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No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
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No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
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Policy developments |
UN 2
UNHCR 2
Country of Origin 4
Council of Europe 4
OSCE 5
ECRE Papers 6
Country Developments 6
Publications 13
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Legal developments |
UN Economic & Social Council 15
UN Human Rights Committee 15
UN (CAT) 15
Council of Europe 16
Country Developments 21
Information on Yezidi from Georgia 26
Country of origin information 27
Publications 28
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Brussels Developments |
EU Presidencies 30
Justice and Home Affairs Council 30
The EU asylum agenda 31
ECRAN news 33
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General Developments |
New staff 34
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Annexes |
List of
Annexes 35
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No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
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Policy developments |
UN
The UN Secretary General criticises asylum policy in the EU
Addressing the Stockholm International Forum on 31 January 2001, the Secretary General of the UN, Kofi Annan, gave a frank and harsh assessment of the policy towards asylum seekers of the EU Member States. Criticising the term “bogus asylum seeker”, the UN Secretary General stressed that such a person “is not equivalent to a criminal and that an unsuccessful asylum application is not equivalent to a bogus one”. Mr Annan accused some governments of “trying to prevent asylum seekers from arriving in the first place, by effectively extending the countries’ frontiers, for instance, by forcing airline employees to substitute themselves to immigration officials”. Mr Annan deplored the fact that asylum seekers could be repatriated “with little or no examination of their claims”, thus putting them at risk of “being sent back to countries where their freedom, their safety and even their lives are in danger”. In his view, the “long delays in processing asylum applications” are the result of the reluctance of governments to invest “adequately to ensure prompt and fair proceedings”. Since asylum seekers are not allowed to work in a number of countries, this leaves them “in limbo” for months or even years while they “receive only minimal support for themselves and their families”. The UN General Secretary warned that the adoption of “politically popular measures” to react to “the immediate pressures” was in contradiction to Europe’s “relative prosperity and its prospected need for greater numbers of immigrants in the future”. He had earlier indicated the risk of pursuing tight immigration policies, which was, inevitably, contributing to the “strain on the asylum system”. “When there is no way for people to enter the country as legal immigrants, some are going to try to enter as asylum seekers instead”, he said. In his closing remarks, Mr Annan noted, that there are some indications that Europe is losing sight of its duty to protect refugees under international law, as set out in the 1951 Convention. “This is a source of deep concern to me, and risks having an enormous impact on other regions that look to Europe as an example”, he added. The UN High Commissioner for Human Rights, Mary Robinson, also added her voice to this debate. In an implicit reference to the situation in the UK, she regretted that the refugee question “turn into an electoral issue in numerous countries in a disturbing way”. (Migration News Sheet/March 2001)
Economic and Social Council
Resolutions
Already in August 2000, the Economic and Social Council Sub-Commission on Human Rights published two Resolutions on Asylum, one on “the right to seek and enjoy asylum” (E/CN.4/SUB.2/RES/2000/20, 18 August 2000) and the other on the “detention of asylum seekers” (E/CN.4/SUB.2/RES/2000/21, 18 August 2000).
UNHCR
UNHCR’s Global Consultations on Refugee Protection
As mentioned in the last three Documentation Services, the UNHCR Department of International Protection has initiated a series of Global Consultations on the meaning and content of the international protection of refugees (First Track: examination of the core principles of the Refugee Convention; Second Track: questioning and guiding the interpretation of the Convention; Third Track: examination of areas not covered by the Refugee Convention).
The first meeting of the third track –EXCOM Process – took place in Geneva on 8-9 March 2001. Its theme (theme 1) was the ‘Protection of Refugees in Mass Influx Situations’.
In the Chairman’s Summary it is stated that the meeting “…has given rise to a rich and constructive debate, demonstrating the keen interest and support for these consultations. It has been particularly encouraging to note the broad geographical representation of delegations, and the active participation of the NGO community. The items discussed were:
1) Protection of refugees in mass influx situations: overall protection framework
· Prima facie determination on a group basis
· Temporary protection
2) Civilian character of asylum: separating armed elements from refugees
· Roles and responsibilities
· Operational measures to enhance security
3) Practical aspects of physical and legal protection with regard to registration
· Operational support and Project PROFILE
4) Mechanisms of international cooperation to share responsibilities and burdens in mass influx situations
· Global and comprehensive approaches
· Measures to enhance burden and responsibility sharing
For more details on the interventions by delegations, the key issues addressed under each agenda heading and suggestions for further consideration and follow-up, see the “Chairman’s Summary” on the UNCHR website (www.unhcr.ch), under “Global Consultations”.
The dates, venues and topics of the
Consultations are to be found in the ECRE Documentation Service of February
2001 or on the UNHCR website.
Global Consultations Refugee Forum
The UNHCR Bureau for Europe will, in close cooperation with the Department for International Protection, organise a Forum of refugees in Europe as a contribution to the Global Consultations on International Protection. The Forum will gather between eighty and ninety refugees residing in countries of Western and (to some extent) Central Europe, to discuss selected topics from among those on the agenda of the Third Track. The Forum will probably be held on 14-16 September 2001, in Rouen (France), however dates and venues are to be confirmed. In addition to the Forum, two more Global Consultation events will involve refugees exclusively. One, at the initiative of the BO Paris, will gather some 200 prominent refugees/former refugees in France for a special session of the French National Assembly in June 2001. This “refugee parliament” will adopt a Declaration as a contribution to the December 2001 First Track Conference. The other refugee event will gather refugee women from all over the world. Venue and date of this initiative are still to be decided.
New UN High Commissioner for Refugees deplores lowering of the EU contribution to the agency’s budget
At the beginning of February the new UN High Commissioner for Refugees, Ruud Lubbers, criticised the fact that the EU’s contribution, which was 21% of the agency’s annual budget in 1995 had fallen to only 5% in 2000. The EU’s contribution to the UNHCR’s annual budget was, in fact, only 40.9 million US$ in 2000, that is less than the amount given by the Netherlands alone (47.9 million US$) and less than one-sixth of the USA grant of 245.2 million US$.
While the EU is complaining about the increase in the number of refugees, it is, at the same time, reducing its contribution to the UNHCR. As a matter of fact, over the last few years, the UNHCR has been progressively reducing its budgetary requirements: from $1.4 billion in 1996 to $1.2 billion in 1997, $995 million in 1998 and about $842 million in 1999.
For this year, the American (35% of last year’s budget) and the Japanese (14% of last year’s budget) contributions are also of great concern to the UNHCR. With a new administration in the USA and the departure of Sadako Ogata, it is not clear whether the same levels of contributions will be maintained.
As of 30 January 2001, the UNHCR had received only a little over US$270 million, that is 28.33% of its estimated budgetary needs for this year, a sum of US$953.7 million. (Migration News Sheet/March 2001)
COUNTRY OF ORIGIN
The Continued Protection Needs of Individuals from Kosovo
Please find attached the updated UNHCR Position on the Continued Protection Needs of Individuals from Kosovo (annex P0201) (March 2001). The 12-page-paper outlines the reasons why individuals originating from Kosovo might still be in need of international protection. For Kosovo Albanians this particularly concerns persons originating from now majority Serb municipalities, persons with mixed ethnicity and in mixed marriages, and Albanians who had worked with the Serbian regime after 1990. Victims of serious human rights violations and traumatized persons should not be returned to Kosovo.
UNHCR lists chronically ill persons for whom medical treatment is not available in Kosovo, severely handicapped persons, unaccompanied elderly persons and separated children as “vulnerable persons”.
Concerning minority groups, UNHCR states the following: "The security situation remains especially precarious for members of Kosovo, Serb, Roma, Ashkaelia and Egyptian minorities. They by and large would qualify for refugee status” (para 16). Some minority groups might for the moment be "better tolerated in Kosovo than others are", yet "there is a prevailing insecurity which affects all minority groups".
The report contains information on Serbs, Roma, Muslim Slavs (Bosniacs), Gorani, Croats, Turks and ethnic Albanians from Serbia. (For further information on this topic also see the UNHCR/OSCE Assessment of the Situation of Ethnic Minorities, March 2001).
The report also contains a section on the question of internal protection alternative in the territories of the Republics of Serbia and Montenegro. It highlights particular problems persons of Albanian origin and Roma would face.
UNHCR also points out the general deteriorating security situation, the lawlessness and the developments in Macedonia and South Serbia which should be taken into account while considering the return of all persons originating from Kosovo.
COUNCIL OF EUROPE
The Commission against Racism publishes new reports on Albania, Austria, Denmark, "the Former Yugoslav Republic of Macedonia" and the United Kingdom
On 3
April 2001 the Council of Europe's expert body on combating racism, the
European Commission against Racism and Intolerance (ECRI), released five new
reports examining racism, xenophobia, anti-Semitism and intolerance in Albania,
Austria, Denmark, "the Former Yugoslav Republic of Macedonia" and the
United Kingdom. The reports form part of a second cycle of monitoring of member
States' laws, policies and practices to combat racism. ECRI's country-specific
reports cover all 43 member States of the Council of Europe on an equal
footing, in the perspective of the protection of human rights. Compiled
following a contact visit to the country in question, the second report examines
the implementation of proposals made to the government in the previous report,
it provides a general up-date and also contains a deeper analysis of selected
issues of particular concern in that country. ECRI recognises that in all five
countries positive developments have occurred. At the same time, the reports
show ECRI's continuing grounds for concern. These include the following.
In Albania, issues of ethnic discrimination are not recognised as a
primary concern, and thus there is little awareness regarding such issues.
Negative prejudices and stereotypes exist particularly with respect to
Roma/Gypsies. The widespread corruption generally recognised to be present in
public institutions may also indirectly discriminate against those who do not
have the necessary connections or means in order to have access to public
services, basic facilities or employment. There is an acute lack of information
about the situation and the number of the different minority groups living in
Albania.
In
Austria, racism, xenophobia and discrimination affect particularly immigrants,
asylum seekers and refugees, but also Austrian nationals of immigrant
background. Most of the existing legal provisions aimed at combating racism and
discrimination do not appear to provide for effective protection against these
phenomena. Of deep concern is the use of racist and xenophobic propaganda in
politics. The behaviour of the police vis-à-vis members of minority
groups is also of particular concern.
In
Denmark, the prevailing climate of opinion concerning individuals of foreign
background and the impact and use of xenophobic propaganda in politics are of
deep concern. Discrimination, particularly in the labour market, but also in
other areas, such as the housing market and in access to public places, are
also of concern. People perceived to be Muslims appear to be particularly
vulnerable to these phenomena. Most of the existing legal provisions aimed at
combating racism and discrimination do not appear to provide effective
protection.
"The
Former Yugoslav Republic of Macedonia" is still a society in which the
issues of discrimination and intolerance are not adequately recognised and
confronted. Different ethnic communities often have limited contact with each
other and their relations are strained by negative stereotypes and mistrust.
Furthermore, members of minority groups do not participate fully in public
institutions at all levels of society. There is little concrete information
available about manifestations of racism and discrimination, which in turn
means that specific measures to combat these phenomena are often lacking in
various fields.
Problems
of xenophobia, racism and discrimination persist in the United Kingdom and are
particularly acute vis-à-vis asylum seekers and refugees. This is
reflected in the xenophobic and intolerant coverage these groups of persons
receive in the media, but also in the tone of the discourse resorted to by
politicians in support of the adoption and enforcement of increasingly
restrictive asylum and immigration laws. Racist prejudice in the police
continues to constitute an element of concern. Criminal and civil law
provisions are not always effective in countering racist, xenophobic or
discriminatory behaviour. (ECRI's new reports are available on the internet
site www.ecri.coe.int in English and French.)
