Summary of 2008
Some 238,400 people sought asylum in the EU's 27 member states, or 480 applicants per million inhabitants. The main sources were Iraq (29,000), Russia (21,100), Somalia (14,300), Serbia (13,600), and Afghanistan (12,600). In nearly 193,700 first instance decisions, authorities rejected more than 141,700 or nearly three-quarters of the applicant, granted about 24,400 refugee status and about 18,600 subsidiary protection, and allowed about 9,000 to stay for humanitarian reasons. Out of about 67,000 people crossing to Europe by sea, some 35,000 arrived in Italy and 2,800 in Malta, mostly via Libya. About three-quarters of those arriving in Italy applied for asylum and Italy granted around half of them refugee status or protection on other humanitarian grounds. Nearly all who arrived irregularly by sea in Malta applied for asylum and Malta found some 60 percent to be in need of international protection.
Greece reportedly held some 6,000 unaccompanied minors in detention throughout the year and deported nearly 1,200 of them.
In January, Chechens who sought asylum in Austria threatened suicide and rioted for several hours in a reception center to protest Austria's refusal to hear their claims. Austrian special police units subdued them and deported 27 to Poland under the Dublin Regulation, which generally makes the first EU country through which asylum seekers pass responsible to adjudicate their claims. (Austria grants protection to about 80 percent of Chechen applicants but Poland does so to less than 20 percent.) The Czech Aliens Police tightened its checks on trains, taxis, and other vehicles at the Polish border with the express intent of preventing Chechen asylum seekers from entering following enlargement of the Schengen Area at the end of 2007. Polish police apprehended Chechens on their side of the border. In Ukraine, assailants stabbed a 19-year old asylum seeker from the Democratic Republic of Congo to death.
Also in January, the European Commission launched an infringement proceeding against Greece at the European Court of Justice, reportedly for lack of legal guarantees of substantive examination of asylum claims after transfer under the Dublin Regulation.
Also in January, Switzerland accepted the return of Stanley Van Tha, an asylum seeker from Myanmar whom its Federal Migration Office had found not credible and refused to hear in 2003 because he had a passport. After the Refugee Appeals Board upheld that decision, authorities had to gag and bind him to a wheelchair to refoule him in 2004. Myanmar authorities then arrested and sentenced him, without trial, to 19 years in prison for endangering peace and security, unlawful departure, and use of a false passport. Before admitting error, Swiss authorities had claimed his imprisonment was likely for criminal reasons, refusing military service, or participating in a film criticizing his government. In November, Myanmar authorities released him and he escaped again to India where Swiss authorities gave him a ticket to Zurich where his wife and son awaited him.
In February, the Norwegian Immigration Appeal Board decided against returning asylum seekers to Greece under the Dublin Regulation based on reports of violations of asylum seekers' rights there. In March, a local court in Sweden ruled against returning a handicapped Iraqi asylum seeker to apply there. In April, UNHCR advised other governments similarly to refrain and to examine the cases themselves. Finland promptly did so but France refused. In July, a Dutch district court ruled that an asylum seeker who had entered Europe through Greece did not have to return there because "the Greek asylum procedure has so many shortcomings that it may be unable to meet its obligations under international refugee conventions."
In March, Italy tried seven Tunisian fisherman on trafficking charges for rescuing 44 Eritrean, Sudanese, and Ethiopians in distress when others would not and taking them to Lampedusa island in August 2007. Authorities confiscated their boats and they could receive up to 15 years imprisonment. Spain's public prosecutor, on the other hand, launched an inquiry in March into the September 2007 drowning of Laucling Sonko, an irregular migrant seeking to reach its Ceuta enclave. Spanish police reportedly intercepted his rubber dinghy with three others on board, towed it to within 100 yards of the Moroccan shore, and cut a hole in it, despite Mr. Sonko's protest that he could not swim.
In April, police shut the Accommodation Center for Refugees near Sofia, Bulgaria, after Iraqi refugees set fire to the furniture.
