Editorial: Commission Proposal Leaves Little Solutions but Plenty of Contradictions
As its President forewarned, the European Commission this week launched a proposal to respond to events at the EU border with Belarus. It was met with exacerbation and bafflement by journalists and fury by political groups in the European Parliament. For civil society trying to respond to events on the ground, including NGOs, the media, lawyers and faith-based groups, the proposal is profoundly frustrating.
The documents presented include a Joint Communication and a proposal for a Council Decision to put in place temporary emergency measures for the benefit of Latvia, Lithuania and Poland. The Communication and the now de rigueur lengthy Explanatory Memorandum and long repetitive Recitals that are part of the Decision justify the use of emergency measures through reference to “instrumentalisation of migrants” and contain extensive hyperbole on the security threat that people supposedly pose. The important legal substance is in just two pages, Articles 1 to 5 of the proposed Council Decision which would allow Member States to derogate from certain provisions of EU asylum law. (There are also Articles on operational response which do not add much to what is currently possible).
ECRE’s detailed comments will be published next week. In short, under the emergency measures to be in place for six months initially derogations would allow the three Member States to delay registration of applicants for up to four weeks; to house people in centres at the border with only basic needs met for sixteen weeks (likely to be detention, although this is not specified); to apply truncated procedures during that time which could be inadmissibility or in-merits asylum procedures; and to restrict appeal rights in these cases. The usual exemptions of vulnerable groups are not foreseen, not even for children, with only those in an acute state of health to be transferred elsewhere.
ECRE is concerned to see measures based on border detention and application of sub-standard procedures, which mirror those proposed in the Pact. As highlighted in a recent statement, here, ECRE and other civil society organisations are calling instead for enforcement of the law. While condemning the actions of Belarus, it remains the case that Member States have been allowed to commit violations at the borders with impunity and have introduced legislation which is in clear conflict with EU law, and which is allowed to stand.
The legal analysis will follow, however, beyond the content of the proposal, the political strategy underlying the approach deserves some consideration. It dates back to the previous Commission, is also manifested in the Pact, and is riddled with contradictions.
Contradiction One: Do what the Member States want but don’t do what they want.
A first contradiction is the claim that the Commission is giving the Member States what they want – without actually giving them what they want.
In the press conference, when asked about the reason for the proposals, the response from the Commissioners was generally “it is what the Member States want”, and the proposed Decision has been launched in “solidarity” with the three. Similarly, the Pact was designed based on what the Member States wanted, following months of consultation with them, and any more radical, progressive proposal is dismissed as “unacceptable to the Member States”. These arguments are familiar from the previous Commission when the refrains of “it’s what the Member States want” and “it’s what I hear from the Member States” (when any myth, stereotype misrepresentation of data etc. was challenged) rang out.
Even overlooking the central point that it is not the job of the Commission to “do what the Member States want”, the contradiction leaps out because the Member States don’t actually seem to want these proposals. The three countries concerned have already spoken out against them; Member States are fighting over the Pact; and the 2016 proposals met with anger and annoyance from the Member States. Thus, it seems that compromises are made when it comes to EU law and values to no useful purpose.
There is no doubt that the positions of Member States (or at least their interior ministries) are awful on these issues, as ECRE does not hesitate to say. To listen to presentations from ministers is a hair-raising experience; by all accounts, JHA Council is filled with toxic and xenophobic rhetoric; currently, Member States are clamouring for the “legalisation of pushbacks” which was behind the Council request that led to this proposal (and which may still be coming in the Schengen amendment). But in this hostile context, measures designed to appease them will never be enough. The supine strategy of “doing what the Member States” want needs to be replaced.
Contradiction Two: Save the right to asylum by restricting the right to asylum.
The second contradiction is the suggestion that to save the right to asylum it is necessary to restrict the right to asylum. It follows on from the above argument that states will be more likely to respect the law if the standards are weaker.
Given that one of – if not the – major problem facing refugees in Europe is denial of access (to territory and to an asylum procedure) the argument is made that access will be improved if obligations on Member States are reduced. As at other borders, in the Eastern borders crisis, the evidence of “pushbacks” is manifold. The argument is then applied: if Member States are allowed to detain people and apply a rapid asylum procedure, then they will be more likely to “allow” people to enter the country (i.e. to respect their binding legal obligations), especially when combined with semantic fictions of non-entry.
