Jason M. Pobjoy, The Child in International Refugee Law

Jason M. Pobjoy, The Child in International Refugee Law Pobjoy’s book is set to become an important addition to the development of international refugee law (IRL) alongside Hathaway’s The Rights of Refugees under International Law,1 Hathaway and Foster’s The Law of Refugee Status2 and Goodwin-Gill and McAdam’s The Refugee in International Law.3 Troubling and disturbing stories on the news and in social media and reports by organisations, such as UNICEF,4 record the plight of tens of thousands of children forced to undertake horrendous journeys in search of safe places to live and highlight the timeliness and relevance of this book. Children’s rights in some parts of the world are under threat, contributing to the mass movement of people, and it is incumbent on human rights advocates to find more imaginative and creative methods to hold states to account for their obligations under international treaties. Pobjoy’s book should be an important advocacy tool and resource to ensure secure protection for refugees, especially children. Pobjoy’s central thesis advocates the ‘creative alignment’ of IRL and the Convention on the Rights of the Child (CRC) to provide a solution to the challenges children face in making claims for asylum (p 5). A central theme of the book is that a greater interaction between the two international legal regimes has the capacity to enhance the protection afforded to refugee children (p 10). Recently the author indicated that the book ‘attempts to map out the substantive contours of the relationship between the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol (‘the Refugee Convention’) and the CRC and to anchor the relationship in the international rules of treaty interpretation’.5 The premise of the book is a reinterpretation of IRL, in particular the definition of ‘refugee’ set out in Article 1 A(2) of the Refugee Convention, using the CRC as the basis of that reinterpretation. Pobjoy supports his ‘creative alignment’ argument with a thorough and thoughtful analysis of the general rule of treaty interpretation in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), focusing especially on the systemic integration approach to treaty interpretation in Article 31(3)(c) of the VCLT (p 37). He builds upon Hathaway’s argument that interpretation of the Refugee Convention should be linked to the emerging body of international human rights law (IHRL) in order to keep it relevant and up to date. Although some have argued that the Refugee Convention is redundant, overly legalistic and difficult to apply,6 Pobjoy’s mission is to breathe new life into the Refugee Convention by providing a much needed children’s rights perspective.7 There has been a flurry of literature in recent years reflecting on the impact of IHRL on IRL,8 but very little scholarship on the relationship between the CRC and IRL. Pobjoy’s book seeks to redress this gap. Three modes of interaction between the CRC and IRL form the basis of Pobjoy’s ‘creative alignment’ argument and he returns to these modes of interaction throughout the book. First, the CRC provides procedural guarantees for a child, such as the right to express his or her views and to be heard (Article 12 CRC), which are absent from IRL. Secondly, the CRC might be drawn on as an interpretative aid to ensure a child sensitive interpretation of the refugee definition. Finally, the CRC may provide a child with an independent source of status and protection outside IRL. These three modes of interaction provide a child-rights framework for assessing the status of an at-risk child (pp 6–7, 27–31). The book begins by painting a familiar picture of a child refugee within the framework of IRL as invisible and unheard. Children are often the first to suffer human rights abuses: the consequences of conflict, the effects of poverty, environmental damage, and so on, and many are forced to leave their home and country of origin, either voluntarily or involuntarily, to seek protection. However, they are often overlooked and incorrectly assessed at the qualification stage of the refugee determination process (pp 2–3). The lack of a child-specific focus in the Refugee Convention has led to an interpretation of the refugee definition from an adult-focused perspective.9 Additionally, children’s claims will often be subsumed into those of their parents or other adult family members and risk not being heard at all. Children obtain derivative status arising from their parent’s claim but conversely they also risk being sent back to their country of origin because their parents or other family members have been unable to prove their refugee status. Chapter 2 addresses the first mode of interaction—the CRC as a procedural guarantee, focusing in particular on the circumstances when a decision-maker must assess a child’s claim, ensuring that the child’s right to be heard is fulfilled. Pobjoy also develops an argument that removal of a child without