4 - Using Human Rights Law to Travel in Search of Refuge in Europe

Summary

Chapter 4 focuses on protection from refuge claims made in the European context. It examines cases in which refugees use human rights law to challenge a European externalisation practice or request or resist a transfer made pursuant to the European Union’s Dublin System. Such claims are made before the European Court of Human Rights or domestic adjudicative decision-making bodies under the European Convention of Human Rights. They are also made before United Nations treaty bodies using international human rights law. I argue that in initial and early European protection from refuge claims, decision-makers identified common aspects of refugeehood and used human rights to engage with the functions and nature of refuge. There was an understanding that refuge is a remedy that must address present, future and past vicissitudes of displacement but decision-makers now search for the ‘good’ or ‘peculiarly vulnerable’ refugee. This has resulted in decision-makers approaching refuge as a scarce commodity and one stripped down to the barest minimum of protections. In searching for the exceptional refugee, most decision-makers approach questions of gender, age and disability in a nominal manner.