Parliamentary Assembly
On 14 March 2001 the Standing Committee, acting on behalf of the Assembly, adopted Recommendations on:
· Non-expulsion of long-term immigrants (Recommendation 1504 (2001))
· Health conditions of migrants and refugees in Europe (Recommendation 1503 (2001))
The texts can be viewed on the Council of Europe Website at stars.coe.fr/index_e.htm
After a prolonged exchange of views on the report on “The right to family life for migrants and refugees” (by Manuela Aguiar, Doc. 8985), the Standing Committee decided to refer it back to the Committee on Migration, Refugees and Demography for further elaboration and a debate at a later date. The full text of all reports can be accessed on-line at the Assembly’s website: stars.coe.int/.
For the year 2001, the Office for Democratic Institutions and Human Rights (ODIHR) has planned a series of projects on Migration/Freedom of Movement; Roma and Sinti Issues and Trafficking.
For a detailed overview of the themes and timeframes, see the OSCE website at: www.osce.org/odihr/cal2000_fom.htm, for Migration and Freedom of Movement; www.osce.org/odihr/cal2000_ras.htm, for the Roma and Sinti projects; and
www.osce.org/odihr/unit-trafficking.htm, for Trafficking.
In early April 2001, ECRE produced a new background paper on proposals addressing migrant smuggling and trafficking in persons. It may be viewed on-line on ECRE’s new website (www.ecre.org).
ECRE has also produced a Comments
Paper on the Commission’s Proposal on minimum standards on procedures in
Member States for granting and withdrawing refugee status. This paper may be requested
from ECRE and a Summary of it is also available on ECRE’s website.
COUNTRY DEVELOPMENTS
Belgium
Slovaks will
no longer need visas for Belgium
As of 10 April, Slovak nationals will again be able to travel to Belgium without visas. In the event that there is a dramatic increase in the number of asylum applications, Belgium has an option to ask for an (EU) exemption and to renew visas temporarily.
Czech Republic
Visas required for Canadians travelling
to the Czech Republic
Canadians travelling to the Czech Republic will again need visas to enter the country, CTK news agency reported on April 1. The government reintroduced visa requirements for Canadian citizens on Jan. 31, in response to similar restrictions on Czechs travelling to Canada. The new regulations came into effect on April 1. Both countries mutually abolished visas in October 1996. Then, one year later, Canada re-imposed visa restrictions in an attempt to stem the flow of an increasing number of asylum seekers, particularly Roma, from the Czech Republic. Canada says it will consider lifting visa requirements only once the Czech Republic becomes a member of the European Union. (UNHCR, AP World News via News Edge Corporation, 2 April 2001)
British immigration officers
in the Czech Republic to check persons travelling to the UK
British immigration officers will have the right to ask passengers travelling to Britain about the reason of their trips in Prague, the spokeswoman for the British Home Office told CTK on 31 March 2001. Britain wants to make its struggle against unqualified asylum seekers more effective, she added. The spokeswoman said that if necessary British immigration officers would operate in Prague. A similar power belongs to the British officers at the Paris Gare du Nord, from which the Eurostar trains go to London, and in some Balkan countries. The spokeswoman said that the checking was agreed by the British authorities and the Czech government. An increased influx of Czech Romanies to Britain provoked fears in recent years that Britain might impose visa requirements on the Czech Republic.
Czech Council
proposes to offer temporary protection to Chechnya refugees
On 28 March the Government Human Rights Council proposed that the Czech Republic offer temporary protection to foreigners from the armed conflict-torn Chechnya, Martin Pelcl from the government office has told CTK news agency. Refugees under temporary protection are issued with a special visa. It is up to the government to determine in a decree the States whose citizens can get it, how many of them and for how long. "The proposed measure aims to provide reasonable and effective international protection to the citizens of the Russian Federation and other persons who have fled from the armed conflict torn Chechnya and who currently stay on Czech territory”, the council said. Some 200 asylum applicants from Chechnya are currently in the Czech Republic, but the council said that the real number of refugees is higher because not all of them apply for asylum. In November 1999 former Interior Minister Vaclav Grulich approved a proposal for Czech authorities not to turn down refugee status applications by Chechen citizens until the conflict was solved. The proposal was motivated by the fact that the people often did not meet conditions for being given the status, while they could not return back home for security reasons.
Such measures
are, however, more and more problematic as time passes, the council said.
"To extend the status of asylum applicant means that the applicant must wait
for a decision which he/she cannot influence himself/herself. It is a state of
legal uncertainty with possible negative impacts on the psychical condition of
the applicants who have already been strongly distressed by their experience
back at home", the council said. (UNHCR, CTK news agency, Prague, 28 March
2001)
Denmark
Government divided on whether to join in
common EU asylum policy
In early February, reacting to a call by the UK to step up efforts to reach a common EU policy on asylum, members of the Danish Government expressed divided opinion on whether the country should join in. It may be recalled that under the terms of the Protocol on the position of Denmark, annexed to the Treaty of Amsterdam, Denmark remains free to decide whether or not it wishes to participate in, inter alia, a common EU policy on asylum. While the Radical Party (det Radikale Venstre) supports participation in this field, the Social Democrats are rather hesitant and prefer to maintain the Danish opt-out position. As for the Social Democrat Minister of the Interior, Karin Jespersen, she believes that it is still too early for the Government to debate whether or not to join the EU States in the elaboration of a common asylum policy, which, according to her, is still only being discussed by the Justice and/or Interior Ministers of the EU States. (Migration News Sheet/March 2001)
Retaliatory measures against States refusing to readmit their nationals
The
Danish Government intends to adopt a harder line towards countries unwilling to
readmit their own nationals refused entry or expelled from Denmark. The Chief
of Police is drawing up a list of such countries. The problem concerns both
rejected asylum seekers and foreigners banished from Denmark after having
served a prison sentence. In order to speed up the process, the Minister of
Foreign Affairs, Mogens Lykketoft will take up contact with a number of foreign
embassies and ask them for assurances to take back their own nationals. If they
refuse to do so, the Danish Government could decide to terminate contracts of
assistance. (Migration News Sheet/March 2001)
Also see the Council of Europe’s
Report (Council of Europe section)
Decision to enable some 900 Kurds who arrived on board
a ship to submit asylum claims.
On 20 February, four days after a Cambodian registered vessel, carrying 910 asylum seekers, the overwhelming majority being Iraqi Kurds, had run aground in the South of France, the Ministry of Interior announced its decision to “issue to each foreigner claiming to be of Iraqi Kurdish origin (…) a safe conduct pass valid for eight days to enable him/her to submit an asylum application with the office of the prefecture”. However, the Kurds may not be aware of the fact that their safe conduct pass is a document that would enable them to another one of longer validity once they have presented an asylum application. Those who fail to make use of the eight days to apply for asylum will thus find themselves without any authorisation to stay and thus become liable for expulsion as illegal immigrants. People authorised to submit an asylum application receive a renewable temporary three month residence permit pending examination of their dossier. During this time asylum seekers are not allowed to work and are often in precarious living conditions since reception facilities in France are largely inadequate.
In an opinion poll carried out by the institute CSA and published in the daily Le Parisien-Aujourd’hui en France on 22/02/2001, 78% of the respondents replied that they were favourable to granting entry to the Iraqi Kurds. 20% said that they were in favour of granting asylum to all of them whereas another 58% agreed to granting them refugee status after individual examination of their claims. 20% felt that it was necessary to send them back to their own country and 2% had no opinion (Migration News Sheet/March 2001).
French
cabinet approves Eurostar immigration measures
On Wednesday 14 March the French cabinet approved a bill to classify the Paris-to-London Eurostar rail service as an international transport link, and thus make it easier to detect illegal immigrants using the train to enter the UK. The bill is a result of an agreement reached at a Franco-British summit last month to step up cooperation, after the British government complained that around 400 would-be asylum seekers were entering the country every month on board the train. Under the new bill travellers will have to carry documents permitting them to cross international borders from the moment they get on the train at Paris’ Gare du Nord. The French government also agreed to allow British immigration officials to be posted at the Gare du Nord.
Germany
Attempt to reintroduce full
social security allowances for asylum seekers is rejected with the help of the
governing coalition
On 9 February, the so-called “Red-Green” Federal coalition government of Social Democrats (SPD) and Greens joined the opposition Christian Democrats (CDU/CSU) and the Liberals (FDP) in rejecting in the Bundestag a proposal by the former Communists (PDS) aimed at the complete suppression of a 1993 law which reduced the allowances of asylum seekers during the first three years of their stay in Germany to 20% less than the standard amounts and limited their right to medical care. When the law was passed, both the SPD and the Greens, then in opposition, had strongly condemned it for discriminating against asylum seekers and for not being, in part, compatible with human dignity. Already when drawing up their coalition agreement, the SPD and the Greens were unable to agree to the suppression of this law. Brigitte Lange, an SPD member of the Bundestag, justified her party’s position in pointing out that acceptance of the PDS proposal would lead to increased costs for local councils and to opposition from the Laender.
For her part, Marieluise Beck (Greens), Federal Commissioner for Aliens Affairs, said that the PDS was justified in putting forward the proposal but she stressed that it would not gather the necessary majority in the Bundesrat and would therefore be rejected. The Bundesrat has, for that matter, rejected a proposal by the Land of Hessen to suppress the limit of three years and apply the reduction of social allowances during the entire asylum procedure. (Migration News Sheet/March 2001)
At their meeting in Frankfurt am Main on 15 February, the Conference of Federal and Interior Ministers (IMK) decided to grant long-term residence to Bosnian war refugees under certain conditions.
Under the terms of a new regulation approved by the IMK, Bosnian refugees and their families may, until the end of June 2001, apply for a temporary residence permit (Aufenthaltserlaubnis) valid for two years if by 15 February 2001 they had already been residing in Germany for an uninterrupted period of at least six years, had been in employment for more than two years, without receiving social welfare assistance, and their employers consider them as necessary for the firm’s operations. After the initial two-year period, the residence permit may be renewed for a longer period.
The IMK has estimated that between 10,000 and 20,000 Bosnians could benefit from the new regulation.
On the other hand, the IMK was unable to decide on a definitive regulation for war refugees from Kosovo and other parts of former Yugoslavia. Those in employment are to have their “tolerated status” extended until the end of July, instead of April as had previously been decided.
At their next meeting in May, the IMK will again debate on whether to grant these refugees a longer right of residence in Germany, as requested by Schleswig-Holstein and North Rhine-Westfalia. (Migration News Sheet/March 2001)
Hungary
On 28 March, some 400 Hungarian
“gypsies” threatened to emigrate over housing problems, a warning,
which comes after France granted asylum to gypsies who said they had been
persecuted in their homeland, Hungary. The “gypsies” were among
those whose houses were destroyed due to heavy flooding earlier this month,
rendering thousands homeless in the Ukraine and Romania as well as in Hungary.
"If the problem of our accommodation is not solved, we, all 400 of us, are
ready to emigrate," spokesman Sandor Dacso of the north eastern village of
Jand told the Hungarian MTI news agency. The threat came after authorities in
Strasbourg, France, granted refugee status to a group of Hungarian
“gypsies” claiming racial persecution at home. The Hungarian
government has come under pressure from Roma rights groups and opposition
politicians over the case. The country, a first-round candidate to join the
European Union, said the French move was "unjustified and baseless",
while Prime Minister Viktor Orban said Hungary had "no reason to be ashamed".