considering his or her individual claim may risk violating the non-refoulement obligation in Article 33 of the Refugee Convention. This chapter also considers in detail interaction of the family unity obligations under the Refugee Convention and Article 9 of the CRC. Articles 9 and 12 of the CRC, as procedural guarantees for children, have the capacity to reduce a child’s invisibility in the refugee determination process (p 78). Chapters 3 to 5 draw you to the heart of the book and invoke the second mode of interaction, the CRC as an interpretative aid. Pobjoy seeks to examine the capacity of the Refugee Convention definition to meet the protection needs of refugee children. Although, strictly speaking, it is not a question of whether the definition has the capacity to meet these needs, but a question of the capacity of a state to interpret the definition of refugee from the perspective of a child. Each of these chapters provides an overview of current practice on different aspects of the refugee definition: ‘well-founded fear’ of harm (Chapter 3), the requirement that the child is at risk of ‘being persecuted’ (Chapter 4) and the requirement that the risk is causally connected to one of the five Refugee Convention grounds (Chapter 5). In each chapter, Pobjoy analyses the challenges faced by children and how these might be overcome. This is achieved through an understanding of refugee-hood from a child’s perspective which draws on progressive interpretations of the definition and the broader framework of the CRC. This analysis is based on international, regional and domestic sources of law, including international treaties, ‘soft law’ guidance provided by the United Nations High Commissioner for Refugees and the Committee on the Rights of the Child and the writings of scholars and academics who seek to reinvigorate the Refugee Convention with contemporary views on IHRL and refugees. Finally, Pobjoy has reviewed over 2500 cases, which cover all levels of judicial decision-making in five common law jurisdictions (the United Kingdom, Canada, Australia, New Zealand and the USA) where the decision-maker has specifically addressed a claim brought by a child. As a companion to the book, the author is developing a website with a searchable database of the case law,10 which is designed to promote this creative alignment of IRL and the CRC for the ultimate benefit of children facing the challenges of a refugee status determination process. As Pobjoy’s exposition of case law demonstrates, children face enormous challenges in proving eligibility for refugee status because traditionally the concept of ‘refugee’ has been interpreted through an adult-focused lens (p 80) and children (like adults) must demonstrate subjective fear and objective risk of prospective harm. This bipartite understanding of ‘well-founded fear’ creates an almost insurmountable obstacle for children seeking protection and they are often incorrectly assessed because decision-makers do not account for the fact that the applicant is a child. Pobjoy’s inquiry considers three constituent elements of the definition and how these have been interpreted and applied in assessing the refugee status of children. There is evidence that the courts in the five common law states studied in the book are drawing on the jurisprudence in other jurisdictions, thus creating a ‘transnational judicial conversation’11 in IRL. There are nascent signs of judicial convergence (more evident in higher level domestic courts) in the interpretation of the Refugee Convention using IHRL standards including the CRC. In Chapter 6, Pobjoy takes a different route outside the IRL framework, arguing that the best interests principle articulated in Article 3(1) of the CRC should be utilised as an independent source of protection.12 This is the third mode of interaction referred to in Chapter 1 of the book. Chapter 6 also examines the non-refoulement obligation, which is implicit in Articles 6 and 37 of the CRC and provides a child falling outside the refugee criteria with complementary protection on a basis more tailored to children than the generic non-refoulement obligations under IHRL. His imaginative use of the best interests principle builds upon previous analysis of complementary protection by Professor McAdam.13 Pobjoy focuses on the operationalisation of the best interests principle in situations where a child does not meet the criteria under the refugee definition for refugee status or for other forms of subsidiary or complementary protection. A child who cannot secure refugee status or another form of protection is at risk of being returned to his or her country of origin and thus it is at this stage that the best interests principle should be invoked to prevent the child’s removal. Although the best interests principle may also inform the interpretation of the state’s obligations under the Refugee Convention, Pobjoy argues that the principle does not amend or displace the criteria set out in