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1 Presented by Boldizsár Nagy, THE COMMON EUROPEAN ASYLUM SYSTEM Part II. Qualification Directive, Procedures Directive, EASO, FuturePresented by Boldizsár Nagy,CEU Legal Department2012
2 Qualification directive PurposeGuaranteeing a minimum of protectionClosing the protection gap concerning persons not threatened with Geneva Convention type persecutionPrevention of asylum shopping and abuse of the asylum systemScope of application26 Member states of the EU, including the UK and Ireland who opted in (Denmark not)Minimum standardsAccording to Art 3. states may introduce or retain more favourable standards. This is the bare minimumMajor innovationsIntroduction of „subsidiary protection” and identification of rights accompanying it.Non-state actors may qualify as persecutors in a Geneva Convention senseInternal flight alternative is an exclusion ground.The directive not only offers detailed definition (as the common position of 1996), but also identifies the rights of the protected persons.The directive consists of 40 Articles occupies 12 OJ pagesTwo goals:-minimum comon content of defintions- Minimum common content of protection of the two categories
3 Qualification directive (cont'd) 2 § Definitions:Application = seeking refugee or subsidiary protection statusRefugee = Geneva Convention (1951/67) definition + absence of exclusion grounds according to Art 12 of the D.Person eligible for subsidiary protectionSee next slide96/196/JHA: Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term 'refugee' in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugeesOJ L 63/ március 13UNHCR welcomes the clarification that the Directive does not intend to replace, change or supplement the 1951 Convention but to provide guidance for its interpretation.One stop shop?Should all be investigated for from GC? (UNHCR so suggests)Refugee -refugee status = altter = recognized. UNHCR suggests: „asylum” for recognized
4 Qualification directive (cont'd) Art 2 (e) „‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”Old: 5 (2) § "Subsidiary protection shall be granted to any third country national or stateless person who does not qualify as a refugee, ...or whose application for international protection was explicitly made on grounds that did not include the Geneva Convention., and who, owing to a well-founded fear of suffering serious and unjustified harm set out in article 15, has been forced to flee or to remain outside his or her country of origin and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.Art 17: Article 17Exclusion1. A third country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;(b) he or she has committed a serious crime;(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.
5 Qualification directive (cont'd) Article 15: Serious harm Serious harm consists of: (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.Régi: 15 § The grounds for subsidiary rotection: In accordance with article 5 (2), Member States shall grant subsidiary protection to an applicant for international protection who is outside his or her country of origin, and cannot return there owing to a well-founded fear of being subjected to the following serious and unjustified harm:torture or inhuman or degrading treatment or punishment, or;violation of a human right, sufficiently severe to engage Member State’s international obligations or;a threat to his or her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict,or as a result of systematic or generalised violations of their human rights.
6 Qualification Directive persecution (cont'd) Persecutor / serious harm doerthe State;parties or organizations controlling the State or a substantial part of the territory of the State;non-State actors, if the state or other agents are unable or unwilling to provide protectionProtectorthe State; orparties or organizations, including international organizations, controlling the State or a substantial part of the territory of the State.Protection means at least that- an effective legal system for the detection, prosecution and punishment of persecution or serious harm is operatedthe applicant has access to such protection._____________________________________________________________________Recast, 2009: Protection must be effective and durable and can only be provided by the above mentioned actors if they are willing and able to enforce the rule of law.„ national authorities interpreting broadly the current definition have onsidered clans and tribes as potential actors of protection despite the fact that these cannot be equated to States regarding their ability to provide protection. In other instances, authorities have considered non-governmental organizations as actors of protection with regard to women at risk of female genital mutilation and honour killings, despite the fact that such organizations can only provide temporary safety or even only shelter to victims of persecution” COM 551/2, p. 6.
7 Qualification directive Persecution (cont'd) Internal relocation alternative (8§)- Optional! (MS „may” determine)In a part of the country of originthere is no well-founded fear of being persecuted / no real risk of suffering serious harmthe applicant „can reasonably be expected to stay in that part of the country”„Have regard” to –general circumstances +personal circumstances of the applicantIf no possibility to return for technical reasons, still applies!____________________________________________________________________________________________________________________________________________Recast, 2009:incorporates the 2007 Salah Sheek judgment of the ECtHR: legally travel there, gain admittance and settle thereremoves the applicability even if technical obstaclesEstablishes obligation of authorities to have up-to-date infoApart from considering whether the applicant would not have a well-founded fear of persecution or would face serious harm in the area, it should also be considered whether the applicant could safely and reasonably relocate, without undue hardship.Subpara 3 - on technical obstacles: The effect of this provision is to deny international protection to persons who have no accessible protection alternative. In UNHCR’s view, this is not consistent with Article 1 of the 1951 Convention. An internal relocation or flight alternative must be safely and legally accessible for the individual concerned. If the proposed alternative is not accessible in a practical sense, an internal flight or relocation alternative does not exist and cannot be reasonable.  See also, UNHCR, Handbook, para. 91 and UNHCR, “Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04, 23 July 2003.
