Protection from 'refuge': On what legal grounds will a refugee be saved from camp life?

This article addresses an emerging trend whereby refugees are coming to the courts, not seeking protection from persecution in their home country, but rather seeking protection from a place of 'refuge'. In particular, the article focuses on cases where refugees or aspirant refugees are resisting being sent to a place of encampment. Such places are sites of refuge in a notional sense: while they are designated as places of refuge, the human rights and protection concerns in camp environments are well documented. Accordingly, these 'protection from "refuge"' cases present difficult questions for decision makers: on what legal grounds can a refugee or aspirant refugee be protected from a camp environment that may present human rights and protection concerns, but to thousands of others, notionally at least, is a place of 'refuge'? This article critically evaluates the ways in which decision makers determine these 'protection from "refuge"' cases. Through a comparative analysis of case law, the article suggests that most courts and tribunals focus on the refugee or aspirant refugee's personal circumstances, rather than on the protection available in the camp itself, and will only protect a refugee or aspirant refugee from encampment if he or she is exceptional in some way. It is argued that such an approach inhibits judicial consideration of the scope, quality, and purposive function of refuge. Such judicial disengagement perpetuates a narrow concept of refuge and may result in refugee law developing in an asymmetrical fashion. Specifically, this article argues that a dynamic approach to the refugee definition, alongside judicial disengagement from the various notions of refuge contained in the Refugee Convention, risks expanding the categories of people who qualify as refugees, while truncating the scope of protection they are owed.