Fahamu Refugee Legal Aid Newsletter

MAY 2013

Wed, 01 May 2013 10:32:00 +0100

a monthly forum for news and discussion on refugee legal aid

Issue 37, May 2013

ISSN 2049-2650

Editorial Team: Themba Lewis, Yara Romariz Maasri, Lily Parrott, Britta Redwood, Katherine Rehberg, Fiona McKinnon, Stuart Thomas, Jennie Corbett, Nina Weaver and Katie Vasey.

In this issue:

Country of origin and legal news

Deportation news

Announcements

Notes from the field: one country of origin expert’s experience

Advocacy groups celebrate landmark step to protect stateless in UK

UNHCR Briefing Note: UK’s new determination procedure to end legal limbo for stateless

UNHCR speaks out concerning Europe’s efforts to add more roadblocks to asylum procedures

A milestone for refugee rights: Hong Kong court of final appeal rules in favour of C case appellants

On the run, alone and young: Congolese children flee to Uganda

A diverse scope of refugees living at the margins in Egypt

Court of Justice of the European Union and European Court of Human Rights: recent judgments of interest

NGOs, UNHCR and the European Commission welcome Turkey’s new asylum law

Case note: France will not deport refused asylum seeker to Chad

Case note: Removal of Chechen man from Austria to Russia would expose him to risk of ill-treatment

Case note: Abdi v. the United Kingdom – violation of Article 5

SIS II to centralize data of people who are not allowed entry into the Schengen Area

Accession of the European Union to the European Convention on Human Rights

The European Commission adopts a proposal for regulation on the surveillance of external sea borders

Former Burundian refugees struggle to assert their new Tanzanian citizenship

Unaccompanied children and victims of torture will not be excluded from accelerated and border asylum procedures in revised asylum procedures directive

SPECIAL FEATURE: Concerns over Rwanda Cessation

ABA section of international law spring meeting panel highlights concerns over the cessation of status for Rwandan refugees

Recommendations of the International Conference on Rwandan Refugees, held in Brussels, Belgium, on 19 and 20 April, 2013

South African Minister of Home Affairs addresses ceased circumstances cessation clauses for Rwandan refugees

Organised crime and refugee policy in Honduras

Alarming prevalence of self harm in UK immigration detention during 2012

The first country of asylum principle in Tanzania: a national and East African perspective

Disability and forced migration

FRONTEX: human rights responsibilities

Resources and publications

Information links

Country of Origin and Legal News

Wed, 01 May 2013 10:00:46 +0100

AFRICA

Central African Republic:

Chad: Reports of violence against Sudanese refugees in Chad

Eritrea: Overview of political situation in Eritrea and current refugee flows, including Sinai trafficking and experiences in Israel

Ethiopia: Refugees choose their own housing - and create jobs

Kenya: Facing hardship in Kenya, refugees head home to Somalia

Liberia: Security incidents in Côte d’Ivoire mar the voluntary repatriation of Ivorian refugees in Liberia

Mauritania: Malian refugees face abject conditions, prolonged displacement

Rwanda:

Somalia: ICRC programme assists families separated by conflict in Somalia

Sudan:

Tunisia: Shusha camp to close by 30 June

Uganda:

Western Sahara:

Zambia:

Zambia gay rights activist Paul Kasonkomona arrested

AMERICAS

Brazil: Number of refugees in Brazil triples in two years (video in Portuguese)

Canada:

USA:

ASIA-PACIFIC

UNHCR calls for concrete steps to protect refugees through Bali Process

Australia:

Hong Kong: Sri Lankan first to win Hong Kong asylum under new appeal process

India: Relief for Pakistani Hindus seeking asylum in New Delhi, visas extended by a month

Indonesia: Burma Rohingya refugees held in Indonesia

Myanmar:

Nepal: Women’s commission condemns an attack on an elderly woman accused of witchcraft.

Pakistan: Camp for displaced caught in the middle of the fighting

Sri Lanka: Tamil Nadu Students Protest Alleged Human Rights Abuses in Sri Lanka

Thailand: Deadly fire erupts at refugee camp in northern Thai province

MIDDLE EAST

Egypt:

Israel: Would Jewish refugees have been accepted by today’s Israel?; Pushing Israel’s asylum seekers into a legal twilight zone; U.S. State Department report raps Israel’s treatment of African refugees

Jordan: Syrians fleeing to Jordan’s towns are getting cut off from aid and falling into debt

Lebanon: Open-border, non-camp response to the influx of Syrian refugees is the “best way” and the “most humane,”

Syria: Number of Syrian Refugees Hits 1 Million, U.N. Says

UAE: UNHCR recognize Tamil refugees but UAE told the group they must leave

EUROPE

Cyprus: Discontent brews at new detention centre

Greece: Wave of protests by migrants in Greek detention centers continues

Italy: Pope to visit Rome center for undocumented refugees

Russia: Fears for NGOs as tax raids multiply

Sweden: Asylum seekers’ hunger strike growing in Sweden; A growing backlash against immigration

Turkey: U.N. rebukes Turkey over return of Syrian refugees; Is Turkey’s approach to Syrian refugees sustainable?; Turkey: migration and asylum law adopted

UK:

Uzbekistan: No former soviet state safe for Uzbek refugees

Global:

Enhance higher education opportunities for refugees and other forcibly displaced people; The Associated Press drop the term ‘illegal immigrant’, The Times is reconsidering; Freedom House’s annual report on the state of global freedom

Culture of disbelief works against asylum seekers

Deportation news

Wed, 01 May 2013 09:59:40 +0100

Turkey: Ankara denies mass deportation of Syrians

UAE: Tamil refugees face deportation

Global: Europe’s forced returnees claim abuse

Announcements

Wed, 01 May 2013 09:57:35 +0100

SPECIAL ANNOUNCEMENT: UNHCR Consultations

The UNHCR Annual Consultations with Non-Governmental Organizations will take place on the 11 – 13 June 2013, at the International Conference Center, Geneva. This year’s theme is ‘Advocating together for protection’. Attendees will need an invitation letter from UNHCR, which are available to UNHCR partners, ECOSOC and ICVA members. If you would like to attend, but do not fall into any of these categories, please contact the Southern Refugee Legal Aid Network.

CONFERENCES AND WORKSHOPS

The Immigration Detention seminar series will hold its second seminar, ‘The Politics of Detention’ in The National Centre for Early Music in York, UK on 1 July 2013. The event aims to examine the ways in which the routinisation and normalisation of detention occludes multiple relationships of power, control and subjugation. Speakers on the day will include Jerome Phelps of Detention Action, Melanie Friend from the University of Sussex and Anna Pratt of York University, Canada. The seminar is free to attend, but space is limited. Please contact Alex Hall for more information, and to register.

The Bail Observation Project is pleased to invite you to the launch of its second report, entitled ‘Still a Travesty: Justice in Immigration Bail Hearings’. The report, based on the observation of 220 bail hearings, shows how the fundamental right to apply for bail is curtailed for those detained under UK immigration law powers and how the fairness of procedure in the bail court is gravely compromised. The event will take place at 7 p.m. on Tuesday 14 May 2013 at the Grand Committee Room, Houses of Parliament, London, UK. If you can, register your intention to attend via e-mail.

The University of California School of Law, Irvine is pleased to announce its Emerging Immigration Law Scholars and Teacher Conference taking place on 13 - 14 June 2013. The event is intended to create a space for junior immigration law scholars and teachers to share drafts of their research projects, discuss teaching techniques, and to get to know one another. To avail of a discounted price, interested parties should register online by 3 May 2013.

