Diplomatic leak shows 'cold' French opposition to LGBT asylum rights

Philippe Étienne

By Paul Canning

Leaked diplomatic cables obtained by the French news website Rue89.com show 'clinical' French government opposition to EU standards development for LGBT asylum seekers.

The Foreign Ministry cables classified as "RESTRICTED", are from the French representation to the European Union in Brussels, to the Quai d'Orsay, Paris Ministry offices, between June 22 and July 13, 2011. Written by various diplomats, they are all signed by Philippe Étienne, the permanent representative to the EU of France.

In April the European Parliament narrowly voted on including various LGBT asylum measures in a resolution on harmonising asylum procedures across the EU. This included expanding the definition of groups of asylum-seekers 'with special needs' to include people fleeing persecution based on their sexual orientation or gender identity.

The harmonisation proposal is now being negotiated amongst EU governments with a decision due next year.

According to a 5 July cable, "a large number of delegations" (including France) "expressed reservations" during these negotiations about LGBT being included in the 'special needs' definition.

It listed thirteen countries - France, Slovenia, Czech Republic, Austria, Portugal, Netherlands, Spain, Bulgaria, Romania, Greece, Luxembourg, Slovakia, and Sweden - as opposing inclusion in the definition. A fourteenth, Italy, criticised it while welcoming "the consideration of sexual orientation."

Gérard Sadik, coordinator of the National Commission for asylum, La Cimade, told Rue89.com that the Foreign Ministry's approach to the inter-government negotiations was "very homophobic."

Reviewing the cables, Rue89 described seeing a "clinical coldness with which French diplomats asked to remove some basic rights, or to prevent advances that seem obvious under international instruments."

Rue89 says France is not alone in its opposition to another provision, "which seems obvious, however, with regard to human rights", to not allow the detention of vulnerable people where it is established that their health and well-being will deteriorate.

The largest conservative grouping in the European Parliament, the EPP, which includes French President Nicholas Sarkozy's Union pour un Mouvement Populaire (UMP), has previously stated opposition to the harmonisation resolution. However the EPP have also said that there is agreement "amongst all groups" in the parliament on "the careful treatment of people with specific needs."

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EU 'watering down' on asylum protections criticised

Image by European Parliament via Flickr

ECRE has published a detailed legal analysis [PDF] of the key provisions of the Amended Commission's proposal to recast the Asylum Procedures Directive [PDF] published on 1 June 2011.

ECRE regrets to see that the amended Commission recast proposal contains a watering-down of some of the crucial elements of the 2009 Commission recast proposal [PDF], that was at a deadlock within the Council. ECRE considers that, in practice, a number of these changes would create greater inefficiency as well as undermine essential procedural safeguards.

For instance, more flexibility is built in for member states when they are confronted with large numbers of asylum applications to derogate from procedural standards regarding: registration of applications within maximum 72 hours; the authority responsible for conducting personal interviews; and the conclusion in principle within six months of an asylum procedure.

If member states are given the flexibility to extend the time limit for registration of the asylum applicant up to seven working days on the basis of vaguely defined criteria, such as the fact that a large number of third country nationals request international protection simultaneously, this increases the risk of potential asylum seekers being returned before being registered as applicants at all.

The new proposal also allows for legal assistance for asylum seekers to be provided by government officials or specialised services of the State. This is a step backwards even with regards to the current directive, as it does not ensure that asylum seekers will get independent legal assistance.

ECRE also regrets that the amended Commission recast proposal leaves the provisions regarding safe countries of origin, safe third countries and European safe third countries largely untouched thus ignoring their potentially devastating impact on access to protection for asylum seekers. The proposal would allow member states to deny people access to the asylum procedure on the assumption that they can find protection in another country through which they might have transited before coming to the EU.

ECRE welcomes in general the principle of frontloading and robust decision-making in the first instance that the amended proposal continues to promote. However, ECRE reminds that frontloading is not about the acceleration of procedures for its own sake and requires having all necessary safeguards from the very start of the asylum procedure.

