ECRE publishes recommendations on how to transpose the EU’s recast Asylum Procedures Directive
ECRE has published an Information Note on the EU’s recast Asylum Procedures Directive providing a detailed analysis of the key provisions in the Directive and recommendations on how to transpose and implement those provisions. ECRE strongly encourages Member States to take full advantage of the Directive’s provision to introduce or retain ‘more favourable standards on procedures for granting and withdrawing international protection’, thus ensuring compliance with obligations under international human rights law, the EU Charter of Fundamental Rights and the case-law of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU(CJEU).
According to ECRE, the recast Asylum Procedures Directive, adopted in June 2013 represents, in many aspects, an important improvement with regard to procedural guarantees for asylum seekers. ECRE welcomes the progress made on a number of topics. For example, the new directive sets out that Member States may only omit a personal interview in the asylum process under limited circumstances. This represents a positive step towards guaranteeing a fairer asylum procedure. According to the recast directive, Member States also have an obligation to ensure that staff examining asylum claims in the refugee determination process are properly trained. The right of asylum seekers to challenge adverse decisions before the law is also strengthened in the new directive, which states explicitly that time limits on applications to challenge decisions must be of a reasonable length and not make the challenge impossible or excessively difficult.
However, ECRE’s information note also explores some of the disappointing aspects of the Directive, including the overall complexity of the document. ECRE feels that little progress has been made with regard to the previous directive on the subject of safe third country concepts. The Directive allows EU states to establish a list of countries which are considered generally ‘safe’. This creates the presumption that applications for asylum may not be based on a well-founded fear of persecution and are therefore unlikely to be successful. In ECRE’s view, the application of a safe country of origin concept distracts from the true purpose of the asylum procedure, which is the individual examination of the protection needs of the asylum seeker. Although the directive now clearly defines the grounds on which the examination of asylum claims may be accelerated, ECRE is concerned that a number of the grounds listed are open to wide interpretation and are not directly linked to the substance of the asylum application.
The recast Directive allows for considerable flexibility for Member States in the interpretation and application of a number of its key provisions. Articles related to the protection of unaccompanied children are also overly complex. ECRE therefore urges Member States, among other things, to prioritise the examination of unaccompanied children’s asylum claims and not to make use of the possibility in the directive to use accelerated or border procedures, which could jeopardise unaccompanied children’s effective access to a fair asylum procedure.
Member States bound by the Directive are required to bring into force compliant domestic legislation by 21 July 2015 for the majority of the Directive. Some provisions relating to the time limits for concluding an examination procedure at first instance must be transposed by 20 July 2018. The Directive sets out the principle that the examination of an asylum application must be concluded within 6 months from the time of lodging. However, Member States may extend this time limit for another 9 months or even 12 months. Three EU countries, Denmark, Ireland and the United Kingdom are not bound by the recast Directive.
New tactics of smuggling refugees on cargo ships from Turkey and abandoning them at sea endangering lives
On 31 December 2014, the Italian authorities rescued 736 Syrian refugees, including 60 children, who were travelling on the Moldovan-flagged cargo ship Blue Sky M. The ship had sailed from Turkey and was, according to media reports, abandoned by the crew and left on autopilot on a collision course with the Italian coast. A few days later, on 2 January 2015, the Ezadeen, a Sierra Leonean-flagged cargo ship, carrying 359 Syrian refugees and also abandoned by its crew, was adrift 25 miles off south-east Italy and was then towed to southern Italy by an Icelandic vessel part of the Frontex Triton mission. Italian authorities are investigating reports that the smugglers abandoned the ship after locking it on automatic pilot.
UNHCR: Over five million people flee their homes in first half of 2014
An estimated 5.5 million people became newly displaced during the first six months of 2014, according to a new report by UNHCR. 1.4 million of them fled across international borders. UNHCR calculates that there are now 46.3 million persons globally which are being helped by the UN agency - 3.4 million more than at the end of 2013.