There is no evidence, though, to support this argument. Indeed, the experience from Greece tends to suggest the opposite: Member States do not want to be managing border detention centres with additional use of border procedures. They don’t want to install physical and judicial infrastructure in border regions, not least because local populations are strongly opposed. Thus, measures based on the border detention/border procedure approach are more likely to generate pushbacks than to dissuade Member States from using them.
The proposed delay to registration may also make violations at the border more likely, given the risks that arise before people have the increased protections following registration. It should also be noted that the proposal could have strengthened access but a choice seems to have been made not to so: the Recitals include welcome language on the need for “effective and genuine” access to an international protection procedure, and points of registration are designated and open (reflecting the better elements of the ND and NT line of cases). However, these provisions do not make it into the Articles, only the reference to the need for information provision is there in Article 5.
All factors considered, the underlying objective appears to be deterrence rather than support for access. Rather than damage limitation, the proposals are damaging. There is no reference to the violence and violations being meted out by the states. Instead, the proposal presents them as the victims of violence by the people in question (see the particularly egregious Recital 25). As side note, the word “people” is never used; “they” are of course “migrants” or “third country nationals”.
Contradiction Three: Propose legal solutions while undermining respect for the law.
The third contradiction at play is to seek legal solutions while at the same time efforts are not made to enforce the law in place. This surely undermines the prospects of the possible new laws being respected if they are ever adopted. That is one of the challenges of the legislative reform packages of 2016 and 2020. Here, the contradiction runs deeper. First, the legal basis for allowing derogations is questionable. It does seem that parts of the Commission seem to spend a lot of time looking for legal bases that allow Member States to derogate from the law, often at the instigation of the Member States, rather than trying to ensure compliance.
Another dubious element is that the heart of the Decision is measures that are contained in the Pact legislative proposals, i.e. the content is the same as the proposals currently being subject to legislative scrutiny by the co-legislators. A Council Decision can be agreed QMV, a majority of the Member States, with Parliament being consulted. Thus, the proposal could be construed as an attempt to bypass normal legislative processes. There might be emergency situations in which that could be justified, but given the measures and the context, despite all the rhetoric about security, this is not one.
Overall, this looks rather like another stage in Member State and Commission efforts to use the actions of Lukashenko as the latest pretext for undermine the right to asylum in Europe, and in particular, to deny the right to asylum to those who arrive at the borders, regardless of the reasons why they are there, and despite the principle that people should not be penalised for the manner of their arrival. Given that the numbers are small (compared to other displacement crises) and the situation is under control, it is the “Instrumentalisation” that is used to justify invocation of Article 78 (3) TFEU on emergency measures. The reality is that states “instrumentalise” people all the time – historically, traditionally, currently. It is one of the reasons we have human rights law in the first place – to balance the rights of people and the interests of states. In contemporary geopolitics, all kinds of dubious state (and non-state) actors “instrumentalise” (use, manipulate) refugees and other displaced people against Europe because it is so easily done. The next stage will be the amendment to the Schengen rules and attempts to render permanent derogations using the concept of instrumentalisation.
Here, while the situation results from a tense conflict with Belarus, that is no reason for weakening the right to asylum in Europe, and the people themselves are not a security threat. Calm management, combined with continued pressure on Belarus and political, diplomatic operational, and humanitarian initiatives would have been a better way to respond to the provocations from the other side, Belarus and its allies. As the Joint Communication says, they are cruel. It could add that so are we.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
Atlantic Route and Spain: Multifaceted Insecurity Drives Dangerous Journeys, Women Flee Violence, Ceuta Closes Case of Child Pushback Victim
Perilous journeys to Spain’s Canary Islands, driven by instability in northwest Africa, have left rescuers busy. Not only are women increasingly forced to take to the sea as a result of gender-based violence, forced marriage and female genital mutilation (FGM), they are frequently exposed to sexual violence, trafficking and other gender-specific crimes whilst on the move. The court in Ceuta has thrown out the case of a 16 year old child pushed back from Spain to Morocco on 19 May on the grounds of insufficient evidence.