Hungarian authorities evacuated tens of thousands of people from Jand and 12
other villages in the north after the Tisza river burst its dykes in early
March. Deputy mayor Gabor Koncz has admitted the Roma houses were damaged
beyond repair by the flooding. Orban pledged directly after the floods that the
government would pay for the destroyed homes to be rebuilt, but the Jand Roma
want to meet him this week to push for immediate help, Dacso said. (UNHCR in
the News, Source: Agence France Presse via NewsEdge Corporation : Budapest,
March 28)
Ireland
Evacuated Kosovars who have refused
voluntary repatriation may stay
On 12 February, the Government announced that those Kosovars evacuated from refugee camps in Macedonia who have still not accepted voluntary repatriation and the financial grants which go along with it (5,000 Irish pounds per adult and 2,000 per child and the extension of their temporary residence permit by one year) would be allowed to remain in Ireland indefinitely. After five years they would be entitled to apply for Irish citizenship. About 1,000 Kosovars were taken from refugee camps to Ireland in June 1999 and were initially granted temporary residence for one year. Just before their residence permits expired they were offered the possibility of accepting voluntary repatriation. Currently only just over 140 Kosovars remain who have abstained from accepting the Government’s offer, and they have not been informed that they may remain in Ireland if they so wish to. The Government’s offer has also led other Kosovars, who arrived in Ireland by other means and subsequently applied for political asylum, to believe that they are being treated unfairly. They are now demanding they too be allowed to remain in Ireland on humanitarian grounds.
During the five-year legislature, which ended on Thursday 8 March 2001, Italy failed to adopt a law on political asylum. The bill regulating political asylum was proposed by the government in 1997 and approved by the Senate a year later. It took the Chamber of Deputies three years to give it the green light on the day before parliament was dissolved, thus leaving it no time to be re-discussed and finally approved by the Senate (a necessary procedure for passing the bill).
“Italy continues to be the only EU country with no adequate legislation on the issue” stated a press release by the UNHCR. The Italian branch of the agency also said that the lack of an asylum law makes life difficult not only for refugees, but it also creates practical problems for the Italian police and local authorities.
Now, the whole process of determining a bill on asylum is in the hands of the new government, which will be voted in on May 13.
Luxembourg
On 22 March 2001, at a debate on refugee policy in Parliament, the Minister of Justice announced that all asylum seekers who came to Luxembourg before 1.7.1998, whether rejected or not (by that date), can stay in Luxembourg if they find a stable job in the coming months of 2001 (the deadline is still to be defined). All persons belonging to Kosovo minority groups who came to Luxembourg before 1.1.2000 have the same possibility. Humanitarian asylum will be granted to vulnerable rejected asylum seekers, especially the sick and the elderly. The Parliament asked the Government to grant asylum seekers the right to work and to attend vocational training and expressed the need for the “bénéfice du doute” to be accepted more often in asylum procedures.
As these statements are simply part of a political agreement between Parliament and Government, it is not yet certain what legal basis the measures will have. Although it is not likely that Government will go back on its steps, the conditions to fulfil in order to be accepted to stay or to work could be made more stringent.
A spokesperson for Caritas-Luxembourg explained that the NGOs working on the issues are worried that criteria for proving one’s residence in Luxembourg since 1998 could be made very difficult to fulfil. It also looks as if these proposals will simply be part of on an administrative procedure to be added to the 1972 Aliens Law, thus, not presenting the same possibilities of appeal that a separate law would.
Refugee supporting organisations also question what will happen to minority groups arrived after 1.1.2000, and what the effective return policy for the circa 3000 persons falling out of these rules will be. They are currently waiting to hear more details from the Government.
Netherlands
The new Aliens law has come into effect
The new Aliens law ("Act of November 23 2000 to achieve a complete review of the Aliens Act (Aliens Act 2000)"), referred to in the last Documentation Service, came into effect on 1 April 2001.
A total of 6.681 unaccompanied minors applied for political asylum last year, compared with about 5,500 in 1999 and 2,660 in 1997. Unaccompanied minors have thus accounted for about 26% of the total number of asylum seekers who arrived in the Netherlands in the last two years. Reacting to this situation, the governing coalition of Social Democrats and Liberals agreed on 9 February to order an investigation into the causes of this phenomenon, to accelerate the asylum procedure for unaccompanied minors and to quickly repatriate those who do not qualify for protection (Migration News Sheet/March 2001).
No inquiry into criminality among asylum
seekers
Although the Christian Democrats (CDA), the Liberals (VVD) and one of three small Christian parties (SGP) have failed to gather enough support in the Lower Chamber to initiate an enquiry into the nature and magnitude of criminality among asylum seekers, the Deputy Minister of Justice, Ella Kalsbeek, supported the proposal by the VVD that priority be given to the prosecution of asylum seekers accused of criminal acts and to their expulsion if their application is rejected. On 21 March she also sent a letter to the Lower Chamber on the size of reception centres for asylum seekers. It is, in fact, hoped that smaller centres would provide better living conditions for asylum seekers, thus reducing tensions and causes for criminal behaviour. In Ms Kalsbeek’s opinion the size of a centre should depend on the local circumstances. However, for financial reasons and because there is a great need to increase the capacity of reception, she is, in fact, in favour of larger centres. Her letter will be discussed in Parliament in April or May. In any case, the Dutch Refugee Council believes that the real discussion should not be about the size of the centres but about the duration of stay in them. The Refugee Council prefers the Government’s earlier plans for a new reception system in which the duration of stay in centres would be limited to one year after which people would be accommodated in small scale facilities like ordinary houses.
“The most important thing that happened in Norway in February was what did not happen”, said a spokesperson for the Norwegian Organisation for Asylum Seekers. After Kurdish asylum seekers from Northern Iraq were granted one year long non-renewable residence permits in February 2000, in February 2001 the Norwegian authorities should have decided what to do with this group of approximately 3000 people, which for practical reasons still cannot be returned. At the end of March Norway is still waiting for a decision to be reached.
Spain
The new Aliens Act
A new Aliens Act came into force on 23rd
January 2001 "Ley Orgánica 8/2000, de 22 de diciembre, de
reforma de la Ley 4/2000, de 11 de enero, sobre derechos y libertades de los
extranjeros en España y su integración social", modifying the previous Aliens Act 4/2000 that came into
force in January 2000.
The old Aliens Act (4/2000) recognized to a
large extent, basic rights of immigrants without taking into account whether
they had their residence papers or not. The passing of the law, also determined
an extraordinary process of regularization, which was held between 21st
March 31st July 2000. 246,089 rejected immigrants and asylum seekers
applied for residence and work permits, 137,454 of them were granted those
rights, 82,845 were denied them and 6,271 were found not to be in compliance
with any of the requirements The reform brought about by the new Aliens act
(8/2000) is more restrictive with regard to the rights of illegal immigrants in
Spain. The right to strike, to form part of trade unions, to form asssociations
and to participate in demonstrations are not granted to illegal immigrants. The
disciplinary measures have also been toughened up by the reform. Immigrants who
have entered the country illegally face expulsion. The reform also widens the causes
for which an illegal immigrant can face expulsion from Spain. An accelerated
procedure of expulsion has been introduced, by which an illegal immigrant can
be expelled within 48 hours instead of the 8 days established by the previous
law. Since 23rd January, when the law came into force, many
demonstrations and hunger strikes have been organised by associations of
immigrants. On 23rd
March 2001, six Autonomous Communties governed by the Socialist Party,
the Parliament of the Basque Country, Navarra and 50 socialist MPs of the
central Parliament lodged an appeal against the Act before the Constitutional
Tribunal. The Ombudsman decided not to lodge an appeal (although he has
received more than 700 applications requiring him to do so) because he considers
the Aliens Law to be on line with the Constitution.
The Spanish government is negociating
migration agreements with those countries that provide a major number of
economic migrants to Spain, such as Ecuador or Morocco. An agreement between
Ecuador and Spain was signed on 31 January 2001. Through the Spanish Embassy in
Quito, the Spanish employers will post job offers that are not covered by
workers already living in Spain. In this way citizens from Ecuador may go to
Spain with their residence and work permit assured. Spain has also reached a
migration agreement with Poland, and is negociating the same type of agreement
with the Moroccan authorities. There are also plans to have agreements of this
type with Colombia, the Dominican Republic and Romania.
Sweden
Problems surrounding deadline for repatriation of Kosovo refugees
Just before Christmas, the Swedish government decided to grant a “winter respite” to Kosovo Albanians whose applications for permanent residency were rejected last year. The “respite” ran out on 15 March. According to information received by Tidningarnas Telegrambrya (TT), on 14 March the government did not have any plans to extend the deadline due to difficult circumstances unrelated to the winter in Kosovo. However, on 15 March Marie Anderson, information officer at the Swedish Migration board, stated that the government also had no plans to send Kosovo Albanians back immediately. Neither were there any plans to return large groups at the same time. The overall intention would be to start sending individuals or smaller groups back to Kosovo from different parts of Sweden, and to close their cases.
At the beginning of March a proposal aimed at interning all criminal asylum seekers or those who refuse to cooperate with the authorities was rejected by the Senate. In doing this it followed the House of Representatives, which dismissed the proposal last year, arguing that the measures would contravene the European Convention on Human Rights. However, the Senate called on the government to consider new measures to combat illegal immigration and to speed up the repatriation of people whose requests have been turned down.
UK
Fall in the number of applications for asylum
In February the number of applications for asylum in the UK fell to 5,520, a decrease of 13 per cent compared to the previous month. The number of applications during the last three months was 9 per cent lower than for the same period a year ago (5,905 per month in Dec-00 to Feb-01 compared with 6,465 per month in Dec-99 to Feb-00). [Statistics from the Home Office website, updated on 23 March 2001].
The fall in applications last month was largely due to a marked reduction in claims by Iranians, which dropped by nearly 40 per cent from the previous month. The development coincided with the forging of stronger links between the British Government and Iran’s Islamic regime. At the end of last month Mo Mowlam became the first UK minister to visit Iran since the Islamic Republic was created in 1979. The week she returned, the Home Office Secretary, Jack Straw, outlawed from Britain one of the main Iranian opposition groups, the People’s Mojahedin, which he included in a list of banned terrorist organisations (The Independent, 24 March 2001).
On 23 March Ministers claimed that these figures proved that “their measures to clamp down on abusive asylum seekers were starting to bite” (The Guardian, 24 March 2001). In February 2001 a record was also hit in the number of initial decisions – 14,430, 6% higher than the previous month record – which brought the backlog of outstanding claims to its lowest level for nearly seven years. About 22% of those whose cases were decided were told they could stay in the UK, either with full refugee status or as a result of being granted exceptional leave to remain. A further 24% were refused asylum without full consideration of their case on technical “non-compliance” grounds, bringing the proportion of refused refugee status after detailed consideration of their case down to about 50% of all applicants.
Asylum support groups remain concerned that too many applicants are being turned down on spurious grounds, such as filling out forms incorrectly. The number of appeals increased by 20 % last month to 10,405, also a record.
On 23 March Jack Straw, said the return of significantly high numbers of unsuccessful applicants will be the focus for asylum efforts for the next financial year. The aim is to effect returns of 30,000 failed asylum seekers, including their dependents over the next twelve months. He added that 700 new immigration staff had been recruited. The number of detention spaces is also being increased to 2,700 in order to ensure that failed asylum seekers do not disappear before they are deported.
The Home Office intends to establish a specialist anti-trafficking unit under the command of the National Crime squad, staffed by the Immigration Service and other relevant agencies, to crack down on the criminals who are involved in illegal smuggling and trafficking of people. The UK will work with the French authorities, Eurotunnel and others to stem the Cross-Channel traffic of persons to the UK and to pursue the potential use of new technology to help achieve this. It intends to complete the introduction of a fully automated fingerprinting system in the next few months that will allow for fingerprints taken anywhere in the country to be checked against a central datebase within one hour. To deliver faster decisions on all asylum applications, the target from April is to make an initial decision within two months for 60% of new substantive asylum cases and process 65% through the appeals system in four months. (For more details on the Home Office priorities for the coming year, see the Home office website at http://www.ind.homeoffice.gov.uk/news.asp?NewsID=57)
Jack Straw also underlined the UK’s intention to play a leading role in the work to develop common asylum policy at the EU level, especially with regard to measures to tackle illegal immigration (an example of this tendency is the Blair/Amato initiative for stronger measures to control clandestine entry through the Western Balkans), the reform of the Dublin Convention and the implementation of the 1951 Convention.
