No. 5

October 2000









Policy developments


New Position Papers p3

Meetings p3

Country Developments p5

Publications p4

Council of Europe p4



Legal developments

Council of Europe p6

European Court of Human Rights p6

Country Developments p8


UN Comittees p26

Articles of Interest p29
Seminars p30
Research Project p30

Central & Eastern Europe developments

Central Europe

ECRE/ECRAN Advocacy Workshop p32

Progress on the fundraising toolkit p32

Phare Access Programme p32

Eastern Europe p33

Brussels Developments

EU Asylum Policy Developments p34

European Refugee Fund p34

Temporary Protection p34

Family Reunification p35

Charter of Fundamental Rights of the p35

European Union

Minimum Standards on Asylum Procedures p36

Common Measures to combat Trafficking p36

ECRAN News p37


General Developments

Letter to Organisations, institutions and p39

contacts involved in integration and reception

ECRE Web-site p39

Vacancies p39

New Brussels Office Address p39

ECRE Annual Report p39

Forthcoming ELENA course p39


List of Annexes p40

No. 5

October 2000









Policy developments


The 51st Session of the Executive Committee (EXCOM) took place in Geneva, 2-6 October. The theme of the session was UNHCR@50: from response to solutions. The Conclusions on International Protection were adopted with little debate. The debate on international protection was somewhat more interesting, with several delegations (Canada, Australia, the United Kingdom) emphasising the need for new approaches to refugee protection, specifically "regionalisation" of refugee status determination and resettlement. ECRE and other NGOs met the Australian Minister for Immigration and Multicultural Affairs (Senator Phillip Ruddock) on how such new approaches would look, but the discussion was inconclusive. The UK sent a delegate member specifically to seek the views of other delegations on this issue, which the UK Government call the "Lisbon Agenda", following Home Secretary Straw’s speech at the JHA meeting in Lisbon, June 2000.

High on the agenda of EXCOM was the security of humanitarian personnel, in the wake of the murders of three UNHCR staff in West Timor and the murder of one UNHCR staff and the kidnapping of another in Guinea. The UN Secretary-General, Kofi Annan, made an extraordinary appearance at EXCOM to speak on the issue and to pay tribute to Mme Ogata and to remind states of their asylum obligations. The head of the World Food Programme, Catherine Bertini, also spoke on the issue of staff security. NGOs pointedly remarked that many NGO staff had been killed in these areas of operation, without comment by the international community.


The "three circles" consultation on international protection

As mentioned in the last documentationservice, the UNHCR Department of International Protection (DIP) has initiated a series of global consultations on the meaning and content of international protection of refugees. This EXCOM gave DIP a further opportunity to expand on the process and to respond to points made during the prior consultation period on the "three circles" concept paper.

In answer to concerns raised, DIP is splitting the three circles into different processes, i.e. there will be different partners for different circles, with different outcomes. The first circle- the core principles of the Refugee Convention- will not be subject to debate. Instead, States Parties will merely be asked to re-affirm their commitment to the Convention and intention to implement it. The outcome will be an event to mark the 50th anniversary of the Convention. ECRE informed DIP of its intention to hold a "Parallel Summit" in Brussels, December 2001.

The second circle- questions of interpretation, such as membership of a particular social group- will be the subject of round-table discussions between states, experts and NGOs. This is an academic exercise, possibly under the auspices of the Carnegie Endowment, with the outcome to be further guidance on interpretation of the Convention. ECRE asked that "non-state agents" be deleted from the group of issues, and this has been done. The NGOs will be asked to participate according to their particular expertise. ECRE has presented DIP with its position papers on the interpretation of Article 1 of the Refugee Convention and Complementary Protection.

The third circle- areas not covered by the Refugee Convention, such as protection in times of mass influx- will be the subject of discussions between members of EXCOM. In answer to NGO concerns that this is an exclusive forum, not open to NGOs, a special meeting of EXCOM will be held in early December to discuss the format and process of the discussions, including NGO participation. Several states in EXCOM, notably the USA and the Nordic States are very pro-NGOs and will argue for their participation. Finland, in particular, publicly requested during EXCOM that NGOs be allowed to participate in this process "especially the European Council on Refugees and Exiles, the Immigration Law Practitioners Association and the Migration Policy Group". NGOs, including ECRE, have already raised concerns that some of the issues identified in the third circle are, in fact, covered by the Convention and that, in a standard-setting exercise, NGOs must be allowed to participate as of right.

ICVA has agreed to facilitate NGO in-put to the consultations.



The Pre-EXCOM consultations with NGOs took place in Geneva, 27-29 September. The format of the meeting was much more informal this year, with panel discussions on selected issues, such as the role of NGOs as implementing partners of UNHCR and the role of the military in humanitarian crises. ECRE presented the NGO view of developments in Europe since last year, including Tampere, EU developments, "regionalisation" of refugee protection, funding for Central European NGOs and lack of progress in bringing to justice those responsible for human rights abuses against Chechen refugees and IDPs. The session was informal and was followed by a lengthy Q&A session, during which ECRE had to defend its position as PARinAC Focal Point for Europe.

The NGO side of the South-East Europe session was presented by Igor Vukcevic of Alter Modus, a new member agency in Montenegro. The session concentrated on prospects for return to Croatia and Bosnia-Herecegovina, contingency preparedness for possible refugee outflows from Montenegro, the situation of minorities in Kosovo and new refugee problems in the region, such as asylum-seekers from other parts of the world and the need for status determination procedures, and the trafficking of women into and out of the region.

Meeting with the Bureau for Europe

The biannual strategic meeting between the ECRE executive committee and the UNHCR Bureau for Europe took place in Geneva, 29 September. Issues discussed included UNHCR’s strategy for Central Europe and funding of NGOs there, the EU agenda and developments in countries in Europe. A report of the meeting will be available soon.

Meeting with the Department of International Protection

An informal, staff-level meeting took place between DIP and ECRE in Geneva, 29 September. Issues discussed included the recent directives from the European Commission, trafficking and cross-over areas of work.



ECRE has launched two new position papers on Interpretation of Article 1 of the Refugee Convention and on Complementary Protection. These are attached to this document service (P050100, P050200). They were launched, along with an appeal to European governments, with the assistance of Mme Ogata at the ECRE BGM in Geneva, 30 September. The appeal is also attached (P050300)



Caritas Europa held a meeting in Zagreb, 14-17 September on refugees. A report of the meeting will be available shortly. The discussions were very wide-ranging.

Radda Barnen hosted a meeting of the Separated Children in Europe Programme in Stockholm, 21-22 September. A report on practices concerning separated children was launched, and a report on why separated children come to Western Europe. Both excellent reports are available from Save the Children offices. The meeting also drafted an appeal to the Swedish government to prioritise certain issues during the Swedish Presidency of the EU.

The Lawyers Committee for Human Rights will be holding an important meeting on refugee protection in Washington DC on 14 November. Details from them. The Greek Refugee Council will be holding an important meeting on refugee protection in Europe in Athens, early December. Details from the GRC.



International Crisis Group (ICG) released on 29 August 2000 a fresh assessment of the international community’s performance in Kosovo since the end of the conflict in June 1999. It is entitled Kosovo Report Card, available at: The paper tallies the successes and failures of both KFOR and the UN civil presence (UNMIK).

OSAR/SFH on Kosovo and Democratic Republic of Congo

OSAR/SFH (Organisation Suisse D’Aide Aux Refugies, Schweizerische Fluechtlingshilfe) issued in July 2000 an analysis of the situation in the Democratic Republic of Congo. It issued as well a paper on the social and humanitarian situation in the summer 2000 in Kosova (update of the analysis of the Kosova situation of March 2000).

UNHCR GENEVA: Reception Standards For Asylum Seekers in the European Union

The UNHCR Geneva issued in July 2000 a study on reception conditions of asylum seekers in the 15 Member States of the European Union. It includes also UNHCR recommendation on reception standards.



CoE Parliamentary Assembly
Asylum and Immigration: same sex couples and families must have the same rights as heterosexuals

30 June 2000 the Council of Europe Parliamentary Assembly adopted a recommendation today on homosexuals’ immigration and asylum rights in Council member States and restated its position, already expressed in the Recommendation 924 (1981), condemning discrimination against homosexuals practiced in some Council member States, Recommendation 1236 (1994), on the right of asylum, and Recommendation 1237 (1997), on the protection and reinforcement of human rights of refugees and asylum seekers in Europe.

Ruth-Gaby Vermot-Mangold (Switzerland, SOC), rapporteur for the Committee on Migration, Refugees and Demography, described the situation of gays and lesbians’ rights in member States, noting that immigration policies in most Council member States discriminate against homosexuals and referring to documented cases of persecution in some of these countries.

The Assembly urged member States to immediately adopt criteria and guidelines dealing with homosexuals seeking asylum. This would entail re-examining refugee status determination procedures and policies with a view to recognising as refugees those homosexuals whose claim to refugee status is based upon well-founded fear of persecution for reasons enumerated in the 1951 Geneva Convention and the 1967 Protocol relating to the Status of Refugees.

It also asked member States to review their policies on social rights to ensure that homosexual and heterosexual partnership and families are treated on the same basis and that bi-national couples are accorded the same residence rights, regardless of sexual orientation.

The Assembly encouraged the creation of NGOs to defend the rights of refugees, migrants and bi-national homosexual couples and to network activities in this area, in particular with the UNHCR, in order to systematically monitor the respect of gays and lesbians’ immigration and asylum rights and to ensure that the public officials concerned are trained and informed as to the specific situation of homosexuals and their partners.

Parlamentary Assembly Doc. 8761, Arrival of asylum seekers at European airports was issued on 8 June 2000

See on the situation of Roissy Charles de Gaulle, Paris (8 January 1998). Fiumicino (Leonardo da Vinci) Rome (12 January 1998). Lisbon (30 0ctober 1996). Warsaw Airport — Okecie (23 March 1998). Moscow, Sheremetevo 2 (18 October 1999). Vienna (19 January 1997).



Recommendation No. R (2000) 9 of the Committee of Ministers to member states on temporary protection adopted on 3 May 2000 at the 708th meeting of the Ministers’ Deputies




On 31 May 2000, Kosovars granted temporary protection were informed about the repeal of the so-called "Lex Kosovo". Until 15 June 2000, those Kosovars who wished to remain in Denmark could apply for asylum or request to stay on humanitarian grounds. Those eligible for the humanitarian status included single mothers with no more living relatives in Kosovo, children whose parents cannot be found, elderly without family support, and handicapped and ill people. After periodical review of their situation during two years, they will receive a temporary residence permit. After 3 years, a permanent residence permit will be granted.



New regulations for Kosovar refugees

Early July 2000, the Ministry of Interior announced new regulations for Kosovar refugees under the programme of temporary protection in Italy expired on the 30th of June. According to the forthcoming regulations, Kosovar refugees should return to Kosovo in the framework of a programme of assisted repatriation implemented by IOM. Kosovars will be offered the equivalent of 1.500 DM per adult and 500 for each minor.

A residence permit on humanitarian grounds for an extra year will be allowed to members of certain categories of refugees, whose repatriation would violate the principles of dignity and safety according to UNHCR recommendations.

Moreover, Kosovar refugees, who are able to show a certain level of social integration (that is, a legal job and autonomous accommodation) may avoid repatriation by applying for a long term residence permit for work reasons.

Because of bureaucratic procedures and the summer break new regulations will be published in the Official Journal and enter into force only in September 2000. Italian NGOs have strongly condemned the delay which has caused serious difficulties to many refugees. They have been without a legal residence permit for two months; those who lost their job in the meanwhile faced the impossibility to be regularly hired again and so they could be exposed to a forced repatriation when the new regulation have entered into force.



New rules for unmarried partners

The unmarried partners policy concession has now been turned into a new Immigration Rule - as of 2/10/00, and " member of family/family visitor" has been defined for the purposes of the Immigration and Asylum Act of 1999 to include unmarried partners who have lived together for two of the last three years. The main beneficiaries of this Rule, although not exclusively, are gay and lesbian couples. For further information, contact the Stonewall Immigration Group.



No. 5

October 2000









Legal developments


Romania ratifies the European Agreement on Transfer of Responsibility for Refugees

On 19 July 2000 Ambassador Sabin POP, Permanent Representative of Romania to the Council of Europe, handed the instrument of ratification of the European Agreement on Transfer of Responsibility for Refugees to Walter SCHWIMMER, Secretary General of the Organisation.

This Agreement was drawn up by the Council of Europe with humanitarian interests in mind. Its aim is to secure the adoption by its Member States of standard rules making it possible to determine which State is to assume responsibility for a refugee, in particular in connection with the issue of travel documents.

Difficulties frequently arise when responsibility for refugees is transferred legally from one country to another, particularly when it comes to issuing travel documents, on which matter the first country in which a refugee is received often has different views from those of the second country.

The Agreement lays down, among other things, the conditions in which responsibility for issuing a travel document is transferred from one State to another when a refugee changes his place of residence.

This text has already been ratified by Denmark, Finland, Germany, Italy, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom. It has also been signed by Belgium, Greece and Luxembourg. It will enter into force for Romania on 1st September 2000.

Protocol No. 12 to the European Convention on Human Rights adopted, which provides for a general prohibition of discrimination.

On 27 June 2000 the Council of Europe Committee of Ministers adopted Protocol No. 12 to the European Convention on Human Rights, which provides for a general prohibition of discrimination. The current non-discrimination provision of the Convention (Article 14) is of a limited kind because it only prohibits discrimination in the enjoyment of one or the other rights guaranteed by the Convention. The new Protocol removes this limitation and guarantees that no one shall be discriminated against on any ground by any public authority. The Protocol will be opened for signature by member States on 4 November 2000 in Rome, on the occasion of the European Ministerial Conference on Human Rights.