Multiple groups of people attempting to seek asylum in Spain via the Canary Islands have been assisted by rescue teams. According to analysts, the rise in numbers on this route is driven by the destabilising economic and political effects of the Covid pandemic, insecurity in northwest Africa and the worsening climate crisis. On 27 November, Spain’s rescue service Salvamento Marítimo (SM) rescued 134 people from 3 vessels in waters off the Canary Islands. One of these rescues concerned a capsized boat from which four bodies were recovered and four people were listed as missing. The same day, Morocco intercepted 59 asylum seekers and recovered the body of a man who lost his life on the journey. Moroccan officials also intercepted 155 people who were attempting to board boats to cross to Spain. After several days without arrivals on the islands, on 1 December SM personnel rescued more than 200 people in the Atlantic. A night-time rescue of multiple boats just hours later brought 280 people, including 55 women and more than 20 minors to safety. The rescue was not however timely enough to avoid loss of life: a two-month old baby tragically died, marking the 40th victim on the route since 13 November. According to the International Organization for Migration (IOM), most people making the journey to Spain’s archipelago originate from Morocco, Mauritania, Senegal, Guinea-Bissau, Guinea and Mali.
The number of women on the Canary route has shot up, with women accounting for 20 per cent of arrivals so far in 2021 compared with only 5 per cent in 2020. According to the UN’s Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), three of the main drivers of women’s journeys from sub-Saharan Africa are gender-based violence, forced marriage and FGM. Volunteers assisting arrivals to the Canaries say they come across women with: “burns, beating wounds, scars; stories of rape, marriages at 15, 13 and even 3 years old” on a daily basis. Studies continue to demonstrate that women on the move suffer multiple, gender-specific forms of violence, including FGM, trafficking, sexual abuse and poor access to reproductive healthcare. On 25 November, International Day for the Elimination of Violence against Women, the head of the UN Refugee Agency (UNHCR), Filippo Grandi, said at least one in five displaced women report sexual violence.
The prosecutor’s office has closed an investigation into the “hot return” of a minor from Ceuta to Morocco after 10,000 people crossed the border from Morocco in May. The case concerned Aschraf, a boy who was swiftly expelled despite protections in Spanish law for under-eighteens. The investigation was dropped because neither the age of the boy nor the identity of the officer that removed him could be confirmed. No formal instructions or commands regarding expulsions were made, but the prosecutor said this was justified by the “crisis situation” of “mass arrivals” on 19 May. The NGO that brought the case, Coordinadora de Barrios, provided a video documenting the heavy-handed return of the boy to Morocco. “They are going to beat me,” Aschraf shouted. “I don’t want to go back, please.”
For further information:
- ECRE, Atlantic Route and Spain: 29 Deaths in 10 Days, Boat-Driver Convicted, Morocco Returns People at Sea, Palestinians Seek Asylum at Barcelona Airport, November 2021
- ECRE, Atlantic Route and Spain: More Death as Crisis, Conflict, and Failed EU Policies Drive Canary Island Crossings, Rescues and Fatalities on Western Med, NGOs Welcome Regularisation of Unaccompanied Children, October 2021
Med: Dramatic Rescues as Weather Worsens, New Report on EU Funding and Complicity in Libyan Abuses, Libyan Political Instability Amplifies Risks for People on the Move
Despite worsening seasonal weather conditions, the Mediterranean route remains active with hundreds of people rescued and disembarked over the last week. The New Yorker has released a report that reveals how extensive EU funding is spent by Libyan authorities, documenting complicity in “horrific” human rights abuses. The war-torn country currently facing increasing political instability as elections approach.
Dangerous crossings have continued on the Mediterranean amidst unfavourable weather. Between 24-25 November the Italian coast guard saved 296 people, including eight children, onboard an overcrowded wooden boat under harsh weather conditions. A dramatic and complicated operation was successful in rescuing several people who were swimming for their lives in the dark without lifejackets. The survivors were taken to Lampedusa. Also on 25 November, 240 people including 44 children were taken to the port of Roccella in Calabria. They were rescued from an old fishing boat by police and soldiers stationed in the area. A Syrian woman gave birth on an overcrowded fishing boat adrift in a storm on 27 November, just hours before she was saved along with her newborn baby and more than 240 other survivors in a dramatic 16-hour rescue operation by the Italian coast guard and a Frontex patrol boat off Calabria. After days at sea and 48 hours waiting at the Sicilian port of Augusta, the last of more than 480 survivors onboard the civilian rescue vessel Sea-Watch 4 were allowed to disembark on 28 November. The UN Refugee Agency (UNHCR) representative Chiara Cardoletti noted a change in the demographics of arrivals, sayng: “right now on all the routes, what you are seeing is an increase in the number of families arriving with lots of children. And that is true also for the route to Calabria”. Data released on 28 November by the agency reveals that 18.9 per cent of arrivals in Italy in Italy were children and 7.1 per cent were adult women. According to the Italian interior ministry, the country has seen 62,236 arrivals by sea in 2021 so far. According to the International Organization for Migration (IOM), 13,313 people have died or gone missing on the central Mediterranean route in 2021 as of 27 November.