A symposium entitled ‘20 Years after the German Asylum Law Reform: Demise or Transformation of Refugee Protection?’ is taking place on 28 June 2013 at the German Historical Museum, Berlin. Organised by the Institute for Migration Research and Intercultural Studies, University of Osnabrück, the event commemorates the 20th anniversary of German asylum law reform. Speakers will discuss the development of political asylum in Germany, the current state of the politics of asylum in Europe as well as the experiences and situations of refugees. Please click here for more information, and to register.

The European Council on Refugees and Exiles (ECRE), the Italian Refugee Council (CIR) and the Danish Refugee Council (DRC) are hosting a public seminar entitled ‘Regional Protection Programmes: an effective policy tool?’ on 30 May 2013 at the Residence Palace in Brussels, Belgium. Regional Protection Programmes (RPPs) are designed to enhance the capacity of third countries in regions where many refugees originate from or are passing in transit. Seven years after their first inception and ahead of the next EU Multiannual Financial Framework (2014-2020), it seems to be a good moment to take stock of the RPPs and assess their potential for the future. Registration is now open for the event and the agenda will be announced shortly.

Registration has now opened for the School of Oriental and African Studies (SOAS) ‘Bhutanese Refugee Resettlement Workshop’, happening on 22-23 May 2013 at the School’s Bloomsbury campus in London. The event is free, but registration is required to guarantee a place. For the programme and further information, please click here.

COURSES

Registration is now open for the 13th edition of the Summer School on ‘Immigration and Asylum Law and Policy of the European Union’ organised by the Odysseus Academic Network in Brussels from 1-12 July 2013. The lectures are conducted by academics from the member universities of the Odysseus Academic Network and by high-ranking officials from international organisations, particularly the European Commission. Each class is given separately in French and in English. In addition to the Summer School, the Odysseus Network organises a one-year program for persons interested in gaining an in-depth knowledge of the subject.

The 2013 Summer Institute of the Center for Forced Migration Studies (CFMS) of Northwestern University’s Buffett Center for International and Comparative Studies, Chicago, USA, is still open for registration. Taking place from 2 – 9 June 2013, this year the theme of the Institute is the ‘Refugee Status Determination Process’. For more information and to register, click here or visit the Summer Institute website. Late registration fees will apply from 2 May 2013.

The Center for Migration and Refugee Studies (CMRS) of the American University in Cairo is running four short courses during June 2013. The course on ‘International Refugee Law’, 2-6 June will provide an introduction to the international legal framework which governs the protection of refugees. The second course is entitled ‘From Arab Winter to Arab Spring: Refugee and Migration Movements in the Middle East and North Africa’ and takes place on 9-14 June 2013. The third course, ‘Addressing Global Trends: Psychosocial and Mental Health Interventions for Refugees Living the Urban Context’ will take place on 16-20 June. Finally, another course entitled ‘International Migration and the State System’, from 23-27 June will explore the international politics of migration and the effects of migration on international politics. The courses have varying application deadlines from mid-May. To apply, send a completed application form and your most recent CV to Naseem Hashim.

VACANCIES

The University of Oxford’s Refugee Studies Centre is looking for a part-time Communications Assistant to help maintain and develop its external profile. Working closely with the Communications and Information Coordinator, this post combines administrative and communications duties across three main areas of work: website management and social media; marketing and publicity; and publications and outreach. The position is for one year in the first instance and for 18 hours a week. Applications are to be made online before the deadline at 12.00 noon on 9 May 2013.

Notes from the field: One country of origin expert’s experience

Wed, 01 May 2013 09:55:14 +0100

By Laura A. Young, JD, MPH, ProRights Consulting, Nairobi. Laura is a U.S.-trained human rights lawyer with special expertise in social inclusion, gender, and land and natural resources. Laura has provided expert affidavits and reports for multiple immigration and asylum cases in US and UK courts. Her particular expertise was developed through fieldwork in Uganda, Kenya, Liberia, Ghana and South Sudan. She lives in Nairobi and currently is a partner in the independent consulting firm, ProRights.

A young disabled man in Nairobi trying to get to the UK, a woman fleeing from Uganda because of an abusive husband and fearing forced FGM, a Liberian whose US asylum case had been pending for decades, a Kenyan who had been threatened by the Mungiki – these are the types of cases that I have contributed to as a result of my work as a Fahamu Country of Origin Expert. I know first-hand how valuable a resource SRLAN/Fahamu’s Country of Origin services are for attorneys around the world and I commend the organization’s great work in this regard.

I live in Nairobi and work as an independent consultant across Africa, so expert opinions make up only a small fraction of my work. However, as a US-trained human rights attorney, I feel that I have an obligation to asylum-seekers to assist with cases in which I feel I can credibly do so. Although I no longer litigate cases, I feel that as an attorney I also have a duty to the courts to provide first-hand information that would otherwise be challenging for them obtain.

I did not expect to get very many requests when I signed up for the COI Expert roster, but it has been surprising how difficult a time attorneys have finding credible, helpful experts, especially in the global south. I have heard from many attorneys about the exorbitant sums that some experts have requested, or about the fact that no one responds, or about the poorly drafted, cut-and-paste jobs they receive from ‘experts’ who have not taken the work seriously.

I work with attorneys in the US, UK, Israel and elsewhere who are seeking help mostly with asylum cases, but also with other types of immigration cases. The attorneys I hear from range from seasoned litigators in large firms to students in pro bono clinics. I provide suggestions and referrals, sometimes I try to investigate a given issue from the ground or to suggest background research that would be useful, and about half the time I end up writing an expert opinion for a case. I enjoy the work that I do as a part of these cases – even though I rarely know the outcome of the stories of which I become a part for a short time.

Trends also emerge in the requests that I receive. Cases for LGBTI asylum seekers, especially those from Uganda, are coming in almost every month, sometimes weekly. There is a huge need for enhanced information about the situation in Uganda at the moment, but often it is difficult to get. Those working on these issues are overwhelmed, but are also at risk if they provide too much information about the situation on the ground. As a result, these cases have proven the most difficult, not least of all because attorneys are often demanding help on very short notice. Unsurprisingly, courts are also increasingly skeptical about expert reports, so a well-researched, well-supported opinion based on personal experience in the field can go a long way.

Sometimes I am paid, sometimes I am not; mostly I am paid a little bit and I appreciate it! There certainly are expenses involved in drafting a high quality, credible expert report. The first expense, of course, is time, but there also are communication costs, internet charges to access research and to download the occasionally vast files that attorneys send for review, charges to get the affidavit notarized or commissioned, and sometimes even transport to meet with other colleagues who have specialized expertise on a given issue. The payments, even if only small, enable me to say yes to the next request and not worry about the costs involved.

I’m proud to be a small part of the high quality work that Fahamu and SRLAN do to support refugees around the world. Whether successful or not, I hope that those individuals whose cases I have worked on feel that I took their case seriously and did my best to provide information that accurately reflects the situation on the ground in their country of origin. I also hope that courts who have reviewed my opinions felt that I provided credible, balanced information relevant to the decision-making process. I always look forward to the next case that comes my way!

South African Minister of Home Affairs addresses ‘ceased circumstances’ cessation clauses for Rwandan refugees

Wed, 01 May 2013 09:53:30 +0100

The following opening remarks were made by the South African Minister of Home Affairs, Ms. GNM Pandor, during the UNHCR meeting on the Implementation of the Comprehensive Durable Solutions Strategy, and provides South Africa’s perspective on the ‘ceased circumstances’ cessation clauses for Rwandan refugees.

18 April 2013

Director for the Africa Bureau Mr George Okoth Obbo,

Director Division for International Protection Mr Volker Turk,

Attendance of Ministers still to be confirmed by UNHCR,

Distinguished guests,

Members of the media,

May I take this opportunity on behalf of President Jacob Zuma, the government and people of South Africa, to welcome you all to South Africa, and to be the City of Tshwane. This meeting of the United Nations High Commissioner for Refugees (UNHCR) is aimed primarily at discussing the implementation of the Comprehensive Durable Solutions Strategy including the applicability of the ‘ceased circumstances’ cessation clauses for the Rwandan refugees who fled their home country during pre-1998 unrests.

