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The ECRE Weekly Bulletin provides information about the latest European developments in the areas of asylum and refugee protection.ECRE is a pan-European alliance of 90 NGOs protecting and advancing the rights of refugees, asylum seekers and displaced persons.If you would like to know more about ECRE’s advocacy work, policy positions, press releases and projects, please visit our website at www.ecre.org, find us on Facebook or follow us on Twitter.

     
13 March 2020
  
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EDITORIAL

EUROPEAN DEVELOPMENTS

NATIONAL DEVELOPMENTS

INTERVIEW
  

EDITORIAL

About Time Too

At the EU-Turkey border the situation remains alarming, and ECRE continued to speak out against the actions of the Greek government and the apparent support from the EU’s political leadership, and to promote the alternative response set out in our statement and urged by Greek NGOs. It is a relief though to see some signs of a change in approach.

On Thursday, Commissioner Johansson gave an interview to the Guardian which contained a warning to Greece on the need to respect the right to asylum; this was – hopefully – followed by a presentation of these warnings in person during her visit to the country.

Separately, the Commission announced a plan to relocate to other Member States 1600 children from the Greek islands, a very welcome initiative, and one that ECRE and others have supported for years. The seven Member States pledging relocation places are demonstrating a European and humane approach. EU funding can be easily deployed – ECRE and UNHCR’s recent report sheds light on the use of “lump sum” funds as an incentive for relocation.

Also, individuals are refusing to take part in actions that are not in line with legal requirements (or basic human decency), such as the officers deployed to Frontex by Denmark. More of the same, please.

All these developments are though just the first steps towards a positive and rights-based approach from Europe; following through on it will require the following.

First, it is important that the EU’s leadership is moving away from the cowardly and disingenuous position of saying it cannot comment on the legality of Greece’s actions. It is not being asked to assume the role of a court; it is being asked to fulfil its role as guardian of the Treaties. Actions that constitute or entail clear violations of EU and international law cannot be encouraged or tacitly witnessed.

At the very least the Commission should be reminding Greece of its obligations under EU law. There are at least three areas where legality is in question: the suspension of acceptance of asylum applications; violation of the principle of non-refoulement through prevention of admission at the border and in provisions on forcible removal; and a number of instances of the apparently unlawful use of detention. Other legally dubious and potentially damaging measures, including on reception conditions, are being introduced with less attention.

Legal avenues are under exploration in all cases. Nonetheless, there is frustration among civil society and right-minded policy-makers alike, and great anger and despair for beneficiaries of international protection, because it is difficult to bring to an end actions that flout international law and even EU law, which is more enforceable. Unfortunately, this is a permanent reality: realising rights in practice is the key, not building them into law. Many violations of asylum and migration law simply go unpunished because legal remedies cannot be accessed and cases never end in court. For individual cases, it is hard to identify litigants who are willing and robust enough to take a case. Gathering information is a challenge: in this situation, the security risk to people and NGOs operating in Turkey compounds information gaps related to the lack of legal specialists working at the border in Greece.

The legal basis of the suspension of the acceptance of asylum applicants in Greece is an article of the Greek Constitution (art. 44), which provides a procedure for the enactment of emergency legislation; measures using this legal basis cannot be directly challenged in court. Unfortunately, the tools available to the Commission for addressing violations of EU law on asylum and migration have proven insufficient, given the repeated violations taking place across the Member States.

Nonetheless, an EU committed to the rule of law would use – or threaten to use – the means at its disposal. These include infringement procedures, Article 7 procedures (eventually), and measures available under the Common European Asylum System. Unfortunately, infringement procedures take years and violations continue in the meantime. They are also difficult to use against systemic rather than specific violations but they are there for a reason. In the medium-term, flagrant and persistent violations of EU law by some Member States, mean that other measures, such as rule of law conditionality on funding, have to be pursued, and when available and deployed including when the violations concern EU law on asylum and migration.

Second, EU leaders should choose to use the legal measures available to support a positive alternative response, including the use of the Temporary Protection Directive, provisions on emergency situations under the Dublin Regulation, and the use of humanitarian instruments. The focus should be on access to asylum, emergency reception, humanitarian programming and relocation and other solidarity measures. Financial and operational support should then follow to reinforce the action. The EU funds already announced should only be used for actions that are part of an approach that is clearly in line with EU and international law, not for actions that appear to contravene it.

On relocation, the pledges already announced should be the first step in the establishment of a comprehensive relocation programme to meet the humanitarian needs in Greece. In a letter the European Commission, the European Parliament’s LIBE Committee “notes with concern the lack of reference to large-scale relocation as one of the most immediate actions to be undertaken”. All efforts should focus in this direction: after all, the scandalous situation on the islands is the result of EU policy, namely the wretched EU-Turkey Deal, and any suggestion that the answer is to implement the deal by returning people to Turkey is too absurd to countenance. Even before the actions of recent weeks, President Erdogan was repeatedly, publicly threatening forcible returns to Syria, and the situation for Syrians in Turkey is increasingly precarious – and not helped by the hardline posturing of last week.