The New Yorker has published an 11-month investigation revealing how: “the E.U. has created a shadow immigration system” in Libya. The report focuses on EU funding of and complicity in severe human rights abuse by Libyan authorities that include extortion, sexual abuse, beatings and torture in detention centres. The research uses wide-ranging data – including financial reports, interviews with MEPs, UN officials and aid workers, EU purchasing documents, freedom of information requests, flight-tracking data, and open-source social media – to show EU funding is spend on a range of activities with potentially dire rights impacts. Expenditure includes land cruisers used to intercept people crossing the southern border, buses transporting migrants to detention, shipping containers used as port offices, touch-screen tablets counting intercepted people disembarking, and even down the body bags used for detainees that lose their lives. The report states: “from the minute the migrants are brought ashore by the Libyan Coast Guard, E.U. money is used at virtually every step of the way to pay for how they are handled”. MEP for the Group of the Greens and member of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), Tineke Strik, that has assisted in the research stated: “If the E.U. did not finance the Libyan Coast Guard and its assets, there would be no interception, and there would be no referral to these horrific detention centers”. According to IOM Libya, 886 people were intercepted returned by the so-called Libyan coast guard between 21 – 27 November, bringing the total in 2021 so far to 30,990.
According to Anas El Gomati, director of the Libyan thinktank the Sadeq Institute, the resigning of the head of UN’s Libya mission, Jan Kubis, ahead of Libyan elections on 24 December is a “major indicator all is not well behind the scenes” in the country, She noted: “With a certain political crisis and looming military confrontation, Libya has no mediator”. Abdulkader Assad, the chief editor of the Libya Observer and Libya Alahrar English says he has little faith in the election ending a decade of fragmentation and conflict in Libya, stating: “the list of candidates includes former ministers and officials, some war criminals… and some foreign-agenda-driven persons”. According to media reports: “Libya’s incumbent prime minister, Abdul Hamid Dbeibeh, has applied to run for the presidency. His candidacy has been brought into question by a string of allegations that he is embroiled in corrupt practices, money laundering, and financing of Ideological Islamists”. On 24 November the Libyan army set fire to the tents of around one hundred protestors remaining outside the UNHCR office in Tripoli, where demonstrations have been ongoing since a major violent crack-down on undocumented people by Libyan authorities in October. A 24-year old man from South Sudan – one of the hundreds of people who spent more than seven weeks camped outside UNHCR’s office urging relocation, stated: “We have reached the point of no return”.
In the first of five planned evacuation airlifts, 93 people were evacuated from Libya to Rome on 25 November. The evacuation took place under a new mechanism, combining emergency evacuations with the humanitarian corridors that have been established in Italy since 2016. UNHCR resumed evacuations after Libyan authorities in late October lifted a ban on humanitarian flights that had been in place for more than a year. UNHCR stated that 500 people would be evacuated through the new mechanism over the next year. Tunis-based spokesperson for the agency, Caroline Gluck, stated: “While this offers hope to some, it is not a solution we can provide for all.” UNHCR has evacuated or resettled 6,919 refugees and asylum seekers from Libya since 2017, 967 of whom were evacuated to Italy.
For further information:
Channel: Frontex Plane Deployed, Dehumanisation Decried, NGOs Hope for Turning Point on Safe Passage, UK Ploughs Ahead with Pushback Plan Despite Challenges
In the aftermath of the worst ever shipwreck in the Channel, EU states have agreed to deploy a Frontex plane to monitor the strait. Last week’s tragedy has reignited discussion of the dehumanising effects of the term ‘migrant’ when used in media and political discourse. Charities who called the disaster “utterly predictable” urges the government to ensure humanitarian visas and other safe ways for people to seek protection. The UK is doubling down on an illegal and dangerous plan to turn people back at sea that is facing multiple legal challenges.
