Asylum: Reducing Rights by Stealth
The Austrian Presidency of the EU ends with a whimper rather than a bang with the European Council of 13-14 December deciding very little on migration. For a Presidency that made “solving” the migration crisis its number one priority it should be judged a failure. Perhaps the Austrian government, Chancellor Kurz and Minister Kickl have understood that migration is a complex phenomenon that doesn’t lend itself to cheap and easy “solutions” (spoiler alert: this hasn’t been understood).
It is no bad thing that most of the Austrians’ ideas, from external processing to detention camps in the Balkans, have not been taken up. Paradoxically, however, they may claim a success in their failure to make progress on the Common European Asylum System (CEAS) reform package. From the start, they made it clear that they had no interest in concluding the reform negotiations and used a tactic of passive resistance to ensure that agreements were not reached among the Member States (contrasting strongly with the energetic if ultimately futile efforts of previous Presidencies).
Despite the understandable fury of the European Parliament, it is impossible that the full package is passed – there isn’t enough time – and it is unlikely that even a mini-package of selected measures is adopted. The European Commission’s Communication from early December again proposes dropping the all-or-nothing approach, originally promulgated by Parliament and recently insisted on by the Council, suggesting that five of the seven legislative proposals could be salvaged.
This is part of the Commission’s own last-ditch efforts to “solve the migration crisis”, a form of “solutionitis”, before the end of the Juncker mandate. It has launched a raft of other ideas since June when it really became clear that the CEAS package was not going through. These include the disembarkation platforms, controlled centres, reform of policies on return, and bolstering of the EU agencies, especially Frontex.
Despite the limited prospects of success, it is important to resist some of the new plans over the next few months, while continuing to work on positive alternatives. In particular, there is a concerning Plan B emerging. The Return Directive recast, the proposed amendments to the mandate of EASO as it transforms into the EU Asylum Agency, and the controlled centres could all combine to consolidate and expand the model of parallel, substandard asylum systems operating at borders.
As well as it lying behind some of the Commission’s plans, this model also appeared in a Franco-German non-paper which was circulating before today’s Summit. Supposedly about “solidarity”, which features in the first part of the non-paper, more concerning are the final two points: a mandatory border procedure to be put in place by all Member States involving automatic detention, shorter procedures and rapid return.
What is coalescing is a model whereby whenever a person crosses an external border they would be detained in a “controlled centre”, subject to a rapid process without adequate safeguards (i.e. without their rights being respected), and then returned. It continues the trend already in place in some Member States of operating parallel and substandard procedures at borders. The proposals include expanding, increasing support for, or even making mandatory such an approach.
The recast of the Return Directive includes Article 22 which sets out a border procedure along these lines – detention, rolling together of status determination and return, and a mere 48 hours to appeal against a negative decision. In the summer, when the Commission put forward the controlled centres concept (essentially an expansion of the hotspots), there was a strong suspicion that the plan had already been in the pipeline, with the disembarkation crisis used as an opportunity to roll it out.
The risk of course is that the substandard border procedure starts off operating in parallel to the regular asylum procedure, so that only those trying to irregularly cross a border are subject to it, bad enough in itself but still limited in impact. It could (or would) then of course subsume and replace the regular procedure, becoming the new standard approach. This is what has happened in Hungary, where people elsewhere in the country are now taken to the border to be held in detention. It is thus a way to introduce a substandard asylum system by stealth.
The usual myths and presumptions prevail: that people crossing borders “irregularly” are all undeserving economic migrants with simple cases that can be swiftly resolved so that they can be rapidly returned. In fact recognition rates are generally high and there are probably many more people who have protection needs who receive no status rather than vice versa, due to poor and politically driven decision-making and the limitations and anachronisms of the protection system itself.
There is also a belief among too many policy-makers that appeal processes are a luxury or an abuse of the system, with asylum-seekers and their lawyers taking advantage of this weakness in asylum law. It is proving difficult to “stop this abuse”, i.e. to reduce rights, including the right to effective remedy, the right to legal assistance, and the right not to be detained, in the asylum system as a whole, however it is possible to do it at borders. In fact, appeals are a normal part of legal processes and in all areas of law first instance decisions are routinely overturned by higher courts. In the asylum domain, providing these basic human rights – as the right to an effective remedy or legal assistance are – can actually make asylum systems function more efficiently. There is also no logical reason why a different process, substandard or not, should operate at borders compared to the rest of a country.