Article 1 A(2) of the Refugee Convention. Pobjoy argues that ‘[i]n the context of interpreting the constituent elements of the refugee definition the principle must simply be understood as norm-shaping rather than norm-producing’ (p 198). Pobjoy’s overview of state practice and academic writings on non-refoulement and complementary protection in this chapter confirms his belief that his proposal about the best interests principle being an independent source of protection is not entirely new. Many of the cases reviewed by Pobjoy reveal that the principle is regularly a feature of immigration and asylum cases, both in argument before a decision-maker and in the decision-maker’s findings. The developing jurisprudence on the best interests principle in immigration and asylum cases provides useful guidance on the application of Article 3(1) of the CRC to children seeking international protection (p 203). The application of Article 3(1) in this context demonstrates that although the Refugee Convention remains the cornerstone of refugee protection, the CRC provides ‘a critical additional layer of protection’ (p 238). Throughout the book, Pobjoy does not shy away from the challenges and implications of proposing closer interaction of the two international regimes. In particular, the third mode of interaction has potentially wide-ranging implications for children’s asylum claims. He is realistic about the scope of his research, for example, he acknowledges that he has not examined all of the constituent elements of the definition, nor has he attempted to address every obstacle a child may face in proving his or her refugee status. He maintains a firm focus on those areas of the definition, arising from his in-depth research of 2500 cases, which have caused particular difficulty for child claimants. This brief overview does not do justice to the breadth of Pobjoy’s research and the depth of his analysis of the two international legal regimes and how they are able to interact in the best interests of children seeking asylum. This book is a rich resource for anyone working with child refugees and asylum seekers, for judges and decision-makers and for academics researching children’s rights in the context of forced migration. It cites a wealth of case law from five common law jurisdictions, supporting a child-sensitive interpretation of the refugee definition, as well as supporting his argument that the best interests principle ought to be an independent source of protection in cases where a child is threatened with removal. This book is a skilful demonstration of how creative alignment of IRL and the CRC can ensure better international protection for children. For Pobjoy the crucial point is that children should benefit from the mutually reinforcing relationship between IRL and the CRC and that the Refugee Convention can and should continue to protect refugee children, provided decision-makers and judges recognise the role the CRC plays in interpreting and supplementing the Refugee Convention’s protection mandate (p 242). Footnotes 1 Hathaway, The Rights of Refugees under International Law (2005). 2 Hathaway and Foster, The Law of Refugee Status, 2nd edn (2014). 3 Goodwin-Gill and McAdam, The Refugee in International Law, 3rd edn (2011). 4 For example, UNICEF, A Child is a Child: Protecting Children on the Move from Violence, Abuse and Exploitation (2017). 5 Pobjoy, ‘A Response: The Child in International Refugee Law’ EJIL: Talk, Blog, 1 September 2017, available at: www.ejiltalk.org/a-response-the-child-in-international-refugee-law/ [last accessed 8 December 2017]. 6 Goodwin-Gill, ‘Editorial: Asylum 2001: A Convention and a Purpose’ (2001) 13 International Journal of Refugee Law 1 at 1. 7 Harvey, ‘Child Refugee and International Law: Legal Imagination in the Service of Others’, EJIL: Talk, Blog, 30 August 2017, available at: www.ejiltalk.org/child-refugees-and-international-law-legal-imagination-in-the-service-of-others/ [last accessed 8 December 2017]. 8 For example, Hathaway, supra n 1; Foster, supra n 2; Goodwin-Gill and McAdam, supra n 3. 9 Crock, Seeking Asylum Alone: Australia: A Study of Australian, Law, Policy and Practice Regarding Unaccompanied and Separated Children (2006) at 244. 10 The website is: www.childref.org, but at the time of writing (December 2017) the website was not live. 11 Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99. 12 See also Pobjoy’s article on this, ‘The Best Interests Principle as an Independent Source of International Protection’ (2015) 64 International and Comparative Law Quarterly 327. 13 McAdam, ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 The International Journal of Children’s Rights 251; McAdam, Complementary Protection in International Refugee Law (2007). © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Human Rights Law Review Oxford University Press

Jason M. Pobjoy, The Child in International Refugee Law

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© The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com