In May, Sweden repatriated a Libyan asylum seeker who had been active in the outlawed National Front for the Salvation of Libya, an organization whose members Libya has arrested and persecuted, according to Amnesty International. Libyan security forces arrested him immediately upon arrival and, according to opposition groups, tortured him for nine days whereupon he died. About a week later, authorities notified family members to pick up his corpse.
In June, the European Parliament approved a Returns Directive to harmonize standards for returning illegally staying third country nationals. This was the first immigration and asylum directive where the Parliament had co-decision power together with the European Council which represents the 27 Member States. Before that, the Parliament gave only non-binding opinions.
In July, the United Kingdom suspended deportations of more than 13,000 failed asylum seekers from Zimbabwe and Darfur.
In October, after a Ministerial Conference on Asylum in Paris in September, EU members adopted the European Pact on Immigration and Asylum, postponing completion of the Common European Asylum System from 2010 to 2012, after UNHCR and others found wide variance in standards under existing agreements. The Pact's leading principles include organizing legal migration, controlling irregular immigration, reinforcing border control, creating comprehensive partnerships with countries of origin, and "building a Europe of asylum."
In December, assailants on motorcycles seriously injured Afghan asylum seekers at three locations in the Greek port city of Patras. Days later, asylum seekers in Athens rioted for about an hour, setting trash fires and stoning vehicles, in response to what they perceived as neglect and hostility to their claims (see below).
Persons who claimed they were working for the Russian-appointed president of Chechnya, confessed to assassinating his former bodyguard Umar Israïlov in Austria in January 2009 because he had refused to withdraw allegations of torture against the leader before the European Court of Human Rights. The Austrian Government acknowledged that Mr. Israïlov had asked for its protection and that it had refused. Aware that assailants were pursuing him, Mr. Israïlov ran into a crowded street but collapsed after they shot and wounded him. Then they shot him twice in the head.
In December, Switzerland joined the Schengen Area and the Dublin system, lifting border controls between Switzerland and the 24 other countries in the Area by land immediately and, by March 2009, by air as well. Non-Europeans living and working in Switzerland with Swiss visas will not need separate visas for other countries in the Area.
Law and Policy
In general, European countries follow UNHCR's recommendations not to return rejected Iraqi asylum seekers to the southern and central parts of Iraq and Kurds only to the Kurdish areas in the North if they have family links there.
Under the Dublin Regulation, the EU countries through which asylum seekers first pass are generally responsible for adjudicating their claims and countries through which they pass later can return them to those countries. This sometimes seriously delays the presentation of claims and, in some cases, prevents it altogether. It can also result in detention to enforce transfers, separation of families, denial of effective opportunity to appeal against transfers, and reluctance of Member States to use the sovereignty clause to alleviate these and other problems. The Dublin Regulation also increases pressure on external border regions of the EU, where states are often least able or inclined to offer applicants support and protection.
Asylum grant rates vary widely, with northern countries like Sweden and Austria granting protection to about one-fourth of applicants and newer EU members and countries on the periphery, i.e., the ones through which asylum seekers generally enter, such as Greece and Slovakia granting about one in 30.
The EU's 2004 Qualification Directive requires members to grant refugee status to persons fleeing persecution by non-state actors and gender-based persecution and to include subsidiary forms of protection. The substance of its refugee definition broadly reflects that of the 1951 Convention except for its limitation to "third country national" or "stateless person" not including nationals of EU Member States. Besides being discriminatory, the repercussions may be greater as the EU enlarges and if other regions take it as a precedent. Notably, in 2008, nearly 900 Roma sought protection in Canada, making the Czech Republic a larger source of asylum claimants to that country than Iraq, Afghanistan, or Somalia.
