention). In practice, however, situations exits in which refugees cannot present such a certificate, let alone a legalized one. Previous empirical research revealed that Belgian courts take different stands on this: some courts pronounce divorces in cases where there is no marriage certificate; others demand documentary evidence (Verhellen 2012: 243ff.). During interviews that I conducted with judges specializing in cross-border family law, one judge declared the following: When the parties have always been considered married by the national and local administrative authorities, we cannot simply tell the parties that we consider them married, but that they cannot divorce because they don’t have a marriage certificate … or even worse, tell them at the same time that they cannot remarry because they cannot prove their unmarried status (Verhellen 2012: 249). The judge is referring to a practice in Belgium where civil servants refuse the celebration of a new marriage in Belgium after the refusal to recognize the marriage concluded abroad. This practice—to which I will return later—brings us to the second hurdle: the non-recognition of foreign personal status documents and the limping legal relationships that result from this. Limping Legal Relationships Even if refugees can present the necessary documents, they are often confronted with a non-recognition of their personal status acquired abroad. For instance, our research group1 was recently contacted by the Belgian Red Cross in the case of a Syrian couple who were in possession of documentary proof of their marriage. The Belgian asylum authorities did not recognize the content of the marriage certificate because they considered the marriage to be contrary to public policy. The girl was a minor at the time of the marriage in 2014 and still at the time of the asylum registration in 2015. As a result, the 20-year-old man was referred to one asylum centre, while the 16-year-old girl was referred to another, for non-accompanied minors. This kind of decision—with its obvious significant impact—is not unique to Belgium, as demonstrated by recent case law of the European Court of Human Rights (ECHR). I refer to the case of Z.H. and R.H. v. Switzerland of 8 December 2015 (No. 60119/12). This case relates to two Afghan nationals who were religiously married in Iran when Ms Z.H. was 14 years old and Mr R.H. was 18 years old. They applied for asylum in Switzerland. The Swiss Federal Office of Migration rejected their claims on the grounds that, under EU law (the Dublin II Regulation), Italy was responsible for examining their asylum application as it was the first EU state that they had entered. This resulted in the expulsion of R.H. to Italy, while Z.H. was allowed to stay in Switzerland for the duration of her asylum application. (The Swiss authorities intended to remove both parties to Italy, where they came from. Under Dublin Regulation II, Italy was the state responsible for examining their asylum request. The man appealed, the woman did not appeal. As a result, the two cases took their own particular course. In the case of the woman, procedural errors prevented her removal to Italy and Switzerland had the duty to examine her asylum request. However, the man’s appeal failed and he was sent to Italy.) In the proceedings before the ECHR, the couple alleged that the expulsion of R.H. had breached their right to respect of their family life (Article 8 ECHR) by not recognizing their marriage concluded in Iran and removing the man to Italy (place of first registration of the asylum claims). The ECHR found that there was no violation of Article 8 ECHR. The Court considered that Article 8 cannot be interpreted as imposing on any state party to the Convention an obligation to recognize a marriage, religious or otherwise, contracted by a 14-year-old, nor can such obligation be derived from Article 12 of the Convention (right to marry). According to the Court (§ 44), Article 12 expressly provides for regulation of marriage by national law, and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, this Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society. The Court thus concluded that, at the time of the removal of R.H. to Italy, the Swiss authorities were justified in considering that Z.H. and R.H. were not married—all the more so because, at that time, the couple had not yet taken any steps to seek recognition of their Iranian religious marriage in Switzerland. Even if their relationship had been qualified as ‘family life’ under Article 8, the Court noted that R.H. returned to Switzerland only three days after having been removed to Italy, and was not expelled thereafter, although his stay in Switzerland was illegal. He was allowed to remain in Switzerland and to request a re-examination of his asylum application, which eventually succeeded. The Court found that overall a fair balance had been struck between the personal interests of the applicants in remaining together pending the outcome of R.H.’s asylum application and the public order interests of the state in controlling immigration. This case illustrates the complicated issue of the so-called limping legal relationships or relationships/personal status which one legal order considers lawful and valid, but another legal order does not. Dealing with limping legal relationships is one of the core tasks of private international law, which aims for as much cross-border