Deaths at Sea – Asylum Seekers and Illegal Entry

August 1, 2012 § 1 Comment

(Residents and police try to rescue refugees from an asylum boat being smashed by violent seas against the jagged coastline of Australia’s Christmas Island Photo: AP)

This month disturbing news revealed that 54 people died in an attempt to reach Italy from Libya by boat, one man from Eritrea survived, the rest perished from dehydration in a 15 day ordeal.

This blog aims to provide a legal and realistic narrative of the reasons why deaths at sea continue to occur and who is to be held accountable.

A Personal Account

Before I begin this blog, I want to draw attention to a story I came across during my reading. It is written by a Somali woman who was smuggled into Europe. Her personal account exposes some of the realities of smuggling and the dangers people face in escaping persecution.

“I remember living a medium life. Me, my husband and eight children. I remember my baby calling, “Mama, mama”. Quite normal.… But the war breaks. We fled. Far away to south Somalia….Two months on. Everything’s out of hand. We run away from the civil war. Me, my husband and eight children.… And we go from Somalia by boat towards Kenya. But suddenly the boat is sinking. The boat is overloaded…. The boat broke. Water breaking into us…. I can’t swim. The boat sinks. Who will rescue us?…. 200 people are dying, drowning. I’m losing my family to the sea. Five of my daughters are lost…. And my eldest son, he’s just begun his life, he’s finished university. He’s lost. That makes six of my children. Dead in the sea, in one day.… Suddenly, an Italian tourist boat is passing.… people come to rescue us. They grab my baby, who I’m holding. And another child of mine…. All the time my baby’s calling “Mama, mama.” Suddenly, I am hauled into the boat like a baby myself…. I am crying. My whole body. Crying.… Do you hear me?… I cannot forget that day. Although I’m here before you today, you can’t have imagined the life of one Somali woman.…  am breaking my silence. The world should know my life, my baby calling “Mama, mama”. The world should hear this life.” Found in research commissioned by the Information Centre about Asylum and Refugees in the UK (ICAR) at http://www.icar.org.uk/somalicommunityreport.pdf

The Factual Reality

Though the above stories are horrendous, it’s a narrative that continues to take place as persecuted individuals continue to employ criminal smugglers in attempts to find sanctuary within Europe. Figures from UNHCR show that since the 31st of January 2012 over 500 irregular migrants and refugees died attempting to cross the Mediterranean sea. Sadly, this figure is also likely to be higher as not all deaths are recorded (throwing dead bodies overboard is common) and death records are only accounted for in tales from survivors or through enquiries from family members looking for missing persons.  Unfortunately the majority of people smuggled into the UK and Europe are those seeking refuge from conflict ridden countries.

The stark reality is that despite the right to ‘seek and to enjoy in other countries asylum from persecution’ as enshrined by Article 14 of the Universal Declaration of Human Rights (UDHR), when conflicts erupt or it is likely that there will be an influx of people from a particular country, the UK government introduces stringent visa requirements and this is paralleled throughout Europe.

This can be seen in the UK Border Agency’s (UKBA) current list of countries requiring visa entry for the UK, which includes many refugee producing countries. Unfortunately given the nature of refugees, (in that most come from politically unstable countries) seeking visas from British embassies within their own countries is often impossible. Currently included on the UKBA’s list is Somalia, yet Somali’s cannot obtain passports, let alone British visas and UNHCR recently reported that a boat was still at sea carrying 50 Somali and Eritrean people attempting to reach Italy. Other countries such as Iran and China are also listed, yet within these countries the State is the persecutor from whom people seek to escape, therefore obtaining travel documents or visas can be dangerous to the applicant or the family they leave behind.

Consequently, legal entry, for the majority of asylum seekers, is unfeasible:  in essence the worse the situation in the country of origin, the more difficult it is to gain entry to the UK or Europe. As a result of this, the activities of criminal smugglers have prospered and human rights abuses have increased. Amnesty International estimates that every year, four million people are trafficked or smuggled across international borders- the value of this criminal trade is estimated at approximately $US10 billion per year.

Illegal entry and the rising death toll can be addressed as a three- fold problem:

-the first (as cited above) is due to visa requirements for entrants from refugee producing countries;

-the second is the failure of the UK government and other European States to provide sufficient resettlement programs;

-and thirdly the increased security of Europe’s external borders forces asylum seekers to find ever more complex and dangerous methods of entry.

