No. 6

December 2000









Policy developments

United Nations 2

Council of Europe 8

New ECRE Papers 10

Publications 10

Country Developments 10


Legal developments

Council of Europe 13

Country Developments 18

Special on Chechens 31

Child Refugees 32

Books and Articles 33

Seminars and Conferences 34


Central & Eastern Europe developments

Eastern Europe project summary 36



General Developments

ECRE web-site up-dat 37




List of Annexes 38

No. 6

December 2000









Policy developments


UNHCR global consultations

As mentioned in the last documentation service, the UNHCR Department of International Protection has initiated a series of global consultations on the meaning and content of the international protection of refugees. Three different circles are being created, the first examining the core principles of the Refugee Convention, the second questioning and guiding the interpretation of the Convention (e.g. membership of a particular social group), and the third circle examining areas not covered by the Refugee Convention, such as protection in times of mass influx.

On 24 November, UNHCR provided information from its organizational meeting on the Global Consultations on International Protection, detailing the topics and proposed working plan for the second and third circles.

Second circle

The first roundtable will meet in April 2001 and topics covered will be cessation (article 1C) and exclusion (article 1F). The second roundtable will be July 2001 and will cover the principle of non-refoulement (article 33). The third roundtable will be September 2001, and topics covered will be membership of a particular social group (article 1A(2)), gender-related persecution (article 1A(2)) and family unity (final act of the 1951 UN Conference). Finally, the fourth roundtable is planned for November 2001 where topics covered will include supervisory responsibility (article 35) and illegal entry (article 31).

Third circle

Proposed work programme in the context of the executive committee framework

The first theme will be ‘Protection of Refugees in Mass Influx Situations’, subdivided into practical concerns, the overall protection framework, and mechanisms of international cooperation to share responsibilities/burdens in mass influx situations.

The second theme will be ‘Protection of Refugees in the Context of Individual Asylum systems’, subdivided into migration control and refugee protection, asylum processes and strengthening protection capacity in host countries.

Finally, the third theme will be ‘The Search for Protection-Based Solutions’, subdivided into voluntary repatriation, local integration and resettlement. For other information on the global consultations process see

UNHCR criticises EU

UNHCR has sharply criticised the EU for not providing sufficient financial or political support to alleviate the escalating refugee crisis. Since 1995, the EU budget to UNCHR has been reduced from Euro 233 million to Euro 37 million. Meanwhile, the number of refugees in the world has increased from 15 million in 1990 to 22 million today.

These statistics came from the Deputy High Commissioner for Refugees, Soren Jessen-Petersen, when he was addressing a joint meeting between the European Parliament Committees on Justice and Home Affairs, Foreign Affairs and Development on 4 December to mark the 50th Anniversary of UNHCR. He said that Europe’s tradition of openness to victims of conflicts is being tested, and government responses are less and less based on humanitarian concerns. He criticised the EU Member States’ piecemeal approach to asylum and their policy of re-enforcing external borders and clamping down on human trafficking. He said that ‘Border controls do not distinguish between legitimate asylum-seekers and economic migrants. Member States are trying to address asylum problems through a migratory window’.

The Community was the second largest donor to UNHCR for a number of years but has now fallen to sixth place. Defending the fall in EU funding, Jean-Louis De Brouwer, Head of Unit for Asylum in the European Commission’s DG for Justice and Home Affairs, pointed out that some of the money has been shifted to the Community’s humanitarian office, ECHO.

MEPs present also shared UNHCR’s concern that Member States appear unwilling to recognise the overlap between asylum and immigration issues. Among their comments were that the plan to create a list of ‘safe countries of origin’ amounted to sweeping the asylum issue away from our doorstep, that the focus should be on refugee integration rather than repatriation and that UNHCR should give priority to refugee protection and not refugee assistance, which is the role of ECHO.

UNHCR 50th anniversary celebrations

The UNHCR launched its celebrations in commemoration of the 50th anniversary of the adoption of the Statute of the UN High Commissioner for Refugees on 14 December. For more information see:




UNMIK calls to stop return of refugees to Kosovo

The UN Interim Administration Mission in Kosovo (UNMIK) has called on countries to suspend the forced repatriation of Kosovo refugees during the winter in its Policy Paper on the Repatriation of Kosovo Albanians published in October. It points out that the large number of returned refugees has already exhausted possibilities of temporary accommodation, and urges that in particular those refugees without guaranteed accommodation should not be returned. This year alone, upwards of 82 000 persons were returned in organised repatriation movements by the end of September. Although the vast majority returned voluntarily rather than face expulsion, more than 9000 have been forcibly returned.

UNMIK recommends a strategy of phased and coordinated returns to begin next spring in order to take account of three main concerns: ensuring adequate accommodation for all returnees, avoiding the return of members of vulnerable groups for whom assistance is currently unavailable, and eschewing any precipitate actions that might trigger an undesirable and unmanageable mass influx of returnees, which would subsequently overload Kosovo’s social assistance network and public services. To achieve this, UNMIK urges optimal information-sharing regarding the number and profile of returnees and greater investment by returning countries to ensure smooth reintegration. UNMIK is of the view that forced return of individuals at risk, such as members of ethnic minorities, ‘potentially violates Article 33 of the 1951 Convention’ and Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Belgian government has in fact suspended the repatriation of Kosovars for the winter. On October 12, the UN Administrator in Kosovo, Bernard Kouchner, thanked Belgium for taking this step but requested that Germany and Switzerland also abstain from further returns after November. Departures of Kosovar refugees from Bavaria, Germany, were still occurring as of November 20.

On the 2 November, however, the Swedish government agreed to suspend expulsions for the winter. This decision came after two days of intensive public advocacy on the part of the Swedish Red Cross, despite initial plans to remove over one thousand Kosovan refugees.

UN General Assembly: Convention against Transnational Organised Crime

On 15 November 2000, the United Nations General Assembly adopted the United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air. These are intended to provide a framework for international cooperation against organized crime, with an emphasis on victim protection. Measures include criminalisation of traffickers and smugglers with appropriate penalties, protection of victims in receiving countries, and information sharing between countries on trafficking methods. Increased border restrictions and the implementation of carrier sanctions are also recommended, and there has been concern that such measures will not only prevent traffickers and smugglers but may also discriminate against those wishing to claim asylum. However, savings clauses have been added to the protocols stating the obligations and responsibilities of States and individuals under international law, including ‘where appropriate’ the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

The protocols were open for signature at the high-level political signing conference in Palermo, Italy, from 12 to 15 December. States and regional economic organizations were urged to ratify the UN Convention against Transnational Organized Crime and associated protocols as soon as possible. Details of the Convention and copies of the documents are available at


57th session of the UN Committee on the Elimination of Racial Discrimination

On August 15 and 16 of this year, the UN Committee on the Elimination of Racial Discrimination held a thematic discussion concerning racial discrimination against Roma. The meeting, which is the first in the Committee’s 30-year long history focusing on a theme rather than an individual government, resulted in the adoption of the first ever general recommendation dedicated to a specific ethnic group. Michael E Sherifis, Chairman of the Committee, said that it had emerged during a number of reports that the Roma people were discriminated against in many countries. Recommendations have included an emphasis to bring an end to racial discrimination by all appropriate means including legislation, and to change governmental policies in the fields of housing, education, employment, healthcare, and social protection for Roma people. The Committee also requested that intergovernmental organisations address, in their projects of cooperation and assistance to different States parties, the situation of Roma communities and that they favour their economic, social and cultural advancement. It also recommended that the High Commissioner for Human Rights consider establishing a focal point for Roma issues within the Office of the High Commissioner, and that the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance give due consideration to the above recommendations, taking into account the place of the Roma communities ‘among those most disadvantaged and most subject to discrimination in the contemporary world’. The Committee has requested urgent action by European Governments to bring their legislation and practice into compliance with international law.

A final version of CERD recommendations is forthcoming. ‘Racial Discrimination and Violence against Roma in Europe’, submitted by the European Roma Rights Center for consideration at the above meeting, is available at or on request from ERRC. Also available is ‘European Roma Rights Center Country Report Campland: Racial Segregation of Roma in Italy, 3 November 2000.



On 20 November 2000, the Committee on Economic, Social and Cultural Rights concluded its consideration of a second periodic report (document E/1990/6/Add.18) on how Belgium is implementing the provisions of the International Covenant on Economic, Social and Cultural Rights.

An Expert said that material supplies for asylum-seekers at reception centres affect their human dignity (ECRE’s emphasis). In the past, cash money has been provided for asylum seekers, but its replacement by material assistance such as food and clothing is not comprehensible. The Expert also asked about the situation of social housing in Belgium.

The Belgian delegation said that the Government had decided to introduce material aid to asylum-seekers because of their growing numbers. In October, the Prime Minister told Parliament that it is the only way to combat criminality in human trafficking. The decision to do so is the Government's and is not based on any legislation.

An Expert recalled that in 1995, the Committee on the Rights of the Child had expressed concern that while unaccompanied minor asylum-seekers, (ECRE’s emphasis) whose requests are rejected can stay in the country, at the age of 18 they lose their rights, including medical treatment. The Expert asked whether there had been an improvement in the situation during the last five years. The delegation said that the question concerning child rights of unaccompanied asylum-seekers was alarming. There has been a decision for such children to be lodged in federal centres but no further details are available.



On 15 November 2000, the Committee on Economic, Social and Cultural Rights started its consideration of a fourth periodic report of Finland by hearing a Government delegation. Since 1995, the rate of unemployment had steadily declined among all foreigners, Ms. Kaivosoja, Counsellor of Government at the Ministry of Education of Finland, said. She added that the current rate of unemployment is 34 per cent and that refugees suffer the most from long-term unemployment. However, she went on to state that the new Constitution emphasizes the rights and equal treatment of all persons residing lawfully in Finland. Also, the act on integration of immigrants and reception of asylum-seekers (ECRE’s emphasis) requires that a special integration plan be drawn up for new immigrants in cooperation with employment office and local authorities. The Committee will offer its concluding observations and recommendations on the report of Finland at the end of its session on 1 December.

Concerning placement of asylum-seekers at reception centres, the delegation said that the measure to disperse asylum-seekers throughout the country is to facilitate their integration. At present, there are 18 such reception centres run by the State, municipalities, the Finnish Red Cross and by a Swedish-speaking welfare society. Many of the asylum-seekers are placed in a centre near the point of their arrival, and not all centres are located in the rural areas. The delegation added that the measure to place asylum seekers in different municipalities is to their advantage in finding jobs and housing facilities.

Administrative detention of asylum-seekers is applied only to those who are involved in criminal activities, the delegation said. In order to facilitate the task of security of such groups of people under detention, the Government intends to regroup them in Helsinki in a new centre under the guardianship of civil officers instead of the police.


On 14 November 2000, the Committee on Economic, Social and Cultural Rights started its consideration of a third periodic report on how Portugal is implementing the provisions of the International Covenant on Economic, Social and Cultural Rights. In the discussion, a question was raised on the treatment of asylum seekers (ECRE’s emphasis) who had been subjected to discrimination, to which the delegation said that since 1998, a change has been introduced into the refugee law. The law reaffirms the rights of persons to asylum in the event of persecution in their countries of origin. Further, the law offers temporary settlement in Portugal in cases in which individuals are affected by armed conflicts. The process of asylum requests could take up to 60 days after which negative responses by immigration authorities can be appealed to the supreme court.


On 20 October 2000, the Human Rights Committee started its consideration of a fourth periodic report on how Denmark is implementing the provisions of the International Covenant on Civil and Political Rights. During the discussion, the government delegate said that the amendments to the aliens act relating to the residence of foreigners and to family reunification were made to ensure better integration.