8 Qualifications directive Cessation, exclusion Usual GC grounds (re-availement of protection, re-acquiring nationality, acquiring new nationality, re-establishment in country of origin, circumstances justifying ref. status cease to exist)The change of circumstances must be of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.___________________________________Questions:DurabilityJustified grounds to resist return solely for memories of past persecutionRecast, 2009: introduces to exception to ceased circumstances if „a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality”
9 Qualifications directive Cessation, exclusion GC grounds:protection by other UN organ (UNRWA)enjoying rights equivalent to those of nationalscrime against peace, war crime, crime against humanitya serious non-political crime outside the country of refuge prior to the issuing of residence permit based on refugee status; particularly cruel actions, - even if committed with political objective - may be classified as serious non-political crimes;Acts contrary to the purposes and principles of the UN______________________________________Exclusion ≠ return: non refoulement may apply!UNHCR: It would not be correct to interpret the phrase “prior to admission …as a refugee” as referring to the time preceding the recognition of refugee status or the issuing of a residence permit based on the granting of refugee status. Given that the recognition of refugee status is declaratory, not constitutive, “admission” in this context includes mere physical presence in the country of refuge
10 Qualifications directive Procedure, including revocation of refugee status MS must „grant” (i.e.: recognize) refugee status to those who qualify! (13 §)MS must „revoke, end or refuse to renew” refugee status if cessation grounds apply or „he or she should have been or is excluded from being a refugee” (14 § 3. (a)) or his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.MS may „revoke, end or refuse to renew” status when GC exceptions to non-refoulement (33§ (2)) apply, i.e. national security or danger to the communityBurden of proof:cessation: MS „demonstrate” on an individual basisExclusion: „establish” _________________________________Confusion of cessation, cancellation and revocationCessation – normal end of status – changed circumstancesCancellation – should not have been recognizedRevocation – after recognition engages in 1 F (a) and (c) activitiesEnding status = in fact ending asylum, not refugee quality in the Geneva 33(2)casesUNHCR argument: 33 (2) means possibility to refouler, but not end of refugee status, so revocation of status may only mean that the rights accorded to refugees may be denied, but not the fatc that the person is threatened with persecution1 F (a) and (c) activites azért enged meg stáTsuz megvonást, mert az egyezmény sem tartalmaz időbeli vagy térbeli korlátot (háborús, emberiség elleni és béke elleni bcs, ill ENSZ célok és elvek elleni
11 Subsidiary protection – conceptional issues Complementary – subsidiary Preamble (24) : „Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention” Is subsidiary protection of a lesser standing, do beneficiaries deserve less rights/protection?"As a technical term, however, 'complementary protection' denotes protection granted to individuals on the basis of a legal obligation other than the principal refugee treaty. In contemporary practice it describes the engagement of states' legal protection obligations that are complimentary to those assumed under the 1951 Refugee Convention (as supplemented by its 1967 Protocol), whether derived from treaty or customary law"
12 The moral dilemma – what is the basis of subsidiary protection? CompassionIntegrity, dignity and human rights of the human beingDifferentiation between Convention status and complementary protection is conceivableState discretion in granting or withholding itDifferentiation is unjustifiedThe state only recognizes the necessity of protection"There is no legal justification for differentiating between convention refugees and the status of beneficiaries of complementary protection„(McAdam, 2007, p.1.)"There is not yet a consistent understanding of what the resultant legal status should entail although this book advances the argument that a status identical to Convention status ought to apply„ McAdam, 2007, 3.o.Playing God with sanctuary A study of Australia’s approach to complementaryprotection obligations beyond the Refugee Convention ,Current Australian law• Australia is now one of the few developed countries that has no formal system of complementaryprotection. Instead, Australia currently uses ministerial intervention powers as an informalmechanism.• Under current Australian law, all people seeking protection must file an application for refugeestatus with the Immigration Department even if they know from the outset that they will not fit thisdefinition of a refugee. The claim is assessed against the Refugee Convention but not against otherhuman rights treaties Australia has ratified, such as the Convention Against Torture (CAT).• Unsuccessful applicants can appeal the decision to the Refugee Review Tribunal (RRT) which canagain only review the application against the Refugee Convention. After a second negative decisionthe applicant may apply to the Minister for Immigration to assess their claim based on a muchbroader set of humanitarian criteria, which can include risk of torture or other claims under humanrights treaties Australia has ratified.• But the Minister does not have to intervene, no court can compel the Minister to intervene and s/heis under no obligation to give reasons for not intervening.• If the Minister does intervene, s/he does not have to give reasons for his/her decision and no courtcan review the decision. ibid,.
13 The Elgafaji case – C-465/07 ECJ – Judgment, 17 February 2009 Is it more than Article 3 of ECHR and(Answer: yes), when does a person run „a real risk of serious and individual threat by reason of indiscriminate violenceECJ:It does not refer to specific acts of violence, but to the threat of the applicant’s life and person.That threat is triggered by violence, which is indiscriminate (34. §)Indiscriminate: it extends to the person „irrespective of her/his personal circumstances”The case: Case C-465/07, Reference for a preliminary ruling under Articles 68 EC and 234 EC from the Raad van State (Netherlands), in the proceedings Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie . The Grand Chamber deciding, Netherlands and seven other MS (+ the Commission) making observationsImportance: clarifying what „individual” means in 15 § c; settling the relationship among a, b, and c by stating that c goes beyond a and b.Facts:Mr Elgafaji, is a Shiite Muslim his wife is Sunni. He had worked from August 2004 until September 2006 for a British firm providing security for personnel transport between the airport and the ‘green’ zone. His uncle, employed by the same firm, had been killed by a terrosrist act of the militia.Claimants’ reasons for believing that there was a serious and individual threat- The killing of the uncle- A short time later, a letter threatening ‘death to collaborators’ fixed to the door of their residence
14 The Elgafaji case - Judgment, 17 February 2009 The key sentence…[T]he word ‘individual’ [threat-BN] must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place … reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the DirectiveThat interpretation, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.its wording ..allows – by the use of the word ‘normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.QD and AH on Elgafaji:By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article15(c), but only one where the level of violence is such that, without anything to renderthem a particular target, civilians face real risks to their life or personal safety.____________________________On 25 May 2009, the Dutch Council of State, the Netherland’s highest administrative court, gave an important judgment applying the recent European Court of Justice’s interpretation of the qualification directive.….The Dutch Council of State, taking into account the above ECJ interpretation, denied the request of the Elgafaji couple to remain in the Netherlands on the ground that there is no exceptional situation taking place in Iraq whereby any civilian is at risk through random acts of violence.(Source: ECRE Weekly Bulletin, xxx 2009)
15 Elgafaji, 43 §„the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances” (§ 43)Das Vorliegen einer ernsthaften individuellen Bedrohung des Lebens oder der Unversehrtheit der Person, die die Gewährung des subsidiären Schutzes beantragt, setzt nicht voraus, dass diese Person beweist, dass sie aufgrund von ihrer persönlichen Situation innewohnenden Umständen spezifisch betroffen ist.
16 The level of indiscriminate violence Low High The measure of individualisation and the level of violence Elgafaji, 39. pontIndividualisationHighLowThe level of indiscriminate violence Low High39 §In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.
17 _____________________________________________ Qualifications directive Subsidiary protection: procedure, including revocation of statusMS must „grant” (i.e.: recognize) subsidiary protection status to those who qualify! (18 §)Cessation: A person shall cease to be eligible for subsidiary protection when the circumstances which led recognition have ceased to exist or have changed to such a degree that protection is no longer required.the change must be significant and of a non-temporary nature, therefore the person no longer faces a real risk of serious harm._____________________________________________Recast, 2009: here also exception to ceased circumstances? If compelling reasons to refuse protection, arising out of previous harm
18 Qualifications directive: Subsidiary protection: procedure, including revocation of status (Cont’d) ExclusionA person „is excluded from being eligible for s.p. if there are serious reasons for considering that:”(a) he or she has committed a crime against peace, a war crime, or a crime against humanity,(b) he or she has committed a serious crime;(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.Member States may exclude a person from being eligible for subsidiary protection, if prior to admission the person has committed one or more (non-serious) crime, punishable in the Member State concerned, and if the person left his or her country of origin solely in order to avoid sanctions resulting from these crimes.B pontnál nincs prior to admission!2. bek: normál bűnöző, akt mondjuk inhuman treatment fenyeget
19 Qualifications directive: Subsidiary protection: procedure, including revocation of status (Cont’d) Compulsory OptionalrevocationCessation clauses - Fleeing prosecutionExclusion clauses: for - Smaller crimePeace, war, humanityserious common crimeUN principles,Misrepresentation of decisive facts
20 Qualifications directive: substantive rights Without prejudice to GCSame rights to refugees and beneficiaries of subsid. prot - unless otherwise indicated!Specific attention to vulnerable groups + best interest of the childIn „manufactured cases” (refugee and subs. prot.) MS „may reduce the benefits”21 § confirms non-refoulement both for asylum seekers and recognized refugees
21 Qualifications directive: substantive rights MS shall ensure family unity (23 §)(def – see there, unity and benefits according to national law)national security or public order: grounds for refusal, reduction or withdrawal of benefits from fam. membersMS may extend to other close relatives, who lived together and were dependent on the beneficiary of ref or subsid prot status before his/her departureResidence permits: min 3 years for refugees 1 year for subsid. prot.Travel document: refugees: as in GC, subsid. prot: „document” „at least when serious humanitarian reasons arise” (25 § (2) )_____________________________________________Recast,2009:Would abolish difference in benefits to family members between Convention status and subsid prot (23§ (2))Residence permit: 3 years for both statusTravel doc: no limitation to humanitarian reasons – generally accessibleMoreover, the current standards of the Directive regarding the rights to be granted to beneficiaries of international protection with a view to supporting their integration are also not adequate to ensure effective access to the rights guaranteed by the relevant international instruments in a consistent manner in all Member States. In the same vein, they are not adequate neither to achieve the Treaty objective of promoting social cohesion and the integration of legally residing third-country nationals nor to give effect to the integration mandate set by the Tampere and the Hague Programmes. These provisions of the Directive reflect the legal standards provided by relevant refugee law and human rights instruments. However, it appears, on the basis of extensive research, that they do not take sufficiently into account the specific practical difficulties faced by beneficiaries of international protection compared to other legally residing third-country nationals. As a result, they do not ensure the consistent and effective implementation of the relevant legal standards.Sec (2009)1373 FINAL (Impact assessment), p. 11.