Resettlement

In 2004 the UK government, in partnership with UNHCR, set up a refugee resettlement scheme (under Section 59 of the Nationality, Immigration and Asylum Act) which provides 500 resettlement places to those refugees most in need throughout the world, this has since been increased to 750 places.

Currently sixteen European countries provide resettlement to refugees, yet they only provide 8% of global resettlement places. 90% of places are provided by the three top resettlement countries: the United States, Australia and Canada. Recently the European Union adopted the EU resettlement program, which intends to co-ordinate, harmonize and increase the number of resettlement places offered throughout Europe. However the number of resettlement places has not increased in parallel with the number of countries needing the resettlement of citizens. UNHCR estimates that 800,000 refugees are in need of resettlement places each year, far more than the places available, the result being that only one in ten refugees in need of resettlement will secure protection through the programs.

Border Control and Smuggling

As discussed, illegal entry is often the only resort of those who wish to escape their country and find refuge. In attempting to do so, asylum seekers commonly employ criminal smugglers to smuggle them across the borders to a new life. This often involves extortionate amounts of money and the sacrifice of safety, putting individuals and families at the mercy of criminal smugglers. Contrary to popular opinion, the poorest members of societies within these conflict ridden countries often can’t afford to pay people smugglers, thus the majority of asylum seekers who reach the UK or Europe in this way come from wealthier backgrounds. Often individuals pay for the journey with their life savings, their family’s life savings or community contributions, and in some instances it can cost them their lives. Causes of death can be due to a number of circumstances such as: extreme weather; unseaworthy boats; beatings from smugglers; drowning; starvation; dehydration; suffocation and in some cases suicide out of desperation.

The increase in European and UK border control makes entering Europe progressively difficult, the visa restrictions and increased security has gained media attention as “Fortress Europe” which propels smugglers further in finding extreme methods of trafficking people across the borders.

Within the Schengen area of Europe external borders in terms of sea, land and air, are guarded by Frontex who employ a border surveillance system and European Border Guard Teams, whose mission is to reduce the number of irregular migrants entering the country.  The UK has its own border agency the UKBA who employ over 23,500 staff in protecting the UK’s borders.

Legal Responsibility

There is a legal framework for people crossing the borders by boat which divides responsibility between Shipmasters, and State parties:

Two Conventions: The 1982 United Nations Convention on the Law of the Sea and the 1974 International Convention for the Safety of Life at Sea (SOLAS) place the Shipmaster under an obligation to assist those in distress at sea, regardless of any circumstances such as nationality etc.

In terms of State parties, several international conventions obligate them to ensure appropriate rescue arrangements for distress calls received within their area of responsibility. These include:

– 1982 United Nations Convention on the Law of the Sea, Article 98(2) (UNCLOS)

– 1974 International Convention for Safety of Life at Sea, Chapter V, Regulation 7 (SOLAS)

– 1979 International Convention on Maritime Search and Rescue, Chapters 2.1.10 and 1.3.2 (SAR)

The State must aim to relieve the Shipmasters of responsibility by arranging disembarkation of those rescued as soon as possible. The State responsible for those rescued depends on the SAR region in which the survivors were recovered, the State responsible must provide a place of safety for survivors. Disembarkation should not be delayed for procedures such as screening or status assessment. (Guidelines on Treatment of Persons Rescued at Sea – Resolution MSC 167(78).

For further information see the following guidelines: http://www.marisec.org/rescueatsea.pdf

International Refugee Law

Though there is a right for individuals to seek asylum, as enshrined by Article 14 of the UDHR, there is no corresponding obligation upon States to grant asylum. The word ‘receive’ was removed from the UDHR on the premise that member State’s should retain their sovereignty in being able to decide who could enter their territory. Therefore international refugee and human rights law does not offer any concrete protection for refugees until they enter the territory in which they seek refuge. As a result, the onus is on the refugee themselves to escape persecution.

As a consequence of this, States are able to introduce stringent visa measures for refugee producing countries.  The reasons behind this are obvious in that no member State wants an influx of asylum seekers from a particular country. Once this occurs within Europe the first member State to receive applicants remains responsible for those individuals in processing their application and offering them refuge (via the Dublin Regulation – which is why Italy’s refugee system is under intense pressure). The politics of the situation seems like a playground quarrel and ultimately that’s what it is, clearly if all member State’s removed visa restrictions, some of the barriers for entry would be removed, but there is no legal requirement to do this and therefore it is unlikely this will ever happen.

