Books by Thomas Spijkerboer
It is hard to understand the current developments in European refugee law without the benefit of ... more It is hard to understand the current developments in European refugee law without the benefit of hindsight. This paper refrains from trying to make a comprehensive analysis, and investigates fragments small enough to allow for analysis. We will look at the political and legal processes which turned the influx of a small number of people into the European Union (EU) into a crisis; at tunnel vision of European policy makers; at the legal aspects of the EU's and NATO's intervention in the Aegean Sea; and at the processes resulting in the acceptance of mass deaths as a daily routine. KEYWORDS: refugees – Syrians – EU-Turkey Agreement – border deaths – jurisdiction – Art. 216 TFEU.
Each year, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers a... more Each year, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers apply for asylum in EU Member States.This book considers the position of LGBTI asylum seekers in European asylum law. Developing an encompassing approach to the topic, the book identifies and analyzes the main legal issues arising in relation to LGBTI people seeking asylum including: the underestimation of the relevance of criminalization of sexual orientation as well as the large scale violence against trans people in countries of origin by some European states; the requirement to seek State protection against violence even when they originate from countries where sexual orientation or gender identity is criminalized, or where the authorities are homophobic; the particular hurdles faced during credibility assessment on account of persisting stereotypes; and queer families and refugee law.
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
A comparative analysis of the way in which European countries deal with asylum applications of le... more A comparative analysis of the way in which European countries deal with asylum applications of lesbian, gay, bisexual, trans and intersex asylum applicants.
This book examines immigration law from a gender perspective. It shows how immigration law situat... more This book examines immigration law from a gender perspective. It shows how immigration law situates gender conflicts outside of the national order, projecting them onto non-western countries, exotic cultures, clandestine labour and criminal organisations. In doing so, immigration law sustains the illusion that gender conflicts have moved beyond the pale of European experience. In fact, however, the classical feminist themes of patriarchy, the gendered division of labour and sexual violence are still being played out at the heart of Europe's societies, involving both citizens and migrants. The essays in this book show how the seemingly marginal perspective of immigration law highlights Europe's unsolved gender conflicts, and how a gender perspective helps us rethink immigration law.
With contributions by: Sarah van Walsum and Thomas Spijkerboer; Jacqueline Bhabha; Linda Bosniak; Judith Resnik; Nora Markard; Rutvica Andrijasevic; Laura Maria Augustin; Guy Mundlak; Betty de Hart; Bettina Haidinger; Aisha Gill and Kaveri Sharma; Catherine Raisiguier; Shiobán Mullally; Isabel Crowhurst.
Table of Contents
1. Introduction
2. Female Applicants in Statistics and General Policy
3. The... more Table of Contents
1. Introduction
2. Female Applicants in Statistics and General Policy
3. The Construction of the Female Applicant in Decision Making
4. The Construction of the Female Applicant in Jurisprudence
5. Counter-Strategies and the Reactions of Governments
6. Conclusions
Papers by Thomas Spijkerboer
On 8 December 2016, the Belgian court submitted prejudicial questions to the Court of Justice of ... more On 8 December 2016, the Belgian court submitted prejudicial questions to the Court of Justice of the European Union (CJEU) concerning the issuing of humanitarian visas to a Christian Syrian family. The central question is whether international treaties and European Union law can oblige consuls and embassies of EU Member States to issue a humanitarian visa. This document will discuss developments in the European Union with regard to humanitarian visas, the interpretation of the Visa Code in light of the Schengen Borders Code, the entitlement of the Syrian family in this case to asylum protection, the conditions in Lebanon as a ‘safe third country’ and the argument that a positive judgment of the Court will open the ‘floodgates’.
Journal of Refugee Studies (advance publication), 2017
The externalization of European migration policy has resulted in a bifurcation of global human mo... more The externalization of European migration policy has resulted in a bifurcation of global human mobility, which is divided along a North/South axis. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. These cases concern core elements of externalization, being third country agreements (the EU-Turkey Statement of March 2016) and visa requirements for refugees. This article seeks to analyze these judgments in the context of the broader developments in European migration law and policy. The core argument developed here is that the bifurcation of human mobility is reflected in a bifurcation of law. Excluded people are not merely to be excluded from European territory, but also from European law.
to be published in Journal of Refugee Studies
Asylum law functions through a dichotomy between an idealized notion of Europe as a site characte... more Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.
