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The ECRE Weekly Bulletin provides information about the latest European developments in the areas of asylum and refugee protection.ECRE is a pan-European alliance of 90 NGOs protecting and advancing the rights of refugees, asylum seekers and displaced persons.If you would like to know more about ECRE’s advocacy work, policy positions, press releases and projects, please visit our website at www.ecre.org, find us on Facebook or follow us on Twitter.

     
10 February 2017
  
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OP-ED

NATIONAL DEVELOPMENTS

COURT OF JUSTICE OF THE EUROPEAN UNION

REPORTS & NGO ACTION
   

EDITORIAL

Weekly Editorial: Short sighted regional policies undermine global solutions

As well as reducing standards of refugee protection, Europe is increasingly focusing on blocking access to protection on European territory. Measures already in place include border closures and inadmissibility procedures to prevent claims being lodged. Proposals now openly discussed include offshore processing of applications, offshore disembarkation of rescued asylum seekers, and mandatory return to “safe” third countries.

At the most extreme end, the Austrian Foreign Minister has stated that the objective of EU policy should be zero asylum applications on EU territory.

While some European politicians are ready to sell out human rights and abdicate responsibility, simple mathematics illustrates the short-sightedness of this approach.

Over 90 % of the forcibly displaced persons in the world are outside Europe, with most remaining in their country or region of origin, among the poorest places on the globe.

In the short-term it may be appealing to limit protection in Europe but this is a dangerous game. As well as undermining Europe’s credibility in upholding human rights globally there is a risk that others follow Europe’s example. Kenya and Pakistan have taken steps to close refugee camps and to return refugees despite the obvious risks, and other major refugee-hosting countries may follow. Imagine the consequences should Turkey, Lebanon and Jordan, jointly hosting 4.5 million Syrian refugees, decided to follow this new “European model” of denying responsibility…

Ultimately, undermining the global protection system is not in Europe’s interests and supporting the global protection system involves more than money: Europe must also be a positive example by providing access to protection for refugees proportionate to its size and wealth – and regardless of how they are forced to arrive.

Time to turn political debate upside down?

Catherine Woollard, ECRE Secretary General

 

OP-ED

Poland: Draft amendment to the law on protection of foreigners – another step to seal Europe’s border, OP-ed by Polish Helsinki Committee

In January Polish Minister of Interior Mariusz Błaszczak presented draft amendment to the law on protection of foreigners on the territory of Poland. He claimed that there is a need to response to the growing migration flow in Poland and to ensure public security. However, he failed to explain what kind of danger to public security asylum seekers create amid lacking evidence that the number of crimes perpetrated by foreigners in Poland has increased. Moreover,  official statistics show that, for the past years the number of asylum applications lodged in Poland has not exceed 15 000  yearly and neither has it  increased recently. Taking this into consideration, it seems that the draft amendment reflects the national and regional trend of portraying foreigners as security threat and closing borders to persons seeking protection rather than the actual response to some changed situation.

At the moment, routine push-backs of asylum seekers are taking place at the Polish-Belarussian border crossing point in Terespol, which is the main entry of asylum seekers to Poland (mostly Chechens and Tajiks).. According to the Border Guards, foreigners arriving at the border do not apply for protection but want to reach Western Europe due to economic reasons. This statement is challenged by NGOs (including HFHR and the HRW) as well as the Ombudsman Office which witnessed that Border Guards ignored oral asylum requests. This unlawful practice seems to be tolerated or even encouraged by the Ministry of Interior.

Now it seems that Polish authorities prepared provisions enabling them to keep asylum seekers out of Poland with the full sanction of the law. Main points of the draft law are designated to implement EU law provisions. However, a closer look into its details reveals that it contradicts EU law and violates international human rights.

The draft law introduces border procedures. Those will be applicable to people who apply for asylum at the border, do not fulfill the entry conditions and fall into one of the specified categories: they presented other reasons than persecution in the asylum application, they came from a safe country of origin or a safe third country, they lodged subsequent asylum application based on the same circumstances, etc. According to the draft law asylum seekers subjected to the border procedure will be automatically placed in detention without access to alternatives to detention and their asylum proceeding will be accelerated. Further, unsuccessful asylum seekers may be deported without the chance to appeal.