The delegation said that the introduction of fingerprinting (ECRE’s emphasis) for asylum seekers is to avoid abuse and for rapid identification of the individual. One of the purposes of the Aliens Act is to protect persons at risk of persecution in accordance with the Convention relating to the Status of Refugees. In order to combat continuing abuses in the Danish asylum system and ensure the protection of legitimate asylum-seekers, amendments were introduced to the Act in 1995 and 1997 allowing for the taking, registration and comparison of fingerprints and photos for asylum-seekers. Through their more rapid and safe identification, the procedures are intended to reduce the risk of error in assessing applications and to cooperate with the immigration services of other States. They represent very limited interference in the privacy of the persons concerned and are carried out only when necessary. Fingerprints can only be taken by the police and such matters are decided on a case-by-case basis. The persons concerned are always informed in writing beforehand of the purpose of and procedures involved in the exercise, the services of an interpreter being provided as necessary. Such decisions can be appealed to the Ministry of the Interior. Fingerprints can be stored for no longer than 10 years, and only police and immigration officers have access to the fingerprints register.

Refugees who are allowed to stay in the country are provided with housing and other facilities. Although some municipalities have refused to provide houses to refugees, the Government has taken additional measures to allocate housing facilities. The Danish delegation said that the overall objective of the Integration Act is to ensure the speediest possible integration of aliens into Danish society, under the most favourable conditions. Before the Act's entry into force, the Danish Refugee Council, which had been responsible for housing refugees, had encountered difficulties owing to the fact that housing had been provided on a voluntary basis and some municipalities had simply refused to accommodate refugees. The housing policy applies to refugees only, since it is presumed that immigrants come to Denmark for family reunification and therefore already have somewhere to live.

Each year accommodation needs to be found for around 3,000 refugees. Under the Integration Act, municipalities must find a permanent dwelling for the refugees within a period of three months, which they usually manage to achieve, with a significant improvement on the previous situation. Since all regions share responsibility for hosting refugees, they are dispersed throughout the country. However, in the opinion of the delegation this does run counter to the aims of the Integration Act, namely to cater for the individual needs of refugees in terms of health, education and employment. Housing is allocated on the basis of an agreed quota system and, following the granting of refugee status, the municipality in which the refugee will reside is selected. Such a decision takes into account factors including the particular wishes of the refugee, his linguistic and cultural background, family ties or possible contacts with refugees of the same nationality, education and qualifications, employment opportunities and special needs.

An expert Committee member was of the view that the use of DNA testing in respect of claims to family reunification (ECRE’s emphasis) was biased for the reason that those who refused to accept such testing would be refused to enter the country. The Danish delegate said that DNA testing for aliens in connection with family reunification is only carried out when no other means of establishing family ties is available (i.e. documentation) and with the consent of the parties concerned. It is therefore fully in keeping with the provisions of article 17 of the Covenant. Following a positive DNA testing, the authorities can issue a residence permit to the incoming member of the family.

The delegation added that relocation of refugees to municipalities (ECRE’s emphasis) does not hamper their right to freedom of movement (ECRE’s emphasis), but moving from one municipality to another might entail a loss of the allowance that was provided by the former municipality. For a question of convenience, refugees have to live in the municipalities to which they are assigned. The Danish delegation said that there is nothing in the Integration Act prohibiting aliens from freely choosing their place of residence. However, since in accordance with the Act, aliens take part in an introduction programme that links them to a given municipality, they must seek the approval of that municipality in order to move to another one. Persons who move without the prior approval of their municipality run the risk of having their introduction programme allowance reduced or stopped. Although such provisions in some circumstances restrict aliens' freedom of movement, the delegation considered them justifiable and consistent with article 12 of the Covenant.

The principle of non-refoulement (ECRE’s emphasis) is respected except in cases that have no grounds for such a measure, the delegation said. In the event of refoulement, the police are charged to execute the measure and ensure that the individual leaves the country. Asylum seekers who have been subjected to torture or other cruel treatment are not susceptible to refoulement. Also, attention is paid in cases of expulsion not to send a person to his country of origin or where he or she risked torture. Concluding observations on the report of Denmark will be transmitted to the Government at the end of the session. See also Summary record of the 1876th meeting: Denmark. 27/10/2000. CCPR/C/SR.1876. (Summary Record) at www.


Summary record of the first part of the 1848th meeting: Ireland. 19/07/2000. CCPR/C/SR.1848. (Summary Record)

Concerning immigration and asylum-seekers, the Irish delegate said that while economic motives often underlay abuse of the asylum-seeking procedure, it is wrong to say that Ireland has no system of immigration. No EU national requires a work permit to come to work in Ireland, and in 1999 6,000 persons from outside the Union were granted permits. In the current year, a further 6,000 have been granted permits. He emphasized that genuine asylum-seekers have the right to refugee status regardless of whether or not they possess work skills or qualifications. He added that economic migrants who pose as asylum-seekers are doing a disservice to those seeking to enter Ireland legally by wasting the time of the immigration service.

The issue of the dispersal of asylum-seekers was raised. Although Ireland has enjoyed economic growth of 11 per cent in recent times, Dublin, which is usually the first port of call for asylum-seekers, has an acute housing shortage, and accommodation is at a premium. Since there are no large, purpose-built reception centres, the Government has taken steps to find accommodation in hotels and guest houses in other parts of Ireland. It is true that the result has been a "dispersal" of asylum-seekers geographically, but the adoption of a laissez-faire approach leading to the ghettoization of certain areas of large cities is not regarded as being in the best interests of harmony. The Government's aim is to ensure that every community in Ireland receives a certain number of asylum-seekers, so that social and attitudinal problems do not develop in any particular location.

The question of the Illegal Immigrants (Trafficking) Bill is now being scrutinized by the Supreme Court. Under article 6 of the Constitution, a bill passed by both Houses of Parliament will go to the President for signature. If the President has any doubts as to its constitutionality, she can refer it to the Supreme Court for adjudication, and she has recently done so in respect of two provisions of the Bill in question. The first concerns the limitation of the right to judicial review of persons whose deportation has been ordered, and the second concerns the right of the police to detain persons subject to a deportation order if there is reason to believe they might try to evade that order. The Supreme Court must decide on issues referred to it within 60 days. This is another example of how the Constitution works in defence of human rights by providing for a process of adjudication before, rather than after a bill becomes law.



Final Concluding Observations on FINLAND, 6 October 2000 on Unaccompanied Child Asylum Seekers

The Committee acknowledged Finland's significant efforts to respect the principle of the best interests of the child, but was concerned that municipal authorities in particular do not take these into consideration and, further, that the best interests of unaccompanied child asylum seekers or refugees are not always a primary consideration.

The Committee recommended, among other things, that the State party ensure adequate resources for the training of the officials who receive refugee children, in particular on child interview techniques, and that every effort is made to identify children who require special support upon arrival in Finland to seek asylum. While appreciating the review of the legislation and other measures undertaken by the State party to improve protection of children from sexual exploitation, the Committee urged that adequate measures be undertaken to combat that phenomenon and to pursue international cooperation for the investigation and the prosecution of sexual abuse and exploitation of children by Finnish citizens abroad. (See also legal developments section on Children Refugees)



On 26 September 2000, Sarah Ludford, Spokeswoman on Justice and Home Affairs for the European Liberal Democratic Group in the European Parliament announced that the Committee on Citizen’s Rights and Freedoms, Justice and Home Affairs had decided to draw up a report on the Goldstein case (Goldstein v Sweden (Application No. 46636/99), 12 September 2000, Decision as to Admissibility) See Legal Developments section of this documentation service, European Court of Human Rights, for more details. Ludford, appointed rapporteur on this case, pointed out that it raised important issues relevant to the current development of a common EU asylum policy and touched on issues such as "manifestly unfounded" applications, the concept of "safe third country and persecution at hands of non-state agents. Moreover, the case presents the "opportunity to re-examine the pertinence of the current Treaty protocol — the so called "Basque" protocol — whereby generally no citizen of another EU member State will be granted asylum in another Member State".


Report To The Norwegian Government On The Visit To
Norway Carried Out By The European Committee For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment (CPT) From 13 To 23 September 1999 (Ref.: CPT/Inf (2000) 15 [En] - Publication Date: 9 October 2000). Available at

Detention in the Snarøya Aliens Detention Centre

The CPT's delegation carried out a follow-up visit to the Snarøya Aliens Detention Centre, which is located in the immediate vicinity of the former international airport at Fornebu.  Since the opening of the new international airport at Gardermoen in October 1998, the Centre has only been used for short-term custody (i.e. from one or two days, to a maximum of two weeks). Most of the individuals held at the Centre are asylum seekers whose applications have been rejected, and who are due to be expelled from Norway


Material conditions of detention (ECRE’s emphasis) at the Centre remain of a high standard (cf. paragraph 47 of document CPT/Inf (94) 11), and the delegation was pleased to note that - in line with the Committee's 1994 recommendation - an information booklet explaining the Centre's rules in a variety of languages had been produced and was being distributed to detained persons. The delegation was impressed by the personal qualities of the employees of the private security company who staff the Centre; however, it was surprised to learn that they had received no specialised training for this task (ECRE’s emphasis).


The CPT places a premium upon the supervisory staff in centres for immigration detainees - such as Snarøya - being carefully selected, adequately supervised and appropriately trained. As well as possessing well-developed qualities in the field of interpersonal communication, the staff concerned should be familiarised with the different cultures of the detainees and at least some of them should have relevant language skills.  Further, they should be taught to recognise possible symptoms of stress reactions displayed by detained persons (whether post-traumatic or induced by socio-cultural changes) and to take appropriate action. The CPT recommends that such training be introduced for all staff working in centres for immigration detainees in Norway (ECRE’s emphasis).


The CPT has also been informed that a new detention centre for immigration detainees is to be constructed near Gardermoen International Airport, and that a working group has been established, under the auspices of the Ministry of Justice and the Police, to determine "the detention centre's location, structure, and organisation and the training and educational needs of the centre's employees" (Letter of 6 December 1999 from the Norwegian authorities). In this respect, the CPT trusts that the requirements set out in its 7th General Report will be fully taken into account in the design of this new facility; it would like to be informed, in due course, of the conclusions of the above-mentioned working group."

Response of the Norwegian government

In its response (available at the Norwegian Government said:

"Since the visit of the CPT, Norway has assessed the possibility of introducing training activities for the staff at the Snarøya Aliens Detention Centre. The alien detention centre at Snarøya is to be closed down during the autumn of 2000, and it has therefore been decided not to introduce such measures before the establishment of a permanent centre near Gardermoen. There will be a temporary detention centre at Gardermoen until the completion of the permanent centre during 2002. The agreement with the private security company will also be extended until the centre is permanently established.

When staff are recruited for the new permanent centre, language skills, cultural understanding and psycho-social competence will be considered important qualifications. It is also proposed to initiate training programmes, and to employ someone to be responsible for activities for children.

Even though the personnel from the current security company have no specialised training, the company gives new guards general training when they are hired. Staff are also required to possess adequate skills in English or other relevant languages. In addition, the staff at the Snarøya Alien Detention Centre consists mainly of experienced guards.

At the temporary centre, we will as far as possible start the implementation of new measures such as training programmes and facilities for children, since most of the personnel and equipment will be transferred to the permanent centre." 

Follow-up report of the Finnish Government in response to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Finland from 7 to 17 June 1998

(Ref.: CPT/Inf (2000) 17 [EN] - Publication Date: 7 September 2000)

"Reply to paragraphs 10, 19 and 22 (p. 3 of the interim report): The term of the working group considering the detention of people on the basis of the Aliens Act has been extended to 31 December 2000. In addition, its commission has been expanded. In this stage of the work it looks obvious that the placing of detainees in particular facilities requires more extensive amendments to the Aliens Act than expected when the working group was appointed. The group is inter alia to draft special provisions on the treatment of people detained pursuant to the Aliens Act.



