No. 1

February 2001

 

 

ECRE DOCUMENTATION SERVICE

 

 

 

 

 

Policy developments

UN 2

Council of Europe 4

ECRE News 5

Country Developments 5

Publications 10

Legal developments

ELENA news 13

UN (CAT) 13

Council of Europe 15

Country Developments 22

Resources 31

Publications 32

Conferences 33

Central & Eastern Europe developments

Programme update 34

Brussels Developments

Swedish Presidency 35

Justice and Home Affairs Council 37

Commission Scoreboard 37

Belgian Presidency 38

 

General Developments

ECRE BGM in Rotterdam 39

Internship opportunity 39

 

Annexes

List of Annexes 38

No. 1

February 2001

 

 

ECRE DOCUMENTATION SERVICE

 

 

 

 

 

Policy developments

UNHCR

UNHCR'S Global Consultations on Refugee Protection

As mentioned in the last two 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. The three different concentric circles terminology has now been replaced by three ‘tracks’ to avoid confusion. The first of these examines the core principles of the Refugee Convention, the second questions and guides the interpretation of the Convention (e.g. membership of a particular social group), and the third examines areas not covered by the Refugee Convention, such as protection in times of mass influx.

Following a meeting on 12 December 2000 of UNHCR EXCOM (with participation of ICVA and other NGOs) on the programme format of these consultations, UNHCR has presented an updated programme for the consultations.

First track — Inter-Governmental Event

The goal to reaffirm the commitment of States to the full and inclusive implementation of the Refugee Convention will be pursued primarily through a major inter-governmental event, organised by the Swiss government and UNHCR towards the end of 2001. In the December 2000 EXCOM meeting, ICVA asked that NGOs should also have a place at the meeting; however, this request did not receive a response.

Second track — Expert Roundtables

The second track aims at providing a forum to take stock of the developments in refugee law and to examine a number of emerging issues by means of expert discussions on specific interpretative aspects of the Refugee Convention and 1967 Protocol. Each roundtable will be limited to some 20 experts who will be drawn from governments, NGOs, academia and the legal profession. The first invitations will be sent out soon by UNHCR. ECRE (as well as other NGOs) has communicated names of NGO experts to UNHCR, as yet without learning how far these will be considered.

The dates, venues and topics of the four roundtables are as follows:

3-4 May 2001, Lisbon: Cessation (Article 1C), Exclusion (Article 1F)

9-10 July, Cambridge: Principle of Non-refoulement (Article 33), Family Unity (Final Act of the 1951 UN Conference)

6-8 September, San Remo: Membership of a particular social group (Article 1A(2)), Gender-related persecution (Article 1A(2)), Internal Flight Alternative

8-9 November, Geneva: Illegal Entry (Article 31), Supervisory Responsibility (Article 35)

Third track — EXCOM Process

The third track will be structured around a number of issues not fully covered by the Convention. Discussions will take place within the framework of UNHCR's Executive Committee at meetings in March, June and September 2001 (continued in 2002). They will aim at achieving concrete outcomes, which could include, depending on the issue: the identification of appropriate mechanisms and practical arrangements, tools to implement guidelines, guidance to States or to UNHCR, and EXCOM conclusions.

Given that under EXCOM rules and procedures, NGO participation is limited to one response per agenda item, the US delegation in the December 2000 meeting proposed that prior to each consultation session, a meeting with NGOs should be held on the forthcoming issues. Erika Feller (UNHCR) endorsed this proposal, but challenged NGOs to organise such meetings, i.e. not leave it to UNHCR. ICVA welcomed the US proposal on behalf of NGOs but warned that the traditional Pre-EXCOM format would not work and that different modalities needed to be worked out. While also accepting the challenge of arranging such meetings between NGOs and states, ICVA also warned that it would need the cooperation of UNHCR and states.

The dates and topics of the 3rd track meetings are as follows:

8-9 March: 1st Theme:

Protecton of Refugees in Mass Influx Situations

28-29 June: 2nd Theme:

Protection of Refugees in the Context of Individual Asylum Systems:

a) Refugee protection and migration control

b) Asylum processes (access to refugee protection [including safe third country notion and irregular secondary movements]; treatment and return of persons not in need of international protection)

27-28 Sept: b) Asylum Processes (continued) (reception of asylum seekers, including standards of treatment; expedited procedures [including notion of safe country of origin]; special problems [undocumented asylum-seekers; uncooperative asylum-seekers]; complementary forms of protection

c) Strengthening protection capacity in host countries

Feb/Mar 2002: 3rd Theme:

The Search for Protection-Based Solutions

a) Voluntary repatriation

b) Local integration

c) Resettlement

4th Theme: Protection of Refugee Women and Refugee Children — appropriate form and format still to be decided.

More information:

The following papers from the global consultations menu are now available on the UNHCR website (www.unhcr.ch):

- Global Consultations — calendar of events — 2000-2002 (as of 12 February 2001, pdf)

- Work Programme for "third track" issues in the context of the Executive Committee framework (2 February 2001, working document, pdf)

- Overview of events relating to the protection of refugee women and refugee children (as of 2 February 200, pdf)

- Global Consultations Update (31 January 2001, pdf)

- Work Programme for "third track" issues in the context of the Executive Committee framework (15 January 2001, working document, pdf)

- Background on the Process and Proposed Work Programme for "Third Circle Issues" (pdf)

- Conclusion on International Protection (from 2000 UNHCR EXCOM meeting, pdf)

- "Revitalizing the Refugee Protection Regime: The Road Ahead as the 1951 Convention turns 50" - Statement by Ms. Erika Feller, Director, Department of International Protection, to the 51st Session of EXCOM

- The Process (chart, pdf)

The following ICVA website is also useful for details on ICVA activities:

http://www.icva.ch/parinac/docs/about/en/view

 

UNHCR receives early funding pledges from main donors and welcomes European parliaments ‘highest refugee protection standards’ resolution

UNHCR was promised nearly one-fourth of its 2001 budget in December when several donor governments pledged US$214.7 million during the launch of the agency’s annual global appeal. The pledges followed lobbying by UNHCR’s outgoing High Commissioner, Sadako Ogata, who repeatedly warned that underfunding could jeopardise the essence of UNHCR’s work. The United States topped the list of donations with $125 million, followed by Sweden with $40 million, the Netherlands with $23 million and Norway with $18 million. The other major donors included Denmark with $14.5 million and Switzerland with $8 million. Other major donors indicated they would make their pledges later. UNHCR needs a total of $953.7 million next year to help protect more than 22 million people. Contributions from non-government sources have risen three-fold over the past few years to $35 million, but still account for only a small percentage of the agency’s funding.

UNHCR has welcomed the European Parliament’s resolution marking the agency’s 50th anniversary, in which the EU’s legislature reaffirmed its support for UNHCR’s work on behalf of refugees and other uprooted persons. The resolution, adopted unanimously in Strasbourg in December, urges the EC and member states to base the future of the European Union asylum instruments on the ‘highest refugee protection standards’, providing political and financial support to the UNHCR.

 

Convention against Transnational Organised Crime, Palermo, Italy, 15 December 2000

More than 124 of the UN’s 189 member nations signed the Convention against Transnational Crime in Palermo in December. Eighty signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and 70 signed the Protocol Against the Smuggling of Migrants by Land, Sea and Air. As mentioned in the last documentation service, these are intended to provide a framework for international cooperation against organized crime, with an emphasis on victim protection. Measures include criminalisation of traffickers and smugglers with appropriate penalties, protection of victims in receiving countries, and information sharing between countries on trafficking methods. Increased border restrictions and the implementation of carrier sanctions are also recommended, and there has been concern that such measures will not only prevent traffickers and smugglers but may also discriminate against those wishing to claim asylum. However, savings clauses have been added to the protocols stating the obligations and responsibilities of States and individuals under international law, including ‘where appropriate’ the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

Information is available at

http://www.uncjin.org/Documents/documents.html

 

COUNCIL OF EUROPE

Additional Protocol 12 to the European Convention on Human Rights

Protocol 12 creates a free standing right to freedom from discrimination and opened for signature on 4 November 2000. It has meanwhile been signed by 25 Member States.

Colloquy on policies for the integration of immigrants

The proceedings of the above-named conference of the Parliamentary Assembly of the Council of Europe (Committee on Migration, Refugees and Demography) which took place on 16-17 November 2000 in The Hague have been published and can be ordered from the Council of Europe, F-67075 Strasbourg Cedex, Tel.: +33 (0)3 88 41 2000, Fax: +33 (0)3 88 41 2797, E-mail: pace@coe.int

Parliamentary Assembly

The Parliamentary Assembly has adopted recommendations on :

- Humanitarian situation of refugees and internally displaced persons (IDP's) from Chechnya (Recommendation 1499 (2001))

- Transit migration in Central and Eastern Europe (Recommendation 1489 (2001))

- Participation of immigrants and foreign residents in political life in the Council of Europe member states (Recommendation 1500 (2001))

These can be obtained from the Council of Europe, F-67075 Strasbourg Cedex, Tel.: +33 (0)3 88 41 2000, Fax: +33 (0)3 88 41 2797, E-mail: pace@coe.int

Roma Rights

ODIHR meeting on issue of Roma refugees and asylum seekers

Some 150 representatives of governments, Roma NGOs and international organizations were invited by the Office of Democratic Institutions and Human Rights (ODIHR) to an international consultation meeting on Roma refugees and asylum seekers which took place at the margins of the OSCE Human Dimension Implementation Meeting in Warsaw on 23 October 2000.

As a result of mediation efforts, the two largest international Roma organizations, the International Romania Union and the Roma National Congress, set aside their difference for the first time in many years and formed a working group, agreeing on a common platform on migration issues. The establishment of the working group was welcomed as an important step towards the emergence of joint position of major Roma organizations.

The ODIHR stated that it would continue to monitor the human rights situations in countries of origin as well as the application of asylum procedures in destination countries, in particular when there are concerns that the procedures are applied in a discriminatory way. There was strong support among Roma NGOs at the meeting to establish a Roma-led assessment group, which should be tasked with evaluation the effectiveness of existing national and international Roma programmes. The proposal reflected growing criticism of internationally funded projects aimed at improving the situation of Roma in countries of origin. (OSCE newsletter, Nov 2000)

The European Roma Rights Center (ERRC) was also aiming to decry the EU human rights agenda at the EU Human Rights Forum in Paris, 15 December. European countries in which serious incidents of violence against Roma have occurred in recent years include Albania, Bosnia, Bulgaria, Croatia, the Czech Republic, France, Greece, Hungary, Italy, Poland, Romania, Russia, Slovakia, Ukraine and Yugoslavia. Meanwhile, Belgium, Denmark, Finland, Sweden and the UK have responded to the arrival of Romany refugees by imposing visas, effectively hindering access to asylum procedures.

See the summary of Chapman v UK (and others) attached to the Legal Section, the European Court of Human Rights’ latest judgment in relation to Roma rights (L010101).

ECRE NEWS

Following the recent departure of Simon Russell to ICVA, Dorothee Starck has been appointed as Policy Officer at the ECRE secretariat office in London until September (dstarck@ecre.org). The new legal researcher is Claudia Reinprecht (Creinprecht@ecre.org). Irene Donadio has replaced Friso Roscam-Abbing as EU Representative for the ECRE secretariat office in Brussels (euecre@ecre.be).

COUNTRY DEVELOPMENTS

Belgium

Border controls re-imposed to stop influx

Belgium reintroduced border controls over the Christmas period to prevent an expected influx of asylum seekers hoping to enter before a new law ends financial aid to foreigners seeking refugee status. The Interior Ministry announced on 15 December 2000 that frontier checks would resume until 10 January 2001. Belgium is among the 11 European Union nations that removed border controls under the Schengen Treaty, but nations are allowed to temporarily reintroduce controls for specific situations. Belgium is set to remove its system for direct cash payments to asylum seekers next month while their applications for residence are considered, to be replaced with a system of payment-in-kind.

New Commissioner for Refugees wants to give priority to new cases instead of reducing the backlog

The new Commissioner General for Refugees and Stateless Persons (CGRA), Pascal Smet, announced on 9 January 2001 that his priority would be to process new asylum applications rather than reducing the backlog of some 47,000 dossiers. He aims to process new application in a first instance of only 3 days and second instance of 35 days. The processing of applications will soon be placed in the hands of the new Federal Adminstration for Asylum (AFA) which will be the sole body dealing with asylum applications in the first instance, taking over inter alia the role of CGRA. It is expected that Mr. Smet will be the head of the new body. (Migration News Sheet, 02/2001)

Finland

Preparations for reform of Aliens Act

The Ministry of the Interior along with the Ministry of Justice is preparing for a comprehensive reform of the Aliens Act. The Finnish Refugee Advice Centre has been involved in two working groups: one on Chapter 5 concerning international protection and the other on the provision of legal safeguards. The reform is likely to concentrate on technical issues, such as constructing the law in a more logical manner and changing provisions to be in line with international agreements and EU legislation. For example, Article 30 (par 2) rules on exclusion with slightly different wording to that found in the Geneva Convention (Art 1f). At present, exclusion in Finland can also be applied when an applicant comes from a Dublin Country that has granted them refugee status (Information provided by Refugee Advice Agency, Finland, email: sirva@katto.kaapeli.fi ).

