AIDA update Hungary: new asylum legislation contravenes EU rules
The updated AIDA report on Hungary documents how the country’s asylum system was overhauled over the summer of 2015 through a series of legislative reforms.
Hungary adopted a list of ‘safe countries of origin’ and ‘safe third countries’, designating countries such as Serbia as safe and declaring as inadmissible all applications of asylum seekers coming through Serbia. These constitute the overwhelming majority of claimants in Hungary. This rule is also applicable to persons returning to Hungary under the Dublin Regulation.
Moreover, since 15 September 2015, the amended Asylum Act provides for a border procedure in transit zones; this procedure can last as short as one hour in certain cases, after which asylum claims are summarily rejected as inadmissible. Transit zones, made up of container constructions, where asylum seekers are detained, were set up at border-crossing points on the Serbian and Croatian borders in September and October 2015, when the respective borders were closed.
The new rules pose undue restrictions to accessing protection in the country and diverge from numerous provisions of the EU asylum acquis as detailed by the Hungarian Helsinki Committee: for example, the obligation of non-refoulement, the obligation to guarantee access to the territory and to the asylum procedure, the right to a fair, individualised and in-merit examination of the asylum claim and the obligation to ensure an effective remedy.
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Detention still a widespread practice in the UK, finds updated AIDA report
The updated AIDA report on the United Kingdom elaborates upon Detention Action’s litigation which saw the suspension of the Detained Fast Track (DFT) procedure for appeals on grounds that the system was structurally unfair and unjust. Since the suspension of the DFT, all appeals which had been heard in the procedure are to be re-heard and applicants cannot be removed from the country until the appeal has concluded.
However, the use of detention is still widespread in the UK: 11,146 asylum seekers have been detained thus far in 2015. The report worryingly documents that even vulnerable persons are placed in detention; no alternatives to detention are considered. The UK is an ongoing exception among EU Member States, allowing detention for an unlimited amount of time.
The UK declined to be part of the EU relocation mechanism and agreed instead to resettle 20,000 vulnerable Syrians over a five year period. As for the situation in Calais, the increased security and surveillance measures put in place are intended to compel people in the camps to claim asylum in France rather that in the UK.
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AIDA update: Poland introduces a State legal aid system
The updated AIDA report on Poland details how the recast Reception Conditions and Asylum Procedures Directive were transposed into national law. The major change in this regard is constituted by the introduction of a State legal aid system. From January 2016, the Office for Foreigners will be in charge of providing legal information to asylum applicants in the first instance, whereas lawyers, legal counsellors and NGOs will be in charge of legal aid at second instance.
Moreover, the new legislation provides a legal basis for detention of cases falling under the Dublin regulation, when there is a risk of the asylum seeker absconding. The concept of “safe country of origin” has been deleted from national legislation, while the suspensive effect of appeals against negative asylum decision – advocated for by the Helsinki Foundation for Human Rights and other NGOs – has not been included in the law.
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The EU-Turkey deal poses serious threats to refugees’ and migrants’ human rights
The 29 November meeting between EU Heads of State and the Turkish Prime Minister finalised the agreement between the EU and Turkey for the control of migratory flows. On the basis of the Joint Action Plan, the EU is offering 3 billion euros under the EU Refugee Facility for Turkey to assist the country in dealing with the high numbers of refugees, to support Syrians under temporary protection and help host communities. In return, Turkey will prevent onward travel to EU countries and take back people found not to be in need of international protection. Other measures offered to Turkey include visa liberalisation for Turkish nationals by October 2016 and the reopening of the accession process.
In a statement issued on Tuesday 1 December, ECRE expressed deep concerns that the agreement will result in an increased risk of refoulement and human rights violations. ECRE fears that the current deal will not only result in boats being turned back and increased detention, but also more refugees stranded at the Turkish-Syrian border. A day after the agreement was signed, 1,300 asylum seekers and migrants were arrested by Turkish police in the south-western part of the country, in an effort to stop people from attempting the journey to Greece. Moreover, reports by Human Rights Watch highlight how Syrians are being denied entry to Turkey at the border and being pushed back to Syria. This is particularly worrying, especially in light of the newly released UNHCR Guidance Note on International Protection Consideration with regards to people fleeing Syria, which explicitly states that “the human rights situation in Syria continues to deteriorate” and that returns to Syria should not be carried out at all costs.