The implementation of the Comprehensive Durable Solutions Strategy, including the applicability of the ‘ceased circumstances’ cessation clauses for the Rwandan refugees, must be viewed as an effort of the international community to help the Rwandan refugees to find closure in their quest for state protection and as part of the effort to rebuild that country, following years of war and conflict.

All these efforts by the international community and countries hosting Rwandan refugees should be viewed as an unequivocal statement that the people of Rwanda, like the rest of humanity, across the world, have an inalienable right to peace, freedom and democracy.

The whole world witnessed the atrocities that occurred in Rwanda in 1994, the suffering endured by the people of that country, particularly women and children as well as the destruction of almost the entire infrastructure, as a consequence of ethnic clashes, and other inter-ethnic conflicts preceding the 1994 genocide.

In this regard, the people of Rwanda and the international community should ensure that never again does Rwanda or any other country in the world witness a resurgence of ethnic violence of the kind endured by the people of Rwanda.

This august gathering should do everything in its power to ensure that the 60th UNHCR Executive Committee recommendations on the cessation clause for the Rwandan refugees are implemented in line with the flexibilities and recommendations of the December 2011 meeting in Geneva that took place on the margins of the Intergovernmental Ministerial event. The December 2011 meeting held with host States validated the Comprehensive Durable Solutions Strategy and further affirmed that repatriation and local integration remain the core solutions for the Rwandan refugee population under discussion.

Distinguished guests,

South Africa is firmly committed to ensuring the fulfillment of its international obligations towards refugees and asylum seekers in terms of its ratification of the relevant international protocols. This we do both in letter and spirit.

However, our government believes any implementation of the Comprehensive Durable Solutions Strategy should at the very least ensure the protection of the rights of returning persons. That a person desiring alternative status is afforded such opportunities upon freely and voluntarily resuming the protection of their country of origin through re-acquiring citizenship of their country of birth.

This is the manner in which South Africa intends implementing the cessation clause for Angolan refugees most of whom we expect will voluntary return to Angola or seek to remain in South Africa under our Immigration laws which necessarily require the resumption of Angolan nationality by such persons.

Any recommendation to declare cessation of refugees and asylum seekers status should provide some level of guarantee on prevailing peace and stability in the country of origin. Indeed, peace, security and stability is a precursor to any implementation of the Comprehensive Durable Solutions Strategy.

The position of the UNHCR in relation to Rwanda has created anguish and uncertainty among the refugee community in South Africa. As such it appears as though much work requires to be done on the part of the UNHCR to clearly articulate the reasons for the cessation declaration among the affected refugee community. Much work requires to be done and the looming date for cessation, 30 June 2013, merely serves to add to the general anxiety among the affected communities. One pertinent question that has arisen with my own interaction with representatives of the Rwandan Refugee community is the declaration of cessation is not to be applied to Rwandans who fled the country after 1998. This they point out is a tacit admission that there exist conditions in Rwanda that would force people to seek asylum.

These questions require attention and discussion by us all and we look forward to hearing from our sister countries and also learning from the UNHCR about its own programme in this regard.

We therefore welcome the decision by the UNHCR to invite Member States to a Ministerial Meeting to discuss matters pertaining to progress in the implementation of the Comprehensive Durable Solutions Strategy for Rwandan Refugees. We hope that during this gathering valuable information and experiences will be shared that will enrich the process aimed at finding durable solution to the Rwandan refugee problem.

We are committed as government, to working together with all other role-players and stakeholders in the international community, to ensure that the recommended actions of the Comprehensive Durable Solutions Strategy are considered further for actual implementation of the cessation clause for Rwandan refugees.

Distinguished delegates,

I take this opportunity, once again on behalf of the government and people of our country, to extend our best wishes to you all in your deliberations on this very important issue of the Implementation of the Comprehensive Durable Solutions Strategy for Rwandan refugees and indeed assure you of our continued support and commitment.

I thank you.

Advocacy groups celebrate landmark step to protect stateless in UK

Wed, 01 May 2013 09:51:33 +0100

The following is a briefing note on the introduction of a UK Stateless Determination Procedure effective from 6 April 2013. The briefing was originally published on Asylum Aid’s website.

Back in November 2011 Asylum Aid and UNHCR published their joint study Mapping Statelessness in the United Kingdom. The research mapped the number and profile of stateless persons in the UK and put a human face on their situation. It also examined the UK’s legal obligations to stateless persons under international law and analysed the impact of current policy and practice. Based on these findings the report made recommendations for improvement, most notably calling for the introduction of a dedicated UK statelessness determination procedure.

The Home Secretary responded to the report by making a commitment to do precisely this. Following much behind the scenes work over the last 18 months, new Immigration Rules effective from 6 April 2013 make a statelessness determination procedure a reality. The UK government is to be highly commended for taking this important and very necessary step. Asylum Aid (alongside UNHCR) was part of the Home Office Project Board responsible for advising on the design of the new procedure, and the whole exercise serves as a timely reminder of the value of joined up research and policy dialogue between government and civil society.

This briefing seeks to explain how the new procedure works as well as highlighting some deficiencies already evident with the new arrangements, which Asylum Aid believes will quickly need to be addressed. However, these shortcomings should not be allowed to unduly detract from the hugely positive impact of the new policy for stateless migrants in the UK. Moreover, the new changes provide a very positive example to a number of other European states who have ratified the relevant international instruments but failed to properly implement their obligations by setting up a dedicated statelessness determination procedure and route to regularisation.

What is a stateless person?

The 1954 Convention on the Status of Stateless Persons defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’. In practice this means that many stateless persons are left without legal residence, consular protection, or the right to return to their country of origin. No government takes responsibility for their protection. For those who have fallen through the cracks in this way, the consequences are serious.

Statelessness occurs for a variety of reasons, including discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession), and conflicts of laws between states. Statelessness occurs both among migrants and people born in or having lived in the same place for generations. The 1954 Convention concerns the former group by aiming to regulate the status of stateless persons and to ensure the widest possible enjoyment of their human rights–complemented by the relevant provisions of international human rights treaties. The 1961 Convention on the Reduction of Statelessness concerns the latter group, and primarily guides States on how to prevent statelessness arising in the first place. The UK has ratified both Conventions although the new policy and procedure relates to responsibilities under the 1954 Convention.

What was the problem that needed to be fixed?

Despite the UK’s obligations under the 1954 Convention and international human rights law, UNHCR and Asylum Aid’s mapping study found that stateless persons without leave to remain in the UK often go unidentified, and that those without leave to remain often live at risk of human rights infringements. During the research interviews were conducted with stateless persons who had been destitute for months, had been detained by immigration authorities in spite of evidence that showed there was no prospect of return, or had been separated for years from their 2 families abroad. Some had been forced to sleep on the streets. Many had seen their accommodation and support repeatedly cancelled and reinstated. Almost all of this group were prohibited from working. Few were in a position to break this cycle. In the absence of a dedicated and accessible procedure to identify people who are stateless, they were left in legal limbo for years.

How will the new procedure work?

The new procedure is governed by the Immigration Rules (laid out in paragraphs 124-139 here), and accompanying UK Border Agency (UKBA) guidance which should soon also be available on the UKBA website.