For further information:

• Comments from the European Council on Refugees and Exiles on the European Commission Proposal to recast the Asylum Procedures Directive
• ECRE Weekly Bulletin 10 June 2011, Commission presents new proposals on asylum procedures and reception [PDF]

 

Related articles

• Visualising asylum disparities in the European Union (madikazemi.blogspot.com)
• Report: In six EU countries refugee protection "significantly divergent" (madikazemi.blogspot.com)

Visualising asylum disparities in the European Union

Source: IntLawGrrls

By Jaya Ramji-Nogales

Lest you thought that "refugee roulette" was a uniquely American affliction, the European Council on Refugees and Exiles, relying on statistics published by the UN High Commissioner for Refugees, has published four stunning maps of asylum disparities in the European Union. Overall, grant rates for asylum and complementary protection range from 2% in Ireland and 3% in Greece to 61% in Finland and 73% in Switzerland. (The map also reports a grant rate of 100% in Portugal, which awarded protection to only 57 refugees in 2010.)

Breaking down the figures by country of origin, Afghans faced a grant rate for asylum and complementary protection varying from 8% in Greece to 47% in Germany to 91% in Italy. Similarly, Iraqis saw grant rates of 10% in Greece, 54% in the Netherlands, and 79% in Belgium. And grant rates for Somalis ranged from 13% in Greece to 55% in the United Kingdom to 97% in Switzerland.

What gives? We've posted before about the disastrous state of Greece's asylum system, but why do the data show such varying grant rates for those seeking protection from three countries particularly known for severe and widespread human rights abuses?

A report published last month by UNHCR on comparative EU law and practice with respect to asylum seekers fleeing indiscriminate violence aims to shed some light on these disparities. The report examines the implementation of Article 15 of the EU Qualification Directive, particularly subsection (c), which offers "subsidiary protection" for those who do not qualify for refugee status but face a serious and individual threat of indiscriminate violence in armed conflict.

The report begins by noting that Afghans, Iraqis, and Somalis together represented 20% of asylum applicants in the EU in 2010. They were granted protection, whether it was refugee status or subsidiary or complementary protection, in the first instance, at average rates of 49% for Afghans, 66% for Iraqis, and 77% for Somalis.

Breaking apart the data, even among only six EU countries - Belgium, France, Germany, the Netherlands, Sweden, and the United Kingdom - there were enormous variations in refugee status recognition rates in the first instance.

Afghans were granted asylum in the Netherlands at a rate of 2.6% and in Belgium at a rate of 35%; Iraqis faced a grant rate of 5.8% in the Netherlands and 55.8% in Germany; and Somalis were recognized at a rate of 1.8% in the Netherlands and 74.3% in Germany. UNHCR attributed these disparities to inconsistent interpretations of the 1951 Convention Relating to the Status of Refugees.

Moving to first-instance decisions on subsidiary protection, we see that Germany, relatively generous in granting asylum, offered subsidiary protection at rates of 5.4% to Afghans, 0.4% to Iraqis, and 15.1% to Somalis. The Netherlands, rather stingier in asylum grants, offered subsidiary protection to Afghans at a rate of 21.9%, to Iraqis at a rate of 32.9%, and to Somalis at a rate of 32.5%. Though Germany's overall international protection rate (refugee recognition plus subsidiary protection) for Iraqis and Somalis was higher, the Netherlands granted international protection to a higher percentage of Afghans.

EU member states appear to interpret Article 15(c) in very different ways. Indeed, the six nations studied could agree on only one city in one region of one country that meets the requirements of 15(c): Mogadishu, Somalia. Some of these states read the Article's provisions narrowly, requiring extremely high levels of indiscriminate violence to avoid the "pull factor" of group recognition. Some countries take into account individual risk in armed conflict as an additional factor in favor of protection. Others disqualify even Somalis as having "internal protection alternatives" in their country of origin. And each member state studied has a different national form of complementary protection.

