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EDITORIAL
Campaigning for the European Parliament elections is in full swing with many MEPs back home and a deceptive sense of calm in Brussels. On asylum and migration certain political and legislative initiatives are still moving, however.
After the Council failed to follow through on preliminary agreements reached with co-legislator the European Parliament in June 2018, it appeared that the CEAS legislative reform package was on its last legs. Both the Council and the Austrian Presidency preferred to focus on externalisation fantasy options, rather than persisting with the reform.
ECRE’s conclusion was that for the short to medium term, the advocacy context would be the existing legal framework but with bolstered agencies and added return. This requires a focus on advocating for rights-based compliance with existing EU asylum law, including improving reception conditions and asylum decision-making. Gaps in compliance or implementation contribute to violations, crises and the “asylum lottery”, with related problems of secondary movement and irregularity, on a daily basis. A combination of monitoring, support, and infringement proceedings – carrot and stick – is needed from the EU.
On the fraught question of Dublin, in the long-term, yes, the rules must change to create a system of responsibility sharing which is fair and efficient for asylum-seekers and Member States alike, with a fundamental revision of the first country rule. But that can’t be agreed due to the divisions among the Member States. In the meantime, within the current law political choices can be made to preserve the right to asylum and to make the system function better. ECRE’s new strand of advocacy sets outs its analysis and recommendations, which include prioritisation of family reunification provisions to get people reunited with their families; use of available discretion to dispense with costly and often ineffective efforts to transfer people back to Member States where reception conditions are inadequate or where flaws in decision-making generate the risk of refoulement; and use of the humanitarian clause of the Regulation to relocate people, particularly in the context of disembarkation.
On the latter, with legislative efforts slowed or redirected, there are clear and feasible opportunities for practical cooperation on temporary arrangements for disembarkation and relocation at Europe’s borders. ECRE has proposed a contingency plan, covering an agreement on disembarkation and temporary relocation arrangements. This is a humanitarian imperative but it is also necessary to avoid stand-offs taking place every time a ship arrives, which allow extremist anti-migration politicians to grandstand, damage prospects for cooperation with African countries (including on areas of EU interest such as return), and absorb the time and energy of senior policy-makers and politicians.
In the absence of a deeper reform of Dublin, temporary arrangements will demonstrate solidarity. With 700,000 people stuck in Libya, many subject to abuse, including torture, rape, and labour exploitation, this issue is not going away whatever misguided efforts to reduce “pull factors” are put in place (clue: the Libya situation is about push factors not pull factors). To minimise political exploitation and truly support solidarity, temporary arrangements have to cover all coastal states, all routes, and all persons seeking asylum.
With enough Member States already involved, an agreement is within reach. Efforts of the European Commission need to be focused on clinching this deal, not on running around North Africa.
There will be a role for both the Commission and EASO in implementing the practical cooperation arrangements. As EASO evolves into the EU Asylum Agency in practice and in law, its focus should be on compliance and support to make asylum systems, including solidarity mechanisms, function within Europe. Too many Member States would rather support efforts to use EASO in operations and initiatives to limit access to protection.
The debates show that defensive efforts to mitigate potential damage are still needed. There is a strong focus currently on border procedures, with provisions in the recast Return Directive and in the latest iterations of the Asylum Procedures Regulation (and of course the controlled centres proposal). The existing legal framework allows for the use of border procedures under certain conditions, and ECRE has already used the AIDA database to analyse problematic practices. The objective underlying the proposals under discussion is to stop and detain people at borders, carry out truncated procedures, and rapidly return them.
The lessons learned from the “Hotspots” experience are relevant. At borders, using the containment centre + border procedure model creates a strong risk of detention, in that restricting people’s movement becomes automatic and arbitrary when large numbers are arriving. In practice, “resolving” cases and “removing” people quickly is often not possible, leading to people being contained unlawfully for long periods. Carrying out a fair procedure in these circumstances is difficult, even if procedural guarantees are reduced (which ECRE objects to because it leads to substandard asylum procedures).
This approach rests on the fiction of non-entry which is being stretched to its limits and likely to be subject to increasing legal challenge before the courts. Rather than insisting on expanded or mandatory use of such concepts, investment in the regular asylum system and efficient decision-making there would be wiser. Many of these efforts rest on assumptions that there are large numbers of “illegal” migrants breaching Europe’s borders, none of whom have protection needs, and all of whom can be returned. And that everything will be OK if that happens. But on all points the situation is far from that simple.
