Camp Moria, housing 13,000 refugees mainly from Afghanistan, burnt down on 8 September. The tragedy has been long in the making—Europe has failed the migrants in Moria for years, forsaking them to a sub-human non-life in overcrowded refugee camps. Those of us who hoped that the dramatic fire would act as a wake-up call have seen little progress this past week in the wake of the fire. Europe, except for Germany, has so far responded in a cold and calculating way.
The little response we have seen has mainly focused on unaccompanied children and to a lesser extent on families. The Netherlands, for example, has offered to receive a few hundred families from Moria. The ‘offer’ is even less generous than it appears, as their number will be deducted from the total number of vulnerable refugees to be received by the Netherlands on the basis of a standing agreement with UN refugee agency UNHCR, much to the dismay of the agency.
The focus on unaccompanied children plays into the primary feelings of sympathy of many Europeans. A Dutch woman who started a campaign to collect sleeping bags for Lesbos told a reporter from the national news agency in the Netherlands: “I am a mother. When I see children sleep on the streets, I must do something, no matter what”. It may be natural for people to respond more to suffering children than to adolescents and adults, but surely politics should not only be dictated by motherly instincts alone?
It remains important to unpack the thin policy response to the fire in Moria. The focus on children and families makes a false distinction among refugees that makes it seem as if only children are vulnerable. It is a cheap, yet effective trick that puts 400 child refugees in the spotlight to distract the attention from the almost 13,000 others that live in similar squalid conditions.
Unfortunately, we have landed ourselves in a time where official politics are not guided by cherished and shared institutions like the refugee convention, which stipulates that people fleeing from war are entitled to be heard in an asylum procedure and, while the procedure is pending, received in dignified circumstances. Instead, policies seem cynically oriented towards one goal only: deterrence. The underlying idea of policy comes across as something along the lines of “[l]et 13,000 people suffer in front of as many cameras as possible so that desperate people will refrain from crossing the Mediterranean to seek shelter and asylum in the affluent countries of Europe”.
While 13,000 people suffer, the gaze of Europe singles out several hundred children for our solidarity. The distinction between these children and the other refugees rests on two equally weak arguments.
Firstly, it is implied that children are more vulnerable than other refugees. Whereas this is true in some respects, the level of despair and hopelessness experienced by all people in Moria is shocking. During my visit to Lesbos last year, aid workers told me that many refugees in Moria—children, adolescents and adults—suffer from a triple trauma. The first one was caused by the violence that triggered their escape, the second by the long passage to Europe and the crossing of the sea, and, finally, new trauma arising from the dismal conditions in the camp, the permanent state of insecurity, and the lack of future prospects. A vast majority of the people in Moria qualify to be seriously considered in asylum procedures because they fled from the violence of war and are extremely vulnerable.
Secondly, the focus on children leans on an idea of ‘deserving’ versus ‘undeserving’ refugees. Children cannot be blamed for their situation and are presumed innocent. The same applies to women in the eyes of most people. Adult men, and especially single (young) men, on the other hand, are looked at with a multitude of suspicions. Men are associated with violence and often suspected to be culprits rather than victims of war. They are also distrusted as they may be associated with sexual violence against women that is indeed widespread, but certainly does not hold true for all men. Finally, they don’t solicit feelings of sympathy because they are considered strong and capable of managing their own survival. Or worse, they are considered fortune seekers instead of bare survivors of war.
However, it is a myth that men should not deserve our sympathy! In situations of war, men are more likely than women to be exposed to violence – killing, torture, arbitrary arrest, or forced subscription in a regular or rebel army. Traumatized and destitute, they find themselves in a situation where they do not qualify for many of the aid programmes that are based on the same gender biases and reserve their resources for women and children. Quite a lot of young men see no other option than to prostitute themselves in order to survive.
Singling out unaccompanied children therefore is delusional. It seems to be designed to placate the large numbers of Europeans who want to act in solidarity with refugees. Our politicians keep telling us that social support for refugees has dried up, but while they listen in fear to right-wing populists, they are blind to the wish of equally large constituencies that want to welcome refugees.