“As long as there are people fleeing from persecution, no matter how strict the border controls are, they will not be stopped from trying to reach safety. The EU needs to meet its responsibilities and avoid more human misery,” Piril Erçoban from Mülteci-Der stated.
Turkey currently does not grant full legal status to refugees: in practice, many asylum seekers and refugees face concrete obstacles in accessing basic services, including education, employment and social assistance. Constrained by language barriers and limited right to work, most asylum seekers and refugees live in precarious conditions, including over 700,000 Syrian refugee children who have no access to school. All this is taking place in an increasingly hostile climate for human rights protection in the country, as highlighted by the EU progress report.
For further information:
- ECRE Statement, ECRE fears human rights being left behind in the rush to an EU-Turkey deal
- European Parliament, MEPs hail EU-Turkey deal but say human rights and freedoms must be respected, 2 December 2015
- Human Rights Watch, Risks of the EU-Turkey Migration Deal, 1 December 2015
- The Guardian, Turkey arrests 1,300 asylum seekers after £2bn EU border control deal, 30 November 2015
- Meeting of Heads of State or government with Turkey, EU-Turkey statement, 29 November 2015
- Mülteci-Der, Call to put an end to the dirty deal and respect the human rights at the EU-Turkey summit, 29 November 2015
- ECRE, Tusk calls new Turkey summit to finalise migration deal, 27 November 2015
- Reuters, Withheld EU report raps Turkey on rights, media, justice, 28 October 2015
- ECRE, The EU supports Turkey to integrate refugees and control further arrivals, 9 October 2015
- Asylum in Europe (AIDA), Country report: Turkey, May 2015
European Parliament calls for a complaints mechanism to improve Frontex’s human rights protection
On 2 December, the European Parliament adopted a resolution recommending the EU’s border agency Frontex to set up a mechanism allowing migrants and asylum seekers to make complaints about potential infringements of their fundamental rights during Frontex operations. The resolution is in line with the recommendation made by the European Ombudsman and would lead to greater transparency and better safeguards against human rights violations.
In conducting its primary role of managing the EU’s external borders, Frontex is involved in activities such as intercepting irregular migrants, asylum seekers and refugees at borders and at sea, search and rescue and joint return operations which encompass fundamental human rights obligations. Although it is already obliged to comply with the Charter of Fundamental Rights, the European Parliament was concerned that the human rights implications of Frontex’s work have not been adequately tackled. It noted that the complex working arrangements between Frontex and Member States leads to legal gaps in relation to responsibility and accountability.
It therefore recommended that individuals who consider that their rights have been breached should be able to lodge a confidential complaint against any border guard wearing the Frontex emblem. Whilst NGOs should also be able to make complaints, anonymous complaints should not be accepted to prevent abuse.
The resolution is not binding but is significant in the context of the upcoming review of the Frontex Regulation by the Commission later this month, with Commissioner Avramopolous promising to consider the recommendation.
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Belgium restricts access to protection and leaves hundreds of asylum seekers without shelter
In the past week, many asylum seekers in Belgium were prevented access to asylum procedures, including unaccompanied children and families. According to NGOs, certain measures have specifically targeted Afghan asylum seekers. In addition, hundreds of asylum seekers had no choice but to sleep in the street for several days, as emergency pre-reception facilities, where asylum seekers have been accommodated before the registration of their asylum application, are full. Thanks to citizens’ solidarity, some of them could find shelter in churches and private accommodation.
Since September, the Belgian Immigration Office registers only 250 asylum application a day. Those unable to be registered are given an appointment to present themselves on another date; although these delayed appointments often exceed two weeks. This is in clear violation of the EU Directive on asylum procedures that states that asylum applications should be registered within three days, or maximum ten in case of high influx.
In the week of 21 November the situation was particularly dire: following the 21 November terror alert, the Belgian immigration office was closed on Monday. As a consequence, no one was registered. On Tuesday, all Afghan asylum seekers who were queuing to apply for asylum, were prevented from doing so. On Wednesday, only children and families were registered. Thus, during that week many asylum seekers could not lodge their application, many failing to get an appointment to register on another day.
This week the situation continued to be extremely difficult, with many asylum seekers forced to sleep rough. ‘The government can no longer hide behind the higher influx of asylum seekers,’ says Els Keytsman, director of the Flemish Refugee Action. ‘Belgium is depriving people from their fundamental right to seek asylum. The Immigration Office must organise itself professionally and register all asylum seekers. Asylum seekers need to receive qualitative reception from day one.’ In light of the current situation, UNHCR further stressed that Belgium is in violation of European law.
