The concept of positive action features as a traditional theme of controversy in the contemporary legal and political discourse on equality. The paradox of resorting to unequal treatment in order to achieve "full and effective equality" - according to the wording of the Preamble to Protocol 12 of the ECHR - has been dealt with in a parochial and incoherent way. This is true with regard to both the theoretical justifications provided and the concrete legal measures of domestic jurisdictions. This thesis aims to explore the nature of the relationship between positive action and equality in a European normative and philosophical framework. The principal enquiry is whether it is possible to find a common European denominator regarding the content and legal consequences of the concept of equal treatment, understood as full equality. The analytical process is carried out in four stages. Part I constitutes an attempt to map the theoretical debate and identify the main problems in the justificatory rationale of the "classical" conception of positive action. Part II provides a thorough examination of the current position of the European legal order on the matter. The latter is understood broadly, with EU law and the ECHR being the two pillars of a common normative framework that determines what counts as equal treatment across Europe. Part III explains why a "one size fits all" approach on positive action fails to adequately account for the idiosyncratic requirements of equal treatment in different areas of the public sphere, such as the employment field, politics and the judiciary. Finally, Part IV introduces the notions of indistinctibility of respect and proportionality of concern as the symbiotic conceptual axes of equality. Against this theoretical construct positive action should be properly understood not as an exception to equal treatment but as an expression of proportionality of concern.

This thesis reviews the contribution of the authors listed publications to a legal perspective on the issues surrounding access to social citizenship for social security claimants. The thesis establishes how the author's published work has provided a significant and coherent contribution to the field, bringing a doctrinal and empirical legal perspective to analyse the detail and workings of legislation dealing with issues related to social security law, with a focus on: the specifics of the legal standards and requirements that comprise the rules governing entitlement to social security benefits and access to those entitlements; expanding a rights-based dimension to social security entitlements, utilising legal concepts of human rights and equality law and applying them to the concept of social citizenship; and developing - within and beyond this - participative concepts of access to justice.

Section 19 of the HRA 1998 (HRA) requires a Minister to make a statement to Parliament, before the second reading of a bill for which he is responsible, on the proposed legislation’s compatibility with Convention rights. This procedural mechanism is of central importance to the scheme of the Act, aiming to better protect Convention rights while preserving parliamentary sovereignty (Chapter 1). The section 19 procedure accords with similar developments in a number of other Commonwealth jurisdictions which emphasise the importance of human rights standards being taken into account in the legislative process (Chapter 2). However, despite its domestic and international significance, the importance of section 19 within the scheme of the HRA was overshadowed during the Act’s parliamentary passage and in academic studies of its operation (Chapter 3). Section 19 has resulted in the development of many positive practices relating to the preparation of legislation by central government (Chapter 4) and the scrutiny of legislation by Parliament (Chapter 5), notably the production of detailed guidance for the Executive and the work of the Joint Committee on Human Rights. However, a number of obstacles remain, such that section 19 has had a more limited impact than originally intended. Many of these limiting factors are illustrated in a case-study examination of the passage of section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Chapter 6). This thesis proposes reforms to the section 19 system designed to alleviate a number of the problems identified, including transferring the obligation to make statements of compatibility to the Attorney-General and providing education and training on human rights issues to parliamentarians (Chapter 7). These and other measures discussed in this thesis would help ensure that the democratically accountable branches of government fully contributed to the protection of human rights in the United Kingdom.

