LET ME BE A REFUGEE

Vol. 27 No. 5 (June 2017) pp. 80-82

LET ME BE A REFUGEE: ADMINISTRATIVE JUSTICE AND THE POLITICS OF ASYLUM IN THE UNITED STATES, CANADA, AND AUSTRALIA by Rebecca Hamlin. New York: Oxford University Press, 2014. 229 pp. Cloth: $105. ISBN: 9780199373307 Paper: $30.95. ISBN: 9780199373314.

Reviewed by Anna O. Law, Political Science Department, CUNY Brooklyn College. Email: alaw@brooklyn.cuny.edu.


Who is a refugee? How do three of the richest nations in the world make that determination? Unlike most immigrants who voluntarily choose to move countries, refugees are pushed from their homelands by circumstances beyond their control, including, but not limited to: civil unrest, political persecution, drug or gang violence, or natural disasters. The treatment of these groups is subject to international frameworks set out in 1951 (p. 4). Those World War II era agreements’ purpose was to lay out basic protections and international norms for the treatment of persons fleeing persecution, but they did not force countries to take in refugees. The effectiveness of these international accords in protecting highly vulnerable populations is an empirical question in need of assessment.

How three of the most well-known immigrant-receiving nations treat these potential immigrants who seek to enter their territory without prior permission is the subject of Rebecca Hamlin’s book. Instead of focusing broadly on domestic politics, Hamlin zeroes in on one variable within it, what she terms the “refugee status determination” (RSD) regimes of each country. She defines the RSD as “1) the set of institutions that are responsible for conducting RSD and 2) the relationships and power dynamics among those institutions” (p. 9). While holding the RSD constant, she traces the creation of policy and adjudications process through the lens of the RSD institutions and institutional arrangements.

The greatest strength of the book project is its research design. Hamlin is right that most existing studies focus only on one country. The problem with single country studies is that although they can uncover disparities within a single country, they cannot assess the efficacy of international refugee protection efforts across nations. (See for example the influential REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM on the US case.) Hamlin has gone comparative and has chosen her case studies well. Each of the three nations: the United States, Canada, and Australia, are western industrialized democracies that are immigrant-receiving, as opposed to immigrant-sending, nations. As well, they have similar legal systems and strong judiciaries (p. 25-27). The comparative approach applied to RSD allows an empirical assessment of the extent to which international agreements further human rights protections. Hamlin draws the sobering conclusion that although “no host country has threatened to abandon the 1951 Convention altogether, and no country has managed to completely prevent asylum seekers from arriving…the power of the international refugee protection regime is wearing thin” (p. 60).

Hamlin’s multi-methodology approach conveys a textured understanding of the processes and mechanisms of the RSD machinery and how those in turn affect adjudications outcomes. The book draws on interviews, doctrinal analysis of key cases, searches of newspaper articles from major newspapers, her observations of asylum determination hearings, and examination of official statistics—all across three different countries. Hamlin weaves these together to process trace what the RSD is and how it undertakes adjudications in Chapters 4 (US), 5 (Canada), and 6 (Australia). These chapters provide a detailing of the administrative agencies and judicial institutions’ involvement (to varying extents) in the asylum adjudications in each country. [*81]

We learn, for example, that the US system’s RSD is “highly adversarial, legalistic, and contentious.” The US system has also tended toward “judicialization” (p. 83). I understand Hamlin as meaning the tendency of the US RSD to treat asylum decisions in a legally adversarial way versus a research/investigative manner. Hamlin also notes that one characteristic of the US example, is that federal courts play a prominent role in driving and shaping policy.

The US system stands in sharp contrast to Canada’s RSD which Hamlin calls the “Cadillac Bureaucracy.” Canada’s system, unlike the fragmented US one, is centralized and non-adversarial, more interested in investigation with much time and resources devoted to that task (p. 84-85). Hamlin notes the Canadian regime is under fire because of a lack of political support, administrative insulation, and vast resources devoted to it. Yet she points out “a commitment to a system of administrative justice based on a centralized, resource rich professional judgment model is still a powerful and enduring force in the Canadian RSD regime” (p. 100). One gets a sense of best practices only when comparing across the three RSDs.

The Australian RSD falls somewhere in between the US and Canadian systems. Despite that country’s reputation of restrictionism toward immigrants, Hamlin says it is a “contested reputation” (p. 101). We learn that Australia’s RSD is not as insulated from politics as the US and Canadian ones and has suffered “high profile turf battles” between branches of government (p. 114). Among the three RSDs by Hamlin’s accounting, political culture seems to affect the RSDs heavily with Australia’s “visceral commitment to restrictionism within the political branches” interacting with the limited power of their courts and the lack of constitutional protections for immigrants (p. 116).

The most engaging chapters are 7 on sex and gender based asylum claims, 8 on asylum claims based on China’s One-Child policy, and 9 on non-asylum protected statuses that can be offered to forced migrants. These chapters bring to life the effects of RSD on groups of compelling asylum claimants across the three countries. Hamlin very effectively uses these three case studies to emphasize the effect of salient features of each of the three RSD regimes on adjudication outcomes. One important conclusion she draws is that it is not enough to focus on cross-national acceptance/grant rates of certain groups of asylum applicants; the particular features of the RSDs and how they handle these “non-obvious” asylum cases is more important to understand the causes of the differential outcomes across nations.

As with each and any book, there are limitations. Although Hamlin’s RSD approach is an innovation, it was not always clear what parts of the RSD are more influential and in what respects. The significance of caseloads at every level of appeal, for example, comes to mind. In the US case (the one I know the best) among the various components of the RSD, really it is the Immigration Judges who do the bulk of the determinations. With each escalating level of appeal, many cases fall away and only a fraction of cases continue to the next level of appeal. For example, only about 10 percent of Immigration Judge decisions are appealed to the next level, the Board of Immigration Appeals (Law 2010, p. 23) The causes of this attrition are a lack of know-how to appeal and financial resources to take the next level. I suspect some version of this bottleneck of cases in one section of the RSD also occurs in Canada and Australia. Although Hamlin’s detailed account of each RSD ably traces all the moving parts and procedures, lost in that description is the outsized influence of some parts of the RSD over others based on the sheer volume of cases adjudicated (Full disclosure: this is also a critique that my own book, THE IMMIGRATION BATTLE IN AMERICAN COURTS, is vulnerable to).

There is much to like about LET ME BE A REFUGEE. The book is a careful process mapping and tracing of the distinct RSD that adjudicate cases of the most vulnerable potential migrants. Her approach encourages scholars to think beyond one single institution and to take a more holistic view that includes multiple institutions. One comes away with a much better [*82] understanding of how and why institutions and institutional arrangements matter to asylum outcomes and how these configurations can vary considerably across countries. The book will be a valuable resource not just for immigration scholars, but also for social scientists that are not content to conceive of the state as a black box from which policy magically emerges.

REFERENCES:

Romji-Nogales, Jaya and Andrew Schoenholtz and Phillip Schrag. 2009. REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATIONS AND PROPOSALS FOR REFORM. New York University Press.

Law, Anna O. 2010. THE IMMIGRATION BATTLE IN AMERICAN COURTS. Cambridge University Press.

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© Copyright 2017 by author, Anna O. Law.