A week on from an unprecedented shipwreck that took at least 27 lives, representatives from France, Belgium, Germany, the Netherlands, the EU, and Frontex come together to discuss how such tragedies in the Channel could be avoided. The outcome of the crisis talks in Calais was the deployment of a Frontex plane to “fly day and night” over the European coasts of the Channel to spot small boat crossings. The UK home secretary’s invitation to the meeting was rescinded by France after UK prime minister Boris Johnson shared a letter on Twitter blaming France for the tragedy. The criticism that the two countries are bickering at the expense of people’s lives re-emerged after the two sole survivors from the incident reported that the sinking passengers been referred back and forth when they contacted the UK and French authorities.
Media reporting of the tragedy that referred to the victims as “migrants” has come under fire from activists and academics. “When we describe a group as migrants, we are saying they do not have rights or entitlements. Their lives are somehow less worthy. Migrant […] has a political function,” said political scientist and refugee expert Alexander Betts. Just a few weeks before the disaster, photographer Abdul Saboor interviewed Kazhall Ahmad, a 46-year old Iraqi Kurd who was killed along with her three children in the shipwreck. He shared the images on Instagram in an appeal for viewers to humanise those who had died. When the photographer asked one of Kazhall’s children why he wanted to reach the UK, he said: “I want to go to school and learn English and I want to be barber”. Charities have not finished identifying the bodies of the victims and say the process may take weeks.
As they deplored the France-UK “blame game” in response to the tragedy, NGOs called on the two governments to provide safe pathways for people to seek asylum. If these were put in place, “smuggling networks would be obsolete”, said French aid group Utopia 56. Safe routes could encompass “wide-ranging resettlement programmes, humanitarian visas, and reformed family reunion rules”, said CEO of ECRE member the Refugee Council Enver Solomon. The French interior minister, Gerald Darmanin, also urged Britain to open up a legal route for asylum seekers to prevent risky journeys. He reiterated a suggestion that British immigration officials would process asylum requests in northern France from people camped out around the major ports on France’s coast. Darmanin’s rhetoric has been criticised as hypocritical by NGOs who argue France has done little itself to ensure safe passage and has instead exposed people on the move to harsh living conditions, police brutality and regular evictions.
In parliament on 30 November, Boris Johnson defended the Nationality and Borders Bill currently in the legislative process, saying it would give the UK Border Force “the power to turn people back at sea”. MPs, peers and human rights lawyers have criticised the bill for incompatibility with the UK’s international obligations and for putting lives at risk. Home secretary Priti Patel has insisted pushbacks have a “legal basis”, though a permanent secretary from her office conceded that only a “small proportion” of boats can be turned back. On 1 December, the government said it would not amend the Bill to reduce the risk to life posed by pushbacks (for instance, by banning pushbacks of unseaworthy vessels). The plan is now facing three legal challenges from organisations who say it breaches human rights and maritime law. The first court case, launched by Freedom from Torture, argues the turnback policy has no legal basis, authorises unlawful conduct by UK officials and is prohibited by the 1951 Geneva Convention. A second challenge from Channel Rescue highlights the UK’s obligations under international law to assist any boat in distress. The third challenge, arguing the policy should have been publicised, is supported by the union representing Border Force staff. The general secretary of the Public and Commercial Services union (PCS) said the pushback plan was “…unlawful, unworkable and above all morally reprehensible. Our Border Force members are aghast at the thought they will be forced to implement such a cruel and inhumane policy”. According a leaked Home Office document, government lawyers have warned the home secretary that she has poor odds of successfully defending a court case.
For further information:
Germany: Incoming Coalition Agreement Signals Significant Change in Asylum and Integration Policy
The coalition agreement presented by the incoming German government marks a significant change in Germany’s asylum and integration policies. While the agreement outlines the removal of punitive measures, prioritised access to residency, EU coordinated search and rescue and pathways to protection in Germany, it also seeks to increase deportations and cooperation with third countries on migration. ECRE member Pro Asyl finds important improvements as well as “serious gaps”.