The main theme of the thesis is the legal protection of unaccompanied asylum-seeking and separated children in the United Kingdom asylum and social care systems. The thesis investigates if the standard of legal protection conferred upon unaccompanied asylum-seeking and separated children in the United Kingdom asylum and social care systems including durable solutions meet international law standards, protect and safeguard separated children and young persons. The research achieves this by carrying out documentary research of pertinent literature, public documents, international human rights, refugee rights and child rights treaties; and United Kingdom domestic legislation. Qualitative semi-structured interviews were conducted to generate data on the inner workings of legal protection in the United Kingdom, with specific focus on the childhood experiences of asylum and the impact of legal protection or its lack on the childhood experiences of unaccompanied children in the United Kingdom. The research involved interviews with former separated children, experts and professionals who implement the legal protection regime and policies. The thesis analyses the international treaty benchmark standards and norms for the legal protection of unaccompanied asylum seeking and separated children and examines the compliance of the UK with their legal provisions. It establishes the domestic legal standards of legal protection, and practice of child asylum determination and social care. The thesis argues for the international legal protection of unaccompanied and separated children based on a holistic system of international protection found in key international treaties chiefly the international bill of rights, the refugee Convention, the child rights Convention and the subsidiary protection framework in Europe. This results in obligations on the part of State Parties to the above international and regional treaties in this case the United Kingdom. It argues that the asylum and social care systems are equally responsible for the international legal protection obligations and should attain the objective through a best interest determination procedure that secures legal protection that is durable, while maintaining the human dignity of the unaccompanied child throughout the entire process.

This thesis examines the agency of minority groups and their international allies in reshaping the international protection regime for national, ethnic, religious and linguistic minorities to include new group-specific norms. The practices of "norm entrepreneurship" by two groups, Dalits and Afro-descendants, are considered in detail and contrasted with the experiences of similar norm entrepreneurship by indigenous peoples and Roma. Dalit and Afro-descendant activists have pursued norm emergence to establish group-specific recognition, standards and mechanisms at the international level. This thesis examines three key factors that have been instrumental to this group- specific norm emergence: the establishment of strategic frames and stronger forms of transnational mobilisation by each group; the supportive engagement of international actors; and the emergence of new political opportunity structures at the international level, in particular the 2001 UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR). The findings of the thesis provide insight into macro-level changes to international minority protection. By concentrating on the agency of minority groups, the thesis adds to the largely state-centred literature on minority protection. By critically assessing the role of international actors in aiding this norm entrepreneurship, the thesis helps to uncover their limitations, interests and ideational commitments. The findings contribute to norm entrepreneurship studies by considering a unique kind of transnational non-state actor, one that possesses the latent capacity for statehood. The capacity of weak nonstate actors to achieve norm emergence even without state support is demonstrated but the deep challenges they face in securing group-specific norms are exposed. On a normative level, the findings give a glimpse of how emerging norms for transnational minority groups could alter conventions of representation in international society, creating post-Westphalian forms of political community. On a policy level, the findings provide some useful inputs on how to strengthen these new forms of political community and how to enable adherence to emerging group-specific norms.

Situated within a theoretical framework devised by Keith Hawkins, combined with thematic understandings of street-level bureaucrats (SLBs) and their impact on decision-making as developed by Lipsky, this thesis examines why children in care rarely complain about the service they receive from local authorities in England. The gap for this research can be seen more generally in complaints literature which is yet to explore fully the barriers to complaining. I conducted semi-structured interviews with care leavers in order to develop themes which informed the interview questions for four professional groups: Social Workers, Complaints Managers, Advocates, and Independent Reviewing Officers. The data collected from both interview phases has been analysed within Keith Hawkins' framework, and with reference to Lipsky's understanding of front-line policy-making, to develop a greater understanding of professional decision-making processes and the construction of relationships between social care practitioners and looked after children. Looked after children experience care through the relationships they develop with practitioners within a complex framework of procedures and processes. In this context, looked after children are assimilated within a bureaucratic system which influences how they understand the world around them, themselves and their rights. This thesis will show that the care system can discourage looked after children from complaining when things go wrong for a variety of reasons including: the creation of a culture of fear, complexity of processes, lack of advocacy services, lack of information, diversion of grievances, resolution of grievances outside of complaints processes, and lack of trust in professionals and systems.