The hotspots experience shows that this substandard border model has devastating humanitarian consequences but also that it is inefficient to run multiple asylum procedures simultaneously. It also led to EASO’s resources being diverted away from supporting relocation and getting people out of Greece into other Member States – and thus mitigating some of the negative effects of the Dublin system and contributing to solidarity. Instead, EASO’s focus became supporting rapid processing and return to Turkey (which haven’t worked).
It may be that this plan B does not go through – there hasn’t been support for the Franco-German proposal and no Member States are yet willing to host a controlled centre. But it is also important that Article 22 be deleted from the Return Directive recast (not amended), as ECRE has argued in its Comments on the recast, and that the role of EASO/EU Asylum Agency is to support and monitor compliance with the asylum acquis and not detention and return. In the short-term, rights-based compliance with existing law and the work on a functioning asylum system in Europe should be priority for all. Bilateral agreements, such as the German-Greek Administrative Arrangement, under which Member States stop people at borders and circumvent existing law by transferring them straight back to another Member State, should also be abandoned, as ECRE argues in a new policy paper.
For the future, it would be good to have a break from “new” ideas and solutions to the “crisis”. Let’s try to recover from this solutionitis and instead focus on making asylum systems work. Instead of launching new legal proposals, focus on compliance with current law – asylum law, human rights law and the law of the sea for starters.
Editorial: Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)
Asylum seekers returned to Italy under the Dublin Regulation face arbitrary access to accommodation, risks of destitution and substandard reception conditions despite Italy’s obligation to provide guarantees of adequate treatment, according to a report published this week.
The report, prepared by the Danish and Swiss Refugee Councils, contains 13 case studies of Dublin return of asylum seekers with different vulnerabilities, ranging from single-parent families to persons suffering from mental disorders and victims of violence. The European Court of Human Rights clarified in Tarakhel v. Switzerland that Member States should obtain assurances from the Italian authorities that asylum seekers with special needs would be adequately accommodated prior to carrying out a transfer.
The report illustrates the arbitrariness underlying Dublin returnees’ reception by the authorities, timely access to accommodation and to the asylum procedure, and quality of reception conditions. Many asylum seekers have had to wait for several hours or even days without any support at airports such as Rome Fuimicino and Milan Malpensa before being received by the Italian police. Some Dublin returnees are denied access to the Italian reception system upon arrival altogether or must wait a long time before they are accommodated in second-line reception facilities (SPRAR). Substandard conditions in first reception centres and temporary reception centres (CAS) are widely reported, falling far below standards for persons with special needs.
Access to the asylum procedure is equally problematic. Asylum seekers returned under the Dublin Regulation have to approach the Immigration Office of the Police (Questura) to obtain an appointment to lodge their claim. However, the delay for such an appointment reaches several months in most cases.
The risks of destitution and exposure to unacceptable reception conditions upon return from other countries have been been exacerbated by the entry into force of Decree-Law 113/2018, recently confirmed by Law 132/2018, following which only beneficiaries of international protection and unaccompanied children are eligible for reception in SPRAR. Accordingly, the vast majority of asylum seekers will only have access to first reception centres and CAS which offer very limited support.
The reform has prompted some Member States to re-examine the legality of Dublin procedures vis-à-vis Italy, with some domestic courts suspending individual transfers on account of an increasingly hostile environment on migration. The Dutch Immigration and Naturalisation Service (IND) is revising its policy on Dublin transfers of families with children to Italy in light of the reform. Transfers of families have been suspended pending further investigations into the situation of asylum seekers in the country.
For further information:
This information was first published by AIDA managed by ECRE*
This week, the European Court of Human Rights ruled on a case concerning a Russian family with five young children, who attempted to lodge asylum applications on the Lithuanian border but were refused entry – without asylum proceedings being initiated – and returned to Belarus.
