@article{Costello, author = {Costello, Cathryn}, title = {Safe Country? Says Who?}, series = {International Journal of Refugee Law}, volume = {28}, journal = {International Journal of Refugee Law}, number = {4}, doi = {10.1093/ijrl/eew042}, pages = {601 -- 622}, abstract = {In 1991, Professor Guy S Goodwin-Gill reflected on the emerging safe country of origin (SCO) practices in an editorial in the International Journal of Refugee Law, entitled 'Safe Country? Says Who?'. This article reflects on developments regarding SCO practices since his prescient editorial, focusing on both Europe, where they originated, and Canada. The article first explores how SCO practices have developed in European law and practice since their inception, including the role of European courts in assessing their legality. This European experience is then contrasted with Canada's short-lived experiment with its analogous Designated Country of Origin (DCO) system, which, in 2015, was deemed unconstitutional by the Federal Court of Canada.}, language = {en} } @incollection{CostelloFoster, author = {Costello, Cathryn and Foster, Michelle}, title = {Non-refoulement as custom and jus cogens? Putting the prohibition to the test}, series = {Netherlands Yearbook of International Law}, volume = {46}, booktitle = {Netherlands Yearbook of International Law}, publisher = {Hertie School}, pages = {273 -- 327}, abstract = {The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of 'custom plus' we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.}, language = {en} } @article{CostelloMouzourakis, author = {Costello, Cathryn and Mouzourakis, Minos}, title = {EU law and the detainability of asylum-seekers}, series = {Refugee Survey Quarterly}, volume = {35}, journal = {Refugee Survey Quarterly}, number = {1}, doi = {10.1093/rsq/hdv020}, pages = {47 -- 73}, abstract = {This article examines detention of asylum-seekers, more specifically how European Union (EU) law simultaneously constructs the asylum-seeker as a detainable subject, whilst also limiting states' powers of detention. The power to detain is limited by international refugee and human rights law, but EU law sets more stringent standards. While international refugee law regards the asylum-seeker as a presumptive refugee, EU law seems to take a different view. Nowadays, the legal and physical rite of passage from irregular migrant to asylum-seeker to refugee defines the predicament of refugees who seek protection in the EU. Asylum-seekers are vulnerable to detention as irregular entrants, when they are in transit in search of effective protection, and if they become deportable under the Dublin System. Coercive forms of detention are, too glibly in our view, assumed to be permitted to ensure they cooperate with identification and registration processes. The chapter aims to problematise this detainability of asylum-seekers, examining in particular how their increasing deportability and transferability may increase their detainability. Drawing on empirical examples from the treatment of refugees arriving in the EU in 2015, it suggests that the EU limits on detention need further implementation and institutionalisation.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Immigration Detention: The Grounds Beneath our Feet}, series = {Current Legal Problems}, volume = {68}, journal = {Current Legal Problems}, number = {1}, doi = {10.1093/clp/cuv015}, pages = {143 -- 177}, abstract = {Detention as part of migration control is sometimes portrayed as a 'necessary adjunct' of the state's power to control immigration. This characterization is a masking device, obscuring the grounds of detention (or the lack thereof) from proper scrutiny. It has convincingly been argued that human rights law fails to scrutinize the necessity of immigration detention. Many scholars have pointed out the anomalous approach to assessing the legal justifications for immigration detention, compared with other forms of deprivation of liberty, which are more powerfully constrained by human rights law. Yet, cogent as this critique is, it sometimes fails to interrogate the related questions concerning the legal grounds of detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article aims to elucidate the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?