European Court of Human Rights

Jabari vs. Turkey (No. 40035/98, Judgement of 11.07.00)

Ms Jabari is an Iranian national who was arrested in October 1997 after being suspected of having intimate relations with a married man. In February 1998, she fled to Turkey, with the intention of travelling to Canada, through France, on a forged Canadian passport. However, she was intercepted in France and returned to Turkey. Once in Turkey she lodged an application for asylum which was declared inadmissible because she had missed the 5 day deadline. She was then granted refugee status by UNHCR. However, her recourse against the deportation order before the Ankara Administrative Court was dismissed. She lodged a complaint before the European Court of Human Rights (the Court) on the grounds that i) her deportation to Iran would violate Art. 3 of the ECHR; ii) in violation of Art. 13, she did not have an effective remedy against the negative decision rejecting her asylum claim and leading to her deportation. After examination of the current law and practice in Iran concerning adultery, and due consideration for UNHCR's own assessment of the applicant's asylum claim, the Court considered that there would be a violation of Art. 3 if the deportation order was executed. Moreover, in an interesting obiter dictum the Court criticised the 5 day deadline imposed by the Turkish asylum procedure by saying that;

'the automatic and mechanical application of such short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in article 3 of the Convention'.

The Court also considered that the recourse against the deportation order made before the Ankara Administrative Court could not be regarded as an effective remedy in the sense of Art. 13 of the ECHR. As the Turkish authorities have not examined the substance of her claim, she could only challenge the legality of her deportation in judicial review proceedings. In the present case, such a judicial review did not have the effect of suspending the execution of the deportation order, nor did it allow the Administrative Court to examine the merits of the claim for protection. Therefore, the Court found a violation of Art. 13 of the ECHR. In the Court’s view, "given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attaches to Art 3, the notion of an effective remedy under Art 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation impugned."

G.H.H. and Others vs. Turkey (No. 43258/98, Judgement of 11.07.00)

G.H.H and his wife are Iranian nationals and were anti-government activists in Iran in the 1970s and the 1980s. After he was detained on several occasions because of his political views and placed under surveillance by the Iranian intelligence service, IC fled to Turkey in April 1997, where his wife and son joined him later. He was unable to register as an asylum seeker, since he missed the 5-day deadline. He was also denied refugee status by UNHCR in May 1997 and subsequently the Turkish authorities issued him with a deportation order. UNHCR agreed to re-open the case on the basis of new elements and it was finally considered favourably in March 1999. His temporary stay in Turkey was extended, pending resettlement. He argued before the Court that his removal to Iran would constitute a violation of Art. 2, 3 and Art. 8 of the ECHR, given the treatment that he would receive and the impact of his deportation on the family unit. G.H.H. also claimed that there was a breach of Art. 13 in that he was denied an effective remedy against the deportation order. In its judgement, the Court considered that following his resettlement to the US, there was no need to examine their claim since they are not 'victims' anymore. Concerning the part of the claim based on Art. 13, the Court determined that at the moment when G.H.H were to be sent back to Iran, that is after rejection by UNHCR and after confirmation of the deportation order, they had not demonstrated that they had an arguable claim, i.e. a claim which appeared plausible. Therefore, the Court held that there was no violation of Art. 13.

Ciliz vs. the Netherlands (No. 29192/95, Judgement of 11 July 2000)

The applicant is a Turkish national who was issued an indefinite residence permit following his marriage in the Netherlands. However, as a consequence of his divorce and despite the fact that he had a child, the residence permit was withdrawn. He then initiated a procedure in order to gain parental access to his child. While this procedure was on-going, he was nonetheless expelled from the Netherlands. The applicant lodged a complaint before the Court, arguing that his expulsion constituted a violation of Art. 8 of the ECHR. The Court declared that the divorce of the applicant was not an obstacle to the existence of a family life in the sense of the ECHR. Therefore, the expulsion was indeed an interference with the applicants right to family life. Turning to the question of determining whether such an interference was necessary in a democratic society, the Court noted that while the applicant had not made efforts to see his son in the period immediately following the divorce, he however initiated a procedure in order to establish a parental access arrangement. In the Court's opinion, by prematurely expelling the applicant the Dutch authorities prejudged the outcome of the parental access procedure. The failure to co-ordinate this latter procedure with the expulsion procedure, prevented the further development of family ties between the applicant and his son. This constitutes a violation of Art. 8 of the ECHR.

Friendly settlements

Tatete vs. Switzerland (No. 41874/98, Judgement of 6 July 2000) (see DS July/00)

The applicant is a national of the Democratic Republic of Congo (DRC) who entered Switzerland illegally in February 1997. She applied for refugee status, claiming that she had been questioned by the then Zairian security services on the activities of political opponents living abroad. Her claim was rejected both in first instance and on appeal for lack of credibility. She was consequently requested to leave Switzerland, but in the meantime she learned that she suffered from AIDS and from pneumonia. In December 1997, she introduced a new asylum claim, arguing that it was not reasonable to expect her to return to the DRC given her state of health and the sanitary situation prevailing there. Her new claim was substantiated by medical certificates showing that she needed proper and regular treatment which would increase her life expectancy. She argued that her expulsion back to the DRC would have dramatic consequences on her condition, also because she would be ostracised by her family. The Swiss authorities rejected her request, claiming that she could be treated in DRC, eventually with medicines provided by Switzerland, that her family there could help her through this difficult moment and that there was no cure for AIDS anyway. Her complaint before the Court, based on Art. 2 and Art. 3 of the ECHR, was declared admissible on both grounds on 18 November 1999. On 2 May 2000, the Swiss government indicated that it was willing to issue a temporary residence permit to the applicant. It declared that this was being done only for humanitarian reasons and that this did not imply recognition of any responsibility under Art. 3 of the ECHR. For the government, such a responsibility cannot be engaged simply because better medical treatment is available in Switzerland. The case was consequently struck off of the Court's list.




FEDERAL court of Australia, Minister for Immigration & Multicultural Affairs v Jang (includes corrigenda dated 15 August 2000) [2000] FCA 1075 (4 August 2000)

China, religious persecution, consideration of the relocation principle in respect of feared persecution arising from enforcement of a national law.

This case involved the question whether it is appropriate to apply the relocation principle to feared persecution arising from enforcement of a national law. The Minister asked for review of a decision of the Refugee Review Tribunal. The respondent is a Chinese women who was arrested by the authorities for practising an unauthorised religion and was taken into custody, along with two others from her prayer group, mistreated and ordered that she must not continue to practise an unauthorised religion. After her release, the applicant continued to be warned that if she continued to practise this religion she would be arrested again. She finally decided to flee from China and travelled to Australia. According to a cited United States Department of State report of April 1998, "the Government generally permits small groups (10 to 20 persons) to gather and worship privately in their homes but large religious meetings are required to be held at an officially designated place of worship. Public prayer and open religious services are not tolerated and are severely restricted and sermons must not address political matters. The level of surveillance and harassment of religious groups varies from region to region and is largely dependent on the local cadre in charge of religious affairs."

It was accepted that the applicant had a well founded fear of being persecuted on grounds of religious belief. It was challenged before the Court whether it would have been reasonable to relocate to other regions of China as the level of surveillance and harassment of religious groups varied from region to region and is largely dependent on the local cadre in charge of religious affairs.

The Court held that "where the feared persecution arises out of action taken by government officials to enforce the law of the country of nationality, or to implement a policy adopted by the government of that country, it will be much more difficult for an Australian decision maker to reach satisfaction that there is no real risk of the refugee applicant being persecuted if returned to that country. In such a case, if there is a safe area, this must be because the responsible officials have failed to discharge their duty to enforce the relevant law or policy. As Ms Henderson [counsel for the respondent] pointed out, that situation might change overnight; either because of the appointment of one or more new officials or insistence on enforcement by superior officers. There will often (perhaps usually) be a "real risk" of that happening.

The Court suggested that "[T]here may be cases where enforcement of a particular law would raise such practical, cultural or other obstacles that a decision maker might become satisfied it was highly unlikely the law would ever be enforced. MMM [MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324] seems to be an example of that situation. In that case Madgwick J considered whether the existence of a law criminalising particular homosexual acts could be said to pose a real risk of persecution to the applicant, as a member of a particular social group consisting of male homosexuals. His Honour referred to "powerful religious and social factors (discussed in the literature referred to by the Tribunal) apparently tending to keep homosexual behaviour, along with many other sexual behaviours, quite unmentioned in a way that would appear to inhibit the publicity attending criminal prosecutions". However, such cases are likely to be rare."

The Court concluded that "However, as the Tribunal demonstrated by its citation of country information, the policy stance, and persecutory activities, of Jilin government officials were not a Jilin aberration; they were based upon Chinese national law. (…) The law requiring registration of religious institutions, and proscribing religious activities outside registered institutions, is a national law, applicable throughout the whole country. The practices followed by Ms Jang in Jilin Province contravened that law. She feels committed, by conscience and religious conviction, to resuming those practices if she is returned to China. It follows she is committed to resuming the contravention of Chinese national law. The country information considered by the Tribunal indicates that, although the degree of risk of punishment for such contravention varies from province to province and from time to time, nowhere in China are such practices permissible. Accordingly, it must have been open to the Tribunal to hold that, anywhere in China, there would be real risk of punishment." The Court consequently dismissed the application of the Minister of Immigration.


FEDERAL COURT OF AUSTRALIA, Minister for Immigration & Multicultural Affairs v Cali [2000] FCA 1026 (3 August 2000)

Whether Somali women are members of a particular social group - whether evidence to justify finding that women in Somalia are a particular social group - whether the applicant feared persecution 'for reasons of' membership of a particular social group.

The Federal Court of Australia (FCA) upheld the Refugee Review Tribunal’s finding that young Somali woman constituted a particular social group. The Court held that the causal link will readily be established and readily be inferred once discrimination and persecution were found: "The approach of the High Court in Chen [Chen Shi Hai v Minister of Immigration and Ethnic Affairs, see DS July ] to the causation issue reveals that often the determination that conduct amounts to persecution cannot be divorced from the inquiry whether the conduct was undertaken for a Convention reason. The conclusion that conduct is persecutory will in those cases carry with it as a matter of ‘common sense’ or will ‘readily’ lead to the conclusion that the conduct was done for a Convention reason. In the present case the Tribunal seems to have adopted such an approach." The Court went on stating that as the Tribunal referred to the fact that the same danger of sexual violence did not apply to males; by citing the Tribunal’s finding " ‘that women are systematically discriminated against’ alone, or at least, together with the nature of rape as a gender-based persecution, provided the basis upon which the Tribunal was entitled to find that the respondent had a well founded fear of rape for the reason that she was a young Somali woman."


Al-Rahal v Minister for Immigration & Multicultural Affairs [2000] FCA 1005 (28 July 2000)

Iraqi citizen- prior residence and family in Syria — Syria safe third country for Iraqi, Tribunal finding no obligation on Australia not to refoul

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1125 (15 August 2000)

Defining non-political crime Art 1 F

The Federal Court referred to the U.K. House of Lords judgment in T. v Home Secretary [1996] AC 742 (in particular the principle stated by Lord Mustill in T at 764), the Supreme Court of the United States in Immigration and Naturalization Service v Aguirre-Aguirre (3 May 1999, case number 97-1754), and to the decision of the Federal Court of Canada in Gil v Canada (Minister of Employment and Immigration) [1994] FCJ 1559. The FCA held that "[A]ll the authorities [the cited cases above] agree that, in addition to ‘incidence’, there is a further matter to be taken into account in ascertaining whether a particular crime is non-political. It is variously expressed in terms of weighing, proportionality or whether the crime is particularly atrocious. (…) It is that a crime will be non-political if it is calculated to cause death or injury indiscriminately to innocent persons not themselves involved in the political struggle. T, Aguirre-Aguirre and Gil were all cases involving crimes of that kind. Lord Mustill described such crimes as "terrorist" crimes. Again, illustration or label should not be mistaken for definition. To seek to achieve political ends by attacking, rather than political or government targets, uninvolved members of the public is to commit a crime which is non-political; of course, it does not follow that to kill or maim low level government officials, having no particular influence or involvement in the political struggle, is to commit a political crime."

The "incidence-theory" mentioned above essentially requires that "there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and the commission of the offence is an incident of this struggle" (Lord Mustill in T at 764)

The FCA went on in saying that "[I]t was insufficient [for the lower Refugee Review Tribunal], particularly, to reach that conclusion [that Singh committed a non-political crime] merely on the basis that the murder was a "revenge" killing. If there is a political struggle in which agents of the government, including police, have a policy of torturing and killing those who oppose the government, we see no reason why crimes directed at those agents, or police officers, may not be regarded as political (that is, as satisfying the "incidence" test) even though they may be characterised as crimes of revenge. It is, of course, necessary to look at the circumstances of the particular crime in order to decide (on the basis of what may be very limited information) whether there are serious reasons to believe that it cannot be characterised as political. It is necessary also, of course, to consider whether the crime has characteristics which, notwithstanding "incidence", require it to be regarded as non-political."