The NGO also questions if the chaos is due to the failure of the state to organise itself or if deterrence is a specific aim. In the past three months the Belgian Secretary of State for Asylum and Migration has sent three different letters to asylum seekers, the last one directly addressed to Afghans, warning them about challenges they would face if they seek asylum in Belgium and encouraging them to voluntarily return to their country of origin. The Flemish Refugee Action highlights that these letters contain misleading information; the tone and language used by the government reveals its intention to deter asylum seekers and convince them not to come to Belgium.
Despite all these challenges, a group of Belgian lawyers reassured asylum seekers not to get discouraged. “Ne vous découragez pas”, they stated, reiterating that Belgium must ensure access to international protection to each person seeking asylum, according to international law.
Support for refugees comes also from the ‘Community Support for Refugees in Belgium’, a group actively engaged in helping refugees during their arrival. They wrote a letter to the Belgian Prime Minister calling on the government to stop relying on private citizens to make up for its failures and to take urgent steps to alleviate this desperate situation.
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Asylum seekers stranded at Greek - FYROM border with limited assistance
Since 18 November, authorities in the Former Yugoslavian Republic of Macedonia (FYROM) have prevented asylum seekers from certain nationalities (excluding Iraqis, Syrians and Afghans) from crossing the Greek-FYROM border. This arbitrary triage leaves, at times, thousands of people stranded at border crossings.
“Since people are desperate, the closure of the borders will not diminish their [determination] to reach their final destination, however it will only make it harder for them to do so in a safe and dignified manner. Furthermore the current circumstances increase the possibility of push-backs towards Greece which is not a good practice for the Macedonian Border Police to set in motion,” stated Martina Smilevska, President of the Macedonian Young Lawyers Association (MYLA), an ECRE member.
According to Médecins Sans Frontières (MSF), on 25 November, over 1,500 refugees were blocked with limited assistance in Idomeni, on the Greek side of the border. Shelters and basic sanitary services in the area are limited and inadequate for long stays, due to overcrowding, rats and insufficient winter supplies. In addition, Greek and local authorities tried to restrict the access of humanitarian organisations to the border area.
During the past week, many asylum seekers experienced panic attacks and attempted self-harm. Asylum seekers prevented from crossing the border repeatedly asked the police to let them enter. On 21 November, more than 2,000 refugees blocked the railway tracks in Gevgelija. Two days later, seven refugees sewed their mouths, and around 60 refugees went on a hunger strike. Protests and tensions escalated until erupting on 26 November, when hundreds of asylum seekers tried to force their way across the razor wire, while the Macedonian police and army responded to rocks and bottles by beating asylum seekers with batons.
On 29 November, FYROM finished the construction of the wire fence between the country and Greece, built with materials provided by Hungary.
In the same week, Serbian and Croatian authorities continued to check documents and nationalities of asylum seekers in Sid. Some of non- Syrians, Afghans or Iraqis said they were physically abused, beaten, kicked and sent back to Serbia by the Croatian police.
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REPORTS & NGOs ACTIONS
Indefinite conscription in Eritrea has created a generation of refugees
A report from Amnesty International has investigated the duration of conscription into national service in Eritrea, finding that it continues to be extended indefinitely, with the result that conscripts continue to be deployed in civilian roles as well as military roles in a system that ‘amounts to forced labour’. This is despite assurances from the Eritrean government that the length of conscription would revert to the 18 month limit, as mandated in Eritrean law.
Eritrea is one of the biggest refugee producing countries in the world but, increasingly, European states have been rejecting asylum applications from Eritreans. For example, countries such as the UK denied asylum in 66% of cases in the second quarter of 2015. Amnesty have called for the international community to ensure that guidelines for examining asylum claims make clear that indefinite conscription in national service is continuing in Eritrea. This in itself is a human rights violation.
Amnesty International also makes recommendations to the government of Eritrea, that include bringing an end to practices of indefinite conscription, ending the conscription of children and bringing an end to the unlawful practices of arbitrary detention without charge or trial.
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Irish Refugee Council: Practical guide on providing early legal advice to people in the asylum process
ECRE member, the Irish Refugee Council (IRC), has launched a manual on providing early legal advice (ELA) to persons seeking international protection. With ELA helping people in the asylum procedure to be identified and recognised at the earliest opportunity, this manual provides practical guidance to legal practitioners on how such advice can be applied.