Applications must be submitted by post on a designated application form (accessible here) and

will be considered by a dedicated team in the Complex Casework Directorate based in Liverpool. There is no application fee but where applicants have not previously undergone bio-metric screening (e.g. during a prior asylum application) they will need to so at a post office. There are no designated minimum or maximum time limits for decision-making under the new procedure, which in practice will likely depend on the complexity of the case under consideration. Applicants are expected to cooperate fully with the procedure including by submitting all available documentation and undertaking, or consenting to, enquiries to the relevant authorities of any country with which they have a possible nationality connection. Personal interviews will not be mandatory but will usually take place where it is intended to refuse an application.

It remains to be seen whether UKBA personnel will properly play their part in helping to gather the evidence necessary to demonstrate that someone is stateless, or to apply in their decision-making a standard of proof appropriate to the inherent difficulties in evidencing statelessness. UNHCR Guidelines on Procedures for Determining whether an Individual is a Stateless Person provide useful guidance on international standards and best practice on these questions. Asylum Aid is concerned that the objectives of the new policy will be seriously undermined if applicants are required to meet unduly high evidentiary requirements.

These potential difficulties will likely be exacerbated by the fact that statelessness claims will be out of scope under recent legal aid changes except where transitional arrangements apply or where there is eligibility in connection with judicial review proceedings. Given the absence of an automatic statutory right of appeal against the refusal of leave to remain as a stateless person (except where, for example, non-asylum applicants have not had a previous appeal in which event enforcement papers will be served with an attached right of appeal against removal), judicial review will often be the only means by which to challenge a negative decision. Asylum Aid questions whether this will serve as an adequate or appropriate review mechanism, particularly given anticipated problems with the quality of initial decision-making early on in the operation of a new procedure.

Who should apply?

The new policy and procedure is open to any stateless person present in the UK although it is primarily intended for those who do not qualify for refugee status or for Humanitarian Protection or any other form of leave under the Immigration Rules but who consider that they meet the definition under Article 1 (1) of the 1954 Statelessness Convention (see above), sometimes known as de jure stateless persons. The new procedure is not intended for undocumented migrants per se, including those sometimes labelled ‘de facto’ stateless persons and for whom there is no universally accepted definition under international law. Assistance with questions of interpretation is provided by UNHCR Guidelines on the Definition of a Stateless Person.

The new Immigration Rules also make it clear that leave will not be granted if an individual accepted as stateless is considered admissible to another country provided this is in accordance with the UK’s international obligations. There is concern that the way the new policy is currently drafted may allow decision-makers too much leeway to conclude that a stateless person would be admissible to another country even where the individual has no formal 3 residence status in it and/or would not be able to enjoy all the rights owing under the 1954 Statelessness Convention and wider international human rights law if returned there.

Leave will also be refused where ‘there are reasonable grounds for considering that’ the person is a danger to the security or public order of the UK, or where their application would fall to be refused under any of the general grounds set out in para 322 of the Immigration Rules. Other exclusion criteria relate to individuals already receiving assistance from the United Nations Relief and Works Agency and to those who would otherwise qualify as stateless persons but are considered undeserving of protection because there are ‘serious grounds for considering’ that they committed war crimes, crimes against peace or humanity, serious non-political grounds or act contrary to the purposes and principles of the UN. These are set out in more detail at para 402 of the Immigration Rules.

What rights and benefits attach to the new procedure?

A significant deficiency with new arrangements is the absence of any dedicated support provision linked to the new procedure, thereby limiting state less applicants to access to continuing receipt of section 4 support where eligible. The UNHCR/Asylum Aid mapping study already sets out in detail why section 4 support criteria (including the requirement ‘to take all reasonable steps to leave the UK’) are unsuitable for stateless persons. Equally problematic is the absence of dedicated legal aid provision for applicants to navigate the new procedure and to provide evidence of their statelessness–a notoriously complex and difficult task.

Those recognised as being stateless and not admissible to any other country will be granted 30 months’ leave to remain with the right to claim benefits, access the labour market and receive NHS care (equivalent to discretionary leave entitlements). Family members will be eligible for leave on the same basis. Following an application for and extension of their leave, stateless persons will be eligible for indefinite leave to remain after 5 years. Thereafter they should be eligible to apply for naturalisation as British citizens thereby providing a final route out of statelessness.

How to access advice and information about the new procedure?

A wide range of information about statelessness is available on the UNHCR Refworld website. UNHCR’s mandate includes stateless persons, and its London office can be contacted for further information. Relevant resources can also be obtained from the European Network on Statelessness a pan-European civil society alliance coordinated by Asylum Aid and with 71 members in 30 countries. For further information or to join the Network send an email.

UNHCR briefing note: UK’s new determination procedure to end legal limbo for stateless

Wed, 01 May 2013 09:49:09 +0100

The following brief was prepared by Melissa Fleming, UNHCR Chief Spokesperson. It is a summary of her 9 April 2013 press briefing at the Palais des Nations in Geneva.

UNHCR welcomes the new stateless determination procedure that came into effect in the United Kingdom this past weekend (6 April). The procedure allows stateless people, currently living on the margins of society and in legal limbo, a route to be formally recognised as stateless persons and to legalize their presence in the UK. As such, it is a landmark step.

The new procedure is also a positive example to other countries that are parties to the 1954 Convention relating to the Status of Stateless Persons but which have not taken steps to implement the Convention by establishing a statelessness determination procedure and a protection status for stateless people.

Introduction and implementation of a fair and efficient procedure to identify stateless people in the UK was one of the key recommendations of a 2011 study carried out by UNHCR and our NGO partner Asylum Aid. This research – conducted in the context of the 50th anniversary of the 1961 Convention on the Reduction of Statelessness – found that stateless people who had come to the UK in a migration context were not being identified as such. This put them at risk of destitution, as well as costly immigration detention and lack of access to basic rights and services.

During 2012, UNHCR provided input to the Home Office on the design of a procedure which would allow for the identification of stateless individuals and which would ensure that they receive protection. A key feature of the new procedure is that it assesses whether an individual does in fact possess a nationality or whether they require protection in the UK. The 2011 research found that there are around 150 to 200 people each year who claim asylum and are recorded as being stateless by the UK Home Office.

The UK has ratified both the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

The UK’s new procedure is among several recent developments internationally regarding statelessness. In the first three months of 2013 Ukraine has acceded to both the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness, while Jamaica has acceded to the ’61 Convention.

UNHCR speaks out concerning Europe’s efforts to add more roadblocks to asylum procedures

Wed, 01 May 2013 09:47:41 +0100

The letter is available here: http://www.unhcr.org/515aced69.html

A milestone for refugee rights: Hong Kong Court of Final Appeal rules in favour of ‘C’ case appellants

Wed, 01 May 2013 09:44:33 +0100

This article was originally printed on the Hong Kong Refugee Advice Center (HKRAC) website.

In a landmark judgment that lays the groundwork for a unified, government-led screening mechanism, the Court of Final Appeal has allowed the appeal of three African asylum-seekers who will have the right to judicial review of the Director of Immigration’s decision to deport them. HKRAC welcomes this milestone; however there is still much work to be done.

Just two and a half weeks after the hearings, the Court of Final Appeal has handed down its judgment in the C & Ors v Director of Immigration case. The judgment is a significant step towards greater refugee protection and is the latest in a series of positive developments, such as the Hong Kong government’s acceptance of a new torture claim and the recent Ubamaka judgment.

The ‘C’ case, concerning three applicants from Africa, raised the question as to whether the government has an obligation to respect the principle of non-refoulement under customary international law, and, if so, whether reliance on UNHCR’s refugee status determination is sufficient to guarantee the necessary standards of fairness and ensure that persons returned by the Director of Immigration are not put at risk of persecution.

Because China has not extended the 1951 UN Refugee Convention to the Hong Kong territory, Hong Kong has no asylum policy. As such, currently two separate, but parallel paths for protection exist in Hong Kong: these include a screening mechanism for refugee claimants conducted by UNHCR and a screening mechanism for torture claimants by the Hong Kong government in order to fulfil its obligations under the Convention against Torture (CAT), to which it is bound.