As can be seen the protection for those residing in conflict ridden countries is relatively weak, however once applicants reach the State in which they seek sanctuary, Article 33 of the International Convention on the Status of Refugees (‘Geneva Convention’) becomes active. Article 33 is the right to ‘non-refoulement’ which means that once an applicant is under a State’s jurisdiction they cannot be returned to a territory ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‘  Consequently State’s must process an individual’s asylum claim before returning them to their country of origin. If they satisfy the member State’s requirements for refugee status they will be allowed to remain.

Escape

Article 33 of the Geneva Convention is seen to be ‘the cornerstone’ of refugee protection. Read in conjunction with Article 14 of the UDHR it offers significant protection to those who manage to escape their country and reach sanctuary. International maritime law also aims to protect those who take to the seas in seeking safety. But that protection only starts once people start their journey, and as shown above, even with that protection people continue to lose their lives.

As discussed there are many barriers for asylum seekers in reaching sanctuary. With no legal framework of absolute responsibility for member States to offer resettlement, or to remove visa requirements, the onus of responsibility for the safety of refugees realistically remains upon themselves. Though their countries of origin are ultimately responsible, in the real world safety does not become apparent until refugees start their perilous journey to sanctuary.

 

– Katie Bales

David Cameron and the ‘Small Claims Court’

January 31, 2012 § 1 Comment

Last week David Cameron made a speech at the Council of Europe in Strasbourg outlining the reasons why he believes it is time for the European Convention on Human Rights system to be reformed. In his speech the Prime Minister suggested that unless reform is enacted the Court risks becoming a ‘small claims court’. His comments have drawn criticism from Sir Nicholas Bratza, the senior British judge, currently acting as President of the Court. This brief post will summarise what Mr Cameron said and why his comments are both untimely and unwarranted.

Need for change
Mr Cameron outlined three interrelated reasons why the UK, under the coalition government, would be pursuing change to the Convention system.
Firstly, he argued that the ability of the Court to fulfil its mandate was being threatened by its increasing workload. He identified the current backlog of cases and continuing increase in applications as an obstacle. In particular he suggested that the most egregious violations were not receiving the consideration they required under the current system. Secondly, the Prime Minister argued that the Court was rapidly becoming a Court of the fourth instance, giving an applicant a final attempt at succeeding where they have failed in domestic hearings. Mr Cameron’s submission here was that under the current system the Strasbourg Court was having its time wasted by being forced to consider trivial applications, many of which had already been rejected on numerous occasions in domestic hearings. Thirdly, he argued that the margin of appreciation, allowing for country specific interpretations of the Convention, was shrinking in favour of a Strasbourg imposed broad European base. Here he specifically referred to the UK’s recent troubles regarding the deportation of terror suspects and prisoner voting rights as issues which the Strasbourg Court should have left to the discretion of national courts.

A better system
Mr Cameron concluded by stating that the Court should be freed to deal with the most serious of violations; that the Court should ensure the right of the individual application rather than act as a ‘small claims court’ and that it should hold each country to account instead of undermining the decisions of national courts.

Critique: Untimely and unwarranted

Backlog
Mr Cameron’s first reason for reform was the vast backlog of cases pending before the Court. Although correct, this criticism is untimely given that the Council of Europe has, only relatively recently taken steps to rectify the problem by enacting Protocol 14. Despite being objected to by Russia for a number of years, this provision finally came into force in June 2010. Under Protocol 14 there are now measures for dealing quickly with repetitive cases, the Court’s filtering capacity has been reinforced and a new admissibility criterion requires applicants to have suffered a significant disadvantage to gain access to a hearing.
Having been negotiated for a number of years the Council of Europe’s Committee of Ministers first adopted Protocol 14 in May 2004. It appears that despite waiting over six years for this provision to finally come into force, Mr Cameron and his government want to reform the system without even waiting to see if the changes have any impact on the efficiency of the Court.
It is understandable that there is frustration with the backlog of cases, but the reality is that the Court has to give adequate consideration to allegations of human rights violations taking place across 47 states. Although this criticism by Mr Cameron may be well intentioned, the Council of Europe should be wary of accepting further reforms which could allow the Court to spiral into a constant state of transition.