Linked to the border and return issues is the legislative proposal on the changing role of Frontex, which may be concluded before the elections. The latest positions from the Council and Parliament show some positive changes, including removal of the reference to controlled centre. ECRE’s recommendations include the need to bolster the resources, independence and scope of activities of the Frontex Fundamental Rights Officer (FRO). As Frontex’s mandate and resources expand so does the risk of its involvement in rights violations. The FRO serves as both a preventive and accountability mechanism. A robust individual complaints is also essential. Lessons can be learned from the experience of the EU’s Common Security and Defence Policy (CSDP) missions, where human rights advisors are now standard and better resourced positions, with support from planning and operational staff in Brussels. Complaints mechanisms and a code of conduct are other tools which can assist with accountability of staff deployed by Member States (which remain largely responsible for their conduct in the case of Frontex as for CSDP).
ECRE also recommends the deletion of plans to expand Frontex’s role in preparation of decisions and in third countries, where plans include management of return operations in third countries beyond those at the EU’s borders and other as yet unspecified activities. There is a real risk that such efforts become a parallel foreign policy, undermining EU external policies, which are based on the Global Strategy and have been built up by the External Action Service at some political and financial expense since ratification of the Lisbon Treaty. The involvement of an EU border agency in migration control activities which concern migration from one third country to another far distant from the EU borders, is likely to damage diplomatic, trade and other relations.
A final area where things are moving is the Multi-Annual Financial Framework (MFF), negotiations on the next EU budget, with positions developed and decisions taken now which will affect the final outcome (notwithstanding the deals, cuts, and changes that always occur in the final stages of budget negotiations). ECRE’s recommendations focus on use of the funding to support asylum systems and integration/inclusion in all European countries, as well as incentivising solidarity and penalising breach of the rule of law.
So more is going on than meets the eye – with some potential for positive changes but continued risk of bad outcomes. Many of these ongoing efforts could ultimately have a greater impact than the proliferation of “new” concepts of the last eight months. Thus, efforts to analyse and advocate in Brussels and Capitals are not taking an election campaign break.
Editorial: Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)
 
OP-ED
By Lucy Mayblin, Senior Lecturer in Sociology at Sheffield University. Lucy's research focuses on asylum, human rights, policy-making, and the legacies of colonialism. She is the author of ‘Asylum After Empire: Postcolonial Legacies in the Politics of Asylum Seeking’ (Rowman and Littlefield International, 2017).
Governments in Europe, and indeed beyond, use many different tools in attempting to decrease the numbers of people arriving in their countries in order to seek asylum. Some of these measures involve border controls but since the late 1990s there has been a growing interest in tackling ‘pull factors’. That is, things that might be potentially desirable conditions, such as access to the labour market, or generous welfare support packages, which could, the theory goes, act as a migratory pull. Policymakers across Europe, but most notably in the UK, have consequently sought to remove these attractive conditions in the hope that doing so will have a bearing on the numbers of applications for asylum received.
Economic pull factors have been a particular focus of attention in the UK. This is because many politicians believe that a large number of asylum seekers are not real refugees but are instead economic migrants trying to cheat the system. As the numbers of asylum applications from non-Europeans increased at the end of the twentieth century, these sorts of assumptions around asylum seekers not being ‘genuine’ or as deserving as those in the past, have become ever more popular.
This idea is underpinned by an assumption that potential asylum seekers are ‘rational economic actors’ –that they have access to perfect information about a suite of potential host countries and make decisions according to economic cost/benefit criteria. It also assumes that they are able to execute their migration plans relatively straightforwardly unless national governments step in with policy interventions to both physically stop them moving, but also, importantly, to disincentivise migration. Of course, this completely misunderstands the nature of refugee journeys.
Refugee journeys to Europe are complex and dynamic. They are complex because they concern people from a range of countries, ethnicities, languages, religions, education levels, genders, ages, sexualities, and access to resources fleeing for many reasons in many country contexts. They are usually making journeys with imperfect information, changing migration plans on their way, encountering other migrants, humanitarian actors, border guards, media personnel, and smugglers, who change things for them in various ways. Not only is it hard to generalise across these diverse experiences, but refugee journeys are also dynamic. By dynamic I mean that they are ever changing –the nationalities of displaced peoples, their languages, ethnicities, the resources that they have access to and the journeys that are accessible to them, change every year as situations which produce refugees. This complexity and dynamism cannot be logically simplified by suggesting that would-be asylum applicants in general migrate from A to B because of variable X. This is simply not how refugee migration works.