ECRE produced a comments paper in November on ‘the French Presidency proposals for a Council Directive defining, and Framework Decision on preventing, the facilitation of unauthorised entry, movement and residence’. This is available at


‘Deciding to detain: how decisions to detain asylum seekers are made at ports of entry’ Leanne Weber and Loraine Gelsthorpe, Institute of Criminology, University of Cambridge

This study provides a detailed and critical overview of how decisions are made at ports of entry to detain asylum seekers for a night or more, based on interviews with immigration officers at ports and airports in the UK during 1999. Informal observations were also made at these locations, and further information was obtained from legal representatives on asylum cases. Certain fundamental questions arise from this study about the purposes for which immigration detention should be used, the specific circumstances which justify detention for these purposes, and the proportionality of detaining on arrival to prevent absconding. The authors propose that resolution of these questions could be advanced by an exchange of views involving legal practitioners, researchers, front-line decision makers, refugee supporters and policy makers, taking into account the findings of this research and points raised by the UNHCR, and ECRE regarding the compatibility of detention practices with international law, and the range of different contexts in which detention is used. (Taken from summary of a report by Leanne Weber & Loraine Gelsthorpe, Institute of Criminology, University of Cambridge, June 2000). Details available at

Almirall L, Lawton E. Asylum in Ireland: a report on the fairness and sustainability of asylum determinations at the first instance. Irish Refugee Council: Dublin, 2000. See for details.

Fanning B et al. Asylum seekers and the right to work in Ireland. Irish Refugee Council: Dublin, 2000. See for details.

Faughnan P et al. Lives on hold: seeking asylum in Ireland, Social Research Centre: Dublin.

UNHCR officially launched ‘The State of the World’s Refugees: Fifty Years of Humanitarian Action’ on 13 November, published by Oxford University Press. This is also available at ‘’



Detention of minors

On 6 October, the Minister of the Interior, Ernst Strasser, announced that he had issued a decree to improve the conditions of detention of minors. Under the terms of the decree, minors are entitled to the assistance of a guardian competent in legal matters concerning foreigners. This representative will have to be informed within twelve hours of the detention of a minor, and the Aliens Police are obliged to inform the child about his/her right to legal assistance. The individuals should be given the benefit of the doubt if an X-ray does not prove to be conclusive in determining their age.


End to cash benefits

A plan to end cash benefits and call on the private sector to provide accommodation facilities for asylum seekers was approved by the Council of Ministers on 25 October. The Commissioner General for Refugees and Stateless Persons, Luc De Smet, has welcomed this decision, saying that offering full board and lodgings to asylum-seekers ought to have been done a long time ago. In his view, the stopping of cash payments constitutes ‘a very clear signal to those who try to become encrusted in Belgium in order to obtain welfare benefits’. Belgium is in fact the last remaining EU member state where the system of relatively generous social welfare benefits granted to its citizens and legally residing foreigners is still available to asylum seekers.

Plans for ‘white list’

The Belgian government has intentions to compile and introduce a list of ‘safe’ countries of origin from which asylum seekers either will not be recognised or will be introduced to accelerated procedures.

Visa requirements for Slovak nationals

As from 5 September 2000, Slovak nationals will again require entry visas to enter Belgium. This measure was introduced to stem the flow of Slovak asylum seekers, essentially of Romany origin. Reacting to the decision of Brussels, the Slovak Ministry of Foreign Affaires affirmed that it took note of this movement with regret. ‘We are making efforts for an open Europe. The decision of the Belgian Government implies a step backwards’, said Jan Figel, Deputy Minister of Foreign Affairs.


Detention centres

After an intensive debate towards the end of September, the governing coalition of Denmark has agreed to set-up a special centre for asylum-seekers involved in criminality. This decision is despite a previous proposal from Karen Jespersen, Minister of the Interior from the Social Democratic party, to send asylum seekers to a deserted island.


Asylum seekers’ right to work

Governing coalition parties have reached a compromise over the question of allowing asylum seekers to work. German and EU nationals will retain priority in the labour market and the waiting period before an asylum-seeker can take up employment will be twelve months. However, this will not be applied to civil war refugees and foreigners granted leave to remain for humanitarian reasons. Access to the labour market will also be easier for those asylum-seekers who have undergone a traumatic experience. The new regulation on the right to work for asylum seekers is expected to enable about one hundred thousand to enter the labour market. Under the terms of a decree issued in June 1997, a de facto employment ban was in force for asylum seekers who arrived in Germany after 15 May 1997, but since then, a number of courts on social issues have declared the de facto unemployment ban to be unlawful (See Migration News Sheet, June 2000). Previously, asylum seekers have had to wait three months before being allowed to enter the labour market.





Implementation of The Refugee Act 1996

The Refugee Act 1996 was fully implemented on 20 November 2000. For the first time this places the procedures that determine asylum claims on a statutory footing and incorporates the 1951 Geneva Convention Relating to the Status of Refugees into Irish law. However, the Act also enables the State to take fingerprints of all asylum seekers over the age of 14, and if they refuse and are over the age of 18 they may be detained. Refusal can also lead to applications being placed into a fast-tracked determination procedure. Asylum seekers may also be detained under the Act for successive periods of ten days for offences such as being in possession of false documents.

The Irish Refugee Council has called for the early establishment of the Refugee Advisory Board and appointment to the Board of persons who represent the interest of refugees and asylum seekers and who have a knowledge of asylum provisions of protection, as recommended by the Act. Under the Act, the Refugee Applications Commissioner will have to set out in writing the reasons why asylum seekers should or should not be recognised as refugees and the basis of decisions. This should mean that the fairness, consistency and transparency of the decision-making process can be monitored. For more information contact the Irish Refugee Council Policy Officer, email: (see Legal Developments section of this documentation service for more details).


Introduction of gender guidelines

New ‘gender guidelines’ were launched on Tuesday 5 December by the human rights lawyer Baroness Kennedy of the Shauws. The guidelines stress that the asylum claims of those who are fleeing persecution for openly expressing feminist views or as a result of sexual abuse or domestic violence should be given full consideration by immigration judges rather than being dismissed at the first hurdle. The new rules will give protection to men as well as women and they stress the difficulties that both face when giving evidence of rape and sexual abuses to the immigration authorities. For details see Immigration Appellate Authority, Asylum Gender Guidelines, November 2000, by Nathalia Berkowitz and Catriona Jarvis. See also legal section of this documentation service on Refugee Women Fleeing Gender-Based Persecution. January’s edition of Forced Migration Review will contain an article on the new gender guidelines and is available at

Britain’s opposition Conservative party is revising its hard line policy of detaining all asylum applicants after the programme was costed at over US$3 billion in capital costs and US$1.5 billion in annual running costs.





No. 6

December 2000









Legal developments



Goldstein v Sweden (Application No. 46636/99), 12 September 2000, Decision as to Admissibility

Non-state agents; application manifestly unfounded due to appropriate protection available in US legal system

The case involved an American who had claimed asylum in Sweden alleging severe police persecution against him. The Swedish asylum authorities declined to grant him international protection on the basis that the alleged persecution was the result of criminal acts committed by individuals and not attributable to the state.

The European Court reiterated its jurisprudence by stating that :

"It is true, owing to the absolute character of the right guaranteed by Article 3 of the Convention, that this Article may apply also where the danger emanates not from public authorities but from persons or groups of persons who are not, or who are not acting as, public officials. However, it must then be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (cf., e.g., the H.L.R. v. France judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 758, § 40)."

It went on to hold that it did not

"(…)find it established that the risks alleged by the applicant of his being ill-treated in the United States stem from any public authority or other organ of the State. Furthermore, if the applicant upon his return to the United States were to be subjected to illegal acts, the Court does not find it substantiated that the remedies at his disposal within the domestic legal system of that country could not provide appropriate protection."

Accordingly the complaint was dismissed as manifestly ill-founded.

On 26 September 2000, Sarah Ludford, Spokeswoman on Justice and Home Affairs for the European Liberal Democratic Group in the European Parliament announced that the Committee on Citizen’s Rights and Freedoms, Justice and Home Affairs had decided to draw up a report on the Goldstein case. Ludford, appointed rapporteur on this case, pointed out that it raised important issues relevant to the current development of a common EU asylum policy and touched on issues such as "manifestly unfounded" applications, the concept of "safe third country and persecution at hands of non-state agents. Moreover, the case presents the "opportunity to re-examine the pertinence of the current Treaty protocol — the so called "Basque" protocol — whereby generally no citizen of another EU member State will be granted asylum in another Member State".



4 July 2000, Communication No 99/1997, T.P.S v Canada.

In January 1986, the author and four co-accused were convicted by a Pakistani court of hijacking an Indian Airlines aeroplane in September 1981 and sentenced to life imprisonment.

In October 1994, the Government of Pakistan released the author and his co-accused on the condition that they leave the country. The author states that he could not return to India for fear of persecution. With the assistance of an agent and using a false name and passport, he arrived in Canada in May 1995. Upon arrival he applied for refugee status under his false name and did not reveal his true identity and history.

In Canada, an immigration inquiry was opened against the author to determine whether he had committed an offence outside Canada which, if committed in Canada, would constitute an offence punishable by a maximum prison term of 10 years or more. His refugee application was suspended. The Canadian Minister of Immigration issued a certificate stating that the author constituted a danger to the public. Subsequently the author was detained with a view to his removal.

The author applied for leave for judicial review of the Minister's decision. The Federal Court Trial Division dismissed the author's application regarding the deportation order. The Court emphasized that the author would be excluded from Convention refugee status owing to his past terrorist activities and that Canada should not be nor be seen to be a haven for terrorists. It noted that the author had had ample opportunity to suggest another country of removal than India, that India did not have a policy of or encourage police brutality, and that the author's high profile would provide him with protection against any alleged possible ill-treatment by Indian authorities. On 23 December 1997 the author was removed from Canada. He was escorted to New Delhi by one CIC officer and one police officer. Upon arrival the author was dealt with in a normal fashion and was not treated by the Indian police any differently from other individuals removed to India.

The applicant claims that he has serious grounds to believe that he will be subjected to torture upon return to India.

The Committee (CAT) decided that the communication was admissible.

The Committee first noted that the author was removed to India on 23 December 1997 despite a request for interim measures pursuant to rule 108 (9) of the rules of procedure according to which the State party was requested not to remove the author while his communication was pending before the Committee.

The CAT went on to state that "[O]ne of the overriding factors behind the speedy deportation was the claim by the State party that the "author's continued presence in Canada represents a danger to the public". The Committee, however, is not convinced that an extension of his stay in Canada for a few more months would have been contrary to the public interest. In this regard, the Committee refers to a case before the European Court of Human Rights (Chapel v. United Kingdom) in which the Court maintained that scrutiny of the claim "must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling state". "

As for the merits of the communication, the Committee noted that the author had been living in India for more than two years. During this time, although he claimed to have been harassed and threatened, along with his family, on several occasions by the police, it seemed, according to the CAT, that there has been no change in the manner in which he has been treated by the authorities. In these circumstances, and given the substantial period of time that had elapsed since the author's removal, giving ample time for the fears of the author to have been realized, the Committee could not but conclude that his allegations were unfounded.

The Committee was of the opinion that after a period of nearly two and a half years, it would be unlikely that the author is still at risk of being subjected to acts of torture.

In an Individual opinion of Committee member Guibril Camara, Camara said: "Moreover, it is clear from the terms of article 3 of the Convention that the time to assess whether "there are substantial grounds for believing that [the author] would be in danger of being subjected to torture" is at the moment of expulsion, return or extradition. The facts clearly show that, at the time of his expulsion to India, there were substantial grounds for believing that the author would be subjected to torture. The State party therefore violated article 3 of the Convention in acting to expel the author.

Lastly, the fact that in this case the author was not subsequently subjected to torture has no bearing on whether the State party violated the Convention in expelling him. The question of whether the risk - in this case, of acts of torture - actually materializes is of relevance only to any reparation or damages sought by the victim or by other persons entitled to claim.

The competence of the Committee against Torture should also be exercised in the interests of prevention. In cases relating to article 3, it would surely be unreasonable to wait for a violation to occur before taking note of it."

Communication No 96/1997, CAT/C/23/D/96/1997: A.D. v the Netherlands, 24 January 2000.

The author of the communication is A. D., a Sri Lankan national of Sinhalese origin at present residing in the Netherlands where he has asked for asylum. His asylum request has been rejected and he is at risk of deportation. He claims that his return to Sri Lanka would violate the Netherlands' obligations under article 3 of the Convention. The author argues that he would be in danger of being tortured if he were to return to Sri Lanka. He states that there is a consistent pattern of gross, flagrant and mass human rights violations in that country and fears that those responsible for the killings photographed by him may seek revenge. He says that it cannot be required of someone who was a victim of serious human rights violations in the past that he return to the country where those violations occurred.