22 Qualifications directive: substantive rights Employment, self employment, vocational (further) training:Refugees: subject to rules applicable to the professionSubsidiary protection beneficiaries: the same+ examination of the labour market situation+ limited period access+ vocational training: state’s discretionEducation: Minors: full access; adults: as third country nationals.________________________________________________Recast, 2009:eliminates difference between ref prot and subsid prot in employmentNew:MS must facilitate (by grants and loans) access to employment related education and trainingNew article (28) on access to procedures for recognition of qualificationsUNHCR advocates equal treatment:-access to labour market:tool for integrationless burden on social services_______________________„Member States shall endeavour to ensure that beneficiaries of internationalprotection who cannot provide documentary evidence of their qualifications haveaccess to appropriate schemes for the assessment, validation and accreditation oftheir prior learning.” Recast, COM 551/2 new §28 (2).
23 Qualifications directive: substantive rights Social welfare and health care:national treatment, but for subsid. prot. beneficiaries MS may limit to core benefitsAccommodation:As legally resident third country nationalsIntegration: MS must create programs but subsid. prot. beneficiaries only get access to them „where it is considered appropriate by MS” (33 §)Repatriation: MS may provide assistance to voluntary return.Unaccompanied minors: 30 § details the protection of their special interests_______________________________________________Recast, 2009: equal treatment of Conv ref and subsid prot in matters of socail welfare, health care and integration
24 THE „PROCEDURES DIRECTIVE” (2005) Council Directive 2005/85/EC of 1 December on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ L 326/13 of )History:Predecessor: Resolution on Minimum Guarantees for Asylum Procedures, adopted on 20 June 1995 published in O.J C 274/13,Original proposal (COM(2000) 578 final, )Amended proposal: COM (2002) 326 final O.J. C 291 E/___________________________________Recast Proposal: COM(2009) 554 final, 21 October Second Recast Proposal: COM(2011) 319 final, 7 June 2011
25 obligatory: for Geneva Conv status applications Directive on minimum standards on procedures Scope, definitions, more favourable rulesPurpose: common minimum standards for the procedures on recognizing and withdrawing refugee statusScope:obligatory: for Geneva Conv status applicationsoptional: for protection other than GenevaMore favourable provisions: MS may maintain or introduce „insofar” as are compatible with this directive (5 §)Dublin II-nek elemi előfeltétele lenneCEAS legfotnosabb eleme, Qualifcation-nelKérdés: ha single proc lesz mindkét stáuszra akalmazandó lesz-e
26 Directive on minimum standards on procedures Basic principles and guarantees Access to procedure - each adult has the rightRight to stay - until first instance decision (exception: subsequent application and European Arrest Warrant + int’l criminal courts)Procedural requirements: appropriate examination: = individual, objective, impartial, = up to date country of origin and transit info= personnel knowledgeable about asylum law= appeal authorities also informed about country of orig. and transit- Decision: in writing, justification if negative (!)
27 Directive on minimum standards on procedures Further guarantees Information on procedure and consequences (in a language the applicant „may reasonably be supposed to understand”) Interpreter „whenever necessary” Access to UNHCR or an agency working on its behalf Notice of the decision on time in a language supposed to be understood – if not assisted by lawyer On appeal: only interpreter, access to UNHCR, timely notification
28 Directive on minimum standards on procedures Duties of the applicant: Report to authorities, hand over documents, report place of residence, allow search, photograph and recorded statementInterview: Compulsory, but exceptions (Dublin II, assistance at submission of request, „not reasonably practicable” /e.g.unfit applicant/)Requirements: minimal„steps” to ensure comprehensive account,interviewer „sufficiently competent”, (to take account of applicant’s cultural origin or vulnerability)interpreter to ensure „appropriate communication”, not necessarily in language preferred by applicant.written report: access before or after the decision, approval of applicant not necessary!
