ECRE Comments on the proposal for an Asylum Procedures Regulation
ECRE has published its Comments on the Commission proposal for a Regulation establishing a common procedure for international protection in the EU. The proposal aims to transform the Asylum Procedures Directive into a Regulation. This means that rules laid down in the Regulation for conducting asylum procedures become directly enforceable in EU Member States’ national legislation.
The proposal’s very detailed approach, including the definition of the duration of administrative and first level appeals procedures and time limits for lodging appeals, reveals a highly ambitious mind-set with considerable impact on Member States’ practice.
While the introduction of measures such as the mandatory provision of free legal assistance and representation at all stages of the asylum procedure constitute an important safeguard for asylum seekers, ECRE is still highly concerned about the mainstreaming of mandatory safe country and admissibility concepts and about the extremely short deadlines for applicants to comply with often onerous procedural requirements in the proposed common procedure.
This reflects a worrying externalisation trend at EU and national level, and an effort to prioritise administrative efficiency and convenience over the need for a rigorous and careful examination of protection needs in a fair procedure. ECRE warns against such an approach and formulates concrete recommendations to ensure that the common procedure enables asylum seekers to effectively exercise the right to asylum and have their request for international protection assessed in a fair and efficient manner.
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New Home Office guidelines limit scope of Dubs Amendment
The Home Office made public its new guidelines which introduce eligibility criteria for refugee children from Calais who apply for relocation under the Dubs Amendment. The new guidelines limit the scope of the amendment.
To be eligible, it must be the case that transfer to the UK is in the best interests of the child, they must have been present in the Calais camp on or before 24 October 2016, and they must have arrived in Europe before 20 March 2016.In addition, the child must meet at least one of the following criteria: 12 years old or under; referred by the French authorities (or an organization working on their behalf) as being at high risk of sexual exploitation; 15 years old or under and of Sudanese or Syrian nationality; or under 18 and the accompanying sibling of a child meeting one of the above additional criteria.
These guidelines limit the scope of the Dubs Amendment, under which the UK government vowed to grant protection to unaccompanied refugee children located in other European countries. Stephen Hale, Chief Executive of Refugee Action, stated: ‘’We’re frankly appalled that the Government appears to be backtracking on its commitment to protect unaccompanied child refugees from Calais. The new guidelines will leave children at risk and deny their right to seek sanctuary in Britain simply because of their age or nationality.”
Earlier this week the media reported on rising anxiety among the refugee children dispersed from Calais to reception centres across France. Unclear information and growing distrust about their relocation options has led to children running away from the centres, hoping to enter the UK informally.
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On 28 October 2016, the Norwegian Ministry of Justice and Public Security issued a new instruction to the immigration authorities allowing stateless children born in Norway to acquire Norwegian citizenship.
Stateless children born in Norway obtain the right to acquire Norwegian citizenship
Previously, stateless children born in Norway “without lawful residence” had not been able to acquire Norwegian citizenship. Several national and international organizations, such as UNHCR, European Network on Statelessness, Norwegian Organisation for Asylum Seekers, and Institute on Statelessness and Inclusion had condemned this Norwegian practice. According to these organizations, the requirement of “lawful residence” violates the UN Convention on the Reduction of Statelessness of 1961.
The new instruction has deleted the requirement of lawful residence. Instead, children born stateless in Norway are merely required to have been continuously residing in Norway for three years before submitting their application for Norwegian citizenship. As clarified by the instruction:
“Stateless applicants born in Norway must be residing in Norway at the time of application for citizenship and have been continuously residing in Norway for the period of three years before application. The residency period is counted from the date of the decision when this is in favor of the applicant.” (translation provided here).
The European Network of Statelessness has called this new instruction an “important victory for stateless children born in Norway”. Issues such as a lacking definition of statelessness, an inexistent statelessness determination procedure, and a failing information system remain.
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In October 2016, fifteen months after the deadline for transposition of the recast Asylum Procedures Directive and recast Reception Conditions Directive, Cyprus passed the necessary legislation amending two national laws, the Refugee Law and the Legal Aid Law for this purpose.
Cyprus transposes asylum Directives fifteen months after deadline
Overall, the long awaited reform of national law meets the bare minimum of the standards set by the Directives, while raising a number of concerns in practice. Among them is that the provision of free legal assistance for appealing a negative decision in asylum applications is still subject to a “means and merits” test. This means that legal aid can be refused if the appeal has no real chance of success. In the first ten months of 2016, out of twelve applications for legal aid, only one request was approved.
Another concern is that the amended Refugee Law allows detention of asylum seekers under an administrative order, with no maximum time limit or automatic review. Asylum seekers can challenge their detention before the Administrative Court. However, given the restrictions on access to legal aid, there are serious concerns that the new law will lead to a rise of asylum seekers in detention for undefined periods.
Some positive changes include the right to remain on the territory during the judicial examination of the asylum application. This has already led to the release from detention of asylum seekers whose cases are pending before the Court. In addition, alternatives to detention are introduced for the first time in national law, although the absence of a procedure to examine such measures may lead to implementation problems.
*Based on the AIDA article by Corina Drousiotou of the Future Worlds Center.
The French Council of State delivered a ruling at the beginning of the month on allowing the Prefecture of Guiana to temporarily suspend the registration of asylum applications. Following the Prefecture’s decision earlier in the summer, access to the asylum procedure was suspended until 1 December 2016 at the latest.