On 19 October 1993, his request was denied by the State Secretary of Justice on the grounds that the author had not undertaken any political activities and was not considered a refugee according to the 1951 Convention relating to the Status of Refugees.

In the proceedings Counsel for the applicant argued that the State party's argument that the author's activities in Sri Lanka were not based on political conviction displays an incorrect and narrow definition of "political belief". Even though the author was not a member of a political party, political belief was attributed to him by the authorities owing to his having published photographs of victims of human rights violations. According to both Dutch case law and international refugee law, attributed political belief has been considered as one criterion for determining refugee status.

Counsel for the author refuted the argument that by moving to another part of Sri Lanka the author was able to avoid any further difficulties from October 1992 until his departure. Counsel argued that he question of an internal flight alternative (ECRE’s emphasis) was not previously raised during the domestic proceedings and should therefore not be an issue before the Committee. In any case, an internal flight alternative would not be feasible, in view of the fact that the author was being persecuted by the authorities. Counsel went on to say : "In the present situation there is no guarantee that the author would not risk persecution from the Government now in power in Sri Lanka, nor that he would be effectively protected by the Government should he be persecuted or tortured by these previously in power. "

The CAT considered that "The Committee notes the State party's information that the author at present does not risk expulsion, pending the consideration of the author's request for extension of his residence permit for medical treatment. Noting that the order for the author's expulsion is still in force, the Committee considers that the possibility that the State party will grant the author an extended temporary permit for medical treatment is not sufficient to fulfil the State party's obligations under article 3 of the Convention. "

The Committee considers that the author's activities in Sri Lanka and his history of detention and torture are relevant when determining whether he would be in danger of being subjected to torture upon his return (ECRE’s emphasis). The Committee notes in that respect that although the State party has pointed to inconsistencies in the author's account of events, it has not contested the general veracity of his claim. The Committee further notes the medical evidence indicating that the author, although not at present fulfilling the criteria for a diagnosis of a post-traumatic stress disorder, may have suffered from this syndrome in the past. However, the Committee also notes that the harassment and torture to which the author was allegedly subjected was directly linked to his exposure of human rights violations taking place while the previous Government was in power in Sri Lanka. The Committee is aware of the human rights situation in Sri Lanka but considers that, given the shift in political authority and the present circumstances, the author has not substantiated his claim that he will personally be at risk of being subjected to torture if returned to Sri Lanka at present.

Communications Nos. 130/1999 and 131/1999, V.X.N. and H.N. v Sweden, 15 May 2000

The authors of the communications are Mr. V.X.N and Mr. H.N. two Vietnamese nationals currently residing in Sweden where they received refugee status and permanent residence permits on 18 August 1992 and 23 August 1991 respectively. The authors claim that they risk torture if they are returned to Viet Nam and that their forced return to that country would therefore constitute a violation by Sweden of article 3 of the Convention. In 1995 Mr. V.X.N was sentenced under Swedish law to five years' imprisonment. According to the sentence, the author was also to be expelled from Sweden after having served his sentence. The author was released from prison on 16 January 1999 and is at present awaiting expulsion to Viet Nam. Mr. H.N., states that he came to Sweden in 1991, recognized as a quota refugee. In 1995 the author was sentenced under Swedish law to five years' imprisonment. The author was also to be expelled from Sweden after having served his sentence. The author was released from prison on 12 October 1998 and is at present awaiting expulsion to Viet Nam. In a letter dated 16 March 1999, the UNHCR Regional Representative for the Baltic and Nordic Countries informed the Swedish Minister of Justice that an expulsion of the authors would not be a breach of article 33 of the 1951 Convention relating to the Status of Refugees.

The CAT held: "Having noted the above, the Committee considers that the authors' activities in Viet Nam and their history of detention and torture are relevant in determining whether they would be in danger of being subjected to torture upon their return. The Committee notes in that respect that the State party has pointed to inconsistencies in the authors' accounts of events and has contested the general veracity of their claim. In the present case, although a number of disparities may be explained by difficulties in translation, the considerable time which has elapsed since the authors' escape from Viet Nam and the procedural circumstances, the Committee considers that some doubts as to the authors' credibility remain."

The CAT continued: "Notwithstanding the above, the Committee is aware of the human rights situation in Viet Nam, but considers that given, inter alia, the considerable time which has elapsed since the escape of the authors and the fact that the illegal departure from Viet Nam in the middle of the 1980s is no longer considered an offence by the Vietnamese authorities, the authors have not substantiated their claims that they will personally be at risk of being subjected to torture if returned to Viet Nam at present. In this connection the Committee notes that a risk of being imprisoned upon return as such is not sufficient to trigger the protection of article 3 of the Convention."

The CAT concluded: "The Committee recalls that, for the purposes of the Convention, one of the prerequisites for "torture" is that it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The Committee considers that the issue whether a State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a private person, without the consent or acquiescence of the State, falls outside the scope of article 3 of the Convention."

Communication No. 116/1998 : N.M. v Switzerland. 9 May 2000. CAT/C/24/D/116/1998.

The author of the communication is Mr. N.M., a citizen of the Democratic Republic of the Congo (DRC) born on 10 January 1968 and currently residing in Switzerland, where he applied for asylum on 1 December 1997. His application having been turned down, he maintains that his forcible repatriation to the DRC would constitute a violation by Switzerland of article 3 of the Convention against Torture. The author states that, if he were returned to the DRC, he would be tortured and summarily executed. Given the fact that he carried out his professional activities in his own neighbourhood, that he had sent many people from that neighbourhood to be tortured if not to their death, and that he enjoyed many privileges, there are grounds for believing that he has certainly not been forgotten and that, if he returned to Kinshasa, the fate awaiting him would be commensurate with his actions.

The Committee recalls its general comment on the implementation of article 3 which reads:

"Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable" (A/53/44, annex IX, para. 6).

In the present case, the Committee found the arguments advanced by the author in support of his allegations of being tortured before fleeing the Democratic Republic of the Congo to be inconsistent and unconvincing. The CAT concluded that he could not establish that he would run a personal, real and foreseeable risk of being tortured if returned to his country of origin. The CAT subsequently dismissed the claim.


The Committee against Torture offered conclusions and recommendations on 22 November 2000 on a third periodic report of Canada

The Committee recommended:
-- that Canada comply fully with Convention article 3 (1) prohibiting return of a person to another State where there were substantial grounds for believing that the individual would be subject to torture, whether or not he was a serious criminal or security risk;

-- that Canada enhance the effectiveness of remedies to protect the rights granted under Convention article 3 (1); the Committee noted assurances that a proposed Act provides for a pre-removal risk assessment, and the Committee encouraged Canada to ensure that the proposed legislation permitted in-depth examination by an independent entity of claims, including those from persons already assessed as security risks; and it urged the Government to ensure that obstacles to the full implementation of article 3 were removed, so that an opportunity was given to the individual concerned to respond before a security-risk decision was made, and that assessments of humanitarian and compassionate grounds were made without demanding a fee from the person who sought protection;

(Third periodic report of States parties due in 1996 : Canada. 31/05/2000. CAT/C/34/Add.13. (State Party Report) on

Second periodic reports of States parties due in 1994 : Australia. 15/05/2000. CAT/C/25/Add.11. (State Party Report)

On 16 November 2000, the Committee against Torture began the review of the second periodic report of Australia, with the panel's 10 Experts asking a Government delegation, among other things, about procedures for refoulement of persons who had been denied political asylum, and methods of restraint used against persons held in custody. Australia considered that its refugee-determination procedure, combined with a system for ministerial intervention on public-interest grounds, ensured compliance with the Convention. The Government, its delegate went on to say, meanwhile, was concerned about increasing resort to the communication mechanism to the Committee under Convention article 22 by failed asylum-seekers in an effort to delay their removal from Australia, and in future the Government would more closely examine each request for interim measures rather than automatically complying with such requests.

In its Consideration of the report, Committee Expert Andreas Mavrommatis, serving as rapporteur on the situation in Australia, said that the Convention article 3 amounted to an absolute prohibition against refouling a person if there were reasonable grounds that he might undergo torture, Mr. Mavrommatis said. He said he was concerned about the Australian system of automatic detention of illegal immigrants, about the reported isolation of some detention centres, and about the length of the detentions, sometimes of several years. He asked if any efforts had been made to speed up the processing of these detainees.



High Court Of Australia

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 (26 October 2000)

Somalia, whether differential impact in a civil war is required, whether persecution required a systematic conduct as opposed to an isolated incident

A very interesting 68-pages judgment:

The issue in this case before the Australian High Court was whether the principle propounded in the UK House of Lords’ decision in Adan correctly stated the law concerning persecution in the context of civil unrest. In R. v. Secretary of State for the Home Department ex. parte Adan, House of Lords, 2 April 1998, the House of Lords held that "where a state of civil war exists, it is not enough for an asylum seeker to show that he would be at risk if he were returned to his country where s/he was at no greater risk of such ill-treatment by reason of his clan or sub-clan membership than others at risk in the war. He must be able to show a differential impact. In other words, he must be able to show fear of persecution for Convention reasons "over and above the ordinary risks of clan warfare."

The Federal Court of Australia in Abdi (Full Court of the Federal Court, Minister for Immigration and Multicultural Affairs v Abdi [1999] 162 ALR 105) had rejected the differential impact principle as propounded by Lord Lloyd.


Federal Court Of Australia

Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525 (27 October 2000),

Internal Relocation (Internal Protection Alternative): The child’s ill health was relevant to the reasonableness of internal relocation

The central question raised on this review application is whether it is reasonable to expect the applicant and his family to relocate and live elsewhere in Colombia and avoid the harm they fear.

There was evidence as to the state of health of the applicant's son Juan to the effect that Juan suffers from a severe blood disease known as Idiopathic Thrombosytopenic Purpra ("ITP"). In a covering letter sent with the documents about his son's medical condition the applicant stated that advice received from Colombian doctors "regarding treatment and survival possibilities [for his son] were negative". He added that his son's current doctors believed that his son's health could be put at risk if his treatment were changed or discontinued, as a consequence of leaving Australia. The Federal Court agreed that the son's ill health was relevant to the reasonableness of internal relocation and the reasonableness of internal relocation directly concerns the question of persecution in the country of nationality.

The Federal Court went on to consider the Full Federal Court’s decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Black CJ, Beaumont and Whitlam JJ) particularly at 440-443.):

"The reasoning in Randhawa makes it clear that the circumstances to be taken into account are wide ranging, with strong emphasis on the practical realities of an applicant's position such that the cultural problems of relocation can be taken into account. In the present case the issue of Juan's health was specifically raised by the applicant as a matter for consideration. The medical condition of the child could reasonably be considered to bear on the question whether relocation is reasonable, or feasible in a practical sense. For example, it may be considered that it is not reasonable to expect the family to relocate in a "safe area" remote from those medical and hospital services and facilities for Juan which are normally found in a large city. The need for medical treatment for the child may also require the parents to visit Pereira where they could experience a real danger of persecution. These practical considerations arising from the child's predicament could limit the number and type of places suitable for relocation and carry weight in determining the question whether relocation in the country is reasonable in the circumstances of any particular case."

Omar v Minister for Immigration & Multicultural Affairs [2000] FCA 1430 (16 October 2000)

The decision of the Full Court of the Federal Court of Australia (FCA) deals with the question whether there can be circumstances in which a person may hold a well-founded fear of persecution based on future expression of political opinion - whether prior expression of political opinion is necessary to establish an existing well-founded fear of persecution

Counsel for the appellant addressed the issue whether it would be impermissible to assess his case on the basis that if he forfeits his right to freedom of expression, he may be safe.

The FCA found that the appropriate starting point is the decision of Lee J of this Court in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 686 ("Mohammed"). Lee J said in Mohammed: In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well-founded fear that serious harm will occur if that person is returned. In such cases, a determination must be made whether that person is to be accorded refugee status ..." (referred to with approval by Brooke LJ in Danian v Secretary of State for the Home Department [2000] Imm AR 96 ("Danian") - All three judges of the Court of Appeal in Danian concluded that an act of "bad faith" does not necessarily deny an applicant the protection of the Convention.)