29 Directive on minimum standards on procedures Legal assistance:- Applicant must have access to lawyer (at his cost)Lawyers access to closed areas may be curtailed but not rendered impossible- Free legal assistance/representation: MS „shall ensure” after negative decision on conditions as to nationals + further grounds for not offering:only for appeal (not admin. review)if applicant has no means to financeif „review is likely to succeed”only from among chosen representativesMs may set time or financial limits and not disclose sensible infoPresence at interview: MS discretionUnaccompanied minors:must have representative before interviewinterviewer and decision maker has specialized knowledgeseveral exceptions to this duty (e.g 16 years of age,married etc.)Free legal aid Reimbursement can be demanded if the applicant’s financial situation has improved
30 Directive on minimum standards on procedures Detention:„shall not hold in detention for the sole reason that he/she is an applicant”Condition, duration: not fixed, „speedy judicial review required”Implicit withdrawal: Conceivable if applicant does not report, absconds, does not appear for an interview, does not provide informationUNHCR (and organizations acting on its behalf):access to: applicant, informationright to present its viewUNHCR believes that the guidance provided by the Executive Committee in its Conclusion No. 44 (XXXVII) of 1986, which outlines permissible exceptions to the general rule that detention of asylum-seekers should normally be avoided, addresses States’ concerns. Detention of asylum-seekers may only be resorted to, if necessary:• to verify identity;• to determine the elements on which the claim to refugee status or asylum is based;• to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or• to protect national security or public order.UNHCR suggests that States provide for an exhaustive enumeration of the grounds for detention of asylum-seekers in national legislation. In line with the jurisprudence of the EuropeanUNHCR suggests simple discontinuation and reopening without time limits
31 Directive on minimum standards on procedures Normal „examination” procedure (Art 23, 1-2)no deadline prescribed „as soon as possible” - after 6 months „information” on the delay and expected time frameOther procedures and applicationsPrioritisedacceleratedSpecificUnfoundedInadmissibleWith the guarantees of Chapter IIWithout the guarantees of Chapter II in case of subsequent and supersafe third andexisting borderproceduresMay be manifestly unfounded according to national lawSafe country of origin;No examinationSee next slides
32 ___________________________ Directive on minimum standards on procedures Accelerated or prioritized procedures1. No relevant issue raised2. the applicant clearly does not qualify as a refugee3 safe country of origin4. safe third country (non MS)5. misled the authorities by presenting false information or documents with respect to his/her identity6. filed another application for asylum stating other personal data; or7 destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or8 the applicant has made inconsistent, contradictory, unlikely or insufficient representations9 subsequent application raising no relevant new elements10 failed to make his/her application earlier,11 merely in order to delay or frustrate removal12 violations of behavioral rules (reporting etc.)13 entered unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible14 the applicant is a danger to the national security or the public order15 refuses to have his/her fingerprints takenthe application was made by an unmarried minor after the application of the parents responsible for the minor has been rejected___________________________C‑69/10 Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (Luxembourg) decided: 28 July No separate appeal against a decision to examine in accelerated procedure, 15 days for appeal are enough, one level court review constitues effective remedy
33 Directive on minimum standards on procedures Specific procedures-Unfounded – Inadmissible applicationsSpecificUnfoundedInadmissibleSubsequent applicationsafe country of originDublin II appliesBorder proceduresRefugee status in another MSSupersafe” third country cases „European safe third countries” 36 § - CJEU abolished in 2008Non MS = first country of asylum (already recognized there as refugee)„Normal” safe third country appliesOther title to stay, with at least refugees’ rights pending the determination of that other titleidentical repeat applicationDependent repeating parents rejected applicationA country is considered as a safe country of origin where, it can be shown that there is generally and consistently no persecution and no torture or inhuman or degrading treatment or punishment; and no threat by reason of indiscriminate violence in situations of international or internal armed conflictThis is proved by the legal situation, the application of the law within a democratic system and the general political circumstances. Account shall be taken of the extent to which protection is provided against persecution or mistreatment through:the relevant laws and their application;observance of the European Convention of Human Rights and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture,respect of the non-refoulement principleprovision for a system of effective remedies_____________________________First country of asylum (§ 26)the a.s. has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection, or he/she enjoys otherwise sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that he/she will be re-admitted to that country.________________________________________Normal” safe third country (defined nationally) (§ 27)life and liberty are not threatened on account of 5 Geneva Convention grounds; andthe principle of non-refoulement is respected; andthe prohibition on removal in breach of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law is respected; andthe possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
34 Directive on minimum standards on procedures Criticism, concerns “Safe third country” criteria that go below any standards that could ensure effective protection and provisions that lack any possibility of individual review before return to a “safe” country, and extension of the concept to countries where the applicant may have no links and which he or she may not even have transited;Need for minimum principles and guarantees during border procedures;Lack of “suspensive effect of appeals” (or denial of right to remain in the country while an appeal is heard);Provisions that channel up to 16 different categories into accelerated procedures;Failure to limit or define permissible grounds for detention of asylum-seekers;Restrictions on free legal assistance and representation including at appeal, for asylum-seekers arriving irregularly as well as unaccompanied children;Lack of specific provisions to ensure the gender sensitivity of procedures;Failure to take advantage of the opportunity to introduce a single procedure.Source: UNHCR Aide Memoire, November 2003
35 THE EUROPEAN ASYLUM SUPPORT OFFICE (EASO) REGULATION (EU) No 439/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof 19 May 2010establishing a European Asylum Support Office(OJ L 132/11 of )
36 The European Asylum Suppport Office Commission Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office, adopted on (COM (2009) 66 final)Political agreement on a common position in November 2009Adoption 19 May 2010Seat: MaltaPurposescoordinate and strengthen practical cooperation among Member Statesand help to improve the implementation of the Common European Asylum System.operational support to Member States subject to particular pressurescientific and technical assistance for Community policy-making and legislation
37 The European Asylum Suppport Office EASO planned activities - a few highlightsSource of Country of origin informationCoordination and assistance to intra EU reallocation of beneficiaries of protectionIntervention at the request of the affected MS in case of mass influx:- Sending asylum support teams with expertise ininterpreting services,information on the countries of originand knowledge of the handling and management of asylum casesDecision to send: 3/4 of Management Board – experts sent by MS chosen from an Asylum Intervention Pool
38 The European Asylum Support Office Ministers agreed on priorities in the Fall of 2010 First meeting of the Board of Managers: Malta, 2010 nov Start of operation June 2011 (in a hotel room….)Promoting implementation of the CEAS (Assisting the Commission in controlling its implementation)Support of trainingCountry of origin info(Portal, analysis)Capacity building(especially in countries exposed to particular pressure)Ld. CEAS a jelenlegi helyzet elnökségi „stock taking” 2010 október 29.Doc: Asile /10Képzés: interjútechnikák, határozatok indokolása, hitelesség -európai szointen igazi szakmai közösség alakuljon ki(Comon European Asylum Curriculum)COI: elsősorban azon országokra, amelyek kapcsán a legnagyobbak az eltérések