Also see the Council of Europe’s
Report (Council of Europe section)
PUBLICATIONS
Refugees and Gender. Law and Process,
Heaven Crawley, Jordans, published in
association with the Refugee Womens Legal Group, February 2001
It examines how those representing asylum seekers can ensure that gender-related aspects of women’s experiences are taken into account and appropriately reflected in the determination process. The book aims to ensure that all aspects of women’s asylum claims are fully considered, providing a comprehensive understanding of the concepts of gender persecution, as well as a gendered framework for the interpretation of key elements of the 1951 Refugee Convention. It also deals with procedural issues facing women as asylum seekers. Detailed guidance is provided on the implications of gender in asylum law, policy and practice in the UK, with comparative case-law from other countries including Canada, the US and Australia. The book also contains comprehensive annexes, which include the gender guidelines produced in the UK and elsewhere and details of additional sources of information and support on gender-related issues.
War has changed our lives, not our
spirit, Experiences of forcibly displaced women, Jesuit Refugee Service, February 2001
This contains descriptions by refugee women around the world of their experiences.
Field studies commissioned by the Jesuit
Refugee Service (JRS), February 2001
The empirical studies commissioned by the JRS shed light on three main points:
· measures to stamp out irregular immigration strengthen traffickers;
· asylum seekers are afraid to enter the asylum process;
· serious human rights are breached in the case of those with irregular status.
The research was carried out by teams working in Germany, Spain and the UK; it was collated and summarised by Matthew Gibney at Oxford University and published by the Refugee Studies Centre at Oxford University. (Copies of the summary booklet Outside the Protection of the Law: The Situation of Irregular Migrants in Europe, Refugee Studies Centre, Oxford, Working Paper No. 6 and references for the three empirical field studies are available on request from the Jesuit Refugee Service – European Office (Europe@jesref.org, tel.: +32-2-7380863))
On the Margins, Roma and Public
Services in Romania, Bulgaria, and Macedonia,
Ina Zoom, 2001
A Call to Action to Improve Romani Access to Social Protection, Health Care and Housing.
Immigration and asylum emergency
procedures, David Webb and Larry Grant,
1995, Second edition
This guide will enable practitioners and advisers
to handle every kind of emergency which demands immediate action to prevent a
client's removal from the UK and/or to secure their release from detention,
including individual chapters on:
· refusal of leave to enter
· deportation
· illegal entrants
· asylum-seekers
· time limits
· appeals.
(For more information, see www.lag.org.uk)
OTHER INFORMATION
UNHCR and its “UNHCR-50” Foundation (set up last year to mark UNHCR’s 50th anniversary and this year’s 50th anniversary of the 1951 Refugee Convention) are producing a CD entitled “Refugee Voices” which will feature a number of refugee musicians from around the world. The CD will be recorded in Dakar in the studios of the Senegalese singer, Youssou N’Dour, who is also the musical director of the project. The disc will be launched later this year in the run-up to the first ever International Refugee day on June 20th.
Symposium
on "the Legal Protection of the Vulnerable: Internally Displaced
Persons" at the Law Library of Congress and American
University, Washington College of Law
The symposium will examine the legal protection of internally displaced persons with particular focus on women, children and other vulnerable groups. The panelists include Flora MacDonald, former Foreign Minister of Canada, Ambassador Donald Steinberg of PRM, Roberta Cohen of the Brookings Institution, Steve Holtzman of the World Bank, Lionel Rosenblatt of Refugee International and several distinguished law professors including Robert Goldman of American University's Washington College of Law. The event will take place on Thursday, April 12, 2001 at 2pm at the Library of Congress (Coolidge Auditorium) located in the Thomas Jefferson Building, 10 First Street, S.E., Washington, DC. A reception will follow. Although there is no fee to attend this event, the organizers request that you register either by calling the Office of Special Events and Continuing Legal Education at (202) 274-4076 or online at www.wcl.american.edu/secle and clicking on "Event Registration”. If you have any questions, please contact AUCL at (202) 274-4075 or via email at secle@wcl.american.
|
No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
|
Legal developments |
UN ECONOMIC AND SOCIAL COUNCIL
The Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/SUB.2/RES/2000/20, 18 August 2000, Sub-Commission on Human Rights resolution 2000/20, The right to seek and enjoy asylum.
The
Sub-Commission on the Promotion and Protection of Human Rights,
E/CN.4/SUB.2/RES/2000/21; 18 August 2000, Sub-Commission
on Human Rights resolution 2000/21, Detention of asylum-seekers.
Available at www.unhchr.ch See
also Policy Section
UN HUMAN RIGHTS COMMITTEE
Communication No
833/1998: France. 30/10/2000. CCPR/C/70/D/833/1998.
Available at www.unhchr.ch
UN COMMITTEE AGAINST TORTURE
Communication
No 86/1997 : p.s. V Canada. 16/06/2000. CAT/C/23/D/86/1997.
The author of the communication is P. S., an Indian national born in the Punjab in 1944 and currently resident in Canada, where he is seeking asylum and faces deportation. He claims that his return to India would constitute a violation by Canada of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Communication inadmissible.
Communication
No 96/1997 : A.D. Netherlands. 24/01/2000. CAT/C/23/D/96/1997.
The author of the communication is A. D., a Sri Lankan national of Sinhalese origin at present residing in the Netherlands where he has asked for asylum. His asylum request has been rejected and he is at risk of deportation. He claims that his return to Sri Lanka would violate the Netherlands' obligations under article 3 of the Convention.
The CAT held:
“The Committee considers that the author's activities in Sri Lanka and his history of detention and torture are relevant when determining whether he would be in danger of being subjected to torture upon his return. The Committee notes in that respect that although the State party has pointed to inconsistencies in the author's account of events, it has not contested the general veracity of his claim. The Committee further notes the medical evidence indicating that the author, although not at present fulfilling the criteria for a diagnosis of a post-traumatic stress disorder, may have suffered from this syndrome in the past. However, the Committee also notes that the harassment and torture to which the author was allegedly subjected was directly linked to his exposure of human rights violations taking place while the previous Government was in power in Sri Lanka. The Committee is aware of the human rights situation in Sri Lanka but considers that, given the shift in political authority and the present circumstances, the author has not substantiated his claim that he will personally be at risk of being subjected to torture if returned to Sri Lanka at present.”
The author of the communication is Mr. H.A.D., a Turkish citizen of Kurdish origin born in 1962 and currently residing in Switzerland, where he applied for asylum on 11 March 1991. His application, however, was turned down and he claims that his forcible repatriation to Turkey would constitute a violation by Switzerland of article 3 of the Convention against Torture.
The CAT held that: “[i]n view of the time that has elapsed between the events described by the author, the establishment of the veracity of his claims and the present day (15 years have passed), the current risk for the author of being subjected to torture or "deliberate persecution" on being returned to Turkey does not appear to have been sufficiently well-established.”
The author of the communication is K.T., a citizen of the Democratic Republic of the Congo (DRC) born in 1969 and currently residing in Switzerland, where he is seeking asylum and is at risk of deportation. He maintains that sending him back to the DRC would constitute a violation by Switzerland of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Communication
No 143/1999 : Denmark. 03/09/2000. CAT/C/24/D/143/1999
The author of the communication is Ms. S.C., born on 21 August 1965, of Ecuadorian origin, currently seeking asylum in Denmark together with her three minor children. The author claims that she would risk torture if she is returned to Ecuador and that her forced return to that country therefore would constitute a violation by Denmark of article 3 of the Convention.
Communication
No 121/1998 : Norway. 19/04/2000. CAT/C/23/D/121/1998.
The author of the communication is S. H., an Ethiopian citizen born in 1965 currently residing in Norway, where he has applied for asylum. His application, however, has been rejected and he is at risk of expulsion. He alleges that his forced return to Ethiopia would constitute a violation by Norway of article 3 of the Convention.
The CAT found the application inadmissible as it stood. However, it concluded that “in the light of other similar cases brought to its attention and in view of the limited hours of free legal assistance available for asylum-seekers for administrative proceedings, the Committee recommends to the State party to undertake measures to ensure that asylum-seekers are duly informed about all domestic remedies available to them, in particular the possibility of judicial review before the courts and of being granted legal aid for such recourse.”
See also Communication No. 127/1999 : Norway. 18/04/2000. CAT/C/23/D/127/1999
COUNCIL OF EUROPE
Parliamentary
Assembly
Please find more information on the recent recommendations of the Parliamentary Assembly of the Council of Europe in relation to refugees and immigrants in the Policy Developments Section of this Documentation Service. Recommendations were adopted on Non-expulsion of long-term immigrants (Recommendation 1504 (2001)); Health conditions of migrants and refugees in Europe (Recommendation 1503 (2001))
European Court of Human Rights
Please find attached - Update No. 15 – (l0201)
Relevant Case-Law of the European Court for the Protection of Human Rights and Fundamental Freedoms
(August 2000-December 2000)
(Summary of Decisions & Judgements)
(We have reported about some of the judgments and decisions of the ECHR in earlier issues of the Documentation Service)
HILAL v. THE
UNITED KINGDOM, JUDGMENT of 6 March 2001, Application no. 45276/99
No internal flight alternative from Zanzibar to
mainland Tanzania
The applicant is a Tanzanian national alleged that his expulsion to Tanzania placed him at risk of torture or inhuman or degrading treatment, that he would not receive a fair trial if he were returned to Tanzania and that he had no effective remedy available to him in respect of these matters. He invoked Articles 3, 6, 8 and 13 of the Convention.
The applicant was an active member of the Civic United Front (the “CUF”), an opposition party in Zanzibar (Zanzibar is a part of the United Republic of Tanzania. It has its own President, Parliament and Government and exercises considerable autonomy). In August 1994 the applicant was arrested by Chama Cha Mapinduzi (the “CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in Zanzibar for three months where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose and he was also subject to electric shocks. In November 1994, the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian Government. Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came to look for him when he was out. He therefore left his home and the police detained his wife overnight and questioned his friends. He decided to leave Tanzania fearing for his safety, filing an application for asylum in the UK. His application was declined on grounds of inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews.
After submitting medical evidence corroborating the applicant’s claim of torture, the Secretary of State arguing that even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment on mainland Tanzania.
On 23 December 1998, the applicant was notified that he would be removed to Zanzibar on 11 January 1999. On 22 February 1999, the applicant’s wife arrived in the United Kingdom and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement in the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in Zanzibar as there was a rumour that the United Kingdom had sent back most of the asylum seekers from Zanzibar. They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead.
The ECtHR reviewed the UK jurisprudence on the possibility of an internal flight alternative in mainland Tanzania.
The Court concluded by assessing the evidence before it and the applicant’s wife’s testimony that the applicant would be at risk on return to Zanzibar of being arrested, detained and suffering a recurrence of ill-treatment.
As regards the government’s contention of an “internal flight” option, arguing that even assuming that the applicant was at risk in Zanzibar, the situation in mainland Tanzania was more secure, the Court held that it “appears that the situation in mainland Tanzania is far from satisfactory and discloses a long-term, endemic situation of human rights problems.” The Court found that “[T]he police in mainland Tanzania may be regarded as linked institutionally to the police in Zanzibar as part of the Union and cannot be relied on as a safeguard against arbitrary action (cf. the Chahal case, cited above, p. 1861, § 104, where the applicant Sikh was at particular risk of ill-treatment within the Punjab but could not be considered as safe elsewhere in India as the police in other areas were also reported to be involved in serious human rights violations). There is also the possibility of extradition between Tanzania and Zanzibar.” Accordingly, the Court was not persuaded “that the internal flight option offers a reliable guarantee against the risk of ill-treatment” and concluded that the applicant’s deportation to Tanzania would breach Article 3 as he would face a serious risk of being subjected there to torture or inhuman and degrading treatment.