In the Full Court on appeal against Lee J’s decision (Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576.) French J said:

"(..) Given the freedoms guaranteed under the Universal Declaration of Human Rights and other international conventions, it could not have been consistent with the purpose of the Refugee Convention to require that persons claiming to be refugees be deprived of their fundamental human rights and freedoms in the country from whom they are seeking protection."

The FCA in this case went on to say:

(…) In some cases - and perhaps in many - it may be entirely appropriate to proceed upon the footing that a person will in fact act "reasonably" to avoid harm and will, indeed "reasonably" modify his or her conduct so as to avoid the risk of persecution. Reasonableness may be used in an appropriate way and in appropriate cases to predict what may happen. It is altogether a different matter to work on the assumption that a person with a strongly held religious belief should act "reasonably" and compromise that belief to avoid persecution; such an approach would be quite contrary to the humanitarian objects of the Convention. To this extent we would depart from the primary judge's view that the Tribunal can assume that an applicant for refugee status would, on return to his or her home country, take reasonable steps for his or her own protection. While it may be appropriate to make such an assumption in some cases, it might well involve a breach of the obligation against refoulement to assume so in others. Again, much will depend on the circumstances of the particular case."

The Full Court of the FCA concluded that: "It follows from what we have said that we disagree with any approach that would necessarily reject the possibility of a well-founded fear of persecution being based upon a future expression of political opinion."


Conseil d'Etat quashed the refusal of admissibility of an Angolan who was to be expelled from Switzerland to Belgium

The Conseil d'Etat quashed the refusal of admissibility of a person from Angola who applied during a stop in Brussels, while he was being expelled from Switzerland to his country of origin. The General Commissioner for Refugees and Stateless Persons (CGRA) put forward a stay of more than three months in several third countries left without fear in accordance with the Geneva Convention. The Conseil d'Etat, taking into consideration the fact that Belgium does no longer expel persons of Angolan citizenship to Angola because of the ongoing civil war and that Switzerland wanted to refoule to this country, considered that in the case of an expulsion to Switzerland, the applicant would be victim of a new refoulement and that he would be subjected to bad treatment contrary to article 3 of the European Convention for Human Rights. (Conseil d'Etat, 20 October 2000).

See "Policy Developments" for the UN Committee on Economic, Social and Cultural Rights considerations (20 November 2000) of a second periodic report of Belgium (document E/1990/6/Add.18) on how that country was implementing the provisions of the International Covenant on Economic, Social and Cultural Rights (on reception conditions and unaccompanied children)



See "Policy Developments" for the UN Human Rights Committee consideration of a fourth periodic report of Denmark on how that country implements the provisions of the International Covenant on Civil and Political Rights. The discussion was on amendments to the aliens act relating to the residence of foreigners and to family reunification, the introduction of fingerprinting, DNA testing in respect of claims to family reunification, relocation of refugees to municipalities and freedom of movement and refoulement. (See also Summary record of the 1876th meeting: Denmark. 27/10/2000. CCPR/C/SR.1876. (Summary Record) at www.





See "Policy Developments" for the Follow-Up Report Of The Finnish Government In Response To The Report Of The European Committee For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment (Cpt) On Its Visit To Finland From 7 To 17 June 1998

(Ref.: CPT/Inf (2000) 17 [EN] - Publication Date: 7 September 2000)

See also "Policy Developments" the UN Committee On Economic, Social And Cultural Rights, consideration of a fourth periodic report of Finland (15 November 2000). The discussion turned on reception and integration.

See also above Final Observations of the UN Committee of the Rights of the Child, 6 October 2000 on Finland touching on the issue of unaccompanied children




The Commission des Recours des Refugies (CRR) (Refugee Appeal Board) decided on 4 October 2000 (appeal no. 354865 and 354864) in favour of an asylum applicant of Chechen origin. The appellant was a victim of the Chechen war. He fled and relocated to Ingushetia where he was assaulted on several occasions by elements of the native population because of his Chechen origin. He returned to Stavropol to meet with his brother, and was interrogated and beaten by frontier guards upon his return because of his ethnic appearance alone. He submitted that he feared persecution in Ingushetia without being able to avail himself of the protection of the Russian authorities.

The CRR found that the appellant had relocated to Ingushetia in 1996 and had been subjected to assaults by the native population of Ingushetia since 1998 because of his Chechen origin. The CRR found that he was assaulted and injured following an incident between Chechen and Ingushetian frontier guards in 1999. The CRR also found that he was exposed after each incident at the border to machinations that have to be considered as voluntarily tolerated by the Russian authorities who, aware of the situation of Chechen refugees in Ingushetia, did not take any appropriate measure to ensure the protection of these refugees. It went on to hold that after his return to Stavropol, he had been interrogated and beaten by the frontier guards upon his return, and that on account of his origin, he was not able to relocate in another region of the Russian Federation. The CRR held that under these circumstances, the appellant would be recognised as a refugee.

The Commission des Recours des Refugies (CRR) (Refugee Appeal Board) decided on 4 October 2000 (appeal no. 350990) in favour of an asylum applicant of Chechen origin. The appellant fled to Dagestan with his mother after the death of his father and after having lost his property due to the bombardment of the Russian army. He joined his mother in France after having been the victim of several attempts of abduction in Dagestan. He claimed to fear for his security upon return to his country. The CRR held that the appellant was a minor when he entered France with his mother whose status as a refugee had been recognised. It held that on the basis of family union the appellant was to be considered a refugee.

The Commission des Recours des Refugies (CRR) (Refugee Appeal Board) decided on 4 October 2000 (appeal no. 350989) in favour of an asylum applicant of Chechen origin. The CRR found that the appellant had lost her property and her house in Novogrosny after a bombardment in 1994, and that her husband is deceased due to injuries following the bombardment. The CRR found that she subsequently fled to Dagestan with her son. The CRR found that a particularly detailed medical certificate confirmed the submission of the appellant in a closed hearing that she had been subject to brutality of extreme gravity in a Chechen refugee camp by members of the Russian army. The CRR subsequently recognised refugee status.


Federal Administrative Court, BVerwG 9 C 4.00, 5.00 und 6.00, 16 November 2000

Non-refoulement under Section 53 (3) of the Aliens Act

The First Senate of the Federal Administrative Court has jurisdiction in asylum and alien law matters since 1 October 2000.

Section 53 (3) of the Aliens Act, amended in 1997 in the wake of violent riots of Kurds in Germany, provides for the exclusion of protection against removal for criminals. According to that provision, protection against removal of refugees is withdrawn when the alien can be regarded as a danger to the community because he has been convicted in a final judgement for a felony or a particular grave offence to imprisonment of a minimum of three years (Section 53 (3) 2nd alternative)

The Federal Administrative Court had to decide in the case of three Turkish nationals of Kurdish origin who, according to the findings of the lower courts are at risk of being persecuted upon return to Turkey.

The first case concerned a member of the religious group of the Jecides who being a faithful Jecide could not make a living in the Western part of Turkey. The second proceedings before the Court (BVerwG 9 C 5.00 und 6.00) involved two Kurds at risk of being persecuted on account of possible connections to the PKK.

The first two cases were convicted in a juvenile court. The third was convicted as an adult. In all three cases the High Administrative Courts (OVG) had granted asylum holding that there is not such a great danger that they would commit a felony again to deprive them of protection of expulsion to the state where they would be at risk of being persecuted. The Federal Administrative Court has affirmed both decision of the OVG Lüneburg (BVerwG 9 C 4.00 und 5.00), but quashed the decision of the OVG Bremen (BVerwG 9 C 6.00).

Section 51 (3) of the Aliens Act has to be interpreted narrowly with regard to the constitutional right to asylum. Thus, the provisions excluding protection from refoulement covers only conviction according to criminal law applicable to adults. Consequently the judicial review of the two applicants who had been convicted as juveniles was allowed.

In the third proceeding involving the applicant who had been convicted as an adult, the Federal Administrative Court found the reasoning of the OVG Bremen flawed. The forecast that the convicted alien will not commit any felonies in Germany again, was not sufficiently reasoned.

However, the refugee is not to be removed to the state where s/he is at risk of being persecuted as long as there are other obstacles to refoulement, i.e when there is no risk of being subjected to the death penalty, neither torture nor inhuman and degrading treatment. The risk of recidivism, as an element for the exclusion provision of Section 53 (3) of the Aliens Act must be assessed in each individual case, considering the wrongfulness and the degree of guilt ("Unrechts- und Schuldgehalt der Tat") of the crime, the degree of the dangerousness of the perpetrator and his subsequent development. The provision shall not be solely negated on the grounds that the remnant of the penalty was executed under parole, in particular in cases of severe drug offences. The Federal Administrative Court remitted the case back to the OVG for renewed consideration.

High Administrative Court in Münster, 7 September 2000

Repatriation of a traumatised Bosnian prevented due to lack of specialist treatment

In a decision made public on 7 September 2000, the High Administrative Court (OVG) in Münster has prevented the repatriation of a traumatised Bosnian war refugee, arguing that he cannot be reasonably cared for in his home country. The OVG thus challenged the report of the German embassy in Sarajevo which was used as the basis for justifying the decision by the authorities to deport this Bosnian. According to the OVG, the German Embassy’s claim that there was sufficient medical care for traumatised refugees in Bosnia is not substantiated and, in itself, inconclusive. It referred to the latest report of the Foreign Minister on the situation in Bosnia-Herzegovina which points to the lack of medical care for the sick people already living there.

The OVG affirmed that bearing in mind the level of medical care in Bosnia as well as the present social, economic and political situation there, there was a high probability that the repatriation of a psychologically ill Bosnian refugee would, when other factors such as poverty are added, lead to a renewed trauma of greater intensity. Moreover, noting ill-equipped rehabilitation centres, lack of further training of local specialists to treat traumas and disturbances caused by the civil war, it expressed "considerable doubts" on the claim that sufficient possibilities of treatment are available for traumatised and psychologically disturbed refugees.

Note in respect of credibility and traumatised victims the U.K. Immigration Appeal Tribunal decision in the case Hrickova that involved a raped Slowak Roma.

Bavarian Administrative Court of Ansbach, 17 March 2000

Persecution of a Kurdish woman of Turkey, credibility of a traumatised applicant, use of medical evidence

The Federal Office for the Recognition of Foreign Refugees had declined the application for asylum of a Kurdish woman from Turkey who, inter alia, had been raped by Turkish security officers. Her application was dismissed as being incredible because of incoherency and contradictions in her plea. However, the Administrative Court of Ansbach, citing from a lecture by Dr. Mechthild Wenk-Ansohn in her lecture at the International Seminar in Istanbul on Sexual Violence against women committed by the state, May 1998 "Psychische Folterfolgen und deren Begutachtung — unter spezieller Beruecksichtigung von durch sexuelle Folter traumatisierten Frauen" ("Psychological after-effects of torture and its appraisal — in particular taking into account the situation of women traumatised by sexual torture"), held that in the case of a traumatised person, contradictions and incoherency did not necessarily harm a positive credibility finding. The court held that the abuse and the rape was inflicted upon her, inter alia, because of her being Kurdish (had she not been Kurdish, she would not have been abused, as there is no evidence that women of Turkish descent were abused by Turkish security forces). The court went on to say that the abuse was attributable to the Turkish state, and that there would have been no internal protection alternative in the west of Turkey as she would not be able to secure her subsistence (adducing the unemployment rate, the inexistence of social security or welfare). The court concluded that it was not possible for the appellant, given the fact that she is divorced and on her own, in addition to not having any vocational training and being ill, to gain a living in the western part of Turkey. In any case, according to the court, had she relocated herself in the west, she would have run the serious risk to have her identity checked (be it when registering for residence or in case of illegal residence on the occasion of a raid or a street control). If her identity had been checked, there would have been a serious risk of her being subjected again to abuse by Turkish security forces. Consequently the court ordered the Federal Office to determine that the preconditions of Section 51 (1) and 53 (4) of the Aliens Act in conjunction with Art. 3 ECHR were fulfilled.