UNHCR, IOM and Frontex have expressed their concern about this new ‘ghost ship’ strategy. These cases show that smugglers are now using old, unsafe and quite large cargo ships which, according to survivors’ accounts, are then abandoned by their crews. The ships set sail from Mersin in Turkey, which according to Frontex, is a “departure point still connected by ferry to the Syrian port of Latakia, making it reachable for the tens of thousands of Syrians still fleeing the conflict in their country.” According to Frontex, the engines of the old ships are often unreliable and the danger of the journey is increased by the smugglers switching off the ship’s Automatic Identification System to make the boat electronically invisible to the search and rescue authorities in order to buy time for the crew to escape and avoid arrest.
According to Frontex, a place on such a freighter from Turkey costs at least three times the price of a ticket on the usual sea route from Libya. The survivors of the Blue Sky M told IOM staff that they paid between USD 4,000 and 6,000 to travel from Turkey to Italy. “Travelling this way not only circumvents the considerable danger of capsizing in a small boat in rough seas: it also avoids having to go to Libya. The departure point of choice for facilitator networks in 2014, this increasingly lawless North African nation appears to have become too dangerous an operating environment even for the criminal gangs. Libya’s neighbours, furthermore, have beefed up their border security to contain the spread of Islamic extremists, which has made it much harder for migrants trying to enter by land”, Frontex notes.
Vincent Cochetel, Director of UNHCR Europe Bureau, stated: "the use of larger cargo ships is a new trend, but it is part of an ongoing and worrying situation that can no longer be ignored by European governments. We need urgent European concerted action in the Mediterranean Sea, increasing efforts to rescue people at sea and stepping up efforts to provide legal alternatives to dangerous voyages. Without safer ways for refugees to find safety in Europe, we won't be able to reduce the multiple risks and dangers posed by these movements at sea.”
According to Frontex, approximately 11,400 people have been rescued in 77 separate search and rescue operations since the launch of the Triton Operation, on 1 November 2014. The EU Border Agency has warned that Operation Triton, with two aircrafts, a helicopter, two open sea patrol vessels, and four coastal vessels at its disposal “cannot be expected to handle the migrant challenge alone”. According to Frontex, Triton operation has “a fleet appropriate to its mandate, which is to control the EU’s borders, not to police 2.5million square kilometres of the Mediterranean. Triton’s budget, at €2.9m a month, is one third of what Italy were spending on Operation Mare Nostrum. That said, saving lives is always a priority for Frontex.”
For further information:
- IOM, IOM Staff in Italy Report on “Ghost Ship” Trend, Meet with Rescued Migrants, 6 January 2015
- UNHCR, Statement by Vincent Cochetel, UNHCR Europe Bureau Director, on new boat arrival in Italy, 2 January 2015
- Frontex, Operation Triton – Winter Developments
- European Commission, Statement by Commissioner Dimitris Avramopoulos on the smuggling of migrants in cargo ships, 2 January 2015
- BBC, Abandoned migrant ship Ezadeen reaches Italy, 7 January 2015
- Deutsche Welle, 'Crocodile tears won't help Syrian refugees', 4 January 2015
- Al-Jazeera, New dangerous tactics of migrant smugglers, 2 January 2015
- Al-Jazeera, Abandoned migrant ship arrives in Italy, 3 January 2015
- Vice News, Italy Rescues Another Abandoned Migrant Ship, Suggesting a Change in Smuggling Tactics, 2 January 2015
- Malta Today, Migrant smugglers have started to use larger ships, Frontex warns, 2 January 2015
UK Court of Appeal: Detention pending an asylum appeal in Detained Fast Track system unlawful
In a new ruling on the UK’s Detained Fast Track system, the UK Court of Appeal has found that the Secretary of State’s policy of detaining asylum seekers who are not at risk of absconding whilst their appeals are pending is unlawful. In addition, the Court found that if it had been necessary to decide on the general legality of detention during appeal under this system, it would have ruled that the current policy of detaining asylum seekers during their appeals cannot be said to be justified.