At the same time, the suffering IN Greece should not be confused with suffering OF Greece: while the unfair responsibilities may have been placed on Greece, it still has to do more to ensure basic rights and standards for people there, to ensure a functioning asylum system, to properly manage the humanitarian crisis, to absorb EU funding that is being provided. It should be noted that perceived unfairness of European policy and the claims of security threats or emergency do not and cannot provide legal justification for many of the actions being taken, including the suspension of the right to asylum.

Third, civil society needs to be able to operate. There are alarming reports of attacks on those providing support to refugees and impunity for such actions. All EU institutions should be clear that this is unacceptable. Again, it is a longstanding issue, with documentation on the rights of the repression of civil society, particularly those working on the rights of the displaced, being a theme of recent years. One of the reasons for preserving civic space is to ensure that civil society can play a constructive role in challenging situations such as it is willing and able to do now and as it did in 2015/2016.

Fourth, the underlying reasons for the situation in Greece are flaws in the EU’s legal framework, and especially those resulting from the unfairness of the responsibility allocation mechanism set out in the Dublin Regulation. The CJEU has made it clear (AS and Jafari) that there are weaknesses in the legal framework that need to be addressed by the legislators. It is the Commission’s role to initiate legislation and unfortunately Dublin IV did not address the fundamental flaws in the system. The LIBE Committee’s letter proposes relaunching negotiations; ECRE recommends compliance with existing EU law and reform of responsibility sharing as key elements of the Pact soon to be presented.

The warning to Greece and the relocation plans should mark a switch in the EU’s approach, after the military-style antics of the first week. Otherwise the conclusion will be that the political choice of the EU’s leadership is approval of actions that are disproportionate, damaging and sometimes just flagrantly illegal.

 


EUROPEAN DEVELOPMENTS

Joint Communication on EU Strategy with Africa

This Monday, the European External Action Service and the European Commission (EC) published a Joint Communication: Towards a comprehensive strategy with Africa which sets out the vision of the two institutions regarding the future EU-Africa partnership. It suggests what it defines as a balanced, coherent and comprehensive approach to migration and mobility as its proposed action for the partnership with Africa.

The communication broadly stresses the need for a “balanced, coherent and comprehensive approach to migration and mobility, guided by the principles of solidarity, partnership and shared responsibility and based on the respect for human rights and international law”. It refers to the EU’s commitment to support African countries in addressing the “refugee crisis” and in finding durable solutions, including resettling refugees in Europe. However, at the practical level the suggested partnership on migration and mobility reaffirms the previous approach to managing migration and mobility, referring to the joint Valetta action plan, the Khartoum and Rabat process, the EU partnership framework on migration and the AU-EU-UN trilateral task force on migration.

The communication emphasizes the prevention of irregular migration, fight against smuggling and trafficking as priorities alongside effective border management. It also stresses the need to improve cooperation on return and readmission and mentioned support for voluntary returns and effective implementation and conclusion of readmission arrangements as actions. This should happen in parallel to stepping up cooperation on legal migration. The proposed action of partnering with Africa to ensure a balanced, coherent and comprehensive approach to migration and mobility further makes reference to the Sustainable Development Goals no 1 (on poverty) and 10 (on inequalities).

EU Member States will consider the Joint Communication in the coming months with a view of adopting Foreign Affairs and European Council conclusions. This process is happening in parallel to ongoing negotiations on the post-Cotonou framework and the priorities and architecture of EU development funding after 2021.

The partnership on migration and mobility is one of five areas outlined in the communication to guide discussions between the EU and African Union (AU) ahead of the EU-AU Summit in October 2020. Beyond migration it includes a partnership for the green transition and energy access; a partnership for digital transformation; a partnership for sustainable growth and jobs; and a partnership for peace, security and governance.

For further information:

 

Violations Continue in Greece, EU Says Asylum Procedures Cannot be Suspended
 

Greek authorities are continuing apparently illegal actions in an attempt to stop people entering from Turkey. EU confirms that violations will be discussed and short of declaring Greek suspension of procedures illegal, states that they cannot be suspended. A group of member states offered to take in unaccompanied children from the Greek island camps.

Following the controversial suspension of asylum procedures the Greek authorities appear to be continuing violations of international and European law. Media have uncovered the use of detention at “a secret extrajudicial location” in north eastern Greece from where people are expelled to Turkey without access to an asylum procedure and allegedly after being stripped of their belongings and beaten.