Relying on Article 3 of the European Convention on Human Rights (ECHR) the applicants complained that Lithuanian authorities had exposed them to a real risk of torture or inhuman treatment in Russia by virtue of a chain refoulement from Belarus, which does not have a functioning international protection mechanism. They also complained under Article 13 ECHR in conjunction with Article 3 ECHR that they did not have an effective remedy against the decisions that denied them access to the asylum procedure in Lithuania.
The Court finds that the failure to allow the applicants to submit asylum applications and their removal to Belarus, in the absence of any examination of their claim that they would face a real risk of return to ill- treatment in Chechnya, implied a violation of Article 3 ECHR.
In this respect, it does not accept the Government’s argument that the applicants “had not in any way expressed willingness to seek asylum” due to the fact that the border guards dealing with the applicants did not speak Russian. The Court recalls that a wish to apply for asylum can be expressed in any form and that member States should provide border officers trained to be able to detect and understand asylum requests. It specifically observed that the word “azul’” in Cyrillic – a word often used by Chechen asylum seekers to mean “asylum” – that was written by the applicants and should have been sufficient indication for the border guards that the applicants were seeking asylum.
In addition to that, the Court finds that there was not an effective domestic remedy to be taken by the applicants in Lithuania since they would have been immediately returned to Belarus if they had challenged the decisions. It thus finds that Lithuania violated Article 13 ECHR.
Human Rights Watch confirms that Belarus fails to provide protection to numerous asylum seekers, mostly from the Russian republic of Chechnya, who arrived in Belarus with the aim of crossing the border into Poland and requesting asylum. It also explains that Belarus lacks a functioning asylum system and that during 2017 the country returned at least two asylum seekers from Chechnya back to Russia, putting them at grave risk of ill-treatment.
For further information:
The Belgian Aliens Office has introduced a quota allowing no more than 50 people per day for registration of asylum seekers at the “Petit-Château” / “Klein Kasteeltje” in central Brussels, which serves as the new temporary registration location as of 3 December 2018.
As a result of the cap on the number of asylum application registrations, more than one hundred people including families with children are queuing outside the facility every day, many of them unsuccessfully.
Several civil society organisations have brought an action before the Council of State to annul the measure. Following the government reshuffle after the departure of the N-VA from the ruling coalition, they have also appealed to the new Secretary of State for Asylum and Migration, Maggie De Block, to discontinue the measure and reinstate effective access to the asylum procedure.
The State Secretary has stated that, although the policy is not to be revisited, the Aliens Office would examine the possibility of gradual increase of the quota with the aim of protecting vulnerable persons.
For further information:
This information was first published by AIDA managed by ECRE*
The Spanish Servicio Jesuita a Migrantes (SJM)- has released a new report entitled “Sacar del Laberinto” focusing on the situation faced by refugees and migrants who arrive in the southern city of Melilla. The report presents the unique challenges faced in a city that they describe as geographically, administratively and normatively problematic.
Among the key concerns outlined in the report are; summary returns at the land border; peculiarities of operations of security forces in contiguous waters; returns of people that land on islets and rocks through the readmission agreement signed with Morocco in 1992. Further the report reveal various problems for migrants during their stay in Melilla; restriction of movement; and finally, the situation of unaccompanied foreign children and young people.
The report highlights problems of overcrowding in Migrant Temporary Stay Centres (CETI) hosting people for extended waiting periods, while vulnerable groups such as families with young children, religious minorities, and LGBTI people cannot be protected adequately in these centres. SJM recommends that those identified as being vulnerable must be transferred quickly so that they can access protection in more resourced facilities in the Peninsula.
The report also stresses that unaccompanied minors encounter specific difficulties in Melilla. In some cases, a lack of documents or inaccurate medical tests mean they are not recognised as children, while if recognised, deficiencies in care have been found in child protection centres. SJM also discusses the period for which families can be separated from their children while identity checks are carried out, and urges that it must be shortened.
Delays in Spain’s asylum procedure have received widespread criticism this month; in Madrid the Spanish Ombudsman is initiating ex officio action before the General Commissariat for Foreigners and Borders as a reaction to the severe delays. Since May 2018, those in need of international protection have been required to appear before the police station of Aluche to register their asylum application, however only 99 people applications are accepted per day. This policy has forced up to 200 people, including pregnant women, children and persons with medical conditions, to wait outside the station and sleep rough for several days in hope of getting an appointment.