Federal Constitutional Court on state-like organisations

The Federal Constitutional Court in a recent judgment on 10 August 2000 held that the Federal Court has understood the concept of quasi-state persecution too narrowly; its decisions are, thus, not in conformity with the constitutionally granted right of asylum (Art 16 a of the German Constitution). The Federal Constitutional Court held that the Federal Administrative Court has put too much emphasis on the requirement that the territorial (regional) power of a state-like organisation must be externally stabilised on a durable basis. The Federal Constitutional Court said that the element of "statehood" or "quasi-statehood" shall not be contemplated as detached from the constitutional element of "political" persecution and shall not be examined according to an abstract definition based on state-theory. The issue of statehood or quasi-statehood has to be put in relation to the question whether a certain measure constitutes political persecution in the sense of Art. 16 a of the German Constitution. The Federal Constitutional Court emphasises that political persecution emanates from superior, regularly sovereign power, to which the claimant of protection is subjected; thus political persecution is persecution by the state. The Federal Constitutional Court went on to say that the decisive factor for the assessment of whether a certain act constitutes political persecution is the inclusion of a person seeking protection in an overall structure, which regulates the living together of a society on the basis of order and constraint. This supreme power can either afford protection to its subjects, or deprive them of the protection on account of certain grounds relevant to asylum and deliberately exclude the person from the community by violating the person’s rights forcing him/her into a hopeless situation from which s/he can only escape by fleeing his/her country. According to the Federal Constitutional Court, the question whether in a situation of civil war after the dissolution of the state, political persecution can emanate from one of the civil warring factions, has to be assessed against the backdrop of whether at least in a "core territory" a supreme power of certain stability in the sense of an "overall peace order" has been de facto established. The Federal Constitutional Court held that the continuing military threat (in a civil war) does not necessarily exclude the existence of a state-like structure in the interior of a country. According to the Federal Constitutional Court, depending on the gravity of a military threat such a military threat can indicate that a state-like organisation has not yet been established, but it is not a constitutive element for the assumption whether a state-like organisation exists or not. The Federal Constitutional Court went on to state that the more the civil war continues without substantial change in the existing power structures, the less it can be assumed that no state-like organisation has been established. According to the Federal Constitutional Court, it follows that the Federal Administrative Court was wrong in holding that "when the civil war factions do not fight with military means with the intent of destroying the enemy and fight with prospects of succeeding in asserting the power in the entire territory of the civil war" it is at this stage that state-like structures can be assumed.

Use of torture in the fight against terrorism can amount to political persecution

In a decision involving a Sri Lankan handed down on 25 July, the Federal Administrative Court held that when operations fighting terrorism are carried out by the state with more than the necessary intensity, it is legitimate to suspect that the motive is not only for the prevention of terrorism but also for targeting persons on the basis of characteristics which are relevant to the asylum procedure, such as ethnic origin. Such cases do amount to political persecution, especially if torture has been used. The High Administrative Court whose decision was appealed before the Federal Administrative Court had only considered, without distinction, that the treatment inflicted on the applicant was part of a general practice in Sri Lanka and could therefore not fall under the definition of political persecution. The Federal Administrative Court held that the judge has to examine whether there are specific reasons which would exclude the treatment inflicted on the applicant from acts of political persecution and referred the case back to the lower court.

Study on Non-State Persecution - Protection gap in the German Asylum Law?

The Paper "Nicht-staatliche Verfolgung — Schutzlücke im Deutschen Asylrecht?" (l050100), 4 September 2000, by the lawyer Kerstin Mueller was commissioned by the Informationsverbund Asyl (Germany). It examines the jurisprudence of the Federal Constitutional Court, Federal Administrative Court and lower courts as to whether a protection gap exists with respect to refugees fearing non-state persecution. In summary, the analysis of the German jurisprudence shows that a protection gap exists in cases of non-state persecution, in which due to a tendency of a restrictive jurisprudence of the Federal Administrative Court on Sections 51 (1) and 53 (4) Aliens Act, no legal protection from refoulement is granted. The same conclusion was drawn in relation to Section 53 (6) to benefit from which an extremely high standard of proof is required. Section 53 (6) Aliens Act does not apply in cases where the entire population or a group of a population is generally at risk (in that case whether the persons concerned are protected from deportation depends on a political decision to stop deportation (Abschiebestopp)). In these cases Section 53 (6) applies only (by interpretation in conformity with the Constitution) when there is a situation of extreme danger and it is totally apparent that the refugee upon return would face certain death or severest violations (der Fluechtling "gleichsam sehenden Auges dem sicheren Tod oder schwersten Verletzungen" ausgelieft waere). The threshold is thus higher than the one applied to cases of state or state-like persecution. In the latter a return is only possible if there is a sufficient security (hinreichende Sicherheit) from persecution when the person had previously been persecuted; protection from refoulement is granted when there is a remarkable probability of persecution upon return in cases where no previous persecution took place. Kerstin Müller concluded that Section 53 (6) Aliens Act compensates only partly the protection gap that is opened by the jurisprudence to 53 (4) Aliens Act. Secondly against the backdrop of the recent decision on Afghanistan and state-like/quasi-state organization of the Federal Constitutional Court, Kerstin Müller’s analysis shows that the protection gap is only partly closed by the aforementioned decision, and this presumably applies only rudimentarily to one of different constellation of cases.

High Administrative Court of Bremen upheld expulsion order

In a summary ruling (1 B 122/00) made public on 28 June 2000, the High Administrative Court of Bremen (OVG) upheld the decision of the authorities to expel not only a couple who claimed asylum under a false identity but also their children who had grown up in Germany and have spent up to 12 years there. The couple alleged that they were stateless Palestinians from Lebanon when, in fact, they were Turkish nationals.



Practice of the Greek Appeals Board

Thanks to Ionna Babassika from the Medical Rehabilitation Center for Torture Victims for submitting us the offprint of an article on the Practice of the Greek Appeals Board by Maria Stavropoulou in the International Journal of Refugee Law, Volume 12 2000. This is a summary of the article, which outlines how the major issues are being dealt with by the Greek Appeals Board.

Since June 1999 when revised asylum legislation in Greece entered into force UNHCR has participated as a full voting member in the appeal procedure of the six-member committee who reviews cases of rejected asylum seekers. The Board’s opinions are not binding on the Minister of Public Order, though the statistical data of the first six months of the Board’s operation have shown that the final decision of the Minister of Public Order very rarely contravenes the Board’s opinion.

The Board does not implement the concept of safe country of origin, rather all cases are reviews on substance. No safe third country or safe first country of asylum lists are used. Mere transit, in particular through Turkey, is not considered to constitute a real possibility of finding protection "elsewhere". The Board did not consider the return of Turkish asylum seekers to Syria, or of Afghans to Pakistan, or in the case of a Myanmar refugee in Bangladesh and a Rwandan refugee in Zambia a viable option and recommended full refugee status in Greece.

Appellants have a right to attend together with their legal adviser the board sessions and a personal interview. However, absence of those asylum seekers who have been duly notified of their right to attend the sessions is taken to tarnish significantly their credibility, except if the asylum seeker has plausible reasons for not attending the case, the case will be reviewed on the basis of the file.

Generally, the Board follows UNHCR standards in determining the eligibility of asylum seekers. Thus, imputed political opinion is considered to constitute political opinion in the sense of article 1A of the Refugee Convention; illegal departure, which may attract disproportionate punishment or inhuman treatment upon return, is taken into account, when there are other grounds to grant asylum (this is particularly the case for Iranians, but also others, such as Sri Lankans. The same applies to draft evasion and desertion.

There is little jurisprudence on the exclusion clauses. In general the Board examines inclusion before exclusion. Very few cases are being examined on the basis of the cessation clauses and these relate to change of circumstances. In these cases the Board tries to discern whether fundamental changes have occurred to warrant revocation of refugee status.

The Board accepts that persecution may emanate from agents other than state agents (see High Court decision on Greece as a safe third country). Victims of civil war, especially when these have ethnic or tribal backgrounds are deemed to be refugees, the eligibility rate being for Afghans high, and in the case of some Sierra Leoneans. In some cases of Tamils or other Sierra Leoneans, however, the Board has recommended only humanitarian status.

Women who have separate claims from those of their husbands or other family members are examined independently. The Board has shown particular sensitivity in examining the cases of women detainees, single women and women heads of household.

The Board rarely examines the criterion of internal protection alternative and unless it is clear that a return to a particular area of a country in safety and in respect of the rights of the applicant could be guaranteed, the Board does not reject cases on this basis.

Concerning burden of proof, the Board places great emphasis on interviewing the applicants and on reaching its decision on the spot. Greek asylum law explicitly provides that documentary evidence is not necessary in order to prove an asylum claim, and the Board has applied this provision meticulously. However, submissions such as court decions, newspaper articles, proof of family relation with other recognized refugees may significantly influence the deliberations of the Board.

The fact that the asylum seeker has used forged documents, is an undocumented asylum seeker or has had recourse to smugglers does not normally prejudice negatively an asylum claim. The Board discounts the fact that applications suspected of being files to forestall an expulsion order may be abusive. That is also the case when applications are filed long after the arrival in Greece as long as they can provide a plausible explanation for the delay in filing an asylum application

The Board has on occasion suggested to the Minister of Public Order not to return a rejected asylum seeker to his/her country of origin on the basis of humanitarian grounds which may include the practical inability to return a person in question (e.g. because of an international embargo, lack of recognition by the country of origin etc.). long time residence in Greece, young age, family or health reasons, or the dire economic situation of the country of origin.

The Board’s eligibility record was very high for Afghans (many of them were ethnic Hazara or Tadjik) and for Turkish asylum seekers, most of whom were of Kurdish origin and had a clear political profile. Also high was the rate for citizens of the Democratic Republic of Congo and Sudanese asylum seekers (primarily of the South). The eligibility results for Iraqi and Iranian asylum seekers are mixed.



Supreme Court ruling on constitutionality of "Illegal Immigrants (Trafficking) Act"; different delay for judicial review of deportation orders of rejected asylum seekers justified

On 28 August 2000 the Supreme Court found that controversial provisions of the Bill, known as the "Illegal Immigrants (Trafficking) Act" dealing mainly with rejected asylum seekers, were not contrary to the Constitution. Consequently the President signed the legislation into law on the same day.

Under the new law immigration officers are allowed to detain a rejected asylum seeker against whom a deportation order has been made for up to eight weeks if they reasonably suspect that the person has forged or destroyed identity documents or intends to leave the state or avoid deportation. Moreover, a rejected asylum seeker now has only 14 days to appeal for judicial review of deportation orders. (Irish citizens have six months to apply for judicial review).

The Supreme Court justified the different treatment by pointing out that the category of "non-nationals or alien constitutes a discrete category of persons whose entry, presence and expulsion from the state may be subject of legislation and administrative measures which would not, and in many of its aspects could not, be applied to its citizens (…)" " The rights, including fundamental rights, to which non-nationals may be entitled under the Constitution do not always coincide with the rights protected as regards citizens of the State, the right not to be deported from the State being an obvious and relevant example." The Supreme Court held that "the discretion of the High Court to extend the 14-day period is sufficiently wide to enable persons, who having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts."



New Regulations for Kosovar Refugees

Early July 2000, the Ministry of Interior announced new regulations for Kosovar refugees under the programme of temporary protection in Italy which expired on the 30 June 2000. According to the forthcoming regulations, Kosovar refugees should return to Kosovo in the framework of a programme of assisted repatriation implemented by IOM. Kosovars are offered the equivalent of 1.500 DM per adult and 500 for each minor. A permit of stay on humanitarian grounds for an additional year will be granted to members of certain categories of refugees, whose repatriation would violate the principles of dignity and safety, in conformity with UNHCR recommendations. Moreover, Kosovar refugees able to show a certain level of social integration (that is, a legal job and autonomous accommodation) may avoid repatriation by applying for a long term residence permit for work reasons. Because of bureaucratic procedures and the summer break, new regulations will be published on the Official Journal and enter into force in September 2000. NGOs have strongly condemned the delay, which has caused serious difficulties to many refugees. They have been without a legal permit of stay for two months; those who lost their job in the meanwhile have faced the impossibility to be regularly re-hired and so they could be exposed to a forced repatriation when the new regulation have entered into force.





New Refugee Law

The new refugee law will come into force on 1 September 2000. After criticism of the President who vetoed the preceding law, Parliament was again asked to give its approval on a revised version of the Bill, which no longer allows for the refusal of asylum seekers at the border nor for the detention of those considered to pose a threat to the country’s security or public order. As from 1 September 2000 appeals by asylum seekers will be processed by administrative courts and not by the Refugee Affairs Board.



Group Persecution

The Court of Den Haag (Rechtseenheidkamer), (July 14, 2000, AWB 00/1790) decided on the question whether in Dutch practice, the concept of group persecution and, in connection, group determination (par. 44 UNHCR Handbook) is useful. The Dutch State had argued that group persecution as a legal concept is not necessary, since the Dutch asylum procedure provides in all cases for an individual examination of the asylum request. The Rechtseenheidskamer held that the concept of group persecution can still play a role, since the burden of proof is different when a situation of group persecution applies. Where, in individual cases, the asylum seeker will have to give evidence, in cases of group persecution the State will have to give evidence that the applicant is not a refugee.

In the specific case of the Reer Hamar in Somalia, the Rechtseenheidskamer held that group persecution because of the ethnic background or the specific position of the Reer Hamar (they are considered to be rich), could not be demonstrated. The Court held that the civil war in Somalia caused a situation of generalised random violence. In such a situation weaker groups are likely to suffer more and sooner. Although the Reer Hamar find themselves in a vulnerable situation and have a higher risk of becoming victims of human right violations, there are objectively no indications that they suffer from group persecution. Nevertheless, if a member of the Reer Hamar gives any evidence, however remote, which could indicate that he is individually targeted because of his ethnic background, this would be sufficient to assume persecution in the sense of 1(A) Refugee Convention.

The decision of the Rechtseenheidskamer was criticised for several reasons: Group persecution and group determination ('prima facie' refugees) are not per se the same concepts, as the decision seems to suggest. A situation of civil war does not preclude refugee status determination; although this was not the Rechtseenheidskamer's exact point of view, the decision was found to be too vague in this respect. The fact that the Court seems to require that the asylum seeker gives evidence for a connection between persecution and his ethnic background, is considered unrealistic (Hathaway, The law of Refugee Status, p. 92, 93).