In response to arguments brought before the court by the NGO Detention Action relating to the nature and legality of the policy, the Court found that whilst there is a current policy to detain pending an appeal and where a decision can be made quickly, the way this is presented in the Detained Fast Track Guidance is not clear and lacks transparency. In light of the Court’s finding as to the lack of clarity in the guidelines, the Court subsequently held that it was not necessary to further explore whether the policy is justified with regards to UK domestic law. Nevertheless, in the Court’s opinion, detaining an applicant pending their appeal where a quick decision can be made is not justified and unlawful under the circumstances. The Court submits that detention in the appeal stage would only be lawful if all reasonable alternatives to detention are considered before detention is authorised and that there are strong grounds for believing that a person will not comply with the conditions of release.
In July last year, the UK's Detained Fast Track system was ruled unlawful because asylum seekers detained under this procedure are not provided with legal assistance quickly enough, leaving insufficient time, often less than 24 hours, to prepare for the substantive asylum interview.
For further information:
The report highlights that the more than 3 million Syrian refugees are now the largest refugee population under UNHCR's mandate, accounting for 23% of all refugees assisted by UNHCR. The UN Agency UNRWA provides assistance to around 5 million Palestinian refugees in the Middle East.
During the first half of 2014, neighbouring countries continued to host the large majority of Syrian refugees. This includes Lebanon, hosting 1.1 registered refugees in June 2014, Turkey (798,000), Jordan (645,600), Iraq (220,400), and Egypt (138,100). During the first half of 2014, the Syrian refugee population grew by more than half a million persons in these five countries.
After Syrians, the 2.7 million Afghan refugees are the second largest refugee population under UNHCR mandate, followed by refugees from Somalia (1.1 million), Sudan (670,000), South Sudan (509,000), the Democratic Republic of the Congo (493,000), Myanmar (480,000) and Iraq (426,000).
Pakistan, which hosted 1.6 million Afghan refugees, remained the country hosting the most refugees in absolute terms.
COURT OF JUSTICE OF THE EUROPEAN UNION
CJEU: Returns Directive bans removal of seriously ill people to places where treatment is not provided
Two judgments relating to international protection for ill persons confirm that these cases cannot fall under EU asylum law, but their return can be prevented by the Returns Directive.
In the first case, which involves a Mauritian national, M’Bodj, who had been granted a residence permit under Belgian national law for medical reasons, the Court has held that a person suffering from a serious illness, which is not the result of an intentional deprivation of health care in his/her country of origin, is not entitled to refugee status or subsidiary protection status under the Qualification Directive. According to the Court, this is because international protection in the Directive does not include a person’s deteriorating health even if the country of origin lacks adequate medical treatment to treat them. Therefore, the social and healthcare benefits listed in the Qualification Directive will also not apply to medical cases. The applicant can, however, refer to the European Convention of Human Rights and inhumane treatment as well as statuses under national law, i.e. humanitarian status in order to seek the right to remain.
In the second case, however, whilst the Court repeats the finding in M,Bodj, it goes further and analyses the scope of the Returns Directive for medical cases. The Court considers that Article 19(2) of the Charter on Fundamental Rights of the European Union, which bans return where the applicant would face inhumane treatment, coupled with Article 5 of the Returns Directive, which requires Member States to take account of the state of health of the applicant and respect the principle of non-refoulement, prevents Member States from returning a seriously ill individual to a country where there is a serious risk of grave and irreversible deterioration to their state of health. In these cases, the Court rules that an appeal challenging a return decision must have suspensive effect, which is otherwise optional for Member States in the Returns Directive, and that during this time emergency health care and essential treatment of illness must be provided.