The incoming German government – under chancellor Olaf Scholz, representing the Social Democrats (SPD), the Greens and the Liberal Free Democrats (FDP) – has presented a coalition agreement introducing a broad set of changes to asylum and integration policies. The plans include measures to create opportunities for people with tolerated status to receive the right to stay in Germany, in particular young people and people or families who have made efforts to be part of German society. People in situations of ‘chain toleration’ will now have access to a one-year residence permit after living in Germany for five years. People with tolerated status who are in formal training should also receive a residence permit. The restrictions on family reunification rights for people with subsidiary protection will be removed, allowing them the same access to family reunion as people with Refugee Convention status. Unaccompanied children in Germany can be reunited with their parents and their siblings. According to Pro Asyl: “For many people in Germany, concrete improvements can now be made because family reunification is to be improved, work bans are to be abolished and regulations on the right to stay are to be simplified”. The coalition further commits to providing integration courses immediately upon arrival and to making funding available, including for organisations run by migrants and vocational language courses to support integration into the labour market.
The agreement stresses that asylum procedures must be fair, speedy and provide legal certainty. For this purpose, nationwide independent legal aid will be provided and vulnerable groups will be identified from the outset and receive special support. The concept of AnkER centres introduced by the previous government will no longer be pursued. It also introduces a more systematic approach to deportations that includes providing more federal support to the Länder. The government emphasise a preference for voluntary departures and a commitment to not place children and young people in detention pending deportation. The competent supreme federal authority should be able to enact a temporary national ban on deportation for individual countries of origin.
Further, the agreement commits to fundamental reform of the European asylum system with the goal of fair distribution of responsibility for reception between member states. The coalition signals its intent to make progress on this with a coalition of willing member states. It calls for state-coordinated and EU-supported search and rescue capacity and for Frontex to be in charge of border management which is effective, compliant with rule of law, transparent and subject to parliamentary control. “What remains open is what the future government’s position will be on border procedures with restrictions on freedom. No word on reforming the Return Directive, the broader facilitation of detention pending deportation or on lowering standards in the concept of safe third countries” comments Pro Asyl.
The announcement that the administration plans to examine whether determination of protection status in third countries may, in exceptional cases, be in compliance with the Refugee Convention and the European Convention on Human Rights “raises eyebrows” at Pro Asyl. The organisation notes the risk of outsourcing refugee protection and points out that the agreement also commits ensuring merit-based assessment of asylum applications of people arriving in the EU.
The coalition agreement announces that resettlement should be strengthened in line with needs reported by the UN Refugee Agency (UNHCR). A humanitarian admission programme will be established which should be used for Afghans. It also outlines an ambition to conclude new practical and partnership-based agreements with major countries of origin in compliance with human rights standards. For this purpose, a Special Representative should be appointed. Decisions related to development funding should not be made conditional on the conclusion of possible cooperation agreements.
The agreement is still subject to approval by the three parties and the new government should formally take office next week.
For further information:
Greece: Government Continues NGO Crackdown, Closed Controlled Centres Close in on Asylum Seekers, Significant Jump in Negative Decisions Since Turkey Declared Safe Third Country
The denial of registration for Refugee Support Aegean (RSA) the implementing partner of the ECRE Member PRO ASYL in Greece, marks yet another step in the ongoing crack-down on NGOs supporting asylum seekers and refugees. As protests took place in the recently opened ‘closed controlled’ camp on Samos, another two EU-funded facilities have opened on Leros and Kos. The number of applications from Afghan and Syrian asylum seekers declared unfounded or inadmissible by Greek authorities jumped sharply following the decision to declare Turkey safe third country.
In the context of an ongoing crackdown on organisations supporting asylum seekers and refugees, the Greek government introduced “stricter and more intrusive” requirements for NGO registration in a Joint Ministerial Decision (JMD) in September 2020. However, meeting the extensive requirements is no guarantee. RSA’s registration was recently rejected, despite the organisation meeting all statutory formal and substantive conditions. The organisation on 26 November quoted the doubtful reasoning, saying: the “Gov’t states that supporting persons under deportation is unlawful. This is contrary to international, EU and national law”. RSA announced that it will be “challenging this decision, as an alarming move to exclude civil society from assisting refugees and migrants in accessing their rights”. Greek MP Giorgos Psychogios has submitted a petition to the Minister of Migration and Asylum, Notis Mitarakis, rejecting the exclusion of RSA as unlawful. Psychogios notes that a deportation order does not deprive people of their fundamental rights under Greek and international law. Further, the targeting of organisations and lawyers and the criminalisation of solidarity challenges the basic principles of the rule of law. Parliamentary questions have also been raised at EU level. Damian Boeselager (Greens/EFA) and Tineke Strik (Greens/EFA) have asked the European Commission to clarify if it considers “the position of the Greek authorities, that legal assistance to persons subject to deportation is unlawful, compatible with European values and the EU acquis”, and of the broader compatibility with EU law of the JMD.