Tamara Last, Giorgia Mirto, Orçun Ulusoy, Ignacio Urquijo, Joke Harte,
Nefeli Bami, Marta Pérez P... more Tamara Last, Giorgia Mirto, Orçun Ulusoy, Ignacio Urquijo, Joke Harte,
Nefeli Bami, Marta Pérez Pérez, Flor Macias Delgado, Amélie Tapella, Alexandra Michalaki, Eirini Michalitsi, Efi Latsoudi, Naya Tselepi, Marios Chatziprokopiou & Thomas Spijkerboer (2017): Deaths at the borders database: evidence of deceased migrants’ bodies found along the southern external borders of the European Union, Journal of Ethnic and Migration Studies
DOI: 10.1080/1369183X.2016.1276825
http://www.tandfonline.com/doi/full/10.1080/1369183X.2016.1276825
Despite Europe's mass investments in advanced border controls, people keep arriving along the continent's shores under desperate circumstances. European attempts to ‘secure’ or ‘protect’ the borders have quite clearly failed, as politicians themselves increasingly recognise – yet more of the same response is again rolled out in response to the escalating ‘refugee crisis’. Amid the deadlock, this article argues that we need to grasp the mechanics and logics of the European ‘border security model’ in order to open up for a change of course. Through ethnographic examples from the Spanish-African borders, the article shows how the striving for border security under a prevailing emergency frame has generated absurd incentives, negative path dependencies and devastating consequences. At Europe's frontiers, an industry of border controls has emerged, involving European defence contractors, member state security forces and their African counterparts, as well as a range of non-security actors. Whenever another ‘border crisis’ occurs, this industry grows again, feeding on its own apparent ‘failures’. This vicious cycle may be broken, the article concludes, once policy-makers start curtailing the economies of border security underpinning it – yet the challenges are formidable as the industry retrenches along with the political response to the drama it has itself produced.
States are obliged to protect the right to life by law. This paper analyses the way in which stat... more States are obliged to protect the right to life by law. This paper analyses the way in which states do this in the field of aviation law, maritime law, and the law on migrant smuggling. A comparative description of these fields of law shows that states differentiate in protecting the right to life. Regular travelers benefit from extensive positive obligations to safeguard their right to life, whereas the lives of irregularized travelers are protected first and foremost by combating irregularized migration and, if the worst comes to pass, by search and rescue. The right of states to exclude aliens from the their territories leads to exclusion of irregularized travelers from their main positive obligations under the right to life. This situation is analyzed through Zygmunt Bauman's notion of 'wasted lives'. The contrast with aviation and maritime law makes clear that this situation is the outcome of human choice, which can be changed.
In this paper, we address three connected central issues in refugee law. Firstly, who is entitled... more In this paper, we address three connected central issues in refugee law. Firstly, who is entitled to protection? Secondly, what should that protection entail – merely allowing the presence of refugees in the territory, or allowing access to the labour market and health and welfare systems? Thirdly, where should refugees receive protection – in the first country in which they arrive after fleeing their home country, or elsewhere? We analyze the current crisis of European refugee law by looking back at the drafting history of the 1951 Refugee Convention. European policy makers can learn from the way in which the drafters partially solved these issues in 1950/1951.
This contribution explains the European asylum policy crisis from three structural weaknesses of ... more This contribution explains the European asylum policy crisis from three structural weaknesses of the Common European Asylum System: its reliance on coercion within the EU; its unrealistic expectations of what borders can achieve; and the premise of prohibition of refugee movement in its external dimension. The article then critically reviews the proposals that the EU has submitted since the publication of the European migration agenda in May 2015.
In this lecture, I take stock of what the gender and sexuality based critiques of refugee law for... more In this lecture, I take stock of what the gender and sexuality based critiques of refugee law formulated over the past decades have achieved. I first address statistical issues. Then I address the question how law is being applied today, now the gender and sexuality critiques of refugee law have been incorporated in legal practice. I focus on the case of A.A. and others v Sweden about forced marriage, and on discretion reasoning in sexual orientation cases. Having done that, I will try to understand this reformulated refugee law by using the concept of sexual nationalism.