With regard to the alleged violations of Articles 6 and 8 of the Convention, the Court found that in the light of its conclusion above, that no separate issue would arise under these provisions.
The applicant complained that he did not have an effective remedy against the proposed expulsion, invoking Article 13 of the Convention
The applicant submitted that the application for judicial review did not, in his view, provide an opportunity to have his claim assessed by an independent judicial body taken on the basis of all the evidence. The application only challenged the decision not to refer the material back to the Adjudicator. Neither the High Court or the Court of Appeal undertook any form of review of the claim in the light of all the evidence, assessing neither his veracity or the risks existing if he were returned. This inability to determine the substance of his Convention complaint deprived the procedure of effectiveness for the purposes of Article 13 of the Convention.
The Court was not convinced that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant’s complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, § 122).
Accordingly there has been no breach of Article 13.
Detention of
a Syrian refugee in Greece
The case concerned a Syrian national who had fled to Greece, where he was arrested and sentenced to imprisonment on several occasions, notably for drug-related offences. While in Greece, he was granted refugee status.
In June 1997, while serving a prison sentence, he asked to be sent back to Syria and claimed that he had been granted a reprieve there. In July 1997, following a decision ordering his release on licence and his expulsion to Syria, he was released and placed in police detention pending his expulsion. He was held for several months at the Drapetsona Police Station, where, he alleged, he was confined in an overcrowded and dirty cell with insufficient sanitary and sleeping facilities, scarce hot water, no fresh air or natural daylight and no yard in which to exercise. In April 1998, he was transferred to the Police Headquarters in Alexandras Avenue where, he claimed, conditions were similar to those in the Drapetsona detention centre, although there was natural light and air in the cells and adequate hot water. He remained there until 3 December 1998, the date of his expulsion to Syria.
On 2 February 1998 he applied for the expulsion order to be lifted. His application was refused, on the ground that he had previously claimed he was no longer subject to persecution in Syria, but no express ruling was made on the lawfulness of his continued detention.
Relying on Articles 3 and 5 §§ 1 and 4 of the European Convention on Human Rights, the applicant complained about the conditions, lawfulness and length of his detention and the lack of available remedies under domestic law to challenge the lawfulness of his detention.
Article 3
The Court noted that the applicant's allegations were corroborated by the conclusions of the European Committee for the Prevention of Torture (CPT) report of 9 November 1994 regarding the Police Headquarters in Alexandras Avenue, which stressed that the cellular accommodation and detention regime were unsuitable for a period in excess of a few days, the occupancy levels being grossly excessive and the sanitary facilities appalling. Although the CPT had not visited the Drapetsona detention centre at that time, the Court noted that the Government had described the conditions in Alexandras as being the same as in Drapetsona. The Court also noted that the CPT revisited Alexandras Police Headquarters and the Drapetsona detention centre in 1999.
In the light of the above, the Court considered that the conditions of detention of the applicant in the Alexandras Police Headquarters and the Drapetsona detention centre, in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of his detention, amounted to degrading treatment contrary to Article 3.
Article 5
§ 1
Considering whether the applicant’s detention was "lawful" for the purposes of Article 5 § 1, the Court noted that Section 27 § 6 of Law No. 1975/1991 provided for the detention of an alien on condition that the execution of an administrative order for expulsion taken by the Minister of Public Order was pending, and that the alien was considered to be a danger to public order or might abscond. However, the applicant’s expulsion was a judicial and not an administrative decision and the applicant was not considered a danger to public order or likely to abscond.
The Court further noted the Deputy Public Prosecutor of the Court of Cassation’s opinion, of 1 April 1993, that a ministerial decision on the detention of persons facing administrative expulsion (decision No. 4803/13/7A/18-26.6.92) applied by analogy in expulsion cases ordered by courts. The Court did not consider, however, that the opinion of a senior public prosecutor constituted a "law" of sufficient "quality" within the meaning of the Court's case-law.
Finding: violation of Article 5 § 1.
Article 5
§ 4
The Court found that the applicant’s requests for release to the Ministers of Justice and Public Order, of 28 November 1997 and 26 July 1998, could not be considered effective remedies, because the ministers could decide either to reject or leave unanswered his requests. Moreover, in its decision of 11 May 1998, the indictments chamber of the first instance criminal court of Piraeus, sitting in camera, failed to rule on the applicant's claim concerning his detention.
The domestic legal system therefore did not provide the applicant with an opportunity to have the lawfulness of his detention pending expulsion determined by a national court, as required by Article 5 § 4.
Finding: violation of Article 5 § 4.
YANG CHUN JIN ALIAS YANG XIAOLIN
v. HUNGARY, Application no. 58073/00, 8 March 2001
The case concerned a national of China and Sierra Leone, Mr Yang Chun Jin alias Yang Xiaolin (“the applicant”). The applicant alleged that, if extradited to China, he might face an unfair trial, be detained under harsh conditions, subjected to torture or sentenced to death. He invoked Articles 3 and 6 of the Convention and Article 1 of Protocol No. 6. By a decision of 11 January 2001, the Court declared the application admissible.
On 18 January 2001 the Government submitted that they had decided to refrain from extraditing the applicant to China. The Government requested the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention. Moreover, on 31 January 2001 they informed the Court that the applicant had left Hungary for Sierra Leone. On 1 February 2001 the applicant informed the Court that he did not object to the case being struck out of the Court’s list of cases.
Admissibility
of a Case in Which Bulgaria Was Charged With Violation of the Religious Rights
The complaint was brought before the European Court on the occasion of the applicant’s expulsion from Bulgaria because he had developed an "illegal religious activity", that represented "a threat for the national security".
On July 4, 1999 Mr. Daruish Al-Nashif was expelled from Bulgaria on the ground that he was "a threat for the national security of the Republic of Bulgaria". He has charged with "an illegal religious activity". The basis of the expelling was Sec. 42 of the Aliens Act. Beside this, he was informed that pursuant to Section 47 § 1 of the Aliens Act the order for expelling was not subject to appeal. By decision published on 2 March 2001 the Constitutional Court of Republic of Bulgaria confirmed that the Section 47 § 1 of the Aliens Act remains to be in force.
Mr. Al-Nashif, was born in 1967 in Kuwait. He is stateless person of Palestinian origin. He came to Bulgaria together with his wife Ms Hetam Haleh in 1992. They obtained a permanent residence permit in 1995. The couple has two minor children, who were born in 1993 and 1994 respectively. The children are Bulgarian nationals by birth. In August of 1997 Mr. Al-Nashif took part in Islamic seminar that was carried out in village "Narecenski Bani". The seminar was attacked by the police and later was proclaimed as "illegal". No proofs were given in support of the accusation of this "illegality". Later Mr. Al-Nashif has tried to establish Islamic religious and educational center in Smolian - a town with considerably big Muslim minority. During the period 1998-1999 he managed Sunday school for education of Islam by the children. On the basis of these "evidence" for his "subversive activity" on July 4, 1999 Mr. Al-Nashif was expelled from the country.
In the decision taken on 25 January 2001, the Court unanimously declared that the complaint of Mr. Al-Nashif under Art. 5 §4 of the European Convention of Human Rights (ECHR) was admissible (see also the partial decision of 16 December 1999 where the Court declared inadmissible the complaints of the fourth and the fifth applicants). The applicant has complained against his detention incommunicado and against the deprivation him from the right of appeal to a court against his detention.
The Court also declared by majority that the complaints of the applicants that the deportation of Mr. Al-Nashif has violated their right to respect for heir family life (Art. 8 of the Convention) and that they have not had an effective remedy in this respect (Article 13).
The Court found that "the measures again him were in breach of his right to freedom of religion (Article 9) and that he did not nave an effective remedy in this respect (Article 13)".
The first applicant complained that his detention was unlawful and not justified under Article 5 § 1 of the Convention. He submitted that it lacked legal basis, and that it was unnecessary, prolonged and arbitrary. The Court recalled that “Article 5 § 1(f) provides a different level of protection from Article 5 § 1(c). Indeed, all that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1(f), whether the underlying decision to expel can be justified under national or Convention law.” The Court rejected the complaint as manifestly ill-founded.
Mr Al-Nashif complained, invoking Article 6 §§ 1 and 3(c) of the Convention, that he did not have access to a court in the proceedings concerning his appeals against orders nos. 63552 and 504. These orders were based on the allegation that the first applicant posed a threat to national security and amounted to criminal charges against the first applicant. The Court recalled its recent judgment in the case of Maaouia v. France ([GC], no. 39652/98, ECHR 2000-) where it found that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention. It thus rejected the claim based on Article 6.
The first applicant complained that his deportation and exclusion from Bulgarian territory amounted to an unlawful interference with his right to peaceful enjoyment of his possessions, contrary to Article 1 of Protocol No. 1 to the Convention and that he did not have an effective remedy in this respect. The Court considered that Article 1 of Protocol No. 1 to the Convention could not be seen as embodying a right for an alien to reside on the territory of the State where his business activities are based and concluded that the complaint under Article 1 of Protocol No. 1 was manifestly ill-founded. Furthermore it found that that the first applicant did not have an arguable claim of a violation of that provision.
According to the Greek Helsinki Committee, the expulsion of
foreign nationals from the country, claimed to represent a "threat to
national security" due to their religious practices, continued in 2000. On
8 January 2000, a group of six Islamic preachers - Ahmadis - was caught in the
region of Shoumen and expulsed from the country. According to police
information, they had been preaching without a permit by the Directorate of
Religious Affairs.
The case of Mr. Al-Nashif is the second one in which the European Court on Human Rights found that Bulgaria violate art. 9 of ECHR. The first one was the case of Hasan and Chaush v. Bulgaria The case concerns the refusal of the government in February 1995 to register a leadership of the Muslim believers with Mr. Fikri Hasan as chief mufti. The Court held that Bulgaria had violated Article 9 of the European Convention on Human Rights (ECHR) through the failure of the Bulgarian State to remain neutral in the exercise of its powers in respect of the registration of the Muslim religion. The Court also held that there had been a violation of Article 13 of the Convention (right to an effective remedy in the violation of human rights) in that the Bulgarian Supreme Court had refused to examine the substance of Mr. Hasan's appeal against the decision of the State and only assessed whether and to what extent the decision for registration had been taken by the competent authority within the scope of its powers.
For more details see: Human Rights in Bulgaria in 1995.
Report of the Bulgarian Helsinki Committee, January 1996, available at the web
site of BHC: www.bghelsinki.org See also: Human Rights in Bulgaria in 1999.
Report of the Bulgarian Helsinki Committee, March 2000, available at the web
site of BHC: www.bghelsinki.org You can see also the Press Release of Tolerance
Foundation from August 09, 2000 titled Bulgaria: Muslim expelled from the
country for "illegal religious activity", available at the web site
of the Greek Helsinki Monitor: www.greekhelsinki.gr
This case concerned the confiscation of the means of communication used by an asylum seeker for political propaganda on behalf of an Islamic group. Application declared inadmissible under Art 9 and 10 of the Convention.
The case concerned a Moroccan national living in France involved in drugs for personal consumption who has strong family ties in France. His conviction of this offence lead to the decision of the authorities to expel him and permanently ban from entering France.
Decision As
To The Admissibility, Ahmed Duran Caglar v Germany, Application no.
62444/00, 7 December 2000
The Court recalled its judgment in Maaouia v. France, 5 October 2000 (see DS February 2001) and dismissed the application as inadmissable:
“However, the Court recalls that that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see, as the most recent authority, the Maaouia v. France judgment of 5 October 2000 to be published in the official reports of selected judgments and decisions of the Court).”