Exploring the key stages of ELA, the manual outlines how to enable applicants to voice the full extent of their application, how to assist the applicant with considering what evidence might be appropriate to support the application and how to assist the decision maker by providing legal submissions that outline the protection needs of the client in the context of the state’s international legal obligations.
IRC hopes that this manual will be used as a practical guide across Europe, as well as in Ireland, as the benefits of ELA in a protection process have been linked in a number of studies to improved efficiency, decision-making and fairness.
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ECRE interviews Chris Nash, Director of the European Network on Statelessness: ‘The impact of statelessness is profound and enduring.’
The ECRE Weekly Bulletin has spoken to Chris Nash, Director of the European Network on Statelessness (ENS), a civil society alliance with 103 members in 39 countries. ENS is committed to ending statelessness and ensuring that the estimated 600,000 people living in Europe without a nationality are protected under international law. ECRE interviewed Chris on the occasion of the Brussels launch of ENS’s report “No child should be stateless” at the European Parliament and spoke about the main challenges affecting stateless people in Europe, including arbitrary detention.
Research has shown that statelessness is poorly understood, and is sometimes referred to as an 'invisible problem'. Could you briefly explain what is statelessness and what are the issues caused by statelessness?
A stateless person is someone who has no nationality – they do not enjoy the legal bond of citizenship with any state. Statelessness occurs for a variety of reasons – for example discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession) and conflicts of laws between states. Among the millions of stateless people worldwide it is estimated that there are more than 600,000 in Europe alone.
Whatever the cause of statelessness, the impact on those afflicted is profound, and often enduring. Imagine what life would be like if you did not have a passport and were not considered to belong anywhere. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, employment opportunities, property rights and the ability to freely move across borders. It may be impossible to get married, open a bank account or get a driving license – many of the things that most people take for granted.
One pressing challenge is the need to stop statelessness being passed on through the generations. A recent ENS report “No Child Should be Stateless” reveals that across Europe today, children are still born into statelessness. Yet this is thoroughly preventable if all European states were to comply with their existing obligations under international law - which protect a child’s right to acquire a nationality. This is why we’ve launched our #StatelessKids campaign dedicated to tackling this issue, and which is intended to support UNHCR’s global #ibelong campaign which seeks to end statelessness by 2024.
Why did ENS choose to embark on research about the arbitrary detention of stateless persons in Europe?
Back in 2011, while working on the study Mapping Statelessness in the UK, I was struck by the fact that a third of the stateless persons I interviewed for this research had experienced immigration detention, some for periods as long as five years. A similar picture emerged through mapping studies conducted by UNHCR in other countries. Therefore after setting up ENS in 2012 we immediately identified this issue as a thematic priority. With support from the Oak Foundation we designed a three year project combining research, advocacy and strategic litigation.
What immediately comes across when interviewing stateless detainees or former detainees is the destructive impact that detention has had on their lives – in many cases exacerbated by the terrible uncertainty of not knowing when their incarceration would end. I have also often heard individuals describe their frustration at doing everything they can to cooperate with efforts by governments to re-document them but still being blamed if this proves impossible. So through our project we wanted to delve deeper to better understand this problem and how to solve it.
The ‘No child should be stateless’ report addresses the detention of children, families and vulnerable groups. Do we need to be wary of the current levels of global displacement creating a new generation of stateless children? How can European states prevent this?
It is true that the link between forced displacement and the risk of childhood statelessness is an often overlooked aspect of the current humanitarian crisis. Take for instance the example of the children of Syrian refugees who are at particular risk of statelessness due to gender discriminatory laws that do not allow Syrian mothers (e.g. where the father is missing or deceased) to pass on nationality to their children.
When you consider that many of the top asylum producing countries – not just Syria but also Afghanistan, Iraq and Eritrea to name but a few – have large stateless populations as well as defective/discriminatory nationality laws, this is clearly something which needs careful monitoring.
European States can avoid creating a generation of stateless children by honouring and implementing their obligation to grant nationality to children born on their territory who would otherwise be stateless. Half of all European States already operate full safeguards to ensure this, which illustrates that it is not only necessary, but also entirely achievable.
In order to help address this problem we have developed a toolkit, released this week, as a call to action to all stakeholders to help hold governments to account by insisting that they comply with their international human rights obligations that would prevent the arbitrary detention of stateless persons.
Read the full interview here.
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