It is for this reason that researchers have been unable to prove that economic pull factors have any bearing on numbers of asylum applications. Despite there being a lot of research in to why asylum seekers choose one country over another, not one study has found a long term causal link between welfare and work policies and numbers of asylum seekers. This is in part because using large scale datasets and attempting to show correlations between numbers of asylum seekers and particular policy interventions in particular countries at particular points in time is not possible in complex and dynamic cases, such as refugee migration. Not only are refugee migrations complex and dynamic, but policies seeking to act upon them in potential host states also regularly change. The simplistic policy rationale, then, repeated in parliament and press statements over and over again for two decades, is based on nothing.
What the research does show us is that known ‘pull factors’ are not things that can be easily addressed by policymakers. They include family and community ties, histories of colonial relations between sending and host country, and general imaginings of a host country being safe, peaceful, and the rule of law upheld (irrespective of actual policies). Despite the lack of evidence for policies on welfare and work having any demonstrable effect, the policy of restricting the economic rights of asylum seekers in order to remove pull factors continues. The upshot of this for asylum seekers in the UK, where my research is focused, is that almost none have the right to enter the labour market, making them dependent on welfare payments called ‘asylum support’. The welfare support offered to asylum seekers is then set at around 50% of Job Seekers Allowance –the welfare benefit paid to unemployed citizens. Job Seekers Allowance is already not generous; the Joseph Rowntree Foundation for example has been arguing in recent years that it is too low to keep people out of poverty at just 40% of the minimum income standard.
But it’s in research interviews with policymakers and politicians where we really get to the heart of this because civil servants -policy advisors who have worked in the Home Office- tell me they know there is no evidence for the economic pull factor. To put it very briefly, they explain that though there is no research evidence to support the policy, they have a clear steer from the Home Secretary (speaking here of successive Home Secretaries since 2002) about appropriate policy approaches. Appropriate policy approaches are those that will be well received by the public, not those that are grounded in research evidence. What this really means is that through building up my own body of research evidence (discourse data, interviews, systematic review, statistics) I now know that asylum policy is based not necessarily on what works, but on what the Home Secretary perceives the public to favour. In this case, the public are perceived to favour the impoverishment of asylum seekers.
But what the public favours has to be based on highly simplified analyses of extremely complex phenomena because the general public does not contain many people who are experts on refugee issues, or who have ever met an asylum seeker or a refugee. The existence of people wanting to seek asylum is not something that can be necessarily solved using national level policy measures. It is likely that asylum policy will always be based on simplified analyses of public opinion. This may accord with democratic principles, but the continued erosion of the rights of refugees undermines the claim that human rights are a core British value, and we may find that the erosion of fundamental values for those on the margins of society is bad for all of us.
ECRE publishes op-eds by commentators with relevant experience and expertise in the field who want to contribute to the debate on refugee rights in Europe. The views expressed are those of the author and does not necessarily reflect ECRE positions.
EUROPEAN DEVELOPMENTS
This week the EU and UN co-chaired the third Brussels Conference on Supporting the future of Syria and the region. It convened representatives from 57 countries and more than 20 international organisations and UN agencies. Ahead of the Conference, two days of dialogue with civil society representatives and decision-makers took place.
Federica Mogherini, the High Representative of the Union for Foreign Affairs and Security Policy, stressed that the purpose of the conference was to support the UN-led political process and to mobilise international financial support for Syrians inside and outside the country.
In light of the immense humanitarian needs, with over 11 million Syrians in need of humanitarian assistance and more than 5.6 million Syrian refugees displaced outside the country, the conference mobilised aid to Syrians inside the country and in neighbouring countries, including for hosting communities. The pledges totaled € 6.2 billion for 2019, and multi-year pledges of close to € 2.1 billion for 2020 and beyond.
Among the issues discussed during the days of dialogue and the Ministerial meeting were returns to Syria and support to reconstruction. Various civil society organisations, including Syrian organisations, made the case that due to the ongoing conflict, the risk civilians face, which includes forced conscription or detention, unexploded services, the lack of basic services and the inability to monitor what happens to people once they return, there should be no organized or assisted returns to Syria. The joint EU and UN declaration echoed this, by stating that “conditions inside Syria do not lend themselves to the promotion or facilitation of organised voluntary returns in conditions of safety and dignity in line with international law.” The Independent International Commission of Inquiry on Syria warned that it is neither safe nor sustainable for refugees and internally displaced people to return to their homes in Syria.