The Directive's minimum standards also fall short of the 1951 Convention in their failure to recognize compelling reasons based on prior persecution as exceptions to the cessation of refugee status based on changes in country conditions. Its standards for internal protection alternatives to asylum are malleable enough for Germany and the Slovak Republic to consider almost any portion of the Russian Federation suitable for Chechens even as France does not. Most EU member states consider asylum seekers who pass through what they deem to be safe countries of transit to be ineligible for asylum and may return them to those countries, including fellow EU member states or countries that they deem to uphold the 1951 Convention. Several countries also apply accelerated procedures in cases they deemed to be unfounded, from countries of origin that they deem to be safe, or of persons without passports. These included 48-hour decisions in airports and shortened, non-suspensive appeals.
France uses airport transit visas to prevent asylum seekers with onward tickets, particularly Chechens, from stopping to apply in France. Libya, with whom, several European countries cooperate in migration matters, is not party to the 1951 Convention, had no cooperation protocol with the UNHCR and reportedly has a tacit agreement with Eritrea to return its nationals. France's new Aliens Bill grants asylum seekers at the border 24-hour suspensions of deportation to file appeals but the deadline for filing appeals inside the country was 15 days, suspending deportation for the appeal only in certain cases.
Under the Aliens Act of 2004, Germany revisits the basis of all grants of refugee status if the circumstances justifying them, namely the risk of persecution, have ceased and annulled the refugee status of 17,000 Iraqis. According to UNHCR, however, this process does not take into consideration whether any functioning government effectively protects the applicants' safety or basic rights.
Greece grants less than one percent of asylum application in the first instance and about 11 percent on appeal, giving few or no reasons for denials, even from particularly dangerous countries, and often returns asylum seekers, including Iraqis to Turkey. (Turkey has a readmission agreement with Iraq and does not apply the 1951 Convention to non-Europeans. UNHCR conducts status determinations and seeks resettlement for such refugees but Turkey occasionally expels even those UNHCR recognizes, including Iraqis.) The Athens office for submitting asylum applications accepts them only once per week, forcing applicants to line up and camp out the night before to submit their claims. Authorities began accepting applications daily for a brief period following the December riot but soon reverted to the weekly schedule.
Italy does not recognize gender-based persecution claims under the particular social group ground of the 1951 Convention relating to the Status of Refugees (1951 Convention). Although its Constitution provided a right of asylum, Italy has not fully implemented it into legislation.
Slovenia's 2008 Asylum Act applies accelerated procedures without complete hearings to all applications for asylum except those authorities deem "manifestly well-founded" or those separated children or persons with special needs file. It also allows the Government to expel persons appealing negative decisions before the outcome of those appeals.
Sweden's protection rate for Iraqi asylum seekers fell from 90 to 40 percent between 2007 and the beginning of 2008 following a court ruling that they had to prove individual persecution. Since February 2008, Sweden has a Memorandum of Understanding with Iraq whereby Iraq accepts its nationals that Sweden expels. The MoU makes no distinction between the north and other parts of the country despite UNHCR's warning that "Iraqis from central and southern Iraqi should be considered as refugees."
Switzerland's 1998 Asylum Act allows authorities to declare claims "manifestly unfounded" and to refuse to hear them if applicants cannot document their identity within 48 hours. According to its Supreme Administrative Court, drivers' licenses and birth certificates do not suffice as proof of identity. Only documents that the country of origin uses to establish identity are acceptable in order to facilitate repatriation upon rejection. The Court also holds, however, that authorities cannot refuse to hear claims based on lack of identification. The country does, however, grant asylum to virtually all Eritrean who refuse to serve in that country's military based on a 2005 Refugee Appeals Board decision noting their disproportionate punishment.
As of October 2008, the United Kingdom [will] bans any foreigner it expelled earlier from returning to claim asylum for 10 years regardless of any change in circumstances. It bans those who leave voluntarily from returning to apply for asylum from one to five years. The British Foreign and Commonwealth Office insists that Iraqi translators who formerly worked for the British Army must travel to Syria or Jordan and apply for resettlement through UNHCR with all other Iraqi refugees.