 It is obvious that these provisions violate the right to freedom and personal security as well as the right to effective remedy. But there are also serious doubts whether it is possible to conduct border procedure not at the border but at the territory of state. According to the justification to the draft amendment border proceedings will be conducted in two detention centers – in Biala Podlaska (around 30 kilometers from the border) and in Lesznowola near Warsaw which would create the legal fiction where the asylum seekers who have de facto crossed the border will not be authorized to entry Poland.

The draft law introduces also lists of safe countries of origin and third safe countries. These lists will be created under the government’s regulation and will be updated every two years. While the sole concept of such lists is legal under EU law, they pose a challenge to the Geneva Convention as they result in the discrimination of refugees based on their country of origin. Concerns prevail in regard to the possible designation of Belarus and Ukraine as safe third countries and Russian Federation as safe country of origin. This would result in effectively all asylum seekers facing border proceedings and effectively prevented from entering the country.

Furthermore, a new governmental body, the Foreigners Board, will be created under the draft amendment. It would replace the current Refugee Board. The main difference is that the Foreigners Board is designed to serve as a court with the power to consider appeals against both asylum and return decisions. The analysis of the proposed provisions however raises doubts whether the Foreigners Board may be treated as a court, concerns persist that it actually depends on the Ministry of Interior and automatically upholds first instance negative asylum decisions.

The proposed amendment together with the current lack of proper state-funded legal assistance to refugees and non-existing system of identification of vulnerable persons may lead to systematic flagrant violations of EU and international law. Helsinki Foundation for Human Rights as well as other Polish NGOs prepared comments to the draft law. We will monitor further government’s activities on the draft amendment preparations.

Jacek Białas

Lawyer of the Helsinki Foundation for Human Rights

 

NATIONAL DEVELOPMENTS

Further restrictions on rights in Austria’s asylum reform streak

A new reform proposal aiming to exclude asylum seekers from reception conditions (Basic Care) as soon as their application is rejected reaffirms Austria’s restrictive policy. The proposed measures reflect a continued effort of diminishing the rights of asylum seekers in Austria, following on from a recent Aliens Law reform proposal (FrÄG 2017). 
 
“Politcians create the impression that in the area of asylum there is a permanent need for reform”, states Asylkoordination Österreich in its assessment of the latest legislative proposal affecting asylum seekers in Austria.
 
At the moment, asylum seekers are still entitled to Basic Care if their appeal has been granted suspensive effect by the court or they have agreed to leave the country voluntarily. The restriction of reception conditions, which could affect as many as 4,000 people, has been criticised by UNHCR and civil society organisations. The bill would also impose fines of up to €5,000 on asylum seekers who have provided false information on their identity in bad faith.
 
The previous Aliens Law reform (FrÄG 2017) entailing further modifications to the Austrian asylum system was submitted to the Parliament in December 2016 and is still pending adoption. The bill specified that a fast-track procedure to withdraw refugee status would be started as soon as a refugee is accused of a crime or caught in the act of committing a crime, and also restricted the conditions for establishing family links for the purpose of family reunification.
 
For further information:
 

COURT OF JUSTICE OF THE EUROPEAN UNION

EU General Court has no jurisdiction to hear action for annulment of EU-Turkey Agreement

The EU General Court does not have jurisdiction to hear the action for annulment against the EU-Turkey deal - an order delivered by the EU General Court established on 28 February.  The action had been brought by two Pakistani nationals and an Afghan national.

The General Court stated that the deal cannot be challenged directly before EU courts, since it is not considered an act of an institution of the EU but rather an act of Member States during a meeting of Heads of State or Government with their Turkish counterpart, which the President of the European Council and President of the European Commission only attended informally. The finding of the General Court seems to contrast with the designation “EU-Turkey statement”, figuring in EU policy documents, including the five implementation reports published by the European Commission thus far. The Commission has also appointed an EU Coordinator on the Implementation of the EU-Turkey Statement for that purpose.