France: Council of State upholds suspension of registration of asylum applications in Guiana
Access was suspended following a sharp increase in asylum claims, mainly from Haitian nationals, since the beginning of the year. Between January and August 2016, Guiana registered 4,687 applications, three times more than the number received during the same period in 2015. The Council of State found that such an unpredictable rise in applications has significantly impaired the organisation of the asylum process, as the single desk (guichet unique) in charge of registration was no longer able to carry out its tasks. It noted that the Prefecture nevertheless allowed registration of particularly vulnerable persons, namely pregnant women, severely ill people and unaccompanied children. In light of this, as well as the fact that the administration had taken efforts to restructure the registration system in Guiana, it found that the suspension did not amount to serious and manifestly illegal infringement of the right to asylum.
In its critique of the ruling, La Cimade notes that the policy of allowing access to the procedure for vulnerable persons was never officially stated or communicated to the relevant organisations assisting asylum seekers in the registration process. At the same time, the categories of vulnerable groups identified by the Council of State appear much more limited than those set out in the recast Reception Conditions Directive.
Beyond France, civil society organisations in Italy denounced the temporary suspension of registration of asylum applications by the Questura of Rome earlier this autumn.
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REPORTS & NGO ACTIONS
Inaccessible? Polish asylum procedure at the border crossing between Poland and Belarus
In their latest report on the Brest-Terespol border crossing between Poland and Belarus the Helsinki Foundation for Human Rights found that the rights of people intending to apply for international protection have been violated by the Polish Border Guards. The report is based on a recent field visit, during which interviews were conducted and access to the Polish asylum procedure was monitored.
The Helsinki Foundation for Human Rights found that the Polish Border Guards seem to ignore the intention to apply for international protection expressed by foreign nationals at the border crossing station in Terespol, and that they deny access to Polish territory. This practice violates the principle of non-refoulement, laid down in the Refugee Convention. According to this principle, it is not permitted to deny access to the asylum procedure after a person has declared that they fear persecution in their country of origin. To do so also violates Polish law: the Polish Foreigners Act stipulates that access to an asylum procedure cannot be denied on the basis of the person not having valid entry documents.
There are also grave concerns about the interview process conducted by border guards. In many cases, interview questions did not relate to the fear of persecution. Further, some border guards conducting interviews have very limited knowledge of Russian, confidentiality is not guaranteed, and there are cases of humiliation. With the access to the asylum procedure being limited, many people in need of protection remain stranded in Brest and make repeated attempts to access the procedure.
Ms Górczyńska, co-author of the report and lawyer for the Helsinki Foundation for Human Rights, states “The actions of the Polish Border Guards are part of a wider, shameful practice that is currently followed also by other countries of our region, which involves pushing asylum seekers away from the European Union’s borders.”
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Bulgaria: Report on detention and lack of less coercive alternatives
The Bulgarian Helsinki Committee
’s latest report
maps detention practice in Bulgaria. It finds that the practices of immigration detention in most cases do not achieve the stated purpose of enforcing the return of persons detained in cases where a risk of absconding exists. The report concludes with reform proposals aimed at reducing the human and financial costs of detention.
The report finds that all migration detention orders are issued on the grounds of “illegal entry or residence on the territory of the Republic of Bulgaria.” This does not correspond with reality situation because the majority of people are actually apprehended upon attempting to leave Bulgaria. Concomitantly, the most frequent ground for release from detention is not the execution of return, but rather the lodging of an application for international protection. In almost all cases (99.9%) alternatives to detention are not considered when the detention order is issued and 99% of all persons in detention do not receive legal aid.
In order to align Bulgarian immigration detention practice with European legislation, which allows for detention only in cases in which there is either a proven high risk of absconding or where a person will be resettled or deported very soon, the Bulgarian Helsinki Committee comes up with a number of recommendations.
These include the introduction of short-term detention in cases of irregular entry or residence, the mandatory consideration of alternatives to detention, and making alternatives to detention more feasible. It also comes up with two long-term recommendations: making access to legal employment easier and introducing a regularization option for foreigners .
Regularisation would be introduce an option to legalize the residence of foreigners using an alternative to detention. This could be imposed in cases where the return procedure has not been executed or where return is impossible in legal or factual terms. It would apply to persons who are able support their own subsistence based on the work permission granted, who have been or will stay in Bulgaria in the long term, and who have not committed another infringement of the law or an offence within the meaning of the law.
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*See also AIDA article.
- 21 November 2016, London, Conference/ Event: Disabled and in Exile; being excluded twice, HEAR Network
- From 16 November 2016, Amnesty Free Online Course: Human Rights: The Rights of Refugees, Online
- 2 - 3 December, Berlin, Course: Advanced ELENA Course: The Rights of Refugees, ELENA/ ECRE
- 16 December, Berlin, Workshop: Lugen in der Migrations- und Fluchtlingsdebatte, Solar EV
- Spirasi, Executive Director, Deadline: November 28, 2016
- Refugee Action, Senior Policy Officer, November 28, 2016
- Migration Observatory (University of Oxford), Part-time Research Coordinator, December 9, 2016
- International Catholic Migration Commission, Policy Associate, December 11, 2016
- International Catholic Migration Commission, Policy Officer, December 11, 2016
- International Catholic Migration Commission, Associate Asylum Expert, December 31, 2016
- New Castle Law School, PhD Scholarship for research on all areas of law including International Refugee and Human Rights Law, January 11, 2016