Following the opening of a flagship ‘closed controlled’ facility on Samos in September, another two EU-funded structures opened on 27 November on the islands of Kos and Leros. The minister of migration and asylum Notis Mitarakis called the structures – that feature barbed wire fences, surveillance systems and ID and fingerprint scanning at the gates – “a key pillar of our strict but fair immigration policy”. The EU has supplied 276 million euro for the establishment of closed controlled structures in the hotspots of Leros, Lesvos, Kos, Chios and Samos. According to European Commission vice president Margaritis Schinas, the new openings marked “a historic day”. The Commissioner stated: “The new modern and multipurpose reception and identification centers that we inaugurated today on Leros and Kos are another tangible proof of the undivided European solidarity with Greece”. The remarks by Mitarakis and Schinas are contradicted by protests and testimonies from people confined in the structure on Samos. ECRE member the Greek Council for Refugees (GCR) says the structure functions more like a prison than a reception facility, and has described conditions as “tragic”.
In June 2021 the Greek government issued a controversial JMD deeming Turkey safe third country for people originating from the main refugee producing countries. Now, statistics reveal clear indications of the impact for the two main countries of origin of asylum seekers in Greece, Afghanistan and Syria. 620 applications by Afghan asylum seekers were declared unfounded or inadmissible by Greek authorities in the second quarter of 2021 compared to 1,935 in the third quarter. For Syrian applicants, the number climbed from 165 to 640 in the same period.
An EU interpreter employed by the European Border and Coast Guard Agency (Frontex) has handed over evidence to EU officials and filed a complaint after he was violently pushed back to Turkey by Greek border guards reportedly mistaking him for an asylum seeker. European Commissioner for Home Affairs, Ylva Johansson stated: “After direct, in-depth discussion with the person on Nov. 25, I was extremely concerned by his account,” further adding “In addition to his personal story, his assertion that this was not an isolated case is a serious issue”. The interpreter revealed to the commissioner that he had witnessed the pushback of at least 100 people. On 11 November the Greek ombudsman announced an investigating into the interpreter’s claims.
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Belgium: Accommodation Shortage Leaves Men in the Cold, Court Insists on Reception Conditions, Charities Launch Judicial Challenge, Media Access Curtailed
Thousands of people have been left destitute and sleeping rough in Belgium over the past month due to a lack of reception places. The reception crisis has restricted access to asylum procedures and accommodation facilities, forcing asylum seekers to go to court to enforce their rights. Organisations supporting asylum seekers have responded with protests outside the office of the asylum minister, an online petition, and a judicial challenge. It was reported that Fedasil, the Belgian asylum agency, is blocking journalists from reporting from inside the centre.
According to estimates by ECRE member Vluchtelingenwerk Vlaanderen (Flemish Refugee Action), “more than 2,000 people, mostly single men have been left destitute” since the start of October. Many have unsuccessfully queued outside Petit Château, a centre in Brussels which is the only place where people can apply for asylum in Belgium. About a 1,000 were not able to apply for asylum on the day they went to the arrival centre. According to the government, the crisis is partly due to the re-allocation of places to the victims of catastrophic floods over the summer, as well as the reception of Afghan evacuees. The government has also blamed the pandemic, saying that quarantine measures pose limits on numbers and that would-be Dublin transferees are refusing the Covid tests necessary for their removal from Belgium. Critics however point the finger at the authorities’ poor management of the reception network, highlighted by a staff strike in October. Minors, vulnerable people and families have been prioritised for access to the centre, meaning the people sleeping outside are exclusively single men. The Secretary responsible for asylum, Sammy Mahdi, claims that alternative facilities have or soon will be prepared, but that they face opposition from municipalities and residents. Mahdi has resolutely opposed the idea of accommodating asylum seekers in hotels as an emergency measure.