NRC Handelsblad, Sep 18, 2013
Each year, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers a... more Each year, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers apply for asylum in EU Member States.This book considers the position of LGBTI asylum seekers in European asylum law. Developing an encompassing approach to the topic, the book identifies and analyzes the main legal issues arising in relation to LGBTI people seeking asylum including: the underestimation of the relevance of criminalization of sexual orientation as well as the large scale violence against trans people in countries of origin by some European states; the requirement to seek State protection against violence even when they originate from countries where sexual orientation or gender identity is criminalized, or where the authorities are homophobic; the particular hurdles faced during credibility assessment on account of persisting stereotypes; and queer families and refugee law.
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
In this article from 1998, I analyse Dutch case law on gay asylum applications, inspired by the a... more In this article from 1998, I analyse Dutch case law on gay asylum applications, inspired by the analytical framework developed by the German filmmaker Rainer Werner Fassbinder in his last film, Querelle.
The article is not easy to read, but I do something which I think is still worthwhile. I basically try to argue that relying on human rights in order to advocate LGBT asylum runs the risk of buying into the hetronormative underpinnings of human rights law.
This text is about three strategies which lawyers may use when they want to criticize a court dec... more This text is about three strategies which lawyers may use when they want to criticize a court decision, or a set of court decisions. It addresses, subsequently, the intensity of judicial review in asylum law; the immigration status of family members of European workers; and expulsion of HIV positive aliens.
This article looks at the number of migrants who die while trying to reach Europe. It includes a ... more This article looks at the number of migrants who die while trying to reach Europe. It includes a methodological paragraph on how more precise data about this phenomenon can be collected; this paragraph is based on field work on Southern Sicily in November 2011. Furthermore, it analyses how a mainstream approach to human rights would assess the phenomenon, and explores in which ways human rights analysis would have to be amended in order to make the human rights normative framework relevant for border deaths.
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Books by Thomas Spijkerboer
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
With contributions by: Sarah van Walsum and Thomas Spijkerboer; Jacqueline Bhabha; Linda Bosniak; Judith Resnik; Nora Markard; Rutvica Andrijasevic; Laura Maria Augustin; Guy Mundlak; Betty de Hart; Bettina Haidinger; Aisha Gill and Kaveri Sharma; Catherine Raisiguier; Shiobán Mullally; Isabel Crowhurst.
1. Introduction
2. Female Applicants in Statistics and General Policy
3. The Construction of the Female Applicant in Decision Making
4. The Construction of the Female Applicant in Jurisprudence
5. Counter-Strategies and the Reactions of Governments
6. Conclusions
Papers by Thomas Spijkerboer
to be published in Journal of Refugee Studies
Nefeli Bami, Marta Pérez Pérez, Flor Macias Delgado, Amélie Tapella, Alexandra Michalaki, Eirini Michalitsi, Efi Latsoudi, Naya Tselepi, Marios Chatziprokopiou & Thomas Spijkerboer (2017): Deaths at the borders database: evidence of deceased migrants’ bodies found along the southern external borders of the European Union, Journal of Ethnic and Migration Studies
DOI: 10.1080/1369183X.2016.1276825
http://www.tandfonline.com/doi/full/10.1080/1369183X.2016.1276825
Despite Europe's mass investments in advanced border controls, people keep arriving along the continent's shores under desperate circumstances. European attempts to ‘secure’ or ‘protect’ the borders have quite clearly failed, as politicians themselves increasingly recognise – yet more of the same response is again rolled out in response to the escalating ‘refugee crisis’. Amid the deadlock, this article argues that we need to grasp the mechanics and logics of the European ‘border security model’ in order to open up for a change of course. Through ethnographic examples from the Spanish-African borders, the article shows how the striving for border security under a prevailing emergency frame has generated absurd incentives, negative path dependencies and devastating consequences. At Europe's frontiers, an industry of border controls has emerged, involving European defence contractors, member state security forces and their African counterparts, as well as a range of non-security actors. Whenever another ‘border crisis’ occurs, this industry grows again, feeding on its own apparent ‘failures’. This vicious cycle may be broken, the article concludes, once policy-makers start curtailing the economies of border security underpinning it – yet the challenges are formidable as the industry retrenches along with the political response to the drama it has itself produced.