39 THE FUTURE OF THE INTERNATIONAL AND EUROPEAN REFUGEE REGIME The five priority areas of the pactRegular migration and integrationPartnership with countries of origin and transitIrregular migration and returnAsylumIncreased efficiency of the border controlTHE FUTURE OF THE INTERNATIONAL AND EUROPEAN REFUGEE REGIMEEuropean Pact on Immigration and Asylum 2008, Council Doc 13440/08 of 24 September 2008, formally endorsed by the European Council on 15/16 October Never published in the OJApproach:Migration is a reality, aiming at zero migration is unrealistic and dangerous,Europe’s reception/integration capacity is limitedSolidarity and shared responsibility among member statesMigration is an opportunity and a dangerMigration: both an opportunity and a threat2009: European Asylum Support Office: coordination, professional assistance but no decision making in individual cases;„ in 2010 if possible and in 2012 at the latest, a single asylum procedure comprising common guarantees and for adopting a uniform status for refugees and the beneficiaries of subsidiary protection”;In case of a MS facing a crisis because of mass influxSending of experts to assist work with the caseloadSolidarity with the MS – mobilising EU funds/programsReallocation of beneficiaries of protection on a voluntary basis ;Stronger co-opration with UNHCRResettlement into the EUCapacity building in third statesTraining of border guards of the external border in asylum matttersThe five priority areas of the pactRegular migration and integrationPartnership with countries of origin and transitIrregular migration and returnAsylumIncreased efficiency of the border control
40 The five priority areas of the pact Regular migration and integrationPartnership with countries of origin and transitIrregular migration and returnAsylumIncreased efficiency of the border controlRecastsEuropean Pact on Immigration and Asylum 2008, Council Doc 13440/08 of 24 September 2008, formally endorsed by the European Council on 15/16 October Never published in the OJApproach:Migration is a reality, aiming at zero migration is unrealistic and dangerous,Europe’s reception/integration capacity is limitedSolidarity and shared responsibility among member statesMigration is an opportunity and a dangerMigration: both an opportunity and a threat2009: European Asylum Support Office: coordination, professional assistance but no decision making in individual cases;„ in 2010 if possible and in 2012 at the latest, a single asylum procedure comprising common guarantees and for adopting a uniform status for refugees and the beneficiaries of subsidiary protection”;In case of a MS facing a crisis because of mass influxSending of experts to assist work with the caseloadSolidarity with the MS – mobilising EU funds/programsReallocation of beneficiaries of protection on a voluntary basis ;Stronger co-opration with UNHCRResettlement into the EUCapacity building in third statesTraining of border guards of the external border in asylum matttersThe five priority areas of the pactRegular migration and integrationPartnership with countries of origin and transitIrregular migration and returnAsylumIncreased efficiency of the border control
41 Qualifications directive Adopted recast: Directive 2011/95/EU of 13 December 2011 OJ L 337/9
42 Divergent recognition rates Vague terms, different interpretation Recast of the Qualification Directive, (COM (2009) 551 and related documents)Problems identified:Symptoms CausesDivergent recognition rates Vague terms, different interpretation- actors of protection internal protection- membership of a particular social groupRemaining secondary Different standards of movements protection-Convention refugees – beneficiaries of subsidiary protection- Limited right to family unificationLack of integrationSource SEC 1374 final , p.2-3 summary of impact assessment__________________________________Studies evaluating the QD:UNHCR, "Asylum in the European Union, A study on the implementation of the Qualification Directive", November (the "UNHCR study");ELENA/ECRE, "The impact of the EU Qualification Directive on International protection", October 2008, ("ECRE study");France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un mosaïque de droits", Les cahiers du social no 18, Septembre 2008;Dutch Refugee Council/ECRE, ‘Networking on the Transposition of the Qualification Directive’, December 2008,Nijmegen University, "The Qualification Directive: Central themes, Problem issues, and Implementation in selected MS", Karin Zwaan (ed), 20077Odysseus Network study Available atGHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004.
43 Suggested changes to QD Restrict the broad interpretation of the concepts "actors of protection" and "internal protection” by specifying the criteria for assessing the accessibility and effectiveness of protectionEnsure a more inclusive interpretation of the concept "particular social group" in line with the standards of the Geneva Convention, by better defining the significance to be attached to aspects arising from the applicants' gender and thus enhancing access to protection in particular for women.Approximate the rights of beneficiaries of subsidiary protection to those of refugees by removing all differencesregarding the duration of their residence permit;access to employment and employment-related education activities;access to social welfare, health care and to integration facilities;access to benefits for their family members.Done – see new Art 7ExtendedDone, see e.g. Arts20 (2) and 26Actors: states and organosations only – if able and willing to enforce the rule of law. - NGO-s clans, tribes are excludedInternal flight alternative: legal travel, admittance, settle there (§ 8)Gender: now: might be considered, but not enough alone: recast” should be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group” (10 (1) d.)Cessation clause exception – if compelling reasons arising from past persecution to refuse the protection GC only had that for interwar refugees including II WW.Closing the gap between rights: Social welfare, health and integration – same rights for ref and b of sp.Family members: married minors, nay minor even if not dependent, siblings, parents of even married minors
44 Suggested changes to QD Enhance the integration of beneficiaries of protection taking into account their specific needs:enhance recognition of their qualifications;vocational training and employment support;accommodation and integration programmesEnhance respect the protection to family life: broaden the definition of family members so as to address the case where a beneficiary is a minor and the wide range of situations where a minor might be considered dependent, while ensuring the best interest of the child.Done, see eg. New Art 28.Done, see new Art 2 (j) third French para
46 Recast (COM (2009) 554 final, 21.10.2009 Major suggestions Refined definitions in line with the Qualifications directive (QD) and the Convention on the Rights of the ChildCompulsory extension to the procedure on application for subsidiary protection (envisaging a single procedure)New article granting access to border zones (HHC practice!)Limits on avoiding personal interviewDeadline for 1st instance decision: 6 monthsSeparation of prioritized procedures from accelerated proceduresPrioritized = well founded or persons with special needsAccelerated: abuse or no serious ground of the application(Irregular entry, border application, lack of documents or forged documents – not automatic accelerated procedure)Even then reasonable time limits have to be setAbolition of the „specific procedures” category
47 Recast (COM (2009)554 final,Right to „present their views” if the application is inadmissible (ref status in another MS, first country of asylum elsewhere, safe third country, identical application before, dependant makes application after refusal)Safe third countryMaterial and procedural changesif no risk of serious harm according to QD (added to the already existing criteria)Challenge extended: if not safe (not only torture etc.) or if no connection to itMinimum common list of safe third countries. no longer expectedSafe country of origin:No common list!Further refinement of the criteria (no application to a part of a country, regular review obligatory)Standstill clause to be abolished (no retaining of national criteria with less guarantees than in Annex II)As no common list exist application is not unfounded
48 Recast (COM (2009)554 final,Subsequent (repeat applications):more lenient towards those with new facts or evidence (no time limit to submit them) harsher with multiple applications (no right to stay)Border procedures: only if accelerated (basically: abuse)Appealmust extend to facts and law (to be effective)have automatic suspensive effect (except in accelerated or identitcal if MS opt so)
49 THE STOCKHOLM PROGRAM The Stockholm Programme - An open and secure Europe serving and protecting the citizenFormally adopted by the European Council on 10/11 December 2009See Council Conclusions of 11 December 2009 (EUCO 6/09) and the programme in Council register doc /09)The draft Stockholm Programme was presented by the Presidency on 16 October Coreper held a first exchange of views on the Programme during its meetings on 21 and 22 October Following that, the JHA Counsellors have examined the entire text at three meetings on 30 October, 6 and 13 November. Coreper has examined the text also on 3 occasions on 4, 11 and 20 November.At its meeting of 30 November and 1 December 2009, the Council (Justice and Home Affairs), held a wide-ranging exchange of views on the Programme which was met with a broad consensus. Many issues were brought forward and the text has been redrafted, as set out in the annex to this note, to reflect those discussions. The Presidency herewith submits to the General Affairs Council and the European Council the result of those discussions for approval in accordance with Article 68 TFUE and publication in the Official Journal of the European Union.