Under EU law, basic reception conditions are the right of every person waiting for an application to be processed. Between 29 October and 19 November, Belgian courts found that, in 92 cases asylum seekers were unable to access reception conditions on the day they arrived. The catch-22 however is that reception conditions can only be accessed once a person’s asylum claim has been registered: despite queuing for weeks, many men have been unable to access an asylum procedure. On 30 November, 150 men were permitted to register as asylum seekers. However, they were not provided with a reception place, to which they are entitled.
On 24 November, protesters camped outside the office of Sammy Mahdi to denounce the situation in an action coordinated by Flemish Refugee Action and Amnesty International. The activists decried the government’s failure to act, saying the priority had to be the immediate housing of all those outside the centre as temperatures drop. The organisation CIRÉ (Coordination et Initiatives pour Réfugiés et Étrangers) announced in mid-November that a dozen NGOs were taking the state to court over insufficient reception capacity and the failure to register asylum seekers.
Journalists reported on 1 December that Fedasil was preventing journalists from reporting on the allegedly overcrowded conditions within the centre. Three days earlier, police demolished a makeshift camp built by asylum seekers from blankets and cardboard in an attempt to disperse the people outside the centre.
For further information:
RECENT REPORTS AND STATEMENTS
- ECRE and more than 112 organisations, Call on the EU: Restore Rights and Values at Europe’s Borders
- CPT, Report to the Croatian Government on the visit to Croatia from 10-14 August 2020, December 2021
- IOM, World Migration Report 2022, December 2021
- Mixed Migration Centre, Mixed Migration Review 2021, November 2021
- EASO, Country Guidance Syria 2021, November 2021
- European Policy Centre, From debunking to prebunking: How to get ahead of disinformation on migration in the EU, November 2021
- VULNER project, Exploring Vulnerability’s Challenges and Pitfalls in Belgian Asylum System, November 2021
- European Network of National Human Rights Institutions, The human rights of migrants at borders – Regional report, July 2021
- Criminalisation of solidarity - #FreeHumanitarians is calling for the charges against three humanitarians facing 25 years in prison for saving lives at sea and providing aid to asylum seekers off Lesbos to be dropped.
- Criminalisation of refugees - Free the #SAMOS2 is urging Greece to drop the charges levelled against two asylum seekers accused of boat-driving.
- Human Rights Compliance - #HardlyRocketScience is ECRE’s campaign to ensure that the European Pact on Asylum and Migration will respect fundamental human rights.
- 7 December 2021, Online, Final European Conference - TRIPS - Identification of TRafficked International Protection beneficiaries Special needs, Forum réfugiés-Cosi.
- 8 December 2021, The Hague and Online, Securing refugee rights in regions of origin, What rights and in whose interest? Meijers Committee and Dutch Ministry of Foreign Affairs.
- 9-10 December, Online, Lost in Migration 2021 Edition, Missing Children Europe.
- 10 December 2021, Louvain-La-Neuve, Workshop: Exploring the Challenges and Pitfalls of Vulnerabilities in the Belgian Asylum System: Actors in Dialogue, UCLouvain.
- 13 December 2021, Geneva, 2021 Internal Displacement Conference, IDMC.
- International Rescue Committee, TBD, Legal Programme Director, rolling basis
- JRS Europe, Brussels, Regional Project Officer, rolling basis
- Sea-Eye, Onboard, Chief Engineer, Head of Department Logistics, Master, Onboard Logistician, Technical/ Nautical Superintendent, ASAP
- IMIX, West Midlands, Regional Communications Coordinator, 5 December 2021
- Asylum Support Appeals Project, East London, Solicitor, 5 December 2021
- PICUM, Brussels, Advocacy Officer, 16 December 2021
- Dutch Refugee Council, Brussels, Independent Advocacy Project Manager, 16 December 2021
- Caritas, Liège, Psychosocial Support Worker, 21 December 2021
- Municipal Integration and Development Initiative, Berlin, Project Support and Communication Officer, 31 December 2021
- Greater Manchester Immigration Aid Unit, Manchester, Community Organiser, 7 January 2022
CALLS FOR PAPERS & OPEN CALLS