Regarding reconstruction, the EU reiterated that support for this will only be possible if a credible political solution is underway in Syria. It also stressed that “a successful reconstruction process also requires minimal conditions for stability and inclusiveness, a democratic and inclusive government guaranteeing people’s safety and security, an agreed conflict-sensitive development strategy, reliable and legitimate interlocutors as well as guarantees in terms of funding accountability. None of these conditions are yet fulfilled in Syria.”
No commitments on resettlement and other safe and regular pathways for refugees were made at the conference. Resettlement submissions from Turkey, Lebanon, Jordan, Iraq and Egypt decreased considerably since 2016 due to limited resettlement places.
Further information:
The European Asylum Support Office (EASO) has published its guidance note and common analysis on Nigeria.
The Country Guidance reflects the common general assessment of the situation in Nigeria by senior policy officials from EU Member States with regards to the different elements of qualification for international protection under the Qualification Directive, along with guidance on relevant individual circumstances which should be taken into account. The Guidance, while not being binding, “aims to assist in the examination of applications for international protection by applicants from Nigeria, and to foster convergence in decision practices across Member States.”
With regards to the qualification for refugee status of persons with particular profiles, for example, the guidance note differentiates between three types of profiles. First, profiles which, in general, lead to a well-founded fear of persecution, including individuals targeted by Boko Haram and LGBT persons. Second, profiles that may lead to a well-founded fear of persecution in relation to certain risk-enhancing circumstances, e.g. human rights activists, Christian and Muslim minorities as well as women and girls. Third, profiles which solely belonging to does, in general, not lead to a well-founded fear of persecution, such as individuals threatened in relation to ritual killings or with severe medical issues.
The assessment is based on EASO’s six Country of Origin Information (COI) reports on Nigeria, EASO training material and practical guides, taking into account the jurisprudence of the Court of Justice of the European Union (CJEU).
It is the second Country Guidance published by EASO following the pilot on Afghanistan, which was released last June. The joint assessment and interpretation of the situation in main countries of origin forms part of the EU’s exercise to harmonize decisions on international protection from applicants of these countries, which started in 2016.
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NATIONAL DEVELOPMENTS
The updated Country Report on the United Kingdom provides a detailed account of developments in the area of asylum procedures, reception conditions, detention and content of protection.
Two new policies were introduced in relation to unaccompanied children brought by the UK government from other EU Member States. The first states that children transferred under Section 67 of the Immigration Act 2016 (‘Dubs Amendment’) would be granted leave even if they do not qualify for refugee or subsidiary protection. The second provides for similar leave to be granted to children transferred here when the Calais camp was cleared in October 2016.
Asylum procedure: Revised guidance in relation to inadmissibility, including the safe third country concept, policy and practice was published in October 2018. The Home Office also published updated guidance on the registration of asylum applications.
The Upper Tribunal found in the case of SM that the situation of a particularly vulnerable person warranted suspension of a Dublin transfer to Italy, as circumstances were “markedly different” from established High Court case law on transfers to Italy.
Reception conditions: There are no substantive differences in relation to the overall support available to asylum seekers, although significant developments include a successful legal challenge to the level of financial support given to people who are recognised as likely victims of modern slavery (trafficking).
With regard to living conditions in decentralised accommodation for asylum seekers, the Home Affairs Select Committee concluded in its December 2018 report that very little had improved and that the relationship between the Home Office and local authorities had deteriorated since its 2017 report. New contracts for the management of accommodation were approved in January 2019 for a ten-year period.
Detention of asylum seekers: Several detention policies were amended following the change in definition of torture used by the UK government. The Immigration Removal Centre Campsfield was closed down in December 2018.
*This information was first published by AIDA managed by ECRE
The updated AIDA country report on Poland maps the latest developments in the asylum procedure, reception conditions, detention and status of persons obtaining international protection in Poland.
Asylum procedure: Access to the territory and to the asylum procedure remains problematic at the Terespol border crossing border point between Poland and Belarus. Notwithstanding several interim measures imposed by the ECHR on the Polish authorities prohibiting removal where the applicant expressed an intention to apply for asylum, this practice continued in 2018 and the Commissioner for Human Rights as well as NGOs continued to challenge this practice. A May 2018 judgment of the Supreme Administrative Court, dismissing Border Guard practice whereby only a memo instead of a full protocol is issued concerning interviews to establish the purpose of stay, is ignored by the Polish authorities on the basis that this is not required under the Schengen Borders Code.