As we are left in anger and shame, let us not step into the false dichotomy of deserving/undeserving refugees. Policy should be guided by legislation, not by false distinctions that are based on and reinforce popular sentiments. All refugees in Moria, irrespective of their gender or age, should be able to tell their story while being sheltered in dignity. All these stories need to be heard in proper asylum procedures—without prejudice.
Written by Jessica Schultz (University of Bergen/CMI)
This text first appeared on the blog of the Odysseus Academic Network and is re-posted here. Jessica Schultz is a Post-Doctoral researcher at the University of Bergen Faculty of Law, and a Researcher and Senior Adviser at the Chr. Michelsen Institute.
With increasing enthusiasm, European states are reviving the Refugee Convention’s cessation provisions in service of their return-oriented refugee policies. This practice threatens the careful balance established by refugee law between the security of refugee status, on the one hand, and its impermanence on the other.
This post reviews the
legal requirements for cessation of refugee status as well as how the focus on
return distorts their application. Through the lens of Norwegian practice, it
is possible to see how reliance on an
internal protection alternative (IPA) and non-state actors
of protection dilute the requirement of durable protection, especially for
women and children.
As cessation practice
becomes a more normalized part of refuge administration in Europe and
elsewhere, it is essential that decision-makers uphold the distinction between
protection from return or non-refoulement, and
cessation of refugee status. As described below, cessation application requires
authorities to consider factors beyond the risk of persecution or serious harm.
Application of the
cessation clauses contained in Articles 1C(5) and (6) of the Convention is an important
example of how the Refugee Convention is being leveraged to advance states’ restrictive
agendas. These provisions permit termination of refugee status when the
refugee …’ can no longer, because the circumstances in connection with which he
has been recognized as a refugee have ceased to exist, continue to refuse to
avail himself of the protection of the country of his nationality’ or, in the
case of a stateless person, the country of previous residence.
While cessation has always
been a possibility, the high legal threshold and administrative costs are among
the reasons why most states (Germany
and Australia are exceptions), have refrained from an
active cessation practice when it comes to individual cases. Instead,
Convention refugees have typically received a permanent residence permit either
immediately or at least predictably within a relatively brief period.
This commitment to provide
a stable refugee status is clearly eroding. Canada, Denmark, and Sweden have all adopted
policies involving the proactive review of a refugee’s continued need for
protection. In Denmark, the threat
of cessation even applies to resettled refugees, who already, in theory,
have a durable solution. The draft
EU Qualification Regulation would introduce mandatory reviews of refugee status to be conducted
in connection with the renewal of residence permits for the first time for
Convention refugees (after 3 years) and for the first two times for
beneficiaries of subsidiary protection (i.e. after one year and again after 3
rightly points out, there is a danger that such reviews could slide
into a ‘cessation light analysis’ where the only issue assessed is whether the
risk of persecution or serious harm still exists. This ‘mirror approach’
premises cessation on the absence of conditions giving rise to refugee status,
and nothing more.
Cessation in refugee law:
balancing two kinds of ‘refugee time’
So what exactly is the
problem? Besides the fact that refugees face a risk of premature (unsafe)
return and renewed displacement, the ‘mirror approach’ reflects a distorted
reading of the Refugee Convention.
As Durieux has eloquently
observed, the Convention carefully balances two dimensions of ‘refugee time’.
The first relates to the basket of rights and benefits that accrue as the
refugee’s attachment to the host state increases. (Articles 3-34). While the
Convention stops short of requiring states to naturalize refugees, this outcome
is explicitly encouraged in Article 34. The second relates to the end of refugee
status. While the logical consequence of long-term stay is naturalization,
Article 1(C) of the Convention clearly permits the termination of status before
this takes place. The two dimensions of refugee time create an internal tension
between opportunities to settle in a new community and the possibility of being
forced to return to one’s country of origin.
