Abstract This article analyzes the unmaking of Canada’s refugee protection system through a series of asylum reforms introduced between 2020 and 2026. It begins with the Covid-19 border closure in 2020, continues with the implementation of the Additional Protocol to the Safe Third Country Agreement in 2023, and culminates in the enactment of Bill C-12 in 2026. Drawing on an in-depth case study of an asylum seeker who was interviewed for this research, the analysis is anchored in E Tendayi Achiume’s theory of borders as sites of ‘jurisdictional conjuring’, where legal rights and obligations can be made to disappear, as if by magic. The article is structured around the three stages of a magic trick: the pledge, the turn, and the prestige. The pledge sets out the legal framework governing asylum at the Canadian border, focusing on the Canada-US Safe Third Country Agreement. The turn examines the effects of Canada’s pandemic-era ‘direct back’ policy, and identifies it as a form of legal sleight of hand that deferred protection, displaced legal responsibility, and obscured the racialized effects of the border closure. The prestige then traces the transformation of these temporary emergency measures into permanent laws and policies through the 2023 Additional Protocol and 2026 reforms enacted through Bill C-12. It foregrounds the racialized dimensions of these measures, to highlight their disparate impact on racialized asylum seekers from the Global South. More broadly, it argues that Canada engaged a legal sleight of hand to evade its legal obligations towards asylum seekers, while simultaneously obscuring the racial consequences of these policies. It concludes by calling for greater scrutiny of the legal fictions that sustain this system, and for renewed commitment to meaningful refugee protection under Canadian law.
This edited collection of 20 individual chapters is the concluding academic output of the ‘Families on the Move’ (FAMIMOVE) research project, a two-year project launched in January 2023, carried out by a consortium of seven European universities and co-funded by the European Commission. FAMIMOVE focused on international family law and migration law, having the two-fold objectives of ‘depicting the intersections between these two areas of the law and seeking to contribute a better coordination between them’ (p 23). Despite some gaps in the analysis, which are discussed below, Children in Migration and International Family Law: The Child’s Best Interests Principle at the Interface of Migration Law and Family Law delivers on these objectives for academic and practitioner audiences. Within this volume, practitioners and educators will find accessible and in-depth chapters on important areas of European Union (EU) law, particularly the Brussels IIter Regulation (González Marimón), age assessment (Hüning), and aspects of family reunification (separate chapters by Voinich and Zaccaroni). Where the effects of EU legal regulation are felt less keenly, the case studies shed light on important points of divergence and convergence in the approaches of specific EU States. The eight, chapter-length domestic case studies are drawn from seven different jurisdictions, illustrating the diversity of contexts in which these questions are being addressed.
Australia is not alone in facing a decades-long tug of war between the courts, the executive, and parliament over migration policy. In the absence of a constitutionally entrenched Bill of Rights, asylum seekers have relied on administrative law and fragmented constitutional arguments to contest the limits of immigration detention, precarious visa conditions, and legislative ratcheting. The High Court of Australia decision in NZYQ, handed down at the end of 2023, overturned the established and controversial authority of Al-Kateb that had given the green light to potentially indefinite immigration detention. The result of NZYQ was the release of 300 detainees, many of whom had their visas cancelled due to criminal convictions but could not be returned to their home country due to a fear of persecution. The Commonwealth legislative responses to this have been swift and intemperate, seeing those previously detained subjected to restrictive visa conditions including curfews and electronic monitoring as well as the potential for those previously convicted of serious offences to be preventively detained. In YBFZ, a majority of the High Court proceeded to find the curfews and electronic bracelet conditions a form of punishment and therefore unconstitutional, again requiring a more pointed regulatory response from the Commonwealth which has included the ability to remove non-citizens with criminal records to a third country. This paper traces the rise and rise of Australia's 'crimmigration' policy post-NZYQ. We argue that the legislative response to NZYQ signals the consolidation of the expansion of 'crimmigration' to incorporate preventive and 'pre-crime' measures in Australia, spearheading novel and troubling developments including mandatory minimum sentences for visa violations, the distortion of post-sentence preventive detention and supervision regimes, and the potential for warehousing individuals in developing countries without adequate legal protections.Keywords: Australia; crimmigration; immigration detention; Australia.
This article proposes a doctrinal reorientation in US asylum law concerning the definition of 'particular social group', grounded in recent developments in US administrative law. Since the advent of the immutability test articulated in the foundational decision Matter of Acosta (1985) by the Board of Immigration Appeals-the chief administrative appellate body that issues precedential decisions related to refugee status determinations in the United States-the US legal standard has shifted toward a far more restrictive framework. Beginning in 2006, the Board began layering additional requirements-social distinction and particularity-onto the social group analysis. These developments have sharply narrowed access to asylum protection, particularly for forcibly displaced Latin Americans fleeing gender-based harm, gang violence, and persecution by transnational criminal organizations. This restrictive trend has reached its apogee in the second Trump administration, where now there is not a single remaining example of a social group that satisfies the three-part test in Board precedent. However, the recent US Supreme Court decision in Loper Bright Enterprises v Raimondo-which overturned the longstanding Chevron doctrine of administrative deference-may present an opportunity for reform. Specifically, that shift in law has created an opening for US courts to reassess the meaning of 'particular social group' without deferring to restrictive agency interpretations. In response to that opening, this article argues that by returning to the immutability test established in Matter of Acosta-or adopting a framework that allows for either immutability or social distinction-courts can align US refugee law more closely with United Nations High Commissioner for Refugees guidance, even at a time when the Trump administration is taking every possible measure to dramatically reduce who may seek asylum in the United States. In the present moment of rising displacement and increasing need for refuge, US law can and must recover a normative commitment to protection.
State sovereignty is widely accepted as a necessary basis for refugee lawmaking. Recent trends within refugee law scholarship have shifted the analytical focus beyond State lawmaking in international law to interrogate how refugee matters are governed at the level of national law. This article continues that trajectory by exploring whether refugee law-making takes place beyond the boundaries of State sovereignty, in the practice of non-independent territories. Through a study of the 17 non-independent territories currently administered by the United Kingdom, including such well known examples as the Falkland Islands and Diego Garcia, it shows that, paradoxically, at least 12 have made their own provision for local refugee law; and many of these local laws differ considerably from the UK's own refugee law framework. This suggests that the role of sovereign States in refugee law-making should not blind us to law-making practice by other entities. Such practice has implications for our understanding of refugee law and State sovereignty. Engaging with the practice of non-independent territories and other non-sovereign entities has the potential both to deepen and to complicate our picture of refugee law at the national and international levels, pushing us towards a wider epistemology of refugee law-making.