After obtaining access to the police station and receiving a “Certificate of intention to apply for asylum” (Manifestación de voluntad de presentar solicitud de protección internacional), some have even then been informed that they must wait until December 2020 for their official appointment.
A joint press release by Spanish and French NGOs has called for prompt reform of the Dublin system with a view to alleviating pressure on the Spanish asylum system.
For further information:
Known as the “Stansted 15”, the group of people who took non-violent direct action at Stansted airport in March 2017 to prevent the deportation of 60 people on a charter flight bound for Ghana, Nigeria and Sierra Leon have been found guilty of terrorism under the 1990 Aviation and Maritime Security Act – a law passed in response to the 1988 Lockerbie bombing. The question of custodial sentences is will be settled in February.
Raj Chada, Partner from Hodge Jones & Allen, who represented all 15 of the defendants said: “In our view it is inconceivable that our clients were charged under counter terrorism legislation for what was a just protest against deporting asylum seekers. Hodge Jones & Allen previously represented 13 defendants who protested at Heathrow in similar circumstances to the 15 at Stansted, yet they were not charged with this draconian legislation. We believe this was an abuse of power by the Attorney General and the CPS as they should never have been charged with these offences. The fact is that the actions of these protestors resulted in two people who were about to be wrongfully deported remaining in the UK.”
The activists have stated that their actions were based on concerns about the UK government’s “hostile environment” policy and the Home Office’s secretive policy of deporting people on charter flights. The believed that the people on the flight could be at real risk when returned. Of the 60 individuals on the flight, due to have been deported, ten are currently pursuing asylum claims in the UK, and at least one has since been granted permission to remain in the UK and two have been recognized as victims of trafficking. No one was harmed during the protest. When summing up the case for the jury, the judge said that the defendents may not rely on the defence that they acted to stop human rights abuses instead jourors were told to only consider whether there was a “real and material” risk to the airport.
Karen Allen, Amnesty International UK’s Director has called the verdict “a crushing blow for human rights in the UK” and that it is “deeply disturbing” that the activist are facing potential custodial sentences for taking part in a peaceful protest. She further stated that the use of the terrorism-related charge against the activists was “always a case of using a sledgehammer to crack a nut”. Two of the activists convicted have described the outcome as an “unprecedented crackdown on the right to protest”.
Each year there are around 12,000 enforced returns from the UK. In 2017, 23% of the total were enforced returns of people who had previously sought asylum (2,884), up 12% from the previous year (2,581).
For further information:
- The Guardian, Stansted 15 activists vow to overcome ‘dark, dark day for the right to protest’, 10 December 2018
- End Deportation, The Home Office is guilty of harm, not us: Stansted 15 respond to guilty verdict, 10 December 2018
- Amnesty International, Stansted 15 verdict is ‘crushing blow’ for human rights in the UK, 10 December 2018
- ECRE, UK: Non-violent activists face life sentences for ‘terrorist offences’, 5 October 2018
REPORTS & NGO ACTIONS
ECRE has published a Policy Paper analysing the recent bilateral arrangements between EU Member States on responsibility for asylum seekers and urging against attempts to disregard and undermine the standards set out in the Common European Asylum System (CEAS).
The “administrative arrangements” on asylum seekers have emerged as a German initiative in the course of 2018, predominantly driven by internal tensions within the ruling coalition on how to handle migration in the run-up to the June 2018 European Council meeting. They have been presented by Germany as an interim response to the political deadlock preventing the adoption of the CEAS reform.
While some agreements such as the German-Portuguese arrangement adhere to and operate within the EU legal framework, others, namely the German-Greek and German-Spanish arrangements, bypass the rules set out in the Dublin system with the aim of quickly carrying out transfers. The effect of the latter arrangements is the neutralisation of crucial safeguards contained in the Dublin Regulation such as the right to a personal interview, the right to appeal, and the prevention of transfers when human rights risks arise.
From a policy perspective, what both types of arrangements represent is a vision of the CEAS and of the CEAS reform strongly supported in Germany and certain other Member States whereby prevention and punishment of secondary movement is of prime importance, while tackling the underlying reasons for secondary movement receives less attention.