Survey on German jurisprudence relating to refugees from Kosovo

A systematic survey on German jurisprudence in 2000 relating to refugees from Kosovo, of 30 June 2000, up-dated as of 7 September 2000), by Ulf Tiemann/Katja Wiesbrock, has been reproduced in Materialdienst Flüchtlinge 10/2000, Diakonisches Werk der Evangelischen Kirchen in Deutschland. The following is a summary of the key findings of German jurisprudence on refugees from Kosovo. For more details please refer to the above mentioned survey.

In general, Albanian Kosovar are not granted asylum in the sense of Art. 16 a and Section 51 (1) and Section 53 (protection against deportation) of the Aliens Act of the German Basic Law. The courts consider Kosovo to be an internal protection alternative because the Yugoslav state authority does not exercise anymore any territorial power in Kosovo. Instead, international organisations, in particular UNMIK, KFOR and UNHCR, have taken over the task of a protecting power. Because of the endeavours of the international humanitarian organisations, returnees can secure an economic subsistence.

In the case of Ashkali/Roma, in general, the courts assume that there is no political persecution in Kosovo against Roma, as the Albanians/UCK did not exercise state or quasi-state persecution (defiantly the Administrative Court of Gieszen, 14 March 2000 — 9 E 32482/96.A, in the case of Roma who had lived prior to their flight in the area of Belgrade/Serbia). In any event, there would be an internal protection alternative in Serbia and Montenegro where Roma would not be persecuted (differently, the Administrative Court of Gieszen, 14 March 2000 — 9 E 32482/96.A, see the survey for details). Occasional assaults on minorities by Albanians cannot be imputed to the UN-Administration which acts as a quasi-state authority. Roma are, generally, not granted protection from deportation (Sections 53 (4) and 53 (6) of the Aliens Act). However, in four cases protection according to Section 53 (6) of the Aliens Act was granted; in two cases based on humanitarian considerations (specific medical treatment not available in Pristina; no subsistence possible for a frail, ill woman of 73 who had no family in Kosovo); in the other two cases based on the individuals being of Roma/Ashkali origin.

Conference of Ministers of Interior, 24 November 2000 in Bonn:

Traumatised Bosnians receive residence permit and a long-term perspective


Voluntary Return takes precedence over forcible removal. Heavily traumatised Bosnians and their family (including unmarried children when living with the parents) will receive a residence permit (Aufenthaltsbefugnis) under Section 32 of the Aliens Act under the condition that they entered Germany before 15 December 19995 and at least have commenced with psychotherapeutic treatment since 1 January 2000.

See for more details on the agreement*

Article on "Protection Against Persecution Because Of "Membership Of A Particular Social Group" In German Law (And Further Considerations) by Paul Tiedemann (judge of the Administrative Court Frankfurt am Main,, 21 November 2000

Legal Handbook for Refugees. A Practical Guide through German Asylum and Alien Law by Hubert Heinhold, April 2000, published by Pro Asyl, ISBN 2-86059-496-6

This Handbook is also available in German and French.


Asylum law in Ireland has undergone change. It is now governed by all the provisions of the Refugee Act 1996 and by the Immigration Act 1999 and the Illegal Immigration (Trafficking) Act 2000.

The principal aim of the legislation is to give statutory effect to the State’s obligations under the 1951 Geneva Convention and the related 1967 Protocol.

The latest legislation establishes a legal framework for applying for asylum and establishing refugee status to bring down provisions for informing the applicant of his/her rights and obligations and providing information. Strict compliance is required for the rules and procedures and time limits must be adhered to. Some of the major new changes now are in force are:

An independent Refugee Applications Commissioner created under the Refugee Act 1996 and came into force on 20 November 2000. The office has a current staff of 150 (with a projected staff of 350 for 2001). It will determine all asylum applications under current procedures and legislations at first instance

All appeals from their decision will be determined by the Appeals Authority Tribunal. Powers to detain and fingerprint are now in force for the purpose of identification.

Asylum Seekers cannot be identified in the media without their consent and the consent of the Minister for Justice. Publications that fail to obtain the consent of the Minister for Justice as well as the asylum seekers face fine of 1,500.00 or imprisonment or both.

Reviews by the Court of any decision by the Refugee Applications Commissioner or by the Appeals Authority must be commenced within 14 days of notification of the decision.

The Dublin Convention provides a mechanism for determining which convention country is responsible for examining an application for Refugee Status. Notices may be served on applicants that their case is being examined under the Dublin Convention and if so, a period of 5 working days is allowed for them to make written representations and 5 working days to appeal a decision under the Dublin Convention to the Refugee Appeals Tribunal.

Notice may be served on any applicant that their application is manifestly unfounded where an appeal must be made within 10 working days of the date of notification and the applicant is entitled to appeal to the Refugee Appeals Tribunal.

All appeals to the Refugee Appeal Authority are now subject to strict time limits and a notification of at least 7 working days before the date of the hearing of an appeal.

Offences under the Refugee Act 1996 have been created:

- An applicant who attempts to leave the state without the permission of the Minister commits an offence

- An applicant who fails to inform the Refugee Applications Commissioner of his/her address or any change of address commits an offence.

See also "Policy Developments" for the UN Human Rights Committee on how Ireland was implementing the provisions of the International Covenant on Civil and Political Rights (Summary record of the first part of the 1848th meeting: Ireland. 19/07/2000. CCPR/C/SR.1848. on The discussion was inter alia on "dispersal" of asylum-seekers.



New Bill on asylum goes ahead through Parliamentarian procedure.

On 10 November 2000, the Commission for Constitutional Affairs of the Chamber of Deputies approved the Bill on the rules governing humanitarian protection and the right to asylum (Draft law n. 5381). Now the text has been sent to the Chamber, which should vote on it in the forthcoming weeks. The text approved by the Commission modifies substantially the version voted by the Senate two years ago. Under the new text, in most cases asylum seekers will be entitled to lodge an appeal, with suspensive effect, against a decision of inadmissibility to the procedure of determination of status of refugee.

The Bill aims at implementing the constitutional obligation related to the right to asylum (art. 10. 3) and reforming the refugee status determination procedure which is currently really poor and inconsistent with international and European standards.

It is yet too soon to know if the Bill will be approved by the two Chambers of the Italian Parliament before the end of the legislature and the news elections scheduled for the next spring.

New regulations extend residence permit for Kosovar refugees under complementary protection status.

On 11 October 2000, the Ministry for Internal Affairs issued a new regulation concerning residence permits for Kosovar refugees under a complementary protection status. The new regulation referred to Kosovar asylum seekers who had received a residence permit on humanitarian grounds that expired on 30 June 2000. These residence permits were granted following a special recommendation by the Commission for the determination of refugee status after rejecting to grant Convention status and according to complementary protection regime provided by art. 5.6 law. N. 40/98.

Under the new regulation, these residence permits will be extended upon request until 30 June 2001 because of the "persistence of inter-ethnic tensions and the strong presence of criminal networks in Kosovo".

See also "Policy Developments" for the UN Committee On Economic, Social And Cultural Rights consideration of a third periodic report of Portugal (14 November 2000) In the discussion, a question was raised on the treatment of asylum seekers.



Court of Appeal , E v Attorney-General [2000] 3 NZLR 257, 8 February 2000; 11 July 2000 , Richardson P, Gault, Henry, Thomas & Keith JJ v Attorney-General

Judicial review relating to UNHCR Guidelines on Detention of Asylum-Seekers and whether Article 31 of the Refugee Convention and the UNHCR Guidelines on Detention of Asylum-Seekers impose an obligation for the Immigration Authorities; whether detention is in breach of Article 31(1); meaning of "directly" in Article 31 ("coming directly from")

Asher Davidson: "Article 31(2) of the Refugee Convention and its Implementation in New Zealand:  Is Detention Defensible?" (October 2000) - Comment on E v Attorney-General [2000] NZAR 354 (Fisher J) and Attorney-General v E [2000] 3 NZLR 257 (CA).



Changes in the appeals procedure

Appeals Board replaces Ministry

From January 1, 2001 an Appeals Board will replace the Ministry of Justice for the assessment of appeals. In October 2000, only three months before the Appeals Board is to come in operation, the Ministry of Local and Regional Government (which has recently assumed political responsibility for asylum policy in place of the Ministry of Justice) suggested two major amendments for board. Fourteen humanitarian organisations had already been invited to suggest members for the board, and the proposed twelfth hour alterations were met with strong criticism.



Composition of the Appeals Board

The first of the two proposed amendments was that the number of people on each board should be reduced from five to three; that is, there will be one head of the board (who is employed and who is required to fulfil the criteria for a judge) and two members. In an effort to reach a compromise, it was agreed that one of the members would be drawn from a list of those persons that have been suggested by the Ministry of Local and Regional Government, the Ministry of Foreign Affairs, and the Norwegian Legal Association. The other member would always be suggested by a humanitarian organisation.

The right to meet in person before the Board

The second of the proposed amendments was that the access for asylum seekers to meet in person before the board should be reduced. While such access had already been included in the law as a main rule, the proposal was that there should be no such main rule and, as a consequence, the authority in this question should be conferred upon the head of the board. While the humanitarian organisations stated that they could accept the changes in the composition of the board, this second amendment would make it difficult for them to legitimise their participation. The decision of twelve of the fourteen humanitarian organisations that a main rule of access was a condition for their participation was in fact upheld, and (in accordance with their suggestion) exceptions from the rule would be introduced into the Aliens Regulation. It was decided that the main rule of access would not be applicable when there is no doubt about the circumstances in the case or when there is no disagreement about the circumstances in the case.

Accelerated procedure

An accelerated procedure has been introduced for the following countries: Poland, Hungary, the Czech Republic, the Baltic States, and the member states of the European Union. Asylum seekers from any of these countries will not be allowed to write a personal declaration, and the processing of their cases will be prioritised. The basis for selecting these countries for the accelerated/manifestly unfounded procedure is that in recent years there have been no cases from any of these countries where protection has been granted. Also those that fall within the accelerated procedure will be interviewed by the UDI (the Directorate of Immigration).

Visa for family members

Family members may be granted visas that allow them to visit family members in Norway for a period of up to nine months. While previously it was in fact not possible to apply for a new visa after returning to the home country, it has been introduced into the law that one can apply for another visa one year after the return. There is no limit to how many times one might apply for or be granted a visa on this basis.

See "Policy Developments" For The European Committee For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment (CPT) on Detention in the Snarøya Aliens Detention Centre

(Report To The Norwegian Government On The Visit To Norway Carried Out By The European Committee For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment (Cpt) From 13 To 23 September 1999 (Ref.: Cpt/Inf (2000) 15 [En] - Publication Date: 9 October 2000)

See also the Response of the Norwegian Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Norway from 13 to 23 September 1999 (Ref.: CPT/Inf (2000) 16 [EN] - Publication Date: 9 October 2000), at



Court of Appeal

Revenko v Secretary of State for the Home Department (SSHD) C2000/0135, 31 July 2000

Statelessness and the correct construction of Art. 1 A (2)

All three judgments agree that a broad purposive approach to the central question leads to a conclusion that the stateless applicant must also show that she has a well founded fear of persecution for a convention reason to qualify as a refugee. Justice Bennett alone accepted that the UNHCR Handbook represented "not state practise but the interpretation of Article 1 A (2) by the UN High Commissioner for Refugees" and for that reason declined to use the paragraphs 101-104 as an aid top interpretation.

Immigration Appeal Tribunal (IAT)

Mustafa Doymus v Secretary of State for the Home Department (00/TH/01748), 19 July 2000

Whether single incident of mistreatment could amount to persecution

The Tribunal held that: "The conclusion the Tribunal draws from this survey of jurisprudence is that persistency is a usual but not a universal criterion of persecution. What conduct amounts to persecution is a matter of degree."

The Tribunal listed a full survey of authorities and the conclusion is fully reasoned and not limited to the facts of the case.