Appeals body
The Prime Minister also criticised the Court as being a final appeals body for trivial applications. Mr Cameron used an application concerning sub-standard travel conditions on a bus from Budapest to Madrid to use as an example of the bizarre nature of one case. Evidently his researchers appear to have been more diligent than those of his Home Secretary when they found this case. One must always be wary, however, of using isolated examples to illustrate a fundamental point. It is unfortunate but true that a number of cases submitted to the Strasbourg Court are of a trivial nature, but this is why the Council voted to adopt Protocol 14 and weed out such applications at any early stage.
Furthermore, the fact that a number of applications, trivial or serious, have the opportunity to be heard in Strasbourg after receiving negative judicial treatment in domestic Courts should be seen as a success, rather than a failure in the current structure. The Strasbourg Court presents the final opportunity to highlight domestic legislation or State action as being incompatible with the Convention, and thus this structure has enhanced the protection of human rights. As recently as 2008 for instance, the European Court of Human Rights overruled decisions of the UK Administrative Court, Court of Appeal and House of Lords in finding that s.64 of PACE, authorising blanket retention of finger prints and DNA samples, was in breach of Article 8. The Conservative Party subsequently campaigned that they would overhaul data retention legislation to make it more human rights compliant and the result of this, the Protection of Freedoms Bill, is currently making its way through the House of Lords.
Although it is justifiably frustrating for a government when their legislation or actions are defined as in breach of the Convention, it is one of the greatest successes of the Convention system that there is a final arbiter who specifically focuses on the human rights impact of a particular law or action and, when appropriate, advocates for change.

Margin of Appreciation
The Prime Minister’s assertions regarding the Margin of Appreciation are grounded in his general approach to Europe. It has been reported that if his reforms are not accepted, the Conservative manifesto at the next general election will include a pledge to call for looser ties to Strasbourg. Preparation for such a break in ties may already be underway as towards the end of Mr Cameron’s speech he highlighted how UK the government is currently investigating the case for repealing the Human Rights Act 1998, a law which gives direct effect to the Convention provisions, to replace it with a UK Bill of Rights.
It may simply be the case that the speech Mr Cameron gave in Strasbourg last week was a prelude to a more prolonged campaign for the UK to break away from the Convention system. If that is the case Mr Cameron should come out and state it as party policy, rather than using his position as the leader of the UK government to direct criticism at the Court.

Small Claims Court
Mr Cameron stated his concern was that the Court was at risk of becoming a small claims court. The Prime Minister should bear in mind when making such comments that although the United Kingdom has improved its human rights record dramatically over recent decades, with only 8 judgements being rendered against the State in 2011, the outlook for individuals across much of Europe is not as bright.
Last week the 2011 statistics of the Court were released presenting clear evidence that the Court is much more than a small claims tribunal. The most common violations regarded the length of proceedings (341), the right to liberty and security (241) and the right to a fair trial (211). There were also 70 violations of the right to life and 183 violations of Article 3. These statistics do not reflect the work of ‘small claims court’.

Concluding thoughts
Mr Cameron made a number of valid points in his speech. The Court is certainly oversubscribed with applications. Several practitioners do attempt to manipulate the Convention system for personal gain rather than for the well-being of their clients. The term ‘human rights’ has developed negative connotations in some quarters due to trivial applications and, on occasion, it would be fair to say that the Court could have made a decision on the basis of the margin of appreciation, rather than searching for a pan-European level of acceptability.
Some of Mr Cameron’s criticisms are serious and reflect a weakness in the system in its current form, yet that is exactly why they are already being addressed on various fronts. It would appear, however, that much of the Prime Minister’s comments are politically motivated and are representative of the Conservative Party’s position on Europe, instead of the United Kingdom’s commitment to human rights.
It is possible that Mr Cameron’s comments are a knee jerk reaction in light of recent decisions against the United Kingdom, or they may form part of a long term goal to grasp sovereignty back from Strasbourg, nonetheless they are both ill advised and untimely. Perhaps what one could take from them is that if the short term threat to the Court is an enormous backlog of cases; the long term threat is unwarranted politically motivated calls for reform.

– Conall Mallory

CEAS Update: ECJ rules that asylum seekers cannot be removed to Greece under the Dublin regulation.

January 6, 2012 § Leave a comment

In January 2011 the European Court of Human Rights declared that asylum seekers were at risk of being subjected to inhuman and degrading treatment if deported back to Greece. On 21/12/2011 the European Court of Justice (ECJ) ruled that member states cannot deport asylum seekers back to another EU country if they have “substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment”. On this basis they declared that the UK could not deport asylum seekers to Greece under the Dublin regulation.

For more information on the case see the report by the Guardian.

