Of Shepherds and Sheepdogs – Andre Lawrence Shepherd v. Bundesrepublik Deutschland before the Court of Justice of the European Union

Germany, March 9, 2015

An American citizen applied for asylum in Germany on the basis of Article 9(2)(e) of the Qualification Directive (QD). He refused to continue working in the US armed forces serving in Iraq, claiming his continued participation would lead to the commission of war crimes. The referring court stayed proceedings and asked the CJEU to help interpret the act of persecution contained in Article 9(2)(e). In this article, Julian Lehmann dissects the CJEU's opinion and predicts the outcome in Mr. Shepherd's case.

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“The Benefit of the Doubt” in Asylum Law

United Kingdom , March 2, 2015

"The benefit of the doubt" is best understood, not as an independent principle to be ranked alongside the lower standard of proof, but rather as an integral part of such a standard.

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Establishing a Common European Asylum System by Leaving European Human Rights Standards Behind: Is this the Way Forward?

European Union, February 4, 2015

Things have definitely come to a head between the two European Courts, and for the time being, reconciliation is nowhere in sight [...] Should push come to shove, and national authorities be placed before a real dilemma between respecting EU Law or respecting ECHR Law, the ECJ might find that its judicial policy is not conducive to the authority and uniform application of EU Law [...] The irony is that, in following its perilous course, the ECJ is striving to place the Union’s AFSJ and CEAS on solid foundations. In fact, it is undermining them, along with human rights protection in the EU and beyond. Consider this: should the NS test eventually supplant the Soering test in the operation of the Dublin system, the ECJ will effectively have built a “systemic deficiency” – a rule producing serial violations of the prohibition of inhuman or degrading treatment.

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One Year after the Korean Refugee Act

South Korea, January 7, 2015

The Republic of Korea became a signatory of the Refugee Convention in 1992, shortly thereafter inserting just a few articles into its domestic immigration laws to adhere to the required procedures of refugee recognition under the Convention. By 2008, applications for refugee status had not exceeded 2,000, and the number of recognized refugees remained around 100. While it was undeniable that Korea had made steady progress in refugee protection, the pace was deemed unsatisfactory and public criticism was common. In 2012, the South Korean parliament passed Law No. 11298 of 2012, Refugee Act [hereinafter “Refugee Act”], which went into effect in 2013, making the Republic of Korea the first Asian country to have an independent law for refugee protection.

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Historic U.S. Board of Immigration Appeals Decision Recognizes Domestic Violence and Gender as the Basis for Asylum

U.S, December 3, 2014

Lawyers and scholars have been advocating for years for women to be fairly treated under our asylum statute, and one critical issue in this regard has been recognition of domestic violence as a potential basis for asylum. On August 26, 2014, after 20-years of a long and “bottom-up” movement for legal change, the Board of Immigration Appeals (B.I.A. or Board) issued an historic decision, recognizing that gender could be a cognizable characteristic for asylum eligibility purposes, and that domestic violence could, with proper evidence submitted, be the basis for a grant of asylum. The decision represents a ground-breaking reversal of the Board’s 15-year old denial of a claim based on domestic violence, Matter of R-A, issued in 1999

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UNHCR Faces an RSD Crisis

World-wide, November 10, 2014

In 2013, around one in five people who sought individual refugee status determination applied not to a government, but to the UN Refugee Agency (UNHCR). While UNHCR reports that individual asylum applications as a whole rose globally from 2012 to 2013 by 15 percent, the burden of that increase was disproportionately absorbed by UNHCR, with a 61 percent increase in individual applications to UNHCR offices.

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The Conundrum of Concealment: Minister for Immigration and Border Protection v. SZSCA, [2013] FCAFC 155 (Aus. Full Federal Court, Dec. 10, 2013)

Australia, October 1, 2014

The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more," noting that “there was not a lot of work and he had to support his family." When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.

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