@techreport{GuildCostelloGarlicketal., type = {Working Paper}, author = {Guild, Elspeth and Costello, Cathryn and Garlick, Madeline and Moreno-Lax, Violeta and Mouzourakis, Minos}, title = {New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection}, abstract = {Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.}, language = {en} } @techreport{KaytazCostello, type = {Working Paper}, author = {Kaytaz, Esra and Costello, Cathryn}, title = {Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva}, abstract = {Recent research in Toronto and Geneva indicates that asylum seekers and refugees are predisposed to be cooperative with the refugee status determination (RSD) system and other immigration procedures, and that the design of alternatives to detention can create, foster and support this cooperative predisposition - or can undermine or even demolish it.}, language = {en} } @techreport{LazarusCostelloGhaneaetal., type = {Working Paper}, author = {Lazarus, Liora and Costello, Cathryn and Ghanea, Nazila and Zeigler, Katja}, title = {Report on the evolution of Fundamental Rights Charters and Caselaw: A comparison of the EU, Council of Europe and UN Systems}, pages = {254}, abstract = {This report examines the human rights protection systems of the United Nations, the Council of Europe and the European Union. It explores the substantive rights, protection mechanisms, modes of engagement within, and the interactions between each system. The report also outlines the protection of minority rights, and the political processes through which human rights and institutions evolve and interact. A series of recommendations are made on how to advance the EU human rights system.}, language = {en} } @techreport{Costello, type = {Working Paper}, author = {Costello, Cathryn}, title = {Report on Improving the Quality and Consistency of Asylum Decisions in the Council of Europe Member States}, abstract = {There are important shortcomings in terms of quality and consistency of the asylum decisions taken in the Council of Europe member states. As evidence of this, in 2007 acceptance rates varied considerably between 1\% and 39\% in countries receiving significant numbers of asylum seekers. The situation was even more dramatic when looking at certain specific groups of asylum seekers. For example, again in 2007, the acceptance rates for Iraqis seeking protection in Europe varied between 0 and 81\%. The very low recognition rates in certain countries, or for certain groups of asylum seekers, may be due to difficulties in accessing the asylum process, poor procedural safeguards in the asylum proceedings, restrictive and divergent interpretation of eligibility criteria, lack of objective and reliable country of origin information, poor evidential assessment, in particular the culture of disbelief in asylum adjudication, political pressure, lack of training of the relevant authorities and their personnel, or a combination of these factors. The Committee of Ministers of the Council of Europe should be invited to prepare guidelines to address the difficulties outlined above. These guidelines should encourage Council of Europe member states to develop higher standards of protection, based on their own domestic standards of human rights or humanitarian impulse, reflecting the nature of the European Convention on Human Rights as a pan-European minimum standard. Furthermore the Committee of Ministers should consider a mechanism for monitoring the quality and consistency of asylum decisions, and to facilitate this task, consider guidelines on harmonisation of asylum data across Council of Europe member states, taking into account work already carried out at by the European Union. The Committee of Ministers should also review the asylum curriculum in member states and develop training programmes, tools and data-bases of jurisprudence of asylum decisions across Europe. Finally, there is a pressing need for the Committee of Ministers to establish a new inter-governmentalCommittee with a permanent mandate to examine asylum and refugee issues to replace the work formerly carried out by the Ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR).}, language = {en} } @book{BacikCostelloDrew, author = {Bacik, Ivana and Costello, Cathryn and Drew, Eileen}, title = {Gender InJustice: Towards the Feminisation of the Legal Professions?}, isbn = {0953497917}, publisher = {Hertie School}, pages = {431}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {European Community Judicial Review in the Irish Courts - Scope, Standards and Separation of Powers}, series = {Irish perspectives on EC law}, booktitle = {Irish perspectives on EC law}, editor = {Lucey, Mary Catherine and Keville, Cathrina}, publisher = {Round Hall Ltd}, address = {Dublin}, isbn = {978-1-85800-280-4}, publisher = {Hertie School}, pages = {17 -- 50}, language = {en} } @book{Costello, author = {Costello, Cathryn}, title = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, pages = {1344}, abstract = {The Oxford Handbook of International Refugee Law is a comprehensive, critical work, which analyses the state of research across the refugee law regime as a whole. Drawing together leading and emerging scholars, the Handbook provides both doctrinal and theoretical