For further information:
Lebanon further restricts Syrian refugees’ access to its territory
New restrictions to Syrian nationals’ access to Lebanon took effect on 5 January, requiring Syrians to obtain a visa in order to enter the country. Syrians can apply for visas under the categories of tourism, work and business visits, student, medical treatment, transit, short stays, and special relations to the country. Syrian visa applicants are generally required to provide proof of purpose for the visit in accordance with the category of the application, which can include e.g. tickets for further travel, confirmation of an appointment with a foreign embassy or a medical professional, hotel booking and/or up to USD 1000 in cash. Passports or other valid IDs are required for all visa categories except that of special relations to the country, which requires a Lebanese national taking responsibility for the Syrian visitor.
Advisor to the Minister of the Interior, Khalil Jebara, told AFP that Lebanon will continue to provide humanitarian exceptions despite the restrictions. UNHCR spokesman for Lebanon, Ron Redmond, expressed his concern however that no formal exceptions have been provided, and no framework for such exceptions introduced. BBC reported that the Syrian-Lebanese border areas were “almost empty” the day after the restrictions took effect.
Last year Lebanon introduced a number of measures to limit the flow of Syrians to the country, which had in October 2014 resulted in 88% decrease in the registration of refugees compared to the 2013 monthly average.
UNHCR and NGOs have repeatedly implored the international community to provide adequate assistance to Syria’s neighbouring countries, which are hosting the overwhelming majority of Syria’s refugees.
Over 1.1 million Syrian refugees are registered in Lebanon, which previously had only four million inhabitants. The Lebanese authorities estimate the actual number of Syrian refugees in Lebanon to be approximately 1.6 million.
For further information:
Gabriele Del Grande, On the Bride’s Side: “It is possible to disobey; it is possible to stay human”
Brussels, 8 January 2015. Civil disobedience, solidarity and wittiness. The mix has prompted over 70,000 people to watch ‘On the Bride’s Side’ screened in 117 Italian cities, and now starting its international journey to Amsterdam, Brussels, Dubai, Amman and beyond.
Who would stop a bride and her wedding party to check their documents? That is the starting point of this upbeat road movie – the true story of a fake wedding that got five Syrian and Palestinian undocumented refugees and their Italian friends from Milan to Stockholm.
Ana Fontal and Letizia Polizzi of the ECRE Weekly Bulletin have spoken with Gabriele Del Grande, one of the directors of the film. In October 2013, Gabriele and his friends Khaled Soliman Al Nassiry and Tareq Al Jabr met Abdallah Sallam at Porta Garibaldi Station in Milan. Abdallah, one of the survivors of the Lampedusa shipwreck, was trying to get a train to Sweden and would become the groom on the Bride’s Side.
Is a Europe where people can move freely possible?
It is already happening. Some of my friends are refugees who have an Italian residence permit but work in Germany, France or Sweden. As they are not allowed to have a job contract in these countries, they work on the black market, without rights, and come back to Italy every two years to renew their residency permit and then they go back to Berlin, Paris, etc to work. When they arrive in Europe, asylum seekers receive some support from the state, but later on they have to find a job and therefore they go where there is work. You moved to Belgium from Spain. If it works for you, why shouldn’t it work if you are a refugee? I believe in freedom of movement, we all go where the jobs are.
Freedom of movement is already happening and society is ready to accept it. It’s the politicians who do not accept this reality. They live in a world that is old. They are making laws according to their ideology not with pragmatism. However, the same EU that is funding Frontex has also opened the borders to Eastern Europe. Half of the migrants living in Italy come from Poland, Albania and Romania. Albania is not part of the EU but they no longer need a visa to enter the EU. It’s not possible to control the movement of people, sooner or later one has to accept this reality.
“Freedom of movement is already happening and society is ready to accept it. It’s the politicians who do not accept this reality.”
You drove across several EU countries with five undocumented Syrian and Palestinian refugees fleeing the war in Syria. How did you manage?