In light of the
Convention’s object and purpose to provide stable, if not permanent, status,
cessation must be carefully and narrowly applied in situations where durable
protection is clearly in place. From a policy perspective, the requirement of
durability also ensures the alignment of cessation practice with the
broader solution-oriented aims of refugee
protection, and commitments under the Global Compact on
That the cessation
analysis grounded in Articles 1C (5) and (6) requires more than
simply the absence of persecution is also clear from the text, which refers to
‘circumstances in connection with the grant of refugee status.’ This suggests
that decision-makers must determine whether, in light of changes in the country
of origin, the refugee’s continued refusal to accept protection from the
country of origin is still justified. As the UK House of Lords explained,
‘double guarantee’ (no risk of persecution plus adequate protection) is
necessary to displace the refugee’s ‘assurance
of a secure future in the host country’.
To guard against premature
application, UNHCR and many jurisdictions agree that changes must be ‘fundamental,
stable and durable’ – or a variation on these criteria. While
dramatic events like a democratic transition can occur quickly, many of today’s
refugee-producing countries are beset by complex conflicts where the
consolidation of peace is a halting, difficult process.
Importantly, changes that
only affect part of a country may not be
‘fundamental’ enough to warrant cessation of status. Partial cessation is
particularly problematic when it involves the internal relocation of returning
refugees (because the country is generally unsafe).
In these cases, not only is the change not fundamental, but it is unlikely to
be ‘stable and durable’ for those who are internally displaced upon their
The ‘return turn’ in
Norwegian refugee law post-2015
Like other countries in
Europe, Norwegian authorities responded to the influx of refugee claims in 2015
with policies seeking to reinforce the temporary nature of refugee protection.
These included amendments to the Immigration
the time period for applying for permanent residence, and the introduction of
non-protection related requirements for permanent residence including proof of
economic self-sufficiency, local knowledge and language skills. In addition,
changes to Internal Protection Alternative (IPA) criteria led to an increased
scope for granting a time-limited, non-renewable residence permit for
In March 2016, the
Ministry of Justice and Security issued an Instruction to the Immigration
cessation of refugee status and revocation of residence permits. The
Instruction requires that immigration authorities apply the cessation
provisions in domestic law when 1) the protection needs for larger groups of
refugees have fallen away or 2) there are indications in an individual case
that cessation might apply. In addition, UDI must consider cessation and
eventual revocation when processing an application for permanent residence.
So far in Norway, Somali
nationals have been most
affected by cessation practice as well as revocation for other reasons,
including fraud or administrative error. In 2017, the Grand
Board of Immigration Appeals held that the
cessation analysis required a ‘margin of security’, meaning that the grounds
for refugee status disappeared and that
changes appeared to be durable. When applying this standard to the facts in
Mogadishu, a majority found that despite the state’s inability to enforce the
rule of law, adequate protection could be secured from the strong clan system.
Therefore, refugees from Mogadishu could be safely returned. Somali
refugees continue to be the group most affected by cessation practice and the
revocation of residence permits more broadly.
The Norwegian Supreme
Court: precarious protection by private actors in unstable places
In 2018, the Norwegian
Supreme Court decided two cases involving the cessation of refugee status and
subsequent revocation of a residence permit. Both plaintiffs were Afghans
granted refugee status at least in part as single women without male
protection. These judgments provide more insight into interpretive dilemmas
attached to cessation criteria, and their consequences for women and children
especially. Here I will only discuss the first
judgment, from March 2018, which clarified – in part – the legal criteria for
applying the cessation provisions in Norway’s Immigration Act.
In this case, the
applicant (called “A” in the judgment) and her daughter Farida had come to
Norway in 2011, after being separated from their husband and father in Greece.
They received refugee status because their home area in Jaghuri district was
insecure and, as a single woman without male protection, A lacked an ‘internal
protection alternative’ (IPA) in a safer part of the country. When A’s husband
arrived in Norway, his asylum application was denied and A received notice of
cessation and revocation of her right to residence.