Immigration Appeal Tribunal, Fadil Dyli (00/TH02186), 30 August 2000

Ethnic Albanian from Kosovo, internal protection alternative

The IAT found that "for the purposes of the Convention protection provided by and through UNMIK and KFOR is capable of amounting to protection of his own country for a resident of Kosovo." But whether such protection was adequate in any particular case has to be decided on the evidence. However, bearing in mind the House of Lords judgment in Horvath (2000) Imm AR 205 (see DS July 2000) such an applicant would have to show that the protection provided by these bodies or their successors was not sufficient by international standards.

In the IAT’s view, in the future, Kosovo residents will be in receipt of assistance "from an organ of the United Nations other than the United Nations High Commissioner for Refugees." However, in its view, Art 1 D of the Convention only applies to persons receiving such assistance whilst outside the country of nationality for the purposes of Art 1. In the appellant’s case, he was not in receipt of such assistance anyway because he was outside Kosovo. The special adjudicator had therefore erred in finding that the appellant was excluded from the benefits of the Convention.

In Ardjan Daia v SSHD (00/HX/01043), appeal heard 5 September 2000 a Tribunal has allowed the appeal of a Kosovo Albanian from Mitrovica on the basis that it would be "unduly harsh" to return him there or to any other part of Kosovo at the present time. The Tribunal was took in consideration the UNHCR’s recommendation that internal flight was not a reasonable option in view of the general housing problem shortage in Kosovo. However, the Tribunal suggested the appellant be granted asylum for six months only (as there is a suggestion that the housing shortage will be resolved by then). The Tribunal also made a finding that KFOR/UNMIK provide sufficient protection within Horvath, Dyli, and Ruci (00/HX/00975).

In the case of Ruci, an ethnic Albanian from Slatine, Kosovo who had spent 6 months in Montenegro before seeking asylum in the UK, the Tribunal found that an ethnic Albanian like the appellant whom it described as "average" could not have a well founded fear of persecution in Kosovo. The difficulty for Mr. Ruci was that he could not bring himself into any of the categories of people whom the UNHCR considered at risk (UNHCR recommendations of 1 October 1999 and a UNHCR letter to the Home Office of 4 November 1999).

IAT, Hrickova (00/TH/02034, 9 August 2000

Slovak Roma on credibility of a traumatised victim, internal protection alternative and sufficiency of state protection

The adjudicator had accepted that she was stabbed in the stomach by skinheads in the winter of 1993 and that in the summer of 1995 she and her husband had gone to her son’s school to make a complaint but the police had been called to eject them; that the same evening, four local policemen had come to her house, taken her in some woods and gang raped her; that two days later the same policemen had come again and beaten up her husband. The adjudicator, however, did not accept that the appellant had been persecuted — the forgoing being "localised and isolated" incidents. The adjudicator also held that "it would not be unduly harsh for the appellant to have relocated herself elsewhere within Slovakia." The Tribunal made some additional finding of facts. The Tribunal agreed with the adjudicator that there had been a development of the appellant’s account over the course of her asylum claim and that there had been some inconsistencies. However, the Tribunal found that:

"This is properly explained by the nature of human recollection particularly when dealing with traumatic incidents of the kind experienced by this Appellant and by the nature of the questions asked. We would be inclined to be much more suspicious of the Appellant’s evidence if her account had never varied over the course of telling and re-telling. Finally the account of events given by the Appellant is consistent with the general picture of treatment of Slovak Roma which appeals in the background material".

As for he adjudicator’s "internal relocation" point, the Tribunal accepted that this was an improper finding "because the issue of internal flight was never raised by the Respondent as a reason for rejecting the Appellant’s claim to asylum either in the decision letter or at any stage in the proceedings". The tribunal went on to consider the House of Lords judgment in Horvath (see DS July 2000).

The Tribunal rejected the submission by the respondent that, as held in Horvath, there was sufficient protection available in Slovakia. Firstly because as per Lord Clyde’s speech in Horvath ("where the line is drawn…is necessarily a matter of the circumstances of each particular case"), the Tribunal had to reach its conclusions in this particular case on its particular facts which were very clearly different, both in nature and degree, from those in Horvath. Secondly, the first attack on the appellant by the policemen was not isolated because it was followed up two days later by a second attack, and it was not random because it followed from the appellant’s attempt to make a legitimate complaint concerning racial discrimination towards her son.

Thirdly, there was the refusal by the doctors to provide the appellant with essential corroborative medical evidence without which it would be impossible for her to pursue the policemen legally. The Tribunal concluded that despite objective evidence that police officers in Slovakia were not immune from prosecutions, the appellant’s fear of (further) persecutions was well founded.

IAT, Miriam Fatemeh (00/TH/00921), 3 April 2000

Women accused of adultery in Iran have a well founded fear of being persecuted

for reasons of their membership of a particular social group.

The Tribunal found that women in Iran constituted a "social group" following the House of Lord’s decision in Islam and Shah. Wile on a visit to se her grand parents in the UK, she asked her violent husband for a divorce which he refused to consent to. He then wrote her threatening letters, and she found out that he had laid criminal charges against her (which she believed to be for desertion and adultery).

The Tribunal was highly critical of the adjudicator’s approach to evidence (who had initially roundly disbelieved her evidence and dismissed her appeal), in particular, they found that her approach to the aunt’s evidence (who had visited the appellant and her husband in Iran) was "manifestly wrong" in that she had dismissed her evidence as incredible without asking her any questions, especially as the Secretary of state’s representative had asked no questions of her, notwithstanding that the appellant’s aunt had made herself available for cross-examination. The Tribunal consequently reheard the matter themselves. They accepted expert evidence before them that under the Islamic Penal Code, the appellant’s assertion of innocence could not displace the accusations made by her husband, not least because uncorroborated statements made by women are not accepted — yet any man who spoke on her behalf would be seen as partisan or worse. They noted that in cases of (alleged) adultery, the murder of a wife was in fact condoned under Article 61 of the Iranian Islamic Qassa laws. In short, her status as a woman under Islamic law meant that "Women who find themselves…accused of adultery are treated substantially differently to men in the same circumstances… The rights of women are severely limited."


IAT, Getanah Amberber (00/TH/01570), 13 June 2000

Article 1 F(a) only applies to state leaders waging war across international borders; obiter - the killing of soldiers in "battle" as part of an internal conflict would not bring a refugee within the terms of article 1 F (b) either.

The appeal of an Ethiopian national engaged in supplying arms to AAPO for use against the EPRDF, because the Adjudicator had erred in finding him to be excluded under Article 1 F of the Convention. The Adjudicator considered attacks by the AAPO against the EPRDF (although apparently he did not take actually part in them) to amount to "ward of aggression" against the EPRDF soldiers.

By written opinion of 4 April 2000, the UNHCR disagreed with the Adjudicator’s conclusion that the appellant’s actions fell to be considered as participation in a war of aggression. The UNHCR was of the opinion that "there is no evidence for apposition which would assume that a crime of aggression under international law could also be committed by leaders of irregular movement or even by leaders of entities which could be qualified as "state-like".

The Tribunal relied heavily on the UNHCR submission and found that the Adjudicator misunderstood the definitional requirements for exclusion on the basis of participation in a war of aggression, as the appellant was not a leader of a state and was not waging conflict across international borders. Alternatively, they found that had the appellant actually been involved in the shooting of EPRDF soldiers, he could have relied on the case of T [1996] Imm AR 443 (in which the House of Lords considered what constituted a serious non-political crime under Art 1 F (b)). Citing the judgement of Lord Mustill in T, they found that the appellant would not have been excluded as his actions had been aimed at his political opponents whereas "the terrorist does not strike at his opponents: those whom he kills are not the tyrants who he opposes, but people to whom he is indifferent".


IAT, Thievendran Kumaran (00-TH-01459), 7 June 2000

Sri Lanka, internal protection alternative not possible when agents of (feared) persecution are state agents

The Tribunal allowed the appeal of a Sri Lankan national who was a Tamil and LTTE member who was detained and tortured, and who bore visible scars of his ill treatment. The Tribunal attached importance to the fact of the appellant’s scarring, finding that the scarring made him vulnerable to "further ill treatment by the authorities on suspicion of having in the past been associated with the LTTE either in combat or in other circumstances".

In the light, therefore, of the fact that the appellant had a well founded fear of further ill treatment at the hands of the authorities, the Tribunal found that internal relocation was "not a live issue" as " the appellant’s fear of persecution… is not confined to any area or locality. He fears persecution from the authorities." (See also the IAT’s decision in Orechkov (18330) )



Immigration Court Chicago, A76-512-001, 18 October 2000

IJ Grants Asylum to Chinese Girl Fleeing Forced Marriage

Case available in pfd on (under "channels", click "Immigration")

An Immigration Judge (IJ) has granted asylum to a 16-year-old Chinese girl who fled her country to escape being sold into a forced marriage. The respondent, a native and citizen of the People's Republic of China, was apprehended at the border while attempting to enter the U.S. without a valid travel document. She sought relief in the form of asylum and withholding of removal under Article 3 of the United Nations Convention Against Torture (CAT), and in the alternative, voluntary departure.

The IJ found that "the evidence convincingly establishes that the respondent, if removed to China, would likely face severe, if not fatal, persecution."

The IJ also concluded that unmarried Chinese women, who have been subjected to arranged marriages for money according to feudal practices, and who oppose such practices, share a "common, immutable characteristic" sufficient to comprise a particular social group."

The IJ found that, "if returned to China, the respondent will surely endure severe physical and mental anguish as a result of being forced to marry her suitor. Accordingly, what awaits the respondent if she were removed to China clearly constitutes persecution."

The IJ concluded that "the government of China is simply unable or unwilling to protect the respondent from persecution by her parents and suitors. The IJ adduced evidence before the court that although arranged marriages are prohibited in China, local governmental actors would tend to regard this as an intra-family dispute and be reluctant to get involved.

On the issue of an internal protection alternative, the IJ also found that there "it would not be feasible for her to relocate to another part of China. First, (…) because the Chinese authorities discourage internal migration, by requiring its citizens to register with the local police station, essentially notifying her parents and suitor where she is. (…) Furthermore, it would be extremely difficult for the respondent to relocate since she would not be able to find employment, and even if she did, she would be endangered of being kidnapped and sold into prostitution." The court cited expert testimony that "the simple economic brutalities she is likely to face as an unskilled, illegal migrant could well force her into similar tragedies."

Immigration Court, York, Pennsylvania, 21 September 2000 (file no. withheld), on

Mentally disabled Chinese recognised as member of a particular social group

The respondent is a 42-year old single male native and citizen of the People’s Republic of China (born in Hong Kong) who sought relief in the form of withholding of removal (he was ineligible for asylum due to a conviction of an aggravated felony).

Counsel for the respondent based the respondent’s claim of persecution on membership in a "particular social group" comprised of mentally disabled Chinese who are persecuted because of their immutable characteristics of mental retardation. In this regard counsel has appended background documents on the treatment of the mentally disabled in China, which counsel characterises as "a eugenics" policy which either prevents the marriage of mentally disabled Chinese, or requires their sterilisation before permission to marry is granted by the state.

Counsel for the Immigration and Naturalization Service (INS) argued that the claim of persecution was speculative, especially noting that he might never marry and hence not have to be targeted for sterilisation. However, the IJ held that, albeit the claim being "somewhat speculative", "a successful claimant is not required to show that he will certainly be persecuted, only that he is a member of a ‘particular social group’’ which has historically been singled out for harmful disparate treatment amounting to persecution, and that he shares certain immutable characteristics which has caused that group to be targeted for persecution."

The IJ went on to say that "this court has no expertise in mental disabilities or even with the generally accepted legal standards which must be met before a person with mental retardation or other defect can give an "informed" consent [to sterilisation in China], the court remains sceptical that this particular respondent would have the degree of understanding to give his "informed" consent for such a procedure."

The IJ found that the disabled in general in China suffer a "pariah status", most of whom live in extreme poverty and many of whom lack meaningful employment. The IJ found that "[W]hile [INS] Service counsel has accurately points out that the Chinese government has made efforts to improve the plight of its disabled population, serious and systemic problems persist."

The court went on to note that "from a cultural perspective, the Chinese have viewed people with disabilities as second-class class citizens. From either perspective, it cannot be discounted that this respondent’s life would be profoundly altered if he is returned to China. And in this court’s view, especially given that he has no relatives remaining in China, his classification upon his return will be such that he will suffer discrimination and disparate treatment so severe that it amounts to persecution (…), due to his mental disability."

