French-German proposal for Common European Asylum System and returns reduces protection to minimum
A leaked joint policy note prepared by German and French governments strongly affirms the intention to further limit access to protection in Europe by curtailing procedural guarantees in the CEAS. The policy note lays out a plan for a “crisis mechanism”, to operate in times of “mass influx” of refugees.
The policy note lays out ways to overcome current legal obstacles preventing the EU from replicating the EU-Turkey statement, described as a “game changer in the Eastern Mediterranean”, with other non-EU countries. France and Germany therefore propose to remove human rights safeguards for those arriving in the EU, by removing material standards of return and appeal possibilities, amounting to the possibility to remove everyone entering the EU irregularly. They also suggest establishing a mechanism that would allow admissibility decisions to be taken by other Member States’ legal experts in the country “affected by the mass influx.”
While the proposal argues that current safeguards on the safety of non-EU countries are too high, the definition of the “safe third country” concept in the Commission proposal for an Asylum Procedures Regulation, has been highly criticised by ECRE for lowering protection and undermining fundamental refugee law principles.
The note seems to break away from previous opposition on the part of several stakeholders in France towards an approach centred on returns to third countries. Germany had already supported plans for lists of safe countries and stronger cooperation with neighbouring states in a March 2016 note issued together with Italy. At the moment, Germany’s list of safe third countries only includes the countries applying the Dublin system, while France does not apply the “safe third country” concept at all.
For further information:
New detention centres at the external EU borders
Greece is building pre-removal detention facilities on the Aegean islands with the aim of accelerating the implementation of the EU-Turkey statement. These will be separate from the Reception and Identification Centres on the hotspots where newly arrived refugees and migrants are initially detained.
The construction of pre-removal detention centres on the islands marks a shift away from previous efforts of the Greek authorities to transfer people from the hotspots to detention centres on the mainland. Greece currently has six pre-removal centres with a total of 5,215 places in Amygdaleza, Petrou Ralli, Corinth, Paranesti, Xanthi and Orestiada.
According to the EU Coordinator for the implementation of the statement, the pre-removal detention centres on the islands would be a temporary solution to increase the number of returns to Turkey. On Kos, a pre-removal detention centre has been established by a Ministerial Decision entering into force in February 2017 until the end of 2017. The costs of construction of the centre are estimated at €4.5 million. Reference has also been made to pre-removal centres in the remaining hotspots, although an implementing legal instrument has yet to be issued.
The expansion of detention practice to promote returns from EU border countries goes beyond Greece. At the end of 2016, Italy announced the re-opening of four Identification and Expulsion Centres (CIE) not currently operating. The government also requested the CIE in Rome, Torino, Brindisi and Caltanissetta to reserve 90 places each, specifically for Nigerian nationals.
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COURT OF JUSTICE OF THE EU
New Court of Justice of EU ruling increases human rights protection for asylum seekers in Dublin system
A new ruling by the Court of Justice of the European Union (CJEU) increases human rights protection for asylum seekers in the Dublin system. It establishes that a Dublin transfer should be halted if the asylum seeker to be transferred faces an individual risk of inhuman or degrading treatment because of his individual situation. This is notably the case in circumstances where the transfer of an asylum seeker, with a particularly serious mental or physical condition, leads to the applicant’s health significantly deteriorating, the Court says. A Member State should suspend the transfer for as long as the applicant’s health condition does not render him capable of such a transfer.
The case concerned a couple with a new-born child who applied for asylum in Slovenia, whereas Croatia was responsible for their asylum claim according to the criteria under the Dublin Regulation. The mother suffered from depression and periodic suicidal tendencies. While the Court held that the Croatian asylum system is not systematically flawed, the transfer would have presented a serious risk to the woman due to her specific and individual situation. The Court ruled that the individual situation of the woman had to be considered and the transfer had therefore to be halted.
“The ruling in CK and Others is crucial since it establishes that evidence of systemic deficiencies in an EU Member State is not the sole criterion to prevent a Dublin transfer. Instead the CJEU aligns itself with previous case law from the European Court of Human Rights and finds that Member States must assess the risks to the individual, and in light of their specific profile, before transferring that person under Dublin. If the receiving Member State cannot provide for the individual’s specific needs then the transfer must be prevented,” says Amanda Taylor, EDAL Coordinator.
REPORTS & NGO ACTION
AIDA 2016 Update: Austria
The Updated Country Report on Austria documents the rapid evolution of the asylum system in the aftermath of successive legislative reforms and prospective amendments.
Far-reaching changes to the asylum procedure and content of international protection were introduced through the Aliens Law Amendment Act 2016 (FrÄG 2016) entering into force on 1 June 2016. One of those was possibility to introduce exceptional provisions, aiming at preventing access to asylum procedures and sending asylum seekers back to other countries and refusing them entry, once a fixed quota of asylum applications has been admitted for examination on the merits in Austria. A quota for 37,500 applications was introduced for 2016, and is planned to decrease in the following years.
Another element was the notion of “temporary asylum” (Asyl auf Zeit).The previously indefinite right of residence granted with asylum is now issued for the duration of 3 years since June 2016. The right to residence becomes indefinite ex officio, when no cessation proceedings have been commenced within these 3 years. If a report of the asylum authority (BFA) indicates that a substantial change has taken place in the countries, cessation proceedings have to be commenced.