Decision as
to Admissibility, Solomon v the Netherlands, Application no. 44328/98,
5 September 2000
Concerning expulsion of a Nigerian who has a daughter of Dutch nationality invoking Art 8 of the Convention
Please find attached the report from Pax Christi Australia “Meeting their needs – Asylum Seekers in Australia”
This document is
an important analysis of the asylum seekers in Australia, which has been
provided by Grant Mitchell, Project Co-ordinator of the Asylum Seekers Project
at the Hotham Mission in North Melbourne.
Annex :
L0202
France
Dublin
Convention: Right to territorial asylum takes precedence of the Dublin
convention.
In a decision handed down on 19 January 2001, the Administrative Court of Cergy has ordered the competent authorities to examine the request for territorial asylum, as guaranteed by the French Constitution, submitted by a national of Mauritania, Mamadou M.. The prefecture refused to examine his request on its merits invoking the Dublin convention.
The applicant possessed an entry visa issued by the German consulate in Nouakchott. According to the judge, the constitution takes precedence over international agreements and “a foreigner (…) who requests the benefit of these particular measures (of protection0 cannot have the examination of his asylum application refused”. “He should not have been refused entry into the country and be subjected to transfer in the direction of Germany.
The following has been drawn from the website of Forum Refugies www.forumrefugies.org
Violation
of private life
The Council of State overruled an expulsion order on a Ukrainian citizen cohabiting with a homosexual for violation of the right to private life (article 8 of the European Convention for Human Rights). Up until then, the Council of State had only enabled heterosexual foreigners cohabiting and having French children, to benefit from the protection of article 8 (CE, 28/04/2000, Préfet des Alpes-Maritimes vs/ Maroussitch and Gisti).
Scope of
the UNHCR mandate
When a refugee is placed under the UNHCR mandate, OFPRA, the French office for protection of refugees and stateless people, cannot reject the refugee's status request on the grounds of article 1(F) (c) of the Geneva Convention (exclusion clauses). In these cases, only the UNHCR is competent to judge whether an exclusion clause is applicable, with OFPRA and the CRR, the refugee appeal commission, being bound by this judgement (CRR, SR, 12/05/00).
Slavery
A Mauritanian asylum seeker, descending from a family of slaves, was himself subjected from a very young age to humiliating treatment. Observing that the Mauritanian authorities had intentionally tolerated this situation, the CRR acknowledged that he was eligible for the status of refugee (CRR, 30/06/00, n° 353183).
Gender-persecution
Afghanistan woman, educated in a “progressive way” (her father was an official of the Ministry of Interior and her mother a professor) was granted asylum (15 December 2000, No. 361628) Due to her condition as a woman coming from a progressive environment, her family history and her professional training in female fashion expose her to persecution in the sense of the provisions of the Geneva Convention.
A homosexual Algerian, criminally prosecuted for homosexual conduct, victim of intimidations and harassment by the police was granted asylum by the Commision des recours des refugies (18 January 2001, No. 367087). Due to the current conditions prevailing in Algeria, he would be subject to renewed criminal prosecution and harassment by the police on account of his homosexuality and thus as a member of a particular social group.
Yugoslavian
deserters/Conscientious Objectors
Serbian Yugoslav deserters have been granted asylum by the Commision des recours des refugies (30 January 2001, No. 3670887; No. 366576; 16 January 2001, No. 365245; 22 December 2000, No. 364376)
Roma from Kosovo
Roma from Kosovo have been granted asylum despite the presence of KFOR and UNMIK. See 18 January 2001, No. 363654; No. 363655; No. 363656.
Kosovo Albanians
Kosovo Albanians have been granted asylum by the Commision des recours des refugies, due to the exceptional gravity of the persecutions they had been submitted. See 26 January 2001, No. 363848; 2 February 2001, No. 368444; 21 December 2000, No. 362713
Haitians have been granted asylum by the Commision des recours des refugies, on account of the voluntary toleration of persecution on political grounds by non-state agents. See 5 December 2000, Nos. 362482; 363356; 358188)
Hungary
Hungarian Helsinki Committee: Remarks To The Draft Bills On Aliens And Asylum
Paper attached in the Policy section
Italy
Italy’s
failure to pass the asylum law.
See for more
details in the Policy Section
The Netherlands
The new
Aliens law has come into effect
The new Aliens
law ("Act of November 23 2000 to achieve a complete review of the Aliens
Act (Aliens Act 2000)"), referred to in the last Documentation Service,
came into effect on 1 April 2001.
11 January,
2001, Court of Haarlem, 00/77283, Georgia
The asylum seeker is a Yezidi-Kurd and claims to have been the victim of extortion by a major of the police. Upon refusal, his shop was thrashed and he himself stabbed in the back. In the end the asylum seeker was forced to close his shop because he could no longer afford to pay the major. When his house was searched by the major, a gun, that the major allegedly placed there, was found, so now the asylum seeker had to pay more money to avoid jail.
The court judges that the asylum seekers life had not become unbearable a a result of discrimination. Corruption is a widespread phenomenon in Georgia, and more or less considered to be 'normal'. The asylum seeker had an internal relocation alternative to avoid the problems with the major. The interim measure is consequently denied.
11 January, 2001, Court of Haarlem,
00/77322, Georgia
The asylum seeker is a Yezidi-kurd. He owns a shoe-shop in Tblisi and has been the victim of extortion and corruption on several occasions in which police-officers were involved. The asylum seeker has also been maltreated. When he reported this to the police, he was insulted and prosecuted for slander. The court's considerations are identical to those in the case summarized above.
Spain
New amended Aliens Law adopted on 22 December 2000
The Organic Law No. 8/2000 of 22 December 2000 on Rights and Freedoms of Foreigners in Spain and their Social Integration (the Aliens Act), amending the Organic Law 4/2000 of 11 January 2000.
A draft Bill of the Royal Decree approving of the implementing Regulation of the Law 4/2000 of 11 January 2000 (Borrador de Proyecto de Real Decreto por el que se aprueba el Reglamento de Ejecución de la Ley Orgánica 4/2000, de 11 Enero 2000, Sobre Derechos y Libertades de los Extranjeros en España y su Integración Social, reformada por Ley Orgánica 8/2000, de 22 de Diciembre) , amended by Law 8/2000 of 22 December 2000 has been tabled. See for the draft Bill in Spanish
http://www.reicaz.es/extranjeria/LOex/
UK
Regina v
Secretary of State for the Home Department ex parte Javed, Regina v Secretary
of State for the Home Department ex parte Zulfiqar Ali; Regina v Same ex parte
Abid Ali, 9 February 2001
Pakistan is not
safe country
The Home Secretary had designated Pakistan as a safe country for the return of asylum applicants. The applicants sought to review this decision. The secretary of state submitted that the court was not competent to challenge his assessment since it had been approved by parliament, unless it could be shown that he had acted in bad faith. However the Human Rights Act now places the Courts under a positive duty to give effect to the Convention, and one requirement in particular was a prohibition of torture and in human and degrading treatment. An effective remedy has to be provided to avoid breaches of this right. The court having given detailed consideration to the relevant material, it was clear that the decision to include Pakistan in the list of designated countries could only have been reached on an erroneous view of the facts, of the law or of both. The decision was plainly wrong. The schedule was provided in order to enable unsuccessful claims to be summarily and expeditiously disposed of where there was no risk to the life of person of the asylum seekers. There was in the clearest evidence that the applicants had been tortured in the past and he returned to Pakistan would be likely again to be the subject of torture. Other applicants would be subject to persecution. The declaration was granted.
Regina v Secretary of State for the Home Department, Ex
parte Isiko and Another
Before Justice Schiemann, Lord Justice Tuckey and Sir Swinton Thomas
Judgment December 20, 2000
A deportation order to remove an immigrant who had no
permission to remain in the United Kingdom did not infringe article 8 of the
European Convention on Human Rights as interfering with family life although
the effect of the order would be to separate the immigrant husband from his
British-born wife who had a child by her previous marriage and that child could
not be separated from her former husband.
The Court of Appeal so held, inter alia, when allowing an
appeal of the Secretary of State for the Home Department from Mr Justice Hidden
who had on August 11, 2000 quashed two orders of the secretary to remove the
applicants, Peter Isiko and his sister, Susan Isiko, out of the United Kingdom.
A British citizen, Wendy, who had a child of her own by her
previous marriage, had married Peter with the knowledge that he was likely to
be deported.
Mr John Howell, QC and Mr Robin Tam for the secretary of
state; Mr Ian MacDonald, QC and Mr Rasib Ghaffar for the applicants.
LORD JUSTICE SCHIEMANN, giving the judgment of the court, said
that the jurisprudence of the European Court of Human Rights made it clear that
it was legitimate for a state to have an immigration policy and the mere fact
that its implementation would interfere with family life did not render
unlawful every such act of implementation.
It was clear from a number of decisions of that Court that
it had recognised that many factors played a part in immigration policy, that
those factors were likely to differ between one country and another, that the
state had the right to control entry of non-nationals into its territory, and
that the elected government of the country concerned was entitled to lay down
and enforce a general policy which did not offend the principle of
proportionality.
To say that the policy itself was not lawful did not have a
consequence that every act of implementation of policy was inevitably lawful. A
deportation could be a disproportionate response to breach of immigration
control.
In the court’s judgment, the approach in R v
Secretary of State of State for the Home Department, Ex parte Mahmood (The Times January 9, 2001) was the correct approach.
If there was a difference between Mahmood and B v Secretary of State for the Home
Department ((2000) Imm AR 474)
then the court considered it was at liberty to follow Mahmood even if, as might be the case, the court in Mahmood was not referred to the judgment in B.
Where the court had to review a decision which was required
to comply with the Convention by the Human Rights Act 1998 it would not substitute
its own decision for that of the executive. It would review the decision to see
if it was permitted by law.
In that area difficult choices might have to be made by the
executive or the legislature between the rights of the individual and the needs
of society.
In cases involving immigration policies and the right to
family life, it would be appropriate for the courts to recognise that there was
an area of judgment within which the judiciary would defer, on democratic
grounds, to the considered opinion of the elected body or person whose decision
was said to be incompatible.
Where, as here, a fundamental right was engaged, the court
would, applying the law as it was established prior to the coming into force of
the 1998 Act, insist that that fact was respected by the decision maker, who
was required to demonstrate either that his proposed action did not in truth
interfere with the right, or if it did, that there existed considerations which
might reasonably be accepted as amounting to a substantial objective
justification for the interference.
Within the framework of the approach outlined above the
court could give the due deference to the primary decision maker.
Even in cases where article 8 was in play, the function of
the court was to see whether the decision maker had exceeded the discretion
given to him.
Having considered the public policy considerations and the
compassionate circumstances, the court concluded that the Home Secretary was
entitled to make the decision he did.
Court of Appeal:
Noune v Secretary of State for the Home Department: CA (Schiemann and Tuckey
LJJ and Sir Swinton Thomas), 7 December 2000
Algerian civil servant seeking asylum on ground of intimidation by insurgents while working - law enforcement agencies failing to protect her - fear of persecution by non-state actors capable of giving rise to refugee status
An Algerian “westernised” woman working in a telegraphic department of the Algerian Government was confronted by Islamic fundamentalists who demanded that she send messages to Moscow and Tokyo from her place of work, threatening to kill her if she refused to co-operate. Without reporting the threats to her superiors at work, since she was unsure whether any of them were sympathetic to the fundamentalists' cause, she fled to the UK and sought asylum as a refugee. Her application was refused and the special adjudicator and the Immigration Appeal Tribunal dismissed her appeals. She appealed.
The Court held, allowing the appeal and remitting the matter to a differently constituted tribunal, that where a conscientious government worker, who was unwilling to aid insurgents in their cause against the government, was perceived by the insurgents as opposed to their cause and therefore faced persecution by them when the law enforcement agency in the home state was no longer able to protect her from the insurgents, the potential victim could turn to the international community's protection regime as a refugee within the meaning of the Convention and Protocol relating to the Status of Refugees, notwithstanding that the fear of persecution emanated from non-state actors; and that since there was nothing in the Convention which denied a perceptive minister an international protection, the same ought to apply to civil servants.