In 2018 asylum seekers continued to face obstacles in accessing state funded free legal aid, while lack of funding for NGOs further undermined their capacity to provide legal assistance.
Detention of asylum seekers: The situation of asylum seekers in detention continues to be dire. The timely identification of victims of violence remains the main problematic issue in Polish guarded centres. The algorithm used by the Border Guard to identify victims of violence has been criticised by the Polish Commissioner for Human Rights as ineffective and incompatible with the Istanbul Protocol as it does not guarantee immediate release of victims of violence from the guarded centre. Access to mental health care continued to be flawed in some detention centres due to the lack of sufficient psychologists and lack of awareness of detention centre staff on how to ensure the presence of interpreters during consultations.
Content of international protection: In 2018 mainly beneficiaries of international protection from the Russian Federation continued to be deprived of international protection status in Poland in 2018, although cessation and withdrawal are not systematically applied to them. The withdrawal of protection status appears to be applied mainly in cases where Russian citizens visited their country of origin after obtaining such status and therefore on the basis that they have voluntarily accepted the protection of the Russian Federation. Subsidiary protection was withdrawn from Russian citizens predominantly on the basis that the reasons for granting international protection no longer existed or have changed in such a way that protection is no longer required. However, in 2018 some Russian citizens were also deprived subsidiary protection because they were considered a security threat or there were serious grounds to believe that they committed a crime.
Finally, additional conditions have been introduced for international protection beneficiaries for obtaining long-term residence in Poland, as at least B1 level knowledge of Polish is required since 12 February 2018.
*This information was first published by AIDA managed by ECRE
The updated AIDA reports on Romania and Serbia track legislative developments and practice relating to the treatment of people in need of international protection. Access to the territory remains a critical regional problem, as successive push backs continue to be reported at the borders of the two countries, as well as others such as Bulgaria.
Key developments in Romania
Access to the territory: Reports from 2018 show a decrease in the number of collective expulsions to Serbia in comparison with 2017. However, at least 746 persons were collectively expelled from Romania to Serbia during the year. Issues on information provision and interpretation at the border continued to be reported. In relation to irregular exits to Hungary, whereas up to 2018, asylum seekers or other migrants apprehended while trying to irregularly cross the border into Hungary were only fined, the situation changed in 2018 when the Regional Court of Chișineu-Criș started delivering convictions with a sentence of six months’ imprisonment, coupled with a two-year entry ban from the territory of Romania.
Interpretation: The availability and quality of interpretation has remained an issue. In Rădăuţi, as in Giurgiu, IGI-DAI uses double interpretation from Kurdish to Arabic and from Arabic to Romanian. The interpreter for Kurdish was an asylum seeker and the interpreter for Arabic was not qualified. This was brought to the attention of the Regional Court in an appeal lodged by an asylum seeker against a negative decision taken by IGI-DAI, which acknowledged contradictions and vague statements due to double interpretation.
Detention of vulnerable applicants: According to the amended Aliens Act, if the foreigner declares that he or she is a minor and cannot prove his or her age, but there are serious doubts about his minority, he or she will be considered an adult. In this situation, IGI requests an age assessment, with his or her prior consent. As a consequence the child will be treated as adult and placed in detention pending the age assessment, until his or her age is confirmed. In practice, vulnerable groups such as families and pregnant women have been detained in 2018.
Key developments in Serbia
Asylum reform: The new Asylum Act came into force on 4 June 2018, introducing an entire set of novelties. Among those, the most important ones are related to the accelerated procedure and the border procedure, more precise provisions on the grounds for persecution, sur place refugees, acts of persecution, actors of persecution, actors of protection in the country of origin, the internal flight alternative, and grounds for exclusion. Additionally, the safe third country provision has been improved, the first country of asylum concept has been introduced and the rights between persons granted refugee status and subsidiary protection have been aligned. However, the real effects of all of the enlisted novelties are yet to be seen during the course of 2019, since the old Asylum Act continued to be applied in the vast majority of the ongoing proceedings.
Access to the territory: Access to territory and the asylum procedure remains a serious problem, especially in the practice of police authorities in the border area with Bulgaria and North Macedonia, as well as at the Nikola Tesla Airport. The new Foreigners Act that came into force on 1 October 2018 also gives a lot of reasons for concern, taking in consideration that the newly introduced decision on the refusal of entry cannot be challenged with an appeal that has automatic suspensive effect. Coupled with the practice of push backs, the decision on refusal of entry will most likely become an additional obstacle for persons in need of international protection in accessing the territory and the asylum procedure respectively.
