Cardinal Gérald Cyprien Lacroix, middle left, archbishop of Quebec, embracing Boufeldja Banabdallah, co-founder of the Quebec Islamic Cultural Center, at a special Mass this week following the Sunday shooting. Photo Credit: Ian Willms for The New York Times on the New York Times' website.

Quebec’s Response to Hate: More Tolerance

Article in The New York Times
1 February, 2017

Comforting.

“The response of Quebec’s premier, Philippe Couillard, is worth noting. “Every society has to deal with demons,” he said. “Our society is not perfect. None is. These demons are named xenophobia, racism, exclusion. They are present here. We need to recognize that and act together to show the direction we want our society to evolve.”

That was what Canadians sought to do. Thousands gathered at memorial services across the country, including Mr. Trudeau on Monday. Speaking earlier to Parliament, he addressed the more than one million Muslim Canadians: “Thirty-six million hearts are breaking with yours,” he said, referring to the population of Canada. “Know that we value you.””

  Photo credit: EU Immigration and Asylum Law and Policy's website

The EU Migration Partnership Framework: an External Solution to the Crisis?

by Céline Bauloz, Refugee Law Initiative, School of Advanced Study, University of London
31 January, 2017

The EU really seems to be digging itself into a hole.

“The so-called migration/refugee crisis has shed light on the limits of the EU and its Member States’ ability – and willingness – to effectively deal with larger flows of migrants. This crisis has been largely depicted as a policy crisis rather than one of numbers (see most notably P. De Bruycker; M. Den Heijer, J. Rijpma & T. Spijkerboer; V. Chetail), and for good reasons. Looking only at refugee data at the peak of the crisis in 2015, UNHCR accounts for 86 percent of the world’s refugees being hosted in developing regions and 6 percent in Europe.

As the absolute number of arrivals in the EU has nevertheless greatly increased, the EU strategy has been to address both the structural deficiencies of its internal migration and asylum policy and the migratory pressure at its external borders. This last strategic objective has been most notably tackled at the EU external policy level through increased cooperation with third countries. After the 2015Valletta Summit, the 2015 EU-Turkey Joint Action Plan and the 2016 EU-Turkey Statement, the European Commission proposed a new Migration Partnership Framework (MPF) which was endorsed by the European Council in June 2016. Presented as a new approach for more coordinated, systematic and structured cooperation with third countries, this contribution provides an overview of the MPF and its operationalization before undertaking a more critical assessment of its potential and prospects.”

To read the full article, please click here.

  Demonstrators swarmed Terminal 4 of Kennedy International Airport after some travelers were denied entry on Saturday, before Judge Ann M. Donnelly granted an emergency stay. Photo Credit Christopher Lee for The New York Times on the New York Times' website.

Judge Who Blocked Trump’s Refugee Order Praised for ‘Firm Moral Compass’

Article in The New York Times
29 January, 2017

“The federal judge who blocked part of President Trump’s executive order on immigration on Saturday night worked for years in the Manhattan district attorney’s office, where she was one of the lead prosecutors on the high-profile Tyco International fraud trial.

Colleagues remembered the judge, Ann M. Donnelly, as an astute lawyer unfazed by the spotlight. She found herself in its glare unexpectedly on Saturday night, when she heard an emergency appeal from the American Civil Liberties Union challenging the executive order barring refugees. She granted a temporary stay, ordering that refugees and others detained at airports across the United States not be sent back to their home countries.

Enforcing Mr. Trump’s order by sending the travelers home could cause them “irreparable harm,” Judge Donnelly ruled.”

Faten was writing me this morning: “Americans voted for a change. And a change they will get, but not the one they expect: Trump is serving refugees’, migrants’ and other perjured and segregated groups’ case. He is giving them what they lack: compassion from others, visibility, identity, and to be looked at like victims not criminals (or potential ones for the least). He is giving them what they never had: their human rights and most of all their humanity.”

I think she is totally right. We have been complacent about human rights in recent years, taking them too easily for granted. Despite the populist anti-immigration discourse, we were reassured that the government was not actually violating the rights of most people.

We are now facing populism in government and we realise that this is an entirely different ball game. Populists are characterised by their utter contempt for independent institutions which limit the powers of the elected representatives. These institutions exist precisely because history has taught us that majorities can be wrong: this is the lesson of the Nazi and fascist regimes of the 30s. This is why we created an international human rights regime in 1948, a European human rights regime in 1950 and a Canadian human rights regime in 1982. And we decided that judges who wouldn’t be swayed by electoral pressure would be the best persons to administer these regimes and tell politicians when they were violating the rights of individuals.

Contemporary democracies are thus founded on three pillars: electoral representation, human rights guarantees, and the Rule of Law, i.e. the capacity of individuals to ask a judge to rule when the first two pillars are threatened. Majority rule is only one part of the essence of democracy as we now understand it. The dialogue between the politician and the judge, each of whom performs an equally legitimate role in how our countries are governed, is central to how we conceive a functioning democracy.