For their part, the regular updates from the Greek Ministry of Public Order on the return of persons from the Greek islands to Turkey cast further doubt on the legal status of the statement. Whereas the latter is only described as a “statement” producing no legal effects, the Greek Ministry provides separate readmission statistics for persons returned to Turkey (1) under the Greece-Turkey bilateral readmission agreement, (2) the EU-Turkey readmission agreement, and (3) the EU-Turkey statement.

The Grand Chamber of the Greek Council of State held a hearing today on Turkey as a safe third country.

For further information:
 

EU Court leaves the granting of humanitarian visas with Member States

Against the recommendations of the Advocate General of the European Court of Justice, Paolo Mengozzi and based on a technicality the court left the responsibility for granting humanitarian visas with Member States.
 
Despite the clear and immediate need of protection and against the opinion of the Advocate General of the European Court of Justice, Paolo Mengozzi, a Syrian family from Aleppo will not be granted humanitarian visas to Belgium under EU law. The European Court of Justice ruled that the intention to apply for asylum immediately upon arrival in Belgium means that the humanitarian visa application cannot be classified as a short term visa under the EU Visa Code. Moreover, so far no EU legal instrument has been adopted with regard to the issue by Member States of long-term visas and residence permits, although the Treaty provides a legal basis to do so. Therefore the case does not fall under the scope of EU law and remains a question to be decided by national authorities.
 
“This is a highly disappointing ruling from the Court, it does not address the essentials of the case – the access to humanitarian visas and the protection of a Syrian family caught in a war-zone in dire circumstances. Nonetheless, it is important to remember that it is a technical ruling placing the responsibility of granting humanitarian visas on the Member States – we strongly urge them to do so. They have a range of tools at their disposal including resettlement, private sponsorship as well as humanitarian visas. We all know the consequences of a lack of safe and legal access leaving the asylum seekers in the arms of human smugglers or at the mercy of the Mediterranean,” says EDAL Coordinator for ECRE, Amanda Taylor.
 
Although the ruling leaves the responsibility of granting humanitarian visas with the Member States it does not address or affect their responsibility according to international and national law in evaluating future cases.
 
“International and national law still applies of course and this means that Member States will have to ensure that no asylum seeker can be exposed to inhuman or degrading treatment, for example. We expect all Member States to honor their commitments whether anchored in international conventions or national constitutions,” says Amanda Taylor.
 
For more information:
 

REPORTS & NGO ACTION

AIDA 2016 Update: The Netherlands

The updated Country Report on the Netherlands offers a comprehensive analyses regarding practices and legal provisions in the Dutch asylum system. It focuses among others on the 2016 Dutch asylum reform as well as the introduction of more grounds for detention.
 
In 2016 the Netherlands reformed the asylum procedure by introducing the so-called “Five Tracks” procedure. Track 1 constitutes a Dublin procedure. Track 4 represents the standard asylum procedure of 8 days with the possibility to extend this time limit by six days, which is preceded by a rest and preparation period in which asylum seekers can prepare their demand. In case the application cannot be thoroughly assessed within the standard/regular asylum procedure there is a possibility of assessing the application in the extended Procedure. Track 3 and 5 are further accelerated procedures, which have not been yet applied in practice. A completely new track 2 has been introduced, aiming at processing applications made by applicants from safe countries of origin and applicants who have received international protection status in a different EU Member State. The assessment of a claim in track 2 takes place in less than eight days and the asylum seeker is neither entitled to a rest and preparation period nor medical examinations.
 
Further, more legal grounds for detention have been introduced in 2016, allowing the Netherlands to detain aliens who pose their asylum application at the border for a maximum period of four weeks. Territorial detention is generally possible under the new law in cases where the asylum seeker poses as national security risk or when the person is evading or impeding departure. Further conditions for detention are for the purpose of acquiring information on a person’s asylum claim as well as acquiring information necessary for the asylum claim. A new law on alternatives to detention has been accepted, but will only enter into force in 2017.
 
