The Importance of Access to Justice
Access to justice is an undeniably crucial requirement for refugees worldwide. The United Nations Development Programme (UNDP) outlined the importance of access to justice to allow refugees protection and inclusion, and to provide solutions and advance sustainable development. At the most basic level, access to justice ensures respect of the rule of law, providing refugees equal treatment in accordance with the law. The United Nations defines the rule of law as a ‘principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.’
With over 100 million people displaced due to conflict and human rights infringements, the importance of providing access to justice to refugee communities cannot be overstated. The United Nations Refugee Agency (UNHCR) defines a refugee as ‘someone who has been forced to flee his or her country because of persecution, war or violence’. By definition, a refugee is therefore placed in a vulnerable legal position, outside of familiar national jurisdiction with limited access to legal resources and aid. Most obviously, appropriate access to justice can provide refugees more secure legal standing, allowing them to challenge potentially unlawful deportations or rights infringements. However, the importance of access to justice for refugees is not limited to refugee and immigration law. Refugees worldwide lack access to mundane justice, such as disputes involving and within families, and around housing, land, and property. Additionally, sexual and gender-based violence (SGBV), discrimination, and exploitation issues, which require legal remuneration, disproportionately impacts refugees.
Access to justice is also a crucial element of post-conflict solutions. Marie-Hélène, a refugee from the Central African Republic, demonstrated the dangers of an inability to access justice in post-conflict communities. Speaking about the lack of judicial procedures leading to increasing violence in 2014, she stated, "It is retaliatory violence and unfortunately people are taking law into their own hand. I always tell my brothers and members of my community to be patient, and never use violence to get justice”. Failing access to justice undermines post-conflict peaceful solutions, with access to administrative justice necessary to re-build peaceful and just societies.
The Current Situation
The 1951 Refugee Convention is the main source of refugee law and enshrines within Article 16 that: ‘A refugee shall enjoy in the Contracting State in which he has his habitual residence, the same treatment as a national in matters pertaining to access to Courts, including legal assistance and exemption from cautio judicatum solvi [a bond for payment of the judgement]’. Such a statute was created to provide refugees a firmer legal identity in the states in which they settle, making clear that the rule of law, which upholds access to justice, applies to both citizens and non-citizens. However, despite the expansion of this Convention in 1967 to provide protection for refugees worldwide, in practice access remains limited.
Firstly, a key barrier to accessibility is the availability of legal aid and resources to refugees; without such aid the likelihood of any legal protection being implemented is remote. The Public Law Project highlighted that domestic governments increasingly hostile and restrictive provisions for refugee legal aid has worsened access to justice. The UNHCR reports that lack of suitable international and national legal administration has resulted in increased human rights violations for refugees in transit, at international borders and in the countries they eventually inhabit, with such wilful violations closely related to ‘deep-seated attitudes of prejudice or xenophobia’. Any legal protection is inoperative without the means to challenge and enforce said protections. More specifically, England and Wales legal aid is insufficient to provide legal representation even for those refugees automatically eligible for such aid, as reported by Refugee Action. Any refugees who are not automatically eligible and would be required to apply for resources, are unlikely to be provided with sufficient aid. In the same findings, Dr Jo Wilding noted that such restrictions to justice have resulted in ‘destitution, homelessness, isolation and poor mental and physical health of people’. Provisions for access to justice must acknowledge the detrimental impacts on individuals that are unable to legally protect themselves.
Access to Justice in Refugee Camps
Although the majority of refugees live in cities (with the UNHCR reporting ~78%), refugee camps provide problematic barriers to access to justice. Refugee camps provide temporary accommodation and facilities for displaced refugees, providing for basic necessities such as water, food, and medical treatment. Although impermanent in their structure, in protracted refugee situations (where a country is impacted by mass displacement for over 5 years), refugees can be housed in camps for extended periods of time and access to justice becomes increasingly uncertain. For refugees living in refugee camps, SGBV, as well as theft, are the most commonly reported justice problems according to the UNHCR. Access to justice is undermined by the remote location of camps, with restrictions on freedom of movement common, preventing refugees physically seeking legal representation. Additionally, jurisdiction applicable to refugee camps can be ambiguous; refugees are subject to the domestic law of the country the camp is based in as well as international refugee law. However, the UNHCR reports domestic law is applied haphazardly and therefore camps are faced with both increasing lawlessness and a lack of access to justice. The impact of domestic law is also limited by a lack of knowledge. As refugee communities are unfamiliar with the domestic law, attempts to access justice are restricted as communities are unaware whether they have had their rights infringed.
Access to Justice for Women and Child Refugees
Recent research has indicated that women in particular lack access to justice as refugees. As well as being disproportionately affected by SGBV, women refugees’ ability to access justice can be more limited than men, which is problematic in situations where women seek legal protection against family members. Amnesty International report that Venezuelan women refugees who relocate to Columbia and Peru face greater restrictions to access justice. This is due to numerous reasons, including domestic stereotypes and incorrect application of regulations by authorities. For example, both Columbia and Peru often require women to provide documentation of their refugee or migrant status to allow them to make a legal complaint, despite the fact that this is not required by the law. Additionally, women’s freedom of movement is often more restricted than male refugees, with restricted autonomy preventing physical access to justice.
This disadvantage is often also applicable to child refugees. The Europe of Rights and Liberties journal discusses the need for child-friendly judicial procedures and access to remedies to allow impactful access to justice for child refugees. This requires the acknowledgement of children as independent rights-holders, something which the journal notes the EU and Europe have increasingly upheld. However, the above discussed limitations to access to justice disproportionately impact children, who require accessible justice that acknowledges both their age and maturity.
Numerous international and domestic organisations have suggested solutions, focusing on a range of issues from increasing legal aid, to creating simplified, transparent legal procedures for refugees. Charities such as JUSTICE work with domestic countries, providing recommendations to improve refugee access to justice. There is growing demand for legal empowerment as an initial, but essential, action to improve access to justice. Asylum access defines legal empowerment as a solution that ‘supports refugee communities and their allies to understand, use and shape the laws that affect them’. As mentioned, lack of knowledge of legal regulations and given rights hinders refugees access to justice, as refugee communities are uncertain when access should be sought. Increasing awareness of rights and pathways to access justice within refugee communities, through educational programmes, provides a potential solution. The UNDP funds and organises a number of these projects, such as the current legal empowerment of Moldavian refugees. The UNHCR similarly published a report focussing on refugee women and methods to increase their awareness of the potential justice pathways available to them, particularly focussed on SGBV.
Access to justice for refugees is a rectifiable problem, with justice providing refugees security, legal standing and peaceful resolutions. Providing legal aid and representation, as well as education on relevant legal rights and restrictions, provides refugees with the ability to defend their rights, in both international and domestic matters.