Countries grant subsidiary protection and refugee status at widely varying rates even to applicants of the same nationality. Sweden, for example, granted only just over 700 Iraqis refugee status but more than 2,900 subsidiary protection, while Germany granted refugee status to nearly 11,700 Iraqis and subsidiary protection to only 126. While subsidiary protection prevents refoulement, it does not necessarily include all the rights of the 1951 Convention, nor the rights to residency or to bring in family members that many states normally accord refugees. Also, subsidiary protection often requires a finding of "armed conflict" and various member states do not agree as to whether the situation in Iraq qualifies, resulting in protection rates for Iraqis ranging from 100 percent in Finland to zero in Greece.
In February 2009, the European Court of Justice (ECJ) handed down the Elgafaji case, its first on subsidiary protection for asylum seekers under the EU's 2004 Qualification Directive. The ECJ found that the Government had inappropriately required applicants to show that they would be "specifically targeted" because of their particular circumstances to qualify for subsidiary protection. The Directive does require "serious and individual threat to a civilian's life or person by reason of indiscriminate violence" in conflict situations and its preamble states that generalized violence does not "normally" create such a threat. The ECJ ruled, however, that this only meant that the more individual targeting the applicant could show, the lower the level of indiscriminate violence he or she would need to qualify. Targeting is not a requirement in exceptional cases where authorities find a level of indiscriminate violence such that a returned civilian would "solely on account of his presence ... face a real risk" of substantial and individual threat.
Detention/Access to Courts
Countries of the European Union have 224 immigration detention facilities with a total capacity of more than 30,000 people and, in some number of countries, there is no upper limit on length of detention. In Malta, detention of asylum seekers is mandatory, can last up to 18 months, and is under substandard conditions. Greece systematically detains illegal migrants including asylum seekers, unaccompanied minors as young as ten, torture and trafficking victims, disabled persons, and pregnant women from countries such as Iraq, Afghanistan, and Somalia in substandard conditions. Authorities in Greece's border areas generally release migrants who do not apply for asylum but hold those who do for the maximum period of three months and often much longer when authorities cannot deport them. Authorities issue deportation orders and other documents in Greek, but there are no professional interpreters on any of the islands where authorities hold migrants and/or asylum seekers. The Government provides no legal aid and detainees have almost no access to other legal advice. Authorities confiscate their mobile phones and provide no alternatives. Detention conditions for illegal aliens are overcrowded in Italy and amount to serious human rights violations in Greece.
Cyprus' Refugee Act does not allow for detention of persons merely for seeking asylum but does allow for up to 32 days' detention, with a court order, of undocumented asylum seekers unable to prove their identities. Nevertheless, the government held several for unlimited periods based on a Constitutional provision providing for detention to prevent unauthorized entry. Asylum seekers are entitled to documents within three days of application attesting to their status and their right to remain during the procedure.
In January, the Grand Chamber of the ECHR held that the United Kingdom's detention of an Iraqi asylum seeker in a fast-track procedure for seven days satisfied the permissible rationale of Article 5(1) of the European Convention on Human Rights: being "to prevent his effecting an unauthorized entry into the country." There was, however, no evidence the applicant was likely to abscond – authorities had released him twice before, asking him to return to them, which he had done. The motive appeared to be mere administrative convenience as the majority noted that the Government was under pressure to carry out 150 asylum interviews per day and "even small delays might disrupt the entire programme." Dissenting members noted that the Human Rights Committee's interpretation of Article 9 of the International Covenant on Civil and Political Rights required detention to be not merely lawful but necessary, proportionate, and "reasonable in all the circumstances" and not merely for accessibility or administrative convenience.
Member States frequently use detention to enforce returns or transfers. The newly adopted EU Returns Directive sets a maximum period for detention prior to removal of 18 months along with a five-year EU-wide re-entry ban.