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
The article is not easy to read, but I do something which I think is still worthwhile. I basically try to argue that relying on human rights in order to advocate LGBT asylum runs the risk of buying into the hetronormative underpinnings of human rights law.
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
With contributions by: Sarah van Walsum and Thomas Spijkerboer; Jacqueline Bhabha; Linda Bosniak; Judith Resnik; Nora Markard; Rutvica Andrijasevic; Laura Maria Augustin; Guy Mundlak; Betty de Hart; Bettina Haidinger; Aisha Gill and Kaveri Sharma; Catherine Raisiguier; Shiobán Mullally; Isabel Crowhurst.
1. Introduction
2. Female Applicants in Statistics and General Policy
3. The Construction of the Female Applicant in Decision Making
4. The Construction of the Female Applicant in Jurisprudence
5. Counter-Strategies and the Reactions of Governments
6. Conclusions
to be published in Journal of Refugee Studies
Nefeli Bami, Marta Pérez Pérez, Flor Macias Delgado, Amélie Tapella, Alexandra Michalaki, Eirini Michalitsi, Efi Latsoudi, Naya Tselepi, Marios Chatziprokopiou & Thomas Spijkerboer (2017): Deaths at the borders database: evidence of deceased migrants’ bodies found along the southern external borders of the European Union, Journal of Ethnic and Migration Studies
DOI: 10.1080/1369183X.2016.1276825
http://www.tandfonline.com/doi/full/10.1080/1369183X.2016.1276825
Despite Europe's mass investments in advanced border controls, people keep arriving along the continent's shores under desperate circumstances. European attempts to ‘secure’ or ‘protect’ the borders have quite clearly failed, as politicians themselves increasingly recognise – yet more of the same response is again rolled out in response to the escalating ‘refugee crisis’. Amid the deadlock, this article argues that we need to grasp the mechanics and logics of the European ‘border security model’ in order to open up for a change of course. Through ethnographic examples from the Spanish-African borders, the article shows how the striving for border security under a prevailing emergency frame has generated absurd incentives, negative path dependencies and devastating consequences. At Europe's frontiers, an industry of border controls has emerged, involving European defence contractors, member state security forces and their African counterparts, as well as a range of non-security actors. Whenever another ‘border crisis’ occurs, this industry grows again, feeding on its own apparent ‘failures’. This vicious cycle may be broken, the article concludes, once policy-makers start curtailing the economies of border security underpinning it – yet the challenges are formidable as the industry retrenches along with the political response to the drama it has itself produced.
The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.
The article is not easy to read, but I do something which I think is still worthwhile. I basically try to argue that relying on human rights in order to advocate LGBT asylum runs the risk of buying into the hetronormative underpinnings of human rights law.
1. the intensification of European border control policies has not reduced the number of migrants;
2. the intensification of European border control policies have led to the shifting of undocumented migration to ever more dangerous routes;
3. the number of registered border deaths has increased considerably over the years.
This development has been chronicled elsewhere. An issue which is part of European border control in the Mediterranean Sea and the Atlantic Ocean is the interception of migrants at the high seas, and sometimes in the waters of the country of embarkation.
In this contribution, I want to focus on two legal issues to which these developments (increasing border deaths and interception) give rise. The first concerns the question whether the European States, which undertake to guard their borders jointly, are responsible under Article 2 of the European Convention on Human Rights (ECHR) for the people who die in their efforts to evade these border controls. The second concerns the compatibility of the interception of migrants with Article 3 ECHR.
The limited nature of this undertaking of this paper needs to be emphasised. On both points, European States have little if any interest in factual information becoming public. As a consequence, little information is available about what is happening precisely, while such information is crucial to evaluating these practices in light of international law. The legal analysis presented here is therefore tentative. Only if and when full information becomes available can a comprehensive analysis be developed.