50 The Stockholm Program6.2 Asylum: a common area of protection and solidarity The European Council remains committed to establishing a common asylum procedure and a uniform status for those granted international protection A common area of protection Starting points/Goals The development of a Common Asylum Policy should be based on a full and inclusive application of the Geneva Convention on the status of refugees and other relevant international treaties. The European Asylum Support Office (EASO) will be an important tool strengthening all forms of practical cooperation between the Member States. EASO should further develop a common educational platform for national asylum officials. The Dublin System remains a cornerstone.The swedish presidency on its website about the Stockholm programme:„The greatest effect of the programme in the area of asylum and migration is that work on the common European asylum system will continue and that impetus will be given to the development of the EU external dimension”visited 29 March 2010
51 Stockholm - 6.2.1 A common area of protection Proposals The Council and the European Parliament intensify the efforts to establish a common asylum procedure and a uniform status in accordance with Article 78 TFUE for those who are granted asylum or subsidiary protection by 2012 at the latest, The Commission to consider (after 2012) the possibilities for creating a framework for the transfer of protection of beneficiaries of international protection when exercising their acquired residence rights under EU law, A feasibility study on Eurodac as a supporting tool for the entire CEAS, while fully respecting data protection rules, Finalise Commission study on the joint processing of asylum applications.
52 Stockholm - 6.2.2 Sharing of responsibilities and solidarity 6.2.2 Sharing of responsibilities and solidarity between the Member States Starting points/Goals: Effective solidarity with the Member States facing particular pressures should be promoted. Proposals Developing mechanism for sharing responsibility between the Member States Creating instruments and coordinating mechanisms for MS to support each other in building capacity, A more effective use of existing EU financial systems aiming at reinforcing internal solidarity, Secondment of officials in order to help those Member States facing particular pressures of asylum seekers.
53 Stockholm - 6.2.3 The external dimension of asylum 6.2.3 The external dimension of asylum Starting points/goals Partnership and cooperation with third countries hosting large refugee populations. A common EU approach and cooperation with the UNHCR and other actors The EU should promote its accession to the 1951 Geneva Convention Solidarity with third countries: capacity building and help in protracted refugee situations Proposals To enhance capacity building in third countries Develop and expand the idea of Regional Protection Programmes. Encourage the voluntary participation of Member States in the joint EU resettlement scheme and increase the total number of resettled refugees. (Commission to report on resettlement yearly) Strengthen EU support for the UNHCR Enhance access to asylum procedures in main transit countries - Member States could participate on a voluntary basis.
54 THE MISSING COMPASS AND THE LACK OF A MUSE TO FIND THE WAY – FINISH THE SYMPHONY
55 Communication on migration COM(2011) 248 final, 4 May 2011 Not simply a reaction to the Tunisian and Lybian outflow in Spring 2011, but a „roadmap” of the Commission’s plans on migrationTarget areasCrossing the bordersCoping with the crisisExternal border controlsSchengen goverancePreventing irregular migrMoving and living in a borderless area (regular migration and integration)Organised mobilityConsistent policy on tcn-s visasManaged legal migrationIntegration of immigrantsProviding protectionMigration in external relationsGlobal approach to migrationBeyond the crisis - the EU Southern mediterranan partnershipCoping with the crisis: help to repatriate INTERESTING new Category (next to irregulars and asylum seekers): „temporarily displaced” tcn workers in LybiaAid (100million euro) on the one hand accelerated tart of Hermes operation on the otherRelocation from Malta, yes, Temporary Protection mechanism NO!External border controls: enhance border control update Common Practical Handbook for Border Guards, + the feasibility of creating a European system of borders guards should be considered+ legal proposal to establish Eurosur in FRONTEX’s manadate to be extended (more operational capacity)Schengen governance: currently peer review Comm wants to involve FRONTEX and itselfSchengen amendment: „A mechanism must also be put in place to allow the Union to handle situations where either a Member State is not fulfilling its obligations to control its section of the external border, orwhere a particular portion of the external border comes under unexpected and heavy pressuredue to external events…. Such a mechanism may therefore need to beintroduced, allowing for a decision at the European level defining which Member Stateswould exceptionnally reintroduce internal border control and for how long. The mechanismshould be used as a last resort in truly critical situations, until other (emergency) measureshave been taken to stabilise the situation at the relevant external border section either atEuropean level, in a spirit of solidarity, and/or at national level, to better comply with thecommon rules.”Irregular migration : pply employers’ sanction directive (2009) enhance EU return policies, negotiate readmission agreements by offering sg in exchange (visa-related incentives)Organised mbility : exit-entry system + registered traveller programTCN visas: balance between mobility of bona fide travellers and security concernsInclude safeguard close (for restoring visa obligation + more multiple entry vsas + co-operation in thrd countries in visa issuance (local Schnegen cooperation) + examine the setting up of common visa application centresLegal (regular) migration: numbers still n MS competence. EU will need millions of TCN. Family unif no longer the main ground EU immigration portal will be set up. Single permit should be adopted as suggested in Improve recognition of TCNsIntegration: toolbox of best practices + strengthen local actors (communities, regions)
56 The Commossion’s ambitions enshrined in the 2011 communication on migration COM (2011) 248 final The common asylum system should provide for „(a) the fair treatment of and appropriate guarantees for asylum seekers and beneficiaries of international protection; (b) procedural devices that will help national authorities to properly and quickly assess asylum claims, in a more convergent way and with tools to deal with abusive claims; (c) the appropriate level of approximation of rights for beneficiaries of international protection which will contribute to cost savings in administrative processes and to limiting secondary movements and asylum shopping, while at the same time improving integration prospects; (d) the improvement of the efficiency of the 'Dublin system', while catering for situations of exceptional pressures which may be faced by individual Member States; and (e) a EURODAC database which continues to support the efficiency of the Dublin Regulation, whilst also meeting other needs of law enforcement authorities but under very strict conditions.” ______________________________________________________________ No word on uniform status or common procedure (neither on single procedure) let alone integration of refugeesCOM(2011) 291 final Annual Report on Migration and asylum, 2011 May 241 page on asylum out of 11Legislative progress was slow and difficult in the field of asylum in The co-legislators agreed on the extension of the scope of the Long-Term Residents Directive to beneficiaries of international protection, and made some progress on the Dublin and Eurodac Regulations as well as on the Qualification Directive. To give an impulse to the stalled negotiations on the Reception Conditions and Asylum Procedures Directives /The Comm introduced the two new recasts in June/EASO was a significant development. boosting practical cooperation.Solidarity among Member States is needed as one of the components of the Common European Asylum System (CEAS). A pilot project for the relocation from Malta to ten Member States of approx. 250 beneficiaries of international protection is running and will beGreece has embarked on a comprehensive overhaul of its asylum and migration system, and EASO asylum support teams are deployed there„ Existing Regional Protection Programmes (RPPs) in Tanzania and Eastern Europe continued; the implementation of a new RPP in the Horn of Africa region started in September, in close cooperation with the UNHCR; and work advanced on the development of another RPP in North-Eastern Africa (Egypt, Libya and Tunisia).”Resettlement is equally essential in this context. Negotiations on the creation of a Joint EU Resettlement Programme must come to an operational and positive end. A strategic approach and political steering on the use of resettlement is needed.