analyses of international refugee law and practice. It critiques existing law from a variety of normative positions, with several chapters identifying foundational flaws that open up space for radical rethinking. Many authors work directly in the field, and their contributions demonstrate how scholarship and practice can mutually inform each other. Contributions assess a wide range of international legal instruments relevant to refugee protection, including from international human rights law, international humanitarian law, international migration law, the law of the sea, and international and transnational criminal law. Geographically, contributors examine regional and domestic laws and practices from around the world, with 10 chapters focused on specific regions. This Handbook provides an account, as well as a critique, of the status quo, and in so doing it sets the agenda for future academic research in international refugee law.}, language = {en} } @incollection{CostelloIoffe, author = {Costello, Cathryn and Ioffe, Yulia}, title = {Non-Penalization and Non-Criminalization}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, abstract = {The chapter examines article 31 of the Convention relating to the Status of Refugees (Refugee Convention), the provision which purports to protect refugees from penalization for 'illegal entry and stay'. The chapter draws on the previous work by the authors for UNHCR, including a review of national caselaw and practice on article 31 from over forty States. It reflects on the crucial role of the provision in safeguarding the right to seek asylum and argues that non-penalization constitutes one of the objects and purposes of the Refugee Convention. As a result, the chapter considers the distinct obligation on States to refrain from any acts frustrating the treaty's object and purpose. Beyond article 31 of the Refugee Convention, the chapter explores international human rights law as a potentially wider source of protection. It examines whether the criminalization of irregular migration itself may be regarded as a human rights violation, thereby opening up a new avenue for legal research and advocacy. Finally, the chapter argues that aside from treaty obligations under international refugee and human rights law there is an emerging general principle of law relating to non-penalization of refugees and some other migrants.}, language = {en} } @incollection{CostelloO'Cinneide, author = {Costello, Cathryn and O'Cinneide, Colm}, title = {The Right to Work of Asylum Seekers and Refugees}, series = {The Oxford Handbook of International Refugee Law}, booktitle = {The Oxford Handbook of International Refugee Law}, editor = {Costello, Cathryn and Foster, Michelle and McAdam, Jane}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198848639}, publisher = {Hertie School}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Reflections on an Anniversary: EU Citizenship at 20}, series = {COMPAS Migration Anthology}, booktitle = {COMPAS Migration Anthology}, publisher = {COMPAS}, isbn = {9781907271045}, publisher = {Hertie School}, abstract = {I am writing this 20 years to the day after the Maastricht Treaty entered into force on 1 November 1993. 'Economic and monetary union' and 'political union' (coordinating foreign policy and 'justice and home affairs') were the main events. The Treaty also grandly announced: 'Citizenship of the Union is hereby established'. The status was for those 'holding the nationality of a Member State'. The rights attached were largely pre-existing and politically underwhelming. Without great fanfare, the weightiest of political concepts was uploaded into the EU Treaty, apparently an afterthought.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Citizenship of the Union: Above Abuse?}, series = {Prohibition of Abuse of Law: A New General Principle of EU Law}, booktitle = {Prohibition of Abuse of Law: A New General Principle of EU Law}, editor = {de la Feria, Rita and Vogenauer, Stefan}, publisher = {Hart Publishing}, isbn = {9781841139388}, publisher = {Hertie School}, pages = {321 -- 354}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {The EU and the ECHR before European and Irish Courts}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, edition = {Second Edition}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {21 -- 73}, abstract = {Following the incorporation of the European Convention on Human Rights Act 2003 into Irish Law, legal developments in areas such as criminal, family and immigration law have raised serious questions of compatibility with the ECHR. Developments in the European Court of Human Rights have highlighted the increasing potential for using the ECHR to positive effect in Irish law. This second edition of ECHR and Irish Law examines the impact of the ECHR on Irish law and considers the actual and potential contribution of the ECHR Act to domestic law in a range of areas. The work begins with research on the impact of the Act and an examination of the relationship between the ECHR, Irish law and EU law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Implementation of the Procedures Directive (2005/85) in the United Kingdom}, series = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, booktitle = {The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States}, editor = {Zwaan, Karin}, publisher = {Wolf Legal Publishers}, isbn = {9789058503602}, publisher = {Hertie School}, pages = {111 -- 132}, abstract = {On 1 December 2007, the deadline for the implementation of the Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status expired. The lectures on which this book is based were originally given during a seminar on the Procedures Directive that took place in Nijmegen, at the Centre for Migration Law, Radboud University, on Wednesday 12 December 2007. In light of the very substantial level of interest, we have decided to publish a book on the results of the seminar so that people who were not able to attend may benefit from the wealth of knowledge and information which was shared. This book offers insight in all the different aspects of the Procedures Directive.}, language = {en} } @incollection{CostelloCox, author = {Costello, Cathryn and Cox, Neville}, title = {Sports Law}, series = {Annual Review of Irish Law}, booktitle = {Annual Review of Irish Law}, editor = {Byrne, Raymond and Binchy, William}, publisher = {Thomson Round Hall}, address = {Dublin}, isbn = {9781858003153}, publisher = {Hertie School}, pages = {539 -- 553}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Legal Status and Legal Effects of the EU Charter of Fundamental Rights}, series = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, booktitle = {Fundamental Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights}, publisher = {ICEL}, publisher = {Hertie School}, pages = {127 -- 149}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Courts}, series = {What the Treaty of Nice Means}, booktitle = {What the Treaty of Nice Means}, editor = {Keatinge, Patrick and Dooge, Jim}, publisher = {Institute of International and European Affairs}, address = {Dublin}, isbn = {9781874109563}, publisher = {Hertie School}, pages = {61 -- 71}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The EU and the World Trade Organization}, series = {The European Union and the Developing Countries}, booktitle = {The European Union and the Developing Countries}, editor = {Cosgrove-Sacks, Carol}, publisher = {Palgrave Macmillan}, address = {London}, isbn = {9780230509184}, doi = {10.1057/9780230509184}, publisher = {Hertie School}, pages = {336 -- 346}, language = {en} } @techreport{CostelloBettsZaun, type = {Working Paper}, author = {Costello, Cathryn and Betts, Alexander and Zaun, Natascha}, title = {A Fair Share: Refugees and Responsibility-Sharing, Report and Policy Brief}, abstract = {Developing countries account for a large majority of global refugee reception. 3.5 million out of Syria's 4 million refugees have sought refuge in three countries - Turkey, Lebanon and Jordan. Is it possible to achieve a fair distribution of protection seekers? This Delmi report examines the division of responsibilities for those in need of protection from a global perspective. It analyses past and present models and discusses its feasibility in practice.}, language = {en} } @techreport{CostelloIoffeBuechsel, type = {Working Paper}, author = {Costello, Cathryn and Ioffe, Yulia and B{\"u}chsel, Teresa}, title = {Article 31 of the 1951 Convention Relating to the Status of Refugees}, abstract = {The aim of this paper is to clarify the correct interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees (the 1951 Refugee Convention). The interpretation proposed is based on the binding international precepts relating to treaty interpretation, as reflected in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT).}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EC Immigration \& Asylum Policymaking: Integrating a Role for the Oireachtas}, series = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, booktitle = {National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures}, editor = {Barrett, Gavin}, publisher = {Clarus Press}, isbn = {9781905536023}, publisher = {Hertie School}, pages = {205 -- 242}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles}, series = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, booktitle = {Whose Freedom, Security and Justice? EU immigration and asylum law after 1999}, editor = {Baldaccini, Anneliese and Guild, Elspeth and Toner, Helen}, publisher = {Hart Publishing}, isbn = {9781841136844}, publisher = {Hertie School}, pages = {151 -- 193}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Administrative Governance and the Europeanisation of Asylum and Immigration Policy}, series = {EU Administrative Governance}, booktitle = {EU Administrative Governance}, editor = {Hofmann, Herwig C.H. and T{\"u}rk, Alexander H.