The ECJ ruling puts the functioning of the Dublin regulation in the spotlight: its introduction has meant that Italy and Greece, predominant gateways to Europe for North African countries, have had to take responsibility for any asylum seekers that travel through their borders. Both countries have declared the regulation an unfair burden to carry given the current economic instability of the countries, which has also meant that there is little welfare support for asylum applicants.

The UK government has taken an unsurprising ‘islander’ approach, claiming that the UK should be able to deport asylum seekers to any EU country under the Dublin regulation. Although reform of the regulation is needed, the UK has vehemently resisted agreement to any reforms. As discussed in my previous blogs, very few asylum applicants are sent back to the UK under the Dublin regulation but the UK utilises it to return large numbers of applicants to other EU countries, leading to obvious conclusions about why the government are so keen to keep it.

For further discussion, listen to a short BBC Radio 4 debate on the subject.

– Katie Bales

Conference Review: ‘The EU Asylum Directives: Is Opting in Necessary?’

December 19, 2011 § Leave a comment

On the 24th November 2011 I attended a conference at the Bingham Centre for the Rule of Law titled ‘The EU Asylum Directives: Is Opting in Necessary?’ The event was created to consider the general implications of the UK’s opt out of the amended EU Asylum directives and the effect this could have on the UK’s position in the Common European Asylum System (CEAS).

There were three speakers at the event; Valsamis Mitsilegas, Director at Criminal Justice Centre, Queen Mary; Elspeth Guild, Professor of law at Queen Mary and David Saville, Head of EU Asylum Policy Team, UK Home Office. Chairing the discussion was The Hon. Mr Justice Blake.

I have outlined the discussions of each of the speakers in my own words below:

First to speak was Valsamis Mitsilegas:

Valsamis outlined his intentions to discuss whether opting in to the amended protocols was necessary, and whether the UK could afford not to participate in the amended directives without being excluded from the CEAS as a whole. I have briefly summarised his considerations below:

Valsmais used the history of the Schengen agreement to form his theory that the UK would not be able to participate in the CEAS if they continue to pick and choose which protocols to implement. The Schengen Agreement aimed to abolish internal EU border controls, allowing for passport free movement of EU nationals. Currently 25 countries are part of the Schengen agreement. However the UK only partially opted in to the measures, approving inter-police co-operation, whilst refusing to adopt the abolition of border checks and the common visa policy in favour of maintaining its own border. Despite being resistant to sacrifice national border controls, the UK was keen to take part in the Visa Information System (VIS) which shares visa data for security purposes between the participating Schengen states, however the other EU states blocked the UK’s attempt to use the VIS which was upheld by the European Court of Justice in UK v EU Council (Case C-482/08). During the case the UK claimed that because it had an opt-in measure and had adopted inter-police co-operation, it was entitled to use the VIS system, despite refusing to abolish border controls.  The Court rejected this argument stating that the VIS measure needed to be looked at objectively, taking into account its context, purpose and effectiveness as a whole, rather than the specific wording of the protocol.

The purpose of the VIS was to support the removal of national border controls whilst maintaining state security, as the UK refused to abolish their own border agency they could not participate in the establishment of the European Border Agency and consequently the VIS measure. The Court held that as well as the strict legal basis of the measure, the logic of the Schengen agreement as a whole must be taken into account and as the UK does not contribute to that purpose it is not allowed access to the VIS.

Valsmais also drew attention to Article 4a of Protocol 21 of the Treaty of the Functioning of the European Union (TFEU), which he believes allows for ejection of the UK from the CEAS if the UK’s refusal to adopt certain measures renders the directives inoperable.

In light of this interpretation, Valsmais asserted that it is unlikely that the UK will be able to participate in the Dublin Regulations if they refuse to adopt the Procedural and Reception protocols.

The objective of the Amsterdam treaty is to achieve a common asylum system between all European Union member states to ensure high quality decision making and treatment of refugee claimants. The four directives; Dublin, Procedures, Qualification and Reception (described in detail in my previous blog post) are all contingent upon one another in achieving the aim of the CEAS and therefore when viewing the directives objectively as a whole, and taking into account the Schengen ruling, the UK should not be able to participate in one of the directives if it refuses to adopt the others.

The second speaker was Elspeth Guild.            

To begin with Elspeth outlined the numbers of people whom the UK decisions would affect, namely asylum seekers, and summarised the numbers of asylum applications that are lodged within the EU.