Internal Protection Alternative — internal relocation

Of special interest is a decision of the Court of Haarlem (June 13, 2000, AWB 99/6682) in the case of an Ahmadiyya from Pakistan, who claimed to be persecuted by orthodox Muslims. The Court allowed the appeal because UNHCR’s 'reasonableness analysis' (UNHCR Position Paper, Relocating Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called "Internal Flight Alternative" or "Relocation Principle"), February 9, 1999) was not applied by the Dutch State. The Dutch State held that an internal protection alternative (IPA) was available in one of the big cities in Pakistan. The Court found this approach too general: the individual circumstances had to be taken into account.

In the case of a Tamil asylum seeker from Sri Lanka, the Court of Haarlem (June 23, 2000, AWB 00/5578) also held that an IPA in Colombo did not automatically apply: "it is questionable whether the mere fact that one of the applicant's cousins lives in Colombo means there is a real IPA. UNHCR, in its Position Paper of February 9, 2000 seems to require that more conditions be met. In light of the question whether an IPA is available, several subjective and objective factors will have to be taken into account, like age, gender, personal relations, professional background and skills and the financial situation of the alien.

Tamil asylum seekers may not be placed in the accelerated procedure

On 16 June 2000, Court of Haarlem ruled that asylum applications by Tamils may not be dealt with in the accelerated asylum procedure because there is an uncertainty about how returning Tamils are treated by the immigration authorities in Sri Lanka. Tamils without a valid travel document, issued by the Sri Lankan embassy in the Netherlands, run the risk of being prosecuted in Sri Lanka on suspicion of being members of the outlawed organisation Tamil Tigers. The court ordered the release of the two Tamils concerned in this case from the "grenshospitalium", which is a reception centre at Schiphol Airport for asylum seekers who have been denied immediate entry into the country.



Refugee Status Appeals Authority    (RSAA)

Refugee Appeal No 71427/99, 16 August 2000, at

Iran, domestic violence, state’s discrimination of women as persecution on political and religious grounds, meaning of persecution, standard of state protection, social group

The case involved an Iranian woman who suffered domestic violence, and, following her divorce, harassment and threats at the hands of her husband, a high official of the Pasdaran (Revolutionary Guards). The RSAA elaborated on the issue of the meaning of persecution, discrimination as persecution, agents of persecution (according to the RSAA persecution by non-state agents falls within the refugee definition), and standard of state protection. In the latter context the RSAA criticized the U.K. House of Lord’s decision in Horvath (see DS July 2000). The RSAA elicited from the House of Lords’ judgment in Horvath v State Secretary for the Home Department and in R v Immigration Appeal Tribunal, ex parte Shah, the refugee scheme is surrogate or substitute protection, actuated only upon failure of national protection. According to these cases, state complicity in persecution is not a pre-requisite to a valid refugee claim. The RSAA explained that the question, which arose in Horvath, was the standard against which the sufficiency of state protection is to be measured where the agent of persecution is a non-state agent. The RSAA went on to say that in the opinion of the Lords, a refugee claimant who has a well founded fear of persecution will not be recognized as a refugee if there is available in the home state a system for protection of the citizen and a reasonable willingness by the state to operate it. The RSAA set out that, according to the Lords in Horvath, notwithstanding that the person holds a well-founded fear of persecution, the person can be returned to his or her country of origin. The RSAA criticized this approach:

"With the greatest respect, this interpretation of the Refugee Convention is at odds with the fundamental obligation of non-refoulement. Art. 33 (1) is explicit in prohibiting return in any manner to a country where the life or freedom of the refugee would be threatened for a Convention reason. This obligation cannot be avoided by a process of interpretation which measures the sufficiency of state protection not against the absence of real risk of persecution, but against the availability of a system for the protection of the citizen and a reasonable willingness by a state to operate that system. (…) If the net result of a state’s ‘reasonable willingness’ to operate a system for the protection of the citizen is that it is incapable of preventing a real chance of persecution of a particular individual, refugee status cannot be denied to that individual. "

The RSAA held that "the proper approach to the question of state protection is to inquire whether the protection available from the state will reduce the risk of serious harm to below the level of well-foundedness, or, as it is understood in New Zealand, to below of a real chance of serious harm. The duty of the state is not, however, to eliminate all risk of harm (emphasis by the RSAA)." The RSAA said that it would not follow the Lords’ above-mentioned approach in Horvath. The RSAA, however, adopted the formula employed both in Horvath and Shah, that is, that persecution equals serious harm and failure of state protection.

The RSAA held that the cumulative effect of the laws in Iran and the so-called Islamic form of governance certainly produces the result of relegating women to second-class status. Citing the relevant provisions of the International Convenant on Civil and Political Rights, the Convention the Elimination of All Forms of Discrimination against Women, the RSAA found that both international instruments "could be identified as further indicators of the degree to which human rights standards are breached by the Islamic Republic of Iran generally, and in relation to women in particular." The RSAA concluded that "[T]aking into account the cumulative effect of these breaches on the appellant, our conclusion is that the policy of gender discrimination and the enforcement of gender-based norms against women as a group in Iran is of a nature which permits a finding of persecution in the sense of a sustained or systematic violation of basic human rights. On the failure of state protection, the RSAA limited itself to state that "the state itself has put in place the very legislative framework which to a large extent is the source of the serious harm faced by the appellant. In addition, the state itself condones, if not encourages the ‘private’ or domestic violence which comprises the balance of serious harm faced by the appellant."

Turning to the nexus of persecution and one of the grounds enumerated in the Refugee Convention, the RSAA relied on literature in the field of women and Islam which can be summed up as establishing a link between the drive to Islamisation as a smokescreen for the exclusionary political and economic strategy of the state. There, it was also stated that women are central to the issue of the control and exercise of power in Muslim societies. The RSAA concluded that "[A]pplying this evidence we find (…) that the religion and political opinion Convention grounds are directly applicable."

On whether Iranian women are a particular social group, the RSAA held that this category must be viewed against the underlying principle of the surrogate nature of the Refugee Convention. Secondly, the category is limited by anti-discrimination notions inherent in civil and political rights. Thirdly, the RSAA found that the approach by the US Board of Immigration Appeal in Re Acosta (1995) — see htttp:// - provided a good working rule. According to this rule persecution on account of membership of a particular social group means persecution directed against an individual who is a member of a group of persons all of whom share a common immutable characteristic which is beyond the power of the individual to change, or so fundamental to individual identity or conscience that it ought not be required to change. The RSAA elicited three possible categories, among which is gender, while admitting that the social group ground is an open-ended category. Fifth the RSAA limited the social group category by holding that not every association bound by a common thread is included. Sixth, the group ought not to be defined by persecution but rather its existence should precede persecution. Nevertheless the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Seventh, cohesiveness of the group is not required. The RSAA reiterated its jurisprudence where it held that the members of the group need to share an internal defining characteristic and examined the formulas used in other common law case law. It comes to the conclusion that "it is indisputable that gender can be the defining characteristic of a social group and that ‘women’ may be a particular social group.

After having established the meaning of persecution and that women are a particular social group, the RSAA then turns to the question of the causal nexus between actual or perceived membership of a social group and the well founded fear of persecution. The RSAA held that the required nexus can be established either by the serious harm or by the failure of state protection limb (as persecution= serious harm+failure of state protection). Thus, if a person is persecuted by a non-state agent not for a Convention reason, but the failure of state protection was for reason of a Convention reason, the required nexus is established.

In relation to the first husband the RSAA did not find a nexus between the persecution and a Convention reason: "The fact that (…) violence against women is a manifestation of historically unequal power relations between men and women does not explain the reason why this appellant is at risk of serious harm of her first husband. [emphasis by the RSAA]". It is interesting to note that the RSAA criticised the US Board of Immigration Appeals (BIA) jurisprudence on gender-based claims by saying that the BIA’s decision in Re S-A (see Doc Service July 2000) "similarly fails to recognise that state protection can be denied to a gender-based group by reason of gender of the members of that group."

In relation to the nexus in the context of state harm and state protection, the RSAA held that "the evidence clearly establishes that the appellant is at risk of serious harm at the hands of the state and because the state is totalitarian in nature, no ‘state protection’ will be available to her." The RSAA concluded that " (…) we find that the reason why the appellant is exposed to serious state harm and to a lack of state protection both from the husband and from the state itself is because she is a woman. The cloak under which this persecution will ostensibly take place will be religion. Given that Iran is a theocratic state, this means also that the persecution will be for reason of political opinion. But as we have stated before, the overarching reason why the appellant is at risk of persecution is because she is a woman. The social group category is therefore primary Convention ground in relation to which a nexus has been established."

This decision is also very interesting in terms of what the RSAA has to say on the universality of human rights which "will not permit social, cultural or religious practices in a country of origin from escaping assessment according to international human rights law."

See also International Journal of Refugee Law, Vol 12 Number 1 2000, Orientalism Revisited in Asylum and Refugee Claims by Musarrat Akram on how to frame Muslim women refugee claims. Interestingly, the New Zealand decision is very much in line with the suggestions of the author.



Court ruling against repatriation of Spanish Basque nationalist

On 11 July 2000, the Administrative Court of Sintra rejected the application by the Aliens Department to deport an alleged member of ETA, Mr Telletxea Maya. This comes after the UN Torture Committee’s decision that France had violated Art. 3 of the Torture Convention by extraditing a suspected ETA member to Spain (see above). The Portuguese Supreme Court had ruled already in 1997 against the extradition of Mr Telletxea. The first argument put forward by the Aliens Department, that the presence of Telletxea constituted a threat to diplomatic relations between Spain and Portugal was rejected by the Sintra Court ("no concrete proof whatsoever"). The second argument that Telletxea constituted a threat to public order was rejected as well, as testimonies by Telletxea’s friends lead to the court’s holding that "he has been a peaceful and orderly person".



Cabinet approves Bill for the second time

On 4 August 2000 the Cabinet adopted for the second time the new Aliens Bill. The draft’s contents were made public on 13 June (see DS July 2000). After some pressure to submit the draft to the General Council of Judicial Authority (CGPJ) and to the Council of State (Consejo de Estado), the highest judicial authority, to obtain an opinion on the draft, the draft Bill was again submitted to the Council of Ministers for approval. The Government inserted a total of 13 amendments to take into account 12 of the 17 proposals put forward by the CGPJ and five of the 10 suggested by the Council of State. The CGPJ and the Consejo de Estado submitted their reports on 26 July and 29 July, respectively. The CGPJ, in particular, heavily criticised the expulsion of foreigners apprehended for illegal entry. According to the CGPJ, a person who is subject to an expulsion order has to be "duly notified, with indications of the appeals which can be presented, their delay and the body to which the appeals must be referred, especially under such conditions as to render the possibility of appeal realistic, as well as the adoption of measures of safeguard (such as suspension of the expulsion order) which may be required and the designation of the competent judicial organ."

The main points, among others, of the new Bill of interest to asylum are:

  1. Right of appeal: a notification of expulsion will indicate the kinds of appeal which can be presented, the delay in submitting them and the competent institutions for handling them
  2. Free legal aid for persons refused entry at a border post
  3. An asylum seeker will be immune to expulsion as long as a decision has not been made on his/her application
  4. Those aliens caught without a residence or work permit (or with a expired one) will be liable to expulsion.
  5. Free movement: individual reasons must be given to limit the movement of an immigrant


Dublin Convention, return of Bosnian Muslim family to minority area, differing practice in Germany and Sweden

On 29 June, the Swedish Government decided on the case of a family from Bosnia-Herzegovina who would be in the minority if repatriated. This family applied for asylum in Sweden after being in Germany for over four years. When the family, arrived, the Dublin Convention, under which provisions Sweden was entitled to send them back to Germany, was already in force. However, Sweden did not send them back immediately. Whereas Germany considers that Bosnians who would be in a minority upon return can make use of an internal protection alternative, Sweden has paid close attention to the terms of the Dayton Agreement and has not returned asylum seekers originating from so-called "minority areas". The family, Muslims from Vlasenica (within the territory of Srpska Republic) where no normalisation process is taking place, was allowed to remain in Sweden on political-humanitarian grounds.

The Swedish practice has been adapted to the fact that there is an ongoing normalisation process taking place in Bosnia-Herzegovina. Therefore, in general, persons from a minority area where such a normalisation process is under way cannot be granted residence permits in Sweden. However, the circumstances in the place in question must have a convincingly high level of security if return is to be possible. Persons who come from minority areas where no such normalisation process is in place can still obtain residence permits on political-humanitarian grounds. In the case of the family from BH, the Government gave much weight to the argument put forward by UNHCR that forced returns to places other than the home town or village would impede the full implementation of the Dayton Agreement. The Government stressed that in this context neither the Dublin Convention nor the terms of the Aliens Act imply that Sweden was hindered from handling an application for a residence permit just because another EU Member State was responsible for dealing with that person’s asylum claim.




Favourable decision for Kosovar families with children, decision based on best interests of the child, grant of residence permit due to the children’s treatment in Sweden

On 5 July 2000, the Aliens Appeals Board granted in three cases residence permits on humanitarian grounds, taking into account the best interests of the child. The Board shared the Migration Board’s view that none of the families had Convention grounds or other grounds for protection. The Aliens Appeals Board was of the opinion that three of the four families had children who were at a sensitive age and in need of specialist treatment because of their experiences of war. All of the children were participating in various forms of treatment in Sweden. If such treatment would be discontinued this could harm their neurological and psycho-social development. The availability of treatment in the home country is limited or non-existent. These three families were thus granted permanent residence permits. In the case of the fourth family, the husband had suffered a stroke in his home country which led to aggressive behaviour towards the rest of the family. Attempts at dealing with this situation are being made with the support of the paternal grandparents. None of the children has been undergoing any form of treatment due to traumatic experiences. The family has relatives in Kosovo. Therefore their humanitarian grounds were not considered to sufficient to grant a residence permit.