}, publisher = {Edward Elgar Publishing}, isbn = {9781845422851}, publisher = {Hertie School}, pages = {287 -- 340}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Accidents of Place and Parentage: Birthright Citizenship and Border Crossings}, series = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, booktitle = {The Citizenship Referendum: Implications for the Constitution and Human Rights}, publisher = {School of Law, Trinity College Dublin}, publisher = {Hertie School}, pages = {5 -- 33}, language = {en} } @incollection{CostelloBrown, author = {Costello, Cathryn and Brown, Eimear}, title = {ECHR and the European Union}, series = {ECHR and Irish Law}, booktitle = {ECHR and Irish Law}, editor = {Kilkelly, Ursula}, publisher = {Jordan Publishing}, isbn = {9781846611247}, publisher = {Hertie School}, pages = {35 -- 78}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Asylum Law \& Policy}, series = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, booktitle = {Sanctuary in Ireland, Perspectives on Asylum Law and Policy}, editor = {Fraser, Ursula and Harvey, Colin}, publisher = {Institute of Public Administration}, isbn = {9781904541042}, publisher = {Hertie School}, pages = {18 -- 51}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Irish and European Law}, series = {Ireland and the European Union: The First Thirty Years 1973-2003}, booktitle = {Ireland and the European Union: The First Thirty Years 1973-2003}, editor = {Hourihane, Jim}, publisher = {Lilliput Press Dublin}, isbn = {9781843510352}, publisher = {Hertie School}, pages = {26 -- 40}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Positive Action}, series = {Equality in Diversity: The New Equality Directives}, booktitle = {Equality in Diversity: The New Equality Directives}, editor = {Costello, Cathryn and Barry, Eilis}, publisher = {Irish Centre for European Law and The Equality Authority}, address = {Dublin}, isbn = {9781897606360}, publisher = {Hertie School}, pages = {117 -- 213}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Sport \& Equality}, series = {Sports and the Law}, booktitle = {Sports and the Law}, editor = {Cox, Neville and Schuster, Alex and Costello, Cathryn}, publisher = {First Law}, address = {Dublin}, isbn = {9781904480228}, publisher = {Hertie School}, pages = {457 -- 495}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Gender Equalities and the European Union Charter of Fundamental Rights}, series = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, booktitle = {Economic and Social Rights under the Charter of Fundamental Rights of the European Union}, editor = {Hervey, Tamara and Kenner, Jeff}, publisher = {Hart Publishing}, isbn = {9781841130958}, publisher = {Hertie School}, pages = {111 -- 138}, language = {en} } @article{CostelloBriddick, author = {Costello, Cathryn and Briddick, Catherine}, title = {Introduction to the Symposium on Undoing Discriminatory Borders}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {10.1017/aju.2021.49}, pages = {328 -- 332}, abstract = {Migration laws and controls distribute important social goods: the right to enter and reside in a particular state, and the rights that attach to any such residence. Migration controls determine individuals' life chances, including sometimes, their very survival. Migration control is a broad concept. Some practices, such as visa administration, control the possibility of travel by regular means, dictating access to mobility opportunities. Other aspects of migration control, such as the conferral of nationality, determine access to permanent residence rights, and the legal ability to pass on membership of a particular state to one's children. Some forms of migration control are automated and may also be undertaken by private actors, including for profit companies. Others may involve determination or adjudication by individual officials or judges. What unites this broad set of practices is that they comprise important public functions with profound implications for both "outsiders" and "insiders." As Chandran Kukathas argues, migration controls pose a threat to equality within states, challenging the notion that these practices primarily affect imagined "outsiders."1 Migration controls impact both "without" and "within" the state. This introductory essay explores discrimination in migration control and discusses how such treatment may be approached from an international legal perspective. We introduce the symposium's contributors and essays and establish the need for further research on this topic.}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Race Discrimination Effaced at the International Court of Justice}, series = {AJIL Unbound}, volume = {115}, journal = {AJIL Unbound}, doi = {10.1017/aju.2021.51}, pages = {339 -- 344}, abstract = {This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.}, language = {en} } @article{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?}, series = {International Journal of Discrimination and the Law}, volume = {22}, journal = {International Journal of Discrimination and the Law}, number = {3}, doi = {10.1177/13582291221116476}, pages = {244 -- 280}, abstract = {Europe's extraordinary response to those fleeing the Russian invasion of Ukraine in February 2022 has prompted many criticisms of Europe's treatment of other refugees, and indeed people of colour and members of ethnic minorities fleeing Ukraine.  While stark, this differentiated response in not unusual:  The global refugee regime treats different refugees differently, as a matter of course.     Refugees often encounter racialized migration controls, and systems which privilege some refugees over others.   The article seeks to clarify when these practices violate the international legal prohibitions on discrimination on grounds of race and nationality.    