57 SUMMARYNo chance to have the second phase of the CEAS – the uniform status and the common procedure - completed by 2012.The Commission in its 2011 round of recasts pretends that they are a step in that direction, but in fact they are still about establishing minimum standards.They limit their scope to territorial waters (beyond the land), so actions on the high seas are (thought to be) still exemptWhereas the Commission was seeking genuine improvement and clarification the states insist on having their national priorities incorporated in the textsInstead of heading towards a common asylum area (where the geographic location of the submission of an application does not really matter) practical co-operation is the name of the game
58 SUMMARYThe new buzzword: principle of solidarity and fair sharing of responsibilityEASO, relocation within Europe, increased co-operation with third states are the genuine priorites, all targeting the asylum seeker in with a view to diminish his/her impact on Europe or the member StatesThe absurd (non) functioning of the Dublin system, the hectic reactions to the Arab Spring, the extremely unequal distribution of asylum seekers and the wide margin of decisions concerning the same groups show that the system is not working (properly).
59 Central European University Thanks!Boldizsár NagyCentral European UniversityBudapest
61 M.S.S v. Belgium and Greece – main points Facts:The applicant is M.S.S. is an Afghan man, who worked as an interpreter in Afghanistan and chose Belgium as the destination country because of his contacts with Belgian troops in KabulHe travelled through Iran, Turkey Greece and France. He was caught in Greece in December 2008 but did not apply for asylum. On 10 February 2009 he arrived in Belgium, presented himself to the Aliens office and applied for asylum.Feared persecution: reprisal by the Taliban for his having worked as an interpreter for the international air force troops stationed in Kabul. He produced certificates confirming that he had worked as an interpreter.Belgian authorities denied appeal against transfer, ECtHR did not grant Rule 39 relief (provisional measure to halt transfer)15 June 2009: M.S.S. was returned to Greece which was obliged to take charge (as it had remained silent for two months)
62 M.S.S v. Belgium and Greece – main points Facts continued15-18 June 2009 detention of M.S.S. in Greece under harsh conditions§34: „locked up in a small space with 20 other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor.”After living in the park (and not reporting to the police) on 1 August 2009: attempt to leave Greece with a false Bulgarian passport second detention, expulsion order, later revoked due to the pending asylum procedure. The applicant contacted the police, had his residence card renewed twice for 6 months, but no accommodation was provided to him.August 2010: another attempt to leave Greece, towards Italy – caught again, almost expelled to TurkeyHis family back in Afghanistan, strongly advised him not to come home because the insecurity and the threat of reprisals had grown steadily worseThe case was pending in the Court since 11 June 2009Facts as to Greece:88 % of illegal arrivals into Europe through Greece (in 2009)Recognition rates 0,04 % Convention status, 0,06 Subsid protection = 1 out of at first instanceAppeal: 25 Convention status and 11 subsid prot out of
63 M.S.S v. Belgium and Greece – Claims against Greece M. S. S. – the applicant A) Both periods of detention amounted to inhuman and degrading treatment. B) The state of extreme poverty in which he had lived since he arrived in Greece amounted to inhuman and degrading treatment C) He had no effective remedy concerning the above claims The issue of the detention (A) The Government The rooms were suitable equipped for a short stay + (in August 2009) on 110 m2 there were 9 rooms and two toilets +public phone and water fountain The Court General principles to be applied (as to detention) – the meaning of Article 3. „confinement of aliens, .. is acceptable only in order to enable States to prevent unlawful immigration while complying …. the 1951 Geneva Convention …. and the European Convention on Human Rights.” (§ 216) „ Article 3 of the Convention, … enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim's conduct” (§218) Ill treatment „must attain a certain level of severity” Severity is relative: duration, physical, mental effects, and sex, gender and age of the victim matter as well as his/herstate of healthAd B) . With no means of subsistence, he, like many other Afghan asylum seekers, had lived in a park in the middle of Athens for many months. He spent his days looking for food. Occasionally he received material aid from the local people and the church. He had no access to any sanitary facilities. At night he lived in permanent fear of being attacked and robbed. He submitted that the resulting situation of vulnerability and material and psychological deprivation amounted to treatment contrary to Article 3.
64 M.S.S v. Belgium and Greece – Claims against Greece Ill treatment „must attain a certain level of severity” Severity is relative: duration, physical, mental effects, and sex, gender and age of the victim matter as well as his/her state of health (§ 219) Inhuman treatment = when it was “premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering” (§ 220) „Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance”. (ibid) „It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others (see, among other authorities.” The purpose f the treatment need not be humiliation.
65 M.S.S v. Belgium and Greece – Claims against Greece „Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured” (§ 221) Application of the principle to the present case – the Court’s dictum He Court acknowledges the increased hardship of external border states because of Dublin, but Art. 3 is absolute After return to Greece the authorities new, that M.S.S. did not „have the profile of an ‘illegal migrant’” 145 persons on 110 m2 usually locked up, without hygienic tools + the asylum seeker especially vulnerable --> „taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person's dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant's distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.” (§ 233) VIOLATION of Article 3 held UNANIMOUSLY§222 „The Court has held that confining an asylum seeker to a prefabricated cabin for two months without allowing him outdoors or to make a telephone call, and with no clean sheets and insufficient hygiene products, amounted to degrading treatment within the meaning of Article 3 of the Convention (see S.D. v. Greece, no /07, §§ 49 to 54, 11 June 2009). Similarly, a period of detention of six days, in a confined space, with no possibility of taking a walk, no leisure area, sleeping on dirty mattresses and with no free access to a toilet is unacceptable with respect to Article 3 (ibid., § 51). The detention of an asylum seeker for three months on police premises pending the application of an administrative measure, with no access to any recreational activities and without proper meals has also been considered as degrading treatment (see Tabesh v. Greece, no. 8256/07, §§ 38 to 44, 26 November 2009). Lastly, the Court has found that the detention of an applicant, who was also an asylum seeker, for three months in an overcrowded place in appalling conditions of hygiene and cleanliness, with no leisure or catering facilities, where the dilapidated state of repair of the sanitary facilities rendered them virtually unusable and where the detainees slept in extremely filthy and crowded conditions amounted to degrading treatment prohibited by Article 3 (see A.A. v. Greece, no /08, §§ 57 to 65, 22 July 2010).
