Academic journal article Refuge

The Child in International Refugee Law

Academic journal article Refuge

The Child in International Refugee Law

Article excerpt

The Child in International Refugee Law

Jason M. Pobjoy

Cambridge: Cambridge University Press, 2017,317 pp.

In his magnificent new book Jason M. Pobjoy methodically and persuasively builds the case for a thorough reset of international refugee law in order to address the gap in protection for refugee children. Despite the fact that almost half of the world's refugees are children, refugee law tends to make them invisible, using an adult-centred lens that fails to capture the predicament of children and youth who are refugees, resulting in incorrect assessments of refugee status. If they are accompanied by adults, children's claims are often treated as derivative, accepted or rejected based on the adults' claims, when in fact a child often has independent grounds for refugee status. As Pobjoy's analysis shows, recognizing the plight of refugee children does not involve watering down the Convention definition of refugee, but rather bringing it into line with developing international human rights law, and upholding the basic refugee law principle of non-refoulement. He also clearly demonstrates how the "best interests of the child" principle, as set out in the Convention on the Rights of the Child (CRC), can be used as a separate and complementary legal basis for protection of refugee children and youth, preventing their deportation if contrary to their best interests.

This book is an essential resource for refugee decision-makers, policymakers, and advocates. It comprehensively reviews the legal scholarship on the Refugee Convention as it relates to children, going back to the seminal works of Grahl-Madsen, Goodwin-Gill, and Hathaway, and the ground-breaking comparative research study on the treatment of separated and unaccompanied refugee children in the United States, the United Kingdom, and Australia by Bhabha, Crock, Schmidt, and Finch. (1) Pobjoy reviews UNHCR'S accomplishment over the past thirty years in developing guidelines for the application of the Refugee Convention to children, and in promoting the Convention on the Rights of the Child as the fundamental legal framework for the protection of children and adolescents. Most significantly, Pobjoy exhaustively reviews the development of international and domestic case-law dealing with the determination of refugee status of children, quoting from decisions of the highest courts in the United Kingdom, the United States, Canada, Europe, Australia, and New Zealand. While researching this book he identified and reviewed over 2,500 refugee decisions involving children, and he has indexed and captured these cases in a web resource.

The foundation for Pobjoy's thesis is set out in the first chapter, beginning with the historical background of the refugee child's place in international human rights law from the 1924 Declaration on the Rights of the Child to the 1989 Convention on the Rights of the Child.

The CRC provides a principled basis for child-appropriate procedures in adjudicating refugee claims involving children. Realizing the participatory rights of children in refugee determination is the first step to countering their invisibility. Children's claims are more likely to be ignored when they are accompanied by their parents. Pobjoy discusses the inadequacy and asymmetry of derivative refugee status that often occurs with accompanied children, even when the child is the principal applicant with the strongest claim for protection. This also leads to asymmetry in refugee settlement. For example, in Canada adult refugees are permitted to include their non-refugee family members in their request for permanent resident status in order to maintain family unity. However, refugee children are not permitted to include their parents and siblings in their application for permanent residence and are often denied family reunification. Counsel have dealt creatively with the adult-centred refugee status determination by arguing that the parent should be granted refugee protection because the parent is at risk of psychological harm due to the harm that would befall the child. …

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