Safe third country: The safe third country concept still remains the most common concept applied in the asylum procedure, even though the rate of its application has dropped to 65%, and more cases were examined on the merits in comparison to previous years. However, numerous decisions proclaiming Bulgaria, North Macedonia and even Turkey as ‘safe’ clearly lack any assessment as to the risks of refoulement in these countries, and are not followed by individualised guarantees that asylum seekers would be allowed to enter the territory and the asylum procedure there.
*This information was first published by AIDA managed by ECRE
REPORTS & NGO ACTIONS
According to investigations by Platforme National de Protection Migrants (PNPM), the vast majority of people who die in Moroccan waters when trying to reach Europe, are never identified. The report raises concerns over obligations under international law to respect the dead.
A report by the Platforme National de Protection Migrants finds that a majority of the dead found along the Moroccan coastline after trying to cross the Mediterranean have never been identified. In morgues of the cities investigated, numbers of official identification range between 2% in Tangier and 18% in Nador. Responsible authorities lack resources and motivation and the methods used decrease the chances of identification, the report finds.
The report represents a first attempt to understand how people who died at the Moroccan maritime border are identified and concerns people that have been found inanimate in the sea after a boat embarked towards Europe went shipwrecked. It is based on qualitative data obtained in interviews with state and non-state actors in four cities at the border: Larache, Tangier, Tetouan, Nador.
PNPM makes a set of recommendation to improve the process of identification. As most survivors are considered “irregular migrants”, they are swiftly separated from the dead and often detained, forcibly displaced or expulsed, the report notes. PNMP recommends to include survivors of a shipwreck in the process of identifying the dead, as people often start the journey to Europe in groups and know each other. To facilitate the identification of the dead bodies via DNA analysis, PNPM also recommends, local authorities should refrain from arresting relatives, who come to the morgue to provide DNA samples, and often are themselves undocumented. PNMP further advises, morgues should take into account digital data, e.g. by UNHCR, and increase cooperation with consulates of countries of origin.
International law obliges states to respects the dead and the identification of the deceased is the first step to fulfil this obligation, the report stresses. PNPM is concerned that as their families do not receive the news of the passing of their family member they face emotional and practical challenges – regarding emotional closure as well as questions of inheritance, insurance, parental entitlement.
The report was compiled in light of the rising level of attention given to ‘irregular’ migration in Europe over last thirty years. This came with the efforts of European governments to “fight against it” by stepping up border protection measures and increase cooperation with North African states. There is no official data on the number of people deceased at the Moroccan maritime border and how they are treated, PNMP notes.
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BEYOND EUROPE
This week, the U.N. special rapporteur on Myanmar voiced deep concern over Bangladesh’s plan to relocate 23,000 Rohingya refugees in April to a remote island, saying it may not be habitable and could create a potential “new crisis”.
Humanitarian groups have criticized the relocation plan, which aims to ease the overcrowding in Cox’s Bazar, saying the island in the Bay of Bengal is vulnerable to frequent cyclones. Biraj Patnaik, Amnesty International’s South Asia Director stated that if they implement this plan the Bangladesh government will risk; “undermining the protection of the Rohingya and squandering the international goodwill it has earned. In its desperation to see the Rohingya leave the camps and ultimately return to Myanmar, it is putting their safety and well-being at risk.”
The island is also very isolated, a three hour boat ride from the mainland. Reports from the island itself tell of ‘prison like’ conditions, with families to be housed in concrete breeze-block rooms, which measure 2m x 2.5m, and have small barred windows. There is one bathroom per block, with each block made up of around 25 housing units, each unit for one family.
Yanghee Lee, U.N. special rapporteur on Myanmar, visited the island in January. She warned the UN Security Council “there are a number of things that remain unknown to me even following my visit, chief among them being whether the island is truly habitable. Ill-planned relocation, and relocations without the consent of the refugees concerned, have the potential to create a new crisis.” Lee also highlighted concerns regarding the return of Rohingya people from India, Saudi Arabia and India and a possible return to the situation in 2015 where thousands of Rohingya set off in fear of their lives from the Bay of Bengal in boats that were not seaworthy. Many became stranded at sea and died.