On the other hand, the time limit for the submission of an appeal in the asylum procedure had to be raised following a judgment of the Constitutional Court (VfGH). The appeal period for challenging return decisions is 2 weeks, up from the previous 1-week deadline. For decisions of the BFA which are not accompanied by a return decision, the appeal period is now 4 instead of the previous 2 weeks.
A draft Aliens Law Amendment Act 2017 (FrÄG 2017) entailing further modifications has been submitted to the Parliament in December 2016. The bill specifies that a procedure to withdraw refugee status is started as soon as a refugee is accused of a crime or caught in the act of committing a crime. This withdrawal procedure is planned to be a fast-track procedure, to be completed at the latest within one month from the final judgment in criminal proceedings.
AIDA 2016 Update: Belgium
The updated Country Report on Belgium contains information on recent developments in case law and policy related to asylum procedures, reception conditions, detention of asylum seekers and integration of beneficiaries of international protection.
Belgium not only increased its use of the Dublin Regulation in 2016, but also repeatedly stated its intention to reinstate Dublin transfers to Greece in 2017, a practice halted in 2011 after Belgium was condemned by the European Court of Human Rights for a violation of Article 3 of the European Convention on Human Rights. The State Secretary sees this measure as the “only way for candidate applicants to understand that they may not choose their country of asylum.”
Other developments were Belgium’s expansion of its list of safe countries of origin to include Georgia and Albania, despite a ruling of the Council of State declaring the designation of Albania unlawful and the reduction of reception capacity from 35,697 places in May 2016 to 26,362 places in January 2017.Another development is the increased use of detention on grounds of protection of public order has led to multiple occasions where detention was based on accusations that were later deemed untrue or which the judiciary decided not to prosecute. When courts later reviewed the legality of detention orders, they regularly ruled that they were illegal. On top of this, the State Secretary announced the establishment of closed centres for families close to the 127-Bis Repatriation Centre near the Brussels National Airport, with a view to carrying out returns, even though detaining children is currently prohibited under Belgian legislation. Also, in April 2016 the Aliens Act was amended to restrict the duration of residence permits for beneficiaries of international protection. According to the new provision beneficiaries of international protection no longer receive permanent residence upon recognition, but a temporary right of residence of five years.
“The developments in 2016 clearly show the intent to discourage people from seeking asylum in Belgium as far as possible by lowering protection standards, shortening procedures and increasing the use of detention and Dublin. The government’s intention to detain children, add countries to the safe countries of origin list and apply the barely used cessation clauses more strictly, already offers a view on the future of Belgium’s asylum system,” says Ruben Fierens, AIDA Legal Officer.
GUE/NGL report: High Human Rights costs of EU-Sudanese cooperation on migration control and support of appeal against Italian returns to Sudan in front of ECtHR
Last week, the European United Left/Nordic Green Left European Parliament Group (GUE/NGL) released a report following a monitoring visit to Sudan highlighting the human rights costs of EU-Sudanese cooperation on migration control. Following the visit the delegation also supported the appeal against Italy in front of the European Court of Human Rights (ECtHR) on the repatriation of five Sudanese asylum seekers.
Human rights concerns raised in the report include the EU’s planned provision of equipment to the Sudanese police for migration control and border surveillance and its potential use by other governmental forces. The country’s northern border, one of the borders covered by cooperation with the EU, is currently controlled by the so-called “Rapid Support Forces,” led by former militias who are responsible for mass murder in Darfur. The report also warns about detention and deportation of victims of human trafficking by the Sudanese authorities.
The delegation also facilitated the launch of an appeal before the European Court of Human Rights of five Sudanese who were returned under a Memorandum of Understanding agreed by the heads of the Italian and Sudanese police forces (not ratified by the Italian parliament) in August last year. The five men were part of a group of 48 people returned from the Italian border city Ventimiglia. The claimants argue that their return violates the principle of non-refoulement, safeguards against collective expulsion, and the right to effective remedy enshrined in the European Convention on Human Rights.
Grave human rights abuses in Sudan have been extensively documented and Sudanese asylum seekers are among the nationalities with the top ten recognition rates in the EU.
For further information:
- February 28, Berlin, Book launch : Der Lange Sommer der Migration, Kritnet
- March 6, 2017, Brussels, Car Convoy : Let’s bring them here, Let’sBring them Here
- March 7, 2017, London, Conference : An Unaccompanid Migrant Children’s Court for the UK?, QMU
- March 7,2017, London, Panel Debate: Beyond Borders, London College of Communication
- March 22, 2017, London, Panel Debate : Migrant Deaths at European borders: states’ duties to identify and the rights of families to know, LSE Human Rights
- May 4-5, 2017, Budapest, Conference: Protecting Stateless Persons from Abitrary Detention, European Network on Statelessness
- July 2017, Warsaw, Summer School: Solidarity Beyond Borders, Transsol
- Maynooth University, Postdoctoral Researcher, February 26, 2017
- Association for the Prevention of Torture, Communications Officer, Deadline: March 5, 2017
- SOS Mediteranee, Assistant to the General Director, Deadline: March 6, 2017
- Euromed Rights, Advocacy Internship, Deadline: March 6, 2017
- Refugee Support Network, Mentoring Programme Manager,Deadline: March 7, 2017
- SOS Mediteranee, Fundraiser, Deadline: March 10, 2017
- Migrant Help UK, Chief Executive Officer, Deadline: March 15, 2017