While UNHCR offers hopeful recommendations to harmonize interpretations of the Refugee Convention and Article 15(c), it is hard for yours truly to shake the nagging thought that, in the absence of an injection of significant resources, the expansion of mechanisms of protection simply creates more opportunity for inconsistency in asylum adjudication.

Related articles

• Report: In six EU countries refugee protection "significantly divergent" (madikazemi.blogspot.com)
• In Poland, refugees left without protection unless they're Christian? (madikazemi.blogspot.com)
• 60th anniversary of Refugee Convention (madikazemi.blogspot.com)

In Poland, refugees left without protection unless they're Christian?

Image by gibranparvez via Flickr

Source: ECRE

The Belgian Refugee Council (CBAR – BCHV) have published a report highlighting that Poland does not always grant refugee status, even when it should, because of a very strict interpretation or sometimes misinterpretation of the refugee definition. The interpretation applied by the Polish authorities is often not in line with UNHCR guidelines, UNHCR handbook and the jurisprudence of the European Court of Human Rights (ECtHR).

The majority of all asylum applications in Poland come from Russian nationals (80%), mainly Chechens, followed by Georgia (11%), Armenia (1%), Belarus (1%), Ukraine (1%) and other nationalities (6 %). In 2010, Belgium received on average 58 asylum seekers every month who had entered the EU through Poland. According to Eurostat figures, in 2010, Belgium requested Poland under the Dublin system to examine 1,254 asylum applications. France asked Poland to assume responsibility for 1,302 people. Germany, Austria, the Netherlands and Switzerland did the same for 1,124, 818, 748 and 307 people respectively.

On the positive side, in addition to refugee status and subsidiary protection, Poland can also grant 'tolerated stay permits' for an indefinite period of time, based on articles 2 (right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labour), 5 (right to liberty and security), 6 (right to fair trial) or 8 (right to family life) of the European Convention on Human Rights and the UN Convention on the Rights of the Child.

The report is based on a mission to Poland in September 2010 under the direction of MEP Bart Staes, aiming to assess the situation of asylum seekers in Poland particularly in the context of those who have been sent back to Poland from Belgium under the Dublin Regulation. In 2010, only 14.6% of the 6,500 applicants who sought asylum in Poland were granted international protection.

In January, a ruling by the ECtHR put into question the assumption upon which the Dublin system is based, that is, that all EU Member States respect fundamental rights and that is therefore safe to automatically transfer asylum seekers between EU countries.

Poland's foreign minister returned from a trip to Tunisia 17 May with 16 Christian refugees who had found their lives upturned by turmoil in North Africa.

Poland described the move as a gesture of symbolic support for Christians in Africa and as an act of solidarity with Tunisia, which has been overwhelmed by refugees fleeing the violence in neighboring Libya.

"Poland looks after the rights of Christians in the world. This is our gesture of solidarity with persecuted Christians," Foreign Minister Radek Sikorski told the refugees as they prepared to board the plane to Poland a day earlier.

One analyst described the move as a clear call to the rest of Europe to take in more refugees and have more open borders. Marcin Zaborowski, director of the Polish Institute of International Affairs, said that Poland believes "Europe should be more open" and that the government is urging greater openness as it prepares to take over the rotating presidency of the European Union on July 1.

The Foreign Ministry described the six adults and 10 children as political refugees from Eritrea and Nigeria who had been in refugee camps in Libya until they fled the civil war there to Tunisia.

Related articles

• In Europe, asylum seekers 'right to try their luck in a specific country' (madikazemi.blogspot.com)
• Asylum seeker numbers: international trend continues download (madikazemi.blogspot.com)
• In Hungary, immigration detention criticised: not enough food, forced inactivity (madikazemi.blogspot.com)

In the EU, no independent monitoring of joint border operations

Image by noborder network via Flickr

Source: ECRE

Ahead of the European Council meeting today, the European Commission, the European Parliament (EP) and Council of the EU reached a political agreement on the review of the mandate of the EU Border Agency Frontex.

