Asylum law Hana Lupačová Overview of presentation 1.International protection 2.Refugee Status 1.Definition of a refugee 2.Rights of refugees 3.Other forms of complementary protection 4.Dublin system 5.Reception Conditions 6.Asylum procedure 7.Case study International Protection •International protection: European Union: •Has the form of refugee status OR subsidiary protection - some persons are excluded from international protection •Council of Europe: (not the same as EU!) outside the international protection framework •Protects foreigners against expulsion/extradition etc. – Article 3 ECHR (prohibition of torture – In case there is real risk of torture or ill-treatment – there is absolute protection against such return) – no one is excluded (even terrorists!) •1. REFUGEE STATUS Why people flee their country •Wars •Persecution •Natural disasters •Environmental crises •Poverty •To find better work • •These reasons do not overlap with whom we consider as REFUGEES! How international refugee law emerged •Late 19th-20th century: masses of people were deprived of their citizenship collectively, by laws. They lost the protection of their country of origin de iure (by laws); e. g. USSR, Armenians in Turkey •1930s – citizens of some countries (Germany, Austria) deprived of the benefits provided by their citizenship. They lost the protection of their state de facto (e. g. Jews in Austria, Germany…) – they were covered by a number of refugee agreements (covering individual nationality cases) You can read more: https://www.jstor.org/stable/2195710?seq=1 (refugees in Russia as a result of October revolution) The refugee agreements in point two were later all covered within the Geneva Convention (see below). After WW2… •Refugee Status Convention (1951) started being discussed: –It covered the refugees under the preceding conventions –The concept of a refugee was based in events in Europe (or elsewhere) (geographical limitation) before 1951 (temporal limitation) (Article 1.A.1) •1967 Protocol to the Convention erased „in events in Europe / or elsewhere“ an „before 1951“ for most countries – only very few countries retain it. •E.g. Turkey retains geographical limitation (refugees only from Europe) As regards Turkey, see e. g. https://www.unhcr.org/474ac8e60.pdf Current protection under Geneva Convention •people without „de facto“ protection of their country •reasons of persecution: more focus on civil and political rather than economic and social rights James Hathaway explains this in Rights of Refugees in International Law; the dividing line between the two categories of rights was the Western and Eastern parts of the world in the aftermath of the WW2. During the travaux preparatoires, the Eastern countries asked for refugee status based on lack of economic and social rights, rather than political, reliegious and other civil rights. However, „western“ view on the human rights prevailed. Definition of a refugee •INDIVIDUAL ASSESSMENT! •Outside his country •Well-founded fear of persecution •Owing to reasons of race, nationality, religion, political opinion and membership of a particular social group •Is unable or, owing to such fear, unwilling to avail himself of the protection of that country •Deserves protection (no: crime against humanity, war crime, genocide; serious non-political crime outside country of asylum; act contrary to principles of UN) •In need of protection (so-called cessation (i.e. until protection ceases to be necessary)) The definition of a refugee can be found in Article 1 of the Geneva Convention – see here: https://www.unhcr.org/3b66c2aa10 - this is a brief outline only. Explanation of the definition from the point of view of UN Hight commissioner of Refugees (a body entrusted with interpretation of the convention) is here: https://www.unhcr.org/4d93528a9.pdf (UNHCR Handbook) Case one •Ahmed is running away from war with his wife and children. His house was bombed, he lost place to live, hospitals in his town have ceased to function and there is no future in his country. He hopes to find better place to live. Violence is so spread in the streets that he or his family could be targetted anytime. There is no really safe place in his country. •Do you think Ahmed is a refugee under Refugee Convention? Case two •June is a lesbian. In her country same-sex relations are punishable by law, if detected she could end up in prison. Her father does not know and has already found husband for her, which was the reason she decided to leave the country. •Do you think June is a refugee under Refugee Convention? • Case three •Alfred is a journalist who was critical of the government. In his country freedom of speech is being suppressed by the government, many activists and journalists end up imprisoned. Therefore he has found a place in his country, hidden from the rest of the world close to borders, where he is awaiting the elections which could change the situation. Meanwhile he is also organizing for a falsified passport to leave the country. •Do you think Alfred is a refugee under Refugee Convention? Forward-looking •„The Convention looks to the future. What has happened in the past does not determine whether a person is a refugee…. In determining whether that person has a well-founded fear that he or she will be persecuted if returned to the country of nationality, the past is a guide – a very important guide – as to what may happen. But that is all.