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Abstract

Pobjoy’s book is set to become an important addition to the development of international refugee law (IRL) alongside Hathaway’s The Rights of Refugees under International Law,1 Hathaway and Foster’s The Law of Refugee Status2 and Goodwin-Gill and McAdam’s The Refugee in International Law.3 Troubling and disturbing stories on the news and in social media and reports by organisations, such as UNICEF,4 record the plight of tens of thousands of children forced to undertake horrendous journeys in search of safe places to live and highlight the timeliness and relevance of this book. Children’s rights in some parts of the world are under threat, contributing to the mass movement of people, and it is incumbent on human rights advocates to find more imaginative and creative methods to hold states to account for their obligations under international treaties. Pobjoy’s book should be an important advocacy tool and resource to ensure secure protection for refugees, especially children. Pobjoy’s central thesis advocates the ‘creative alignment’ of IRL and the Convention on the Rights of the Child (CRC) to provide a solution to the challenges children face in making claims for asylum (p 5). A central theme of the book is that a greater interaction between the two international legal regimes has the capacity to enhance the protection afforded to refugee children (p 10). Recently the author indicated that the book ‘attempts to map out the substantive contours of the relationship between the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol (‘the Refugee Convention’) and the CRC and to anchor the relationship in the international rules of treaty interpretation’.5 The premise of the book is a reinterpretation of IRL, in particular the definition of ‘refugee’ set out in Article 1 A(2) of the Refugee Convention, using the CRC as the basis of that reinterpretation. Pobjoy supports his ‘creative alignment’ argument with a thorough and thoughtful analysis of the general rule of treaty interpretation in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), focusing especially on the systemic integration approach to treaty interpretation in Article 31(3)(c) of the VCLT (p 37). He builds upon Hathaway’s argument that interpretation of the Refugee Convention should be linked to the emerging body of international human rights law (IHRL) in order to keep it relevant and up to date. Although some have argued that the Refugee Convention is redundant, overly legalistic and difficult to apply,6 Pobjoy’s mission is to breathe new life into the Refugee Convention by providing a much needed children’s rights perspective.7 There has been a flurry of literature in recent years reflecting on the impact of IHRL on IRL,8 but very little scholarship on the relationship between the CRC and IRL. Pobjoy’s book seeks to redress this gap. Three modes of interaction between the CRC and IRL form the basis of Pobjoy’s ‘creative alignment’ argument and he returns to these modes of interaction throughout the book. First, the CRC provides procedural guarantees for a child, such as the right to express his or her views and to be heard (Article 12 CRC), which are absent from IRL. Secondly, the CRC might be drawn on as an interpretative aid to ensure a child sensitive interpretation of the refugee definition. Finally, the CRC may provide a child with an independent source of status and protection outside IRL. These three modes of interaction provide a child-rights framework for assessing the status of an at-risk child (pp 6–7, 27–31). The book begins by painting a familiar picture of a child refugee within the framework of IRL as invisible and unheard. Children are often the first to suffer human rights abuses: the consequences of conflict, the effects of poverty, environmental damage, and so on, and many are forced to leave their home and country of origin, either voluntarily or involuntarily, to seek protection. However, they are often overlooked and incorrectly assessed at the qualification stage of the refugee determination process (pp 2–3). The lack of a child-specific focus in the Refugee Convention has led to an interpretation of the refugee definition from an adult-focused perspective.9 Additionally, children’s claims will often be subsumed into those of their parents or other adult family members and risk not being heard at all. Children obtain derivative status arising from their parent’s claim but conversely they also risk being sent back to their country of origin because their parents or other family members have been unable to prove their refugee status. Chapter 2 addresses the first mode of interaction—the CRC as a procedural guarantee, focusing in particular on the circumstances when a decision-maker must assess a child’s claim, ensuring that the child’s right to be heard is fulfilled. Pobjoy also develops an argument that removal of a child without