Refugees and Political Opinion

Professor Catherine Dauvergne, incoming Dean of the Peter A. Allard School of Law

Professor Catherine Dauvergne’s scholarship has often chartered new paths for refugee law and the study of asylum. Her writing forces the reader to challenge their assumptions of what work the law is actually doing for refugees and situates refugee ‘law’ within the wider politics of immigration. Invited to prepare a background study for the Colloquium on Challenges in International Refugee Law at Michigan Law School (March 27-29, 2015), Professor Dauvergne has once again developed fresh insights about the category of ‘political opinion’ determinations in refugee applications.

One of the broader issues that makes this work so important is the fact that there is no opportunity for an international court or an international oversight body to make clear pronouncements about key areas of the law.

“Given that there are between 650,000 and 850,000 decisions around the world every year that use the basic elements of the refugee definitions, creating standards for those definitions is crucial,” Professor Dauvergne explains. “There are inconsistencies internationally between countries, which leads to all sorts of problems, including the notion that people seeking protection would be better off in one country than another. There are also inconsistencies in the asylum making process within countries.”

Often, one decision maker might grant protection but another decision maker looking at exactly the same facts might say no, with the result that an asylum-seeker is sent back at considerable personal risk. For Professor Dauvergne, these situations illustrate why the process of creating guidelines is so important. The category of “political opinion” as a basis for refugee claims and determinations is a perfect example.

What is “Political Opinion”?
The number of people seeking protection on the ground of political opinion has actually been growing in the recent years. Protection for whistleblowers such as Edward Snowden or Julian Assange and other individuals who are seeking protection has highlighted this issue in the news media. There are other complex scenarios as well, such as recent influx of child migrants from Latin America coming into the United States, often fleeing from the unchecked violence of criminal gangs. There is real tension in the jurisprudence in North America about whether that kind of flight involves a political opinion. There are also questions about whether children who are too young to formally engage in the political process might have a political opinion. None of these questions has ever been agreed upon in law, but all are pressing issues for refugee determinations.

Taking a step back for a critical examination of the assumptions at play, Professor Dauvergne maintains that the biggest part of the problem is the fact that anybody might think that political opinion is an intuitive category.

“When we put the question who should count as a political refugee in the hands of different decision makers all around the globe – many of whom do not even have legal training – the idea that people can intuit what counts as political becomes very problematic,” she explains. There are in fact very diverse judgments coming from all around the world about what counts as political in a political opinion determination, among the highest level courts and among first instance decision-makers, with very little agreement and plenty of contestation.

Professor Dauvergne argues that one of the toughest things to figure out is whether or not somebody is being persecuted because of their political opinion when they are actually not overtly engaged in a political struggle.

“These types of scenarios occur when individuals are going about their day-to-day lives protecting their families or doing their work, and something unexpected happens that they react to in a way that you can say is just instinctive,” Professor Dauvergne explains.

“They do not overtly connect with any major political cause, but they may nonetheless be at risk because somebody else thinks they are doing something political – for example, in some countries a woman standing up to her husband is considered to be a political act, while in other countries this is not the case.”

Guidelines and Political Norms
Not surprisingly, many decision makers approach the question of what counts as political on the basis of the norms of politics in their home country. By working on having guidelines issued for political opinion determinations, Professor Dauvergne hopes to create a way for people to shift their perspective, taking into consideration norms and frameworks that define the political in ways that may be foreign to us, but highly relevant to particular refugee determinations. An understanding of the local cultural context is crucial, including environments where the status of human rights is not as familiar to us, where there might not be a developed human rights system, and where cultural and traditional practices are very different.

The result of incorporating this broader cultural context into the decision making process in refugee determinations would be both to humanize and rationalize what today is a contested and often hostile area of law.

Professor Catherine Dauvergne

Professor Catherine Dauvergne, Trudeau Fellow and the incoming Dean of the Allard School of Law, works in the areas of immigration and refugee law in Canada and around the world. Her research is grounded in a belief that how we define and police the boundaries of our societies determines the terrain of our political engagements and says much about our national identity.

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