France

Criticism of waiting zones

A new Bill in France officially aiming to grant more protection to unaccompanied minors arriving in the country has been criticised as an attempt to facilitate their expulsion. The reason behind the presentation of such a Bill is the provision in the Aliens Act to hold foreigners denied entry into the country in so-called ‘waiting zones’. Under this provision, after holding a foreigner for four days s/he must be presented to a judge who decides whether to extend the period of remand. Since minors have no juridical capacity, they may be set free and left to fend for themselves, some ending up involved in criminality or prostitution.

The government initially wanted to lower the age of juridical incapacity to 16, but this was met with strong opposition from Human Rights Organisations. The text of the new Bill will add two sentences to the provision in question. The first stipulates that when a child arrives unaccompanied the Public Prosecutors’ Office ‘shall appoint, without delay, an ad hoc administrator’ who ‘shall assist the minor during the time held in a waiting zone and represent him/her in all legal and administrative procedures’. Criticism has been that this amounts to almost the same thing as lowering the age of juridical incapacity, the difference being that in the new text there is no minimum age.

The second sentence requires that a lawyer be designated as a matter of course to represent the minor. With these two additional sentences, there is no longer any obstacle to holding minors in a waiting zoned for the maximum period authorised by law of twenty days, so as to increase the chances of effective deportation.

A report released on 14 November 2000, drawn up on behalf of the Parliamentary Committee on Laws by Louis Mermaz, a socialist MP and former minister, strongly condemns conditions of detention in these so-called ‘waiting zones’ and calls on the Government to amend its asylum policy, which according to the report has become a ‘machine fabricating clandestine immigrants’.

Germany

Right of Residence for Kosovars with a Job

On 30 January 2001, the Minister of Interior of North Rhine-Westphalia, Fritz Behrens, announced that his regional government would put forward at a special conference of interior ministers (IMK), to be held on 15 February 2001, a proposal to grant a long-term right of residence to those Kosovar war refugees with a secure job in Germany. The expulsion of such persons serves no purpose from either a humanitarian or an economic point of view, he argued. When this issue was taken up by the IMK last November, it was decided only to extend the temporary residence permits of certain categories of Kosovars. This decision was preceded, on 31 October 2000, by the announcement made by Mr. Behrens to grant under certain conditions, an extension of the temporary residence permit of those Kosovars with a job, until 31 July 2001. His proposal that his counterparts in the other Laender adopt a similar position was not followed.

As the situation now stands, Kosovar families who do not have children attending school or a professional training course have until 30 April 2001 to leave Germany or be removed by force.

Greece

Detention conditions

On 20 December 2000, Human Rights Watch sent an urgent memorandum to the Greek government, charging that undocumented migrants in Greece, awaiting deportation, face appalling detention conditions. The group conducted an 18-day research mission with a team including two lawyers into conditions at the Attica General Police Directorate detention centre for foreigners. Their specific focus was the human rights of migrants. It was found that detainees lived in conditions of severe overcrowding, lacked access to fresh air or exercise, adequate sleeping accommodation, adequate food or access to medical care. 150 detainees were found in a space allegedly designed for half that number. Most detainees had been held at the centre for months; one man for a full year. Such conditions, coupled with lengthy periods of detention ‘raise serious concerns’ that the Greek government may be responsible for cruel, inhuman and degrading treatment, Human Rights Watch has said. Copies of the memorandum and accompanying letter to the Greek Ministry of Public Order are available at www.hrw.org/backgrounder/eca/greece-detention-bck.htm and www.hrw.org/press/2000/12/greece1215-ltr.htm or contact Rachel Bien at bienr@hrw.org.

Human Rights Watch Comments On Greek Immigration Bill

HRW addresses inter alia the need for a clause exempting persons with a well-founded fear of persecution from the requirement to provide valid documentation. They also seek clarification regarding the rights of refugees and asylum seekers with respect to proper documentation. Moreover, Human Rights Watch strongly recommends that Law 1975/1991 and Presidential Decree 61/1991 are reviewed and, if necessary, strengthened to comply in full with the 1951 Refugee Convention and relevant UNHCR guidelines. The full report can be found at

http://www.greekhelsinki.gr/bhr/english/organizations/hrw/hrw_31_01_01.html

Ireland

Carriers liability

On 14 November 2000, the Minister of Justice, Mr John O’Donoghue, announced that the government has approved plans to introduce legislation that will result in fining carriers that transport passengers without the required entry documents. The amount hasn’t yet been decided but it is likely to be similar to that imposed in the UK, where the fine is 2000 (EURO 2500) per passenger. The new law will not be applied to the Common Travel Area since there is no systematic checking of travel documents for passengers travelling to and from the UK. According to a spokesperson for the Ministry of Justice, the new law will also not be applied in cases of irregular migrants hidden in the back of lorries, but he did not rule out this problem being dealt with under a separate piece of legislation. Since April of this year, owners of vehicles entering the UK are fined if they are found to be carrying irregular migrants, even if they were completely unaware of their presence.

Amnesty criticises Refugee Act

The Irish section of Amnesty International has reported that the new Refugee Act in Ireland, which became law one month ago, ignores basic human rights concerns and denies fundamental legal safeguards to asylum seekers. According to their refugee officer, Ursula Fraser, large chunks of international human rights law are ‘ruthlessly ignored’. Of particular concern is the new power to detain asylum seekers in police stations. Accelerated processing procedures could also mean that people are returned to countries in which they are in danger. These views are summarised in a new publication entitled ‘Asylum Law and Policy in Ireland — A Critical Guide’ available from www.amnesty.ie

Italy

Prison sentences for expelled foreigners

Italy’s lower house of parliament approved a law by a vote of 278 to 211 in December 2000 that will impose prison sentences of one to four years on foreigners expelled from Italy and will establish a fingerprint database to facilitate their identification. All persons without proper documentation will be fingerprinted. Under the new law sanctions on employers would increase to a prison sentence between six months and two years plus a fine of between 20 and 50 million lire (EURO 10000 — EURO 25000). People involved in trafficking of foreign prostitutes face up to fifteen years in prison under the new law.

Netherlands

New Aliens Bill receives final approval by the senate

On 21 November 2000, the Upper Chamber adopted the new Aliens Bill by 44 votes to 28, thus enabling the new law to come into effect next spring, probably on 1st April 2001. An important aim of this new law is to reduce the duration of the asylum procedure. Asylum seekers whose claims are recognised will receive only a temporary residence permit for three years. After three years they will be able to apply for permanent residence. War refugees have to wait for one year before they are allowed to enter the asylum procedure.

There were initial hesitations on the part of two coalition partners on account of an amendment put forward by the third coalition partner. The amendment makes it possible to turn down asylum applications submitted by countries that are party to the 1951 Geneva Convention. The support of all coalition parties was secured after the Upper House was informed by Deputy Minister of Justice, Job Cohen, that there would be no change in the policy of individual examinations of each asylum application. He said that an asylum application cannot be refused solely on the grounds that it is submitted by a person who is the national of a State which is party to a human rights convention.

New policy on unaccompanied minors

On the 4 January 2001 a new policy regarding unaccompanied minors has come into force. Asylum seekers who are not yet 18 years-of-age can, if there are no asylum-motives or fear of a treatment in breach of article 3 ECHR, get a status because of their age. Certain prerogatives (e.g. no adequate relief back home, no family in The Netherlands) have to be fulfilled, however, and these have become more stringent under the new policy. Also, henceforth the Dublin Convention can apply to unaccompanied minors. Also new is that the status for unaccompanied minors can be withdrawn when the minor becomes eighteen. Up to now, the status could not be withdrawn on this ground, and after three years a permanent status could be obtained regardless the age of the person involved.

Status for stateless persons unable to leave the country

When a rejected asylum seeker is unable to return to his home country because of statelessness, he can be given a status on this ground. This new policy is in force since the 20 December 2000. The burden to prove the statelessness and the impossibility to obtain travel-documents lies foremost on the applicant. The Dutch government expects the applicant to try every possible way to obtain papers (through embassies, but also family-members in his home country, etc.) and to ask every country where he has had habitual residence or where relatives reside for (re-)admission. If the applicant has tried everything and is still not able to leave, he can obtain a status for residence for one year. After three years, a permanent status can be issued. This policy is less generous than was expected.

Sweden

Asylum for women forced into prostitution

On 28 November, the Minister for Immigration, Maj-Inger Klingwall, informed that the Government was considering the possibility of granting protection to women who leave their home country under deception and are then forced into prostitution. The Aliens Act is currently being examined to see whether it can be amended to include forced prostitution as grounds for being granted asylum.

Rise in asylum applications by Bosnians

The number of Bosnians seeking asylum in Sweden has increased significantly since last November. The Swedish authorities explain this sudden influx as being the result of a guideline decision made by the Government at the end of June 2000, granting so-called minority Bosnians under certain limited conditions a humanitarian permit in Sweden even though they had previously resided in Germany. However, representatives of the Bosnian community in Sweden don't believe in this explanation, but have put forward that it is rather the failure over the last 6 years to create stable conditions in Bosnia, thus leading to people losing faith in the possibility of a future return to their home region, which is to blame. (Migration News Sheet, 2/2001)

Switzerland

Forced repatriation of Kosovars continues

Some 900 Kosovars were scheduled to be forcibly repatriated in November, in spite of an appeal for a temporary halt made by the UN special administrator in Kosovo, Bernard Kouchner. The spokesperson of the Federal Refugee Office said that Mr Kouchner was used to making such kinds of appeal through the intermediary of the media, adding that the Swiss Government had not received any official requests to this effect.

Although repatriations have continued, the rhythm of departures is to slow down. The authorities planned to carry out ‘only’ 200 forced repatriations during the first two weeks of December, and from mid-December until mid-January 2001, no expulsions will take place.

Programme of repatriation aid offered to Sri Lankans

On 1 November, the Federal Refugee Office launched a programme of repatriation assistance offered to Sri Lankan Nationals who voluntarily leave Switzerland and to those who had their asylum applications turned down. The programme will last until the end of 2001. The sum of 1,000 SF (EURO 655) is offered to each adult and half the amount to children under the age of 18 years. Moreover, those who accept the programme will be able to redeem what they have contributed to social security in Switzerland.

Between 1994 and the end of September 2000, only 1,116 Sri Lankan nationals have returned to their home country whereas 6,946 have disappeared. During the same period, more than 13,000 Sri Lankan asylum seekers have entered the country. At present there are some 30,000 Sri Lankans in Switzerland, the majority of whom are in possession of a residence permit issued on humanitarian grounds.

UK

UK carriers’ liability to be extended to freight trains

The Government has warned freight train operators that as from 1st February 2001, they risk having to pay a fine of 2000 (EURO 2500) for each immigrant found hiding in one of their wagons. With this latest extension of the carriers’ liability legislation, all means of transport bringing in goods or humans to the UK risk being fined, regardless of whether there is any intent of aiding and abetting illegal immigration. The previous extension of carriers’ liability legislation was introduced on 3 April 2000 to drivers of vehicles.

The Government has claimed that the extension of the Carriers’ Liability Act to lorry drivers resulted in 20% drop in the number of people being smuggled to the country, but this is not confirmed by the figures.

Report condemns imprisonment of asylum seekers in Northern Ireland

A report published on 10 November 2000 by the Law Centre (NGO) in Northern Ireland condemns the use of prison facilities to detain asylum seekers.

During the period examined in this report, between January 1999 and June 2000, a total of 75 persons who had not committed any offence were held alongside convicts. The vast majority were asylum seekers, including some whose applications were pending in Ireland. They were imprisoned for an average of seven weeks while procedures were under way to return them to Ireland under the terms of the Dublin Convention.

In Northern Ireland, just as in Scotland, there are no facilities to hold asylum-seekers in remand and so asylum seekers are detained in prisons. They are detained because the authorities have doubts about their allegations of persecution, and detention has been known to continue for 14 months.

Asylum system damages asylum seekers’ health

A report carried out by the King’s Fund has said that Britain’s asylum system is damaging the health of refugees. The report also says that many asylum seekers are forced to work illegally after the introduction of a new support system under the Immigration and Asylum Act 1999 in April 2000. David Woodhead, who wrote the report, cited under-funding in health services specific to refugees communities as cause for particular concern, stating that ‘Refugee are often very resilient people but they also have high levels of physical and mental health problems because of their past experiences. Living in poverty, with severely restricted freedom, makes those problems worse. This is a very unhealthy public policy’. The fund is also calling for a rethink of the entire asylum system, in particular a replacement of the voucher system with cash entitlements for all asylum seekers and more resources in the National Health Service to improve refugees’ health and give them a better chance of leading an ordinary life if they are given leave to remain in Britain. Naaz Coker, Chairman of the British Refugee Council, has said that her organisation is seeking legal advice on whether the scheme could be challenged under the Human Rights Act.

Many cases go unheard

The UK government has come under renewed criticism over its handling of asylum cases. Refugee groups have challenged Home Office claims that it has made a record number of asylum decisions due to increased efficiency and more staff. More than 11 500 cases have been processed this year alone but the British Refugee Council and other groups have say that many of these have been dismissed on a ‘non-compliance basis’ because necessary forms have not been returned within a 14-day deadline, rather than on the merits of the asylum claims.

 

 

 

New rules for those persecuted for being homosexual

The UK will issue new rules for asylum seekers who claim persecution in their home country because they are lesbians. Gay women and feminists will have the right to appeal any decision that denies them entry to Britain.

