Diakonie Austria raises serious concerns about a new bill on the establishment of a Federal Agency for Supervision and Support Services (Bundesagentur für Betreuungs- und Unterstützungsleistungen - BBU GmbH) that could impair constitutional, Human Rights and European Law and the rule of law. The provisions deteriorate the asylum procedure and create an inaccessible asylum system in which civil society organisations can no longer intervene, Diakonie warns.
The bill establishes a new Federal agency that will be in charge of i.a. (i) providing basic care, (ii) providing legal assistance to asylum seekers and foreigners; (iii) providing assistance for return, (iv) monitor deportations and (v) provide interpreters and translators during the asylum procedure. Its objectives are to increase the efficiency of the federal minimum guarantee (“Bundesbetreuung”), to provide asylum seekers with independent legal assistance and to promote voluntary return through effective return counselling.
Diakonie criticises that the Agency is not institutionally independent as it falls under the direct responsibility of the Federal government and is influenced by the Ministry of Interior, which is also responsible for the Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl – BFA). The bill allows the Ministry of Interior to exercise shareholders’ rights (e.g. set policies, strategies and objectives), to appoint officials of the Agency such as counsellors or members of the supervisory board, and to determine certain modalities of the legal assistance (e.g. allocation of specific cases, resources etc.).
Diakonie expresses particular concern about the access and the quality of legal assistance. A Federal Agency providing independent legal advice though it is subordinate to the same institution which is responsible for the Federal Office for Immigration and Asylum (BFA) raises a conflict of interest. Moreover, the bill further limits access to legal assistance at first instance. In certain cases, the Agency’s decision on who gets access to legal assistance is likely to be arbitrary.
Diakonie warns that the lack of external control that comes with the exclusion of external service providers and civil society organisations from the asylum procedure can result in substantive errors and dysfunctions: It creates a “blackbox in which rules are not transparent, inadequate and prone to error”. The bill also plans to cut the time resources dedicated to legal assistance by a third and to reduce workforce, which will impact the quality both of the information provided and of subsequent appeals and submissions, thereby increasing the workload of courts. Alongside the lack of independence, objectivity and effectivity, Diakonie provides a very detailed overview of the additional financial costs that such an Agency would engender, which should amount to at least 17,6 million euros in 2021.
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The updated Country Report on Sweden provides an overview of developments relating to asylum procedures, reception conditions, detention of asylum seekers and content of international protection, amid discussions on the extension of the temporary law agreed in 2016 for an additional period of three years.
Asylum procedure: On 4 March 2019 the Migration Agency published a legal position regarding the prohibition of Dublin transfers to Hungary. It stated that in the event that Hungary is found to be the responsible country in accordance with the Dublin Regulation, it is not possible to transfer the applicant to it. At the same time, the Migration Agency revised its policy on Italy and held that there is no longer a need to obtain individual guarantees prior to carrying out transfers.
During 2018, an amendment was introduced to the Aliens Act concerning responsibility for the reception of persons who have been accepted in accordance with the Dublin Regulation from other Member States was implemented and cooperation with the police authority intensified. The change in the law means that the police authority takes over the responsibility of the Migration Agency regarding the reception of Dublin returnees when there is a legally enforceable decision on expulsion.
The Migration Agency has established new tracks for admissibility procedures: “Track 5B” concerns applicants benefitting from protection in another EU Member State, while “Track 5C” deals with applications raising first country of asylum and safe third country grounds. Detailed guidance on the use of these concepts was issued in December 2018 by the Migration Agency.
Following the CJEU ruling in A v Migrationsverket, the Migration Agency updated its guidelines in December 2018 to clarify that an application cannot be rejected as manifestly unfounded on safe country of origin grounds without the existence of a list of safe countries of origin.
Content of international protection: The temporary law was prolonged but subject to a change to family reunification rights for those granted subsidiary protection. The proposals are based on an agreement between the government, the Centre Party and the Liberals which formed the basis of the forming of the current government. In the bill, it is proposed that the Act (2016:752) on temporary restrictions on the possibility of obtaining a residence permit in Sweden continue to apply until 19 July 2021, with subsidiary protection beneficiaries holding the same family reunification rights as refugees. The Migration Court of Appeal found in one case in November 2018 that the denial of family reunification rights to a child benefitting from subsidiary protection was not a proportionate restriction on the right to family life under Article 8 ECHR and was contrary to the best interests of the child.