“ •S152(2003) v. MIMA, 2004 HCA 18 •(Australian Court) • I am using reference to case-law of courts worldwide, as there is NO only supranational court that would take decisions in refugee matters. Rather what happens is that national courts worldwide create a body of jurisprudence to interprete the convention. Dialogue between courts is not unusal in this field of law. Persecution • • • • • • •„As we have held, that none of the threats against the petitioner have yet been carried out does not render his fear unreasonable… what matters is whether the group making the threat has the will and ability to carry it out.“ •Marcos v. Attorney General, 2005 US App Lexis 10698 •(US court) • Explanation: When assessing persecution, one must look at whether the acts that a person fears are sufficiently harsh (what is the nature of those acts). We evaluate which human rights are at risk. If they are rights which must not be breached in any circumstances (right to life, prohibition of torture, of slavery etc. – so called non-derogable rights), even slightest violation of those rights can be considered persecution. But with other human rights, e.g. where proportionality is tested, there needs to be a cumulative effect of violation of those rights to consider it as persecution. E. g.: a person is afraid of torture in prison = persecution (non-derogable right at stake); whereas a person is afraid she will not be admitted to university (right to education, not a non-derogable right – will generally not be enough to be considered as persecution).. Yet another example: a person cannot go to work, doctors, to schools, her children cannot study etc. – cumulative effect starts to be as harsh as if a non-derogable right was violated – and this would constitute persecution. Protection Protection: This is intended to evaluate whether a country of origin is WILLING AND ABLE TO provide PROTECTION against persecution. It is one of cumulative signs of definition of refugee. Under EU law either home state can provide protection or also some organisations controlling state (typically UN missions in some failed states) – it has to be state-like organization controlling part of the state. The state has to be both willing and also able to provide such protection (see next slide what „ability to protect“ means). E. g. A victim has turned to police with complaint against threats of torture, and the police did not accept it – willingness to provide protection is at stake (then you go on to see whether this is typical for that state, such as in cases of domestic violence, where in some countries policemen refer victims of such violence to their family.) Protection •If there is a sufficiency of protection available to them in that state, then there should be no obligation on another state to afford a surrogate protection. (...) •There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. •Horvath v. SSHD, UK House of Lords, 6 July 2000, [2000] UKHL 37 •Now: Article 9 Qualifications Directive The old case from UK concerned protection of Slovak Roma in Slovakia. The UK courts decided not to grant refugee status to Mr Horvath (a Roma), since there was machinery in place in Slovakia to detect hate crimes etc. This case was however criticized by some authors, e. g. James Hathaway. The case´s definition of how effective protection looks was taken over into EU refugee legislation. Why sufficiency of protection is examined: if a person can obtain protection at home, there is no need for him/her to travel abroad to obtain it. Internal Protection Part of the protection criterion: If a safe part of the country is available at home, a person should not leave the country and search protection abroad. Reasons •In order to be a refugee –Persecution or –Lack of protection –Has to be connected with one of the reasons: -Political opinion -Race -Nationality -Religion -Membership to a particular social group –(it can be either real or „attributed“) Examples: The police have tortured me because I am a Roma (persecution is connected with race/nationality reason). Or: In a country where domestic violence is widespread a woman who faced violence from her husband came to police. The police told her, this was a family matter they would not solve. I.e.:the state is not willing to provide protection for reason of membership to a particular social group (in this case women). More about individual reasons can be found in UNHCR Handbook (see above) or in Qualifications Directive (in the interactive sylabus). Real or Attributed reason: „attributed“ means that the actor of persecution considers a refugee to be of a certain political opinion / religion etc., although in fact this is not the case. Even attributed membership to one of these groups causing persecution is acceptable to become a refugee. E.g.: Local people think I am gay. Men have hit me and I am discriminated all around. Police think I am gay and do not provide me protection. In fact I am not gay, but still I can become refugee if I face danger as an alleged gay. I Sum-up •Outside