continuity and harmony as possible in people’s identities, personal and/or family status. The current refugee flows into Europe put considerable strain on this core mission of private international law, especially in the field of asylum and migration where there is a conflict between successfully maintaining cross-border family life and upholding the interests of states in controlling migration. Moreover, this challenge presents itself not only during the asylum procedure, but also long afterwards. I return here to the practice of some Belgian civil servants rejecting the celebration of a new marriage in Belgium after refusing to recognize the marriage concluded abroad. This practice is based on one interpretation of a specific provision in the Belgian Private International Law Code (for an English translation, see Clijmans and Torremans 2004) on the factual effect of foreign judgments and authentic instruments (Article 29). This provision stipulates that consideration is given to the existence of a foreign authentic instrument without verification of the conditions required for recognition in Belgium. According to some civil servants, and followed by some courts, non-recognized foreign marriages still have some effects in Belgium, leading to the celebration of a new marriage being refused in Belgium. By this reasoning, a new marriage would result in bigamy. It goes without saying that this practice creates legal uncertainty: people are married abroad, their marriage is not recognized in Belgium, yet they are not allowed to remarry in Belgium. In a decision of 15 May 2015, the Belgian Cour de Cassation (Supreme Court) dismissed this interpretation of Article 29 of the Private International Law Code (C.14.0295.N, http://jure.juridat.just.fgov.be (accessed September 2017)). A foreign marriage should be assessed on the grounds for non-recognition provided for in the Private International Law Code (Article 27). If the marriage cannot be recognized, then this non-recognition corresponds to a proof of celibacy which is necessary for the conclusion of a new marriage. This example shows how asylum and refugee cases can turn into very complex and varied private international law files. The following Greek case shows a similar complexity: an Afghan man, holder of an asylum-seeker card, wanted to marry a Greek citizen, but he could not present proof of there being no impediment to marriage, authenticated by the Afghan authorities. He gave the Greek municipality a sworn statement instead. The court held that the mere absence of the certificate of being unmarried was not sufficient to prevent him from being granted a civil marriage licence and that this certificate could be substituted by a sworn statement (First Instance Court of Kos, 13 May 2013, No. 390/2013, http://www.asylumlawdatabase.eu/en/case-law/greece-single-member-first-instance-court-kos-13-may-2013-application-no-3902013 (accessed September 2017)). Looking Ahead The right to family life is a key premise for the successful integration of refugees and beneficiaries of international protection into a host society. One of the most pressing concerns for refugees who have found safety and protection in Europe is the concern for their family members left behind. Nevertheless, family reunification remains far from guaranteed. For instance, when a Syrian man is granted refugee status, he will want to seek a family reunification visa for his wife and children still living in Syria or in a refugee camp in Turkey. The current practice in Belgium is that the man’s family members will be granted a visa to come to Belgium but, to satisfy the requirements of registration into the national register, they will need to produce legalized marriage and birth certificates. If they cannot provide these documents, they will be registered as ‘unrelated’ to the man, which carries all kinds of negative consequences (e.g. no child or other family benefits). The pragmatic solution is to make those family members also apply for asylum in Belgium. Although most states acknowledge their duty to act lawfully and not to take steps which arbitrarily interfere with a refugee’s family unity, the responsibility of states to also take affirmative steps to facilitate family reunification is not widely accepted. Recently, the ECHR reiterated that Article 8 ECHR cannot be considered to impose on a state a general obligation to authorize family reunification on its territory (Grand Chamber of the ECHR, 24 May 2016, Biao v. Denmark, No. 38590/10). In practice, each Member State has regulations in place that deal with this. However, before these migration law rules even begin to play a role, several private international law questions must be answered: Who is a family member in terms of the family reunification procedures? How does a refugee evidence that his/her spouse really is his/her spouse or that a child is in fact his/her own? All of these private international law issues deal with the question of whether a personal status acquired in one country can be recognized in another country. Positive decisions regarding asylum claims (will) undoubtedly burden other local authorities, such as civil servants, integration services, etc. They will face multiple challenging legal matters, such as the civil status of new-borns, the prevention of stateless children and the recognition of traditional/religious/child marriages. Consequently, the (study