In a case concerning the termination of housing contracts by the city of Lidingö, the Administrative Court of Appeal found that city has the right to terminate the housing contracts for new arrivals after two years. In view of how the law is designed and what is stated in the preparatory works, the Administrative Court of Appeal considers that “the Housing Act does not impose any obstacle to a municipality offering housing that is only temporary to new arrivals who are assigned”. The municipal council's decision can therefore not be considered contrary to the obligation to receive new arrivals for residence in the municipality resulting from the Residence Act.
*This information was first published by AIDA managed by ECRE.
The updated Country Report on Portugal documents developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2018.
Asylum procedure: Portuguese courts delivered several important judgments relating to the Dublin Regulation. The Central Administrative Court of Lisbon annulled transfer decisions on the basis that, according to its interpretation of either Article 17 of the Asylum Act or Article 5 of the Dublin Regulation, the Immigration and Borders Service (SEF) has to inform the applicant and give him or her the opportunity to reply not only to the statements provided during the Dublin interview, but also to a report containing the information that underlies the transfer decision.
In February 2018, the Tribunal Administrativo e Fiscal de Sintra annulled a transfer decision to Hungary on the basis that the available information regarding the functioning of the Hungarian asylum system revealed the existence of valid reasons to believe that there were systemic flaws in the asylum procedure and reception conditions amounting to the threshold of inhuman or degrading treatment (namely due to the systematic detention and acts of violence towards asylum seekers in the country). While CPR is not aware of any case where the Court annulled a transfer decision to Italy due to the existence of systemic flaws in the asylum procedure and reception conditions, in at least two cases, Central Administrative Court of Lisbon annulled transfer decisions on the basis that the examining authority failed to analyse the conditions of the Italian asylum system, and determined that SEF had to reassess the case with updated and reliable information. Notwithstanding, the jurisprudence regarding transfers to Italy varied.
In 2018, age assessments by other EU Member States have been used by the SEF as negative credibility indicators, notably those from Malta regarding asylum seekers who were transferred to Portugal in the framework of ad hoc disembarkation-related EU solidarity measures and claimed to be children upon arrival in Portugal. The absence of an initial age assessment from the SEF prior to the referral to the CACR in cases where the appearance and demeanour of the applicant raise serious doubts regarding their age has led CPR to refer those applicants to CPR’s CAR, informing the Public Prosecutor’s Office accordingly for purposes of ratification this procedure aimed at preserving the security and integrity of the CACR.
Reception conditions: Overcrowding in the refugee reception centre (CAR) persisted throughout the year. Between January and December 2018, CPR provided accommodation at CAR and in private accommodation to 1,112 applicants. Furthermore, the transition into private accommodation as per the existing arrangements has experienced significant delays throughout the year.
The Government introduced the “student in an emergency situation for humanitarian reasons” status for higher education that can be claimed by any non-Portuguese / EU student who originates from a region affected by armed conflict, natural disaster, generalised violence or human rights violations requiring a humanitarian response. The beneficiaries of international protection and asylum seekers admitted to the regular procedure under the Asylum Act are entitled to the status by operation of law. Students with “emergency situation for humanitarian reasons” status are entitled to alternative procedures for assessing entry conditions in the absence of documentation such as diplomas, equal treatment to Portuguese students regarding university fees and other levies and full access to social assistance available to higher education students. However, the new rules do not address the issue of access to entry visas for eligible students living abroad.
Detention of asylum seekers: In July 2018, following media reports on detention of young children at Lisbon Airport, and remarks by the Ombudsperson and UNICEF, the Ministry of Home Affairs issued an order determining that children under 16 years old (whether accompanied or not) cannot be detained in the CIT for more than 7 days. According to the information available to CPR, for the whole of 2018, a total of 24 unaccompanied children were detained at the border, for 6 days on average. The information available to CPR regarding 51 children accompanied by adults reveals that they were detained at the border for an average period of 16 days. While CPR has observed a tendency of decrease of detention periods to which children were subjected following the order issued in July 2018 by the Ministry of Home Affairs, this practice remains concerning in light of international standards that prohibit any immigration detention of children.
Content of international protection: The Nationality Act was recast in July 2018. The changes will likely have a positive impact on acquisition of nationality by beneficiaries of international protection and their children. Most notably, the recast reduced the regular residence requirement for naturalisation from 6 to 5 years. Additionally, following the recast, children born in Portugal to foreigners who are not at the service of their State of nationality are Portuguese by origin if one of the parents has been legally residing in the country for at least 2 years at the time of the birth and if they do not state that they do not want to be Portuguese.
While the average duration of family reunification procedures remained unchanged, there was a relevant increase in the waiting time for an appointment at the SEF for the purposes of family reunification. In the case of SEF’s Lisbon regional office, in particular, that deals with a significant number of applications, waiting times rose to as much as 5-6 months in certain cases.