Federal Court: Refusal to pay for the psychotherapeutic care of a Bosnian refugee confirmed

In a decision (1.A.270. 1999) dated 19 May 2000 (made public 14 July 2000), the Federal Court has confirmed the ruling of the administrative court of the canton of Soleure, confirming the position of the authorities to refuse to pay for the psychotherapeutic care of a Bosnian refugee who was tortured in a prisoners’ camp in 1992. The Federal Court held that the Federal Law on Aid to Victims of Offences (LAVI) was conceived for offences committed on Swiss territory. In other cases, the victim must have been registered as residing in Switzerland at the time of the offence in order to make a claim. As it rapidly would be financially untenable, the LAVI cannot be applied to all victims of offences or violence who are refugees in Switzerland.

Swiss Asylum Appeals Commission (ARK) 

Internal Protection Alternative, Quasi-state Organisations

The following is a short summary of four decisions concerning Northern Iraq published by the Swiss Asylum Appeals Commission (ARK)  on 7 September 2000. The full text of the decisions will be published at the end of October 2000.

Generally the ARK examines quasi-states from two perspectives: first from the perspective of being able to be an agent of persecution and second, the perspective to offer protection: The ARK has addressed whether rejected asylum seekers can be asked to return to Northern Iraq. The most important findings are the following ones:

ARK, decision of 12 July 2000, Case of M.O.: The jurisprudence concerning quasi-states is confirmed (groups or organisations which do control effectively a certain territory which is no more ruled by the government). The Kurdish parties in Northern Iraq (Kurdistan Democratic Party, KDP; Patriotic Union of Kurdistan, PUK) are judged to be Quasi-States. As a consequence they are eligible to be agents of persecution. Persons persecuted by them are eligible for refugee status.

ARK, leading case from 12. July 2000, Case of M.O.: According to the principle of internal protection alternative a person does not qualify for refugee status if s/he can avail protection by the State of origin. In general this means protection by the State, which anyhow does not exclude that also quasi-States can offer protection. In such a case it is necessary that a quasi-States offers protection on a high level because of its stability or because of international safeguards. The Kurdish parties in Northern Iraq cannot be judged to have these qualities. Thus there is no internal protection alternative in Northern Iraq.

ARK, decision from 22. of August 2000, Case of N.S.: The expulsion of Kurds from Central Iraq into Northern Iraq as a consequence of the so-called arabisation-policy is a violation of human rights but does not as such amount to persecution due to its lack of intensity. Rejected asylum seekers in this situation generally cannot reasonably be asked to return to Northern Iraq as they will not be able to build up an economic base to ensure their survival. Complementary protection is offered.

ARK, leading case of 22 August 2000, case of N.S.: Subjective post-flight grounds. The fact of claiming asylum abroad and having left the country illegally does not qualify as post-flight grounds in the case of persons who left the autonomous Northern Iraq. (e contrario: The ARK upholds the practice that the fact of leaving Central Iraq illegally and claiming asylum abroad can generate persecution).

ARK, decsion of 22 August 2000, case of H.O.: In general, the situation in Northern Iraq is not life threatening. Persons who do not qualify for refugee status can be asked to return, though the circumstances of the particular cases have to be taken into consideration. Persons originating from Central Iraq will, as a rule, not be asked to go to Northern Iraq, with the exception of situations where the person has a network of relations providing support to them. Medical condition, being a member of a religious minority, age, family situation etc.  may be reasons for not asking rejected asylum seekers to leave for Northern Iraq. (complementary protection).

ARK, decision of 22 August 2000, i.S. N.S.: Generally return on a voluntary basis to Northern Iraq is technically possible for rejected asylum seekers. A forcible return is not possible at the moment.



Internal relocation/protection alternative in Turkey; Registration practices in Turkey (Info forwarded by ILPA)

The Human Rights Foundation of Turkey (HRFT) gave the following information on registration practices in the context of an enquiry as to whether Turkish/Kurdish asylum seekers can safely relocate within Turkey (translation from Turkish).

Asked whether a person who arrives in a new area and intends to settle, has to register either with the local civil authorities or the Mukhtar, the HRFT answered that a person wishing to settle in a new area has to register with the Mukhtar. A person wishing to settle in a new area makes a declaration with a residence document that s/he will obtain from the Mukhtar of the area s/he was previously living, to the mukhtar of the new area where s/he will settle. Registration is compulsory under the law.

As to the question regarding the procedure for such registration to be followed and whether it is different/easier/more difficult in Istanbul than in other parts of Turkey, the HRFT relied: "In order to be able to make such a registration, the person gives the Mukhtar of the new area the residence papers which have to be brought from the Mukhtar of the previous area and completes a form that includes details of the identity papers of those living in the household and guests. Aside from the ease or difficulty of this procedure, people may in some circumstances not register because they are scared since these registrations are carried out with the local security forces working in cooperation with the Mukhtar. For example, the situation may be affected by the tightness of the control of the security forces in Istanbul or other large cities over the area in which the person lives or whether that person or the family is close to anyone who is being sought or in detention or has some problem connected with military service. If that area is one that is tightly controlled by the security forces, the Mukhtar may put pressure on the inhabitants of the district to carry out this procedure or the persons may not migrate to such an area or even if they do they will not get themselves registered.

Asked what would be the consequences for a new arrival if s/he fails to register, the answer was the following: "In Turkey, a residence document is essential for activities, such as registering births, enrolling children at school, having a telephone, electricity and water connected to the place of residence and applying for a green card. People cannot do any of these things unless they have got the Mukhtar to register them. In practice in Turkey, the majority of citizens who are forced to migrate, especially from the East and South East regions of Anatolia are not registered. Fear is an important element in this, because from time to time these citizens may be viewed as potential criminals and because of their places of birth they may be subjected to oppression.

As to whether it is possible to register without a NUFUS card or other ID card, the HRFT replied that it is not possible to register without producing an identity card or other proof of identity.

As to whether it is routine to make enquiries about a new arrival and what would be the effect if such enquiries revealed that the new arrival had a history of detention, or that their relatives were wanted by the authorities for political reasons, or that they were wanted for military service, the answer of the HRFT was the following: "According to the law, local authorities or the Mukhtar have to investigate all newcomers in the area. Mukhtars and administrators of blocks of flats are held legally responsible in cases when they have not been able to obtain personal declarations. If it comes to light that people have not registered and if they do not do so when requested, they are considered suspicious persons and may be arrested. Indeed, people close to anyone being sought for political reasons or with problems to do with military services are always at risk of arrest. Persons who have not registered for the reasons listed above would, when the security forces learn about his, face the probability of arrest and those close to them would face the probability of interrogation. Sometimes Mukhtars may notify the security forces of people who register or of people they themselves consider suspicious. In the event, after the security forces know about the situation and no pressure has been applied there may be nothing to be frightened of in getting registered. However, for the most part people who are closely connected to anyone being sought or who has problems with the military service deem it best for their own security to conceal where they are living and refrain from registering since that will reduce the likelihood of facing arrest and oppression.

Such practices, although not routine are nevertheless quite common. Persons close to anyone being sought or with problems to do with thee military service may frequently be subjected to investigation by the security forces. The security forces can easily examine Mukhtars’ records.

As to whether Kurdish, or people from the south-east, by reason of accent, language etc. would have different experiences from that of a non-Kurdish person and how different that would be, the HRFT replied: "These sorts of practices are problems that may face all citizens in Turkey who are close to anyone being sought for political reasons or with problems to do with military service. The Kurdish problem is a very important one in our country, and on account of the conflict millions of our citizens of Kurdish origin have been forced to migrate, most citizens of Kurdish origin experience these sorts of problems."



Many thanks to the Refugee Legal Centre for this information

High Court

R v SSHD, ex parte Bouheraoua, and Kerkeb, CO/878/1998, CO/2734/1998, 22 May 2000, Dyson J

Greece is not a safe third country

These two applications for judicial review of certificates issued by the Secretary of State of the Home Department (SSHD) in relation to Greece were allowed. While the SSHD accepted that he could not return an applicant to a third country which adopts the accountability approach if there is a real risk that it will remove or expel the applicant on the basis of that interpretation of the Refugee Convention, the SSHD was of the opinion that Greece applies the protection approach. The accountability theory is that a state is not responsible for persecution by non-state agents unless persecution emanates from the state or can be attributed to the state; whereas the protection theory is that failure of effective state protection (state is unwilling or unable to afford protection against persecution by non-state agents) suffices to warrant international protection under the Refugee Convention. Dyson J held that it was not reasonably open to the SSHD to decide on the totality of the material that was before him that there was no real risk that the Greek authorities would not apply the accountability approach when considering the claims by the applicant. Materially relevant for the reasoning of Dyson J was the evidence of the case of Ali Ali, a Iraqi Kurd whose application of asylum was rejected by a Committee of Greek senior officials of various legal, diplomatic and foreign and police departments on the grounds that his fears were of persecution by non-state agents. Ex parte Bouheraoua affords a practical illustration of the kind of evidence needed to counter the SSHD assertion that Greece is a safe third country.

Note that in Berisha and Elishani, the Court of Appeal upheld the decision of the High Court that Greece is a safe third country to which Kosovo Albanians can be returned.


R. SSHD, ex parte Higuite-Salas, CO 2471/99, 16 May 2000, Jowitt J

Domestic violence, Art 3 ECHR, internal protection alternative, need to rely on protection by family in the absence of effective state protection

This case involved a Colombian woman, victim of domestic violence at the hands of her Colombian husband in the U.K.. The husband who had applied for asylum withdrew his application for asylum and returned to Colombia. The woman applied for exceptional leave to remain in the UK. The SSHD accepted that a victim of domestic violence would arguably be at risk of "inhumane and degrading treatment" (Art 3 ECHR) at the hands of her husband were she to return to Colombia and if he could gain access to her. However, the SSHD took the view that it was reasonable that she could relocate elsewhere in Colombia where her husband could not gain access to her. Jowitt J held that the SSHD was entitled to take this view. The assertion of the SSHD that the applicant should rely upon the protection of her family in the absence of effective state protection was upheld by Jowitt J as well.


The Immigration Appeal Tribunal (IAT)

SSHD v Dzhygun IAT [OO/TH/00728] 17 May, Chair Moulden

Social group of "women in the Ukraine who are forced into prostitution against their will

The respondent is a Ukrainian woman who had been lured to Budapest where she was taken to a flat, raped, sexually assaulted and then forced into prostitution for two months. She was eventually able to return to Ukraine where she didn’t seek protection by the state because she didn’t believe that the police they would help her. She fled to the U.K.. Since being in the U.K., she was told that people believed to be involved with the Mafia had made threats and had visited her family’s home looking for the respondent.

The special adjudicator (SA) found the Ukrainian woman a credible witness and concluded that she belonged to a particular social group, defined as "women trafficked from the Ukraine to other countries for sexual exploitation and detained under threat of violence". As the Ukrainian authorities were unable to provide the appellant with sufficient protection, the SA found allowed her appeal. The IAT found that "there is a particular social group, which consists of women in the Ukraine, who are forced into prostitution against their will". The Immigration Appeals Tribunal went on to hold that "[T]he unifying factors of such a group are their gender, coercion, prostitution, societal recognition, persecution and the lack of State protection."

Naseridine Foughali (00/YH/01513, 2 June 2000

Conscientious objection, international-condemnation requirement dropped

The Immigration Appeals Tribunal (IAT) elaborated on the principles which international jurisprudence has seen to govern military cases. The IAT’s survey of academic authorities elicited three basic propositions: 1) a state has the right to require of its citizens that they perform military service; 2) the right is not absolute and there are a limited number of exceptions; 3) a distinction needs to be drawn between the consequences of refusing to undergo military service in peacetime as compared to wartime. The IAT identified four recognised exceptions so as to establish that military service in a given case would give rise to a well founded fear of persecution:

  1. Persecution due to the conditions of life in the military service in question (focusing on the conditions of military life as distinct from the circumstances of any conflict in which the appellant is likely to become involved);
  2. Persecution due to the repugnant nature of the military duty likely to be performed (e.g. conduct contrary to the basic rules of human conduct as established under international humanitarian law);
  3. Persecution due solely to principled objections (i.e. genuine political, religious or moral conviction or to valid reasons of conscience); special if not absolute value should be attributed to the freedom of conscience;
  4. Persecution due to likely disproportionate punishment.

This Tribunal agreed that in the Algerian context a penalty of 2-10 years imprisonment was not disproportionate. On the evidence before it, it found that there was no more than a possibility of ill treatment during initial detention at the airport or any subsequent detention.

If one of these exceptions can be made out, the decision-maker has to establish whether the persecution feared is for a Convention reason

The IAT considered the term "principled objection" better in order to embrace objections for reasons of moral, political and religious beliefs (as well as reasons of conscience). Such principled belief can only result in recognition as a refugee if it is "genuinely and sincerely held" (UNHCR Handbook paras 168, 170, 171, 174), In testing the sincerity of an appellant’s beliefs, it is not a relevant factor simply that a person does not wish to kill innocent civilians, because this does not distinguish an appellant from many soldiers who have no principled view against military service. The sentiments expressed must always be scrutinised to test what truly motivates them.

The previous determinations by the IAT in deciding refugee status on the basis of whether or not the conflict in which they would have to participate was internationally condemned were wrong. The IAT held that the previous decisions required an additional element which was not present in the Refugee Convention; decision makers in non-military cases have not to make a finding whether the authorities human rights violations are internationally condemned; the focus should be rather on "whether or not there exists sufficient objective evidence of violations of the basic rules of human conduct" to which international condemnation may provide strong evidence.

The IAT found that in the context of the current conflict in Algeria, "the risk of this appellant being exposed to abusive military actions is insufficiently real and concrete." The IAT held that "unless a person facing conscription into an army engaged in repugnant conduct can show that it matters centrally to him that he is not forced to participate, then the situation that will face him will fall short of persecution subject to a relationship of proportionality between the nature of a claimant’s belief and the nature of the military service involved."