Frontex will now be able to acquire its own equipment, to call all deployed teams "European Border Guard Teams", and to transfer personal data of those persons suspected of being involved in cross-border criminal activities to EU law enforcement agencies. Frontex will have also a stronger role in joint return operations. Regarding fundamental rights, a Consultative Forum on Fundamental Rights will be established and a Fundamental Rights Officer will be appointed within Frontex.

Amnesty International (European Institutions Office) has welcomed the clarification of the applicable fundamental rights framework to Frontex operations but regrets the missed opportunity to ensure more transparency and accountability with regard to border management practices.

"Unfortunately, some crucial elements have been sacrificed by the European Parliament for the sake of reaching a deal. Contrary to what the Commission had proposed, there will be no requirement for “independent” monitoring of joint return operations and for any reports to be shared with the Commission or otherwise be made public."

"The Agency will not be able to invite independent observers to participate in Frontex operations, unless Member States agree – which is not very likely," said Anneliese Baldaccini, from Amnesty International.

EU Home Affairs Commissioner Cecilia Malmström welcomed the agreement, confident that “this proposal will ensure that, in the performance of their tasks, members of Frontex teams fully respect fundamental rights and human dignity, including the principle of non-refoulement”.

The agreement still needs to be formally approved by the European Parliament, most likely in September, and then by the Council after the EP's plenary vote.

• ECRE and Amnesty International, Joint Briefing on the Commission proposal to amend the Frontex Regulation [PDF]

Related articles

• Four ways the EU can stop migrants drowning as they flee North Africa (madikazemi.blogspot.com)
• NGO coalition calls for new EU asylum agency to end discrimination (madikazemi.blogspot.com)
• In Europe, asylum seekers 'right to try their luck in a specific country' (madikazemi.blogspot.com)
• The E.U.'s Balancing Act on Open Borders (nytimes.com)

Greece to build wall to keep migrants out

Image by Getty Images via @daylife

Via Ecre

Greek Public Order Minister Christos Papoutsis announced the decision to build a 12-km wall along the border with Turkey, in an attempt to prevent irregular migrants from reaching Greek territory. Papoutsis considers that Greece has exceeded its limit in its capacity to accommodate migrants. According to him, 100, 000 people crossed irregularly the Greek/Turkish border last year.

The decision has been criticised by ECRE, the Greek Council for Refugees, Greek NGO Aitima and the UNHCR which considers that this meaure could also prevent refugees from entering EU territory, thereby denying their legitimate right to seek asylum.

“Regardless of how tall, how strong a wall would be, many people trying to cross this border left Afghanistan, Iraq and Somalia fleeing for their lives, they can´t just stay at home. It's Europe's responsibility to allow them to reach safety and respect their right to seek asylum”, said Bjarte Vandvik, ECRE's Secretary General.

The European Commission said that fences and walls have proved in the past to be short term measures that do not help to address migration flows in a structural manner. The Commission asked Greece to instead set up structural measures to discourage traffickers and smugglers and to build an efficient asylum system.

In addition to the fence, the Greek authorities announced that they are considering to using Dutch ships as sea-based detention centres for irregular migrants. The Netherlands have used such boats in the past for this purpose receiving strong criticism from the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

According to the CPT, these boats are characterized by confined spaces, poorly ventilated cells, high levels of humidity and a lack of rest areas. The CPT urged the Netherlands to “cease, at the earliest opportunity, to use boats as facilities for immigration detainees”. One of the boats closed in 2009, the second is expected to close in 2012.

Related articles

• U.N. refugee agency warns on Greek anti-migrant fence (reuters.com)
• Asylum is a Greek word | Petros Papaconstantinou (guardian.co.uk)
• Greek asylum facilities so over crowded "detainees cannot lie down to sleep" (madikazemi.blogspot.com)

New survey on legal aid for asylum seekers in Europe

Image via Wikipedia

The European Council on Refugees and Exiles (ECRE) and ELENA, the European Legal Network on Asylum have published a survey on legal aid for asylum seekers in Europe.

The survey provides a comparative overview of the provision of legal aid for asylum seekers in 19 countries across Europe. It gathers information not only on the role and tasks of those advising, assisting and representing asylum seekers but also on related aspects of the asylum procedure.