To do so, it focuses on race discrimination in general international human rights law, clarifying the interaction between general human rights principles and instruments, and the specialist instrument in the field, the International Convention on the Elimination of all Forms of Racial Discrimination.    We identify how differences in treatment on grounds of nationality may engage the prohibition on race discrimination both directly (in particular when nationality equates to national origin) or indirectly. Concerning nationality discrimination, the article focuses in particular on the added value of Article 3 of the 1951 Convention on the Status of Refugees, which obliges states to 'apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.'  We examine Article 3 both within the overall scheme of the Refugee Convention and as a source to guide interpretation of international human rights norms.}, language = {en} } @article{CalıCostelloCunningham, author = {{\c{C}}al{\i}, Ba{\c{s}}ak and Costello, Cathryn and Cunningham, Stewart}, title = {Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies}, series = {German Law Journal}, journal = {German Law Journal}, number = {21}, issn = {2071-8322}, doi = {doi:10.1017/glj.2020.28}, pages = {355 -- 384}, abstract = {This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as "soft courts." It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990-2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their "harder" regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Strategic Litigation to Vindicate the Rights of Refugees and Migrants: Pyrrhic Perils and Painstaking Progress}, series = {Legal Cases That Changed Ireland}, booktitle = {Legal Cases That Changed Ireland}, editor = {Bacik, Ivana and Rogan, Mary}, publisher = {Clarus Press}, address = {Dublin}, isbn = {9781905536856}, publisher = {Hertie School}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {The Search of the Outer Edges of Non-refoulement in Europe}, series = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, booktitle = {Human Rights and the Refugee Definition: Comparative Legal Practice and Theory}, editor = {Burson, Bruce and Cantor, David James}, publisher = {Brill | Nijhoff}, address = {Leiden, Netherlands}, isbn = {978-90-04-28858-4}, doi = {/10.1163/9789004288591}, publisher = {Hertie School}, pages = {180 -- 209}, abstract = {The purpose of this chapter is to examine the relationship between the prohibition on refoulement under human rights law (in particular under the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and protections under international refugee law. It illustrates that the two systems, human rights and refugee law, develop their protections in different modes. I illustrate this divergent development as a riposte to the claim that non-refoulement under human rights law effectively broadens the protection against refoulement in refugee law. Of course, in some ways, that claim is correct, but in other respects human rights non-refoulement is highly limited, particular as regards which rights violations will lead to protection against return. Currently, it tends to focus on Article 3 ECHR, the right not to be subjected to torture, inhuman and degrading treatment. The chapter critiques the outer edges of human rights non-refoulement, in particular the ECtHR's 'flagrant breach' caselaw.}, language = {en} } @incollection{CostelloHancox, author = {Costello, Cathryn and Hancox, Emily}, title = {The Recast Asylum Procedures Directive: Caught between the Sterotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee}, series = {Reforming the Common European Asylum System: The New European Refugee Law}, booktitle = {Reforming the Common European Asylum System: The New European Refugee Law}, editor = {Chetail, Vincent and Philippe, De Bruycker and Maiani, Francesco}, publisher = {Brill Nijhoff}, address = {Leiden, Netherlands}, isbn = {9789004308664}, doi = {10.1163/9789004308664}, publisher = {Hertie School}, pages = {375 -- 445}, abstract = {This piece provides a detailed analysis of the Recast Asylum Procedures Directive (Recast APD). Although we are now two decades into harmonization of asylum procedures at the European Union (EU) level, we begin in Part 2 by revisiting the rationale for this process. We contend that the most persuasive rationale for procedural harmonization, in an EU legally committed to refugee protection, is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. The original Asylum Procedures Directive (APD) failed to meet this aim by a long margin. The Recast APD is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament's relatively new role as co-legislator on asylum matters. Our analysis reveals that the Recast APD contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out 'abusive' claims. In contrast, there is also a strong acknowledgement that some asylum seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (RSD) as a process for recognising refugees, on the assumption that many (although of course not all) of those who apply will be so recognised.