Note that despite this Tribunal’s declaration that there is no difference in its approach to Sepet and Bulbul (see DS July 2000), the focus of the inquiry in Sepet and Bulbul was on whether there was an "acceptable" "conviction" against undertaking the military service (i.e. one that did not discriminate against other people for a Convention reason) whereas here in Foughali the Tribunal accepts that a desire not to kill innocent civilians where one would have no objection to killing other nationalities in a war can be a legitimate objection to undertaking military service provided that is a genuinely and sincerely held belief.

Secretary of State for the Home Department (SSHD) v Havlicek (00/TH/01448, 7 June 2000

Czech Rom, mixed married couple

The appeal of the SSHD was dismissed. The Immigration Appeals Tribunal (IAT) held that "We have however, been persuaded that there may be individuals whose past sufferings show that there is a reasonable likelihood of continuing attacks if they were to return so that they can properly be said to have demonstrated a well founded fear of persecution for a Convention reason. Such individuals will be few and it may be that as time passes and if the state can show a continuing effort to deal with conduct amounting to be regarded as refugees. We do not think that that time has yet come." "In particular we accept that the mixed marriage may well make him more of a target of the skinheads who would regard him as a traitor to his race." The IAT emphasized that this case has been decided on its own facts and that it cannot be used as an authority to show that Czech Roma are entitled to be regarded as refugees. A successful claim by a Czech Rom will very rarely be established. "We recognize that discrimination will undoubtedly continue [in the Czech Republic], but discrimination is not persecution."

Doudetski (HX/86083/98, 29 June 2000

Russian Jew recognized, list of factors to show insufficiency of protection in Russia, no internal relocation

The Tribunal found that 1) there is anti-Semitism in Russia which is deeply rooted; 2) local officials do not respond as clearly and as willingly as they might and in some cases at quite high levels exhibit anti-semitic tendencies themselves; 3) this is more likely to be the case with petty officials, including the police, where problems are in any event exacerbated by a lack of post-Soviet criminal legislation and inefficiency in the court system, with the result that the deterrent effect of normal law enforcement is further exacerbated by corruption at local level in the police force; 4) those likely to be targeted by extreme elements are those who have clearly distinguishable characteristics.

The Tribunal concluded that the risk of persecution applied throughout Russia and that " for him [the appellant] the lack of deterrence arising from the present state of law enforcement institutions leads to the real possibility that the state would be unable to provide him with the protection to which he is entitled against such persecution."

The Refugee Legal Centre noted that the conditions set out in this case for Russia are much the same conditions faced by Roma. In Horvath (see DS July 2000) the House of Lords dismissed the appeal by a Slovak Roma.



U.S. 9th Circuit Court of Appeals, HERNANDEZ-MONTIEL v INS, No. 98-70582, 24 August, 2000 at

Homosexual Mexican, "homosexuals with a female identity" are a "particular social group"

Petitioner Geovanni Hernandez-Montiel, a native and citizen of Mexico, was a gay man who dressed and behaved as a woman. (Hernandez-Montiel was not a transsexual nor a transvestite). In Mexico, Hernandez-Montiel was harassed and persecuted by his family, school officials, and the Mexican police. On two occasions, Hernandez-Montiel was sexually assaulted by Mexican police.

The immigration judge (IJ) found Hernandez-Montiel's testimony credible, but denied Hernandez-Montiel asylum on both statutory and discretionary grounds. The IJ found that Hernandez-Montiel had failed to demonstrate persecution on account of a particular social group, classifying his social group as homosexual males who wish to dress as women. The IJ found Hernandez-Montiel's female gender identity not to be immutable.

The Board of Immigration Appeals (BIA) dismissed Hernandez-Montiel's appeal against the IJ's decision. The BIA agreed that Hernandez-Montiel gave credible testimony, but found that Hernandez-Montiel did not meet the burden of establishing that the abuse he suffered was because of his membership in a particular social group, which the BIA classified as homosexual males who dress as females. Concluding that the tenor of Hernandez-Montiel's claim was that he was mistreated because of the way he dressed (as a male prostitute) and not because he is a homosexual, the BIA found that Hernandez-Montiel failed to show that his decision to dress as a female was an immutable characteristic.

Hernandez-Montiel petitioned for a review of the BIA's decision.

The case turned on the legal question of whether Hernandez-Montiel was persecuted on account of his membership in a particular social group. As a matter of law, the Court of Appeal (CA) held that the appropriate particular social group was that group in Mexico made up of gay men with female sexual identities. The CA held that Hernandez-Montiel was a member of that group and was persecuted on account of his membership in that particular social group. The CA held that "Sexual orientation can be the basis for establishing a "particular social group" for asylum purposes."

The CA went on to set out the definition of a particular social group: "A particular social group is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it. Sexual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them. Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance." The CA found that "Hernandez-Montiel should not have been required to change his sexual orientation or identity." The CA held that "Sexual orientation and sexual identity are immutable." "Sexual identity is inherent to one's very identity as a person." The CA found that "Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance."

The CA found that the BIA erroneously concluded that Hernandez-Montiel was mistreated because of the way he dressed (as a male prostitute) and not because he was a homosexual. The CA dismissed the BIA’s finding, stating that " This statement was wholly unsupported by any evidence in the record. There was no evidence that Hernandez-Montiel was a male prostitute."

The CA found that the causal link between the persecution and the membership of a particular social group was established and held that Hernandez-Montiel was sexually assaulted because of his outward manifestations of his sexual orientation.

Moreover, the CA held that Hernandez-Montiel was not required to prove that his persecutors were motivated by his sexual orientation to the exclusion of all other possible motivations: "Persecutory conduct may have more than one motive, and so long as one motive is of one of the statutorily enumerated grounds, the requirements for asylum are satisfied."

The CA held that "[T]he sexual assaults Hernandez-Montiel suffered at the hands of police officers undoubtedly constitute persecution. Rape or sexual assault may constitute persecution."

The CA went on to say that "[B]ecause Hernandez-Montiel established past persecution, there was a presumption that he had a well-founded fear of future persecution, which the INS had to overcome by a preponderance of the evidence that country conditions had changed. The INS presented no evidence that Mexico had taken effective steps to curb sexual orientation-based violence, including that perpetrated by the police."

The CA concluded that Hernandez-Montiel was entitled to withholding of deportation.

Judge Brunetti wrote separately to concur, stating that he agreed with the result reached by the majority but not with its broad reasoning and rationale.





In the Matter of Diebo Kuna, an immigration judge in the US found that certain acts of domestic violence constituted torture under the Convention Against Torture.

In the Matter of Diebo Kuna, Respondent, 1 August 2000

Summary Of A Recent Decision Granting CAT Relief To A Victim Of Domestic Violence by Denise Visconti (from

On August 1, 2000, after more than 28 months at the INS Elizabeth Detention Center in Elizabeth, NJ, Ms. Diebo Kuna, 51, of the Democratic Republic of Congo (formerly Zaire), was granted withholding of removal pursuant to the Convention Against Torture ("CAT").

Kuna, a victim of atrocious persecution and torture at the hands of her husband, had been previously denied asylum and statutory withholding of removal by both the Immigration Judge and the Board of Immigration Appeals ("Board"). In fact, in February, Ms. Kuna was hours away from being returned to her native Congo after the Board denied her a stay of removal pending determination of her Motion to Reopen and Remand to apply for relief under the Torture Convention. Fortunately, the Court of Appeals for the Third Circuit stepped in and issued an emergency stay of removal, which prevented the INS from removing Ms. Kuna while her asylum appeal was pending. The Board subsequently reopened and remanded Ms. Kuna's case back to the Immigration Judge for consideration of her Torture Convention claim.

Upon remand, the Immigration Judge ("IJ") found that the "brutal and deplorable acts of domestic violence against her," constituted torture and thereby rendered her eligible for withholding of removal under the CAT. Additionally, in finding that Congolese "police [were] aware of the chronic instances of domestic abuse, and despite their legal responsibility to intervene, fail[ed] to act in a preventative or protective manner," the IJ determined that Congolese authorities gave "the respondent's husband an implicit license to torture her with impunity." Thus, according to the IJ, "the respondent is exactly the type of individual the Torture Convention was designed to protect."

Though CAT relief is not perfect, as it will not permit Ms. Kuna to bring her four children whom she so desperately misses to the U.S., it nevertheless has saved Ms. Kuna from return to Congo and certain death at the hands of her husband.




In June 2000 UNHCR London issued a statement entitled "Kosovars: Applicability of Article 1 D of the 1951 Convention Relating to the Status of Refugees. Article 1 D of the Refugee Convention provides that the Convention shall not apply to persons who are already receiving protection or assistance from other organs or agencies as UNHCR. The UNHCR stresses that this Article shall only apply after an examination of the inclusion clause, thus applying only to refugees. In the opinion of UNHCR the only UN agencies envisaged in Art D are the United Nations Relief and Work Agency for Palestine Refugees in the Near East (UNRWA), and later United Nations Korean Reconstruction Agency (UNKRA) who was in existence until 1969 UNKRA was set up by the General Assembly). In UNHCR’S view, unlike UNWRA and UNKRA, neither the United Nations Interim Administration Mission in Kosovo (UNMIK) nor the international security presence (KFOR), a NATO sponsored force, provide assistance and protection to refugees as required by Article 1 D of the Refugee Convention.




Consideration of Ireland’s Report

On 14 July 2000 the Human Rights Committee concluded its consideration of the second periodic report of Ireland by urging that country to incorporate the International Covenant on Civil and Political Rights into its domestic legislation. In the discussion the Committee asked whether the increasing number of false asylum claims in the country might be linked to the lack of an immigration policy, the Irish delegation said that such a suggestion had also been made domestically by at least one non-governmental organization. But any view of that nature was mistaken. Ireland had a well-established immigration policy by which non-European nationals who sought to enter the workplace might do so in compliance with the law. Last year alone, 6,000 work permits were issued to non-nationals.

The delegation said that those who sought asylum were entitled to refugee status, not on the basis of any desire to enter the workforce or because of skills which they might have, but on the basis of the 1951 Refugee Convention criteria alone.

Those who wished to enter the Irish economy, and who in order to do so abused the asylum process, did a great disservice to those who were genuinely in need of the protection of the State by clogging up with their false claims the process whereby refugee status was established, the delegation said.



Concluding observations of the Committee on the Elimination of Racial Discrimination : United Kingdom of Great Britain and Northern Ireland. 18/08/2000. CERD/C/57/CRP.3/Add.9. (Concluding Observations/Comments)

The Committee considered the fifteenth periodic report of the United Kingdom of Great Britain and Northern Ireland (CERD/C/338/Add.12 - Part I) and its Overseas Territories (CERD/C/338/Add.12 - Part II), which was due on 7 March 1998, at its 1420th and 1421st meetings (CERD/C/SR.1420 and 1421), held on 14 August 2000. At its 1430th meeting, held on 21 August 2000, it adopted the following concluding observations.

The Committee noted with concern that, as acknowledged by the State party, there is increasing racial tension between asylum seekers and the host communities, which has led to an increase in racial harassment in those areas and also threatens the well-being of established ethnic minority communities. The Committee also recommended that the State party take leadership in sending out positive messages about asylum seekers and in protecting them from racial harassment.

The Committee expressed concern that the dispersal system, may hamper the adequate access of asylum seekers to expert legal and other necessary services, i.e. health and education. It recommended that the State party implement a strategy ensuring that asylum seekers have access to essential services, and to ensure that their basic rights are protected.

The Committee noted the State party's current intensified efforts to clear the backlog of asylum applications. The Committee recommended the State party to ensure that effective safeguards are in place to respect the rights of all asylum-seekers.

The Committee recommended, among other things, that the United Kingdom take leadership in sending out positive messages about asylum seekers and in protecting them from racial harassment; that a strategy be implemented ensuring that asylum seekers had access to essential services and to ensure that their basic rights were protected; that efforts be intensified to ensure full enjoyment of all, of the rights provided in article 5 of the Convention, giving particular attention to the rights to employment, education, housing and health;

The U.K. Government said that the reform procedure for the Immigration and Asylum Act of 1999 would deliver the Government's commitment to helping immigrants and asylum seekers 'fairer, faster and firmer'. The Government was injecting a major investment -- 604 million this year on asylum support costs. With additional funds to support the delivery of the fairer, faster, firmer policy. By March 2001, at least 70 per cent of people should receive an initial decision within two months, and most appeals should also be determined within 4 months.

Concluding observations of the Committee on the Elimination of Racial Discrimination : Finland. 09/08/2000. CERD/C/57/CRP.3/Add.3. (Concluding Observations/Comments)

The Committee considered the fifteenth periodic report of Finland (CERD/C/363/Add.2), at its 1403rd and 1404th meetings (CERD/C/SR.1403-1404), held on 1 and 2 August 2000. At its 1414th meeting (CERD/C/SR.1414), held on 9 August 2000, it adopted the following concluding observations.

The Committee expressed its concern that in some cases the new accelerated procedure in the revised Aliens' Act would result in the repatriation of an asylum seeker while his or her appeal is still pending. The Committee recommended that the State party take all available measures to guarantee the legal safeguards of asylum seekers.

The Committee noted with concern that immigrants, refugees and minorities, in particular Roma, have higher rates of unemployment, have difficulties in accessing to housing and social services, and have higher rates of school drop-out. The Committee is concerned about the low number of judicial proceedings initiated related to incidents of racial discrimination, including cases of discrimination in employment. The Committee recommended that the State party take all necessary measures to alleviate the situation of immigrants, refugees and minorities, in particular Roma, at national and municipal levels especially with respect to housing, employment and education.