HKRAC, other human rights activists, the legal community, academics and UNHCR itself have been advocating for years that the government create a single, unified mechanism to process both refugee status determination and torture claims.

Although the Hong Kong government does not grant legal status to refugees, it has an established practice of not returning refugees to their home country while they are awaiting the status of their claim with UNHCR and, if their claim is successful, while they are awaiting resettlement in a host country. However, this case concerned applicants whose claims before UNHCR were not successful, but who argued they would be subject to persecution were they to be returned, which would go against the principle of non-refoulement.

The judgment and its wider significance

In its judgment, the Court of Final Appeal skirted the issue as to whether an obligation of non-refoulement exists under international customary law, opting for a more narrow interpretation based on the Court of Final Appeal’s 2004 Prabakar decision, which paved the way for the government-led torture screening mechanism.

The Court held that the Director of Immigration is entitled to give weight to UNHCR’s determinations of refugee status, and that Hong Kong has an existing practice of not returning persons if they may then be subject to persecution. However, in deciding whether to remove a person, the Director of Immigration cannot simply rely on UNHCR; the government ‘must determine whether the claim is well-founded. Moreover, any such determination must satisfy the high standards of fairness required having regard to the gravity of the consequence of the determination’ (per Tang PJ at para. 56).

The Court held that ‘there are very strong reasons for concluding that the Director has either failed to apply his mind independently to the correctness of the determinations made by UNHCR, or, if he has done so, he has done so in a way that falls short of the anxious scrutiny and high standards of fairness required by Prabakar. It is not sufficient for the Director simply to rely on UNHCR determinations, as his counsel contended’ (per Mason NPJ at para. 97).

Furthermore, in the judgment, the Court of Final Appeal noted the calls by UNHCR, the Bar Association and the Law Society (echoing support by civil society) that a unified system would actually be more efficient, avoiding duplication and reducing ‘unmeritorious and protracted claims’.

The judgment affirms that the government must independently assess claims before deciding to deport an asylum-seeker, rather than simply rely on UNHCR’s determination, which would therefore require it to set up a government-led screening procedure. However, the Court of Final Appeal did not give guidance as to how such a mechanism would play out in practice. Moreover, the government has not yet revealed how it will implement the judgment from the Ubamaka case, which requires it to screen for cruel, inhuman or degrading treatment or punishment (CIDTP) in addition to torture.

Next steps moving forward

The ‘C’ case judgment also raises questions about what kind of role UNHCR will continue to play in the future once such a procedure is put into place,particularly since the judgment only addresses one aspect of asylum rights (non-refoulement), but is silent on others. It would seem, based on the interventions by UNHCR in the ‘C’ case hearings and the questions and comments by the judges, that UNHCR would have to continue to provide a role in resettlement given that refugees would still not be permitted to remain in Hong Kong.

HKRAC has long championed the cause for an integrated, government-led screening system for refugees and torture claimants and a more comprehensive protection framework. Now that this goal appears likely to be achieved in the near future, HKRAC will continue to campaign and advocate for the Hong Kong government to ensure that its human rights obligations are substantively discharged through adequate standards of access to justice. This must include, at a minimum, procedural fairness, transparency and accountability in the screening process as well as access to legal representation by lawyers who are adequately trained in human rights and refugee law.

Questions have been raised about the existing system for screening CAT claims. Out of more than 12,000 torture claims received by the government since CAT was applied in Hong Kong in 1992, only two have ever been accepted—one as recently as last week. In the implementation and operationalisation of the ‘C’ case decision, the Government should therefore review the adequacy of the current system for determining CAT claims.

HKRAC has rich experience providing quality legal services to refugee claimants going through the UNHCR process and remains committed to the enhancement of refugee protection in Hong Kong. The ‘C’ judgment is a significant step in the right direction and we look forward to contributing to the development of any new or integrated screening mechanism that may be introduced in response to the judgment.

On the run, alone and young: Congolese children flee to Uganda

Wed, 01 May 2013 09:42:47 +0100

The following article was originally published on the UNHCR website.

NYAKABANDE TRANSIT CENTRE, Uganda, 7 February (UNHCR) – UNHCR staff have become used to seeing children arriving on their own at the Nyakabande Transit Centre in recent months.

But they were stunned when young Congolese refugee Rachel* turned up with her six siblings and in need of help after fleeing to southern Uganda late last year. They were escaping fighting in neighbouring Democratic Republic of the Congo (DRC).

What most alarmed the UNHCR workers was that she was only three months old and had been looked after by an II-year-old – her sister Hope* – ever since the children were separated from their mother during fighting in November between DRC government troops and M23 rebels. The two sides began peace talks in Kampala last December after the Uganda government brokered a truce.

‘She [Hope] was so responsible, caring for that child for one-and-a-half months in the transit centre – it was amazing,’ said Bernard Manishimwe of the Uganda Red Cross Society, adding: ‘Everyone around here nicknamed her ‘the mother’.’

Over the past few months, as waves of conflict and generalized violence swept eastern provinces of neighbouring Democratic Republic of the Congo, UNHCR staff have come across many unaccompanied children or youngsters separated from their parents during flight.

Even though, as Protection Assistant Gershom Mugerwa explained, close to 70 per cent of them ‘are reunited with parents or family members within a short time – often they find relatives already in the transit centre or their family turn up a day or so after them,’ it is an issue of great concern for the refugee agency.

And in mid-January, UNHCR staff were reminded of Hope when 12-year-old, Mary,* arrived at Nyakabande with her two younger sisters after an arduous journey from their home in DRC’s Rutshuru territory. Their mother had died in childbirth and their grandmother, who looked after them, was too frail to make the journey.

Both cases had positive endings – Rachel and her siblings were matched up with a refugee foster carer in the transit centre and left the following day for the Rwamwanja settlement some 350 kilometres to the north – just as their mother reached Nyakabande. On hearing the news of her children, she immediately made her way to the settlement and was reunited with them.

Meanwhile, Mary and her sisters – Julia* aged eight years and five-year-old Clarisse* – were spotted by their uncle as they entered the transit centre and he is now caring for them while UNHCR tries to locate their father. But many of the Congolese children UNHCR comes across are not reunited with family and rely on the goodwill of refugee foster carers, who often have big families of their own.

The average age of Congolese children arriving alone at the border or at Nyakabande Transit Camp, 20 kilometres away, is 12-13 years and it’s rare to see a child as young as Rachel. UNHCR and the Uganda Red Cross Society help identify these vulnerable children and give them the support and assistance they need.

But, as UNHCR’s Mugerwa noted, because so many of the unaccompanied or separated children are soon reunited with family, it was often difficult to assess the true scale of the problem.

Once children are identified as being on their own, UNHCR and the Red Cross provide them with separate accommodation, clothes, recreational activities, assistance getting food (in some cases supplementary feeding) and medical and counselling support to help deal with trauma.

Efforts are quickly made to trace family members across the border in North Kivu province or in settlements in Uganda like Rwamwanja. The Uganda Red Cross operates a phone tracing service in Nyakabande where refugees can call or send text messages to their relatives. This service allows them to find out where they are and, most importantly for many refugees, to check their relatives are well.

For unaccompanied children aged under 10 years old or unable to look after themselves, UNHCR and the Red Cross look for a foster carer within the refugee community. These carers undergo stringent vetting procedures and are often from the same tribe or region as the children. In many cases the carers are members of their extended family who have also found their way to the transit centre.

UNHCR also works to reunite families that may have been split across different refugee settlements; reaching out to local communities and refugee leaders to help identify missing family members within the settlements. They then work with the Ugandan government to bring them together again. UNHCR relocated 38 unaccompanied children to Rwamwanja in the first three weeks of January.