Costs of Voucher System

On 16 January, in a written reply to a parliamentary question, the Minister for Immigration, Barbara Roche, was obliged to acknowledge that processing applications for vouchers and providing them to asylum-seekers cost substantially more than the actual total face value of the vouchers issued. This comes as an embarrassment for the Government who justified the introduction of the food vouchers system as a means of making savings and of reducing the number of asylum applications by discouraging the fraudulent ones. Neither of these aims has been achieved. (Migration News Sheet, 2/2001)

Sharp Fall in the Proportion of Asylum-Seekers Granted Protection

Of the asylum dossiers processed last year, only about 10% were granted refugee status and another 12% exceptional leave to remain (ELR), the UK's equivalent of a humanitarian status granted to those who do not qualify the Geneva Convention status. Associations in support of refugees have denounced these figures as being the result of a more than 2,000% increase in the number of applications rejected on the grounds of "non-compliance" (26,620 last year, compared with only 1,085 in 1999). If only applications whose claims were, in fact, examined were taken into consideration, then the proportion of applicants granted refugee status or ELR in 2000 would be about 55% as opposed to the total figure of 22% given by the Government. (Migration News Sheet, 2/2000)

PUBLICATIONS

Protecting Romani refugees around Europe: a Position Paper by the European Roma Rights Center

The post-1989 era has been punctuated by episodes in which groups of Roma have fled countries in Central and Eastern Europe and sought international protection. In many instances, reception of Romani refugees in the countries to which they have fled has been inadequate. Asylum in Europe has become a right often not available in practice, and much of the asylum system in Europe appears to be infected by racism in general, and anti-Romani sentiment in particular. On the occasion of the International Consultation on Roma Refugees and Asylum Seekers, organised within the framework of the OSCE Implementation Meeting on Human Dimension Issues, this position paper presents ERRC’s concerns in the field of asylum and refugee protection, and provides a series of recommendations aimed at their remedy

Available at :

http://errc.org/rr_nr4_2000/advocacy.shtml

and in Roma Rights: Newsletter of the European Roma Rights Center, Number 4, 2000.

Victoria Tennant. Sanctuary in a cell: the detention of asylum seekers in Northern Ireland. Law Centre (NI), 2000.

This publication analyses the cases of 75 individuals detained in Magilligan and Maghaberry Prisons, Northern Ireland, during an 18-month period. The use of detention is examined in the light of domestic and international human rights instruments and comes up with recommendations, including an immediate improvement in prison facilities for asylum seekers and, in the long-term, an alternative non-custodial facility for detention. The Home Office is currently reviewing detention facilities in Northern Ireland and so this report is timely and will hopefully be taken into account as part of the review’s deliberations. For information see the Law Centre web site at http://www.lawcentreni.org.

Asylum law and policy in Ireland — a critical guide

This book can be obtained by Amnesty International Irish Section, Sean MacBride House, 48 Fleet St, Dublin2, Tel.: +353 1 667 6361; Fax: +353 1 667 63 92; e-mail: info@amnesty.iol.ie.

Kosovo Refugees in the European Union edited by Joanne van Selm. London and New York: Pinter, 2000.

This book provides the first comprehensive account of a European refugee crisis, affecting ethnic Albanians, Serbs and Roma. It describes and analyses the vacillations of seven EU member states (Germany, The Netherlands, the UK, Sweden, Austria, Italy and France) concerning the management of the crisis. It also provides a revealing case study of developing European policy on asylum and immigration following the Treaty of Amsterdam, an account of national decision-making in the light of EU discussions and a discussion of media perception of refugees. The analysis centres on accounts of society, threatened identities and xenophobia as well as international norms pertaining to state sovereignty and human rights. The book is not only backward looking, towards the event of 1999, but forward looking to the issues surrounding refugee protection that demand urgent reflection as a result of this experience (taken from ‘Kosovo Refugees in the European Union’).

Journal of Refugee Studies, Volume 14, Issue 3, September 2000

Contains articles on:

‘Globalization, Humanitarianism and the Erosion of Refugee Protection’ by BS Chimni; and

‘Fragmentation and Consolidation: the contrasting Cases of Somali and Kurdish Refugees in London’ by David J Griffiths.

Abstracts of these articles are available at http://www3.oup.co.uk/refuge/hdb/Volume_13/Issue_03.

International Organization for Migration: World Migration Report 2000

The World Migration Report (WMR) 2000 is a major contribution to the detailed study of global trends in migration. It includes reports on every region in the world, provides a global perspective on the nature, causes and effects of migration movements, and looks at the impact of the increasingly global economy.

The WMR can be ordered from United Nations Publications, Sales and Marketing Section, Palais des Nations, Room C-113, CH-1211 Geneva 10, Switzerland; Fax: (41 22) 917 0027; E-mail: unpubli@unog.ch.

OTHER INFORMATION

Warning for conscientious objectors and deserters from Serbia

The European Bureau for Conscientious Objection (EBCO) has issued a warning for all conscientious objectors and deserters from Serbia not to return to Yugoslavia. Though an amnesty law has been adopted in January, the risk to be arrested is still very high, as shown by relevant cases reported from the region. For more information, contact EBCO, International Secretariat, Calbria, 147, E — 08015 , Barcelona; Tel.: +34 93 4838376; Fax: +34 93 4838356; E-mail: beoc.ebco@suport.org; Website: www.terra.es/personal/beoc.ebco/.

Refugee Womens Resource Project

Refugee Womens Resource Project (RWRP) was set up last year by Asylum Aid, a charity which provides free legal representation and advice to those seeking asylum in the UK.

RWRP is the only organisation in the UK to combine casework, outreach, training and research on issues affecting women asylum seekers and refugees. As well as providing expert and sympathetic advice and representation to women asylum seekers, they aim through their research and publications to raise awareness of the specific problems affecting women refugees and to campaign for changes in law and policy.

They are currently looking for organisations that share their concerns to help in getting their message across to more people. Among other things they would appreciate web links to their own site being added to the web-sites of relevant organisations, and would be happy to reciprocate on their own site (www.asylumaid.org.uk). To get in touch with this organisation, e-mail rwrp2000@hotmail.com or telephone +44 (0) 20 7377 5123.

LIMA — Distance Learning Course

The German Red Cross has developed a distance learning course, called AHOI, for practicioners in social work with migrants and refugees. Based on the experiences with this course, LIMA (Labour-Market Integration of Migrants and Refugees through Advice and Guidance) has been developed as a transnational modul for a wider audience within the European Union. The aims of this training package are to offer general information about examples of good practice within the EU, and to facilitate the exchange of experiences. LIMA focuses on three main topics: intercultural communication and competence, empowerment, and networking. It is conducted in English and is available under www.ahoi-home.de.

The European Migration Information Network (EMIN) continues to expand its information provision and can be found at http://emin.geog.ucl.ac.uk/

 

 

 

 

 

 

No. 1

February 2001

 

 

ECRE DOCUMENTATION SERVICE

 

 

 

 

 

Legal developments

ELENA NEWS

We welcome 3 New ELENA National Co-ordinators

  1. Hannah Krog joins Anne La Cour for Denmark
  2. Olga Osipova for Russia
  3. Diederik Pomstra for the Netherlands

The ELENA course on internal protection alternative, non-state agents of persecution and the use of medical evidence in asylum cases took place in Berlin on 8-10 December. 87 participants — lawyers, legal advisors from NGOs, UNHCR staff and government officials — from 31 European countries participated. Contact Geri McKenna for Conference Materials, GMcKenna@ecre.org. The Research papers prepared for the course are available on the ECRE website http://www.ecre.org.

The ELENA course on the European Convention on Human Rights and the UN Convention against Torture in relation to asylum took place in Strasbourg on 26-28 January 2001. 98 participants — again lawyers, legal advisors and UNHCR staff — participated from 26 European countries. Contact Geri McKenna for Conference Materials, GMcKenna@ecre.org

 

The ELENA National Co-ordinators meeting took place in Berlin on 7 December 2000 and agreed ELENA activities for the year 2001 which are reflected in the ECRE activities plan.

 

 

 

UNITED NATIONS

COMMITTEE AGAINST TORTURE (CAT)

Communication N. 149/1999, A.S. v Sweden, 24 November 2000

Gender-related persecution, Iran woman facing stoning for adultery, credibility, recent reports on Iranian women

In a decision dated 24 November 2000, which has yet to be made public, the CAT requested Sweden to refrain from repatriating an Iranian woman or from sending her to any country where she runs the risk of being expelled to Iran. The woman, a widow was forced into a "sighe"- or "mutah" — marriage ( a short-time marriage). The woman claimed asylum in Sweden alleging that she would face death by stoning for having committed adultery with a Christian. Her asylum application was rejected on the ground that she had failed to provide verifiable evidence that would have enabled her to enjoy the benefit of the doubt.

The CAT disagreed with Sweden on the author’s credibility. In the view of the CAT, Sweden has not made "sufficient efforts to determine whether there are substantial grounds for believing that the author would be in danger of being subjected to torture". Moreover it reminded Sweden of a recent report on human rights in Iran, in particular that of the Special Representative of the UN Secretary General on the human rights situation in Iran, dated 18 January 2000. Where women are concerned, this report concluded that "little progress is being made with regard to remaining systematic barriers to equality" and for "the removal of patriarchal structures in society". In addition, this report, like numerous others, confirmed that married women have been recently sentenced to death by stoning for adultery.

 

Communication No. 126/1999, 21 January 1999; H.A.D. v Switzerland, Meeting 10 May 2000

Turkish Kurd, time lapse between persecution and flight as an indicator for the risk of refoulement

This case involved a Turkish citizen of Kurdish origin born in 1962 and currently residing in Switzerland where he applied for asylum in 1991. His application for asylum, however, was turned down, and he claimed that forcible repatriation to Turkey would constitute a violation by Switzerland of article 3 of the Convention against Torture. He claimed that torture is commonly used in Turkey during police interrogations, as has been confirmed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and that he and his family had close links with the Kurdish Workers Party (PKK) (see original communication for full details).

Switzerland drew attention to their doubts as to the validity of the legal letters produced for his asylum application, and inconsistencies between medical reports and his account of torture, as well as contradictory statements from the author. The State party also considered that, even if the claimant was indeed tortured, there is no satisfactory causal link between his detention and his flight from Turkey as there was a lapse of seven years between his persecution and departure from Turkey.

The issue before the Committee was whether the return of the claimant to Turkey would violate the obligation of the State party under article 3 of the Convention. The Committee therefore needed to decide whether there were grounds for believing that he would be in danger of being subjected to torture upon return to Turkey. The Committee concluded that in view of the time that has elapsed between the events described and the establishment of veracity of his claims and the present day, the current risk of the claimant being subjected to torture or "deliberate persecution" had not been sufficiently well-established.

(For full report see United Nations Report of the Committee Against Torture, General Assembly Official Records, Fifty-fifth session, Supplement No. 44 (a/55/44), New York, 2000)

 

Communication No. 143/1999, 10 August 1999; S.C. v Denmark Meeting 19 May 2000

This case concerned a woman who claimed she had been the an active supporter of an illegal opposition party in Ecuador since 1985 and that she was arrested on 28 May 1994 for distribution of political propaganda material. She was detained and ill-treated on several occasions. After becoming political leader of a women’s group party in 1996 and taking part in demonstrations, the author was again detained and sentenced to six months imprisonment, during which time she was starved, tortured and raped.

She fled and applied for asylum in Denmark. The author’s request for asylum was turned down in October 1998 and an appeal to the Ministry of Interior on humanitarian grounds was also refused in 1999.

From the information submitted by the author, the Committee noted the claimant’s activities for women’s rights in Ecuador and did not dispute that the she might have encountered difficulties with the Ecuadorian authorities because of her political activities. However, the Committee pointed out that these activities were as a member of a lawful political party of a country that has ratified not only the Convention against Torture, but also made the optional declaration under article 22 of the Convention. It was the view of the Committee that the information presented by the claimant did not show substantial grounds for believing that she runs a foreseeable, real and personal risk of being tortured if returned to Ecuador and that the decision of the State party to return her did not constitute a breach of article 3 of the Convention. For more information see Report of the Committee against Torture (as above).

 

Communication No. 93/1997, 23 October 1997; K.N. v France, meeting on 19 May 2000, Decision on admissibility

This case involves a national of the former Democratic Republic of Congo currently living in France where he has asked for asylum and faces deportation. As a student leader he arranged demonstrations against President Mobutu’s regime and after an arrest and detention warrant was produced against him he claimed asylum in France in 1992. This was denied, and after demanding a review of his file due to some new evidence, he was issued with a deportation order. In March 1994 the author was arrested after an identity check and sentenced in the Paris Correctional Court to a three-year ban from French territory for theft and being in France illegally. He then returned to Zaire. The claimant states that upon his arrival in Zaire he was detained through immigration control at the airport and then imprisoned until January 1995 during which time he experienced ill-treatment and torture. After being taken to a hospital for medical treatment he managed to arrange to return to France in March 1995. Being still banned from the country he lodged a plea with the Ministry of Justice to set aside the judgement of the Paris Correctional Court, which was rejected on 16 October 1996. He then lodged a request for exceptional authorisation to reside in France pursuant to the provisions of the ministerial circular dated 24 June 1997 on the review of the situation of certain categories of aliens illegally present in the country, which was rejected on the 3 July 1998 grounds that the claimant did not satisfy the conditions for benefiting under any provisions of the circular.

He asserted in his complaint to the CAT that he is utterly without rights, has no legal means of regularising his situation, no resources and no entitlement to housing, and may be discovered and expelled at any moment.