considering his or her individual claim may risk violating the non-refoulement obligation in Article 33 of the Refugee Convention. This chapter also considers in detail interaction of the family unity obligations under the Refugee Convention and Article 9 of the CRC. Articles 9 and 12 of the CRC, as procedural guarantees for children, have the capacity to reduce a child’s invisibility in the refugee determination process (p 78). Chapters 3 to 5 draw you to the heart of the book and invoke the second mode of interaction, the CRC as an interpretative aid. Pobjoy seeks to examine the capacity of the Refugee Convention definition to meet the protection needs of refugee children. Although, strictly speaking, it is not a question of whether the definition has the capacity to meet these needs, but a question of the capacity of a state to interpret the definition of refugee from the perspective of a child. Each of these chapters provides an overview of current practice on different aspects of the refugee definition: ‘well-founded fear’ of harm (Chapter 3), the requirement that the child is at risk of ‘being persecuted’ (Chapter 4) and the requirement that the risk is causally connected to one of the five Refugee Convention grounds (Chapter 5). In each chapter, Pobjoy analyses the challenges faced by children and how these might be overcome. This is achieved through an understanding of refugee-hood from a child’s perspective which draws on progressive interpretations of the definition and the broader framework of the CRC. This analysis is based on international, regional and domestic sources of law, including international treaties, ‘soft law’ guidance provided by the United Nations High Commissioner for Refugees and the Committee on the Rights of the Child and the writings of scholars and academics who seek to reinvigorate the Refugee Convention with contemporary views on IHRL and refugees. Finally, Pobjoy has reviewed over 2500 cases, which cover all levels of judicial decision-making in five common law jurisdictions (the United Kingdom, Canada, Australia, New Zealand and the USA) where the decision-maker has specifically addressed a claim brought by a child. As a companion to the book, the author is developing a website with a searchable database of the case law,10 which is designed to promote this creative alignment of IRL and the CRC for the ultimate benefit of children facing the challenges of a refugee status determination process. As Pobjoy’s exposition of case law demonstrates, children face enormous challenges in proving eligibility for refugee status because traditionally the concept of ‘refugee’ has been interpreted through an adult-focused lens (p 80) and children (like adults) must demonstrate subjective fear and objective risk of prospective harm. This bipartite understanding of ‘well-founded fear’ creates an almost insurmountable obstacle for children seeking protection and they are often incorrectly assessed because decision-makers do not account for the fact that the applicant is a child. Pobjoy’s inquiry considers three constituent elements of the definition and how these have been interpreted and applied in assessing the refugee status of children. There is evidence that the courts in the five common law states studied in the book are drawing on the jurisprudence in other jurisdictions, thus creating a ‘transnational judicial conversation’11 in IRL. There are nascent signs of judicial convergence (more evident in higher level domestic courts) in the interpretation of the Refugee Convention using IHRL standards including the CRC. In Chapter 6, Pobjoy takes a different route outside the IRL framework, arguing that the best interests principle articulated in Article 3(1) of the CRC should be utilised as an independent source of protection.12 This is the third mode of interaction referred to in Chapter 1 of the book. Chapter 6 also examines the non-refoulement obligation, which is implicit in Articles 6 and 37 of the CRC and provides a child falling outside the refugee criteria with complementary protection on a basis more tailored to children than the generic non-refoulement obligations under IHRL. His imaginative use of the best interests principle builds upon previous analysis of complementary protection by Professor McAdam.13 Pobjoy focuses on the operationalisation of the best interests principle in situations where a child does not meet the criteria under the refugee definition for refugee status or for other forms of subsidiary or complementary protection. A child who cannot secure refugee status or another form of protection is at risk of being returned to his or her country of origin and thus it is at this stage that the best interests principle should be invoked to prevent the child’s removal. Although the best interests principle may also inform the interpretation of the state’s obligations under the Refugee Convention, Pobjoy argues that the principle does not amend or displace the criteria set out in Article 