All week alarming news has circulated of the situation at the EU-Turkey border. ECRE called on Europe to stay calm and stay human, using the positive alternatives at its disposal. A Joint Statement from organisations in Greece published below denounces the responses of the Greek government and calls for EU action. Across Europe people mobilised in solidarity with refugees and against heavy-handed and illegal tactics. Civil society is quite united in its expression of immediate concerns, opposition to the long-term strategy and support for the positive alternatives that should be under discussion.
Aspects of the immediate response appear to contravene EU and international law, including the use of violence to prevent people entering at the land and sea borders and the suspension of the right to asylum and summary returns in emergency measures enacted by the Greek government. In addition, there are reports of detention, arrests and even criminal prosecution of people who cross the border. Legal challenges are under exploration.
While the UN Refugee Agency UNHCR has denounced the Greek authorities’ actions, the EU institutions reached a new low by not only showing support for Greece’s actions but even seeking to find a legal basis for it (not yet achieved). The EU reinforced the military approach, with the use of dubious expressions and images, and the deployment of military capabilities via Frontex.
The arrival of people seeking protection should hardly be a surprise – experts have warned for months about the likely consequences of the latest violence in Syria and particularly the events in and around Idlib. The risk of outsourcing protection and relying on Turkey, instead of finding collective European responses and fixing European asylum systems, has never been more obvious. Instead of finding a sustainable alternative to the EU-Turkey deal, which was supposed to be a temporary and exceptional measure (and which ECRE and many others condemned in any case), the EU has spent the last few years not reaching agreement on reforms that were not needed and didn’t address key challenges.
Despite the despicable use of refugees as pawns to extract concessions from Europe, ECRE always notes that Turkey is hosting 3.6 million Syrian refugees (along with over 400,000 refugees and displaced persons of other origins), more than any other country in the world. Wider European solidarity and cooperation with Turkey is necessary, rather than engaging in an inflammatory rhetorical conflict over Twitter. The Fortress Europe approach is putting people at greater risk in Turkey.
The positive alternatives are there, with some European politicians in the European Parliament and in Member States speaking out and promoting them. ECRE argues for European countries to mount a collective emergency response, providing humanitarian assistance, decent reception conditions, and access to asylum for people arriving. This should be via a coalition of the countries willing to work together; there is no need to wait for those unwilling to assist. EASO operations can also be expanded as they are effective when used to increase asylum capacity, for instances at the registration stage.
Emergency legal provisions that allow for a humane collective response are available and should be invoked, including the Temporary Protection Directive, the relevant provisions of the Dublin Regulation, and humanitarian programming. Relocation of people is an essential solidarity measure, as civil society has repeatedly argued, but should happen within EU legal frameworks, and when the countries themselves abide by EU and international law. Suspending transfers back to Greece under the Dublin Regulation would also demonstrate solidarity and free up resources for Greece and other Member States.
All emergency measures taken at EU-level, including through potential invocation of Article 78(3) TFEU, should be based on managing arrivals through sharing responsibility and allowing rapid access to asylum and protection for all people on the move.
Over 12 million people have been displaced by repression and violence in Syria and many more millions have been displaced by other conflicts and persecution. A small percentage of these people arrive in Europe, currently some tens of thousands at the border between Greece and Turkey. It is shameful that European policy-makers from Athens to Brussels refuse to deal with this in a proportionate manner, using the legal and financial measures at their disposal, instead of disregarding the standards they have themselves put in place and treating people inaccurately as a security threat, within an inhumane approach that exacerbates security risks in multiple ways.
For further information:
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
After the failure of the extraordinary European Summit from the 20th of February, the EU still does not have an agreement on the size and components of the next Multiannual Financial Framework (MFF), which is supposed to define the EU budget for the next 7 years (2021-27). The delay has significant implications for the many EU member states that rely on EU resources for complementing the national budget dedicated to the asylum and integration of refugees.
The positions currently on the table are divergent and the departure of one of the main ‘net donors’ of the EU is likely to result in a severe reduction of the budget. ‘A number of net donor’ member states are reluctant to agree to an EU budget above the ceiling of 1% of the overall EU Gross National Income (GNI), compared to the 1,1% proposed by the European Commission in 2018 and the 1,3% proposed by the European Parliament. The current MFF 2014-2020 has a volume of 1,16% of the EU 27.