France noted that the claimant failed to appeal against the judgement to deport him in 1994 and therefore did not exhaust domestic remedies in respect of the ban from French territory in 1994. Also, since arriving in France in 1995, the author had not submitted a fresh application for refugee status to the French Office for the Protection of Refugees and Stateless Person (OFPRA) although new facts had come to light. In addition, at the time of consideration the claimant was not subject to any enforceable decision to expel him to his country and so could not plead that he was a victim of a breach of the Convention within the meaning of article 22. If he were to be notified he could have open to him effective remedies which he would have to exhaust before making an application to the Committee

The CAT noted that though not entitled to obtain a residence permit for the length of the ban on his present on French territory, the claimant could not seriously maintain that this state of affairs prevented him from submitting a fresh application for refugee status or emphasizing the risks he would run if returned to his own country. It pointed out that the State party also said that, his banishment from French territory having ceased to be effective as of March 1997, the claimant could thereafter have submitted an application for refugee status subject to the usual conditions. The Committee noted also that the claimant’s appeal against the decision by the Prefect rejecting his application for residence and his application for suspension of the expulsion order, lodged before the administrative authorities in July 1998 and February 1999 respectively, were pending at the time of consideration. The Committee therefore concluded that that the conditions laid down in article 22, paragraph 5(b) of the Convention, which states that they will not consider any communication unless it has ascertained that the claimant has exhausted all available domestic remedies, had not been met in this case and so the communication was inadmissible as it stood.

Sessional Report of the Committee against Torture: 23rd (8-19 Nov 1999) and 24th session (1-19 May 2000) now available on the UN website at

http://www.unhchr.ch/tbs/doc.nsf/0/2ea2981813a3d4c5c12569ce0056b0ea/$FILE/G0043406.pdf

 

COUNCIL OF EUROPE

EUROPEAN COURT OF HUMAN RIGHTS

ALL JUDGMENTS CAN BE EASILY SEARCHED FOR ON WWW.ECHR.COE.INT

Case of Bensaid v. The United Kingdom, 6 February 2001, (Application No. 44599/98)

Expulsion of a schizophrenic Algerian from the United Kingdom to Algeria

The applicant alleged that his proposed expulsion from the United Kingdom to Algeria placed him at risk of inhuman and degrading treatment, threatened his physical and moral integrity and that he had no effective remedy available to him in respect of these matters. He invoked Articles 3, 8 and 13 of the Convention.

The applicant is a schizophrenic suffering from a psychotic illness. Originally granted leave to enter the UK as a visitor, he was granted indefinite leave to remain as a foreign spouse after having married a United Kingdom citizen. After a visit to Algeria, the immigration authorities decided to refuse leave to enter on the ground that indefinite leave to remain had been obtained by deception, the marriage being one of convenience. He was given notice of intention to remove him from the United Kingdom. The applicant sought deferral of the removal conditions on the basis of his medical condition which was refused. He applied for judicial review. The Court of Appeal dismissed the applicant’s appeal.

The applicant submitted that his removal to Algeria, where he would not receive the degree of support and access to medical facilities which he currently relies on in the United Kingdom, would place him at real risk of a relapse in his illness, which includes hallucinations and suggestions of self-harm and harm to others. He relied on information indicating that the GIA opposition group was active in the region of his village, which would render travel dangerous and add to the strains on his precarious mental balance.

The Government submitted that the applicant suffered from a mental illness, the effects of which were likely to be long term whether he was in the United Kingdom or Algeria. They disputed that the applicant’s village was in an area of Algeria which would place him at particular risk from terrorists, and were satisfied that he could safely travel by day to the hospital at Blida. The government also contended that treatment in Algeria was available.

The European Court reiterating its case law held that "it is not therefore prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. (see the D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, § 49)." (see also judgment S.C.C. v Sweden, 15 February 2000, DS July 2000)

The Court found that "[T]he difficulties in obtaining medication and the stresses inherent in returning to this part of Algeria, where there is violence and active terrorism, are alleged to endanger seriously his health. Deterioration in the applicant’s already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (e.g. withdrawal and lack of motivation)." The Court considered that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.

However, the Court concluded that "[t]he fact that the applicant’s circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.

The Court found that the risk that the applicant will suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulties of travel to Blida and the effects on his health of these factors were also considered as speculative. The information provided by the parties did not, in the view of the Court, indicate that travel to the hospital is effectively prevented by the situation in the region. The Court found that the applicant would not be himself a likely target of terrorist activity. Even if his family did not have a car, according to the Court this would not exclude the possibility of other arrangements being made.

The Court concluded that, given high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, there is not a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standards of Article 3. According to the Court, it did not disclose the exceptional circumstances of the D. case (cited above)


The applicant argued under Article 8 that the removal would have a severely damaging effect on his private life in the sense of his moral and physical integrity. The government contended that even if there was an interference, such would be justified under the second paragraph of Article 8 on the basis that the Government’s immigration policy was necessary for the economic well-being of the country and the prevention of disorder and crime. They also referred to the fact that the applicant was seeking continued medical treatment at the expense of the British taxpayer, adding to the already considerable burdens of the NHS. It would have seriously destabilising effects if the NHS became liable to provide treatment to a potentially open-ended class of non-European Union citizens.

The Court held that private life is a broad term not susceptible to exhaustive definition. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. According to the Court, Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. In the view of the Court, the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.

The Court recalled its findings in the context of Article 3, that the risk of damage to the applicant’s health from return to his country of origin was based on largely hypothetical factors. The Court found that even if assuming that the dislocation caused to the applicant by removal from the United Kingdom was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, such interference was proportionate.

Accordingly, the Court found that the implementation of the decision to remove the applicant to Algeria would not violate Article 8 of the Convention.

The applicant complained that he has no effective remedy against the proposed expulsion, invoking Article 13. The Court found no violation of Article 13.

In a separate Opinion, Judge Sir Nicolas Bratza joined by Judges Costa and Greve, while hesitantly joining the unanimous decision of the Court considered that "on the evidence before the Court, there exist in [his] view powerful and compelling humanitarian considerations in the present case which would justify and merit reconsideration by the national authorities of the decision to remove the applicant to Algeria."

Dulas v. Turkey, 30 January 2001, Application No. 25801/94

Suffering caused by destruction of home of a 70 year old falls within the scope of Article 3.

The applicant alleged principally that her home and property had been destroyed during an operation by gendarmes carried out in her village in south-east Turkey. Before the Commission, she invoked Articles 2, 3, 5, 6, 8, 13, 14, 18 and former Article 25 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The Court reiterated the absolute character of the prohibition of torture or inhuman or degrading treatment or punishment: "Article 3, as the Court has frequently under, lined, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment."

The Court recalled its case law "that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim

The Court considered that the applicant in the present case was aged over 70 at the time of the events. Her home and property were destroyed before her eyes, depriving her of means of shelter and support, and obliging her to leave the village and community, where she had lived all her life. No steps were taken by the authorities to give assistance to her in her plight.

The Court found by "[H]aving regard to the manner in which her home was destroyed and her personal circumstances therefore, "that the applicant must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3. The Court concluded that there has been a violation of Article 3 of the Convention.

The applicant complained of the destruction of her home and property, invoking Article 8 of the Convention and Article 1 of Protocol No.1.

"The Court has found it established that the applicant’s house and property were deliberately destroyed by the security forces, obliging her to leave her village. There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted particularly grave and unjustified interferences with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions (…)." The Court, accordingly, found violations of Article 8 of the Convention and Article 1 of Protocol No. 1.

The applicant invoked Article 18 of the Convention which provides:

"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

The applicant argued that the enforced evacuation of 2-3 million people from villages in the south-east of Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention. Having regard to its findings above, the Court did not consider it necessary to examine this complaint separately.

The applicant maintained that there existed in Turkey an officially tolerated practice of destroying villages and failing to provide effective remedies, which aggravated the breach of which she had been victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies. Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court did not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities.

 

Finally, the applicant complained that she had been subject to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now replaced by Article 34), which provided:

"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."

The Court held that "[I]n this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (…) In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention."

 

 

KALANTARI v GERMANY, Decision as to Admissibility 28 September 2000

Expulsion to Iran, failure of the German authorities to establish risk of torture

The applicant, an Iranian national, fled Iran and applied in Germany for asylum. His application was rejected.

The Special Rapporteur on Torture at the Human Rights Commission of the United Nations sent the Court an extract from a public report which mentioned an appeal by the Special Rapporteur against the applicant’s expulsion in August 1999 owing to the risk of the applicant being tortured in Iran.

The Court found the application admissible under Article 3. In order to determine whether the exhaustion rule had been complied with, it was necessary to take into account the circumstances of the case.

In the case before the Court, when dismissing the application for refugee status the German authorities had not mentioned the fate of the members of the applicant’s family in Iran or the dangers he would run if he was sent back there, despite the fact that the applicant had from the very first hearing before the Federal Office of Refugees emphasised the persecution to which his sisters in Iran had been subjected and had in particular lodged a certificate by an Islamic revolutionary court indicating that one of his sisters had been arrested and imprisoned. In addition, the German authorities had received evidence during the proceedings of the persecution suffered by his sisters and must have been aware of the appeals against the applicant’s family in Iran coupled with his political activities during his exile should have enabled the authorities to assess the risk of torture which the applicant would run if he was expelled to Iran. It was for the authorities to seek further information if they considered it necessary.

Furthermore, the applicant had already made a further application for political asylum — which was still pending on the merits — and a number of unsuccessful applications for a stay of execution of the expulsion order. Lastly, under the domestic legislation in force on aliens, a fresh application for political asylum had to be made in principle within three months of the applicant becoming aware of the existence of new evidence. In the case before the Court, that period had long since expired. In conclusion, the applicant could not be required to bring new proceedings concerning his application for asylum. Thus, the Government’s objection that domestic remedies had not been exhausted was unfounded.

 

ZHU v. THE UNITED KINGDOM, No. 36790/97, 12 September 2000

On detention, Article 3

The applicant, a Chinese national, was stopped by Immigration Officers in the United Kingdom and found to be travelling on a forged Japanese passport. He was immediately detained under powers contained in paragraph 16 of Schedule 2 to the Immigration Act 1971. The applicant was detained in HM Prison, Gateside, Greenock, Scotland. The applicant immediately made an application for political asylum under the 1951 United Nations Convention Relating to the Status of Refugees. This was refused, his appeal to an Adjudicator was dismissed and his detention continued. Following the grant of legal aid on 13 September 1996, a further petition attacking the substantive decisions of the Adjudicator and Immigration Appeal Tribunal was presented and interim liberation was granted by the Court of Session.

The applicant complained, inter alia, that he had been assaulted by other inmates. suffered verbal racial abuse from other prisoners on a daily basis, that had he been isolated, in that there were no Mandarin speakers in the prison, save for a six month period when there was another Mandarin Chinese speaker in detention. The applicant had significant communication problems. Further, he was unable to read correspondence from the immigration authorities and he states that no interpreters were available to assist him. The applicant, who had a history of mental health problems, states that his health deteriorated in prison and he became depressed to the point of suicide. He stated that after a suicide attempt he had been put into a ground floor cell without blankets for a week.

The applicant complained under Article 3 of the Convention that the conditions in which he was detained amounted to inhuman and degrading treatment. He complained that he was detained in a local prison with convicted criminals for a lengthy period. He referred to the excessive amount of time he spent locked in his cell and to the verbal and physical racist abuse to which he was subjected. He also commented upon his isolation due to his inability to speak English and the lack of translators/interpreters and noted his difficulties in communicating with the doctor. In particular he complained about a one-week period where he was placed in solitary confinement, following a suicide attempt.

Turning to the substantive complaint under Article 3, the Court recalled that, according to the constant case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3, the assessment of this minimum level of severity being relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim

The Court first noted the applicant’s isolation in prison. For example, even on the Government’s calculations, the applicant was locked in his cell for almost 16 hours a day. Mr McGill, the officer in charge of prisoners awaiting deportation, described him as "more or less alone" in the prison. The applicant’s isolation from what was going on around him was exacerbated by the fact that, at least for the first six months of his detention, no Mandarin speaker was present in prison. The language position improved somewhat when arrangements were made for an interpreter to visit the applicant most weeks on a Friday.

The Court also noted that the applicant’s position as a foreigner in the prison rendered him particularly vulnerable. HM Inspectorate of Prisons for Scotland commented on racial abuse of PADs by other prisoners and, although no specific incidents are documented as regards the applicant, the Court considered it likely that he was aware of some ill-will towards foreigners on the part of other prisoners.  

The applicant’s mental state was also relevant to the question of whether there has been a violation of Article 3. In this connection the Court noted that the applicant was clearly in a delicate state of mental health, and indeed he attempted to commit suicide whilst in prison. However, the Court noted that in response to this suicide attempt the applicant was placed in a special "ligature free" cell for a period of a week under particularly strict supervision, and there does not appear to have been any further suicide attempt. The Court did not accept that the conditions in the "ligature free" cell were inhuman or degrading: in particular, whilst the applicant did not have blankets, he appeared to have had a sleeping bag.  

Further, the Court noted that at least after the first six months of detention the applicant did have access to a telephone, and during that initial period, although there was no Mandarin speaker in the prison, the applicant received visits from a representative of the local Community Relations Council. It was this visitor who eventually arranged for the visits from an interpreter. There appears to have been no problem in relation to visits, which were permitted, and the applicant refers to visitors bringing him books. Further no complaints are made about the accommodation itself, save that too much time was spent in the cell.