In 2010 there were half as many asylum applications within the European Union as there were in 2001/2002. The Eurostat figures show that in 2010 the UK received 23,715 applications- lower than France who received 52,725; Germany 48,490; Sweden 31,875 and Belgium 26,130, all of whom are part of the CEAS. To put the UK figure into perspective, in 2010 only 6,500 people were granted asylum and approximately 20,000 claims were rejected.

Elspeth asserted that:

The UK has thus far only opted in to the recasts of the Dublin and Eurodac measures, rejecting the reforms of the Qualification, Reception and Procedures directives. The purpose of the Dublin regulation is to determine the liability of state responsibility towards asylum applicants, placing responsibility on the state first sought by the asylum applicant. The Eurodac measure is a fingerprint database, its sole purpose being to determine whether asylum applicants have been apprehended or sought asylum in another European country.  Eurodac checks are not automatic, they can be performed upon suspicion and if the applicant is found to have been in another country the responsibility will pass to that state.

In practice the UK is a ‘net sender’ of the database, regularly sending applicants finger prints for checking, which more often than not, results in a ‘hit’ allowing the UK to transfer responsibility. Comparatively other EU countries have very few ‘hits’ against the UK. These two measures have been adopted by the UK, allowing the government to offload responsibility on to other member states, which has recently facilitated the return of thousands of asylum applicants to Greece and Italy, which has the worst welfare provision for asylum seekers (See the report by the Guardian for further details). However the measures which actually provide increased protection to applicants, have been rejected by the UK.

In light of these measures it is clear why the system must be seen as a whole. If a state passes responsibility of an applicant to another member state, the state transferring responsibility needs to know that the receiving state will uphold the applicant’s rights and provide treatment and decision making of an equal standard to themselves i.e. a Common European Asylum System. Although positive individual asylum decisions do not have mutual recognition amongst member states, negative decisions do. Consequently the decision making process must be equal between member states to ensure fairness. Therefore the UK should not be able to adopt the Dublin measures (which offload responsibility) without adopting the qualification directive as there needs to be a common system for qualification.

Because the UK has opted out of the recast of the directive, it intends to implement the previous version of the directive, however this still causes the same problem of a differing qualification system between UK and other member states. On this basis it is likely that problems will arise in the courts and doubt is cast on the UK’s ability to participate in the Eurodac and Dublin regulation without accepting the other amended directives.

In consideration of this argument Elspeth therefore emphasised that the more legally preferable, legitimate and administratively practicable option is that the UK accepts the amendments.

The final speaker, in position to defend the Governments decision not to opt in, was David Saville from the Home Office.

David stressed that the government’s main aim in border control is security. The change in government has led to strong views on state sovereignty and the present government does not support the harmonisation of border controls. The UK believes that asylum claims should be decided by member states, which should retain sovereignty in matters of immigration. David asserted that the EU legislation is not effective in practice and means nothing if it is not implemented correctly, which was recently shown by the failings of Greece and Italy to provide a sufficient asylum system. In reality the UK upholds and will continue to uphold the rights of applicants above other countries, (like Greece and Italy who have opted in to the protocols) as the UK’s measures are practical and achievable. Despite rejecting the measures, the UK still provides some of the highest protection in Europe.

In defence of the decision not to opt in to the protocol David reasserted that through Protocol 21 the UK is entitled to opt in or out of any measures which they do not feel appropriate.

In defence of the assertion by Valsamis that the principle of the Schengen ruling could lead to the UK’s exclusion from the CEAS, David stated that the Schengen agreement is a specific and limited part of EU law which is excluded from the directives as it is a separate ring fenced agreement. In drawing attention to Article 4a of Protocol 21 David affirmed that it only allows for ejection from the directives, if the state completely refuses to accept the directive not just the veto of an amendment. Consequently the UK will continue to implement the original directives.

The UK is also not the only country to opt out of the amended protocols as Ireland has also chosen to do so. With reference to the Dublin regulations, David outlined that the regulation has been extended to non-EU countries with no expectation upon them to take part or uphold the other directives. Asylum applicants are protected by fundamental rights which would prevent extradition to countries where their rights would not be upheld and therefore the directives are not essential in supporting applicant’s rights.