The last proposals made in the European Council, in December by the then Finnish presidency and in February by the president of the European Council Charles Michel are both around 1,07% of the GNI, too much for the net donors Austria, Denmark, the Netherlands and Sweden, and too little for the ‘Friends of cohesion’, southern and eastern member states calling for a bigger budget to avoid sharp cuts to cohesion policy.
A reduction to 1,07% of EU’s GNI would mean significant cuts in key resources for asylum and migration, with AMIF being reduced from an initial proposal of € 9972 million to € 8705 million and the ESF+, the fund which finances many of the projects for long-term integration of migrants and refugees, lowered from € 89,688 million to € 86,300 million. Also, the allocation for the Integrated Border Management Fund (IBMF) is reduced from the €8,237 million in the Commission’s proposal to € 5,505 million. Dedicated allocations to additional items of expenditures, embedded in the announced Green New Deal, risk provoking an additional decrease of resources in these areas if there is no agreement on an expansion of the budget.
As a new proposal from the Council and a summit to carry on the discussion are yet to be scheduled, the preparation of national programmes on the use of EU funds is severely delayed and the next MFF risk starting with gaps in funding in many programmes.
For further information:
- European Parliament, The EU’s long term budget explained, February 2020
- ECRE et al., Joint Statement, The Asylum and Migration Fund: A tool for more humane, transparent and effective asylum and migration policies in the EU?, February 2019
- ECRE et al., Joint Statement, The Future of the Asylum, Migration and Integration Fund: Our Call for More Humane, Transparent and Effective Resources for Asylum and Migration in the Union, November 2019
- ECRE and UNHCR, The way forward, A Comprehensive Study of the new Proposals for EU funds on Asylum, Migration and Integration, October 2018
- ECRE and PICUM, Promoting socio-economic inclusion of migrants and refugees in the next EU budget (2021 – 2027), February 2019
The updated Country Report on Bulgaria documents developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2019.
The Bulgarian governments draft proposal to amend the Law on Asylum and Refugees (LAR) introduced following the European Commission’s infringement procedure fails to address issues of accommodation and legal representation of unaccompanied minors; the correct identification of and support to vulnerable asylum seekers; the provision of adequate legal assistance; and safeguards for detention.
In 2019, the national border monitoring registered 337 alleged pushback incidents affecting 5,640 individuals. Those who are able to access Bulgaria often transit through and exit the country without being registered by the authorities seeking to avoid any responsibility under the Dublin Regulation or under readmission arrangements. As a result, the official statistics on new arrivals are at the lowest since the first influx in 2013. During most of 2019 and at the time of writing, the national reception centres operated around or below 10% of their capacity.
The recognition rate of asylum applicants remained much lower compared to other European countries, namely 11% for the refugee status and 19% for the subsidiary protection status.
The delays in the release and registration of asylum seekers applying for international protection while in pre-removal detention centres reached 4 days in 2019 and registrations took around 12 calendar days / 10 working days. With an average of 109 days the length of detention in closed reception facilities for applicants awaiting status determination exceeded by far the limits laid down in law. The Migration Directorate within the Ministry of Interior (MOI) continued to refuse to release first-time asylum applicants from pre-removal centres in cases where they are deemed “deportable”, i.e. when they possess valid documents or such documents can be obtained without great obstacles. As a result, the State Agency for Refugees (SAR) continued to conduct asylum procedures in pre-removal centres in violation of national law, and courts continued to ignore such violations.
Although there is no systematic review of protection status in practice, cessation procedures initiated by the SAR when the MOI provides information indicating that status holders have either returned to their country of origin, obtained residence or citizenship in a third country, or have not renewed their Bulgarian identification documents for a period exceeding 3 years. The latter broadened interpretation of the recast Qualification Directive de facto introduces an additional cessation ground in violation of national and EU legislation. The undue cessation of protection status affected a total of 3,378 status holders in 2018 and 2019; i.e. 770 persons in 2018 and 2,608 persons in 2019 respectively. Out of the 2,608 cessations in 2019, 1,981 concerned Syrians, 267 concerned stateless persons, 177 Iraqis, 81 Afghans and 102 other nationalities).
No integration activities are planned, funded or made available to recognised refugees or subsidiary protection holders; thus marking the sixth consecutive year of the national “zero integration” policy.
*This information was first published by AIDA managed by ECRE.
ECRE member Belgrade Centre for Human Rights (BCHR) has released the report ‘Right to Asylum in the Republic of Serbia 2019’ providing a thorough analysis of developments related to asylum procedures, reception conditions and integration in Serbia. While recognising overall improvements BCHR concludes that the Serbian asylum system is not yet fully functional and identifies significant remaining challenges.
