Admissibility, responsibility and safety in European asylum procedures

In the implementation of their international obligations, European and EU states have devised sophisticated asylum systems based on complex procedural tools. In some cases, tools are designed and used for the purpose of avoiding responsibility for refugees, because they allow claims to be dismissed as inadmissible before looking at the substance of the claim.

The recent EU-Turkey deal and the European Commission’s proposal for harmonised asylum procedures under an Asylum Procedures Regulation, for instance, revolve around concepts such as “safe third country” and “first country of asylum”.

A report launched today by the Asylum Information Database (AIDA), managed by the European Council on Refugees and Exiles (ECRE), documents the limited and fragmented application of admissibility and safe country concepts in 20 European countries.

“The latest reform of the Common European Asylum System brings the concepts of admissibility, responsibility and safety to the forefront of European asylum procedures, by introducing an obligation on Member States to deem applications inadmissible on the basis of ‘first country of asylum’ and ‘safe third country’ grounds”, says Minos Mouzourakis, AIDA Coordinator.

“Yet such a move seems ill-fitted in the absence of evidence-based knowledge on the use and interpretation of these concepts throughout the continent.”

The recent introduction of broad lists of “safe third countries” in countries such as Hungary, as well as the pressure placed on Greece to apply the concept following the EU-Turkey deal, run counter to practice in countries with longer-entrenched safe country concepts in asylum procedures. Countries with longer experience, and often judicial guidance, in the application of the “safe third country” concept have clarified that an asylum seeker cannot be considered to have a “sufficient connection” with a third country merely on the basis of transit or short stay.

The report also discusses the implementation of the Dublin Regulation and the emergency relocation scheme, two instruments regulating the allocation of asylum responsibility within the EU. As far as relocation is concerned, despite extremely slow rates of implementation in Europe, countries such as France and Portugal have designed processes for the swift processing of claims by persons relocated to their territory and their allocation to the different regions where applicants will be accommodated.

Drawing on the AIDA report, ECRE calls on European countries and EU institutions to:

  • Proactively publish detailed statistics on key elements of their asylum procedures, such as inadmissibility decisions and the application of the Dublin Regulation, to promote evidence-based debates on the functioning of and challenges facing their asylum systems;
  • Retain the 1951 Refugee Convention as the standard of international protection and apply the “first country of asylum” and “safe third country” concepts only to an asylum seeker who has already been recognised as a refugee or may be recognised as a refugee in line with the Convention, and may effectively benefit from such protection;
  • Rigorously interpret the “sufficient connection” criterion for the purpose of the “safe third country” concept, so as to refrain from declaring asylum applications inadmissible on the sole reason that an asylum seeker has transited through a country considered safe;
  • Firmly suspend the use of the Dublin procedure in respect of countries demonstrating human rights risks, in line with national and European jurisprudence. Clear suspension of Dublin procedures will ensure legal certainty to asylum seekers, but also more efficient administration and allocation of national authorities’ administrative and financial resources;
  • Step up their efforts to honour the commitments set out in the Relocation Decisions, building on experience and good practices developed by the Member States implementing relocation to date. States should also refrain from initiating Dublin procedures regarding the countries benefitting from the relocation scheme, Italy and Greece, as the application of the Dublin Regulation is counter-intuitive to the aim of alleviating pressure on those countries’ asylum systems.

Notes to Editors:

The Asylum Information Database (AIDA) is a database managed by ECRE, containing information on asylum procedures, reception conditions and detention across 20 countries. This includes 17 EU Member States (Austria, Belgium, Bulgaria, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, Netherlands, Poland, Sweden, United Kingdom) and 3 non-EU countries (Switzerland, Serbia, Turkey).

The overall goal of the database is to contribute to the improvement of asylum policies and practices in Europe and the situation of asylum seekers by providing all relevant actors with appropriate tools and information to support their advocacy and litigation efforts, both at the national and European level.

In Malta, the AIDA partners and researchers are aditus foundation and JRS Malta.

THE REPORT IS AVAILABLE HERE.


“Journeys of Hope: We urge Malta to grant safe and legal access to refugees”

Press Statement on World Refugee Day 2016

On World Refugee Day 2016 Jesuit Refugee Service Malta, aditus foundation, Integra Foundation and the Malta Emigrants’ Commission underline the need to allow refugees safe and legal access to protection.