of the) cross-border portability of refugees’ personal status is not only a key element in the asylum procedure, but it will also play a central role in the integration of recognized refugees and beneficiaries of international protection in the host society. Another huge challenge in the long-term governance of the refugee flows into Europe. Private (International) Law Concept of Personal Status in International Refugee Law Personal status is an important concept in international refugee law. Article 12, §1 of the 1951 Geneva Refugee Convention stipulates that the personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence. This provision is a private international law rule, or conflict rule. It determines directly the applicable law for the personal status of refugees and uses the domicile and, subsidiary, the residence of the refugee as connecting factors (Chetail 2014: 467). For instance, the question of whether the name of an Iraqi refugee changes after her marriage in Belgium to a Belgian citizen will be determined by the law of the country where the Iraqi woman resides (not by her national Iraqi law). Or, when a Syrian refugee marries another Syrian refugee in the Netherlands, Dutch marriage law will govern the marriage conditions (and not Syrian law, the law of their nationality). This article will not elaborate on the question of which matters should be regarded as being part of the ‘personal status’ of a refugee (see Hathaway 2005: 217–221; Zimmerman et al. 2011: 871–873). One of the main decisions for private international law concerns the selection of the appropriate connecting factor, namely the nationality of a person, his or her habitual residence or domicile. A detailed study of the use of these connecting factors in refugee-related matters is important, primarily because several civil law countries still refer to the law of the country of which the person is a national to determine his or her personal status (or at least some aspects of this personal status, such as the determination and change of name, the age of attaining majority or the substantive requirements for marriage). The seemingly simple rule of Article 12, which provides that the law of a recognized refugee’s domicile or country of residence will prevail over his national law, might unsettle refugees, who often keep the hope of returning to their home country. Moreover, the application of this rule does not always offer the most harmonious solution in respect of family matters, as the following case heard before a Belgian court illustrates (Court of First Instance Leuven, 12 June 2006, AR 06/961/A). A woman of Mongolian origin, recognized as refugee in Belgium, started divorce proceedings in Belgium. The last habitual residence of the spouses was in Mongolia. When divorce proceedings were commenced, the residence of the man was unknown. By summoning the public prosecutor (without a concrete convocation of the man), the woman could start divorce proceedings in a Belgian court. The court granted the divorce according to Belgian law on the grounds that, for recognized refugees, the personal status as a whole is governed by another law than the law of their nationality. Nevertheless, according to the Belgian conflict rule at the time (Article 55 Belgian Code of Private International Law), the court should have applied Mongolian law—the law of the last common residence of the spouses. The fact that the man could not be traced was presumably a prevailing factor in the decision, since the application of the law of the last common residence presupposed that one of the spouses was still habitually resident in that country. By applying Belgian law, the woman could obtain a divorce in Belgium and consequently rebuild her life in the country where she was recognized as a refugee. However, this pragmatic solution is at odds with the private international law objective of cross-border harmony and continuity. In this case, the couple is divorced in Belgium but will remain married as far as Mongolian law is concerned: the man was not summoned in this case, which could be a ground to refuse the recognition of the Belgian divorce in Mongolia. A limping divorce has been created. The text of Article 12 of the Refugee Convention leaves several other difficult questions unanswered. One of those questions relates to the scope of application (Carlier 2007: 310). Who is a refugee in the sense of this provision? Does this conflict rule only apply to refugees or also to the persons who are granted a subsidiary protection status? As subsidiary protection was introduced much later than the 1951 Refugee Convention, the question arises as to whether Article 12 should be extended to this ‘new’ category. Another issue relating to the scope of application is the distinction made by states between refugees and asylum seekers. Article 12 applies to ‘all’ refugees. Since the refugee status is a declaratory status, Article 12 is a right that must be honoured also in the case of asylum seekers at least until and unless a final decision is made to refuse recognition of the refugee status (Hathaway 2005: 159ff.; Zimmerman et al. 2011: 1137). However, in practice, this unjustified distinction has given rise to certain complications (Verhellen 2012: 51), as the following Belgian case illustrates: a Russian widow applies for asylum in Belgium. During the asylum procedure, she is registered under the surname of her