However, ECRE argues that bypassing legal obligations through opaque informal arrangements with the pretext of a forthcoming political agreement on the reform of the CEAS not only undermines the credibility of the current and any prospective asylum package but also endangers the rule of law. Instead, compliance with the Dublin Regulation in line with fundamental rights should be pursued to ensure that individuals benefit from crucial procedural safeguards and that states allocate responsibility transparently and remain accountable.
For further information:
After over a year of intergovernmental negotiations, the Global Compact on Safe, Orderly and Regular Migration was adopted at the Intergovernmental Conference on Migration in Marrakesh on December 10 2018.
The Global Compact marks the enhanced cooperation on international migration in all its dimensions and reiterates the human rights of all migrants. It sets out 23 objectives for safe, orderly and regular migration, each of which include commitments and suggested follow up actions for States. The Compact is not legally binding, but governments are responsible for ensuring that their policies and practices are consistent which the objectives of the Compact.
It takes a comprehensive approach on migration, including the reduction of drivers that lead people to leave their country of origin, improved collection of desegregated data on migration, provision of information on all stages of migration. It covers the need to expand pathways for regular migration as well as fair and ethical recruitment practices that ensure decent work, improved channels for remittances and increased cooperation on returns, readmission and reintegration.
The Global Compact aims to commit States to work towards alternatives to migration detention, provide access to basic services and support inclusion and social cohesion.
It was adopted by the vast majority of UN Member States in Marrakesh. A resolution to formally endorse the Compact is scheduled to be adopted on December 19 by the General Assembly in New York. Several governments, many of them EU Member States, have withdrawn their support from the Global Compact.The EU Member States are Austria, Bulgaria, Czech Republic, Hungary, Italy, Latvia, Poland and Slovakia.
As a non-legally binding document, it will depend on the willingness of governments and the creation of accountability mechanisms to ensure that States follow-up on the commitments in the Global Compact on Migration.
For further information:
Human rights lawyers launched this week two class actions against the Australian government, on the grounds of the intentional infliction of harm upon refugees and asylum seekers in offshore processing centres, amounting to crimes against humanity and subjection to torture.
Two parallel class actions- a means by which representatives can bring a claim on behalf of a large group or class of persons- have been filed in the high court of Australia. The cases, led by Julian Burnside QC and lawyers from the National Justice Project, will represent all remaining refugees and asylum seekers detained by the Australian government in offshore detention centres on the islands of Manus and Nauru- more than one thousand people.
The basis of the actions is a breach by the government of its duty of care by subjected people to arbitrary imprisonment and the severe deprivation of physical liberty, denial of proper medical assessment and treatment, inadequate security and protection, inadequate food and water, inadequate accommodation, and an unhygienic environment. Refugees have been held on these islands for more than five years, during which time Medecins san Frontieres have reported the descent of a mental health crisis, inflicted by self- herm, suicide, and untreated medical issues, even amongst young children.
In 2017, following an earlier class action, supreme court Justice Cameron Macaulay approved a $70 million compensation pay- out to Manus island detainees, which Australia settled in preference to proceeding with a six- month trial that would have “heard evidence from detainees detailing deaths inside the detention centre, allegations of systemic sexual and physical abuse, and allegations of inadequate medical treatment leading to injury and death”.
Earlier this week an Iranian family also received compensation after suing the Commonwealth over their mistreatment while in the Australian detention facilities, having been “exposed to numerous psychiatric stressors while in detention” including witnessing detainees engaging in self-harm and attempting suicide, which was particularly damaging to young children.
In a number of instances the Australian federal court has received requests asking for urgent medical transfers for detained people. The Australian government spent $480,000 dollars fighting such transfers in the first quarter of 2018-19 alone.
Last week, a Senate filibuster prevented efforts by the non-government parties to pass legislation that would have removed refugees from Nauru and Manus, delaying the vote and adjourning the lower house, and in doing so avoiding what would have been the first time an incumbent government had lost a substantive vote for almost 90 years. Opposition Labor party deputy leader, Tanya Plibersek, said the government had defied custom by adjourning the House with unfinished business; “They’re walking out on a job half done because they are so frightened of the cross bench and Labor bringing sick refugees to Australia for medical treatment on doctors’ advice.”