}, language = {en} } @incollection{FreedlandCostello, author = {Freedland, Mark and Costello, Cathryn}, title = {Migrants at Work and the Division of Labour Law}, series = {Migrants at Work: Immigration and Vulnerability in Labour Law}, booktitle = {Migrants at Work: Immigration and Vulnerability in Labour Law}, editor = {Costello, Cathryn and Freedland, Mark}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198714101}, doi = {10.1093/acprof:oso/9780198714101.003.0001}, publisher = {Hertie School}, pages = {1 -- 28}, abstract = {This is the opening chapter of the edited collection Costello \& Freedland (eds) Migrants at Work: Immigration and Vulnerability in Labour Law (OUP, 2014). Drawing on the wide-ranging contributions to that collection, it identifies the intersection between migration law and labour law, and explores the analytical and normative significance of that intersection. The fact of immigration, and more particularly the various kinds of status which migration law accords to immigrants, are a source of divisiveness in labour law. Existing divisions within labour law, both between labour law's objectives and its subjects, are exacerbated, and new divisions created. We do not posit the figure of the migrant as vulnerable, but rather identify how migration law creates vulnerability by distorting the employment relationship. In particular, migration law often increases the dependency between worker and employer, and exacerbates the precariousness of the relationship. We identify the unresolved normative tension between the objectives of expanding employers' access to migrant workers; protecting the employment prospects and conditions of local worker; and acknowledging the importance of migration for the life chances and even, in some instances, survival of migrants. Various regulatory strategies to overcome these tensions and heal these divisions are explored, across migration, human rights and labour law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Migrants and Forced Labour: A Labour Law Response}, series = {The Autonomy of Labour Law}, booktitle = {The Autonomy of Labour Law}, publisher = {Hart Publishing}, address = {Oxford}, isbn = {9781782254645}, publisher = {Hertie School}, abstract = {In this chapter I illustrate, that immigration law, the immigration process and labour market structures may interact to create vulnerability to forced labour, drawing on empirical studies in the UK. Section II begins with some reflection on labour law's autonomy. Section III seeks to clarify 'forced labour'. I examine in turn the binary between 'free' and 'unfree' labour in political economy, and the notion of a continuum from free labour to the ultimate form of unfreedom, slavery. While both the binary and continuum approaches are illuminating, neither approach entirely befits the legal task of identifying the human rights violation that is forced labour. The distinct legal labels of 'slavery', 'servitude' and 'forced labour' are legal concepts embodying distinctive institutional forms of work relation. This part also explores how prohibitions on trafficking, in contrast, introduce a distinctive, potentially distortive focus on migration control and criminalization into this field. In light of the preceding discussion, Section IV examines how the migration process and immigration law create fertile conditions for forced labour. Some features of immigration law, such as precarious and irregular migration status are liable to increase dependency in work relations, which can induce domination. However, this part also considers how those with secure migration status, namely EU citizens in the UK, are also vulnerable to forced labour. In light of this analysis, Section V then critiques the current legal responses to forced labour. These responses should be of concern to labour lawyers, as they obscure general labour rights concerns, and the regulatory conditions that are fertile for forced labour. The UK exemplifies the tendency to obscure labour law concerns, with a Bill on 'modern slavery' going through Parliament at the time of writing, proposing life sentences for those convicted of human trafficking, slavery, forced labour and domestic servitude. The criminal approach focuses on the outcome (the forced labour itself), rather than understanding the laws, practices and regulatory gaps that set up the vulnerability to forced labour. Accordingly, I contrast this criminal law approach with the labour law approach, taking into account the 2014 Protocol to the ILO Convention on Forced Labour. A third approach focuses on human rights law. As currently interpreted, the human rights approach is parasitic on the criminal law approach. I argue that a more progressive (ie orthodox labour law) interpretation of human rights law on forced labour is appropriate and necessary. A labour law approach should ideally entail three main elements, which are briefly sketched here. First, it should insulate labour rights from migration status. Secondly, it should regulate labour intermediaries. Thirdly, it should develop better collective and institutional protections for labour rights. Evidently this is not labour law as we find it in the UK today. However, the evidence of extreme labour exploitation and forced labour demands an urgent revisitation of the norms and institutions of labour law.