Since March 1, Greek authorities have detained 450 people interdicted by the Greek Coast Guard on the vessel docked in the Mytilene Harbour in Lesbos. Bill Frelick, refugee and migrants rights director at Human Rights Watch states: “The refusal to allow people in its custody to seek asylum and the open threat to send them back to their persecutors flies in the face of the legal obligations Greece has agreed to and the values and principles it claims to represent.”

A Danish boat patrolling as part of Operation Poseidon, a border surveillance mission coordinated by the European Border and Coast Guard Agency Frontex, refused orders from operation headquarters to return 33 rescued people to their dinghy and tow it out of Greek territorial waters. The crew considered the order would endanger the lives of the people and instead brought them to the island of Kos. Lieutenant Commander Jan Niegsch and Jens Møller, the police chief in charge of the Danish unit, confirm that the Greek coast guard is under orders to prevent migrant boats from crossing the sea border between Turkey and Greece.

Responding to the suspension of the Greek asylum procedure, Ylva Johansson, EU commissioner for home affairs stated: “Individuals in the European Union have the right to apply for asylum. This is in the treaty, this is in international law. This we can’t suspend.” On the abuse, detention and expelling of asylum seekers to Turkey from facilities in north eastern Greece the Commissioner said: “These kind of temporary detentions that they have set up – is one of the things I would like to know more about … Of course you can have detention for some period of people that have come, but of course you can’t beat them.”  During a meeting with Johansson MEP’s from the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) expressed: “deep concern about the deteriorating humanitarian situation both at the border with Turkey and on the Greek islands, where thousands of asylum-seekers, many of them unaccompanied minors, are stranded.”

The German government has offered to receive “an appropriate share” of the most vulnerable children from the overcrowded island camps and additional promises have been put forward by France, Portugal, Finland and Luxembourg. The ambition of EU as a whole is to assist somewhere between 1000 and 1600 children. Further the European Commission is launching a scheme to offer 2000 Euros per person as an incentive for people to return to their country of origin from the Greek islands. The scheme will be managed by the International Organization for Migration (IOM) and the European Border and Coast Guard Agency Frontex.

Since Turkey decided not to prevent people from leaving its territory – demanding support from the EU on the conflict in the Idlib Province of Syria and on delivering on its commitments on hosting of refugees – 10,000 people have gathered in the Evros border region between Turkey and Greece. Greek authorities claim to have prevented 42,000 attempts to cross within the last two weeks.

Turkey is hosting a total of 4 million refugees and asylum seekers including 3,6 million Syrian nationals. Greece has seen the arrival of 8,736 people so far this year and a total of 75,000 arrivals in 2019.

For further information:

 


NATIONAL DEVELOPMENTS

AIDA 2019 Update: Hungary*

The updated country report on Hungary documents developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2019.

The quasi-state of exception that has been introduced into Hungarian law in September 2015, entitled “state of crisis due to mass migration”, has been extended once again until 7 September 2020. It is therefore still only possible to apply for asylum at the border, inside the transit zone (unless the applicant is already residing lawfully in the territory of Hungary). Asylum seekers continue to be held in the transit zones for the entire asylum procedure, without any legal basis for detention or judicial remedies. Police are authorised to push back across the border fence people defined as irregular migrants (including those who wish to seek asylum in Hungary) from any part of the country, without any legal procedure or opportunity to challenge this measure. In 2019 there were 11,101 people pushed back from the territory of Hungary to the external side of the border fence and 961 were blocked entry at the border fence.

During his visit to Hungary in July 2019, the UN Special Rapporteur on the human rights of migrants urged the government to immediately terminate this ‘state of emergency’; he noted that he could not see a single migrant approaching Hungary from the Serbian side of the border, and deemed the extension unnecessary.

Detention remains a frequent practice rather than an exceptional measure in Hungary. The vast majority of the people are detained in the transit zones of Röszke and Tompa. The fact that asylum seekers inside the transit zones are deprived of their freedom of movement is confirmed by the United Nations Working Group on Arbitrary Detention (UNWGAD), European Committee for the Prevention of Torture (CPT), UNHRC, UN High Commissioner for Human Rights, UN Special Rapporteur on the human rights of migrants, European Commission and Commissioner on Human Rights of the Council of Europe. In the Grand Chamber judgement of the European Court of Human Rights (ECtHR) of November 2019 the ECtHR did not agree with the Chamber’s unanimous decision concerning the nature of the placement in the transit zone and ruled that the applicants in this case were not deprived of their liberty. Several reports and UN Treaty bodies, published in 2019, however, keep reiterating the dire circumstances of deprivation of liberty in the transit zone. 