Concluding observations of the Committee on the Elimination of Racial Discrimination : Slovenia. 10/08/2000. CERD/C/57/CRP.3/ Add.1.
(Concluding Observations/Comments)

The Committee considered the initial, second, third and fourth periodic report of Slovenia (CERD/C/352/Add.1) at its 1405th and 1406th meetings on 2 and 3 August 2000 (CERD/C/SR.1405 and 1406) and at its 1416th meeting (CERD/C/SR.1416), on 10 August 2000, adopted the following concluding observations.

The Committee is concerned that the temporary protection offered by the State party to refugees might be insufficient to guarantee their basic rights. The Committee recommended the State party to review its policy on temporary protection of refugees in order to guarantee all their rights, especially those covered by the Convention, and facilitate their integration in Slovenian society.



United Nations Committee on the Elimination of Racial Discrimination (CERD) released the CERD's general recommendation at the conclusion of the discussion concerning racial discrimination against Roma. It outlined a number of measures that governments should take to improve the situation of the Roma

The August session marks the first time in the Committee’s 30-year-long history that it has held a discussion on a thematic issue and adopted a general recommendation dedicated to a specific ethnic group.

See for more on Roma and CERD 57 session discussion Press Releases at

UN Committee on the Elimination of Racial Discrimination on Norway

On 18 August 2000 the Committee on the Elimination of Racial Discrimination concluded its consideration of a report presented by a Government delegation from Norway on that country's performance in implementing the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

On asylum, the Norwegian delegation said that humanitarian considerations would always be taken when a person was not given asylum status. In addition, the individual would be given the benefit of doubt. The establishment of an appeals board for asylum and immigration cases had been approved by the country's parliament and it would come into force at the beginning of next year. The day before, on 17 August 2000, the CERD its consideration of a fifteenth periodic report by Norway on how that country was abiding by the terms of the International Convention on the Elimination of All Forms of Racial Discrimination. In the discussion, Patricia Nozipho January-Bardill, the Committee expert who served as country rapporteur on the report of Norway, said that it did appear from reports of the Directorate of Immigration, that racist harassment and threats continued to be a problem. While the Committee welcomed Norway's policy on unaccompanied minor asylum seekers, Ms. January-Bardill said she was a little concerned about its reliance on the so-called "independent experience" of an individual to decide whether to remand those who evaded rejection orders; it appeared to be arbitrary; in addition, some recent reports claimed that asylum seekers had a difficult time in Norwegian reception centres with law standards of services.

UN Subcommission on the Promotion and Protection of Human Rights on Freedom of Movement

On 18 August 2000 the Subcommission on the Promotion and Protection of Human Rights in its 52nd session adopted dozens of resolutions and decisions, among these, on freedom of movement

The Subcommission urged all States to respect the principle of non-refoulement and to safeguard and give effect to the right of everyone to seek and enjoy asylum from persecution; and to take practical measures to ensure that refugees and asylum-seekers were treated with dignity and with full respect for their fundamental human rights;

The Subcommission encouraged States to adopt alternatives to detention of asylum seekers and strongly urged States to abide by their respective international obligations in regard to detention practices and policies in the context of persons
seeking asylum.


Concluding Observations of the Committee on the Elimination of Discrimination Against Women (CEDAW) : Austria. 15/06/2000. CEDAW/C/2000/II/Add.1.

(Concluding Observations/Comments)

The CEDAW expresses its concern about women seeking asylum in Austria, and in particular, about reports of human rights violations by State officials.

The Committee recommends that the Government adopt policies that acknowledge gender-specific grounds for women seeking asylum in Austria, including gender-based violence and persecution and female genital mutilation.




Concluding Observations of the Committee on the Elimination of Discrimination Against Women (CEDAW): Germany. 02/02/2000. CEDAW/C/2000/I/CRP.3/Add.7/Rev.1. (Concluding Observations/Comments)

Noting the Government's intention to amend the Aliens Act on the legal status of foreign spouses, the CEDAW is concerned at the situation of alien women seeking residence in the State party. The Committee urges the Government to continue to improve the legislative and social protection of alien women, especially of women asylum seekers.

The CEDAW urges the Government to deposit its instrument of acceptance of the amendment to article 20.1 of the Convention as soon as possible.



CAT considered the initial report of Slovenia

The Committee (CAT) considered the initial report of Slovenia under Article 19 of the Convention against Torture, issuing a summary record on 25 May 2000. The CAT expresses its concern about "the sub-standard conditions in which asylum-seekers are housed in the State Party" urging Slovenia "to take all necessary measures to ensure that asylum-seekers are housed in conditions that comply with article 16 of the Convention". The CAT further noted "that the Aliens Act as a general rule precludes the expulsion of an alien to a country where he or she would be in danger of being subjected to torture. However, the Committee expresses its concern that Article 51, paragraph 2 of the Act which allows for the derogation from the general rule in cases where a person constitutes a threat to public security, does not respect the State party’s obligation under Article 3 of the Convention."


In its decision made public on 5 June 2000 (adopted already on 9 November 1999, on Communication No 63/1997), the CAT found that France had violated Article 3 of the Torture Convention by deporting a Spanish asylum-seeker of Basque origin to Spain. The CAT recalled that the European Committee for the Prevention of Torture (CPT) had concluded that it would be premature to affirm that torture and severe ill-treatment had been eradicated in Spain. Whilst recognizing the need for close cooperation between States in the fight against crime and for effective measures to be agreed upon for that purpose — the CAT stressed that "such measures must fully respect the rights and fundamental freedoms of the individuals concerned."



The Torture Survivor’s Handbook by REDRESS: available at

Information about support for torture survivors in the UK. This handbook is aimed at torture survivors in the UK including: Asylum seekers and refugees, their families and advisers. Information about the kinds of support available and the possibilities of obtaining reparation

Battered Women and the Criteria for Refugee Status: "Private" Persecution and the Emerging Law of State Responsibilities

Mark R. von Sternberg examines the legal basis for gender-based asylum claims, finding in human rights law grounds for protecting women from abuses committed by private persons.

No Physical Harm, No Asylum; Denying a Safe Haven for Refugees

By WENDY B. DAVIS and ANGELA D. ATCHUE (Suffolk University), Texas Forum on Civil Liberties & Civil Rights, Vol. 5, Issue 81, 2000


This article discusses the various definitions of persecution developed by the U.S. Courts of Appeals and the U.S. Supreme Court and advocates that the term should include non-physical harm. Each of these courts has stated that physical harm is not required to prove persecution; however courts are reluctant to grant asylum without evidence of severe physical injury. Economic disadvantage, incarceration, sexual assault, and intimidation suffered by refugees have failed to persuade courts. This topic has become increasingly important in light of the Kosovo crisis. The treatment of such refugees by the United States is headline news around the world. The authors suggest that courts should consider injuries other than physical in their determination of persecution.


A New Look at Deportation as Punishment: Why at Least Some of the Constitution's Criminal Procedure Protections Apply by ROBERT PAUW,

Gibbs Houston Pauw, Administrative Law Review, Vol. 52, P. 305, 2000

Courts have traditionally held that deportation is a civil proceeding, not a criminal proceeding, and that deportation does not constitute punishment. Consequently the Constitutional limits on punishment do not apply to deportation. In this article, the author argues that in light of the recent amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and several recent Supreme Court decisions, the doctrine that deportation is not punishment is no longer tenable. In some circumstances, deportation has become punishment and therefore at least some constitutional limits on punishment must apply in the deportation context.

The author argues that deportation should not be treated any differently than other criminal sanctions. In particular, because the extremely harsh measures adopted by Congress in IIRIRA cannot be explained or justified by the remedial purposes of the legislation, deportation must be regarded as punishment, at least in some cases. As a result, and contrary to the traditionally accepted doctrine, at least some constitutional provisions that limit punishment, including the Eighth Amendment and the Ex Post Facto Clause, apply to some deportation cases.




Seminar: Refugees and Asylum Seekers: Challenges to Legal Aid in the European Space
UNHCR, in cooperation with the Constitutional and Legal Policy Institute, Hungarian Helsinki Committee, CEU and ELTE Universities, will be hosting the second annual European Refugee Law Clinics Seminar from 3-5 December in Budapest, Hungary. The seminar will address issues related to difficulties facing legal aid providers, innovative protection solutions and a visit to a refugee law clinic.
Legal Aid 2000: Challenges Facing Legal Aid Providers

The Refugee Law Clinic as a Protection Solution

For more information please see attachment (L050200)

For further information please contact Michael Huffmaster:, Tel.: 0043 1 26060 5548

The First European Congress of the Specialist Lawyers on Immigration and Asylum will take place December 1-2, 2000 in Belgium. Making The Accounts From Maastricht To Amsterdam In The Area of Asylum And Immigration
For more information, see Philippe De Bruycker at


Foerderverein Niedersaechsischer Fluechtlingsrat e.V. in cooperation with the Turkish Human Rights Association IHD is carrying out a research project on the return risk of Turkish Kurds. Project partners are Pro Asyl and the Turkish foundation TAV. The aim of the project is the creation of supporting structures for refugees in Turkey.

The project-managers would like to receive information from other European countries about cases of renewed persecution after deportation to Turkey, and about the practice of decision-making within asylum procedures. The questions are:

  1. What is the practice of decision-making within asylum proceedings of Kurds from turkey? How high is the recognition rate?
  2. Are there certain categories which lead to the recognition as a politically persecuted person or to a rejection, respectively (e.g. conscientious objection, exile political activities, PKK-membership, village guard etc.)?
  3. How many Kurds are being deported annually?
  4. Are there any reports and documents on Kurds, who have been subject to renewed persecution measures after their deportation, present to your organisation?
  5. If there are such reports; can we get in touch with the persons concerned?
  6. How do official authorities react to such reports? Are investigations being initiated? Are there any political consequences?
  7. Are cases of "returnees" known to you, i.e. of Kurds who succeeded in fleeing again after their deportation and then were recognised as politically persecuted? Could you send us descriptions of cases and documents, made anonymous, if necessary ?

The project managers have elaborated a questionnaire for the recording of complaints about persecution after a deportation to Turkey.

More information and the questionnaire can be obtained from Claudia Gayer, Foerderverein Niedersaechsischer Fluechtlingsrat, Lessingstrasse 1, D-31135 Hildesheim, Germany, E-mail: buero@fluerat-nds.comlink.apc.or


October 2000







Central & Eastern Europe developments

Central Europe

ECRE/ECRAN Advocacy Workshop

Budapest (13th October) will be the location for a one-day Advocacy and Lobbying workshop/seminar run by Bill Seary and Friso-Roscam Abbing, with the specific aim of targeting the Central Europe region. The programme will provide an introduction to the key concepts and tools required for preparation and planning. This will be complemented by a more applied approach, looking at marketing skills and techniques and the way in which they may be utilised.


Progress on the Fundraising Toolkit

Work is still continuing on the Fundraising Toolkit. We have been fortunate to have the assistance of Bill Seary, who has been finalising the structure and content of the first part. His contribution has detailed the process of applying for funds, from the planning stages, through budgeting and adopting a project strategy, to the practical stages of identifying and approaching funders and completing application forms. It is our intention that upon completion, the Fundraising Toolkit will be an invaluable resource, targeting specifically the needs of refugee assisting non-governmental organisations in the region.


Central Europe NGO Directory

The last few months have been spent updating the Central Europe NGO Directory. It was found that much of the information that was collated had radically changed over the past year. This drew attention to the fact that feedback is essential and that in the future reviews will have to take place on a more regular basis.



There has recently been a call for proposals for the Phare Access programme 2000 for Hungary or; this has been addressed through the organisation of a workshop (specifically for Hungary) targeted at this round of funds to take place prior to the Advocacy and Lobbying Course.

There are also currently calls for proposals for the Phare programme for the social integration of disadvantaged youth with particular emphasis on the Roma minority (Uniting Europe The European Integration Bulletin for Central And Eastern Europe and the NIS No. 114 — 25/9/2000), this programme is also concerned exclusively with Hungary and both of the programmes have the deadline of November 17 2000. Additional sources of information may be retrieved from RefugeeNet’s ‘Overview of EU funding for refugees’, although not specifically focused on the needs of Central Europe, it provides the links and the key dates and country eligibility. For a more comprehensive guide, refer to the Guide to Funding and Participation in European Union Programs for Non-Governmental Organisations in Central and Eastern Europe and the Newly Independent States; it is available at from the ‘Resources’ link.



Eastern Europe

On September 29th 2000 ECRE learned from the Foreign Ministry of the Netherlands that we have been awarded a grant for a further year’s activities in Russia, Ukraine and Belarus under their MATRA programme. The start date for the project was 1st October 2000, and the project will run until 30th September 2001.

From September 28th to October 2nd Daniel Drake attended a meeting in Moscow on administrative procedures for awarding the status of refugee or forced migrant in Russia, held as part of the Memorial "Migrants’ Rights" Lawyers’ Network. Memorial generously financed the costs of Daniel’s participation in this event. Questions focused on included access of Chechen IDPs to the procedure for being awarded the status of forced migrant, claims for compensation made by victims of internal Russian conflicts, and the restructuring of the governmental bodies responsible for migration issues in Russia. A report on this meeting is available from the ECRE Secretariat from

Activities to be run under the new project will include:

  1. Follow-up workshop on writing successful grant applications
  2. Series of national refugee policy seminars
  3. Bursaries to ECRE/ELENA meetings and other relevant courses
  4. NGO Twinnings with other refugee-assisting organisations in the region or in Western or Central Europe
  5. Seminar on NGO/government co-operation
  6. Regional planning meeting to discuss further work by ECRE with NGOs in Eastern Europe
  7. Good Practice Guide on integration practices in the region

In addition, ECRE hopes to fundraise for two new projects involving NGOs from the region, the first a legal training course and the second a course on advocacy techniques. If funding is secured for these projects, then we hope to implement them during the project period.