}, series = {Asiel- en Migrantenrecht}, journal = {Asiel- en Migrantenrecht}, pages = {83 -- 92}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored}, series = {Human Rights Law Review}, volume = {287}, journal = {Human Rights Law Review}, doi = {10.1093/hrlr/ngs011}, pages = {287 -- 339}, abstract = {This article explores access to refugee protection, which in practice means access to a place of refuge, in light of various barriers to protection erected by European States. First, European States increasingly extend their border controls beyond their territorial borders and co-operate in order to prevent those seeking protection from reaching their territory. Yet, legal obligations, in particular the principle of non-refoulement, may continue to apply to these activities, as the concept of 'jurisdiction' in human rights law develops. Second, they engage a further, diametrically opposed move, where they purport to act as a single zone of protection, and allocate responsibility for asylum claimants in a manner that also hinders access to protection. The aim of this article is to explore the recent responses of Europe's two supranational courts, the European Court of Human Rights (ECtHR or 'Strasbourg') and the Court of Justice of the European Union (CJEU or 'Luxembourg'), in confronting these attempts to limit and manage access to protection in the EU. Its focus is the ECtHR ruling in Hirsi Jamaa v Italy (condemning Italy's pushback of migrants intercepted on boats in the Mediterranean to Libya), as well as that in MSS v Belgium and Greece (concerning the Dublin system for allocation of responsibility for processing asylum claims) and the subsequent CJEU ruling in NS/ME.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Human Rights and the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law}, series = {Indiana Journal of Global Legal Studies}, volume = {19}, journal = {Indiana Journal of Global Legal Studies}, number = {1}, doi = {10.2979/indjglolegstu.19.1.257}, pages = {257 -- 303}, abstract = {The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human Rights, and the Court of Justice of the European Union, this Article explores how greater interaction between these bodies could produce more rights-protective standards.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {Metock: Free Movement and "Normal Family Life" in the Union}, series = {Common Market Law Review}, volume = {46}, journal = {Common Market Law Review}, number = {2}, pages = {587 -- 622}, abstract = {This article examines the ECJ's ruling, following an exceptional accelerated procedure, in Case C-127/08 Metock, of 25 July 2008. The article praises the Court's boldness in abandoning the "prior lawful residence" requirement for residence rights of third-country national (TCN) family members of migrant EU Citizens, explicitly overruling Akrich on this issue. Its reasoning is bold, yet economical, grounded in the 2004 Citizenship Directive and right to free movement of EU citizens. However, the article is critical of the failure to publish the Opinion of AG Maduro and the sparse reasoning in the case. The ECJ's fundamental rights reticence is particularly striking, in particular as its conception of the residence rights inherent in "normal family life" diverges from the analogous protections under Article 8 ECHR. Although Metock was an easy transborder case concerning migrant EU citizens resident in another EU Member State, the article also argues that the denial of the EC dimension to the family reunification claims of static EU citizens against their home Member States is increasingly untenable.}, language = {en} } @article{CostelloDavies, author = {Costello, Cathryn and Davies, Gareth}, title = {The Case Law of the Court of Justice in the Field of Sex Equality Since 2000}, series = {Common Market Law Review}, volume = {43}, journal = {Common Market Law Review}, number = {6}, pages = {1567 -- 1616}, abstract = {This article examines developments in EC sex equality law from 1 April 2000 to 4 October 2006, continuing this journal's tradition of periodic reviews of developments in this field. We focus on the case law of the European Court of Justice, along with one judgment of the EFTA court, taking into account the changing legislative and constitutional context. In the period under review, this context has changed in several ways.}, language = {en} } @article{Costello, author = {Costello, Cathryn}, title = {The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe}, series = {Human Rights Law Review}, volume = {6}, journal = {Human Rights Law Review}, number = {1}, doi = {10.1093/hrlr/ngi038}, pages = {87 -- 130}, abstract = {The recent case of Bosphorus Airlines v Ireland provided the European Court of Human Rights (ECtHR) with an opportunity to refine further its relationship with the EU. In particular, the ECtHR was called upon to clarify when States could be held responsible for actions taken under the banner of the EU. This article examines the status quo prior to the Bosphorus judgment, and then scrutinises the judgment itself, focusing particularly on the use and scope of the doctrine of 'equivalent protection' to determine State responsibility. The doctrine as outlined in Bosphorus is applied to some likely scenarios involving EU action and its relative merits and disadvantages are discussed. The article also briefly addresses the further global implications of the judgment, namely for the legal accountability of the UN Security Council and the ongoing issue of responsibility of international organisations under international law.}, language = {en} }