his country •Well-founded fear of persecution •Owing to reasons of race, nationality, religion, political opinion and membership of a particular social group •Is unable or, owing to such fear, unwilling to avail himself of the protection of that country •Deserves and still is in need of such protection (does not deserve: e.g. crimes against humanity, war crimes, serious non-political crimes etc.) –ALL CRITERIA HAVE TO BE MET! Sometimes people fear real danger of a terrible situation, e. g. they will be murdered because of their debt by mafia. These cases are however not necessarily refugees, although they may have well-founded fear of persecution and sometimes the state is unable or unwilling to help them. The borderline here is whether such persecution is based on PERSECUTORY REASONS, i. e. on their religion, nationality etc. This also distinguishes people running away from war (from the dangers each war brings, violence…) who are not necesssarily REFUGEES under Geneva Convention. They may be REFUGEES, if war is based on violence between groups of different religion, nationality, etc., but if they „only“ run away from violence, they do not meet the refugee definition. However, these people are not necessarily without protection. In Europe they may receive status of a beneficiary of subsidiary protection or temporary protection. The latter was so far never triggered on EU level, whereas subsidiary protection is often used for war victims (see below). • • Famous refugees.. Current protection under Geneva Convention: rights of a refugee –Admission without punishment (No prosecution for illegal entry) -coming directly from territory where their life or freedom is under threat -they access the authorities without undue delay and -good cause for their illegal entry or presence –(see Article 31 Geneva Convention) –Non-refoulement (No return to a country where freedom/life at danger) -Whatever form of return -Also „chain refoulement“ -Exceptions to non-refoulement: danger for society -Not limited to asylum-seekers! (every refugee, not only those who applied for a refugee status) –(Article 33 Geneva Convention) Admission without punishment: in general it is considered that refugees often have to leave their states quickly without their documents and evidence. Therefore, if they come directly from the state where they face persecution, report without delay and have good reason for illegal entry, they should not be „punished“ for it. „Good cause“ – frequently this is interpreted as being refugee. Since during asylum procedure it is being examined whether they are indeed refugees, asylum-seekers should also benefit from this provision. This means e. g. that they should not be criminally prosecuted for using forged documents while they are asylum-seekers. Non-refoulement – the main right refugees have is not to be returned to a country where they would face persecution. This is in whatever form (expulsion, extradition, return from the border, readmission etc.) Chain refoulement is also prohibited: this means if I return a refugee not to his country of origin but to a third country which will then expel him/her home.. This is also prohibited and the first state bears responsibility for that. This has to be examined in all procedures which lead to return of foreigners home. Current protection under Geneva Convention: rights of a refugee • •Other rights -some to the same extent as other foreigners (e. g. acquisition of property) -some to the extent as nationals (protection of industrial property…) • Current protection under Geneva Convention • •not covered by refugee definition •People fleeing for environmental reasons •People fleeing from war (see above – if „reasons“ are not fulfilled at the same time) •Internally displaced persons – •2. SUBSIDIARY PROTECTION Complementary Forms of Protection •Some people are technically not refugees but with a valid need of protection •Article 3 Convention against Torture, Article 7 International Covenant on Civil and Political Rights (ICCPR) •Article 3 European Convention on Human Rights (ECHR): non-refoulement: real risk of torture, inhuman or degrading treatment or punishment - absolute protection •Codified forms of complementary protection, e. g.: –temporary protection (temporarily restricted for a group of persons, not individually assessed) –‘subsidiary protection’ in the EU –‘withholding of removal’ and CAT-based protection in the US; ‘persons in need of protection’ in Canada; Cartagena Protocol (extending refugee status) In 1990s the Czech Republic used temporary protection for refugees from former Yugoslavia who were running from the war. It was on a national basis. In the past years it was being discussed whether temporary protection should not be used for refugees from Syria, however it was never triggerred. As regards Article 3 ECHR (or Article 3 CAT, Article 7 ICCPR) protection: a state is responsible for breach of prohibition of torture not only when it is committed by its own agents; but also if it expels a person abroad to another state which might torture or ill-treat that person. This is known as exterritorial effect of Article 3 ECHR. Not many other provisions have such exterritorial effects (Article 2 does – right to life, Article 6 may have – right to a fair trial, in case gross denial of fair trial is at stake). Subsidiary protection •Real risk of serious harm: –Imposing or executing death sentence –Torture, inhuman or degrading treatment or punishment –Serious threat of life or dignity in situations of indiscriminate violence – in international / internal armed conflict (see case one, slide 10) •Exclusion clauses (i. e. also this protection has to be deserved) •3. PROHIBITION TO RETURN (ARTICLE 3 ECHR) Outside EU law but applicable in Council of Europe •Prohibition to expel a person to a country where he or she would face torture, inhuman or degrading treatment or punishment (Article 3 ECHR) or death penalty (Article 2 ECHR) •Absolute protection – applies even to people who do not deserve international protection •Not necessarily residence permit, but tolerated status • Absolute protection: prohibition of torture is such an extremely necessary human right that it may never be derogated (even in cases of war etc.). We call such human rights NON-DEROGABLE. Therefore it also applies to people who are criminals or terrorists. European Court of human rights has therefore held on many ocassions that even terrorists cannot be returned to a country where there is a real risk they would be tortured. For example in a famous case Saadi v. Italy. You can read a short outline of this case here: https://www.asylumlawdatabase.eu/en/content/ecthr-%E2%80%93-saadi-v-italy-application-no-3720106-28 -february-2008. Quote from the judgment: „137. The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence (see Chahal, cited above, § 79, and Shamayev and Others, cited above, § 335). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3. 138. Accordingly, the Court cannot accept the argument of the United Kingdom Government, supported by the respondent Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (see paragraphs 120 and 122 above). Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the SAADI v. ITALY JUDGMENT 33 consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80 and paragraph 63 above). Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (see paragraph 64 above). 139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of “risk” and “dangerousness” in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. (…)“ This does not entitle to such foreigners any residence rights, only the right not to be expelled. Often tolerated status offers only this advantage. •4. THE EU ASYLUM LAW (INLCUDING DUBLIN) Fortress Europe •EU countries = safe countries of origin (EU nationals cannot lodge asylum applications in EU) and safe third countries •The Dublin system: Principle of solidarity and fair-sharing (also financially) EU is considered safe for all EU nationals. However, quite lately Hungary and Poland face procedures in front of the EU because rule of law is at threat there: https://www.europarl.europa.eu/news/en/press-room/20200109IPR69907/rule-of-law-in-poland-and-hungar y-has-worsened Therefore their nationals may newly apply for international protection in other EU countries. Asylum law in the EU •Originally an economic community, asylum and migration matters (3rd pillar) •1999 Amsterdam Treaty: asylum policy moved to 1st pillar –goal : Common European Asylum System (CEAS) –full and inclusive interpretation of the 1951 Refugee Convention „pillars“ in EU law used to distinguish procedures that were used to adopt legal instruments and also whether such instruments were binding on states or were only „soft law“ (stg. like recommendation). In 3rd pillar – in asylum and migration law – only soft law instruments were being adopted before 1999 – they were called „resolutions“. Only from the moment this field of law became part of first pillar, its instruments are binding: directives and regulations are being used. Regulation applies directly, whereas directives used to provide for (in asylum and migration law) minimum standards to be applied by all states.. The CEAS was meant to regulate a) definition of refugee status and subsidiary protection; b) rights of beneficiaries of international protection; c) procedures; e) reception conditions (i. e. access to housing, health care, material conditions of asylum-seekers etc.) and f) distribution of asylum-seekers in EU (the Dublin procedures). Only the last one – the Dublin procedures – are regulated by regulation and apply directly.. The remaining parts provided for minimum standards and still differ partly between individual EU states. EU law today: Common European Asylum System •Common criteria for refugee status and subsidiary protection and rights of refugees and people with subsidiary protection BUT not a uniform status yet •Common standards for asylum procedures BUT not centralized asylum authorities •Common standards for reception conditions BUT many exceptions – hence, many divergences •Common standards for temporary protection BUT so far not used on EU level How the Dublin System Works •EU countries - safe third countries •Mutual trust of the EU countries •prevention from asylum forum-shopping and refugee-in-orbit •the country where the asylum-seeker has close family ties OR the country “responsible” for the entry of the