Currently around 730,000 Rohingya refugees are living in overcrowded conditions in Bangladesh’s Cox's Bazar district, which now hosts the largest refugee camp in the world. Rohingya began arriving in Bangladesh in 2017 fleeing a wave of mass killings, rape, torture and the burning of hundreds of their villages by the Myanmar military. A UN fact finding mission in 2018, said that the 2017 military campaign was orchestrated with “genocidal intent”. In September last year, the ICC issued a statement saying that the “court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, as well as potentially other crimes.” A “preliminary examination” by ICC prosecutors began earlier this month. Conditions are still too perilous in Myanmar for the Rohingya people to return home.
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INTERVIEW
An Interview with Sabine Jansen who works as an asylum researcher for COC Netherlands, the Dutch LGBTI organization.
You have done extensive research on the treatment of LGBTI asylum seekers in the Netherlands – what were the main conclusions?
A few words on context of my latest research. The initial comparative research across 25 European countries we conducted in 2010-11 revealed huge differences in the way LGBTI asylum cases were processed. In an attempt to clarify how to deal with asylum applications based on sexual orientation the Dutch Council of State then submitted preliminary questions to the Court of Justice of the European Union twice, leading to judgements (XYZ5 and ABC6)[i] and ultimately changes of Dutch policies. In my latest study covering 267 files from the Dutch Immigration and Naturalisation Service (IND) and several hundred judgments I am following up on the current situation after the impact of this change of policies.
An important challenge for LGBTI asylum seekers used to be the idea that they could return to one of the 70 countries in the world where homosexuality is criminalised and simply ‘stay in the closet’ live discretely. I remember an old case of an Algerian man who was raped by the police where the Dutch asylum authorities were of the opinion that this was an individual attack and not the result of general persecution – that the man could simply seek protection from other members of the police force and this in a country where being homosexual is a crime. This is no longer possible according to Dutch policy, but now instead there is a strong tendency of doubting the credibility of claims of homosexuality. Closely linked to this is a set of stereotypical assumptions based on which asylum authorities assess the sexual orientation of asylum seekers or the credibility of their claimed sexuality.
What are the key-assumptions or narratives at play in the Dutch asylum process regarding LGBTI asylum seekers and do they match the reality of the individuals?
LGBTI asylum seekers are assumed by Dutch asylum authorities to have gone through a process of awareness and a process of self-acceptance, after they found out they were different than other people. The stronger the hostility LGBTI people meet in the country of origin, the more they are expected to have experienced and are able to talk about these processes. They are for instance supposed to have feelings of shame, be self-destructive, suffer from psychological problems or in other words show signs of victimization. You are not supposed to link your sexuality or the discovery of your sexuality with feelings of joy, love or excitement but rather reactions such as tears of remorse or even being suicidal. In other words unless your feelings and reactions correspond with a set of pre-defined and schematic assumptions you are less likely to be believed. As a result of my research, the Dutch government has decided to eliminate several of these stereotypical criteria from the official policy, however asylum authorities still seem to use them on a regular basis.
For LGBTI asylum seekers their sexual orientation may affect their case and transform from a personal to a legal question – does this cause scepticism or mistrust from authorities?
In fact 85 per cent of the cases with a negative outcome were rejected based on authorities not believing the sexual orientation of applicants.
One of the more general arguments used to justify or legitimize the lack of credibility assigned to asylum seekers regarding their sexuality by Dutch asylum authorities is that there is a proportionate increase of such claims but as there are no public statistics because they are considered a violation of privacy such claims are hard to check.
The question is of course whether such an increase would in fact be an indication of deliberate attempts from asylum seekers to make false claims. Maybe more than before LGBTI people realise that their sexual orientation or gender identity could be a ground to claim asylum. At the same time maybe people are afraid to share their sexuality with authorities, which might result in submitting their sexual orientation or gender identity as the basis of their claim only at a later stage in the procedure, which in turn might unjustly affect the credibility.
The Netherlands is perceived as an open society with a comparatively well-functioning asylum system – what does that suggest about the overall situation for LGBTI asylum seekers?
As mentioned I have not done comparative research, but I would assume there are still significant differences and challenges. Policy and practice in countries like UK, Sweden and Norway seem to be based on similar stereotypes as I found in the Netherlands while I would not exclude the possibility that the situation for LGBTI asylum seekers in other parts of Europe is even worse.
[i] CJEU (Court of Justice of the EU) 7 November 2013, X, Y and Z v Minister voor Immigratie en Asiel, C-199/12, C-200/12 and C-201/12, ECLI:EU:C:2013:720, and ABRvS [Administrative Jurisdiction Division of the Council of State] 18 December 2013, ECLI:NL:RVS:2013:2423, (X).