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Child Citizens \& De Facto Deportation: Tender Years, Fragile Ties \& Security of Residence}, series = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, booktitle = {Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly}, editor = {Bradley, Kieran and Travers, Noel and Whelan, Anthony}, publisher = {Hart Publishing}, address = {London}, isbn = {9781782256014}, doi = {10.5040/9781849468404.ch-025}, publisher = {Hertie School}, pages = {411 -- 432}, abstract = {Citizens may not be deported. That proposition is today axiomatic - the age of banishment is no more. Non-deportability is not just a hallmark of citizenship, but constitutive thereof. Not being deportable means to enjoy security of residence in the polity, to belong legally. Taking that as given, when may the foreign parents of citizens of 'tender years' be deported? This question has been subject of much constitutional controversy in Ireland and at supranational level. Under some approaches, to remove the parents of a young citizen-child is acknowledged as 'de facto deportation' of the children, as it means that the child's right of residence is ineffective or at best only to be exercised under conditions that are themselves a denial of rights. Yet, that approach is permitted under many Constitutions. The present contribution examines this issue, illustrating the wax and wane of domestic constitutional, EU and ECHR protections. Its purpose is not an exhaustive survey of the case law, but rather to identify the different approaches within and across the different systems.}, language = {en} } @incollection{CostelloMorenoLax, author = {Costello, Cathryn and Moreno-Lax, Violeta}, title = {The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model}, series = {Commentary on the EU Charter of Fundamental Rights}, booktitle = {Commentary on the EU Charter of Fundamental Rights}, editor = {Peers, Steve and Hervey, Tamara and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, doi = {10.5771/9783845259055_1700}, publisher = {Hertie School}, pages = {1700 -- 1727}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Article 33: Family \& Professional Life}, series = {The EU Charter of Fundamental Rights - A Commentary}, booktitle = {The EU Charter of Fundamental Rights - A Commentary}, editor = {Peers, Steve and Tamara, Hervey and Kenner, Jeff and Ward, Angela}, publisher = {Hart Publishing}, address = {London}, isbn = {9783845259055}, doi = {10.5771/9783845259055_934}, publisher = {Hertie School}, pages = {934 -- 969}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Ireland's Nice Referenda}, series = {European Constitutional Law Review}, volume = {1}, journal = {European Constitutional Law Review}, number = {3}, doi = {10.1017/S1574019605003573}, pages = {357 -- 382}, abstract = {Part One: Referenda required to amend Irish Constitution. Referenda on accession to EEC, the Single European Act, Maastricht and Amsterdam. Development by courts of rules for fairness of referendum campaigns. Referendum Acts and Referendum Commission. Part Two: First Nice Referendum dominated by euro-anxiety, Irish neutrality and enlargement. Second referendum on same subject not unusual and acceptable according to domestic criteria. Concessions and clarifications. Effect on the Convention on the Future of Europe. Part Three: implications for the Constitutional Treaty.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection}, series = {European Journal of Migration Law}, volume = {7}, journal = {European Journal of Migration Law}, number = {1}, doi = {10.1163/1571816054396842}, pages = {35 -- 69}, language = {en} } @article{CostelloDrake, author = {Costello, Cathryn and Drake, Sara}, title = {State liability in damages in the Irish and UK Courts}, series = {European Public Law}, volume = {9}, journal = {European Public Law}, pages = {366 -- 389}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Preliminary Reference Procedure and the 2000 Intergovernmental Conference}, series = {Dublin University Law Journal}, volume = {21}, journal = {Dublin University Law Journal}, pages = {40 -- 66}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Market Access All Areas - The Treatment of Non-discriminatory Barriers to the Free Movement of Workers}, series = {Legal Issues on Economic Integration}, volume = {27}, journal = {Legal Issues on Economic Integration}, number = {3}, pages = {267 -- 277}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {Victim or Perpetrator? The Criminalised Migrant and the Idea of 'Harm' in the Labour Market Context}, series = {Criminality at Work}, booktitle = {Criminality at Work}, editor = {Blogg, Alan and Collins, Jennifer and Freedland, Mark and Herring, Jennifer}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198836995}, doi = {10.1093/oso/9780198836995.003.0016}, publisher = {Hertie School}, pages = {309 -- 326}, abstract = {This chapter provides powerful arguments against the criminalization of irregular migration. It does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. The chapter argues that it is very difficult to identify any direct wrongs or harms to others that arise in virtue of 'irregular' migration. Furthermore, a malum prohibitum offence cannot be justified. Against these weak arguments in favour of criminalization, this chapter identifies compelling reasons against criminalization. Criminalization leads to further criminalization, which ultimately undermines both migrants' and local workers' fundamental rights. It also blocks discussion of one particularly worker-protective regulatory response to irregular migration, namely regularization. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {On Refugeehood and Citizenship}, series = {Oxford Handbook of Citizenship}, booktitle = {Oxford Handbook of Citizenship}, editor = {Shachar, Ayelet and Baub{\"o}ck, Rainer and Bloemraad, Irene and Vink, Maarten}, publisher = {Oxford University Press}, address = {Oxford}, isbn = {9780198805854}, doi = {10.1093/oxfordhb/9780198805854.013.31}, publisher = {Hertie School}, abstract = {This chapter explores the relationship between citizenship and refugeehood. In particular, it examines the extent to which loss of meaningful citizenship defines the predicament of the refugee. It then examines the status of refugee and refugee rights. Thirdly, it considers how refugeehood comes to an end, in particular the role of citizenship (new or restored) in ending refugeehood. Citizenship is formally viewed as bringing refugeehood to an end, whether that emerges as return to the home country or naturalisation in a new state. However, in practice, a new citizenship for many refugees remains out of reach, and the status of refugee often becomes an intergenerational carrier of civic and social exclusion. The reflects the realities of refugee containment, in contrast to the vision of shared responsibility that underpins the 1951 Convention on the Status of Refugees and the refugee regime.}, language = {en} } @incollection{Costello, author = {Costello, Cathryn}, title = {EU Migration and Asylum Law: A Labour Law Perspective}, series = {Research Handbook on EU Labour Law}, booktitle = {Research Handbook on EU Labour Law}, publisher = {Edward Elgar Publishing}, address = {Cheltenham, UK and Northampton, MA}, doi = {10.4337/9781783471126.00020}, publisher = {Hertie School}, pages = {299 -- 335}, abstract = {The purpose of this chapter is survey EU migration and asylum law from a labour law perspective. A labour law perspective is concerned with the work relationship, and focuses not only on the worker, but also the employing organisation and any intermediary involved in labour supply. Examining EU migration and asylum law using this multifaceted prism of labour law reveals that EU migration and asylum law has a profound impact on labour law. That impact may be understood has having three different dimensions. (1) It affects the supply and demand for migrant workers. In this sense, migration law can be a form of labour market regulation. (2) migration and asylum law create different migration statuses that in turn determine, at least in part, labour rights. The move to re-introduce status over contract as a determinant of workers' rights divides the subjects of labour law. (3) Migration status and the fact of migration may be risk factors for labour exploitation. In order to examine these three facets, the particular role of the EU in this field must be explained. Part 1 provides a sketch of the role of states and markets in the regulation of migration. It sets the scene to understand the profound but limited role of the EU in this context. Part 2 examines the status of EU Citizenship, and the forms of liberalised free movement in the EU's internal market, that principally benefit those who hold the nationality of an EU Member State. I also consider two important derivative statuses for so-called third country nationals (TCNs), who gain EU rights as family members of EU Citizens and so-called 'posted workers'. Part 3 concerns those TCNs who require permission to live and work in the EU, and provides an overview of some of the different statuses created by EU law, and their labour rights content. Part 4 explores the notion of 'irregular status', and the EU Employer Sanctions Directive and the ruling of the Court of Justice of the European Union (CJEU) in T{\"u}mer contrasted. In the final part, Part 6, I briefly highlight some features of migration status that are risk factors for labour exploitation. A recent EU Fundamental Rights Agency Report details the links between migration and extreme labour exploitation. Current responses focus unhelpfully on trafficking, or on forced labour, and look in particular to criminal law for solutions. This chapter recalls some responses from within labour law. It is suggested that further research is required into the question of which regulatory approaches and combinations thereof work best to protect migrant workers from exploitation.}, language = {en} } @incollection{CostelloMouzourakis, author = {Costello, Cathryn and Mouzourakis, Minos}, title = {The Common European Asylum System - Where did it all go wrong?}, series = {The European Union as an Area of Freedom, Security and Justice}, booktitle = {The European Union as an Area of Freedom, Security and Justice}, editor = {Fletcher, Maria and Herlin-Karnell, Ester and Matera, Claudio}, publisher = {Routledge}, address = {Abingdon, Oxford}, isbn = {9780367193454}, doi = {10.4324/9781315738284}, publisher = {Hertie School}, pages = {263 -- 300}, language = {en} }