deceased husband. When the asylum process was initiated, the Belgian authorities did not replace the reference to the national law (Russian substantive name law) by a reference to the law of her habitual residence (Belgian substantive name law). After the recognition of her refugee status, civil servants might be confronted with the question of whether they should register this woman under the ‘Russian’ name or under her own family name according to Belgian law as the law of the residence. Does this silent transition from one law to another have an impact on the name, and by extension on the personal status of the refugee concerned? Some authors argue that Article 12, §1 of the Refugee Convention should be used in a flexible manner, by giving more choice to the parties concerned (Bogdan 2006: 319–320; Carlier 2007: 314; Chetail 2014: 469). This technique of party autonomy—letting the parties choose the applicable law—is increasingly accepted in private international family law. Article 12 of the Refugee Convention is a subsidiary rule that only encompasses a presumption that the person involved does not want his or her national law to be applied: ‘Cette présomption pourrait être renversée par souci d’identité culturelle’ (Carlier 2007: 314). This cultural option is not equivalent to claiming the protection of the authorities of the country of origin, which is not allowed for refugees. Or, as Bogdan (2006: 319) puts it, the fact that a person ‘risks persecution by the regime of his country does not, by itself, mean that it would be inappropriate to subject his personal matters to the legal rules of that country’. Therefore, the refugee should be able to choose for the application of his or her national law. As mentioned above, submitting personal status matters to another law than the home country law might unsettle refugees who have been forced to leave their home country and often keep the hope of returning. Accepting party autonomy could also imply the possibility of choice not only for refugees in the strict and traditional sense of the word, but also for persons who apply for or have been granted subsidiary protection or, more generally, for persons who are in need of protection. Moreover, Article 5 of the Refugee Convention stipulates that nothing in the Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention. Consequently, the Convention also allows a recourse to other connecting factors provided for in the private international law of the country of asylum; such other conflict rules retain a complementary role when they prove more favourable to refugees (Chetail 2014: 469). The Refugee Convention indeed aims at granting refugees as many rights as possible, not at restricting them (Hathaway 2005: 109). More choice could also avoid limping outcomes, as illustrated in the following case. In a judgment of 5 December 2008, a Belgian judge (Court of First Instance of Leuven, No. 08/943/B) ordered a correction of the birth certificate of a Belgian-born child with refugee parents originating from the Russian Federation. The judge ignored the private international law issue and made no reference whatsoever to the nationality of the persons involved. Technically speaking, however, the fact that the parents and the children were refugees was relevant. The judge would have had to apply Belgian law as the law of the state of the habitual residence. For refugees living in Belgium. a reference to Belgian law (as the law of the habitual residence) is indeed the course to follow. The judge, however, did not settle this connecting factor issue. He just ordered to add an ‘a’ to the name in the birth certificate of the girl. It is not clear from this decision whether the parties remained silent on the private international law issue. One could reason that, having asked for a correction of the birth certificate, the parents clearly wanted a gender-specific last name for their child (according to Russian law and tradition). Although there is no explicit reference to it in the Court’s ruling, one could wonder whether the parents’ wish did influence the Court’s decision—a decision that resulted in the child having the same name in both Belgium and Russia. A strict reference to the Belgian law of the habitual residence would have resulted in an internationally limping name situation. Article 12 of the Refugee Convention aims to avoid situations in which the determination of a refugee’s personal status by reference to the law of the country of his or her domicile/residence would result in the impairment of rights acquired by the refugee in his or her country of origin. According to the second paragraph of Article 12, ‘[r]ights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State’. This provision expresses the principle of ‘acquired or vested rights’. The drafters of the Convention agreed that the operation of the general rule in Article 12 cannot deprive refugees of their status-based acquired rights. The choices and preferences of the persons involved also play a role here or, as Hathaway (2005: 222) rightly states: In a fundamental sense, then, Art. 12(2) goes a substantial distance towards meeting the non-governmental concern expressed at the Conference of Plenipotentiaries that greater deference should be paid to the preferences of the refugees themselves about how their personal status should be determined. While not allowing refugees to elect the basis upon which their personal status is decided, Art. 12 read as a whole will often give refugees the best of both worlds. This way, Article 12.2 seems to implement the more general provision of Article 5. In our example of the Russian widow, the woman could keep the name of her deceased husband for instance if she is really attached to it or she could ask to be registered under her own family name. This avoids that the Article 12 approach runs the risk of being at odds with what refugees really want or need. The respect for previously acquired rights, however, is not absolute. Article 12.2 provides for a public policy limitation: ‘the right in question is one which would have been recognized by the law of that State had he not become a refugee.’ States should not be required to respect rights previously acquired by a refugee when these rights are contrary to their own law (Hathaway 2005: 225–227; Chetail 2014: 471–472), such as rights resulting from a polygamous marriage. International Refugee Protection in Private International Law Instruments It is crucial to underline that there are more conventions than the Geneva Refugee Convention alone that play a role in the international protection of refugees, such as some conventions of the Hague Conference on Private International Law.2 The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children entrusts to the authorities of the Contracting State of the habitual residence of the child the principal jurisdiction to take measures of protection of his or her person and property (Article 5.1). For refugee children and children who, due to disturbances occurring in their country, are internationally displaced, this jurisdiction is assigned to the authorities of the Contracting State on the territory of which these children are present as a result of their displacement (Article 6.1). The Explanatory Report (Lagarde, para. 44) notes: The children contemplated by this provision often have need, even without a situation of urgency, for their protection to be organised in a lasting manner. They may indeed, for example, be led to apply for asylum or be the subject of a request for adoption. It is therefore necessary to designate a legal representative and the normal jurisdiction attributed by the Convention to the authorities of the State of their habitual residence is here inoperative, since these children have by hypothesis broken all links with the State of their previous habitual residence, and the precariousness of their stay in the State where they have provisionally found refuge does not allow it to be considered that they have acquired a habitual residence there. The Commission rejected the solution consisting of submitting these decisions to the jurisdiction provided for cases of urgency, or even broadening the jurisdiction based on urgency to cover these circumstances. It considered that such a solution would have weakened the Convention by creating an incitement to utilise urgency jurisdiction in all circumstances. The Commission preferred, almost unanimously, to attribute in these situations to the authorities of the State on the territory of which these children are present the general jurisdiction normally attributed to the authorities of the State of the child’s habitual residence. In exercising their jurisdiction, based on the presence of the refugee child in their territory, the authorities of the Contracting States shall apply their internal law (Article 15 of the 1996 Convention). This conflict rule avoids the difficulty of finding the most appropriate connecting factor, as discussed above under Article 12 of the Refugee Convention. The authority that has taken jurisdiction will apply its own law. The principal argument that can be made in support of this rule is that it facilitates the task of the authority that has taken jurisdiction, since it will thus apply the law that it knows best (Explanatory Report, para. 86). The Convention of 13 January 2000 on the International Protection of Adults has a similar provision on the jurisdiction to take measures directed to the protection of the adult’s person or property (Article 6). This latter Convention applies to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests (Article 1). With regard to unaccompanied children, another mechanism used in private international law instruments could play a role, namely that of the international cooperation between national Central Authorities adopted in several Hague Conference Conventions and in different EU Regulations. The cooperation between Central Authorities exists in many fields, such as international adoption or international child abduction. The specific duties of the Central Authorities are imposed by the different Hague Conventions and EU Regulations (e.g. Brussels IIa Regulation). This administrative cooperation at a global or EU level has already proven its efficiency (van Loon 2008: 422–423). It should be investigated how it could be used in an asylum and refugee context. In January 2016, Europol warned that, over the past two years, in excess of 10,000 migrant children had disappeared after arriving in Europe (ECCRE 2016; The Guardian 2016). The recent evacuation of the refugee camp in Calais, France (the so-called Jungle), demonstrated the high number of unaccompanied refugee children that were still not even registered in November 2016. This registration is only the first step in a long asylum and