To highlight the urgency of this call, JRS Europe yesterday launched ‘Journeys of Hope’, a collection of personal encounters with men, women and children as they hope, yet struggle, to reach European safety. Gathering stories from Greece, the Former Yugoslav Republic of Macedonia, Serbia, Croatia, Italy, Austria and Germany, ‘Journeys of Hope’ is a stark reminder of the difficulties refugees face as they are repeatedly denied access to their most basic fundamental human rights.

Importantly, it talks about the dangerous journeys they must take in order to survive.

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Fatumo has been living in Malta for six years. Malta believes she does not qualify for refugee status, yet has granted her subsidiary protection on the basis of the conflict that has been tearing Somalia apart for the past 20 years.

Her three children are living with her sister in Kenya, but life in the refugee camp is extremely tough and their futures uncertain. Fatumo doubts she’ll ever see her children again.

Subsidiary protection, like refugee status, acknowledges that it is impossible for beneficiaries to return back to their homes. It is renewed every three years for as long as is necessary. Many subsidiary protection beneficiaries have been living in Malta for several years.

Unlike many EU Member States, Malta does not permit beneficiaries of subsidiary protection to be reunited with their families. This right is only granted to refugees, denying all others a future with their close and loves ones. Many of these persons have made Malta their homes, having arrived here several years ago.

Nonetheless, their daily lives are consumed by their anxiety about the safety of their spouses and children.

Mohamed chose not to risk his life by getting on the little boats leaving Libya. Instead, and because he had the means to, he obtained a false Libyan passport and used it to fly to Malta. Upon arrival he was arrested, and subsequently faced criminal charges in Court. He was found guilty and sentenced to six months imprisonment.

A young Libyan man, Mohamed felt he had to flee Libya in order to survive.

Article 31 of the 1951 Refugee Convention prohibits States from penalizing refugees who irregularly enter their territory. The Article understands the difficulty faced by most refugees in obtaining legal access to a State that could offer them the protection they need.

We welcomed Malta’s recent review of its detention policy insofar as it embraced this understanding within the administrative context.

Yet we underline the inconsistency of this review with legislation that imprisons the same refugees who would be exempt from detention had they risked their lives to enter Malta.

Providing safe and legal ways to reach a place of safety is the most effective way to prevent refugees from resorting to unsafe and irregular means of travel to access Europe, thereby saving lives. We feel there is much Malta can do to advocate for such means at EU level, including urging a more meaningful resettlement commitment and encouraging a broader and more proactive use of humanitarian visas.

Yet we also feel Malta may make significant contributions towards preventing additional dangerous and illegal journeys, specifically:

  1. Agree to reunite at least 500 spouses and children with their family members (beneficiaries of subsidiary protection) already living in Malta within the next 12 months; and
  2. Provide refugees an exemption from prosecution for using false documents to travel to Malta.

JRS Malta, aditus foundation, Integra Foundation and the Malta Emigrants’ Commission are eager to explore possibilities of cooperating with Government in the implementation of these measures.

We are confident that our joint efforts could facilitate the process in a spirit of cooperation and mutual understanding.

For further information:

 JRS Malta – Katrine Camilleri (79858099)

aditus foundation – Neil Falzon (99892191)

Integra Foundation – Maria Pisani (79618367)

Malta Emigrants’ Commission – Mgr. Alfred Vella (99440025)

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Announcing Two New Projects!

aditus is pleased to announce two exciting new projects we’ve taken on, in cooperation with four esteemed partner organisations.

Project Integrated is an undertaking shared by aditus, JRS Malta and Integra Foundation, with the support of UNHCR Malta. The three Maltese NGOs will integrate their best efforts, until the end of 2015, for the sake of better integrating beneficiaries of international protection in the local context – to help them profit fully from their human rights and to restore their pride as independent and successful contributors to society.

In anticipation of the integration policy which Malta is meant to publish this year, Project Integrated will work to help beneficiaries see some of the everyday benefits that come directly, in theory, from their protected status. In education, healthcare and employment, for example, many obstacles remain, even as beneficiaries have the right to all three: We intend to advance integration through counselling, facilitating access to services, monitoring the practical lapses in integration and ongoing advocacy with the Maltese authorities and the press.