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FEATURED CAMPAIGNS
ECRE European Parliament Campaign: Your Vote Our Future! It is time to oppose the far-right populists and fight for a Europe respecting human dignity and fundamental rights – the European Parliament elections provide this opportunity. Every vote counts!
Choose Respect: Together We Can Tackle Anti-Migrant Hate Speech. Hate speech against migrants and refugees is all too common, both online and in the real world. But it isn’t always easy to know how to react effectively – and it’s even harder to respond in a way which changes attitudes. In the run-up to elections, politics is a frequent topic of debate. But if the discussion turns nasty – either around the dinner table or on your social media feed – here are some tips to help you make a constructive contribution to a more positive discourse.
End Immigration Detention of Children (Belgium): You don't lock up a child. Period. Detention of children violates fundamental rights and can cause irreparable damage to children’s well-being and development. It is unacceptable that in Belgium, in 2018, children are exposed to the trauma's that are caused by detention; alternatives do exist. Sign this petition to ask the Belgian government to stop detaining children, and to enshrine in law a prohibition on child immigration detention. If we speak up together, we can tackle anti-migrant hate speech!
EVENTS
- Multiple dates until 2 April 2019, London, 9th International Refugee Law Seminar Series, Refugee Law Initiative
- 8 March- 5 April 2019, Geneva, International Refugee Law, Geneva Academy
- 15- 16 March 2019, Jordan, Palestine Refugees and International Law, Refugee Studies Centre, University of Oxford
- 18 March 2019, London, Introduction to Children in Emergencies, RedR UK
- 25 March 2019, London, The Right to Rescue: A Human Rights Defender Framework, Queen Mary University of London
- 28- 29 March 2019, Ghent, Conference 'Families Beyond Borders: Migration with or without Private International Law', Ghent University Institute for Private International Law
- 6- 10 May 2019, Toronto, The Centre for Refugee Studies Annual Summer Course
- 16- 17 May 2019, London, Child marriage in forced migration: social processes in-flux, The British Academy
- 3-5 June 2019, London, Refugee Law Initiative Fourth Annual Conference, ‘Rethinking the “Regional” in Refugee Law and Policy’, Refugee Law Initiative
- 17-28 June 2019, Geneva, Summer School on Global and Regional Migration Governance, University of Geneva
- 1- 5 July 2019: Budapest, Conceptualising, Navigating and Representing the Field in Migration Studies, Central European University, Summer University
- 1- 12 July 2019: Brussels, 2019 Summer School on EU Immigration and Asylum Law and Policy, Odysseus Network
- 29 July- 2 August 2019, Tilburg, Statelessness Summer Course: Global Focus 2019, Institute on Statelessness and Inclusion
- 27- 30 August 2019, London, Geographies of Trouble/ Geographies of Hope, 2019 Annual International Conference, Royal Geographical Society- IBG
VACANCIES
CALLS FOR PAPERS & OPEN CALLS
- Call for participants: SOGICA: Sexual Orientation and Gender Identity Claims of Asylum, as soon as possible
- Call for Book Chapters, African Migrants and the Refugee Crisis, 30 March 2019
- Call for Applications: SOAS Sanctuary Scholarships (Scholarship Scheme, we aim to prioritise people who have precarious forms of immigration status) 31 March 2019
- Call for Papers: “Governing Migration outside ‘Fortress Europe”, The Centre for the Study of Global Human Movement, University of Cambridge, Abstracts by 31 March 2019
- Call for Proposals: "Unlocking Alternatives. Piloting new pathways to migrant case resolution", EPIM, 4 April 2019
- Call for Papers: Journal Social Sciences: Special Issue “Integration and Resettlement of Refugees and Forced Migrants”, 15 April 2019
- Call for Papers: The Center for English Translation and Anglo-Portuguese Studies (CETAPS): Congress calling for papers on refugee world(s), 15 April 2019
- Call for Applications: PhD Seminar, 2019 Summer School on EU Immigration and Asylum Law and Policy, Odysseus Network, 19 April 2019
- Call for Papers: University of Warwick: Workshop on Security, Borders and International Development: Intersections, convergence and challenges, 25 – 26 April 2019
- Call for Participants: IMISCOE PhD Summer School in Istanbul, Studying Integration and Social Cohesion - Theory, Practice, Method and Ethics of Conduct, 9- 14 June 2019
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