We crossed five borders on the way from Italy to Sweden and there were no controls. If you are undocumented, you have problems, you can’t work legally. If I drive someone who is undocumented, I can be arrested. I risk 15 years of jail but nobody is checking the car at the border. There is a border regime but there is no border control.
This system divides society in citizens of first and second class. The law makes you fear that if you help these people you are going to have problems. If you host them at home or drive them, you are doing something wrong. If I met you, I would never ask you if you have a residency permit. However, if your skin was black maybe I would wonder. Why? Our laws change the way we look at people. It is a process of criminalisation. This is also the point of the film: we disobeyed a law because we don’t believe that laws are neutral. The laws are the product of society. You cannot simply say ‘you have to respect the law,’ the law is not something perfect, holy. Law is the product of criminalisation and decriminalisation made by the society. In Italy, for example, a few decades ago, abortion and divorce were illegal but over time this changed. After 50 years of criminalisation of migrants, we need a process of decriminalisation. And this is the cultural operation of the movie: disobey a law and create a campaign to decriminalise migrants.
We wanted to break a taboo, to say that it is possible to disobey, that it is possible to stay human. People are ready, this society, our generation is ready. It is the generation of Erasmus and migration. How many Italians, Greeks and other Europeans have started again in another country? It’s a normal experience for us. We grew up in cosmopolitan cities, it is normal to meet people from all around the world. I believe that our generation is ready to say that travelling is not a crime, and that mobility is nice, it’s good, it’s possible. Why should I enjoy mobility while you die at sea?
“Why should I enjoy mobility while you die at sea?”
The film is an act of civil disobedience. What risks have you taken in assisting the refugees?
We risked being arrested during the journey. Now the film is public, any attorney could start an investigation. So far, we don’t know of any legal action against us. We hope nothing will happen, but maybe when we come back to Italy, there is a letter from the tribunal. In the worst case scenario, we would be facing a trial and we have some lawyers ready and happy to defend us. We would make it a trial not against three people but against thousands of people, we have more than 2,000 crowd-funders. There would be the court full of brides. If that doesn’t work, we could always apply for asylum in Mexico or Brazil (laughing).
In the film, Alaa and Abdallah speak about their experience crossing the Mediterranean and being rescued. How do you see things evolving regarding search and rescue in the Mediterranean?
Mare Nostrum is not over; it is a transitional period. The authorities say that Mare Nostrum is going to be closed but that meanwhile they are going to train Frontex. The message for the media is that the operation is over but some weeks ago, they rescued more than 500 people very far from the Italian coast.
Frontex says that they will not work beyond 30 kilometres of the coast but if there is an SOS call, they are obliged to rescue the people. The problem is that it will take longer for them to get to the boat in distress and after six hours everybody is dead. Now there is no ‘traffic’ but from spring, when the weather improves, more people will start crossing again because the wars in Syria and Libya continue and people have no other ways to come. If Europe was interested in solutions, if they really wanted to stop deaths at sea, they should simplify the requirements to get a visa. People arriving in Lampedusa come from the countries where it is the most difficult to get a visa. You don’t find South Americans or Eastern Europeans [on these boats]. No, you find Africans, Arabs. If you would let these people get a visa through embassies, you wouldn’t need Mare Nostrum or Frontex.
What does it mean for you to be on the bride’s side and how did you come to be on that side?
At some point in life one has to decide on which side to be, especially when witnessing tragedies such as the war in Syria and the death of thousands at sea. We invite the public to take part, not to be indifferent.
It is not about helping someone and feeling that you have nothing to blame yourself for. It is dangerous to stop being critical just because we are on the side of the victims; that is a process of victimisation. Here the mechanism should be different, you have to be critical, ask yourself why this person, the same as you, is coming by boat rather than by plane. Why are we spending money to rescue them after closing the doors of the embassies? One can never forget the origin of the problem concerning mobility. In order to do that we need to open our minds, travel all around the Mediterranean, see the beauty there. If we fear the other, we will accept this kind of laws.
“We invite the public to take part, not to be indifferent.”