My thoughts on the subject…

In conclusion the repeated reason for the government’s veto of the amendments was sovereignty. The arguments put forward by the panel were convincing and unfortunately David Saville and the Home Office appeared to be a victim to the well thought out questions and savvy opinions of the panel and audience. Sovereignty seemed to stand stoutly in the way of protection for asylum seekers, and reasons given by the government such as: the resistance to allow quicker access to the labour market and the desire for fast track detention, have not been supported by evidence to show that these measures are necessary. On the contrary, much evidence provided by NGO groups shows quite the opposite i.e. that the detention estate and restrictions on work are a huge expense to the state and cheaper alternatives could produce the same results.

The assertion of sovereignty does not address why the minimum standards put forward in the amendments could not be adopted by the UK. If the UK provides one of the highest standards of protection to asylum seekers, then why not implement the minimum safe guards to promote equal protection across Europe?  Surely if the UK refuses to uphold the protective measures granted by the amendments, they should be prevented from using the procedural measures to transfer responsibility on to other states.

At a time when the UK government continues to spout human rights rhetoric to North African and Middle Eastern countries, it is a self contradiction to reduce the human rights protection afforded to the most vulnerable group of people on the planet, refugees. 

– Katie Bales

The Common European Asylum System and the UK

December 13, 2011 § 1 Comment

At a time of increasing hostility towards immigration and asylum and with a euro-sceptic government at the helm, we examine what the Common European Asylum System is and what it means for the UK.

 The CEAS and its purpose:

Introduced in the treaty of Amsterdam (1997), the Common European Asylum System (CEAS) seeks to harmonize the treatment of asylum applicants between European Union member states. It aims to establish a common system that will standardise the protection afforded to asylum applicants through a unified qualification system; high quality criteria for the reception and processing of applicants and definitive responsibility of member states. The European Asylum Support Office will standardise practical considerations such as the Country of Origin Information and will deploy support teams to states in need of asylum support.

The CEAS has so far been implemented in two phases. Phase one took place from 1999 to 2004 and established a number of measures, the four most important ones being: the ‘Dublin’ regulation, the ‘Reception Conditions’ Directive, the ‘Qualification’ Directive and the ‘Procedures’ Directive. A period of reflection and consultation was then given as to the quality of the measures, then in 2008 phase 2 began, aiming to improve and build upon the measures already implemented. Amendments were made to three of the most important directives; the procedural, qualification and reception directives.

The UK took part in all of the original ‘first phase’ measures, however the country has an option to opt in or out of the directives (Protocol 21) and has thus far rejected the revisions, choosing only to fully opt in to the Dublin regulations. The government claim that they will continue to implement the old directives, yet the whole premise of a ‘common’ European asylum system could be undermined if the UK chooses to implement differing standards to other EU states, calling into question the UK’s participation in the system.

The meaning of the Directives:

The ‘Dublin’ Regulation: To determine state responsibility for asylum applicants and prevent ‘asylum shopping’; where applicants travel across different EU states to obtain the most preferential treatment. The responsible state is the state which is most central to the asylum seekers application. It is normally the first state which was entered illegally or legally, where the latest visa was issued or where the applicant’s family are legally resident.

The Qualification Directive: To give a common definition of the meaning of ‘refugee’ across member states and reduce ambiguity regarding the terminology that is currently used in defining refugee status. (Full name: The ‘Directive laying down minimum standards for the qualification and status of non-EU nationals and stateless persons as refugees or as persons who otherwise need international protection)

The Reception Conditions Directive: To ensure a common standard of treatment for applicants across all member states. This includes common:

  • Access to information upon arrival
  • Time restrictions on access to the labour market
  • Access to education
  • Access to housing
  • Access to medical care

(Full name: The Directive on reception conditions for asylum-seekers)

The Procedures Directive: Provides minimum procedural guarantees across member states, such as access to legal advice and the existence of a personal interview in the application process. It also sets minimum requirements for decision making such as independent, qualified decision makers; conditions for notification of the decision and rights to appeal. It also gives a unified understanding of claims which are ‘manifestly unfounded’ and countries which are regarded as ‘safe countries of origin’.

For further information on the directives, or the system as a whole, see the Europa website on European Commission Home Affairs:

What do the revisions mean for the UK?

Beginning with the…

Reception Conditions Directive: the biggest change (and hence the Government’s refusal to adopt) would be to the detention of asylum seekers.

The UK has one of the largest immigration detention estates in Europe. Approximately 26,000 people were held in immigration detention in 2010, the majority of whom were asylum applicants. Most people are held in detention for over two months, in 2010 the cost for one individual for one night was £120.00, a costly exercise for the government and a further promotion for the prohibition of detention of asylum applicants.  (See ‘Bail for Immigration Detainees’ for further details)

In short the new measures (Article 8) included in the amended directive codify the grounds for detention to four circumstances:

  • to determine or verify nationality
  • to determine the basic protection elements on which the claim is based
  • to verify the procedural right to enter the territory and
  • on grounds of national security.