The debate over the female headscarf has become an arena of fervent discussion in the West as well as in Muslim majority societies and it is often framed through the lens of a ‘clash of civilizations’ between western/‘secular’ and ‘religious’/traditional values. This thesis attempts to contribute critically to the recent debate and ‘obsession’ over the legal regulation of the hijab shared by westerns and Islamists. Trough anthropological, semiotic, political and legal theories, it proposes to give a different reading of the legal decisions over the practice of veiling in order to unwrap the way in which the tension between ‘secular’ and ‘religious’ is understood as an absolute polarization. A closer analysis of recent western legal decisions over women’s veiling reveals a disturbing symmetry with a positivized modern view of Sharia law by Islamists as binding women’s bodies to a fixed, transparent and singular ‘universal’ identity that is, I claim, analogous to a universal-ist subjectivity of Human Rights law. Thus, the veil emerges as the metaphor of a clash between two imperialist universalist modern discourses: the secular discourse of a westernised world that is re-humanised through Human Rights and the reactive Islamist discourse. Both aim at creating a fixed and monolithic subject of law through the control of the visible (veiling/unveiling) in the public sphere. The claim of an incompatible dichotomy between liberal/secular and ‘Islamic’ religious values obscures this symmetry. Moreover, I argue that this polarization is the result of a specifically Occidental (Christian/secular) semiotic understanding of religion and religious practices which is nowadays embedded in western law, but also in Islamist discourse. This dichotomy becomes a useful tool to sustain the fiction of a monolithic subject and to operate a re-configuration of religious sentiments and practices in the public sphere to benefit state sovereignty. This re-conceptualization emerges as a necessary sovereign act to preserve the unity and homogeneity of a people.

This thesis considers one of the most compelling challenges facing post-conflict societies: the situation of women in the aftermath of war and the adequacy (or not) of international law in addressing that situation. This thesis assesses the key changes which occurred within international law in addressing the situation of women in the aftermath of conflicts. These changes were marked by developments concerning gender, armed conflict and post-conflict situations in specialised branches of international law, such as International Refugee Law (IRL), International Criminal Law (ICL), and International Human Rights Law (IHRL). Furthermore, the developments took place in the context of, and have been partially influenced by, other changes within the discipline, including the increased fragmentation and specialisation of branches of international law, greater attention to the role of gender within international law, and the emergence of the idea of jus post bellum as a legal framework addressing post-conflict situations. Whilst these developments are rarely (if at all) considered together, this thesis views them as closely linked and influential in shaping international legal responses to the situation of women in the aftermath of conflicts. The examination of the research questions in relation to the four specialised branches of international law (International Humanitarian Law, IHRL, IRL, and ICL) reveals that the past 30 years resulted in proliferation of rules applicable to the challenges faced by women in post-conflict situations. However, with the exception of ICL, the responses of international law to this problem are predominantly of soft nature and, furthermore, are often disjointed. The thesis concludes that in order to be effective and enforceable, the soft law developments need to be translated into the language of positive obligations, duties, and paired with a strong accountability mechanism, which is absent from the current legal framework.

No description available.

Irregular migration management finds itself high on the political agenda of the European Union with the aim to establish a clear, fair and transparent common return policy respecting fundamental rights. Thus, in 2008, the EU adopted the Return Directive that became a subject of vast criticism by academics as well as practitioners due to its controversial nature. The main object of critique has been claims that the Return Directive does not provide sufficient fundamental rights protection for irregular third-country nationals during the return procedure and is thus not in compliance with general principles of EU law. The thesis aims to study the fundamental rights protection in the Return Directive in the light of the Charter of Fundamental Rights and general principles of EU law. While the concerns over the Return Directive’s compliance with the fundamental rights principles continue even now, they have demonstrated a slight shift, which provides reason to question whether the Directive really is as insufficient as initially feared. The thesis sets to examine whether the alleged fundamental rights shortcomings in the Return Directive can be salvaged by the application of the Charter and general principle of EU law. In carrying out the research the thesis aims to study whether the Return Directive entails any shortcomings to provide sufficient fundamental rights safeguards during the return procedure and whether these shortcomings appeared because of the flawed work of legislators or were caused by the Member States whilst applying the Return Directive. The thesis is composed of five parts, beginning with the Introduction and ending with the Conclusions. The form of methodology adopted throughout is therefore doctrinal.