foreigner - responsible to decide asylum claim •Exceptions: humanitarian considerations; systemic deficiencies •2008-2014: more than 2,5 million of applications in EU; 4%: Dublin cases; 34% of transfers took place, mostly country of first application – How the system works: an asylum seeker applies for refugee status in Greece. Greece finds out that he had a visa issued by Bulgaria --- Bulgaria is responsible.. Or it finds out the asylum seeker has a parent in Germany: Germany is responsible. Or: none of those: Greece is responsible. The criteria are set forth by Dublin Regulation and one after another applies, all in turn. The whole EU has a system called EURODAC – where fingerprints of all foreigners are retained and where it is possible to verify whether someone has ever applied for international protection elsewhere. This should prevent asylum forum-shopping (someone applies first in Greece, then in Austria, then in the Czech Republic etc. with full procedures) but also refugees in orbit (people coming from one state to another and being denied access to procedures everywhere). However, the system is very costly, and many argue the criteria are not very fair to border countries like Greece or Italy. How the Dublin System Works otisky.png Image result for eurodac dublin Asylum Procedures •Application •Interview •Country of origin information •Right to legal aid and information •Decision •Right to effective remedy •Some specific decisions: –Third safe countries –Safe countries of origin –Subsequent applications The asylum procedure The asylum procedure Failed asylum-seekers •Return Directive •Detention possible under EU law for the purpose of their return • •Exceptions: Article 3 cases (torture, inhuman or degrading treatment); however, possibility to obtain a residence permit very limited Reception conditions •Minimum standards •Right to remain in the country after application for international protection •Material reception conditions: Housing, food OR financial allowance •Health care •Detention of asylum-seekers: specific grounds (identity; risk of absconding and necessary for application, to decide on the right to enter, to prepare return, national security / public order, under Dublin Regulation) and proportionality tested; maximum time-limit Your statistics: Country No. Of applic./Year Success rate Countries of origin Japan 19,629/ 2017 7,586/ 2015 1% Philipines, Vietnam, Sri Lanka, Indonesia, Nepal Sri Lanka 436/ 2017 Pakistan, Afghanistan, Yemen, Syria Serbia 5,702/ 2017 (2,200 children!) Afghanistan, Pakistan, Iran, Iraq Syria Portugal 1,750 36% DRC, Angola, Gambia, Senegal, China, Guinea, Sierra Leone Finland 4,548/ 2018 5,059/ 2017 (a lot of subseq. appls.) 32,000/ 2015 43% Iraq, Russia, Somalia France 122,743/ 2018 85,244/ 2016 Sudan, Syria, Kosovo, 41% from Africa There are statistics from last year – provided by students 2017: 650,000 persons applied (46% of them granted intern. Protection) •Rise of applications for international protection: EU (28) – and drop in 2017 – 650 000: •2014 2015 2016 •626 960 1 322 825 1 259 955 •Germany: 476 510 745 155 •Hungary: 177 135 29 430 •Greece: 13 205 51 110 •Italy: 83 540 122 960 •Czech Rep: 1 515 1 475 2016-2017 compared Number of applications (Czech Rep) Number of applications (Hungary) Number of applications (Slovakia) Number of applications (Poland) 2015 – how „migration crisis“ impacted the Czech Republic •Asylum-seekers arriving from the Balkan peninsula – across Hungary – not registered in other countries •A lot of Afghan, Syrian, Iraqi foreigners arriving on their way to Germany crossing the Czech Republic by train •When discovered by the police, detained in Czech detention centres – situation deteriorated quickly: no legal aid, bad reception conditions •Hungary requested to take responsibility under the Dublin III regulation – but no transfers realized – i. e. people detained for maximum length and then released See e. g. This video on reception conditions in a detention facility in 2015: https://www.youtube.com/watch?v=qI2ZeUO051w You can also read about the situation here: http://www.romea.cz/en/news/czech/czech-public-defender-of-rights-says-human-rights-are-being-viola ted-at-the-bela-jezova-detention-facility Number of applications (Czech Republic) You can note that in 2000 and 2001 there was sharp increase. This was with the adoption of the new Act on Residence of Foreigners which was for the first time aligned with EU law (but Czech Republic was not yet member of EU) – so many foreigners suddenly lost right to remain here legally, that they applied for asylum in turn to be able to stay. From this moment it is thought that asylum system is being „abused“ by illegal migrants.. Unfortunately, this label still retains in some courts. Another number of interest is in 2008: the Czech Republic then entered into Schengen area, and the number dropped, because it no longer had any external borders on land, only on airports. Since then the numbers have been around 1 000 applicants/per year. The newest statistics below and above in slide 44 https://www.euroskop.cz/8427/sekce/the-czech-republic-in-the-schengen-area Number of applications (Czech Republic) •2016: 1447 •2017: 1450 •2018: 1702 •2019: 1922