For further information:
#DontLetThemDrown: This initiative demands that rescue NGOs are allowed to disembark the people that they have rescued, that these responsibilities are not relinquished to the Libyan coastguard nor are people to be disembarked in Libya, that Italy and Malta agree on disembarkation protocols while EU member states also take shared responsibility for refugees and asylum seekers, and that realistic possibilities are created for safe and legal passage to Europe.
#Unlocked18: Unlocking Detention shines a spotlight on the hidden world of immigration detention. This ‘virtual tour’ of the immigration detention estate uses Twitter, Facebook and a website to ‘unlock’ the gates of immigration detention centres and hear the voices of people who have been detained, volunteer visitors, NGOs, campaigners and the families, friends, neighbours and communities affected by immigration detention. This year’s ‘tour’ runs from 22 October to 18 December.
- 11-15 December 2018, Sanremo, International Refugee Law Course, International Institute of Humanitarian Law
- 12- 14 December 2018, Murcia, Fourth International Conference; Migrants and Refugees in the Law, Universidad Catolica de Murcia
- 27 January 2018, Geneva, Humanitarian Shelter Coordination (Master Level Short Course) IFRC, UNHCR, CENDEP and Oxford Brokers University
- 29 January 2019, Brussels, European Final Seminar- Fostering Quality Legal Assistance in the Asylum Procedure for Unaccompanied Children, ECRE, Forum refugies- cosi, and REC. RSVP to Omar Al Tarsheh.
- 8 March- 5 April 2019, Geneva, International Refugee Law, Geneva Academy
- 15- 16 March 2019, Jordan; British Institute, Palestine Refugees and International Law, Refugee Studies Centre, University of Oxford
- 18 March 2019, London, Introduction to Children in Emergencies, RedR UK
- 28- 29 March 2019, Ghent, Conference 'Families Beyond Borders: Migration with or without Private International Law', Ghent University Institute for Private International Law
- 6- 10 May 2019, Toronto, The Centre for Refugee Studies Annual Summer Course
- 3-5 June 2019, London, Refugee Law Initiative Fourth Annual Conference, ‘Rethinking the “Regional” in Refugee Law and Policy’, Refugee Law Initiative
CALLS FOR PAPERS & OPEN CALLS
- Call for participants: SOGICA: Sexual Orientation and Gender Identity Claims of Asylum, as soon as possible
- Call for participants: EPSON: Study on the impacts of refugee flows on territorial development in Europe, as soon as possible
- Call for Papers: Mondi Migranti Conference: “Migrazioni e societa all prova dei sovranismi: una sfida per l’Italia e per l’Europa”, 10 January 2019
- Call for Registration: International Migration and Refugee Law Moot Court Competition, Vrije Universiteit Amsterdam, 2 January 2019
- Call for Papers: ‘Counter- Narratives to Regional Cooperation: Contesting European Union’, Kate Hamburger Kolleg/ Cetnre for Golbal Cooperation Research, 5 January 2019
- Call for Papers: Refugee Law Initiative Fourth Annual Conference, London, 28 January 2019
- Call for Papers: ‘Migration and Poverty’, The Centre for Ethics and Poverty Research, Salzburg, 31 January 2019
- Call for Submissions: Youth Migration, The Migration Conference, 18- 20 June 2019, Italy, Abstracts by 31 January 2019
- Call for Papers: Humanitarian and Conflict Response Institute: Journal for Humanitarian Affairs, January 2019
- Call for Papers: Tribute to Barbara Harrell-Bond: Forced Migration Review: Proposals by 4 February 2019
- Call for Papers: Journal Social Sciences: Special Issue “Integration and Resettlement of Refugees and Forced Migrants”, 15 April 2019
- Call for Papers: The Center for English Translation and Anglo-Portuguese Studies (CETAPS): Congress calling for papers on refugee world(s), 15 April 2019
- Call for Papers: University of Warwick: Workshop on Security, Borders and International Development: Intersections, convergence and challenges, 25 – 26 April 2019
- Call for Participants: IMISCOE PhD Summer School in Istanbul, Studying Integration and Social Cohesion - Theory, Practice, Method and Ethics of Conduct, 9- 14 June 2019