On 13 June 2016 Ms Liv Feijen defended her Phd thesis in International Law, entitled “Humanitarian Considerations and Immigration Control in Europe: Is Residence Permit on Humanitarian Grounds an Act of Sympathy or a Legal Entitlement?” at the Graduate Institute. Professor Andrew Clapham presided the committee, which included Professor Vincent Chetail, Thesis Director, and Professor Elspeth Guild, from Radboud University Nijmegen and Queen Mary University of London.

In the last couple of decades, European countries have introduced the possibility in their national legislation and practice to grant residence permits on humanitarian grounds, beyond their statutory obligations according to the 1951 Convention relating to the Status of Refugees. The different categories of persons who may be granted permits can be divided into those who benefit from a compassionate justification – age, health, family unity or long-term residence –, those who are not returnable for legal reasons – stateless persons, victims of trafficking or excludable persons at risk of torture or ill-treatment –, and, finally, those who cannot be returned because of technical reasons.

Ms Feijen was inspired to focus her research on this form of complementary protection after having interacted with European asylum lawyers, who expressed frustration that on one hand, many of these cases receive so much public indignation when they are rejected that they are overturned because of perceived injustice, but on the other hand, the granting of residence permits on humanitarian grounds is considered by states to lie outside the requirements of international law and therefore to be at the discretion of national authorities. This means that the qualification for eligibility, thresholds, standards of proof and level of rights attached to the status remain unharmonised throughout Europe and prompts questions of risks of violations of human rights, inequality and discrimination.

The thesis seeks to establish, firstly, that there indeed is a moral duty for states to refrain from expulsions of these categories, comparable to those who have international protection needs based on refugee claims or claims for subsidiary protection. The thesis explores the historical and philosophical background to the notion of “asylum”, which has a clear humanitarian element of striving to assist persons in need, in particular persons with vulnerabilities or in distress, that goes beyond the classical interpretation limited to the protection of fugitives from extradition. Furthermore, contemporary political and philosophical thought recognise a moral duty for states to balance immigration control with humanitarian considerations as long as the immigrants are not so numerous that they threaten the self-interest of the state or the welfare of its citizens. This moral duty is anchored in the consciousness of the population and when it is not translated into legal entitlements, it results in protest from the public that justice and fairness demand that persons in need of international protection should be allowed entry.

However, it is the claim of the thesis that the provision of international protection to some of these categories is indeed based on international law, especially international and European human rights law. There has been a trend in Europe to harmonise certain categories of persons in need of protection who traditionally were granted “humanitarian” protection, such as “war refugees”, persons at risk of torture or inhuman or degrading treatment, or persons at risk of death penalty, and it is professed that the other categories have a comparable entitlement to claim protection on the basis of a more inclusive interpretation of freedom from torture, inhuman and degrading treatment, but also of other rights, such as the right to life and the right to privacy and family life. Limitations have been introduced through the case-law of the European Court of Human Rights to the enjoyment of certain of these rights for immigrants based on fears that too many persons would be able to benefit from them. However, it would be contrary to the conception of universal human rights, founded on the notions of equality, non-discrimination and human dignity, to limit the rights solely because of the potential number of beneficiaries. It is argued in this thesis that the interpretation of the legal entitlements of these categories should itself also be recognised and harmonised in Europe in order to ensure the adequate application of the rule of law and that persons in need of international protection are identified and assisted.

The recent developments in Europe have given a new dimension to the relationship between immigration control and humanitarian considerations. Humanitarianism is a moral value in its own right, built on very strong foundations in European culture, religion, philosophy and political thought that serve as a counterbalance to states’ interests in preserving their borders, resources and, some claim, cultural values. The current situation is a litmus test of how far those values stretch.

Full citation of the thesis: Feijen, Liv. “Humanitarian Considerations and Immigration Control in Europe: Is Residence Permit on Humanitarian Grounds an Act of Sympathy or a Legal Entitlement?”. PhD thesis, Graduate Institute of International and Development Studies, 2016.

Illustration: courtesy of Yante Ismael, 2015.