*This information was first published by AIDA managed by ECRE.
EUROPEAN COURTS AND INTERNATIONAL MECHANISMS
The Global Legal Action Network (GLAN) have submitted a case to the European Court of Human Rights (ECtHR) on ECtRECagainst the persecution of humanitarian actors rescuing refugees at sea. The case was submitted on behalf of Salam Kamal-Aldeen who has worked for Team Humanity on Lesbos, Greece since 2015 supporting their maritime rescue efforts.
Salam Kamal-Aldeen was arrested on Lesbos in January 2016, along with a number of his crew. He was later charged with the illegal transport of irregular migrants without authorisation. The judge referred to the work of Team Humanity as using “rescue as a pretext” to pursue this crime. The boat and rescue equipment were confiscated and restrictive measures were imposed on Mr. Kamal-Aldeen.
The case is brought to the ECtHR in light of what is a wider effort across the EU to crackdown on and restrict the efforts of humanitarian organisations, in particular those operating in the Mediterranean.
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The Hungarian Helsinki Committee (HHC) has published an information update on the violations of the rights of third-country nationals in the country’s transit zones, including the deprivation of food. The HHC has challenged the practises of the Hungarian Immigration and Asylum Office (IAO) on a case by case basis at the European Court of Human Rights (ECtHR) to stop the starvation of detainees.
Between February 2019 and the publication of the update, the HHC have had to apply for interim measures on behalf of 13 people who have been deprived of food in transit zones. In each instance, the HHC have had to apply to the ECtHR for emergency interim measures in order to get food to those detained.
The IAO also fails to examine the merits of protection claims under the new asylum regulations and exposes applicants to a risk of refoulement. Under the new regulations in Hungary, applicants for asylum are held in transit zones throughout the duration of the procedure. Following a refusal of an asylum seeker’s application, the authorities have justified depriving applicants in these transit zones of access to basic provisions, including food.
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REPORTS & NGO ACTIONS
ECRE has published a report that presents the findings of a fact-finding visit to Germany from 1 to 5 April 2019.
The report analyses the model for Arrival, Decision and Municipal Distribution or Return (“AnkER”) centres implemented in the Federal State of Bavaria since August 2018. The AnkER approach developed was launched with the aim of increasing efficiency by concentrating all actors involved in the processing of asylum applications at locations where asylum seekers are accommodated. The premise of AnkER centres is that by keeping applicants at the disposal of the asylum authorities the process will be speeded up and result in fast decision-making and clarity on people’s perspectives: integration in German society or return to the country of origin or to another EU country under the Dublin system.
However, the findings of this report suggest that certain aspects of the AnkER approach risk undermining asylum seekers’ access to a quality asylum procedure and adequate reception conditions. This results mainly from the increasing linkage between asylum and return from the outset of the procedure. The approach is liable to hinder the provision of guarantees such as access to independent, timely and individual counselling. Its impact on the quality of decision-making is not yet clear, but statistics so far indicate risks that asylum seekers face more restrictive assessments of international protection needs in AnkER centres compared to the rest of Germany. Also, the linkage between asylum and return results in mainstreaming punitive measures which reduce reception conditions available to all residents, and in a dangerous expansion of detention well beyond last resort use in exceptional circumstances.
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*This information was first published by AIDA, managed by ECRE.
According to Mexican immigration authorities 371 people were detained on Monday April 22 when Mexican Police and Immigration Agents raided a group of approximately 3000 migrants. They were passing through Chiapas state fleeing poverty and violence in Honduras, El Salvador and Guatemala hoping to reach the US Border.
The raid that represents one of the largest since what has been dubbed ‘the exodus’ began last year is according to Deutsche Welle a reaction to increased pressure from the US to stop people from trying to reach its borders. Reportedly the Mexican Police targeted isolated groups of people in tail of the caravan causing panic and breaking up the so-called caravan. People were fleeing into the hills and forests, taking refuge in churches, trying to jump passing freight trains or continued and were stopped by police and immigration check points.
While Immigration Chief (Commissioner Instituto Nacional de Migración) Tonatiuh Guillén regretted the incident causing children to be frightened he stated that 11,800 migrants have been deported so far this month and that Mexico will be more selective in the issuing of humanitarian visas of which 15000 have been granted in recent months. Mexican President Andrés Manuel López Obrador rejects the notion that the countries handling of the situation is contradictory or incoherent.