USA
Court Of Appeals for the Ninth Circuit, Rosalba
Aguirre-Cervantes v INS , No. 99-70861, 21 March 2001
http://laws.findlaw.com/9th/9970861.html
Rosalba Aguirre-Cervantes ("petitioner"), a 19-year-old
native of Mexico, petitions for review of an order of the Board of Immigration
Appeals ("BIA"), which vacated a decision by the Immigration Judge
granting her request for asylum. Over many years, the petitioner was subjected
to extreme abuse by her father. She contends this abuse constituted
persecution, and that it occurred on account of her membership in a particular
social group consisting of her immediate family, all of whose members were
abused by her father. At the hearing before the Immigration Judge
("IJ"), the petitioner presented evidence that the country of Mexico
was unable or unwilling to do anything about this abuse, and that if she
returned to Mexico the abuse would likely continue.
The primary issue is whether the petitioner's immediate
family, all of whose members lived together and were subjected to abuse by the
petitioner's father, constitutes a protected particular social group.
The Ninth Circuit concluded that that the petitioner
was persecuted by her father on account of her membership in that social group,
that she has a well-founded fear of future persecution, and that Mexico is
unable or unwilling to interfere with that persecution.
Court of Appeal for the Third Circuit, Lin v. INS, , 25 January 2001
Chinese student dissident
In this case, the court reversed the decision
denying a Chinese student dissident asylum.
Li Wu Lin was a
student demonstrator during the weeks leading up to the 1989 crackdown on
pro-democracy rallies at Tiananmen Square. Fearing for his safety following the crackdown, he fled
China and sought asylum in the US.
While only 15 at the time of the protests, because he is unusually tall,
he was given positions of prominence in the demonstrations. He did not participate in any of the
rallies at Tiananmen Square, but after hearing reports of the Chinese
government’s actions there, became concerned that the government would
seek him out. He left home to stay
with a relative, and less than a week later police officers came to his home
demanding that he appear for questioning.
Upon learning of this, he moved even farther away and over the next two
and a half years he and his family worked to save the money to hire a smuggler
to get Lin out of China. During
this time the police came to Lin’s former home at least five times. Lin also learned that fellow students
with whom he had demonstrated had been arrested and sentenced to forced labor.
In 1992, Lin had the money to contact a smuggler,
who took him to Czechoslovakia.
After eight months there, he came to the US. The Immigration Judge denied his application for asylum, and
after a six and a half year delay, the Board of Immigration Appeals
affirmed. They found that while
Lin’s testimony was credible, the government was not persecuting him, but
merely seeking to enforce trespass laws.
The Third Circuit found that simply because the
Chinese government was pursuing Lin for legal action did not mean it could not
be a basis for an asylum claim. It
found that the record did not support the Board’s conclusion that the
government was seeking to enforce trespass laws – indeed, the police had
told Lin’s family that they were seeking him because of his political
activities. Moreover, given what
is known about the government crackdown on student activists in the wake of
Tiananmen Square, it would be unreasonable to think that the Chinese government
was interested in anything other than Lin’s political opinions.
The INS argued that because Lin stayed in China for
almost three years following his demonstrations, he could not have seriously
feared persecution. The court
noted that at no point in the proceedings had Lin been questioned about his
activities during this period, and that, at any rate, it is reasonable to
assume that the Chinese government would not expend great effort to track a
15-year old dissident. Finally,
the INS argued that a sentence of one year of forced labor did not constitute
persecution. The court disagreed,
finding that it was “a very long sentence for simply voicing opposition
to the government.”
The court reversed and remanded to the Board with
instructions to grant Lin asylum.
The opinion is available online at http://laws.findlaw.com/3rd/001849.html.
Matter of
Mai, A74-206-787 - San Pedro.
"Trafficking"
Asylum Grant
In an unpublished decision dated March 30, 2001 a panel of the BIA (Holmes, Hurwitz, Osuna; opinion by Holmes) upheld an IJ's grant of asylum to a woman from China who had been trafficked. Find the decision in pdf-format on http://www.bender.com/bender/open/Webdriver?MIval=chan&channelID=immig
Following a
request from Holger Janzen, Refugee Council of Bielefeld, , we have received
the following information on Yezidi from Georgia
This is Holger’s request:
“The background: Nearly all Yezidi from Georgia who fled to Germany are living in our region and are now in danger of deportation back to Georgia. Nearly all of them are represented by one lawyer from Bielefeld. We are working with him together and he will call the European Court for Human Rights in Straßburg in this matter.
We would like to ask you to mail us the information you have:
- on asylum decisions from other EU- countries concerning Yezidi from Georgia
- any reports on human rights violations against Yezidi in Georgia
- any address who might give us the needed information.”
The
Netherlands
Info from Diederik Pomstra, Dutch Refugee Council
In the last Country Report of the Dutch Ministry of Foreign Affairs it is stated that "repression of Yezidi's cannot be confirmed".
Two relevant decisions have come up: The motives in these cases are the same: corruption, maltreatment and discrimination. In both cases the request for asylum was denied. The judges hold the opinion that blackmail and corruption are a widespread phenomenon in Georgia. An internal relocation alternative elsewhere in Georgia is considered to be available to both applicants.
France:
Info from Gilles Piquois
Yezidi of Kurdish origin in Georgia, as well as their spouses and minor children, have been recognised as refugees by the Commission des recours des refugies, either because of the voluntary tolerance of persecution by non-state agents or on account of persecution by the authorities. See e.g. 13 January 2000, No. 326527; 14 April 1997, No. 302800; 7 June 1999, No. 330155; 17 February 1999, No. 332956; 10 January 2000, No. 342302; 13 January 2000, 326527.
Follow-up on
the request on detention of criminal asylum seekers (see DS Feb 01)
Thanks Juerg Schertenleib from Switzerland for the info below:
The Swiss refugee Council published a study on the question of criminality among asylum seekers in February 1999 with texts in German and French. A copy can be ordered online on our homepage (www.sfh-osar.ch). The title is: "Asylmissbrauch durch Kriminelle oder kriminelle Asylsuchende, Zahlen, Fakten und Erklaerungsanstze zur Kriminalitaet unter Asylsuchenden in der Schweiz, Februar 1999, (161 Seiten, Fr. 35.-- auf Bestellung) AutorIn: Eisner, Manuel; Niggli, Marcel; Manzoni, Patrik; Levrat, Christian; Cottet, Bertrand; Wyser, Gaby; Weibel, Albert; Bircher, Bernhard. The study gives an overview on different aspects and the few statistic material available.
As to the Swiss legislation: Since 1995 a new law allows detention of foreigners in order to guarantee their expulsion. The maximum time of preparatory detention (while a decision is still pending) is three month. One of the reasons to order detention is that the foreigner has seriously threatened the liberty or physical integrity and therefore is in a penal process or already has been sentenced. The maximum time of expulsion detention (after a first instance decision) is 9 months. The reasons are the same as for preparatory detention and some few more. Note that detention is only allowed in order to guarantee the expulsion and not in order to punish somebody. Proposals which wanted to intern criminal asylum seekers have been rejected because they are not in accordance with art.5 ECHR. All measures offering a detention of asylum seekers beyond ordinary penalties must bee in accordance with art. 5 lit. f ECHR. You'll find the respective Swiss law in articles 13a to13e foreigners law (Bundesgesetz ueber Aufenthalt und Niederlassung der Auslaender, SR 142.20) in French or German under http://www.admin.ch/ch/d/sr/c142_20.html
Please also
have a look in the Policy section for further country of origin information
The US State Department released on 27 February 2001 its new Country Reports on Human Rights Practices which can be accessed at
http://www.state.gov/g/drl/rls/hrrpt/2000/
UN Commission on Human Rights released its new "Report on the situation of human rights in the Islamic Republic of Iran, prepared by the Special Representative of the Commission on Human Rights, Mr. Maurice Danby Copithorne", E/CN.4/2001/39, 16 January 2001. It can be downloaded in pdf-format on
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/5aa84c268132911dc1256a0e00541a03?Opendocument
Link to the latest Report of the UN Secretary-General on the United Nations Interim Administration Mission in Kosovo (S/2001/218) 13 March 2001.
http://www.reliefweb.int/w/rwb.nsf/vID/D2504B2E844297B585256A14006D8FD7?OpenDocument
Report on minority groups in Somalia: The English translation of the Report on minority groups in Somalia of the Joint British, Danish and Dutch fact-finding mission to Nairobi, Kenya 17 to 24 September published by the Danish Immigration Service in December 2000 is now accessible on the Internet. http://www.udlst.dk/default.htm click on Information in English, then on click on Publications in English
In its 57th Session, the UN Commission on Human Rights approved new reports on the human rights situation and related issues in Afghanistan, Burundi, Cambodia, Equatorial Guinea and Iraq. They can be downloaded in pdf-format at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/461fbe09f16eceb4c1256a10004e40e3?Opendocument
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/aff2c994e03ca244c12569d000471a5d/$FILE/G0014212.pdf
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/e15e5c4030d73ea1c12569fc003e675e/$FILE/G0110111.pdf
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/0c79798828d22553c1256a15005b5ddf?Opendocument
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/d71695c2f2ecead4c1256a0d003266c4?Opendocument
Chechnya: Continuing Torture & Disappearances Of Civilians By Russian forces documented by the Physicians for Human Rights) whose scientists estimate that Russian forces killed 4,600 civilians during the latter parts of year 2000. See: www.phrusa.org/research/chechnya/chech_pr.html.
Please find more information on Kosovo, the updated UNHCR Position on the Continued Protection Needs of Individuals from Kosovo (March 2001) in the Policy Section . Country of Origin.
Please find also attached (l0203) the updated version of the UNHCR/OSCE 7th assessment of the Situation of Ethnic Minorities in Kosovo
OSAR/SFH (Organisation Suisse d’Aide aux Refugiés/Scheizerische Flüchtlingschilfe) Publications since 1997, as well as their newsletters are now online : www.sfh-osar.ch
EurActiv.com : Euro News, Policy Positions and EU Actors on Line : http://www.euractiv.com
CNN.com launched a special coverage on differing aspects of immigration to and in Europe. Here is the web address:
http://www.cnn.com/SPECIALS/2001/immigration
The Humanitarian Times email news publication is free of charge to anyone working in humanitarian aid or interested in learning more about international humanitarian action.
http://www.humanitariantimes.com/
The Danish Refugee Council, The Dublin Convention – Study on its implementation in the 15 Member states of the European Union. See www.drc.dk
Refugees And Gender. Law and Process, Heaven Crawley, Published in Association with the Refugee Women’s Legal Group, Jordans, 2001 (see www.jordanspublishing.co.uk)
International Journal Of Refugee Law, Vol 12, Special Supplementary Issue 2000, Exclusion from Protection, Article 1 F of the 1951 united Nations Refugees Convention and Article 1(5) of the 1969 OAU convention in the Context of Armed Conflict, Genocide and Restictionism
The IJRL website: www.ijrl.oupjournals.org
A research project co-ordinated by the Lawyers’ Committee For Human Rights.
Website of Lawyers’ Committee for Human Rights: www.lchr.org
Documentation of Conference ASYL IST MENSCHENRECHT, November 2000 http://www.ejdm.de/asyl.htm
Europaeische Vereinigung von Juristinnen und Juristen fuer Demokratie und Menschenrechte in der Welt e.V. (EJDM), European Association of Lawyers for Democracy and Human Rights
Articles, inter alia, on
·
Current Perspectives on Refugee Law in
England - The development of the law relating to refugees, and the granting of
refugee status in U.K.