1 A(2) of the Refugee Convention. Pobjoy argues that ‘[i]n the context of interpreting the constituent elements of the refugee definition the principle must simply be understood as norm-shaping rather than norm-producing’ (p 198). Pobjoy’s overview of state practice and academic writings on non-refoulement and complementary protection in this chapter confirms his belief that his proposal about the best interests principle being an independent source of protection is not entirely new. Many of the cases reviewed by Pobjoy reveal that the principle is regularly a feature of immigration and asylum cases, both in argument before a decision-maker and in the decision-maker’s findings. The developing jurisprudence on the best interests principle in immigration and asylum cases provides useful guidance on the application of Article 3(1) of the CRC to children seeking international protection (p 203). The application of Article 3(1) in this context demonstrates that although the Refugee Convention remains the cornerstone of refugee protection, the CRC provides ‘a critical additional layer of protection’ (p 238). Throughout the book, Pobjoy does not shy away from the challenges and implications of proposing closer interaction of the two international regimes. In particular, the third mode of interaction has potentially wide-ranging implications for children’s asylum claims. He is realistic about the scope of his research, for example, he acknowledges that he has not examined all of the constituent elements of the definition, nor has he attempted to address every obstacle a child may face in proving his or her refugee status. He maintains a firm focus on those areas of the definition, arising from his in-depth research of 2500 cases, which have caused particular difficulty for child claimants. This brief overview does not do justice to the breadth of Pobjoy’s research and the depth of his analysis of the two international legal regimes and how they are able to interact in the best interests of children seeking asylum. This book is a rich resource for anyone working with child refugees and asylum seekers, for judges and decision-makers and for academics researching children’s rights in the context of forced migration. It cites a wealth of case law from five common law jurisdictions, supporting a child-sensitive interpretation of the refugee definition, as well as supporting his argument that the best interests principle ought to be an independent source of protection in cases where a child is threatened with removal. This book is a skilful demonstration of how creative alignment of IRL and the CRC can ensure better international protection for children. For Pobjoy the crucial point is that children should benefit from the mutually reinforcing relationship between IRL and the CRC and that the Refugee Convention can and should continue to protect refugee children, provided decision-makers and judges recognise the role the CRC plays in interpreting and supplementing the Refugee Convention’s protection mandate (p 242). Footnotes 1 Hathaway, The Rights of Refugees under International Law (2005). 2 Hathaway and Foster, The Law of Refugee Status, 2nd edn (2014). 3 Goodwin-Gill and McAdam, The Refugee in International Law, 3rd edn (2011). 4 For example, UNICEF, A Child is a Child: Protecting Children on the Move from Violence, Abuse and Exploitation (2017). 5 Pobjoy, ‘A Response: The Child in International Refugee Law’ EJIL: Talk, Blog, 1 September 2017, available at: www.ejiltalk.org/a-response-the-child-in-international-refugee-law/ [last accessed 8 December 2017]. 6 Goodwin-Gill, ‘Editorial: Asylum 2001: A Convention and a Purpose’ (2001) 13 International Journal of Refugee Law 1 at 1. 7 Harvey, ‘Child Refugee and International Law: Legal Imagination in the Service of Others’, EJIL: Talk, Blog, 30 August 2017, available at: www.ejiltalk.org/child-refugees-and-international-law-legal-imagination-in-the-service-of-others/ [last accessed 8 December 2017]. 8 For example, Hathaway, supra n 1; Foster, supra n 2; Goodwin-Gill and McAdam, supra n 3. 9 Crock, Seeking Asylum Alone: Australia: A Study of Australian, Law, Policy and Practice Regarding Unaccompanied and Separated Children (2006) at 244. 10 The website is: www.childref.org, but at the time of writing (December 2017) the website was not live. 11 Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99. 12 See also Pobjoy’s article on this, ‘The Best Interests Principle as an Independent Source of International Protection’ (2015) 64 International and Comparative Law Quarterly 327. 13 McAdam, ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 The International Journal of Children’s Rights 251; McAdam, Complementary Protection in International Refugee Law (2007). © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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Human Rights Law ReviewOxford University Press

Published: Mar 1, 2018

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