2019 was further characterized by a very low recognition rate (rejection rate is 91.5%) and extremely lengthy procedures, during which the asylum seekers have to say in the transit zone. Institutional changes also took place. On 1 July 2019, the Asylum and Immigration Office ceased to exist and the National Directorate-General for Aliens Policing (NDGAP) was established taking over the responsibility for asylum and aliens policing matters. The Directorate continues to be under the supervision of the Ministry of Interior and having its own budget, but operating as a law enforcement body under the Police Act. The transformation into a branch organisation of the Police meant that asylum officers needed to receive training and pass physical and psychological exams in order to be appointed as police officers. All these factors led to increased delays in decision-making and standstills in several cases.

For those having obtained an international protection status in Hungary the circumstances remain dire. Since the Hungarian state has completely withdrawn in 2016 integration services provided to beneficiaries of international protection, recognised refugees and beneficiaries of subsidiary protection are left to destitution and homelessness. Only non-governmental and church-based organisations provide the needed services aimed at integration such as housing, assistance with finding an employment, learning Hungarian language or family reunification. Moreover, the Commissioner for Human Rights of the Council of Europe pointed out in her 2019 report that xenophobic rhetoric and attitudes also have a harmful effect on the integration of recognised refugees. 

*This information was first published by AIDA managed by ECRE.

 

Spain: Inhuman Reception Conditions for Children in Melilla

On 10 March 2020, the Spanish newspaper El Pais published pictures of the reception centre La Purísima for unaccompanied minors, in the suburbs of Melilla, Spain, revealing a poor living conditions for the children hosted there.

Pictures from the centre hosting 600 children, despite a capacity of 350, reveal rows of bunks stacked on top of each other with almost no space between and mattresses, clumped together on the floor for those without a bed. According to the testimonies collected by the Spanish newspaper, the conditions in the centre are so poor that some children prefer to sleep outside. Those hosted in the centre have to follow a strict code of conduct and are left to sleep in the street if they miss the centre’s curfew

The local government has announced that within the next six months they will make new spaces available to accommodate 400 children. The measure is part of a bigger plan to transfer the children to other locations.

Despite harsh critique of the conditions in the centre by the local Councilor of Finance, Nuria Almansuri, the tender with the company Arquisocial running it has been extended until 2021.

For further information: 

 

 


INTERVIEW

#VoicesOfECRE: Izabella Majcher

Interview with Izabella Majcher, ECRE Senior Legal Officer – Return and Detention

ECRE is an alliance of 104 NGOs across 41 European countries and its diverse membership ranges from large INGOs with global presence to small organisations of dedicated activists. Members’ work covers the full circle of displacement from zones of conflict, to the dangerous routes and arrivals in Europe, to long-term inclusion in European societies, with their activities including humanitarian relief, social service provision, legal assistance, litigation, monitoring policy and law, advocacy and campaigning. We decided to share some of their voices.

How did you become involved in protecting the human rights of displaced people?

For me I guess it wasn’t a question a single big event but a gradual awakening to the extreme inequality of our societies. I saw it when I was volunteering in Ecuador and Vietnam but it is evident also in Europe and in Geneva where my professional path took shape. Some people are excluded and discriminated robbed of the fundamental freedoms and rights that we take for granted and it’s a question of hazard, being born a little further North or South. We simply jump on a hundred Euro Easy jet flight to any destination we wish while asylum seekers and refugees are paying thousands of Euros to cross a border often at high risk. The fundamental paradox is that their undocumented status is a product of our laws – in other words we made sure they had no or very limited legal options of seeking protection and then claimed them criminals for seeking alternatives.

I guess you could say I engaged in the battle of refugee and migrants rights on three different levels – at work doing research and advocacy on detention, in academia doing a PhD on EU return policies and as a volunteer providing legal assistance to asylum seekers and visiting immigration detention facilities.

What is the single most inspiring experience of your career?

When dealing with detention of people seeking protection in Europe there are very few ‘success stories’. Realistically, given the asymmetrical power relationship between governments and NGOs, the best we can typically achieve is to prevent the most severe cases of abuse and to ensure provision of basic medical health and humane conditions of detention. A key and universal dilemma that arises from the asymmetry of power between NGOs and governments is how to strike the delicate balance of engagement – we need the dialogue to make sure we can to the maximum extent positively influence their decisions but at the same time we cannot in that working relationship compromise too much or end up legitimizing bad policies to stay in the room so to speak.

However, it has been deeply inspiring to work alongside a diverse group of people consisting of activists, academics and NGO staff with so many different skills and expertise’s on domestic and international policies, laws and procedures. Different people, bringing different experiences and competences but united in the same struggle to protect the fundamental rights of refugees and migrants.

What is your main professional motivation?

I probably shouldn’t say this but to be honest there hasn’t for years been a defined line separating work and private life for me. I mean I am privileged to work on issues that I care deeply about and between being a professional in NGOs working on human rights issues, volunteering to assist people whose rights are ignored or violated, and writing a PhD on the same topics… Let’s just say barriers melt down. My conviction is what drives my work and my work is what drives my conviction.

 


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