(Helen O'NIONS)
· La Situation du droit d'asil et la pratique en France (Claire RODIER)
· The development of the law relating to refugees, and the granting of refugee status in Italy (Lorenzo TRUCCO)
· The development of the law relating to refugees, and the granting of refugee status in Spain (Jon ZABALA OTEGUI)
·
La pratique judiciaire de la Cour
Suprême Administrative dans les cas de llaintes déposées
suite à des refus de l'octroi du statut de réfugie en Bulgarie
(Alexandar ELENKOV)
· L'unification européenne et le droit d'asile (François JULIEN-LAFERRIÈRE)
·
The Protection of Refugees in
International law - Rough waters ahead
(François CRÉPEAU)
· Protection from non-state persecution (Stephanie FARRIOR)
Artikel by Josef
Rohrboeck: “Die Verfolgungsgefahr im Sinne der Genfer
Flchtlingskonvention und deren Staatlichkeitsmomente (to be published in:
Journal fuer Rechtspolitik, 2/2001). Article is attached (l0204)
|
No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
|
Brussels developments |
EU Presidencies
Swedish presidency
Until now the Swedes have kept their
word on the promise that their Presidency would be characterised by
transparency and access to information.
However, even if governments have put
some emphasis on asylum questions, concrete results are far from being
achieved. Many difficulties are occurring regarding the approval of the
proposals due to the sensitivity of this subject, which is deeply attached to
states sovereignty. Additionally, some countries, like France, may try to put
on some pressure, in order to see their own proposals on anti smuggling and
carrier sanctions approved.
In spite of this, the Presidency is very keen to have, at least the proposals on Temporary Protection and Family Reunification approved by the end of their mandate. For further information the site of this Presidency is the following: http://eu2001.se/eu2001/main/
Belgian Presidency
Belgium is the next country taking over the EU Presidency on the first of July. The Federal Opinion Committee responsible for European issues in the Belgium Senate has by now met several non-governmental organisations in the context of preparing for the Belgium Presidency of the EU Council. Although they have already shown concern about asylum questions their attention will be directed mainly towards immigration issues. The Belgian Minister for Home Affairs, Antoine Duquesne is already charged with leading the “High Impact” operation. It’s a wide ranging Community police operation which will see police officers from the EU intervene at the external eastern borders of the future enlarged Union, aimed at addressing illegal immigration and trafficking of human beings. In addition a new bill was recently approved by the Belgian government and a restrictive interpretation is being made on asylum issues, border control and the Schengen area.
In December Belgium is organising the Laeken Summit, gathering the head of states and governments from the 15 and ECRE is preparing a parallel summit, as in Tampere in 1999. The aim is to call attention to asylum issues and to try to influence the decisions that are going to be taken
Denmark is taking
the stage on January 2002, followed by Spain and Greece. All these three
Presidencies may have a very negative approach to asylum since Denmark has
opted out in this area and is shifting towards a very right and racist policy
in this area, Spain would rather push on migration themes and its very
difficult on complementary protection and Greece would prefer to see other
business treated.
Justice and Home Affairs Council 15/16 March in Brussels
French proposals on facilitation of entry and
stay (anti-smuggling
& trafficking)
The Council held a detailed debate but still, there is no agreement on the wording of the humanitarian clause nor on the penalties. The final decision is expected around May.
Trafficking in Human Beings
At the informal meeting held in the morning of the 16 March, EU and candidate countries agreed on increasing their cooperation to combat trafficking in human beings. Towards this goal, it was said that is necessary to bring the candidate countries into closer contact with the EU bodies for police and prosecution cooperation - Europol and Eurojust. The EU will also investigate the possibility of involving the candidate countries in the EU STOP programme, which finances projects intended to counteract trafficking.
The Council also had a discussion on the Proposal for a Framework Decision on Combating Trafficking in Human beings and on the Proposal for a Framework Decision on Combating the Sexual Exploitation of Children.
THE EU ASYLUM AGENDA
Proposal for a Council Directive on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof
This proposal was presented last year and ECRE issued its observations earlier this year. It was approved by the European Parliament on the 13 March plenary session, after various amendments having been adopted in order to improve responsibility sharing between Member States and to improve the actual protection granted.
The Parliament emphasized then that temporary protection should not prejudice the fundamental rights as laid down in the Geneva Convention, in particular the principle of 'non-refoulement' and that it should be the host country that considers the application for asylum, not the country of first entry as laid down in the Dublin Convention. The Council does not seem to have taken many of the parliament's views into consideration
After the JHA Council in 15/16
March an agreement has still not been reached and the work is ongoing at
COREPER level. Despite the difficulties, the Swedish presidency would like to
have it approved by the next JHA Council.
Proposal for a Council Directive on Family Reunification for third country nationals residing legally in a Member State.
After long discussion an agreement was found at the Council concerning refugees: special provisions are being putted in a separate chapter. However, the discussion is continuing and the proposal is expected to be debated at the Council on the 28 of May.
Proposal for a Council Directive on the Harmonisation of Financial Penalties imposed on carriers transporting into the territory of the Member States third country nationals lacking the documents necessary for admission (French Republic initiative)
On the 13 March the Parliament rejected the proposal and asked the French Republic to withdraw the initiative and in cooperation with the Commission to reach agreement on developing a Community-wide immigration policy. Nevertheless, this is a non-binding resolution and France is putting pressure on the Swedish Presidency to have it approved as a condition to support the Swedish compromises on Temporary Protection and Family reunification proposals.
French Presidency proposals for a Council Directive defining, and Framework Decision on preventing, the facilitation of unauthorised entry, movement and residence
Member states are very interested by these proposals, in order to harmonise penalties for people who are smuggling persons in Europe. However, it is difficult to get an agreement due to different member states' legal systems, especially because of their criminal law traditions which are very diverse.
Another problem is related to
the so-called "humanitarian clause". Nobody has made objections to its introduction in
the text of the proposal but the question is how it should be formulated. ECRE had already stated its position on
both proposals and continues by saying that, regarding the humanitarian clause,
it cannot foresee only NGOs but it must concern individuals and other
organisations that want to help.
Even Commissioner Vitorino has clearly said that he will not accept a
non-binding humanitarian clause which is a good sign. The conclusion of
the process should end in the first semester of this year.
Proposal for a Council Directive
on Minimum Standards on the Reception of Asylum Applicants
The European Commission put forward on the 3rd of April its proposal for a Directive setting out minimum standards on the reception of asylum applicants by EU Member States. According to the Commission, under this proposal, all Member States would be obliged to provide asylum seekers with a minimum level of support to ensure a dignified standard of living, including special help for the most needy.
Commission Communication towards a
Common Asylum procedure and Uniform refugee Status
The Commission issued last November its communication on these subjects. According to the scoreboard all the measures should be in place at the end of 2004 and part of national legislations. ECRE is preparing a paper in response to the communication to be produced early May.
HLWG
The High Level Working Group on Asylum and Migration is continuing its work on the implementation and follow-up of the Actions Plans approved by the Commission. On the 8th of March the meeting focussed on Afghanistan and included the participation of several international organisations and NGOs, ECRE being represented by Peter Marsden from British Refugee Council.
In his address Peter urged the EU to change the policy pursued until now (air strikes and sanctions only made the situation worse), turn to a more generous granting of protection to intellectuals who are the target of Talibans and call for the establishment of a High Tribunal against War Crimes.
The radicalisation of the situation in the region made clear by the violence taken against religious monuments and urgent measures should be taken to stop trading weapons in the region.
Furthermore, EU media wrongly picture Afghans as illegal economic immigrants and increase discrimination, if not racism and so, a new approach is needed.
Enlargement
Candidate countries are
continuing their efforts to fulfil accession conditions at the same time as the
ratification procedure of the Nice Treaty is going on. Hence, according to the
conclusions of the European Summits of Helsinki and Nice, the European Union
should have created, by the end of 2002, all the means to include the new
states who are ready to join.
On 16 March, ministers
responsible for asylum and migration issues met representatives of all the
candidate countries for the first time in Brussels. The meeting’s purpose was to assess progress on the adaptation
of the countries' regulations to EU norms.
A number of countries have
already put in place new laws on asylum and immigration, which conform to
international refugee law and EU standards. Regarding application, these
countries will be expected to apply the terms of the Geneva Convention in full
and recognise the right of individuals to apply for asylum. They must also have
an adequate system in place for the reception of asylum seekers and the
integration of immigrants.
The ministers
therefore considered that cooperation between the EU and candidate countries in
the operational sphere should be further strengthened.
The Swedish
Presidency has also expressed its desire to have the probable timetable for the
completion of negotiations and a possible date of entry for applicant countries
at the time of the European Council at Gothenburg on June 15 and 16.
More
recently, the Commission presented a proposal on how the EU can settle
negotiations on freedom of movement for workers when the Union is enlarged. If EU and candidate countries
accept this proposal, each Member state will be allowed to set a maximum seven
year transitional period after enlargement, when the free movement of
people (and workers) can be restricted. This will not apply to Cyprus and Malta
so their citizens would enjoy full-unimpeded movement after accession.
This proposal will serve as a
basis for the EU member states’ endeavours to agree on a common
negotiation position to be presented to candidate countries during the next
round of talks, in May or June.
Furthermore, the EU ministers
responsible for asylum and migration issues adopted in March a regulation
stating which countries' citizens need or do not need to have visas when
travelling to the EU and the Schengen area.
European
Parliament
The Parliament organised on the 21 March a Public Hearing in the presence of national parliaments on the situation with regard to fundamental rights in the European Union and the Establishment of the European Area of Freedom, Security and Justice.
It was a good opportunity for NGOs to express their concerns about the implementation of the Tampere conclusions, especially regarding asylum and immigration issues.
ECRE’s EU
representative, Irene Donadio, made an intervention alerting all European
Institutions and Governments to the need to cooperate more closely in the
development of the European common asylum policy.
The European
Parliament also approved in November 2000 the European Charter of Human Rights,
which was solemnly proclaimed at the Nice Summit. The text is rather original
as was the procedure used in its creation (the convention) and gathers for the
first time social and fundamental rights in a single document.
In spite of the various critics towards some of the articles, ECRE was pleased with the inclusion in the Charter of Article 18 of the right to asylum which stresses the importance of the respect of the Geneva Convention of 1951 and Article 19 on the principle of non refoulement.
Even if there are still disagreements, the Commission seems determined to give the Charter a binding strength – in fact, in every new proposal there is a quotation from the Charter.
Furthermore, depending on the future developments on the integration policies of the Union, the Charter could become the preamble of a European Union Constitution.
ECRAN NEWS
The 13th ECRAN
meeting took place in Brussels on the 5th and 6th of
March. The minutes of this meeting will be sent to the ECRAN Focal Points as
soon as they are ready.
|
No. 2 |
April 2001 |
ECRE DOCUMENTATION SERVICE
|
General developments |
New staff
The following new staff and interns have been recruited:
· Irena Miedziolka has been appointed as finance officer.
· Kaela Venuto has been appointed as policy intern in the London office.
· Aisling Lyon has been appointed as information and documentation intern in the London office and will start early May.
· Mafalda Leal has been been appointed as an intern in the Brussels office
· Geri McKenna has been appointed as a temporary administrator, working with the Head of Policy and organising Elena conferences
LIST
OF ANNEXES –
· UNHCR Position on the Continued Protection Needs of Individuals from Kosovo (annex P0201)
· Update No. 15 – Relevant Case-Law of the European Court for the Protection of Human Rights and Fundamental Freedoms (annex L0201)
· “Meeting their needs – Asylum Seekers in Australia” (annex L0202)
· Updated version of the UNHCR/OSCE 7th assessment of the Situation of Ethnic Minorities in Kosovo (annex L0203)
· Artikel by Josef Rohrboeck: “Die Verfolgungsgefahr im Sinne der Genfer Flchtlingskonvention und deren Staatlichkeitsmomente (annex L0204)