Overall, the Court considered that whilst it is clear that the applicant, who was detained pending removal from the country rather than for any involvement in criminal offences, had a difficult time in prison, and whilst it agreed with HM Inspector of Prisons that it is undesirable for prisoners awaiting deportation to be held in the same location as convicted prisoners, the prison authorities appear to have made efforts to alleviate the situation. The applicant’s special needs were recognised, as is witnessed by the presence of the representative of the Community Relations Council and the interpreter, and the handling of the suicide incident, and indeed no complaint is made of the authorities as such. There is no indication that the applicant was set upon by his fellow prisoners in a way which might have rendered the conditions of his detention contrary to Article 3.

It follows that the "minimum level of severity" proscribed by Article 3 was not reached in the present case, and that the application must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 and § 4 of the Convention.

 

Maaouia v. France, Appl. No. 39652/98, 5 October 2000

First time ruling of the Court on Applicability of Art. 6 in expulsion proceedings against Aliens

The Court held that decisions regarding the entry, stay and deprivation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him.

Nouri Maaouia, a Tunisian national, entered France in 1980 and in 1992 married a French national, with whom he had been living since 1983. In December 1988 Alpes-Maritimes Assize Court sentenced him to six years’ imprisonment for armed robbery and armed assault. He was released in April 1990. A few months later the Minister of the Interior made a deportation order against him. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 Nice Criminal Court sentenced him to one year’s imprisonment and made an order excluding him from French territory for ten years. The applicant sought to have the deportation order set aside and the Nice Administrative Court quashed the deportation order. In these circumstances he applied for rescission of the exclusion order. On 26 January 1998 the Court of Appeal granted that application and rescinded the exclusion order on the ground that Nice Administrative Court had quashed the deportation order.

Mr Maaouia complained that the length of proceedings he had brought for the rescission of an exclusion order had been unreasonable, contrary to Article 6 § 1 of the Convention.

The main issue in this case was applicability of Art. 6. This case was the first opportunity for the Court to express their own opinion concerning this issue. Before the reform of the control mechanism of the Convention all similar cases had been declared inadmissible by the Commission.

The Court pointed out that under its case-law, the concepts of "civil rights and obligations" and "criminal charge" could not be interpreted solely by reference to the domestic law of the respondent State but that those concepts are "autonomous", within the meaning of Article 6 § 1.

The Court reiterated that the provisions of the Convention had to be construed in the light of the entire Convention system, including the Protocols. In that connection, it noted that Article 1 of Protocol No. 7 contained procedural guarantees applicable to the expulsion of aliens. In addition, the Court observed that the preamble to that instrument referred to the need to take "further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention..." Taken together, those provisions showed that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. In the Court’s view, that construction was supported by the explanatory report on Protocol No. 7 in the section dealing with Article 1.

The Court therefore considered that by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States had clearly intimated their intention not to include such proceedings within the scope of Article 6 § 1 of the Convention. In the light of that, the Court considered that the proceedings for the rescission of the exclusion order did not concern the determination of a "civil right" for the purposes of Article 6 § 1. The fact that the exclusion order had incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment could not suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1 of the Convention.

The Court further considered that orders excluding aliens from French territory did not concern the determination of a criminal charge either. In that connection, it noted that their characterisation within the domestic legal order was open to different interpretations. In any event, the domestic legal order’s characterisation of a penalty could not, by itself, be decisive for determining whether or not the penalty was criminal in nature. Other factors, notably the nature of the penalty concerned, had to be taken into account. On that subject, the Court noted that, in general, exclusion orders were not characterised as criminal within the member States of the Council of Europe. Such orders, which in most States could also be made by the administrative authorities, constituted a special preventive measure for the purposes of immigration control and did not concern the determination of a criminal charge against the applicant for the purposes of Article 6 § 1. The fact that they were imposed in the context of criminal proceedings could not alter their essentially preventive nature. It followed that proceedings for rescission of such measures could not be regarded as being in the criminal sphere either.

For those interested in Roma rights in relation to Article 8, please find attached (L010101) a three-page summary of the judgment of the ECtHR on 18 January 2001 in Chapman v UK, and others. The decision deals with the scope of the margin of appreciation in minority cases and is instructive in terms of the obligations of states towards minorities, such as gypsies in relation respecting their ethnic identity in accordance with Article 8. [Chapman v UK and others}.

 

 

 

 

EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE

Visit to Germany by the European Committee for the Prevention of Torture, 19 December 2000

A delegation of the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently carried out a thirteen-day visit to Germany. The visit started in Berlin on 3 December 2000 and was carried out within the framework of the CPT's programme of periodic visits for the year 2000. It was the Committee's fourth visit to Germany, the previous visits having taken place in 1991, 1996 and 1998.

In the framework of the visit, the CPT's delegation followed up a number of issues examined during the previous three visits concerning, in particular, the treatment of persons deprived of their liberty under the aliens legislation. Issues tackled for the first time in Germany included the treatment of persons placed in forensic psychiatric institutions and of persons living in homes for the elderly.

Reports on these visits as well as the responses of the German authorities have been made public at the request of the German Government. These documents can be consulted on the CPT's website or obtained from the CPT's Secretariat. Further information may be obtained from the CPT's Internet Site: http://press.coe.int/press2/press.asp?B=0,0,0,0,0&M=http://www.cpt.coe.int

 

COUNTRY DEVELOPMENTS

Austria

Austria ratifies an agreement relating to the European Court of Human Rights

Strasbourg,: Austria ratified on the 10 January 2001 the European Agreement relating to Persons participating in the Proceedings of the European Court of Humans Rights (See Policy Developments)

Belgium

Draft royal decree on detention centres for illegal immigrants and rejected asylum seekers

On 6 December 2000, the Council of Ministers approved a draft royal decree containing rules on detention centres for illegal immigrants and rejected asylum seekers awaiting their removal from the country. The decree amends an earlier one of 4 May 1999, which has been the subject of considerable criticism.

The most important provision in the text is the setting up of a new body to receive complaints by detainees who allege to have been maltreated.

The new decree allows the detention of minor children, although the coalition partners had agreed to end it.

There will be a doctor in such centres who will be able to provide objections, founded on medical grounds, to the removal or continuation of detention of an inmate. The director general of such centres may not ignore the doctor’s advice.

Social workers are supposed to "prepare" inmates awaiting their deportation and help those who have applied unsuccessfully for asylum to introduce an appeal against their removal.

Finland

All Somalian applicants considered to be in need of international protection

All Somalian applicants were considered to be in need of international protection by virtue of Article 31 of the 1951 Geneva Convention, ruling on de facto status. This interpretation has also been applied in the decisions made this year.

Protection of Libyan asylum seekers

In December 2000, the Helsinki Administrative Court gave five rulings concerning Libyans. All were considered to be in need of international protection basically on the grounds of the Libyan human rights situation and treatment of returned citizens. However, the Refugee Advice Centre, Finland, consider that all were Convention refugees. At the very least, the Court has set some sort of precedent concerning the protection needs of Libyans (information from Refugee Advice Centre, Finland, Sari Sirva’s email: sirva@katto.kaapeli.fi).

Dublin Convention

The Dublin Convention is being applied strictly in Finland. In December, a Pakistani asylum seeker was transferred to the UK even though she had a British partner legally residing in Finland. The appeal in Helsinki administrative Court is pending. The applicant has already been transferred as the court did not give a suspension order. Her claim, as such, was very strong and with solid evidence (more information available from Sari Sirva, see above).

France

Successful Appeals at the Commission des Recours des Refugiés

The following groups were granted refugee status

Algerians:

(Case No. 356391, 16 November 2000). An Algerian woman, waitress in a restaurant was threatened by Islamist groups to give up her profession and to adopt a demeanour conforming to Islamist rules. She was threatened with death and injured on one occasion. Several times she approached the police for protection who refused to take any concrete measures to protect her by reproaching her with her lifestyle. After living clandestinely in her country she fled to France. The CRR granted refugee status holding that the Algerian police voluntarily tolerated the persecution by Islamist groups.

(Case No. 360521, 11 October 2000) An Algerian, a civil servant in the local municipality in charge of elections and statistics refused to concede votes to members of the FIS following which he was subjected to threats and attempted intimidation. He left his job after having received a letter with threats, and worked at a bakery of his brother-in-law’s. After having received another letter with new threats of death, he refused to ask for protection from the police because they suspected him of having contacts to armed Islamist groups. The CRR granted refugee status holding that upon return to Algeria he had a well-founded fear of persecution by Islamist groups voluntarily tolerated by the Algerian police.

(Case No. 356675, date unknown) An Algerian woman, grand-daughter and daughter of French army soldiers, teacher of the Berber language was intimidated several times by Islamist groups. They threatened to kill her if she continued to hinder the usage of the Arab language and continued to teach French and Berber outside her own house. Her job as a Berber teacher was made redundant after pressure from these Islamist groups. She was kept locked several times together with her Christian co-religionists by Islamists. She became more exposed, often threatened by reason of her faith and her local notoriety for feminist activities. The police refused to afford protection by not taking any action or investigation against the authors of the threats. The CRR granted refugee status holding that the Algerian police voluntarily tolerated the persecution by Islamist extremists.

(Case No. 349653, 19 October 2000) An Algerian, known because of the activities of his father, member of auxiliary troops of the French army (Harki) was constantly harassed and discriminated against by the authorities calling him "son of harki" (fils de Harki). The very same authorities refused to protect him after he had been several times the victim of aggressions by masked individuals. The CRR granted refugee status holding that upon return to Algeria he had a well founded fear of persecution by Islamist groups voluntarily tolerated by the Algerian police.

(Case No. 343320, date unknown) An Algerian officer in the Algerian army had manifested his opposition to the participation of the armed forces in the interruption of the electoral process in December 1991. His request to be released from the army was turned down. He deserted for a couple of weeks in the hope that he would be automatically withdrawn from the army. He was moved to an area where he participated in operations of maintenance of order. During one of these operations he was ordered to kill a civilian suspected of complicity with Islamists which he refused. He was taken on even more dangerous operations. A new request to be released from the army was blocked by his superior. He was moved to a unit of anti-subversive combat and was asked a second time to kill a civilian. After refusing to obey his orders he was several times interrogated by the military police, accused of collaboration with Islamists and subjected to ideological re-education.

The CRR held that his desertion from the army was dictated by his conscience. The CRR held that his fear of persecution upon return to his country was well-founded and that he was covered by the provisions of the Geneva Convention.

Iranian homosexual (member of social group)

(Case No. 330627, 4 october 2000) An Iranian, married to a Romanian woman had a intimate relationship with an Iranian. He broke up the relationship in order not to jeopardise his marriage. His lover threatened to reveal their relationship to the authorities. Soon after that the police came to his apartment and took his passport away. After being informed by a family member who exercised important functions in the law courts that the authorities accused him of homosexuality, he fled his country fearing to be sentenced to death.

The CRR held that he had a well founded fear of being persecuted on account of his membership to a particular social group upon return to Iran and granted refugee status.

Bosnian Roma:

(Case No. 361013, 361012 14 November 2000). Both applicants, Bosnian Roma who had fled because of the war, refugees in Germany in 1993 and had returned to the town Travnik where she had been formerly resident, were maltreated by the inhabitants. The authorities showed themselves incapable of affording her protection. Moreover, they refused to accord her public aid from which all Bosnian returnees benefited. The CRR held that they had a well founded fear of persecution on account of their membership in the Roma community were she to return to her country of origin.

Yugoslav Roma:

(Case No. 348729, 11 October 2000) A Yugoslav woman of Rom descent from Istok was granted refugee status. In 1998 her husband received an order of mobilisation which he ignored refusing to fight for a country he did not consider his. He went into hiding. The applicant was maltreated and threatened by the authorities, her husband subjected to police violence during detention of two days. The CRR held that notwithstanding the international presence of KFOR and UNMIK, at the moment the safety of the Roma community in the region of Istok is not assured and that the repatriations of the displaced Roma has still not yet been organised. The CRR concluded that under the circumstances the applicant could not avail herself of the protection of the authorities vested with power in Kosovo by virtue of an UN mandate.

(Case No. 356255, date unknown; Case No. 356112; Case No. 357091, 26 October 2000) The applicants are Yugoslav Romas from Mitrovica, Kosovo.

The first two cases are similar. Both applicants had been forcefully drafted to Serbian troops since 1992. During several operations they witnessed atrocities. They settled in Mitrovica where particularly in 1998 they were harassed, maltreated by the police, as well as victim of intimidations and threats by Albanian extremist groups who accused them of colloboration with Serbs. They claimed that they could not return as all their assets had been destroyed by the Albanian community and several members of their family harassed or assassinated. The CRR held that, since KFOR and UNMIK have been vested with power, persons who had fled Kosovo cannot be, in general terms, considered as refugees any longer. However, the CRR held that in the particular situation at the moment, the security of the Roma community in Mitrovica is not yet assured and subsequently granted refugee status.

In the third case, the CRR held that the applicant has a well founded fear of persecution by the Albanian as well as by the Serbian community. The CRR held that in the particular situation at the moment, the security of the Roma community in Mitrovica is not yet assured and subsequently granted refugee status.

Yugoslavian Muslim

(Case No. 361123, 25 October 2000)

The applicant is a Yugoslav woman of Muslim faith from Sandjak. The CRR held that she was persecuted by reason of membership of her ethnic and religious community. The CRR found that in January 2000 her brother was assassinated because he had refused to give in to the attempts of extortion of money of his Serbian neighbours. Despite interventions of her family before the police, the assassin was left in liberty. The members of her family were subject to intimidations until they had to abandon their house and leave the region .The applicant was forced to give up her employment. The CRR found that the threats against the applicant became more and more grave. The CRR held that under the circumstances of the case, the Serbian police can be considered to have voluntarily covered up the exactions amounting to persecution, assuring the impunity of the perpetrator by reason of her membership of a religious and ethnic group and refusing to afford her the protection she was entitled to. The CRR granted refugee status.