The research reveals positive developments in the provision of legal aid as well as restrictions on access to legal advice and representation in practice. Among the key findings of the survey are:

• the crucial role of NGOs in the provision of legal aid to asylum seekers; 
• the obstacles faced by asylum seekers in accessing legal aid in detention or at the border as well as in accelerated asylum procedures; 
• and the diverse practice of States with regards to the role of means and merits testing in determining eligibility for legal aid. 

In conclusion, ECRE and ELENA provide recommendations to improve the provision of legal aid for asylum seekers in Europe.

• ECRE ELENA Survey on Legal Aid for Asylum Seekers in Europe October 2010 (PDF)

Now Belgium stops sending asylum seekers back to Greece

Source: ECRE

Belgium’s Secretary of State for asylum, Melchior Wathelet, has announced that Belgium will not transfer asylum seekers to Greece and will give priority to the examination of these asylum claims. Amnesty International, CIRE, the Belgian Committee for Aid to Refugees, ECRE, JRS-Belgium and Flemish Refugee Action welcomed this decision but demanded a complete revision of the Dublin Regulation, which allows refugees to be sent back to countries that do not provide sufficient protection.

The UN Special Rapporteur on torture, Manfred Nowak, has also called this week on the EU to stop transfers of asylum seekers to Greece and to renegotiate the Dublin II Regulation.

Belgium’s decision follows the reception of a letter in which the European Court of Human Rights states that pending the adoption of its judgment in MSS v. Belgium and Greece - which assesses whether sending asylum seekers back to Greece violate the European Human Rights Convention-, all transfers will be temporarily suspended in any case where an asylum seeker challenges his or her return to Greece.

The UK and Norway have also stopped tranfers to Greece and are applying the sovereignty clause and therefore assuming the examination of these asylum applications. The Netherlands is suspending transfers for those who appeal the decision.

ECRE supports the establishment of a mechanism to suspend transfers of asylum seekers to states that cannot guarantee a full and fair examination of their claims or proper receptions standards. Suspension should also be accompanied by supporting measures that seek to rectify the asylum situation in a Member State.

Sources:

• CIRE, Flemish Refugee Action, the Belgian Committee for Aid to Refugees, JRS-Belgium Amnesty International and ECRE: The EU should stop sending asylum seekers to countries that do not guarantee their protection
• UN Special Rapporteur on Torture presents preliminary findings on his Mission to Greece
• Melchior Wathelet, Suspension temporaire des transferts des demandeurs d’asile vers la Grèce

For further information:

• ECtHR to assess whether sending asylum seekers back to Greece violate the European Human Rights Convention, ECRE Weekly Bulletin 3 September 2010
• UK suspends return of asylum seekers to Greece, ECRE Weekly Bulletin 23 September 2010
• ECRE, Comments on the proposal to recast the Dublin Regulation 
• ECRE, Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered

The Netherlands will not return asylum seekers to Greece

Image via Wikipedia  

Source: ECRE

Following a letter from the European Court of Human Rights, Dutch Justice Minister Ernst Hirsch Ballin announced on 6 October that the Netherlands would no longer send asylum seekers back to Greece. This suspension will affect 240 asylum seekers who should be returned under the Dublin Regulation. Dorine Manson, Director of the Dutch Council for Refugees, welcomed this news, saying that they had been fighting for this for a long time. She recalled that there was a huge difference in the recognition rate for Somalis who have a 65% chance to receive protection in the Netherlands vs. none in Greece.

On 20 September, the UK Border Agency also decided to suspend the return of asylum seekers to Greece, pending the result of a case that has been referred to the Court of Justice of the European Union (CJEU) from the UK Court of Appeal. In Denmark, after the Danish authorities decided to forcefully return hundreds of asylum seekers to Greece, the Danish Refugee Council has stopped the return of 15 asylum seekers through the European Court of Human Rights. In its proposal to amend the Dublin Regulation, the European Commission has proposed to introduce a mechanism for the temporary suspension of transfers to particular Member States for example if the level of protection that falls below Community standards.