According to the report, despite a solid legal framework in place, the lack of effective coordination and systematic solutions from state authorities means that: “legal gaps and inconsistent enforcement of the existing legislation impede the exercise of both the right to asylum and many other refugee rights…”.As a result, refugees and asylum seekers depend to a large extent on NGO assistance.
The practises of competent authorities, the combination of strict deadlines and slow processing, inadequate information and translation, and inability of applicants to launch applications on their own initiative in some cases prevent people wishing to seek protection in Serbia from accessing the asylum procedures.
While there are examples of good practise and thorough examination form the Asylum Office (first instance) the BCHR finds “inconsistent Asylum Office practice in terms of the findings of facts, considering that the first-instance authority does not always assess carefully and fully the evidence in all cases.” Regarding the Asylum Commission (second instance) BCHR points to a general lack of transparency on the grounds of decisions and finds that it rarely enters the merits of the cases but return approved appeals to and rely almost entirely on the Asylum Office in first instance.
Some migrants and refugees are sleeping rough in downtown Belgrade or close to the Croatian or Hungarian border but 80 to 90% are accommodated in sixteen facilities with a capacity of 6000. Basic material conditions are in place for the majority of people but BCHR underlines the need for adequate health care and sanitary conditions as well as the lack of integration potential for inhabitants of remote facilities.
In terms of vulnerable groups BCHR underlines that: “The protection system for unaccompanied and separated children may be assessed as generally inadequate and non-complying with the international instruments ratified by the RS.” Moreover, “perpetrators of SGBV (sexual and gender-based violence) against migrants often stay unsanctioned” as authorities justify lack of action with the fact that those affected are only passing through Serbia.
BCHR establishes the main obstacles to integration as “inconsistent legislation, the fact that the current laws do not envisage the basic ways to achieve long-term integration, such as naturalisation, and the lack of systematic support during integration”.
The Republic of Serbia (RS) remains a country of transit. The UNHCR estimates that RS saw 30,2016 arrivals during 2019. 12,937 registrations of intent to seek asylum, which is the first step of entering the asylum procedures, were recorded in 2019 with only 252 people actually submitting an asylum application. This number of registrations include people using the registration certificate to temporarily regulate their legal status before travelling on.
The report includes a set of recommendations on all identified challenges to relevant authorities.
For further information:
EUROPEAN COURTS AND INTERNATIONAL MECHANISMS
Read the full version of this blog by Stavros Papageorgopoulos, Legal Officer and EDAL Coordinator (ECRE), on the European Database of Asylum Law (EDAL) managed by ECRE.
Two weeks ago, Strasbourg saw the latest jurisprudential addition to its limited body of case law on collective expulsion of aliens. On 13 February 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of N.D. and N.T. v. Spain concerning the expulsion of two third-country nationals who were apprehended after climbing the Melilla fence and were summarily returned to Morocco.
Despite the Third Section’s 2017 finding, the Grand Chamber did not find a violation of Article 4 Protocol 4 (A4P4) to the European Convention on Human Rights (ECHR), prohibiting the collective expulsion of aliens. While the Grand Chamber recognised the expulsion of the applicants to Morocco, it found that the applicants chose to enter Spain as a group, taking advantage of their large numbers and using force. They could have instead chosen to “[…] make use of the existing legal procedures for gaining lawful entry […]”. It was these factors that justified the lack of individualised decisions of their removal taken by the Spanish authorities (231).
The judges seem to follow a highly contextual line that puts individual conduct and border management at the centre of a reasoning that may be seen as too stern – or even punitive – for a human rights court. Indeed, the judgment cannot be read without concerns regarding its repercussions on Europe’s controversial border practices, or on A4P4 litigation, which has been increasingly active over the past decade (Gatta, Migration and the Rule of Law, p. 114). Similarly, its ambiguities may open the doors to perverse interpretations, as noted by the European Centre for Constitutional and Human Rights, and intense criticism, which has been expressed both domestically and internationally. However, an isolated analysis of its text outside the wider body of A4P4 jurisprudence, and the context in which the Court operates in, could lead to conclusions that would better serve media panic and governmental attempts to present the judgment as a justification of non-entrée policies. Likewise, a careful examination of the specific factors that the Grand Chamber considered before reversing the Section’s ruling may be helpful against the disappointment experienced by those who saw the Court as a guardian of rule of law in Europe and border litigation as a strong weapon against the unchecked externalisation of migration. Lastly, the general reform of the Convention system is particularly relevant in the analysis of this judgment’s reasoning, especially as Protocol 15 will soon enter into force, which will elevate the principle of subsidiarity and margin of appreciation to Convention doctrines.