 For further information

AIDA 2016 Update: Croatia

The updated Country Report on Croatia documents the transformation of the Croatian asylum system following the closure of the Western Balkan route and the exponential rise in the number of asylum seekers entering Croatia compared to previous years. The closure of the route has also led to a substantial increase in incoming Dublin requests and transfers..

Due to the increase in the number of arrivals, the Reception Centres for Asylum Seekers in Zagreb and Kutina have reached close to, or in the case of Kutina full, capacity. A total 2,002 persons have been placed in accommodation in the centres in the course of last year. If the trend continues, reception capacities would soon be full. Several organisations, including UNICEF and Doctors of the World (MdM), have reported great problems and major deficiencies in the provision of health care for asylum seekers and refugees having lead many organisations to target their activities in that direction. The greatest problems in relation to integration of refugees and foreigners under subsidiary protection into Croatian society remain learning the Croatian language, healthcare, employment, education and accommodation. No language course has been organised throughout 2016.

Beyond challenges facing those arriving in Croatia, a number of organisations, including ECRE, the “Welcome” Initiative, Are You Syrious, Human Rights Watch and Save the Children have reported that push backs from the Croatian territory to Serbia have occurred during 2016 and early 2017.

For further information:

 

AIDA 2016 Update: Cyprus

The updated Country Report on Cyprus provides a detailed analysis of the recent transposition of the recast Asylum Procedures and Reception Conditions Directives, completed in October 2016. The reform has led to substantial amendments to the Refugee Law and Legal Aid Law.

The Cypriot Administrative Court was established in July 2015 and as of January 2016 has taken over from the Supreme Court as the first instance judicial review authority for asylum decisions. In order to ensure that asylum seekers in Cyprus have a right to an effective remedy against a negative decision before a judicial body on both facts and law in accordance with Article 46 of the recast Asylum Procedures Directive, steps to modify the procedure have been taken. Among them is the replacement of the Refugee Reviewing Authority (RRA), which is not a judicial body but has been responsible for examining appeals on both facts and laws, by the Administrative Court. In practice, however, the RRA has yet to be abolished and continues to review asylum decisions out of a backlog of approximately 650 cases.

The report also provides up-to-date information on detention policy and conditions in Cyprus and legal changes regarding the representation of unaccompanied children.

For further information:

 

Lack of safe and legal routes results in ever more deadly journeys

UNHCR and MSF have released reports underlining the consequences of EU migration policies restricting access to the EU. Without safe and legal access to protection, migrants are at the mercy of smugglers and pushed to risk their lives on ever more dangerous routes. 

The UNHCR report ‘Desperate Journey’ establishes that while an increasing number of people seeking protection entered the EU by crossing the Mediterranean from Libya to Italy, the number of crossings to Europe from Morocco and Turkey went down compared to 2015. UNHCR further highlights the fact that the proportion of children among people entering Italy has doubled in the last year. In Greece, 87 percent of migrants arriving are coming from the world’s top ten refugee producing countries.

The MSF report ‘Dying to Reach Europe: Eritreans in search of safety’ is based on testimonies of Eritreans who fled their country. The report highlights the dire living situation of Eritrean neighbour states Sudan and Ethiopia leaving Eritreans with limited regional alternatives and making them the second largest nationality arriving in Italy in 2016 and largest in 2015. All Eritreans interviewed by MSF had suffered from or witnessed severe violence during their journey. Every single interviewee have been held captive at some point during their refuge, while half have seen fellow refugees die.

"It is vital that the EU, Member States and other governments provide channels to safety and protection for […] people fleeing conflict and persecution. Efforts to manage migration should not externalise border controls to unsafe countries – wherever they may be – or make aid funds conditional on preventing migration,” stresses MSF General Director Arjan Hehenkamp. Heads of State and Government meet in Brussels in the end of this week to discuss progress on decision taken at the informal Malta summit concerning the Central Mediterranean Route.

For further information:
 

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