What is worth mentioning is that the court criticised very sharply the "virtually complete lack of protections for aliens with mental problems who are detained by the Service and placed into removal proceedings, which this court is seeing with more frequency. To the extent that present counsel has volunteered to undertake pro bono representation of otherwise unrepresented aliens who suffer mental disabilities, this court is most grateful. But that does not address the chronic and apparently growing problem of aliens detained in Service custody who suffer various degrees of mental illness. The regulations in effect in no way provide much in the way of support for the aliens, nor provide this or any immigration court with the means to ensure fundamental fairness. The regulations even do not provide that an alien must understand the nature of the proceedings against him, as long as that alien has an attorney, family member, or prison official to act for him. (…) To an uncomfortable degree, the regulations have not kept pace in the years with the need for legal support for those aliens most in need, i.e. young juveniles and those with mental incapacities.

The IJ went on to call for the Attorney General to address this issues, "to provide them more protections in the regulations to ensure their due process rights, at least until such time as the Congress provides for government-paid legal representation


INS standards for facilities housing

The U.S. Immigration and Naturalization Service (INS) has just released hundreds of pages detailing uniform, comprehensive standards for facilities housing INS detainees. The 36 standards, which range in topic from access to legal counsel to grievance procedures, will take effect in January 2001 at INS-owned detention facilities, and will be phased in over a two-year period at the INS's contract facilities as well as at state and local facilities that have entered into Intergovernmental Service Agreements (IGSAs) with the INS. The full text of the new INS "Detention Operations Manual" is available on the INS's website at



We have prepared a survey (see attachment L060100) on the situation of Chechen asylum seekers in selected countries (Belarus, Denmark, Estonia, France, Germany, Lithuania, Moldova, Poland, Ukraine). We have also compiled some background information (articles, reports and websites).

Special thanks to Bettina Scholdan and her colleagues of ACCORD (Austrian Centre for Country Information and Asylum Research and Documentation), for providing us with the following documents. These documents are available upon request from the Information Officer, Katy Fletcher,

Information from ACCORD on Russian Federation/Chechnya;

treatment of ethnic Chechens in Chechnya, internal flight alternative, treatment in other parts of the Russian Federation

Compilation of documents from the Global IDP Project, "Profile Of Internal Displacement : Russian Federation. Compilation of the information available in the Global IDP, Database of the Norwegian Refugee Council (as of 10 October, 2000)"

Report of Human Rights Watch, "Welcome to Hell. Arbitrary Detention, Torture and Extortion in Chechnya", 2000

Report of the Russian Memorial Centre on Human Rights violations in Chechnya, June-July 2000

A report by Eliza Mussayeva, Memorial Centre, held at the UNHCR/ACCORD Seminar on Country of Origin in November 2000, will be published in January 2001 (see ACCORD website or get in touch with ACCORD)

The following UNHCR documents are also available upon request from Katy Fletcher

"UNHCR guidelines on asylum seekers from Chechnya (Russian Federation)", August 2000

Two UNHCR documents as of June and October 2000 "Background Information on the situation in the Russian Federation in the context of the return of asylum-seekers"

Three documents containing statistics of asylum applications registered with UNHCR Moscow.


Separated Children coming to Western Europe. Why they travel and how they arrive

Published by Save the Children, London

Separated Children Seeking Asylum in Europe: A Programme for Action.

Save the Children/ UNHCR, Report available from Save the Children Stockholm,


Canada, Immigration and Refugee Board, Child Refugee Claimants: Procedural and Evidentiary Issues (September 30, 1996)

See also "Policy Developments" on UN COMMITTEE ON THE RIGHTS OF THE CHILD, Final Concluding Observations on FINLAND, 6 October 2000 on unaccompanied child Asylum Seekers


We have prepared a survey of information on gender-based persecution (see L060200) containing links to reports, articles and gender guidelines, as well as links to a survey on gender case law, information on networks and conferences. Please find it in the annex.

Please note also the case summaries above in:

Germany: Bavarian Administrative Court of Ansbach, 17 March 2000

UK: IAT, Hrickova (00/TH/02034, 9 August 2000; IAT, Miriam Fatemeh (00/TH/00921), 3 April 2000

USA: Immigration Court Chicago, A76-512-001, 18 October 2000



New website on case law University of Michigan
The site currently collects, indexes, and publishes selected recent court decisions that interpret the legal definition of a "refugee." It presently contains cases from the highest national courts of Australia, Austria, Canada, Germany, New Zealand, Switzerland, the United Kingdom, and the United States.

5th UNHCR Country of Origin Information Workshop.

ACCORD was responsible for reporting on the 5th UNHCR Country of Origin Information Workshop, organized with the Slovak Migration Office and held in Bratislava, 13-14 December 1999. UNHCR regularly invites independent experts and UNHCR experts to present the situation in the countries of origin of asylum seekers. In 1999, experts were asked to prepare presentations on Armenia, Azerbaijan, Georgia, Pakistan, the Democratic Republic of Congo, and Congo-Brazzaville. You may download the full-text version of the country reports as rtf-files.

A fabulous collection of EU-relevant documents on asylum and migration in German from the website of Pro Asyl Germany:

Source: Electronic Immigration Network Autumn Newsletter

The advent of the Human Rights Act (HRA) coincides with the implementation of the main provisions of the Immigration and Asylum Act 1999 and the arrival of a rash of statutory instruments and supplementary provisions defining such fundamental matters as the jurisdiction of the IAT and the rights to appeal. We have sought to assist members in many ways, including the following:

In EIN Resources, you will find direct web links to the HRA, the 99 Immigration and Asylum Act, the Statutory Instruments pages of the HMSO, and to the EctHR

In the database, you will find the first tranche of selected, indexed extracts from judgments of the ECtHR, (see the article below headed ‘progress in the members site’)

In the EIN search index you will find several search terms pertaining to Strasbourg jurisprudence including the index term ECtHR (see the section headed ‘Search Index’)

In the Case Law Bulletin Board, you will find pointers to Statutory Instruments (e.g. SI 2444) and Immigration rule changes, highlights of the 99 Act, notes on the ECHR, the Protocols and the list of ECtHR judgments. You will also find notice of significant new case law, such as the determination in Pardeepan on the efficacy of the HRA in relation to pre-October 2nd decisions.


REDRESS "Challenging Impunity for Torture: A Manual for bringing criminal and civil proceedings in England and Wales for torture committed abroad

This manual aims to contribute to this still developing area and little known area of law. Relevant cases include Pinochet and Al-Adsani are analysed, and the applicable law and procedure are set out for bringing criminal and civil proceedings in the courts of England and Wales for torture committed abroad. The Manual aims to be of practical use to legal practitioners and human rights activists in the UK, but will also be of interest to those in other jurisdictions. that while the main readership envisaged in English lawyers, there is much that is of interest to lawyers in other countries. Part III of the book mainly focuses on English civil law, and probably mainly of interest to UK lawyers. But Parts II and II are quite universal - they deal with principles of universal jurisdiction, and obligations on states parties to the Torture Convention and the Geneva conventions to bring prosecutions, customary international law on such matters, international law on immunities and amnesties and etc. So it is all stuff that mutatis mutandis applies in many countries. There is also quite a detailed discussion of some of the intricacies of the Pinochet judgment. Also a point of interst relating to exclusion clauses n the 1951 Convention -- (crudely speaking, if people are bad enough to qualify for the exclusion clause 1F, then they are bad enough to put on trial — which in a way is protection because it prevents people from being excluded under 1F and then pushed out to a country where they may be at risk.)

Gregor Noll, "Negotiating Asylum. The EU acquis, Extraterritorial Protection and the Common Market of Deflection"

How accessible is the European Union for those seeking asylum or other forms of protection? Which norms govern access to protection in the EU? Is the EU acquis in these areas in conformity with international law? What tools does international law offer to solve conflicts between them? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues?

Those are the questions "Negotiating Asylum" seeks to answer. To do so, the author combines the potential of legal formalism with an analytical framework drawing on political theory.

The thesis is published by Martinus Nijhoff Publishers/Kluwer Law International. For more details see

Trine Lester (2000): Access to Legal Services for Asylum-seekers in Britain: An exploratory study of recent developments

Impact of EU Enlargement on Migration and Asylum in Central and Eastern Europe, taking the examples of the Czech Republic and Poland, March/June 2000

Published by Churches’ Commission for Migrants in Europe and the International Catholic Migration Commission

Lawyers Committee for Human Rights

Is This America? The Denial of Due Process to Asylum Seekers in the US:

Lawyers Committee for Human Rights: The Exclusion Project

The International Refugee Program is currently conducting an in-depth examination of the principles and practice by which asylum-seekers suspected of having committed serious crimes outside their country of refuge are excluded from protection as refugees under article 1(F) of the 1951 Convention Relating to the Status of Refugees. A special issue of the International Journal of Refugee Law on exclusion is expected soon.

Pro Asyl Memorandum zum Schutz der Flüchtlinge, published in September 2000,

Legal Handbook for Refugees. A Practical Guide through German Asylum and Alien Law by Hubert Heinhold, April 2000, published by Pro Asyl, ISBN 2-86059-496-6

This Handbook is also available in German and French*

Article on "Protection Against Persecution Because Of "Membership Of A Particular Social Group" in German Law (And Further Considerations) by Paul Tiedemann (judge of the Administrative Court Frankfurt am Main,, 21 November 2000

UNHCR The State of The World's Refugees Fifty Years of Humanitarian Action

Download on

Greek Council for Refugees, British Refugee Council/Refugee Legal Centre, Danish and Dutch Refugee Council: How to conduct Asylum Interviews: A best practice Training Pack for the Training of Trainers, User Manual, June 2000

US Supreme Court to Rule on Detention of "Lifers"

On October 10, the Supreme Court announced that it would review the constitutionality of the government's current practice of indefinitely detaining immigrants and refugees whose home countries will not take them back. Thousands of immigrants and refugees, known as "lifers," have been ordered deported for criminal offences, but jailed indefinitely because their removal orders cannot be executed. (See Refugee Reports, Vol. 20, No. 1.) The date for oral argument has not been set, but the case will be heard before April 2001.

See also the list of publications in the "Policy Developments" (a report on the fairness and sustainability of asylum determinations at the first instance on , and a paper on the right to work in Ireland on, as well as a study on how decisions to detain asylum seekers are made at ports of entry in the UK on


International Conference, 4 - 6 May 2001, Montréal
The Canadian Council for Refugees will be hosting an international conference with the goal of promoting recognition of gender-related persecution as a basis for refugee protection. The conference will bring together refugee women, refugee rights groups, refugee decision-makers, academics, government representatives, UNHCR and others interested in ensuring that women fleeing gender-based persecution receive protection.  For more information, please see

International Summer School In Forced Migration, 2 - 20 July 2001: Refugee Studies Centre, University Of Oxford

The Refugee Studies Centre at Queen Elizabeth House, University of Oxford is offering a three-week residential Summer School in Forced Migration from 2 - 20 July 2001. The course is intended for those who wish to analyse, understand and improve their practical knowledge of forced migration.

For more details see the RSC website:

Weekend Workshop "The Law of Refugee Status", 19-20 May 2001, Refugee Studies Centre at Queen Elizabeth House, University of Oxford

For more details see the RSC website:

No. 6

December 2000







Central & Eastern Europe developments

ECRE's capacity-building project for refugee-assisting NGOs in Russia, Ukraine and Belarus received new funding in September 2000, and the first stage of the project came to an end. Attached (ee0601) is a summary report of activities held under this project in the three years it has been running, together with some general information on conditions for NGOs and refugees in Eastern Europe.

For more information on this work please contact Daniel Drake ( or Rachel Bugler ( at the ECRE Secretariat."

No. 6

December 2000








General developments

ECRE Web-site

The design stage is completed and the site is now being rebuilt. We look forward to launching the site early next year. Contact

The site will have a full search facility and a database of member agencies, contact persons and experts.







E060100 Summary report of activities, Eastern Europe Project