66 M.S.S v. Belgium and Greece – Claims against Greece The issue of the living (reception) conditions during the procedure (B) The government The applicant has not visited the police station as advised. After December 2009 when he showed up, efforts were made to find an accommodation bit M.S.S. had no address where to inform him. Homelessness is widespread in States, parties to the ECHR – it is not contrary to the Convention. The Court General principles: as above + There is no duty under Article 3 to provide home or financial assistance. Application to the present case The reception conditions directive bounds Greece Asylum seekers constitute a special group in need of special protection The reception capacity of Greece is clearly inadequate, „an adult male asylum seeker has virtually no chance of getting a place in a reception centre”(§ 258) none of the Dublin returnees between February and April 2010 got one. The authorities have not informed M.S.S. of the available accommodation even when they saw him in June 2010 There was no realistic access to the job market due to administrative riddles„251. The Court attaches considerable importance to the applicant's status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection”
67 M.S.S v. Belgium and Greece – Claims against Greece . ”..the Court considers that the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs.The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.” (§ 263) = VIOLATION OF ARTICLE 3. HELD 16 : 1
68 M.S.S v. Belgium and Greece – Claims against Greece The issue of effective remedies with respect to Articles 2 and 3 - claim (C)(Only protected from refoulement because of ECtHR interim measure, no serious examination of the merits of the asylum claim. The appeal to the Supreme Court would not have suspensive effect, practically nobody is recognised by the Greek authorities)The GovernmentThe applicantfailed to cooperate,assumed different identities (when trying to leave Greece),had access to interpreter.The review by the Supreme Court is effective remedy,Asylum seekers were not entitled to a right to appeal under the ECHR and Article 6 (Right to a fair hearing) of the Convention did not apply to asylum cases,No danger to transfer to Turkey as the readmission agreement with Turkey does not cover returnees from other EU MS.The applicant did not appear at the hearing planned for 2 July - = did not exhaust local remediesFirst: practical difficulties (no information brochure, no clarity how to proceed if no known address)270. Secondly, the applicant believed that he had escaped being sent back to his own country only because of the interim measure indicated by the Court to the Greek Government. Apart from that “protection”, he had no guarantee at this stage that his asylum procedure would follow its course. Even if it did, the procedure offered no guarantee that the merits of his fears would be seriously examined by the Greek authorities. He argued that he did not have the wherewithal to pay for a lawyer's services, that there was no provision for legal aid at this stage, that first-instance interviews were known to be superficial, that he would not have the opportunity to lodge an appeal with a body competent to examine the merits of his fears, that an appeal to the Supreme Administrative Court did not automatically have suspensive effect and that the procedure was a lengthy one. According to him, the almost non-existent record of cases where the Greek authorities had granted international protection of any kind whatsoever at first instance or on appeal showed how ineffective the procedure was.
69 M.S.S v. Belgium and Greece – Claims against Greece The Court General principles The remedy must be linked to a Convention right and must deal with the substance of an arguable complaint It must be available in law and in practice It must grant appropriate relief and must not be of excessive duration „In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires …, independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 .., as well as a particularly prompt response In cases of Article 3 threat the remedy must have automatic suspensive effect
70 M.S.S v. Belgium and Greece – Claims against Greece Application to the present case The gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties - arguable claim (but the Court does not rule on the possible consequences of return only on whether there was an effective remedy against removal within Greece) (§§ 296 – 298) M.S.S. had not enough information and his non-appearance is the result of lack of reliable communication. Uncertainty about the hearing on 2 July – perhaps only told in Greek. „The Court is not convinced by the Greek Government's explanations concerning the policy of returns to Afghanistan organised on a voluntary basis. It cannot ignore the fact that forced returns by Greece to high-risk countries have regularly been denounced by the third-party interveners and several of the reports consulted by the Court” (314) His efforts to escape from Greece can not be held against him as he tried to escape Art 3 treatment. Conclusion: violation of Art 13 in conjunction with Article 3: „…because of the deficiencies in the Greek authorities' examination of the applicant's asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy. VIOLATION of Article 13 in conjunction with Article 3 held UNANIMOUSLY
71 M.S.S v. Belgium and Greece – Claims against Belgium M. S. S. – the applicant Sending him by Belgium to Greece exposes him to the risk of violating Article 2 and 3 by way of refoulement The application of the Dublin Regulation did not dispense the Belgian authorities from verifying whether sufficient guarantees against refoulement existed in Greece (and they were insufficient) Belgium When needed Belgium applied the sovereignty clause (§3 (2) ) of the Dublin regulation M.S.S did not complain about Greece, nor had he told that he had abandoned an asylum claim in Greece Greece assured that it would investigate the merits of the case In the K.R.S v. UK case Greece gave assurances that no refoulement would occur
72 M.S.S v. Belgium and Greece – Claims against Belgium Interveners The Netherlands: „It was for the Commission and the Greek authorities, with the logistical support of the other Member States, and not for the Court, to work towards bringing the Greek system into line with Community standards.”(§ 330) „In keeping with the Court's decision in K.R.S. (cited above), it was to be assumed that Greece would honour its international obligations and that transferees would be able to appeal to the domestic courts and subsequently, if necessary, to the Court. To reason otherwise would be tantamount to denying the principle of inter-State confidence on which the Dublin system was based…” (§ 330) UK: Dublin is to speed up the process – calling to account under § 3 ECHR would slow it down UNHCR: each Contracting State remained responsible under the Convention for not exposing people to treatment contrary to Article 3 through the automatic application of the Dublin system. AIRE Center and AI: transferring to a state violating Art 3 entails the responsibility of the transferring state
73 M.S.S v. Belgium and Greece – Claims against Belgium The Court Difference from the Bosphorus case: there sovereign powers were transferred to an organisation which entailed protection of fundamental rights equivalent with the Convention protection. (Namely the EU legal order and the CJEU) and the state was obliged to act. Here Belgium could refrain fro the transfer so it was not an international obligation (§ 340) Lessons from T.I and K.R.S.: „When they apply the Dublin Regulation, … the States must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.” „the Court rejected the argument that the fact that Germany was a party to the Convention absolved the United Kingdom from verifying the fate that awaited an asylum seeker” (ibid) rejection was based on the fact that Germany had an adequate asylum procedure. In K.R.S the Court could assume that Greece was complying with the reception conditions directive and the asylum procedures directive , nor was a danger that a rule 39 intervention by the Court would not be observed.
74 M.S.S v. Belgium and Greece – Claims against Belgium The Court had to consider whether the Belgian authorities ought to have regarded as rebutted the presumption that the Greek authorities would respect their international obligations.The situation changed since December 2008 (K.R.S v UK decision)more and more reports about the conditions in GreeceUNHCR’s letter to Belgium to suspend transfersCommissions proposal for Dublin recast – entailing a rule on suspension of transfersThe Belgian Aliens Office Regulation left no possibility for the applicant to state the reasons militating against his transfer to GreeceAdequate protection: existence of domestic laws and accession to treaties not enough when reliable sources report contrary practicesGuarantee by the Greek Government was too general, not about the person„the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory” (§ 357)
75 M.S.S v. Belgium and Greece – Claims against Belgium The Courts conclusion on the application of DublinThe „Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.” (§ 358)„…it was in fact up to the Belgian authorities, …to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable.” (§ 359)VIOLATION OF ARTICLE 3. by the transfer and exposing him to the deficiencies of the asylum procedure (threat of refoulement) HELD 16 : 1VIOLATION OF ARTICLE 3. by returning him to the Greek the detention and living conditions HELD 15 : 2The Court also found belgium guilty in not providing effective remedy against the decision to transfer to Greece