Populists constantly criticise those “unelected” institutions which can push back against majority decisions. These institutions include courts and tribunals, but also human rights commissions, equality commissioners, ombudspersons, auditor generals, etc. We remember Immigration Minister Jason Kenney in February 2011 when he deplored that judges were too often declaring his decisions unconstitutional and weren’t doing enough to help the government, accusing them of “heavy-handed” interference in decisions made by immigration department officials.

This is why the decision yesterday by Justice Ann M. Donnelly to temporarily stay the implementation of President Trump’s executive order on immigration, on the basis that sending the travelers home could cause them “irreparable harm”, is important. What is at stake is the capacity of the executive to restrict the rights of individuals, based on one of their immutable characteristics (nationality), without taking into consideration their specific circumstances, thus incurring the accusation of discrimination. This judicial pronouncement (albeit temporary) is the first of what we can expect will be a long list of cases where the judiciary will affirm constitutional rights by opposing decisions made by the White House or Congress or State legislatures.

The silver lining described by Faten is now more apparent. As populist decisions come to bear on individuals’ lives, independent institutions will be asked to decide on their legality or constitutionality. They will be encouraged by much stronger mobilisation of civil society, as we have just witnessed in the case of the seven persons concerned by judge Donnelly’s decision. ACLU and allies immediately reacted to the implementation of the executive order and won a temporary reprieve, which will benefit the hundreds of individuals now stranded in American airports. Big companies, such as Google, Apple, Facebook and Airbnb condemned the executive order. We also heard unexpected bed fellows such as Theresa May and Angela Merkel both criticising the executive order. Hundreds of citizens volunteered to help the stranded migrants. This is what Faten meant: the new President is actually (and counterproductively from his point of view) contributing to a huge mobilisation in favour of migrants and refugees.

Such reactions convincingly undermine the legitimacy – if not the legality – of populist political decisions which undermine decades of progress in the protection and promotion of the human rights of everyone. It is hoped that this mobilisation will also convince a large part of those who would vote for populist leaders that such politics makes for bad policies.

To read the full article in the NY Times, please click here.

 

Against All Odds: Turkey’s Response to “Undesirable but Unreturnable” Asylum-Seekers

By Didem Doğar
27 January, 2017

Please see this great article on Turkey’s reaction to its refugee situation by one of our brilliant doctoral candidates,

This article critically analyses Turkish legislation and practice regulating the status of “undesirable but unreturnable” asylum-seekers, who are suspected and/or convicted of criminality but cannot be removed from Turkey due to the principle of non-refoulement, questioning how the issue is tackled by the Turkish State. The current political situation in the region having forced it to change and update its legislation, it has created a temporary protection regimen to handle refugee influxes, a subsidiary protection regime, and other categories of staying permits for foreigners who cannot be removed from Turkish territory. Beyond the political situation, its legal and judicial initiatives are, however, affected by its international and regional legal obligations, as European Court of Human Rights case law demonstrates. There is limited information as to how many exclusion-triggered cases are processed and how many refugees are excluded and what happens to those who are excluded after this decision. Furthermore, Turkey’s situation might be untenable, as it is the main transit hub for foreign terrorist fighters and people fleeing the Syrian and Iraqi conflicts.

To access the full article, please click here.

 

  President Trump speaking at the Department of Homeland Security on Wednesday. Photo Credit Doug Mills/The New York Times on The New York Times' website

The Real Cost of Mr. Trump’s Wall

Article in The New York Times
26 January, 2017

A call for maintaining firewalls between local police and immigration enforcement.

“President Trump on Wednesday unveiled the first proposals to make good on his promise to make America impenetrable to unauthorized immigrants and intolerable for those who are already here.

As expected, he promised to begin building a wall along the Mexican border, an enterprise that is far from certain because Congress would have to approve billions of dollars in funding. He also outlined a series of ominous regulatory changes aimed at drastically expanding the detention of immigrants who enter without permission. He is also seeking to turn more local police and corrections officials into enforcers of immigration law, while threatening to withhold funding from jurisdictions that have sensibly refused to assume that role.

[…]

While Mr. Trump has the authority to order the detention of all immigrants apprehended while entering without permission and end the practice of releasing them pending court dates — which the executive order appears to call for — Congress should withhold the funding needed to carry out this plan. Leaders in so-called sanctuary cities, like New York and Los Angeles, have rightly recognized that immigrants, including those here without permission, are more of an asset than a burden. Their defiance is likely now to be tested by renewed calls to turn local police officers into immigration enforcers. The courage of local leaders may help stymie Mr. Trump’s misguided approach.”

To read the full article, in the NY Times, please click here.