Leaving your home and all you know is unimaginable for most of us, but for these children they may also be seeing their loved ones for the last time. ‘When you see them arriving tired, hungry, stressed and confused after 4-5 hours sitting in a truck, you can really sympathise with their plight,’ says UNHCR’s Mugerwa.

*Names have been changed.

A diverse scope of refugees living at the margins in Egypt

Wed, 01 May 2013 09:41:59 +0100

This article, first published by Daily News Egypt, gives some much-needed attention to Egyptian refugees who have been living at the margins of cities and public interest, especially since the Arab Spring. The writer, Ahmed Awadalla, is a blogger and a member of several civil society initiatives focusing on health and gender in Egypt. He is currently working for a refugee assistance organisation based in Cairo.

Looking at the situation in Syria, where millions were forced to leave their homes and seek shelter in neighboring countries, refugees have fled their country due to well-founded fear. Syria’s political, religious, ethnic, or gender-based persecutions are collective reasons for citizens to pack their luggage and depart.

After heading to another country, refugees face various obstacles that could materialise in legal barriers, or economic issues. Besides, it is difficult to find a job in a new country. Refugees are usually challenged by socio-cultural factors such as difference in language, cultural habits, etc.

Once called a revolution, now the most commonly used words for what’s happening in Syria are civil war. Syrians have been fleeing the violence to neighbouring countries. And while some countries set up refugee camps such as Jordan and Turkey, Syrian refugees in Egypt are more loosely located in urban areas or are sometimes relocated in rural settings. In addition to the Syrian refugees, Egypt is host to a large number of Sudanese, Ethiopian, Somali, Eritrean refugees in addition to a considerable population of Palestinians and Iraqis.

The response to Syrian refugee presence has shown as much Egyptian chivalry towards Syrians as well as deeply-held racism against migrants from African origins. A clear example would be the unequal civil society response to different refugee communities. Numerous civil society groups have stepped in to assist Syrians whether with medical, food, and shelter services. These range from nation-wide entities such as the Doctors’ Syndicate to small charity groups and mosques.

In contrast, refugees of African origins are assisted by a limited number of aid groups, mostly targeting refugees only. While most of those groups assist Syrians as well, African refugees find it extremely difficult to access services outside those aid groups.

This glaring disparity in civil response obviously impacts the integration of different refugee communities into Egyptian society as a whole. While this closed aid system of African refugees limits their integration, Syrians find it relatively easy to access various service providers alongside other Egyptians, facilitating their integration into the community. This is also manifested by the heavy presence of African refugees in Cairo (where they can access services), while Syrians are spread across different governorates and regions of Egypt because they know they may be able to get decent support elsewhere.

Moreover, the reports of daily life from African refugees reveal a sad reality. African refugees report racist slurs and comments on Egyptian street every day. This comes in addition to persistent police harassment and abuse. While one cannot claim that life has been easy for Syrians here, their situation is significantly different.

I recall the brutal massacre of Sudanese refugees in Mostafa Mahmoud square in 2005 when security forces violently interfered to dismantle their protests in front of the UNHCR office, resulting in the deaths of dozens of protesters including women, children, and elderly people.

What African migrants go through on a daily basis is not limited to them. It is also an ordinary occurrence for Egyptian Nubians. Their dark skin is easily seen as a basis to immediately perceive them as non-Egyptians, as many report that people usually assume they’re Sudanese or African-Americans. While race is hardly an obvious factor in Egyptian politics, it’s not unnatural to ascribe Nubian marginalisation to their ethnic background. Even when some Nubians call for their ‘right to return’ as a necessary compensation to their forced displacement from Old Nubia, they’re seen as instigators or separationists.

Women refugees from African origins, typically, find it more difficult as the sexual harassment becomes combined with racism. Since a large number of African refugee women work as domestic workers, they face the long litany of exploitation domestic workers usually face, whether sexual or otherwise.

There have been increasing reports of the exploitation of Syrian women, who have been married off without their consent in order to get their families supported by the husband. What happens to either Syrian or African women is a gross abuse and violation, and highlights the different ways Egyptian male perpetrators view those women. Some can only amount to inferior domestic workers, but the Syrians can be marriage material!

It’s important to note that the issue definitely runs deeper than this. The historic relationship with Syria makes us see Syrians in a special light. Egyptian media outlets heavily cover events in Syria while we hardly ever get news of what’s happening in Ethiopia or what’s going on in South Sudan. The government speeches show a lot of sympathy and solidarity with the suffering of the Syrian people, which comes at odds with African relations.

During Gamal Abdel Nasser’s time in power, Egypt maintained strong ties with African nations united by the shared struggle for sovereignty and against colonialism. The relations afterwards turned stale, especially under Mubarak who showed little interest in strengthening ties with Southern neighbors. Following his assassination attempt in Addis Ababa in 1995 while attending the Organisation for African Unity Summit, the rift grew wider and Mubarak was never to attend another African summit. Disagreements about Nile water sharing with Nile Basin countries were another driving factor for the tension.

Comparisons are unfair and suffering is never to be quantified or measured. However, this is not the intention of this piece; it’s about exposing Egyptian’s racist attitudes to Africans, which seems to be an oxymoron since Egyptians are African themselves.

In any case, our society continues to be in deep denial about this problem, hindering any action to be taken in that regard. We have seen progress on some issues. They have moved from the denial phase into the how-to-deal-with-it phase in the problem of sexual harassment. Whether we will see the same progress with racism and ethnic discrimination is yet to be seen.

SIS II to centralize data of people who are not allowed entry into the Schengen area

Wed, 01 May 2013 09:40:31 +0100

The following was published in the European Council on Refugees and Exiles’ (ECRE) Weekly Bulletin of 12 April 2013.

This week the ‘second generation’ Schengen Information System (SIS II) entered into operation. The new system, which will be one of the largest IT systems of its kind worldwide, includes a new system of ‘alerts’ issued in order to identify persons who are not entitled to enter and move freely in the Schengen area, as well as persons sought in relation to criminal activities, missing persons and stolen documents and property.

The use of biometric data (fingerprints and photographs) has been introduced to the database, which will be accessible to national border control, police, customs, judicial and vehicle registration authorities, as well as Europol and Eurojust.

Following the implementation of the Returns Directive, EU re-entry bans may accompany all return decisions. Member States are obliged to issue a re-entry ban if the person is forcibly returned or if they have not respected the order to leave the territory. According to the Directive, entry bans “shall not in principle exceed five years”.

Member States may enter an alert in the SIS system to flag people who have been issued with a re-entry ban. The Meijers Committee has argued that amendments to the Returns Directive and the SIS II Regulation are needed to clarify their scope of application, and secure proportionality and effective judicial review.

ECRE opposes the imposition of an entry ban on asylum seekers whose applications have been rejected and who are facing return, as removal should be considered a sufficient resolution to their situation. Furthermore, an EU-wide entry ban does not take into account possible changes in the countries of origin that may entail risk of persecution and force individuals to leave again after they have been returned.

Through the issuing of entry bans and SIS alerts, asylum seekers whose applications have been rejected could be refused access to all Schengen states despite the fact that huge differences exist between national asylum systems in Europe, making the asylum system a ‘lottery’.

According to the European Commission, it is guaranteed that no data from SIS II will be made available to third countries or international organisations.

The initial target date for the delivery of SIS II was March 2007 and the total cost of the project since 2002 has been 167,784,606 Euros.

Eu-LISA, the EU Agency for large-scale IT systems, which is already responsible for the operational management of the asylum database Eurodac and the Visa Information System, will run the new system.