Statistics from the Migration Institute reveals that 5,336 migrants are in detention in Chiapas, 1,500 of which were awaiting deportation and according to the National Human Rights Commission, the immigration center in Tapachula is overcrowded.
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An interview with Victoria Canning is senior lecturer in Criminology at the University of Bristol. She has spent over a decade working on the rights of women seeking asylum, specifically on support for survivors of sexual violence and torture.
What was the scope and objective of your research on detention in Northern European countries?
Over the last three years I conducted research on asylum centres and immigrant detention systems in Sweden, Denmark and the UK to document the harm inflicted on people seeking asylum. I did qualitative interviews with a wide range of people connected to these centres such as psychologists, detention custody officers, activists, sexual violence counsellors, immigration lawyers and barristers. I also spent more than 500 hours speaking with people seeking asylum, in particular women in asylum centres in Denmark and in communities in Merseyside, Britain and Malmö, Sweden. This kind of ‘participatory action’ gave me an insight into the everyday harms they experience in these countries.
What were the main findings? What are the challenges asylum seekers face in these countries?
For people seeking asylum in Northern Europe, reaching a safe country is a primary aim but once they get here many encounter unexpected and harsh realities. Poverty, poor healthcare, racism and Islamophobia can make their life incredibly difficult. Policies and social attitudes have become increasingly hostile toward migrants, resulting in harmful laws and practices. My research found that in lived reality the rights of people seeking asylum – in particular the rights of women - are diminishing in all three countries. Hostile attitudes and environments compound the impacts of violence, torture and sexual abuse. At the same time, social and psychological support is reduced, leaving many people in an unsupported limbo at the margins of societies. Despite rights based approaches many practices end up being institutionally discriminatory and people end up experiencing an exacerbation of their situation.
How is detention for asylum seekers used in these countries and how does it affect people?
Although the asylum and detention centres I visited had their own unique set up and structure in each country, some general characteristics stood out: Firstly, the centres I visited were spatially isolated from cities. The spatial divide rendered those living there invisible to the public - literally ‘out of sight, out of mind’- and also restricted their regional mobility. Their daily life was very much confined to the centres.
Secondly, people often stay in these centres for indeterminate periods of time. They virtually feel like they see their life time disappear, which has a significant psychological impacts. Some children have spent all of their lives in such centres being moved from asylum centre to deportation centres. In a time in which incarceration and confinement of refugees and immigrants is ever-increasing they also experience a loss of autonomy and agency.
Many of the centres I visited did not formally constitute a form of detention. People were in theory free to come and go. Factually however, they were far away from the next city and hardly had the financial means to get there. They also had to report to the authorities in the centre on a regular basis. For example, the deportation centres Sjælsmark in Denmark is surrounded by fences, which gave a constant feeling of confinement for the families held there. Children went to school on the territory and their way to school was fenced in. At the time they did not offer many activities and the constant feeling of uncertainty about their future among people living there made it nearly impossible to develop a sense of community. People could play with a football but they could not make teams to play against each other. Places like this are designed to make people’s stay intolerable. In the end, their freedom was a mere illusion.
You point out that keeping people in the [detention] system for years is expensive. Who benefits from this arrangement?
While I pointed to the similarities between the three countries before, there is a glaring difference between the systematic detention of immigrants in the UK, where the processing of migrants has become a profiteering exercise and so-called ‘softer’ forms of confinement, for example in Sweden. The UK has seen the development of a whole industry of migrant detention in which the government’s agenda of expanding controls on migration has become integrated with the interest of multinational companies such as G4S and the economic rationality of job production. The outsourcing of detention facilities to profit-oriented companies is extremely problematic because it is in their interest that as many people as possible are detained for as long as possible. But it is UK law, by allowing for the detention of immigrants for indefinite periods of time, that lays the basis for this cruel business. In Sweden and Denmark immigration detention is less expansive but first efforts to privatise it have been made.
How are particularly women asylum seekers affected by confinement and detention?
My research found that gendered harms women experienced before arriving are rarely adequately addressed and often exacerbated during the process of seeking asylum. Through spousal visas they are often dependent on their male partners, they continue to face sexual and domestic violence or are left in destitute. In UK’s immigration removal centres there have been instances of sexual abuse by custodial officers. Also pregnant women are held in immigration detention though in the UK this period is restricted to a maximum of 72 hours.
In all three countries, there is a lack of psychological support that particular affects survivors of sexual violence. Some organisations specialising in post-torture support or sexual violence counselling avoid working with people seeking asylum, as the uncertainty of their status is considered too distracting to engage in meaningful therapies. Even if emotional support is offered, the isolation women experience in these facilities also reduces their capacity to engage. Finally, carers’ time is often dictated by inflexible childcare, which means women with children are restricted in their ability to travel or undertake personal tasks.