The EU's 2003 Directive on Reception Conditions breaks new ground on the treatment of asylum seekers generally, beyond the protections of the 1951 Convention, but does not extend them unambiguously to asylum seekers in detention.
Freedom of Movement and Residence
The right of citizens of EU countries to freedom of movement and residence throughout the EU does not apply to refugees or asylum seekers. Even an EU Directive on long-term residents that grants freedom of movement to some categories of non-EU nationals does not grant such rights to refugees in general, although it does not require them to prove economic self-sufficiency or insurance coverage and counts their time as asylum seekers toward the duration requirement for long-term residence. It excludes beneficiaries of other forms protection than asylum.
The EU Reception Directive allows states to restrict the freedom of movement of asylum seekers within their borders and Germany requires those with "tolerated stay," including many Iraqis and non-Albanian Kosovars, to remain in certain regions of the country. Other countries have reporting requirements that restricted movement. Under the EU Qualification Directive, refugees and beneficiaries of other forms protection have the same freedom of movement as foreigners generally.
Refugees are entitled to residence permits and travel documents. Beneficiaries of other forms of protection were entitled only to residence permits, but they could receive travel documents if they could cite serious humanitarian reasons and could not obtain documents from their home country.
In January 2008, Germany's federal Administrative Court ruled that the Government could no longer restrict the residence of refugees to the locality that issued their residence permits simply because they received public assistance.
Right to Earn a Livelihood
Countries of the EU normally allow refugees to work freely but may, even under the terms of the 2004 Qualification Directive, restrict work rights for asylum seekers and persons with subsidiary protection. Austria requires subsidiary protectees to obtain work permits. Slovenia restricts refugees' right to work for one year. Cyprus allows persons with subsidiary protection, many of them Iraqis, to work only on farms for the first year. In January, the Czech Republic lifted its restriction requiring beneficiaries of subsidiary protection to apply for work permits. Germany denies work permits to persons with subsidiary protection for the first year and even afterwards if other aliens with work permits are available for a particular job. This condition ends only after four years of residence or three years of discretionary employment. Greece requires refugees to show employer statements that they intended to employ them and documents to prove the origin of necessary investment capital to get a permit for self-employment.
The EU Reception Directive and a Directive on refugee status and subsidiary protection allows states to restrict the work rights of holders of subsidiary protection based on the labor market. The Reception Directive grants access to the labor market only to asylum seekers who have not received a first decision within one year, and allows states to give priority to EU citizens and citizens of the European Economic States.
Public Relief and Education
Refugees generally receive public assistance on par with nationals. Poland, however, offers almost no public relief to Chechens because it only grants them subsidiary protection.
The United Kingdom denies childless asylum seekers housing and health services if they apply 72 hours or more after arrival with few exceptions. EU law grants asylum seekers the right to subsistence-level public assistance, but actual reception standards vary widely. States can limit beneficiaries of subsidiary protection to core benefits. Children of refugees and beneficiaries of subsidiary forms of protection have the right to education on par with nationals. Adult refugees or subsidiary protectees have access to the general educational system on par with other foreigners.
Hundreds of asylum seekers in Greece, including children, camp out in the port city of Patras in conditions UNHCR describes as "deplorable." The situation is much better, however, on the island of Leros, where authorities cooperate with local NGOs and local citizens donate food and clothing, despite more than 3,500 arrivals compared with fewer than a thousand the year before.
EU Member States exclude refugees and beneficiaries of subsidiary forms of protection from mainstream EU integration policies such as the European Integration Fund and the forthcoming European Integration Forum. Countries also sometimes use the ambiguity of some of the Reception Directive's provisions to deny asylum seekers acceptable housing and financial allowances sufficient to cover basic needs. In December, the European Commission put forward a proposal to recast the Directive in 2009 to ensure higher standards for asylum seekers. In December, the European Commission also proposed to amend the Dublin Regulation to allow for suspension of transfers to countries with inadequate reception conditions.
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