Court of Justice of the European Union and European Court of Human Rights: recent judgments of interest

Wed, 01 May 2013 09:39:50 +0100

The following cases were published as part of the weekly legal update by the European Council on Refugees and Exiles (ECRE).

The European Court of Human Rights (ECHR)

H. and B. v. The United Kingdom (nos. 70073/10 and 44539/11) [Article 3 ECHR]

The applicants are two Afghan nationals who worked, respectively, as a driver for the UN and as an interpreter for the US armed forces in Afghanistan. They applied for asylum in the United Kingdom as they considered themselves at risk of harm from the Taliban, Hizb-i-Islam and the Afghan authorities. Their applications were rejected by the British authorities at several instances. Before the ECHR, they alleged that their deportation to Afghanistan would constitute a breach of Article 3 ECHR. They particularly alleged that their work for the UN and for the US armed forces made them targets for the agents of persecution mentioned above.

The Court rules that the deportation of the applicants to Kabul would not violate Article 3 ECHR. It noted that both applicants did not have a high profiles as workers for the UN and the US and that it did not have sufficient evidence that the Taliban would be able to identify the applicants in Kabul, particularly in view of the fact that they had worked in other provinces and of the passage of time. The Court found that the applicants had not provided sufficient evidence of their alleged exposure to a real risk upon return and that the British authorities had carried out proper and comprehensive assessments of their claims. Therefore, it found no violation of Article 3.

Read the full text of the judgment and a press release at the website of the European Court of Human Rights.

Firoz Muneer v. Belgium (no. 56005/10) [Article 5 ECHR]

The applicant, Mr. Muneer, is an Afghan national who arrived in Belgium in 2009 and applied for asylum. As it appeared that he had been in Greece previously, Belgium arranged for his return under the Dublin regulation. Mr. Muneer was ordered to quit the Belgian territory and placed in a detention centre. His return to Greece was organised, but after he refused to board the plane, a second detention order valid for two months was issued. His appeal against this decision was successful, as the first instance court found that the risk he ran upon return to Greece had not been taken into account. The court ordered his immediate release. This decision was confirmed by an appeals court, which pointed out that the applicant would be at real risk of treatment contrary to Article 3 ECHR if returned to Greece. However, he was kept in detention because the state appealed against this second judgment. The Cassation Court quashed it and ordered the appeals court to decide again, arguing that it had not indicated on what international reports it had based its conclusions about the situation in Greece and that it had not justified the application of ECtHR’s case law to the decision. When adjudicating again upon the question, the appeals court found that the appeal against the detention order had lost its object, as a new detention order had been issued in the meantime extending his detention for another two months. The applicant appealed against this new detention order, and was again successful as the appeals court found that he would risk treatment contrary to Article 3 if he were deported to Greece. At the expiration of the two months, the applicant was released before the Cassation Court could decide on the appeal lodged by the state. Some months afterwards, in December 2010, the applicant introduced a second asylum application and in 2011 he was granted subsidiary protection.

Before the ECtHR, the applicant complained that his continued detention after the first favourable appeals decision and the extension of his detention for an additional two months had been unlawful and contrary to Article 5(1) of the Convention. However, the Court found that it was legitimate to keep the applicant in detention awaiting the decision of the Cassation Court and to extent detention in view of a possible removal. The applicant also invoked Article 5(4) ECHR as he had not had an effective remedy for the review of his detention at his disposal. In this case, the Court found a violation of the Convention, as the applicant never got a final decision concerning the legality of his detention and that hence he did not have a Court review the legality of his detention and to eventually order his release within a brief delay.

Read the full text of the judgment on the website of the European Court of Human Rights.

Court of Justice of the European Union (CJEU)

Opinion of Advocate General Mengozzi in the case C-84/12, Koushkaki v. Federal Republic of Germany, 11 April 2013

The main proceedings concern an Iranian national, Mr. Koushkaki, who applied for a visa to enter Germany for 62 days. His request was turned down because the German authorities were not convinced that his economic situation in Iran would guarantee his willingness to return. Mr. Koushkaki appealed against this refusal before the Administrative Court in Berlin, which found that the applicant indeed complied with all the conditions required by Article 21(1) of the Visa Code and that the only outstanding doubts concerned reasons of public order related to strong migratory pressure from Iran and the risk of illegal immigration, invoked by the German authorities. It referred the following questions to the CJEU:

1. In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be satisfied that, pursuant to Article 21(1) of the Visa Code, the applicant intends to leave the territory of the Member State before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no doubts based on special circumstances as to the applicant’s stated intention to leave the territory of the Member States before the expiry of the visa applied for?

2. Does the Visa Code establish a non-discretionary right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code?

3. Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation (EC) No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)?

Advocate General Mengozzi proposes the following responses to the CJEU:

1. In the sense of Article 21(1) of Regulation (EC) No 810/2009 of the European Parliament and the Council of 13 July 2009 establishing a Community Code on Visas, read in conjunction with Article 32(1)(b) thereof, in order to be able to reject an application for a visa on grounds of the applicant’s non-intention to return, national authorities dealing with the examination of the application need to have reasonable doubts concerning the applicant’s real intentions of return, after having taken into account all the elements necessary to guarantee an objective evaluation. These include elements related to the situation in the country of origin as well as those related to the applicant’s particular situation and to the documents provided by him.

2. Regulation 810/2009 may not be interpreted as recognising applicants an individual right to the issue of a Schengen visa. However, said Regulation imposes on Member States the obligation to decide on applications for Schengen visas after having evaluated the situation as a whole, taking due account of the conditions allowing for the effectiveness of the visa in all states participating in the Schengen Area, as well as of the personal and human context of the individual circumstances underlying each application, and as the result of a process which fully respects fundamental rights, and human dignity first and foremost, carried out in accordance with the principles of proportionality and non-discrimination.

Read the full text of the Opinion (not available in English) here.

New reference on reception conditions directive: Case C-79/13 Saciri and others

The Belgian Arbeidshof te Brussel referred on February the following questions concerning the reception conditions directive to the CJEU for a preliminary ruling:

1. When a Member State elects, pursuant to Article 13(5) of Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers, to provide the material support in the form of a financial allowance, does the Member State then still have any responsibility to ensure that the asylum applicant, in one way or another, enjoys the minimum protection measures of the Directive as contained in Articles 13(1), 13(2), 14(1), 14 (3), 14(5) and 14(8) of the Directive?

2. Should the financial allowance, provided for by Article 13(5) of the Directive, be granted from the date of the application for asylum and the reception request, or from the expiry of the period provided for in Article 5(1) of the Directive, or from another date. Should the financial allowance be of such a nature that it allows the asylum seeker, in the absence of material reception facilities provided by the Member State or by an institution designated by the Member State, to provide for his own accommodation at all times, if necessary in the form of hotel accommodation, until such time as he is offered permanent accommodation or as he is able to acquire more permanent accommodation himself?

3. Is it compatible with the Directive that a Member State only grants the material reception facilities to the extent that the existing reception structures, as established by the State, are able to ensure that accommodation, and refers the asylum seeker who does not find place there for assistance which is available to all the residents of the State, without providing for the necessary statutory rules and structures so that institutions which have not been established by the State itself are effectively able to extend a dignified reception to the asylum applicants within a short period?

Information on this reference is available at the CJEU’s website.

NGOs, UNHCR and European Commission welcome Turkey’s new asylum law

Wed, 01 May 2013 09:37:21 +0100

The following piece was published in the European Council on Refugees and Exiles’ (ECRE) Weekly Bulletin of 12 April 2013.

The new Turkish Law on Foreigners and International Protection has been welcomed by NGOs, UNHCR and the European Commission. Oktay Durukan of ECRE member organisation in Turkey, the Helsinki Citizen’s Assembly (HCA), told the ECRE Weekly Bulletin that the new law represents a ‘hugely important step forward in the right direction for Turkey’.