From Čonka to N.D and N.T.: Collective expulsion of aliens in the Court’s history
The travaux préparatoires of Protocol 4 show that the issue of collective expulsion of aliens introduced by Article 4 proved to be an (unsurprisingly) controversial point of negotiation. The initial formation of this Article did not include a prohibition but focused on lawfully residing aliens and the conditions under which they can be expelled. The Committee of Experts rejected the suggested formation and introduced the general and clear prohibition as we know it today and which is in force since 1968. [...]
Athens, 6 March 2020 – The undersigned organisations are deeply concerned about recent developments at the Evros border and the Aegean islands where people are stranded at the borders of Europe, instrumentalized for political purposes, and subject to violations of their rights. We are also deeply concerned about the way the authorities of Greece and the European Union are handling new arrivals. Equally alarming are the extreme actions by security forces against refugees and by civilians against staff of human rights and humanitarian organizations. We would also like to point out that the climate of panic and rhetoric of 'asymmetric threat' –also promoted by the authorities– does not reflect reality and seriously affects not only vulnerable refugees- but also our society and the rule of law as a whole.
REPORTS & NGO ACTIONS
We firmly express our opposition to the recent decisions of the Greek Governmental Council on Foreign Affairs and Defense (KYSEA), and in particular the adoption of the Emergency Legislative Decree, which stipulates the suspension of the right to seek asylum for all people entering the country and their return without registration, to their countries of origin or transit. Applying such a regulatory provision is inhumane and illegal as it violates the fundamental principle of non-refoulement, incurs international responsibilities for Greece and endangers human lives. It is beyond dispute that Greece has the sovereign competence to control its borders and to manage any crossings there. Nevertheless, the right to seek asylum is a fundamental human right enshrined in the Universal Declaration of Human Rights and the EU Charter of Fundamental Rights.
We also denounce the attacks on organizations that defend human rights and humanitarian organizations, noting that without the support of these organizations, the refugee management system in Greece would collapse. In addition, solidarity has been stigmatized and become the target of suspicion, which has been also exacerbated by members of the Government, fomenting violence and lawlessness in society in general. We denounce any statements, actions or policies that foment or tolerate bigotry.
We call upon the Greek Government to:
• Withdraw the illegal and unconstitutional Emergency Legislative Decree and to respect the obligations of the Greek State concerning the protection of human life and rescue at sea and at the land borders.
• Immediately stop returning people to states where their lives and freedom are at risk, or where they are at risk of being subjected to torture or other inhuman or degrading treatment or punishment.
• Immediately alleviate overcrowding on the islands by relocating asylum seekers to the mainland, protecting their well-being and health. Priority should be given to the most vulnerable, unaccompanied minors and families with children.
• Take the necessary measures to protect every person from acts of violence, victimization and racism.
We recall that the EU should assume substantial responsibilities for the protection of people on the move in a manner that demonstrates respect for human dignity and lawfulness and as a matter of shared responsibility among EU member states in the context of managing what is, first and foremost, a European issue. The right to asylum and the respect for the principle of non-refoulement are fundamental elements of international and EU law and therefore the authorities of the European Union must take the necessary measures for their protection.
• The European Commission, as the guardian of the Treaties, should protect the right to asylum as enshrined in EU law. Therefore, it should reverse the “aspida (shield)” rhetoric used by Greece and urge it to assume its legal obligations.
• EU Member States should re-establish immediately the mechanisms for the relocation of refugees and asylum seekers from Greece to other Member States, in a fair and rational manner, with priority given to unaccompanied children. EU Member States should increase resettlement of refugees directly from Turkey.
• EU Member States and institutions should revise the EU-Turkey Statement, which –in addition to legal lacunae– has now proven to be an unpredictable and unsustainable political tool for border management.
In closing, we call on all sides to respect the law and safeguard European democratic values. Any further backsliding will have major consequences on European societies, European democracy and the rule of law.