• Nu, ‘Asielzoekers voorlopig niet naar Griekenland’
• Danish Refugee Council, 'Denmark sends hundreds of asylum seekers to uncertain fate in Greece'

More concern over EU deportations to Iraq, demonstration planned

Image by Simon-And-You via Flickr  Source: IRIN

(Our note: although no LGBT cases are cited, as UNHCR says, information on cases has not been provided to them so returnees could include LGBT. Also, as one knowledgeable person told us, it is perfectly possible that closeted LGBT could be amongst the returnees.)

The UN Refugee Agency (UNHCR) has expressed concern about the growing number of deportations of Iraqi asylum-seekers from Western Europe in the last two months.

Special charter flights to take failed asylum-seekers home have increased in frequency, and Iraqis are being returned to parts of the country which are still unsafe, in contravention of UNHCR guidelines for the handling of Iraqi asylum applications, it says.

The deportations are handled by Frontex, a Warsaw-based agency set up to coordinate operations between European Union (EU) member states in the field of border security, and their planes can carry returnees from several different countries. The most recent (on 22 September) had failed asylum applicants from Sweden, Norway, the Netherlands and the UK.

Destinations included Baghdad, Ninawa, Kirkuk and Salah ad-Din - all areas the UNHCR considers unsafe.

One of the UNHCR’s complaints is that the information provided by those countries is usually sketchy, varies from country to country and is given only very late in the process. In the case of last week’s flight, Sweden told the UNHCR the names and dates of birth of those being sent home, but not their destinations. The UK provided details of where its rejected claimants were going but not their identities.

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Can EU law protect asylum seekers in these straitened times?

Source: The Guardian

By Rosalind English

The details of the law underlying the case of Saeedi are complex – but its message is simple. Under EU law, member states have to provide minimum standards for the reception of asylum seekers.

But the obligations themselves relate to another body of law that exists, at least philosophically, outside the boundaries of the economic imperatives of the European Union: social and economic rights.

When these were attached to the Maastricht treaty in 1992 as the social chapter, Britain used its opt-out to avoid them becoming part of British law. On this basis, Mr Justice Cranston in the high court said that these rights were not directly enforceable against the UK – that the charter was an aid to interpretation only.

Now, on a concession by the home secretary, the court of appeal has ruled this week that the EU charter of fundamental rights can be directly relied upon in the UK. The charter combines the rights guaranteed by the European convention of human rights with the fundamental social rights set forth in the European social charter and in the community charter of fundamental social rights of workers. Whether this will be the new dawn for social and economic rights, or the last straw to break the back of the camel already overburdened with obligations under EU law, only time will tell.

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'Inhuman' living conditions for asylum seekers at Athens airport

Image by khowaga1 via Flickr

Source: Ecre

Médecins Sans Frontieres and Aitima have published statements on detention at the Athens “Eleftherios Venizelos” airport in Greece. According to MSF, undocumented immigrants who are detained at the Athens airport police station suffer from inhuman living conditions in overcrowded rooms.

The report (PDF, Greek) documents that there are currently nearly 300 people detained, often for periods up to 40 days. There is a lack on legal aid and advice, and important shortcomings on the distribution of basic items of personal hygiene or of medical care. Furthermore, detainees have no access to open air during their detention. MSF has witnessed similar detention conditions in other places of detention all over Greece.

On the other hand, the Greek NGO AITIMA published a report (PDF), the “Programme for the provision of legal and social support to asylum seekers transferred to Greece under the Dublin II regulation’’ on the situation of asylum seekers who are returned to Greece under the Dublin Regulation, denouncing that the Airport Police Department provides no interpreters and no legal or social support to returnees. 

Asylum seekers who apply for asylum in Greece for the first time are being detained in dire conditions until their fingerprints have been examined, a procedure which is also applied to asylum seekers who are returned under the Dublin Regulation. The duration of the procedure ranges from a few hours to up to four days, which has particularly adverse consequences for vulnerable persons.