(Case No. 361696, 16 November 2000) The applicant is a Yugoslav national of Muslim faith from Prizren. He fled Kosovo in 1999 from persecution by the Serbian army and the UCK because of his religion as well as because of his political engagement. The CRR held that notwithstanding the security presence of KFOR and UNMIK, the security of the Muslim community in the region of Prizren cannot be regarded as assured. The CRR held that he has a well founded fear of persecution by reason of his membership to the Muslim community as well as political opinion. Similarly see also Case No. 362887, 16 November 2000)

Yugoslavian deserters

(Case No 350427, 11 October 2000) A Yugoslav who had refused to serve in the Yugoslav army because he was in disagreement with the belligerent policy of the regime. The CRR held that his insubordination can be considered as dictated by political reasons. He was granted refugee status.

(Case No. 354292, 10 October 2000) A Yugoslav national of Serbian descent had conscientiously refused to submit to his military obligations and thereby to fight against his compatriots in Kosovo and to serve a regime whose policy he disapproved of. The CRR concluded that his insubordination can be considered as being dictated by reasons of conscience and thus ahs a well founded fear of persecution upon return to his country of origin.

(Case No, 354995, 4 October 2000) A Yugoslav national of Serbian descent of a politically engaged family, had refused to obey to the call up to military service and to participate in the fighting in Kosovo by reason of his conscience and because he had no hostility towards the Albanian Kosovars. He had witnessed dishonourable practices of the army on the occasion of his military service in Bosnia in 1992. The CRR concluded that given the harsh sanctions for insubordination in Yugoslavia, he has a well founded fear of being persecuted upon return in the sense of the provisions of the Geneva Convention.

(Case No. 360006, 16 October 2000) A Yugoslav of Albanian origin from Montenegro had been called up to fight in Croatia and Bosnia in 1994. He had refused to submit to the call-up because he did not want to participate in barbaric and unjustified combat and even less against his co-religionists. Consequently he was sentenced to imprisonment. He fled to Albania where he stayed with his cousins, then lived in Podgorica with his uncle under false documents. In 1999 the police ordered him to renew his documents. Under the circumstances he could neither stay at his uncle’s, nor return to his parents where the army was still present, particularly in Kosovo, refusing to fight against his compatriots, and subsequently fled. The CRR held that he has a well founded fear of persecution by reason of his conscience upon return.

The Netherlands

Cumulative grounds led to refugee-status for Afghan woman

In the case of a highly educated single woman who has no more relatives in Afghanistan, the Court of Zwolle ordered refugee-status to be granted because of a cumulation of grounds (Court of Zwolle, 14 December 2000). Most of the time courts weigh asylum-motives separately, leading to negative decisions on appeal. In this case the Court ruled that women in Afghanistan are seriously restricted in their development and ways to earn their livelihood. Also, the Court refers to the Special Rapporteur of the UN's "Report on the violence against women; mission to Pakistan and Afghanistan" (13 March, 2000). The report mentions that highly educated women are viewed to be enemies of the Islamic principles. These considerations led the Court to the aforementioned conclusion.

Dublin Convention: Conscientious objection in Germany

On 1 November 2000, the Court of Zwolle (Court Zwolle, AWB00/8099, November 1, 2000) granted an interim-measure in the case of a Turkish draft-evader. The asylum seeker had invoked an article in the Dutch Alien Act that prohibits transfer on the basis of a successful Dublin-claim if there is, e.g., a difference in interpretation of the Refugee Treaty. The Court ruled that, as draft-evasion because of conscientious objections to military service is not considered to be a relevant motive for asylum in Germany, the Immigration Service should further investigate a possible difference in interpretation of the Treaty between Germany and The Netherlands. This jurisprudence is not new, but this particular article is not often successfully invoked.

The issue is, at least according to the Court of Zwolle,that it appears that Germany never recognises conscientious objectors as refugees when they base their claim on valid reasons of conscience. Under certain circumstances, this would be grounds for recognition in the Netherlands.

In another, similar, case (Zwolle, AWB 00/3125 August 21, 2000) the appeal was not allowed as the Court Zwolle (which deals with most Dublin cases concerning asylum seekers coming to the Netherlands via Germany) held that the asylum seeker had not made sufficiently clear that he was a draft evader.

Under section 15b Aliens Act (subsection 1 under a) a different interpretation of the Convention would be a ground not to proceed with the Dublin procedure. Unfortunately, it is highly uncertain whether this clause will still apply under the Aliens Act 2000, which will come into force April 1, 2001. Even the ECHR decision of March 7, 2000 in T.I. v UK was not sufficient reason to maintain this provision.

Norway

The Appeals Board — Case Law

As we have previously reported, from 1 January 2001 the Appeals Board replaced the Ministry of Justice for the treatment of appeals in all cases related to foreign citizens, except applications for Norwegian citizenship. (Citizenship is controlled by a separate law, The Law on Citizenship, and appeals in these cases are now treated by the Ministry of Local and Regional Government.) The Appeals Board has been described as a hybrid: in part bureaucratic, in part judicial. The decisions reached will have a binding effect on the consequent treatment of similar cases in the UDI (the Directorate of Immigration), that is, as a kind of case law or precedence. Examples of cases/precedence will be published on a regular (annual) basis.

Kosovars

It was decided in October 2000 that most of the Kosovars that had not yet left or been deported would be granted a stay until 1 March 2001. Single Kosovars and couples without children are still being returned forcibly, also during the winter. By 2 February 2001, 961 individual applications for asylum put forward by Kosovars previously under temporary protection had been rejected (91% of the cases decided on so far), 69 had been granted a residence permit on humanitarian basis (7%), and 24 had been granted refugee status (2%) .

Publications — Recommendations for the Asylum Procedure

In February 2001 NOAS is for the first time publishing our recommendations for each stage of the asylum procedure, based on our experiences. The publication is intended for the Norwegian process in particular, and is available at www.noas.org, though only in Norwegian.

Poland

On 20 December 2000, Poland ratified the Framework Convention on the Protection of National Minorities, which will enter into force on 01 April 2001. For more information see http://press.coe.int.

Russia

(Case No. 362397, 13 November 2000) A Russian, resident of Kazakhstan since 1991 was subjected to aggressions by armed individuals by reason of his Russian origin. His application for Kazakhstan nationality was refused on the ground that he had not yet resided for a sufficiently long time to be granted nationality. In 1996 he was assaulted by three individuals. The CRR held that these incidents became recurrent because of the climate of ethnic friction and were voluntarily tolerated by the authorities who did not follow up on a complaint that the applicant had lodged and did not take any appropriate measures to protect him. The CRR found that his request for naturalisation was not granted and that he is deprived of a nationality at the moment. The CRR held that he had a well founded fear of persecution upon return to the country of his former residence.

UK

Dublin Convention: France and Germany are not safe third countries for asylum seekers fleeing persecution by non-state agents

Regina v. Secretary of State For The Home Department, Ex Parte Adan, Regina v. Secretary of State For The Home Department Ex Parte Aitseguer, 19 December 2000

(http://www.parliament.the-stationery-office.co.uk/pa/ld200001/ldjudgmt/jd001219/adan-1.htm)

France and Germany were ruled ‘unsafe’ third countries for asylum seekers by the House of Lords on 19 December 2000. Five law lords blocked moves by Home Secretary Jack Straw to deport a Somali and an Algerian because the French and German authorities would probably send them to their country of origin. France and Germany only recognise as refugees those who face persecution from the state in their own country or where persecution by non-state agents can be attributed to the state.

The two cases under consideration were as follows Lul Adan, 28, fled from Somalia to Germany in 1997 because her clan was being persecuted by an army group. When her asylum application was refused she came to Britain where her case was rejected by the Home Secretary and it was ordered that she should be returned to Germany under the Dublin Convention. Hamid Aitseguer, 33, an Algerian, asked for asylum in Britain in 1998 after travelling through France, claiming that Islamic fundamentalists threatened to kill him and his family. The Home Secretary refused his application and certified that he should be returned to France as a safe third country.

The Lords rejected the arguments of the Secretary of State and ruled that an autonomous meaning of the relevant treaty provision must be determined: "It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in articles 31 and 32 [of the Vienna Convention of the Law of Treaties] and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty".

"The relevant autonomous meaning of article 1(A)(2) of the Refugee Convention is therefore as explained in Adan [Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293]. Like the Court of Appeal I would hold that there is no material distinction between a country where there is no government (like Somalia) and a country when the government is unable to afford the necessary protection to citizens (such as Algeria). Both are covered by article 1A(2)." (Lord Steyn)

The submission that paragraph 5.2 of the Joint Position of 4 March 1996 of the Member States on the harmonized application of the definition of the term "refugee" in Article I of the Geneva Convention requires an interpretation (only persecution by third parties which is encouraged or permitted by the authorities is covered by Art 1A of the Refugee Convention), was rejected. Stating the Preamble of the Joint Position, Lord Hutton referred to para 65 of the UNHCR Handbook.

On the question whether the Secretary of State was entitled to rely on forms of protection other than the grant of asylum which are available in the state to which he is proposing to send the asylum seeker [see European Court of Human Rights in T.I. v U.K, No. 43844/98, 7 March 2000] Lord Steyn said: "It was sensibly agreed between counsel that the House is not in a position to express any opinion on alternative procedures for the protection of asylum seekers in Germany and France. I do not therefore propose to say anything about this aspect."

Lord Hobhouse of Woodborough, in rejecting the return of the asylum seekers to the EU member countries they came from, as called for by the Dublin Convention, said that "The practical problem that has arisen is that different countries within the EU interpret the [Refugee] Convention differently. (…) So long as such differences continue to exist, the intention of the Convention to provide a uniformity of approach to the refugee problem will be frustrated and the scheme of the international response will remain grossly distorted. It is both contrary to the intention of the Convention and productive of the most severe abuses that there should be such a premium on making a claim for asylum on the North side of the English Channel as opposed to on the South side."

Court of Appeal

Fadli, C2000.2682, 23 November 2000

In Fadli Court of Appeal rejected the arguments that serving soldiers (in this case, in Algeria) who were at risk whilst on leave feared persecution from non-state agents within the Refugee Convention. The applicant argued that if he accepted military service, both his family and himself would become targets of the outlawed Armed Islamic Group (see details on the group http://web.nps.navy.mil/~library/tgp/gia.htm). If he refused military conscription, he would be imprisoned for nine months.

"We are not persuaded that the [Refugee] Convention draws a distinction between, and on the one hand, the position of soldiers engaged on a battlefield in combat against other soldiers observing the rules of war and, on the other hand, soldiers engaged in internal security duties against terrorists." They went to find that a practical duty to protect soldiers would "hinder the home state in providing the very protection for the generality of its citizens which the definition of refugee in the Convention assumes that the home state should provide. It would give the GIA and those like them the power, by adopting terrorist tactics, to weaken the power of the home state to provide protection for its citizen".

The Court rejected the argument that serving soldiers constituted a social group for the purposes of the Refugee Convention. Based on the fact that ex-soldiers and ex-policemen had been granted refugee status, this argument was also rejected by the Court on the grounds that the applicant was not an ex-soldier and that there was only a possibility of him being so at least 18 months after having started his military service. In the judges view, there were far too many uncertainties as to the future to entitle the applicant to rely on a situation which might pertain in 18 months’ time as a basis for his claim to refugee status.

The Court pointed out that he does not fall into the two categories of persons who according to the UNCHR handbook are entitled to protection: conscientious objectors who are avowed pacifists or who refuse to take part in a conflict whose nature has been internationally condemned or people who risk "excessively severe" punishment for refusing to do military service.

Immigration Appeals Tribunal

Constructive guidelines as to what constitutes a political opinion

Emilia del Socorro Gutierrez Gomez (00/TH/12257*; Collins J, Dr Storey, Mr Warr; 3rd October 2000)

Ms Gomez was a law student who three years ago became involved in giving advice to local farmers who were facing extortion at the hands of guerrillas (believed to be FARC -Revolutionary Armed Forces of Columbia, http://web.nps.navy.mil/~library/tgp/farc.htm). After the disappearance of two of her co-advisors and the kidnap of her tutor she feared for her safety if she were to be returned to Colombia and claimed that a political opinion had been imputed to her by FARC.

The Tribunal dismissed her appeal, finding that she was at no risk and did not engage the Convention, and in so doing, gave lengthy consideration to the question of political opinion. The Tribunal also restated its view (in Jaramillo-Aponte, 00/TH/00428, 19 April 2000) that there was no sufficiency of protection for those with a well-founded fear of persecution in Colombia, noting that according to a report by Dr Jenny Pearce, the situation had deteriorated over the last few years.

The Tribunal then revisited the domestic and international jurisprudence relevant to the interpretation of political opinion. Their detailed and lucid analysis needs to be read in full, but their conclusions are as follows:

1. A broad purposive construction must be accorded to all five Convention grounds. Persecutory conduct may have mixed motives, and as long as one motive is Convention-related, the nexus is made out.

2. Political activity is not necessary although it may be a useful indicator of political opinion. Political opinions which do not fall within conventionally protected human rights norms (freedom of expression and conscience etc.) can still be protected.

3. It is conceivable that a private individual may persecute another in order to stifle his/her beliefs and thus be targeting them on account of their actual or perceived political opinion.