Your policy brief states that women seeking asylum are regularly deemed ‘vulnerable’. Can the common labelling of women asylum seekers as ‘vulnerable’ also have a detrimental impact on their experience in the host countries you visited?
Ironically, in many cases it is the lack of security in the asylum systems that renders women vulnerable to gendered forms of harm and which makes them more likely to engage in and depend on abusive relationships because they are left with limited alternative options to survive. The way that the asylum process functions then often forces them to present themselves as “perfect victims”, e.g. of sexual exploitation and trafficking. If you show that you have too much agency it is assumed that you could have just walked away from the abuse. Thus, the asylum process often reinforces gendered stereotypes of women as helpless and dependent and makes it very difficult for them to construct their own life in the aftermath.
Do the systemic constraints that women asylum seekers face leave spaces for resistance? Can you tell us stories that counter the narrative of women as “dependent” and “helpless victims”?
To me, surviving is a kind of resistance and the many ways women have organised together to facilitate their survival. I recommend reading how migrant women themselves talk about the many challenges they have experienced seeking asylum. Together with many others I worked on a book called “Migrant Artists Mutual Aid: Strategies for Survival, Recipes for Resistance” which depicts the strategies women seeking asylum take to survive through collective action and mutual aid in the North West of England. But the most important thing to note is that people seeking protection should not be in that position in the first place and that governments need to roll back on the punitive controls on people’s lives and enable them to gain financial autonomy.
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ECRE European Parliament Campaign: Your Vote Our Future! It is time to oppose the far-right populists and fight for a Europe respecting human dignity and fundamental rights – the European Parliament elections provide this opportunity. Every vote counts!
Choose Respect: Together We Can Tackle Anti-Migrant Hate Speech. Hate speech against migrants and refugees is all too common, both online and in the real world. But it isn’t always easy to know how to react effectively – and it’s even harder to respond in a way which changes attitudes. In the run-up to elections, politics is a frequent topic of debate. But if the discussion turns nasty – either around the dinner table or on your social media feed – here are some tips to help you make a constructive contribution to a more positive discourse.
The Power of the Vote: Against the rise of populist anti-migrant rhetoric, we, at the Jesuit Refugee Service, believe that the most fundamental resource in Europe today is our vote. Therefore, we wish to appeal to all people to stand up for the future of the EU and especially for the fundamental rights of asylum seekers in Europe.
- 6- 10 May 2019, Toronto, The Centre for Refugee Studies Annual Summer Course
- 16- 17 May 2019, London, Child marriage in forced migration: social processes in-flux, The British Academy
- 10 May 2019, Amsterdam, Migration Law Clinic:‘The Role of Law Clinics in Strategic Litigation in the field of Migration Law’, University of Amsterdam
- 15 May 2015, ONLINE, #StatelessJourneys Webinar: Statelessness in Myanmar, European Network on Statelessness
- 3-5 June 2019, London, Refugee Law Initiative Fourth Annual Conference, ‘Rethinking the “Regional” in Refugee Law and Policy’, Refugee Law Initiative
- 17-28 June 2019, Geneva, Summer School on Global and Regional Migration Governance, University of Geneva
- 26-28 June 2019, The Hague, 2019 World Conference on Statelessness and Inclusion, Institute on Statelessness and Inclusion
- 1- 5 July 2019, Budapest, Conceptualising, Navigating and Representing the Field in Migration Studies, Central European University, Summer University
- 1- 12 July 2019, Brussels, 2019 Summer School on EU Immigration and Asylum Law and Policy, Odysseus Network
- 3-5 July 2019, Geneva, 2019 UNHCR Annual Consultations with NGOs, UNHCR
- 29 July- 2 August 2019, Tilburg, Statelessness Summer Course: Global Focus 2019, Institute on Statelessness and Inclusion
- 27- 30 August 2019, London, Geographies of Trouble/ Geographies of Hope, 2019 Annual International Conference, Royal Geographical Society- IBG
CALLS FOR PAPERS & OPEN CALLS
- Online Course: Caring for Children Moving Alone: Protecting Unaccompanied and Separated Children, from 27 May 2019
- Call for Applications: PhD Seminar, 2019 Summer School on EU Immigration and Asylum Law and Policy, Odysseus Network, 19 April 2019
- Call for Contributions: European Conference, From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU migration and asylum policies 20 years after the Tampere conclusions?, Odysseus Network, 10 May 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