refugee process. This is far from the obligations states have under Article 22 of the Convention on the Rights of the Child of 20 November 1989. States parties to this Convention have to take appropriate measures to ensure that a child who is seeking asylum or who is considered a refugee shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and assistance (Article 22, para. 1). For this purpose, states parties have the obligation to cooperate with competent intergovernmental and non-governmental organizations providing such protection and assistance (Article 22, para. 2). The system of the administrative cooperation between Central Authorities provided for by several Hague Conference Conventions and EU Regulations could be considered as such a type of cooperation. The Central Authorities could play a role in registering these children. Recently, the GEDIP (2016) declared that, considering the many issues relating to (unaccompanied) children seeking international protection under the Common European Asylum System (CEAS), cooperation between CEAS authorities and the network of Central Authorities is needed, so that Central Authorities would, where necessary, follow up on the activity of the CEAS authorities, and vice versa. I cannot better conclude than with the words of the former Secretary-General of the Hague Conference, Hans van Loon (2016: 15–17), who rightly puts that we cannot except, as Europol found early 2016, that thousands of (unaccompanied) children, after arriving in Europe, simply disappear, while a network of Central Authorities responsible for civil protection of children exists under the Brussels IIa Regulation and the 1996 Hague Child Protection Convention. Regarding the take back deal between the EU and Turkey, effective since 20 March, Turkey should not only be encouraged to join the 1967 Protocol to the Geneva Convention, but also the 1996 Convention, and become part of its cooperative network for civil protection of children. Conclusion This article focused on two intertwined fields of law: international refugee law and private international law. The traditional divide between public international law and private international law is becoming increasingly debatable in our interrelated world (de Boer 2010: 207; van Loon and De Deycker 2013; Muir Watt and Fernández Arroyo 2014). Cross-border legal relationships may involve a mix of public and private interests. Whereas this convergence of international public and private law is nowadays generally accepted for environmental, economic or financial issues, this is hardly the case for refugee and migration matters. Moreover, where we have improved international cooperation for mobility of goods and capital, mobility of persons is essentially left to unilateral national policy making on migration (Basedow 2015: 52–54; van Loon 2016: 15–17). A multilateral legal framework for the protection of refugees exists in the form of the 1951 Geneva Refugee Convention, but this article has illustrated that many legal questions remain unanswered as soon as they take on a private international law dimension. Further in-depth research on this global phenomenon from an everyday and living perspective will be needed in order to give more visibility to families in limbo and to all the legal problems they encounter. This is a call to academics and lawyers who specialize in private and public international law to face this challenge. Private international law lawyers cannot continue to think that asylum and migration law only belongs to public international and national law, or to think that asylum and migration are not at the core of private international law. This ‘indifference’ is not characteristic of private international law. On the contrary, private international law should be the first branch of law to respond to migration and its influence on the personal and family lives of people. International responsibility-sharing in the long-term governance of the asylum and refugee flows into Europe requires that more attention is given to the cross-border portability of refugees’ personal status, and thus to the civil protection of children and adult refugees. The undersigned private international law lawyer with practical experience in the field of asylum and migration law hereby declares to keep investing time in in-depth empirical research in this field.3 Footnotes 1. Institute for Private International Law, Law Faculty, Ghent University, http://www.ugent.be/re/mpor/nl/onderzoeksgroepen/instituut-internationaal-privaatrecht (accessed September 2017). 2. See www.hcch.net (accessed September 2017). 3. After the submission of this contribution, two studies—commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee—have been conducted to which the author has contributed: ‘Children on the Move’ and ‘Private International Law in a Context of Increasing International Mobility: Challenges and Potential.’ Both studies have been presented in the European Parliament during a workshop dedicated to potential and challenges of private international law in the current migratory context (20 June 2017), http://www.europarl.europa.eu/committees/en/juri/events-workshops.html?id=20170607WKS00621 (accessed September 2017). References Basedow J. 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Journal of Refugee Studies – Oxford University Press
Published: Oct 7, 2017
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