4. The term ‘non-state agents’ is potentially misleading as it imports a suggestion of state responsibility. In this context there is a need for a more inclusive multidefinitional approach to political opinion, as per Canada (A-G) v Ward (1993) 2 SCR 689, 746

5. Regard should be had to the views of the persecutor, not the victims, in approaching non-state actor cases (US Court of Appeal for the 9th Circuit; Sanga v INS F3d 1482, 1997). Given the shifting boundaries between the political and non-political, the definition is a malleable one.

6. The cut-off between the criminal and the political may shift according to context. An act may well be both criminal and political: a revenge act, for example is never automatically excluded from being political (cf Australian Administrative Appeals Tribunal in Daljit Singh v Minister for Immigration and Multicultural Affairs [1999], FCA 1599) It follows from this that ‘neither is it possible to identify any fixed categories of persons or bodies that will qualify as political entities’.

7. Agents of the state may have political opinions imputed to them, the Tribunal making it clear that such a situation should never be approached on the basis that such an individual is merely doing their job.

8. Adjudicators should recognise that there may be mixed motives, political and non-political.

The Tribunal rejected in this case the Adjudicator’s conclusions that those helping victims of crime could never come within the Convention, noting that ‘Historically many political groups have started up as bodies taking up the cause of the oppressed. By doing so they have often given political expression to what were hitherto inchoate feelings of powerlessness’.

In this case no political opinion would have been imputed to the appellant. The Tribunal acknowledged that the guerrillas may well have had political motivations in maintaining their power base, but found that the appellant, unlike her tutor, had no political profile and was known to be a student involved on an ad hoc basis. Further, in view of the ransom demanded for the release of her tutor it appeared that the kidnappers’ motives were criminal and financial rather than political. The instant case was ‘far removed from the example mentioned in the hearing of a human rights lawyer who embarks on a crusade against guerrilla extortion rackets’.

NB: The tribunal also rejected the argument that the appellant was a member of a particular social group, viz ‘lawyers who stood up for peasants rights/students doing human rights work’.

High Court

UK judge accepts that Romanian homosexual suffered insults and discrimination but not persecution within the meaning of the Geneva Convention

On 1st November, a High Court judge, Mr Justice Scott Baker, considered as credible the claims of a Romanian homosexual, Gabi Ragman, that he had suffered insults and discrimination in his home country, but concluded that such treatment did not amount to persecution within the meaning of the Geneva Convention. The judge therefore upheld the ruling of a special adjudicator handed down in June 1999, confirming the decisions of the Home Secretary to turn down Mr Ragman’s claims to refugee status under the 1951 Geneva Convention.

Mr Ragman, who applied for asylum in 1998, said that he started to experience problems after it became known that he was homosexual, when he was in his final university year. In front of a special assembly of students, the university rector affirmed that he had brought shame on the institution. He was allowed to continue his course in physical education but was informed that he would never be allowed to take up the post of teacher because he would pose a potential danger to the children.

‘The right protected by the Convention is not a right to practise as a homosexual — it is the right not to suffer persecution for doing so’, pointed out the judge. ‘Unfortunately for (Mr Ragman), as this case demonstrates, there can be various degrees of hostility towards homosexuals that nevertheless fall short of persecution’, he added.

The law against homosexuals in Romania has changed and homosexual acts between consenting adults in private are now allowed. However, the public’s attitude towards homosexuals still very much remains the same.

Mr Justice Baker recalled that the special adjudicator had himself recognised that homosexuals in Romania were generally subjected to hostility and prejudice. However, the special adjudicator concluded, ‘with regret’, that such treatment, ‘uncaring and cruel though it is, is not of such a nature and severity as to amount to persecution’. According to Mr Justice baker, this ‘is a conclusion with which this court could not possibly interfere’ (Information from p17, Migration News Sheet, December 2000).

New Gender Guidelines in the UK

New Gender Guidelines were introduced on 5 December 2000 (see also DS December 2000,Women refugees): Immigration Appellate Authority, Asylum Gender Guidelines, November 2000, by Nathalia Berkowitz and Catriona Jarvis.

USA

Final rule on asylum procedures and a Proposed Regulation "Asylum and Withholding Definitions", proposed rules on gender-persecution and eligibility of claims of victims of domestic violence "

The Department of Justice (DoJ), Immigration and Naturalization Service (INS), proposed on 7 December 2000 a regulation entitled "Asylum and Withholding Definitions" (Federal Register, Vol. 65, No. 236/7 December 2000, INS no 2092-00; AG Order No. 2339-2000). This rule purports to provide guidance on the definitions of "persecution'" and "membership in a particular social group," as well as what it means for persecution to be "on account of'" a protected characteristic in the definition of a refugee. It restates that gender can form the basis of a particular social group. It also establishes principles for interpretation and application of the various components of the statutory definition of "refugee" for asylum and withholding cases generally, and, in particular, will aid in the assessment of claims made by applicants who have suffered or fear domestic violence. The DoJ believed these issues required further examination after the Board of Immigration Appeals (Board) decision in In re R-A- (Rodi Alvarado Pena), Interim Decision 3403 (BIA 1999) (see summary of the case attached to Documentation Service January 2000). See for this decision www.uchastings.edu/cgrs.

The regulations released are not yet final, and could be abandoned by the Bush administration.

With respect to the burden of proof, under U.S. law, a showing of past persecution qualifies an applicant for refugee status. A showing of past persecution is also strongly indicative of the possibility of future harm. Under the current regulations as modified by the final rule on asylum procedures published in conjunction with the rule (Federal Register, Vol. 65, No.235/6 December 2000, INS Order No. 1865-97, AG Order No. 2340-2000, "Asylum Procedures", effective 5 January 2001), a presumption of well-founded fear applies to applicants who qualify as refugees based on past persecution. The presumption places the burden on the U.S. government to show by a preponderance of the evidence that a refugee no longer has a well-founded fear of future persecution.

The final rule on asylum procedures published in conjunction with the rule broadens the evidence with which the government can rebut the presumption of well-founded fear. The presumption can be rebutted by evidence of a fundamental change in circumstances, including country conditions information, or a showing of a reasonable internal relocation alternative. Citing the observations about domestic violence by the Violence Against Women Office of the Department of Justice, the DoJ takes the stance that these observations seem to support retaining the presumption of well-founded fear of future persecution for those applicants who have established past persecution by an individual non-state actor in the domestic violence context.

Full text of the proposed Rule on asylum definitions available on

http://www.usdoj.gov/eoir/vll/fedreg/fr1_pdf/fr07de00P.pdf

or

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=fr07de00-16

Full text of the final rule on asylum procedures:

http://www.usdoj.gov/eoir/vll/fedreg/fr1_pdf/fr06de00R.pdf

OTHER INFORMATION

Following a request from the Danish Refugee Council, we have received information from Bulgaria, the Netherlands, Norway and the UK

Here is the request:

"As you know we are currently facing a very politicised discussion in Denmark on the reaction towards asylum seekers who commit crimes while in Denmark. There is certain evidence that a very high proportion (more than 50 %) of asylum seekers originating from the republics of the former Soviet Union are charged with crimes during their stay as asylum seekers in Denmark. In some cases it is serious organised crime, but very often it concern charges of petty crimes, small-scale shop lifting, etc. In some cases custody/detention would be possible on basis of the ordinary rules of criminal procedure.

In view of this, the government is now considering changing the legislation in order to make it possible to detain asylum seekers/aliens who have committed - or maybe even only are suspected - of having committed very small scale criminality - cases where it will not be possible to detain Danish nationals on similar offences/charges.

We need any information from other European countries covering the following:

- Legislation/practice specifically on the detention/taking into custody of asylum seekers who have committed, are charged with or suspected of having committed criminal offences;

- Whether and to which extent the rules of criminal procedure discriminate between nationals and non-nationals

We need the information very very soon as the government may come up with a bill very soon, and as there has already been a call from parliamentarians to get information on the practice in other countries vis-à-vis criminal asylum seekers."

 

Please send information on this to Nina Lassen at the Danish Refugee Council (Nina.Lassen@drc.dk) but please cc. your response to Claudia Reinprecht in the ECRE Secretariat (CReinprecht@ecre.org).

BULGARIA

There are not discriminatory regulations concerning asylum seekers who have committed a crime in Bulgaria. General rules of the Criminal Procedure Code are applicable. An individual cannot be arrested/detained for smaller scale of criminal activity, as shop lifting for example. Only in cases of certain serious crimes arrest can be proceeded.

The Bulgarian government has not considered discriminatory measures on the detention/taking into custody of asylum seekers who have committed/ charged with or suspected of having committed criminal offences.

THE NETHERLANDS

In the Netherlands a strict separation exists between penal and asylum-law. If an asylum seeker is suspected of criminal activities he will be detained according to the penal law. There are no legal possibilities to detain a person longer because he is a refugee as this would, of course, be discriminatory. As far as the Vluchtelingenwerk knows, there are no exceptions to this rule.

NORWAY

Last fall there was the same discussion in Norway whether to introduce legislation enabling to detain asylum seekers who have committed a crime under different conditions than Norwegians. Suggestions from certain politicians and others of introducing different practice towards asylum seekers than towards Norwegian citizens in terms of detention because of criminal acts were not accepted by the government. The focus in Norway has been on facilitating the Immigration Directorate for faster processing of the asylum applications of asylum seekers who have been charged with criminal offences, be it petty crime or more serious crimes.

UK

The provisions which govern whether someone who is charged with a criminal offence is detained do not identify asylum seekers per se. However the general criteria, such as ''likelihood to answer to bail'' are more likely to catch those who are marginalised, amongst whom are asylum-seekers.

The rules of criminal procedure don't distinguish between national and non - nationals except in the sense that there are some immigration related offences which nationals by definition cannot commit.

 

RESOURCES

A presentation by Olga Osipova on Non-CIS Asylum-seekers in Russia: Legal problems concerning the detainment and deportation of asylum seekers (attached L010201))

Odissea Project, Odissea. A Research Project on the influx of asylum seekers and displaced persons at the Italian borders and within the European Union; Training of Operators, October 2000, Italian Refugee Council

EBCO European Bureau for Conscientious Objection: Web site:

http://www.terra.es/personal/beoc.ebco/

This website contains several texts by the European Union, the Council of Europe, the OSCE and the United Nations concerning Conscientious Objection (CO), reports on CO in the world, as well as information on the history of conscientious objection in Europe

See for the current situation of conscientious objectors in Yugoslavia:

http://www.terra.es/personal/beoc.ebco/sicko.htm

 

European Journal of International Law’s Website

The recently published issue of the European Journal of International Law (Vol. 11 No. 3) is now on the EJIL web site.

(http://www.ejil.org/journal/Vol11/No3/index.html)

Current Development Reports: EJIL carries a range of 'Current Developments' sections, written by experts and published electronically very soon after the events being reported upon. EJIL contains the full text of all surveys ever published in the European Journal of International Law

(http://www.ejil.org/journal/curdevs.html)

 

Students’ Association as a Resource for Research

ADHESIF: This is an association of students of comparative human rights law in Strasbourg, which has the support of experts in this field. The aim of this association is to assist NGOs working in the area of human rights, producing legal research on questions that NGOs may not have the necessary time or resources to pursue. Their work is voluntary and aims to give a clear synthesis of legal options. Its members are specialists in European human rights protection mechanisms (European Convention of Human Rights and the European Social Charter) and are up-to-date with the latest theoretical and legal developments in this area. They also have easy access to the human rights library of the Institut des Hautes Etudes Européennes and the documentation centre of the European Court of Human Rights. For more information email adhesif@netcourrier.com.

PUBLICATIONS

Dr. Gregor Noll (University of Lund, Sweden), "Formalism vs. Empiricism. Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law". This article is forthcoming in the Nordic Journal of International Law, Vol 70 No. 1 (2001). Many thanks to Gregor Noll for providing us with a copy of his article. Please find it attached as L010301.

Hubert Heinhold. Legal Handbook for Refugees. A Practical Guide Through German Asylum and Alien Law translated by Birgitt Wagner and Dominik Zimmerman, 2000.

Asylum Law remains a controversial topic in public discussions and with the upcoming harmonisation of policy within the EU, it can be expected to remain as such in the future. German Asylum Law, whose provisions have proven to be extremely complicated to be fully understood even by legal experts, has been subject to several alterations in previous years. This completely revised addition of ‘A guide through Asylum and Aliens Law’ accommodates these developments, and the author has made crucial and considerable additions to the information on material asylum law. He also explains in detail all aspects of general alien law that directly affect refugees. As in previous editions, the guide is a clear and thorough overview of individual issues. (Taken from note by Jean-Noel Wetterwald, Representative of the UN High Commissioner for Refugees in the Federal Republic of Germany, January 2000). Available at http://www.proasyl.de/lit/leitfaden2e/leitfaden2ea.htm

Prakash Shah. Refugees, Race and the Legal Concept of Asylum in Britain. London: Cavendish Publishing Ltd, 2000

Following the sweeping reforms in UK law, not only from the Human Rights Act 1998, but also as a response to public outcry over recent incidents involving the safety of immigrants upon entering this country, this book critically examines the impact of legislation on the ability of the displaced to seek sanctuary. The book evaluates the principle of asylum for refugees in the UK and proposes that, when faced with the migration of non-European refugee groups, the response has often been limited. The book provides detailed discussion of African and Asian refugee groups, in particular, the East African Asians, Vietnamese and Tamils from Sri Lanka. Scrutiny is also made of the major legislative reforms of the 1990s, which were directed against he settlement of Asian and African refugees. Further dissections are made of the failure of European human rights law and international norms of refugees protection to secure the principle of asylum.