The question before the
Supreme Court was: does cessation simply require that the family no longer
fulfilled the criteria for refugee status, as the Norwegian state argued? Or,
consistent with the ‘double guarantee’ advocated by UNHCR and others, did it
also require a showing of adequate protection on the part of the Afghan
Since the Immigration
Appeals Board (Utlendingsnemnda,
was based on the fact that Jaghuri was no longer unsafe, the Court found it in
error for not considering whether the change in security had stabilized to a
certain degree. Importantly, the Court confirmed that the criteria for
cessation are not a direct mirror of the criteria for refugee status. The
imperative to assess the durability of change arises from a refugee’s legal
position, which confers a certain degree of security. The Court also obliquely
referred to policy concerns by noting that foreigners who have adjusted
themselves to residence in Norway should not be exposed to a return that can
easily lead to further displacement and a new claim to refugee status.
A victory for refugee law,
then, right? Not necessarily, because the decision left too many questions
unanswered. What does durable protection really require? Does it depend on a
functioning state apparatus? If Jaghuri was found to be an oasis of safety
surrounded by insecure areas would cessation criteria be met? Does it matter
that the plaintiffs are originally from there? Does the fact that A and her
husband are together constitute ‘protection’ for the purpose of cessation?
This was indeed the
conclusion of the Norwegian Supreme Court in another
revocation case from November 2018. Although the main
question here was whether, post-cessation, revocation of a residence permit
would violate the applicants’ right to private life under Article 8 ECHR, the
Court endorsed the decision to cease refugee status. No gender or indeed
displacement-sensitive assessment of whether protection by a male relative is
adequate or durable for the long term was made.
And last but not least:
what does a child-sensitive cessation practice look like? Children’s best
interests must be a fundamental consideration in all decisions affecting them
under the Convention on the Rights of the Child. But in the Farida case, the
Supreme Court failed to address this fact in its assessment of cessation
The fates of Farida and
her mother A are still unresolved. After being remanded to the Immigration
Appeals Board, which based its new decision on the possibility of an internal
protection alternative (IPA) in Kabul, the case was appealed
to Oslo District Court. The District Court held,
in a mystifying judgment, that while the requirement of a ‘fundamental and
stable’ change applies to the claimants’ home area, it does not apply to other areas where they could be returned. In those
places, the test is simply whether a well-founded fear of persecution or real
risk of ill-treatment contrary to Article 3 ECHR is currently present. In other
words, the Court identified a broader scope for
cessation of refugee status if ‘return’ is not to the
place of previous residence.
Applying this test to the
facts, the District Court found that conditions in Kabul, while certainly
unstable, did not meet the threshold of persecution or serious harm under
Article 3 ECHR. If the case reaches the Supreme Court again, the Court
must clarify whether the IPA and cessation concepts can be reconciled at all,
and if so under what conditions. Evidence of a male protector in an IPA is not
sufficient to displace the stability Farida and her mother had received through
Three concerns: actors of
protection, spaces of protection, and the passage of time
There are three
interrelated issues that threaten principled application of the cessation
provisions. The first is the willingness of decision-makers to endorse
non-state actors of protection for the purpose of ceasing refugee status. Clans
or the institution of marriage cannot replace the durable protection provided
by state or state-like authorities. The second is the seeming acceptance of the
IPA as part of the cessation analysis. It is especially worrying that as the
lack of an IPA is
increasingly perceived as a condition of refugee status then the existence
of an IPA may justify its cessation, despite lip-service to the need for
fundamental and durable change. ‘Return’ to internal displacement is profoundly
at odds with the imperative to promote solutions and is especially problematic
for female refugees made dependent on male relatives for mobility as well as
And finally, the drawn-out
nature of individual cessation practice, including the appeals process,
increases tension between opportunities to settle in the country of refuge and
the possibility of eventual return. This has serious consequences for the
well-being of individual refugees and particularly children, who may have spent
their formative years in a country before cessation kicks in. Even when the
‘best interests of the child’ are assessed, they may not succeed in outweighing
the state’s immigration control interests.
The protection gaps that
arise from the failure to correctly implement cessation criteria create a risk
of unsafe and unsustainable refugee returns. The possibility of protection
somewhere else does not, on its own, justify ending it in the country of refuge.