For more information on ECRE’s work in Eastern Europe, please contact Rachel Bugler or Daniel Drake at the ECRE Secretariat on or







No. 5

October 2000








Brussels developments


This is an overview of the EU Asylum Policy developments during the last months. More information on these subjects is provided within the annexed ECRAN EU Presidency Advocacy Manual (B050100), which contains an analysis of the political state of play of each of these issues, ECRE’s key concerns and useful tools to advocate with.

European Refugee Fund

During the of Council of Justice and Home Affairs of 28-29 September, the EU Ministers reached an agreement on the creation of the European Fund for Refugees (EFR). The beneficiary groups are now identified as Convention refugees, "de facto" refugees (including persons benefiting from complementary protection), asylum seekers, temporarily protected persons or applicants for a temporary status. Rejected cases are no longer mentioned which means that future "assisted" return programmes, supported by the Fund, are limited to those who have benefited from a status and who want to return voluntarily.

The Fund shall support Member States’ action relating to:

  1. Conditions for reception
  2. Integration of long/stable-stay refugees
  3. Repatriation

Distribution criteria: from 2000 to 2004, each Member State will receive an annual allocation from the Fund (from 500,000 euro in 2000 to 100,000 euro in 2004). The remainder of available resources will be distributed between Member States proportionally to the number of recorded people assisted over the three previous years (65%) and the number of third country nationals or stateless people as refugees or benefiting from a form of international protection granted by a Member State (35% of the volume).

By Decision of the Council, the Fund shall also finance emergency measures to the benefit of one or several Member States in the event of a sudden mass influx of refugees or displaced people or evacuation from a third country. Decisions will be taken on the basis of the conditions listed in the Directive relating to Temporary Protection (once it takes effect).

Please find the Council Decision establishing the European Refugee Fund annexed (B050200).


Temporary Protection

Acting on an initiative from Commissioner Vitorino, the Commission adopted on 24 May 2000 a new initiative (Directive) introducing minimum standards for granting temporary protection in the event of a mass influx of displaced persons. Its aim is to help Member States deal in a uniform, balanced and effective way, based on solidarity, with a mass influx of displaced persons, while at the same time ensuring that the asylum system does not collapse and preserving intact the operation of the Geneva Convention. It includes a burden-sharing element (both financial and physical) based on the principle of "double volontariat" (on the part of the beneficiaries and the authorities). With regard to asylum, Article 17 clearly states that "implementation of temporary protection does not exempt the Member State responsible for considering the asylum application from applying the existing criteria and mechanisms for deciding on such cases". A common EU temporary protection regime will be based on a set of minimum standards for the treatment of beneficiaries, extended for a duration of maximum two years, and closely linked to the 1951 Convention regime by making access to asylum procedures obligatory.

UNHCR and Amnesty International have already issued their comments on the Commission’s proposal. The former considers that the proposal would benefit from an explicit reference to the principle to admit those arriving in a large-scale influx in the country where they first seek refuge, and the obligation of States to scrupulously observe the principle of non-refoulement, including rejection at the border. Amnesty International’s concerns are mostly related to the increasing tendency to abandon the internationally recognised regime for the protection of refugees (based on the UN Refugee Convention) to resort to alternative protection regimes (such as temporary protection), with the effect of undermining refugee protection.


Family reunification

On Wednesday 6 September the European Parliament adopted a resolution/report relating to the proposal for a Directive on family reunification for third country nationals residing legally in a Member State. The rapporteur Eva Klamt withdrew, as she did not agree with the definition of "family", that she finds somewhat too broad.

Most of the amendments adopted by the Parliament have been accepted by the Commission in its amended proposal, in full or in part, or subject to a change of wording in some cases. Especially relevant is the amendment that excludes persons enjoying a subsidiary form of protection (thus restricting the scope of the directive), calling for the adoption without delay of a proposal on their admission and residence. The Commission considers that persons in this category must have the right to family reunification and need protection, but the absence of a harmonised concept of subsidiary protection at Community level constitutes an obstacle to their inclusion in the proposed Directive. The Commission's Scoreboard to review progress on the creation of an area of "Freedom, security and Justice" in the European Union envisages the adoption before 2004 of a proposal on the status of persons enjoying subsidiary forms of protection, which could also cover family reunification.

With regard to the family members' rights, the amended article 12.2 reads as follows: "Member States may restrict access to employment or self-employed activity by relatives in the ascending line or children of full age". This amendment constitutes a significant change, since the original wording prevented them from having access to both activities.

ECRE issued a Comments Paper in April, where it called upon the EU Member States to explicitly state the intention of establishing a set of minimum standards for family reunification; thus the right of Member States to introduce or maintain more favourable provisions and practices in their national legislation should be clearly set out. ECRE calls for the inclusion of complimentary protection in the instrument, as well as for the definition of "family" as defined in the proposal to be kept. ECRE urges the EU Member States to ensure that family members of Convention refugees or persons granted complementary protection have access to the same socio-economic and other rights as the principal applicant.


Charter of Fundamental Rights of the European Union

The draft Charter of Fundamental Rights of the European Union was approved in Brussels on 2 October 2000 by the Convention, which drew-up the full text. It is now up to the European Council to legally and politically adopt the Charter. A first review will take place in the Biarritz European Council (mid October), previous to the final adoption in Nice (December 2000), during the last European Council to be held under the French Presidency.

The text contains a preamble and six chapters under the following titles: Dignity, Liberties Equality, Solidarity, Citizenship and Justice. Of particular interest to ECRE is Article 18, which recognises the right to asylum:

"The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community."


Article 19 is also relevant as it is closely related to the principle of non-refoulement:

1. Collective expulsions are prohibited.

2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

ECRE’s main concerns, expressed in its Comments Paper (May 2000) deal with the principle of non-refoulement, which it considers to be a norm of customary law, therefore wider than the Refugee Convention itself.

With regard to the possible binding nature of the Charter, Amnesty International has manifested that, since "there is still room for improvement on these requirements, it does not consider it appropriate for the European Charter as it now stands, to become legally binding".


Minimum standards on asylum procedures

The European Commission has adopted a proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status. The aim of this measure is to introduce a minimum level playing field in the European Community in the short term.

The proposal basically consists of three different sets of provisions. The first set deals with procedural guarantees for asylum applicants. These provisions relate to situations found throughout all stages of the asylum procedures and are designed to approximate notions of procedural fairness among Member States.

A second set of provisions concerns minimum requirements regarding the decision making process. While Member States may retain their national systems, decision-making has to meet certain minimum requirements in the interests of developing a comprehensive common European asylum policy. Decision-making authorities should have access to information on country of origin and be able to seek expert advice whenever necessary. Personnel should have received the requisite initial training, decision-making should follow certain investigative standards, decisions are to be taken individually, objectively and impartially, and full reasons should be stated for adverse decisions.

A final set of provisions concerns common standards for the application of certain concepts and practices. These concepts or practices (‘inadmissible applications’, ‘manifestly unfounded applications’, ‘safe country of origin’; ‘safe third country’) are already in place in many Member States, but application and interpretation vary significantly. Member States will be able to dismiss applications as inadmissible if:

  1. Another Member State is responsible for examining the application, according to the criteria and mechanisms for determining which Member State is responsible;
  2. A country is considered as a first country of asylum for the applicant;
  3. A country is considered as a safe third country for the applicant.


Common measures to combat trafficking

The French Presidency has issued two initiatives in this field.

The first one deals with the harmonisation of financial penalties imposed on carriers transporting into the territory of the Member States third country nationals not in possession of the documents necessary for admission. It will apply to all air, sea and coach carriers. It obliges them to return any third country nationals without visa or necessary documentation to either the country that issued their travel documents or to any other state that guarantees to admit them. Member States are required to provide in their national law for financial penalties of a minimum amount of EUR 2000 for each person carried. As regards right to asylum, the proposal states that:

"It is essential that the existence of such provisions should not prejudice the exercise of the right to asylum. With this in mind, it is important that Member States should not apply the penalties which they are required to introduce under this Directive if the third-country national is admitted to the territory for asylum purposes."

The second French Presidency Proposal is aimed at approximating legal frameworks in view of combating the assistance given to illegal immigration. As it stated in article 1, Member States "shall take the measures necessary to ensure that the act of facilitating intentionally, by providing direct or indirect assistance, the unauthorised entry, movement or residence in its territory of an alien who is not a national of a Member State of the European Union is regarded as an offence".

Both proposals are scheduled for adoption at the Council of Justice and Home Affairs of 30 October/1 November 2000.



ECRAN EXTRAORDINARY SUMMIT, 29 September 2000, Geneva

In view of the ECRAN Co-ordinator Friso Roscam Abbing’s impending departure from ECRE, an ECRAN Extraordinary Summit was called for all the ECRAN Focal Points on 29 September 2000 in Geneva. Since most of them were already participating in the ECRE Biannual General Meeting on 30 September and 01 October 2000 in Geneva, it was possible to have 16 of the ECRAN Focal Points even at such a short notice. The full Minutes of the Meeting are attached as document no B050300. However, the main findings from the meeting are summarized below:

New ECRAN Co-ordinator: A brief description of the situation in view of the present ECRAN Co-ordinator leaving the organisation at the end of October 2000 and his new appointment in the European Commission in the Asylum and Immigration unit in the Directorate-General Justice of Home Affairs, responsible Commissioner being Antonio Vitorino was given. It is envisaged that the new Co-ordinator, who is yet to be selected, will join the ECRE EU office, not before December 2000 or even 1 January or 1 February 2001.

Key Lobbying achievements and plans in and for the year 2000: In a tour de table the individual Focal points described the key lobby achievements in the year 2000 in their respective countries and the lobbying strategies envisaged for the remainder of the year.

ECRAN Website: Yolanda Lopez, the ECRAN Webmaster gave a brief presentation of the pilot ECRAN website to the ECRAN Focal Points, followed by a lively discussion including recommendations and suggestions from the participants to improve the site. Yolanda distributed a questionnaire entitled "ECRAN and the Web" which asked for the participants’ concrete feedback and any other comments, which will be incorporated in the further designing of the website.

The role of ECRAN in ECRE’s Advocacy on the commemoration of the 50th anniversary of the 1951 Convention: In view of the commemoration of the 50th anniversary of the 1951 Convention, ECRE has decided to make an Appeal to the European governments entitled "Appeal for the Protection of Refugees". The Appeal process runs from 1 October 2000 until 1 October 2001. It aims to, on the one hand, put pressure on the national as well as European governments to properly implement the Tampere acquis. On the other hand use the Appeal in raising public awareness by collecting 10 signatures of well-known personalities from each Member State on a pan-European level. These range from Trade Union leaders, Church leaders, Nobel Prize winners to celebrities from the world of art and sport. It was agreed that the process would be coordinated at national level by the ECRAN Focal Points. At European level, coordination would be mainly done by the future ECRAN Co-ordinator, using the future ECRAN Web-site as a means for the exchange of information between the ECRAN Focal Points.

Preparation for ECRAN/ELENA Meeting and 12th ECRAN Meeting in Berlin, December 2000: The draft agenda for the first-ever ECRAN/ELENA Meeting to be held on 07/08 December 2000 in Berlin, is attached as Doc no b050400. ECRAN Focal Points are invited to give suggestions and comments on the agenda by 20 November 2000. In case the new to-be appointed ECRAN Co-ordinator/ ECRE Representative would not have taken his/her function at that point of time, Christian Levrat of the Swiss Refugee Council has very kindly agreed to act as Interim ECRAN Co-ordinator in the running up of the two aforementioned meetings. He would coordinate the ECRAN inputs to the ELENA/ECRAN Meeting and preside over the separate 12th ECRAN meeting. Registration forms for both meetings were sent out to the ECRAN Focal Points in the week starting 9 October 2000.


No. 5

October 2000








General developments

Letter to Organisations, institutions and contacts involved in integration and reception.

On 19 October, ECRE sent a letter to Organisations, institutions and contacts involved in integration and reception of refugees outlining the aims for ECRE future work in this area. The letter is attached to the Documentation as g050100.


ECRE Web-site

The ECRE web-site will be relaunched this Winter with a new design and new content. ECRE welcomes feedback on its site and suggestions for new content at all times. If you have comments then please contact Katy Fletcher,



ECRE currently has a vacancy for the post of ECRE EU representative, all details are available on the ECRE web-site or from NB the deadline for this position is 23 October 2000

There is a vacancy in the ICVA office in Sarajevo of Director. Details of this position are attached in document g050200.








The ECRE Brussels office has moved. The new contact details are as below:

Rue Belliard, 205 - Box 14

B-1040 Bruxelles

Tel +32.2.514.59.39

Fax +32.2.514.59.22


ECRE Annual Report

The ECRE Annual Report for 1999 has now been produced and will be distributed to all member agencies in the coming weeks.

The report was to be distributed at the Biannual General Meeting in Geneva, but the courier company failed to deliver the reports.


Forthcoming ELENA course

Registration has begun for the ELENA course in December 2000 on "Refugee Law as a Response to Failure of State Protection".  (Focus on agents of persecution and the concept of 'internal protection alternative').  All details of the course are on the ECRE web-site or can be obtained from the Secretariat.

110 Clifton Street
London EC2A 4HT

tel 020 7729 5152

fax 020 7719 5141






P050100: Position on the Interpretation of Article 1 of The Refugee Convention

P050200: Position on Complementary Protection

P050300: An Appeal to European Governments

L050100: Nicht-staatliche Verfolgung — Schutzlücke im Deutschen Asylrecht

L050200: Seminar: Refugees and Asylum Seekers: Challenges to Legal Aid in the European Space

B050100 ECRAN EU Presidency Advocacy Manual

B050200 Council Decision establishing the European Refugee Fund

B050300 ECRAN Extraordinary Summit minutes

B050400 Draft agenda for the first ECRAN/ELENA meeting

G050100 Letter to Organisations, institutions and contacts involved in integration and reception.

G050200a and b Vacancy for the post of Director for ICVA office in Sarajevo