Report ‘Follow the Money III’ Solidarity: The use of AMIF funds to Incentivise Resettlement and Relocation in the EU
The third ‘Follow the Money’ report maps and assesses the use of financial incentives (lump sums) allocated under the Asylum, Migration and Integration Fund (AMIF) to EU Member States (MS) participating in refugee resettlement and intra-EU relocation. The four case studies, France, Italy Portugal and Slovenia provide a range of national contexts and practices within the role and impact of EU funding is explored. The research draws on the first two ‘Follow the Money’ studies published by ECRE and UNHCR in 2017 and 2018 tracking the use of AMIF for asylum, integration and return.
Member States resettled 76,205 persons during 2014-18, via both EU schemes and national programmes with uneven participation among MS. The study finds that the funding under the lump sum modality, €6,000 per resettled person, increasing to €10,000 when the resettled person falls into one of the categories included under common Union resettlement priorities, is an effective mechanism to provide EU funding. The reduction or removal would most likely lead to reductions in resettlement numbers and/or programmes that offer less support to resettled persons.
Additionally, the AMIF provides funding support to the ‘establishment, development and implementation’ of national resettlement programmes. This funding stream is a flexible resource, supporting a broad range of national resettlement activities. Despite this flexibility, just twelve Member States have made use of it in their AMIF national programmes, allocating very modest amounts of funding relative to other national programme activities.
According to the European Commission, 34,705 persons were relocated by September 2018 , 21.6% of the planned 160,000; Member States reported a total of 37,595 persons relocated during 2014-18. As Member States were allowed to count legal admission (resettlement) under the EU-Turkey Statement against their relocation obligations, 20,574 persons were resettled from Turkey to the EU, and €133.7m of AMIF funding originally allocated for relocation from Greece was ‘cut off’.
€843m was allocated to AMIF national programmes to implement the two relocation decisions by the EC in 2015. To enable continued commitment after the end of 2018, an amendment to AMIF national programmes made it possible to reallocate unspent relocation funds: a minimum of 20% for solidarity measures, and a maximum of 80% for other AMIF actions, excluding detention. This meant Member States that were more successful in fulfilling their relocation commitments had less resources available for reallocation within their AMIF national programmes. Further, the Member States against which infringement proceedings are ongoing for non-compliance with relocation (Hungary, the Czech Republic and Poland) had the possibility to reallocate nearly all EU funding originally allocated. Just eight Member States made new, voluntary relocation commitments, pledging a total of 4345 places.
For further information:
Amnesty international, EUROPE: PUNISHING COMPASSION: SOLIDARITY ON TRIAL IN FORTRESS EUROPE, March 2020
- UNHCR/ECRE, “Follow the Money III” Solidarity: The use of AMIF funds to incentivise resettlement and relocation in the EU, March 2020
- ECRE Policy Note 18, Outspending on Migration, June 2019
- UNHCR/ECRE, “Follow the Money II” Assessing the use of EU Asylum, Migration and Integration Fund (AMIF) funding at the national level 2014-2018 (ENG), January 2019
- UNHCR and ECRE, “The Way Forward” – A reflection paper on the new proposal for EU funds on Asylum, Migration and Integration 2021-2027, October 2018
- UNHCR/ECRE, “Follow the Money” Assessing the use of EU Asylum, Migration and Integration Fund (AMIF) funding at the national level, January 2018
Refugee International, Seeking Asylum in Greece: Women and unaccompanied children struggle to survive, February 2020
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.
#FairLassen …: For independent legal assistance in the asylum process. Against isolation. The Austrian legal reform of May 2019 jeopardises dignified asylum procedures in line with European law. We demand the provision of independent legal assistance, dignified reception conditions and integration instead of isolation for people seeking protection in Austria.
- January-March 2020, Oxford: RSC Public Seminar Series, Feminism, Categorisation And Forced Migration, Refugee Studies Centre
- February-March 2020, Ghent: Lecture Series: Bordering Europe. The securitization of Europe’s migration and development policies, University of Ghent
- February-April 2020: London: 10th International Refugee Law Seminar Series, Refugee Law Initiative
- 18 March 2020: ReSOMA webinar: Drivers of public opinion and 7 recommendations to communicate on migration, 10-11am CET
- 7-8 May 2020: Alicante, European Network on Statelessness Conference Addressing Statelessness in Europe: Closing Protection Gaps and Realising Everyone’s Right to a Nationality, University of Alicante
- 7-8 July 2020, Brighton: SOGICA final conference, University of Sussex
CALLS FOR PAPERS & OPEN CALLS