Courting disaster? Regional agreements for 'protection elsewhere' and the courts

Abstract

Unauthorised migration (migration that does not comply with national immigration laws) occurs for a variety of reasons, some of which are recognised and protected by international law, while others are not. Some migrants may arrive with a lawful status (a visa or entry permit, for example) but lose it subsequently. This commonly occurs in Australia, as visitors overstay their visas. Others will be unable to secure entry under domestic law for their desired purposes. Impoverished Mexicans desperate for employment in the United States may decide to enter the United States clandestinely, for example. The focus of this chapter is refugees and people seeking protection as refugees (‘asylum seekers’). Refugees are people who must be granted protection from human rights violations at home; they too, however, will find it difficult to migrate in conformity with national immigration laws, because a person is only a refugee once they have crossed an international border and because many countries deliberately shield themselves from refugee flows. Consequently, people seeking legal status as refugees frequently have to resort to people smugglers in order to get the protection they need. They are then unfairly labelled as illegal or criminal in public discourse, along with the people smugglers. This chapter examines some regional and bilateral agreements that attempt to ensure that refugees and asylum seekers stay in the country to which they first flee or are returned to that country. One of the problems with these regional agreements is that refugee rights are neither universally accepted nor universally implemented and, as a consequence, these agreements pose risks for refugee rights that invite litigation. The important role of the courts in protecting refugee rights from the potentially corrosive effects of these agreements will be explored.