Turkey has not lifted its ‘geographical limitation’ and therefore non-European refugees will still not have the right to long-term protection in the country. However, in other areas, according to HCA, the law brings Turkish asylum legislation almost entirely in line with EU standards for reception, procedures for the recognition of refugees, and, for the first time, other beneficiaries of international protection. The law provides basic procedural safeguards including appeals against negative asylum decisions and deportation orders with automatic suspensive effect. Furthermore, lawyers and UNHCR are guaranteed access to pre removal detention centres.

The law also provides for accommodation for asylum seekers; seven reception centres are currently under construction, largely funded by the EU. All beneficiaries of international protection in Turkey will be entitled to free healthcare, although restrictions will still apply to access to the labour market.

HCA expressed concerns that shortcomings in EU legislation have been transferred into this law too, including provisions for accelerated procedures and the introduction of the Safe Third Country concept. HCA is also concerned that the time limit of 15 days to file an appeal, and the short supply of legal assistance providers in the country could make the process extremely difficult in practice.

HCA welcomed the transparency with which the negotiations were conducted, with opportunities for civil society stakeholders to contribute to the process.

The new law establishes a new civilian asylum and migration authority, under the Ministry of the Interior, which will also prepare the implementing legislation.

According to UNHCR, Turkey is hosting 34,576 asylum seekers and refugees originating from Afghanistan, Iraq, Iran and Somalia, as well as 293,000 Syrian refugees.

Case note: France will not deport refused asylum seeker to Chad

Wed, 01 May 2013 09:36:31 +0100

The full judgment is available only in French on the European Court of Human Rights website.

In Chamber judgment in the case of Mo.M. v. France (application no. 18372/10), which is not final, the European Court of Human Rights held, unanimously, that there would be:

A violation of Article 3 of the European Convention on Human Rights if Mo.M., who had been denied asylum, were to be sent back to Chad.

The case concerned the complaint of a Chadian national that deporting him to his country of origin would expose him to the risk of ill-treatment by the police there to punish him for allegedly siding with the rebels in Darfur.

After noting that in spite of an improvement in relations between Chad and Sudan, threats to people’s safety persisted in Chad, the Court found that the applicant had produced sufficient evidence that in view of his personal situation he would be exposed to a real risk of inhuman and degrading treatment if sent back to Chad.

Case note: Removal of Chechen man from Austria to Russia would expose him to risk of ill-treatment

Wed, 01 May 2013 09:35:00 +0100

The full judgment is available here.

In the Chamber judgment in the case of I.K. v. Austria (application no. 2964/12), which is not final, the European Court of Human Rights held, unanimously: that there would be a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights if Mr K. was removed to Russia.

The case concerned the complaint by a Russian national of Chechen origin that his removal from Austria to Russia would expose him to the risk of ill-treatment, as his family had been persecuted in Chechnya.

The Court held in particular that there was no indication that Mr K. would be at a lesser risk of persecution upon return to Russia than his mother, who had been granted asylum in Austria, the Austrian courts having found her account convincing. Furthermore, there were recent reports documenting the practice of collective punishment of relatives and suspected supporters of alleged insurgents.

Case note: Abdi v. the United Kingdom - violation of Article 5

Wed, 01 May 2013 09:34:09 +0100

Read the full text of the judgment and a press release at the website of the European Court of Human Rights.

In the Chamber judgment in the case of Abdi v. the United Kingdom (application no. 27770/08), which is not final, the European Court of Human Rights held, unanimously, that there had been: a violation of Article 5 (right to liberty and security) of the European Convention on Human Rights.

The case concerned a complaint by a Somali national that he was kept in detention for more than three years, pending his proposed deportation to his country of origin.

The Court found in particular that, where lawfulness of detention is in issue, the European Convention refers essentially to national law, laying down the obligation to conform to rules of national law. In Mr Abdi’s case, it held that his detention from 3 December 2004 to mid-April 2007 was not lawful under domestic law because the regular reviews required by the Secretary of State’s published policy on the detention of foreign national prisoners were not carried out. Indeed, the British Government had accepted the unlawfulness of Mr Abdi’s detention following the Supreme Court’s judgment in another similar case.

It also struck out Mr Abdi’s complaint under Article 3 (prohibition of inhuman and degrading treatment) that his removal to Somalia would put him at risk of ill treatment and therefore decided to lift its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court - interim measures) that Mr Abdi should not be expelled until further notice.

Accession of the European Union to the European Convention on Human Rights

Wed, 01 May 2013 09:33:01 +0100

The following article appeared as part of the weekly legal update by the European Council on Refugees and Exiles (ECRE). The text of the accession instrument can be read at the website of the Council of Europe. The UK Human Rights Blog has also prepared a commentary.

The negotiating group of the 47 Council of Europe member states and the European Union has agreed on a draft instrument for the accession of the European Union to the European Convention on Human Rights. Through this instrument, the European Union accedes to the European Convention on Human Rights, to its Protocol and to Protocol no. 6. The main features of the agreement are the following:

The European Union assumes the obligations derived from the three texts with regard to acts, measures or omissions of its institutions, bodies, offices and agencies or of persons acting on their behalf. States will bear responsibility for acts, measures or omissions of their own organs or persons acting on their behalf even if they occur when the state implements EU law. However, in such cases, the EU may be responsible for eventual violations as co-respondent.
The EU may become a co-respondent in a case against a member state if it appears that the violation alleged calls into question the compatibility of a provision of EU law with the Convention, particularly when that violation could have been avoided by disregarding an obligation under EU law. Conversely, member states may become co-respondents to a case against the EU when the alleged violation calls into question the compatibility of a provision of the Treaty of the European Union, the Treaty on the Functioning of the European Union or any provision with the same legal value with the the Convention. In these cases, the EU and the member state will be jointly responsible for the violations found unless the Court decides otherwise.

In proceedings where the EU is a co-respondent, sufficient time shall be afforded to the Court of Justice of the European Union to assess the compatibility of the EU provisions at stake with the Convention if it has not done so yet.
The European Union will have its own judge at the European Court of Human Rights. Hence, a delegation of the European Parliament will be entitled to participate, with the right to vote, in the sittings of the Parliamentary Assembly when it elects ECtHR judges.
Concerning the execution of judgments of the Court, the European Union will be entitled to participate in the Committee of Ministers with the right to vote when it exercises this function. When the Committee supervises the fulfillment of obligations of the EU alone or jointly with member states, the EU and its member states will vote in a co-ordinated manner as required by the EU treaties. When supervision concerns non EU states, EU member states will be free to vote. The right to vote by the EU shall not prejudice the effective exercise of the functions of the Committee of Ministers. New rules on the majorities needed to adopt decisions have also been introduced.

The accession instrument will now be submitted to the CJEU for an opinion on its compatibility with the EU treaties. After that, the Council of the European Union will have to adopt unanimously the decision authorising the signature of the instrument. In addition, the EU will need to adopt internal rules that allow it to function as a party to the Human Rights Convention. On the side of the Council of Europe, the agreement will need to be adopted by the Committee of Ministers and will enter into force when ratified by the 47 member states of the Council of Europe and by the EU. The ratification of the instrument will affect the accession of the EU to the Convention and the two protocols.

The European Commission adopts a proposal for regulation on the surveillance of external sea borders

Wed, 01 May 2013 09:31:35 +0100

The text of the proposal is available to download on the IPEX website.

On 12 April 2013, the European Commission adopted a proposal for a regulation on the surveillance of its external sea borders. This would replace the Council Decision of 2010 that had been ruled against by the European Court of Justice. The proposal will be submitted to the European Parliament and the Council for decision in the ordinary legislative procedure.