For information contact

info@cavendishpublishing.com or go to

www.cavendishpublishing.com

Asylum Law and Policy in Ireland. A Critical Guide by Amnesty International Ireland, 2000. Info on www.amnesty.ie

See also Policy Section under Ireland Amnesty criticises Refugee Act

Canada: A Key Point Guide to Refugee Law for Convention Refugee Determination Division Members, Legal Services, Immigration and Refugee Board, November 2000 available on http://www.irb.gc.ca/crdd/kpgrl/kpgrl_e.pdf

Canadian Refugee Law and Practise at a glance (see also for a voluminous and most comprehensive study of Canadian refugee jurisprudence, Interpretation of the
Convention Refugee Definition in the Case Law by the Legal Services, Immigration And Refugee Board, December 31, 1999)

Available on

http://www.irb.gc.ca/legal/papers/credef/index_e.stm

 

CONFERENCES AND MEETINGS

Refugee Studies Centre

International Summer School on Forced Migration 2-20 July 2001

Further details www.qeh.ox.ac.uk/rsc

 

No. 1

February 2001

 

ECRE DOCUMENTATION SERVICE

 

 

 

 

Central & Eastern Europe developments

MATRA programme: Russia, Belarus, Ukraine.

"Effective application writing", Moscow, December 4-6 2000

The first event under the new MATRA project for Russia, Belarus and Ukraine was a follow up course to the May workshop on effective application writing.

Bill Seary led the meeting, together with Rachel Bugler. The seminar brought together representatives of the 13 NGOs present at the first seminar. Representatives from three grant-making organisations also gave presentations on their schemes: Soros Open Society Institute; The MacArthur foundation and Charities Aid Foundation. The agenda for this meeting followed consultations with the NGOs. Participants asked for further clarification on project planning, identification of aims and objectives; advice on what to do when a project changed direction during implementation due to external circumstances, as well as advice on drawing up a budget for a project proposal. The agenda of the meeting reflected these requests. The results of the workshop were encouraging, NGOs were having some success in diversifying their funding sources, although they said that many funders were now more preoccupied with S. East Europe than the CIS. ECRE will continue to provide individual consultancy to NGOs on their project proposals.

 

Bursaries to ELENA course on ‘persecution by non-state agents’ and the concept of ‘internal protection alternative’ 8-10 December; Berlin.

Three bursaries were provided for this course for NGO lawyers from Belarus and Russia. Olga Ossipova of the Memorial Migrants’ Rights network attended the ELENA co-ordinators meeting as a representative of Russia.

Bursaries to ELENA course on "The European Convention on Human Rights in relation to asylum" 26-28 January 2001.

Eleven bursaries were provided for NGO lawyers from Russia and Ukraine. Interpretation into Russian was provided and the course materials will be available in Russian translation.

ECRE’s application to the Westminster Foundation For Democracy:

We heard last week that ECRE’s application for funds to run an advocacy workshop for selected countries from Central and Eastern Europe has been successful. This workshop will take place later in 2001.

No. 1

February 2001

 

 

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Brussels developments

SWEDISH PRESIDENCY PROGRAM

On 1 January 2001 Sweden took over the Presidency of the EU. The Swedish Minister for Migration and Asylum, Mrs Maj-Inger Klingvall, presented their program for the next six months to the European Parliament.

The Swedish Presidency ''attaches particular importance to continuing work on a general, European migration strategy based on the Treaty of Amsterdam'' and ''in accordance with the conclusions of the meeting of the European Council in Tampere, intends to work for the continued development of a common EU policy in the asylum and migration field, in which humanitarian principles and the right to seek asylum will be the foundation.''

Towards a Common Asylum and Migration Policy

‘’Sweden will do its utmost to bring the process of harmonising migration and asylum policies within the EU substantially forward’’. They want to concentrate efforts at achieving concrete results. The main points are the following:

Temporary protection: Sweden attaches great importance to the reaching of an agreement on the directive regarding temporary protection in situations of mass influx, as a first building block towards a common European system for protection, at the JHA Council in May.

However, a certain number of delegations maintain serious reservations on various issues such as standards of treatment, voting procedures, burden-sharing, relationship to asylum procedure, (conditions relating to return). UNHCR has submitted a number of proposals for amendments and ECRE and AI have also written to MEPs (all UNHCR/NGO proposals have been recieved by MEPs subsequently for voting in committee at the end of February).

ECRE has issued an observation paper (January 2001) on the European Commission's draft directive on Temporary Protection. Acting on an initiative from Commissioner Vitorino, the Commission adopted on 24 May 2000 a new initiative for the adoption of a directive introducing minimum standards for granting temporary protection in the event of a mass influx of displaced persons. Its aim is to help Member States to deal in a uniform, balanced and effective way, based on solidarity, with a mass influx of displaced persons, while at the same time ensuring that the asylum system does not collapse and preserving intact the operation of the Geneva Convention.

A common EU temporary protection regime will be based on a set of minimum standards for the treatment of beneficiaries, extended for a duration of a maximum two years, and closely linked to the 1951 Convention regime by making access to asylum procedures obligatory. In many respects ECRE thinks that the draft directive is a welcome set of proposals. Many of them reflect an acceptable minimum. ECRE particularly welcomes the Commission's emphasis that temporary protection is an exceptional measure only. Indeed, ECRE's position on temporary protection is that ''it represents a reasonable administrative policy only in an emergency situation where individual refugee status determination is not immediately practicable and where its application will enhance admission to the territory''.

ECRE is concerned that the draft directive does not address some issues of importance such as: - procedures: the draft directive does not contain any general provision for procedures, and in particular no reference to a right to appeal against the denial of temporary protection which is in contravention of the fundamental principles of international human rights law; - anti-discrimination clause : the draft directive should contain a broad anti-discrimination clause, along the lines of Article 14 and Protocol 12 of the ECHR; - alleviation of non-entree measures : the draft directive does not refer to any essential measures (the lifting of e.g carriers sanctions, airline liaison office functions or penalties on account of illegal entry or presence) consequential to the declaration of a temporary protection regime of benefit for people arriving outside the programme, which would facilitate the admission of refugees seeking protection, or prevent the imposition of non-entree measures to a region from where there are large refugees outflows, which is abnormal.

Temporary Protection report will be voted in EP committee on 27/02 and in plenary on 12/03.

Common asylum procedure: another essential task is to make an active contribution to the formulation of uniform minimum standards governing the rules for asylum procedures. ECRE will soon publish its comments on the Commission proposal.

Family reunification: the goal is to reach a political agreement on the directive regarding family reunification before the May JHA Council.

Austria maintains a general reservation on the text; other Member States, such as France, Spain, and Portugal want to exclude refugees from the application of the text. The Swedish Presidency hesitates, but might accept this in order to finalise the text, or bring all reference together in a separate chapter (suggested by Belgium). SCIFA will discuss the outstanding problems in its meeting of 23/24 February, lobbying should therefore take place next week. CCMe added that the problem of the in/exclusion of refugees will be a controversial issue in every admission/residence instrument.

Reception conditions: a proposal for a directive is being drafted at the moment by the Commission that will probably be presented in March at the JHA Council. Problematic points are:

-The Dublin cases in the admissibility procedure which do not benefit of the guarantees given by the directive. The Netherlands, Spain and France are against provision of reception during admissibility (Dublin) procedures, whereas Germany, Italy and the UK are in favour.

-Rejected first instance cases, where there is a risk that they do not benefit from the guarantees in appeal.

-A positive element is the right of work that is given after a certain time.

ECRE expressed concern in view of a number of issues listed in the discussion paper which was discussed last December. The draft fixes only minimum standards which can give the excuse for certain Member States to lower standards. Member States still have too much discretion. Guarantees in admissibility and in the appeal phase are problematic, especially as regards health care, where only emergency health care is granted. The right to work should be granted from the beginning. Provisions on detention also appear insufficient.

The other important issues on which the Swedish Presidency will focus their work on are : the drawing up of an overarching strategy of greater mainstreaming of migration and asylum issues -as indicated in the Tampere conclusions- in all Community policy areas and in external contacts; the integration and rights of immigrants who are long term residents; the improvement of exchange of information and statistics in order to create a greater degree of openness which will benefit public debate and the image of immigration conveyed to citizens of the EU.

 

 

 

 

 

 

 

 

JUSTICE AND HOME AFFAIRS COUNCIL

On 8-9 February, the EU Ministers for Justice and Home Affairs attended an informal ministerial meeting in Stockholm. The agenda covered the 3 following main issues :

1) Discussion on progress on the implementation of Tampere conclusions

2) Asylum Communication and Single Procedure for Asylum

3) Trafficking of Human Beings

EU Commissioner Antonio Vitorino and the UN's new High Commissioner for refugees, Ruud Lubbers, attended the meeting.

Trafficking of Human Beings

In Stockholm everyone agreed that there is a serious problem of criminal and illegal trafficking in human persons within the EU and that urgent measures needed to be adopted to deal with this problem.

It was therefore decided: - to improve Europol and make its activities more efficient; - to fund projects working to combat trafficking; - to cooperate with non-EU countries from which the victims often originate; - to establish common legislation; - to work on a common definition of trafficking and penalties.

The UK initiative has been discussed at the Meeting. Focus is on support for police cooperation, strengthening border controls, posting of liaison officers, etc.. No safeguards regarding protection obligations are included although UNHCR and other international organisations are preparing an asylum and migration capacity building initiative within the framework of the Stability Pact. The UK initiative smacks of the 1998 EU action Plan of Iraq as a catalogue of repressive measures without taking into account the mixed nature of the flows of migrants, asylum seekers, trafficked persons, etc..

Not only the EU is concerned by this problem, the countries where refugees originate from are too. Thus, an ''Anti -Trafficking Declaration'' was signed in Palermo on 12/13/2000 by Government Ministers from the countries of the Stability pact for South-Eastern Europe. In the Declaration, the Ministers recognized trafficking as a human problem and agreed to address the issue in a regional and co-operative way. They acknowledged the responsibility of the States to fight against trafficking by implementing effective programmes of prevention, victim protection, legislative reform, law enforcement training and prosecution of traffickers. the Ministers also expressed the need for enhanced awareness raising and training programmes for border officials, police, judges, prosecutors, and consular personnel.

The Declaration was signed on the margins of the UN Conference on the signing of the International Crime convention and its Optional Protocol on Trafficking in Human Beings by Ministers from Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the former Yugoslav Republic of Macedonia, Moldova, Romania, Slovenia, Turkey, the Federal Republic of Yugoslavia, and representatives from Kosovo and Montenegro.

 

COMMISSION SCOREBOARD

The Commission scoreboard orders the issues and aims to increase the transparency and visibility of the Commission’s legislative and policy work and commit all actors to agreed deadlines. On 30 November 2000 the Commission has produced the first biannual update of the scoreboard (in accordance with the Commission's undertaking to review it once per Presidency), to review the progress on the creation of an area of ''freedom, security and justice'' in the EU during the French Presidency. This scoreboard is available on the Commission website in the official EU languages.

The Commission has presented or finalised proposals for the following legislative acts and/or communications in the field of asylum and migration: proposal for a directive on temporary protection (adoption foreseen by May); proposal for a directive on minimum standards on reception (proposal due in March); revision of the Dublin Convention (proposal due at the end of February); discussion on the communication on common asylum procedures (comments required before June); communication on a community migration policy (we are not going to react); proposals on Complementary Protection and Refugee Status due in July.

 

BELGIAN PRESIDENCY

The creation of an area of Freedom, Security and Justice in Europe will be one of the priorities of the Belgium Presidency (second semester of 2001). It will aim to carry on the work accomplished in the framework established by the European Council in Tampere. Special attention will be given to Migration and Asylum Policy. The EU must improve the collaboration between Member States in this field. People who flee from situations of war and violence must be able to find asylum and protection. The Belgium Presidency will contribute to the creation of a common European asylum area, the adoption of common asylum procedures, the development of a common migration policy focusing on the situation in the countries of origin, the temporary protection system, a common policy on welcoming and distribution of refugees (such as harmonisation of the social economic status of asylum seekers and refugees). Furthermore, the EU must fight against the trafficking of human beings and illegal immigration. Strengthening common legislation on controls at the external borders of Schengen is therefore essential. Eventually, efforts will need to be made so as to the status of third country nationals who legally reside in a country of the EU, according to the Tampere conclusions, becomes more and more similar to the one of EU citizens

 

No. 1

February 2001

 

 

ECRE DOCUMENTATION SERVICE

 

 

 

 

General developments


ECRE BGM

The ECRE Biannual General Meeting for member agencies is being planned for 15 — 17 June in Rotterdam. The focus is to be the Refugee Convention and the current protection debate. The 3 days will look at the Geneva Refugee Convention and the UNHCR global consultation; learning from our national realities to inform our high level advocacy; the EU asylum agenda. ECRE members have been approached for suggestions for workshops and a draft agenda and registration form will be distributed to members shortly.

The contact for this BGM is Katy Fletcher, kfletcher@ecre.org.

 

Information and Documentation Intern

ECRE has a vacancy for an information and documentation intern, see attached specification. The vacancy is for March 2001 onwards.

Contact Katy Fletcher for more details, kfletcher@ecre.org

 

 

 

LIST OF ANNEXES —

 

I010101 Information and Documentation Internship Description

L010101 Chapman v United Kingdom

L010201 Legal problems concerning the detainment and deportation of asylum seekers
L010301 Formalism vs. Empiricism. Some Reflections on the Dublin Convention on the Occasion of

Recent European Case Law