These circumstances may only be invoked when necessary and ‘if other less coercive measures cannot be applied’ creating a further requirement of proportionality. It also asserts that applicants will not be detained on the sole basis of an application for asylum being lodged.

This is a problem for the UK government as the majority of applicants held in UK detention are held under ‘fast track’ measures also known as administrative detention, which allows for detention of claimants whose case can be decided quickly, this is normally based on the person’s country of origin. If a claim is ‘fast tracked’ the applicant will be detained whilst they wait for their claim to be determined, if the claim is rejected, fast track applicants have no right of appeal in the UK and will be deported. Applicants from certain countries which are listed by the Home Office as being ‘safe’ will automatically be placed on the fast track system unless they can prove that their claim is obviously not unfounded. However, worryingly the UK Government do not always have the most up to date country of origin information, although Congolese applicants were not fast tracked, the Guardian reports that recent decisions made by the Government to deport applicants back to the Congo were based on dated country information from 2008. The consequences of this are detailed in a report ‘Unsafe Return’ by Justice First: which provides case studies of seventeen adults and nine children, the majority of whom were subjected to inhuman or degrading treatment upon their return to the Congo, including imprisonment, rape, sexual assault, beatings and electric shock treatment.

In conclusion if the government opted in to the amended directive they would not be able to use the fast track system for detention as the border agency would have to prove detention necessary in each individual case and that no alternative methods of control could be used. They would also have to establish that detention was not based upon an application for asylum being lodged. If the directive were implemented the majority of those currently in fast track detention would be released and granted temporary admission.

The amended Reception Directive also requires all detention to be confirmed by a judicial authority within 72 hours from the beginning of detention (Article 9). Currently the decision to detain in the UK is decided by a UKBA officer with the authority of the Secretary of State, consequently if the UK opted in to the directive, the administration for decisions to detain would have to change, which is viewed by the Government as an unnecessary administrative burden on the judiciary. However, as many have pointed out, the criminal justice system bears the administrative weight easily and in comparison the numbers for immigration prove insignificant.

The other change (and one which was cited in the government’s rejection of the amendment) is to the time length restriction placed on asylum seekers to access the labour market. The previous time restriction to work was 12 months, which is what the UK currently has in place. The new amendment creates a maximum of six months restriction. The immigration minister Damien Green stated: ‘Signing up to the Reception Conditions Directive would have forced the UK to allow asylum seekers to work after six months, even if their claims had been refused and they were appealing the decision…This would have sent out the wrong message, encouraging those who do not need our protection to make unfounded asylum claims’ The result? Asylum seekers in the UK will be forced to claim benefits for an extra six months. The government have offered no evidence to show that early access to the labour market encourages ‘unfounded asylum claims’ and this assertion contradicts the government rhetoric that welfare benefits also attracts ‘unfounded asylum claims’. Contrary to popular opinion NGO evidence provides that welfare is rarely a factor in decisions regarding where to lodge an asylum application. Often asylum seekers pay an agent to smuggle them out of their country and have no choice in where they will be taken and if they do, the location of family or friends is the paramount concern. For further information see the Still Human Still Here website.

The Procedures Directive: The main change to the Procedures Directive is the right to in-country appeals and further restrictions to the use of accelerated procedures or ‘fast track’ decisions.

As already stated if a fast track applicant has their claim rejected, in current UK law they have no right of appealing the decision whilst remaining in the UK and can consequently be deported. Article 46(5) of the amended procedures directive gives applicants the right to in country appeals which conflicts with current UK practice.

Again relating to the UK ‘fast track’ procedure, any case can be considered suitable. Approximately 70% of UK asylum applications are allocated to the fast track procedure. However the directive specifies seven limited situations in which fast track or accelerated procedures can be used, which would greatly reduce the UK’s use of fast track decision making and create further administrative burden. Yet when one considers the extortionate costs involved in detaining asylum applicants, it is unlikely that greater administration would necessarily equate with greater cost.

For further information about how the UK’s refusal to accept the amended directives will affect its place in the Common European Asylum System, see my forthcoming blog post titled ‘Conference Review: The EU Asylum Directives: Is Opting in Necessary?’

– Katie Bales

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