In particular, aditus will offer its legal expertise to Project Integrated through the further mobilisation of its Pro Bono Unit. aditus will also build on the insights gained in our earlier projects, especially the Stakeholder Information Sessions, to organise capacity-building activities with its partners.

Next, as a member of the European Network on Statelessness, aditus will be the Maltese focal point for the project Protecting Stateless Persons from Arbitrary DetentionThe European Network on Statelessness is a group of NGOs, academic initiatives and individual experts with over 90 members in 30 European countries. The Institute on Statelessness and Inclusion will be an expert partner on the project; and in March, American photojournalist Greg Constantine will be in Malta to document the problem. Nowhere People, the website featuring his work on statelessness, is here.

Protecting Stateless Persons from Arbitrary Detention, a three-year project, will address the increase in Europe of immigration detention, including as a form of punishment, and the state criminalisation of irregular migration, the lack of protection for the stateless and the gulf between the rights afforded to the stateless on paper, according to legal standards, and the actual realisation of those rights. The gulf, in fact, leaves many stateless persons vulnerable to arbitrary detention in Europe.

Protecting Stateless Persons will study each national reality of statelessness, offer region- and country-specific tools to protect the stateless, train lawyers, NGOs and others to use those tools and advocate for protection.


aditus & JRS Malta comment on proposed changes to national asylum legislation

Together with JRS Malta we’ve submitted technical comments on proposals to amend the Refugees Act, as Malta commences the exercise to transpose the EU’s recast Qualification, Reception and Procedures Directives.

Our comments were sent to the Ministry for Home Affairs and National Security, and technical dialogue is currently underway to work on the finer details of the transposition exercise. We’re keen to continue this dialogue, particularly for the transposition of the recast Reception Directive since this will require a profound revision of Malta’s reception policy.

The document also contains a table comparing the Directive with current and proposed legislation.

Summarily, this is what we’ve highlighted in our comments:

Overall, the Directive’s measures seem to be adequately provided for in the proposed amendments. Noting that the Qualification Directive was not significantly amended in the recast process, it is appreciated that the changes required in the Maltese context in order to fully transpose the Recast Directive are in fact minimal. This further highlights the importance of effective consultation for the Recast Reception Conditions and Procedures Directives, both heavily amended in the recast process and having a serious impact on Malta’s asylum regime.

With regard to the general transposition approach, we fail to understand why this is being conducted in a piece-meal fashion instead of one that approaches all three amended Directives in a coherent, efficient and targeted manner. The present exercise seems to focus on the Qualification Directive, yet already contains significant elements of the other Directives yet without seeing them through in a complete fashion.

Despite the overall compliance with transposition requirements, a number of concerns may be highlighted:

  1. secondary legislation is not the place for recognising the fundamental human rights of any person;
  2. the rights of beneficiaries of subsidiary protection are abstract and undefined
  3. no definition, or defining criteria are provided for “applicants in need of special procedural guarantees”.

The comments can be downloaded here.


International Anti-Racism day and Pan-European Anti-Racism Week

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Every 21 March is the International Day for the Elimination of Racial Discrimination, first proclaimed by the UN in 1966. This year, today’s observances fall within the Action Week Against Racism 2013, an initiative of UNITED for Intercultural Action, the pan-European, 48-country network against nationalism, racism and fascism and in support of migrants and refugees.

The theme for the Action Week Against Racism (16-24 March) is Who Says We Don’t Fit Together? Value Diversity!

As part of our human rights mission and in partnership with UNITED, it is our hope at aditus foundation & JRS Malta that public and private organisations and individuals in Malta will reflect and act immediately upon the lasting need to end racism everywhere, in all its forms.

“We ask that adults take the lead in speaking to children and youth about racism, that it may become a vital subject in our homes and schools. We ask that adults of all races and origins be good examples to one another with respect to ensuring the fundamental human rights of all persons, irrespective of race.

We ask that children and youth talk to their peers, parents, guardians and teachers about accepting and embracing the racial diversity that they see all around them.” Dr. Neil Falzon, Director, aditus foundation & Dr. Katrine Camilleri, JRS Malta.