International Refugee Law - Essay Example

?In the recent case M.S.S v Belgium and Greece, application no.30696/09, judgement of 21 January the Grand Chamber of the European Court of Human Rights held: ‘The Court attaches considerable importance to the applicant’s status as an asylum seeker and, as such, a member of particularly underprivileged and vulnerable population group in need of special protection’ (at para.251). Do you agree with the Court’s decision that all asylum seekers are vulnerable people? Critically discuss. Introduction Since wars and conflicts have ravaged many countries and societies, refugees or displaced individuals have been seeking asylum from various states and from the international organizations. The fate of these refugees has always been dependent on the state where asylum has been sought. Many of these states have been reluctant to offer asylum due to their own political and economic considerations. However, these asylum seekers have often displayed vulnerable qualities in terms of physical, psychological, as well as political support. For which reason, international governing bodies and host states have often ended up granting asylum to these refugees. However, recently, issues on the impact that these refugees have had on host states have been evaluated. Their economic impact has been a major consideration because these refugees have been considered as a significant drain to the resources of host states. The issue of their vulnerability has also been raised. In a decision by the European Court of Human Rights, specifically, in the case of M.S.S v Belgium, the court speaks of the applicant as a member of a ‘vulnerable group’. The case deals with the expulsion of an Afghan asylum-seeker to Greece by Belgium in accordance with the EU Dublin Regulation. The Court issued a standard-setting landmark judgement for the protection of asylum-seekers and it also held that asylum-seekers were a “particularly underprivileged and vulnerable population group in need of special protection”1. The issue here is whether asylum-seekers are a ‘vulnerable’ group as declared by the Court. The majority ruled that asylum seekers are indeed vulnerable people. However, in his separate judgement, Judge Sajo thinks not. He expressed the opinion that asylum-seekers cannot be unconditionally considered a particularly vulnerable group as previously defined by the Court. He declared that they are not a group ‘historically subject to prejudice with lasting consequences, resulting in their social exclusion”2. This paper aims to critically discuss the judgement delivered in M.S.S v Belgium and Greece. Moreover, it will examine the current position of asylum-seekers who seek ‘international protection’ and the applicability of the legal framework under the 1951 Convention or under the International Human Rights. This paper will also attempt to evaluate the treatment of asylum-seekers in Europe, more specifically, in Greece. It shall also draw some comparisons with the recommended treatment as implemented by the Common European Asylum System. Finally, this paper shall also discuss the concept of vulnerability. This paper is being carried out in order to establish an improved understanding of the refugee laws, including the individuals who may or may not be considered refugees. It is also being carried out in order to assist legal analysts in making better judgments on the status of refugees. Background The ‘right to seek and to enjoy in other countries asylum from persecution’ is indeed a key provision in the Universal Declaration of Human Rights3. However, sometimes this right is not fully observed in parts of Europe today. Instead, asylum-seekers are met with hardship and suspicion and too often are treated inhumanely; some are even placed under detention. Asylum-seekers entering Europe have well founded fears of persecution. Most of their fears stem from their ethnicity, religion, nationality, political opinion, or membership in a particular social group; all of these qualities are very much different or opposed to European ideals. Some refugees have already suffered ill treatment in their country of origin and have fled these conditions. These sufferings and these reasons for leaving their country distinguishes them from other migrants who often voluntarily leave their home countries for economic or any other reasons. Due to the sufferings which refugees have suffered from their home countries, they are under special protective status under international law. However, sometimes this status is not respected. Defining Asylum-seekers Individuals who seek international protection are called asylum-seekers. For many countries, the distinction between a refugee and an asylum seeker is still ambiguous. This is due to the lack of a clear definition of an asylum seeker in the 1951 Refugee Convention. However, an internationally accepted definition of an asylum seeker may be found in various UNHCR documents, as asylum seekers are recognised as persons of concern this organization. These documents basically declare that “asylum seekers are individuals who have sought international protection and whose claims for refugee status have not yet been determined”4. In conclusion, an asylum-seeker has been generally defined as a person who is seeking asylum or shelter in a country, other than his country of origin, for various reasons like persecution, aggressions, conflicts, human rights abuses, threats to his life, and other similar reasons. It is important to recognise that access to protection from a well founded fear of persecution is the very essence of the concept of asylum and is considered an integral part of international refugee law. This right has become part of the fundamental rights and freedoms to which all humans are entitled without distinctions of race, colour, sex, language, religion, politics, national or social origins, property, birth or other status. At the international level, this right has been codified in article 14 of the Universal Declaration of Human Rights, which states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. Asylum may thus be defined as a form of protection granted to people who flee their homes for fear of persecution or for being at risk of suffering serious harm. The protection offered by countries to these people, may be in the form of ‘refugee status’, ‘subsidiary protection status’ or ‘humanitarian grounds.’ Minimum standards on the reception of asylum-seekers in Member States- This measure is linked with the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers, considered a constituent part of the Common European Asylum System (CEAS). The directive includes provisions on the documentation of asylum-seekers, the residence and freedom of movement, family reunion, education, employment, vocational training and health care. Special attention is given to persons with special needs such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents and victims of torture and violence. ECHR Protection A violation of Article 3 ECHR is likely to occur when an asylum-seeker has been detained under unacceptable conditions amounting to degrading treatment. This is the case of S.D v Greece, where the Court was asked to determine whether there was a breach of Article 3 for the reason of holding an asylum-seeker in a detention centre where he lacked physical activity, contact with the outside world or medical attention; the court also cited Article 5(1) and (4) for the lawfulness of the detention as an asylum-seeker. Legal Framework for the ‘Protection of asylum-seekers’ In its conclusion the ‘safeguarding asylum’5 document, the Executive Committee of the Office of the United Nations High Commissioner for Refugees (UNHCR) emphasizes the overall ‘obligation to treat asylum seekers and refugees in accordance with applicable human rights and refugee law standards as set out in relevant international instruments. These reception guidelines are therefore, based on the relevant international and regional legal instruments. Services provided to asylum seekers should also reflect relevant resolutions adopted by the United Nations (UN) General Assembly, the United Nations Economic and Social Council (ECOSOC) and UNHCR’s Executive Committee, as well as those adopted by the movement’s governing bodies and various other international agreements. The most important legal instruments in this context are: the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant to Civil and Political Rights (ICCPR). Firstly, Article 25 of the UDHR recognises the right of every person to a standard of living adequate for the health and well being of her or him and his/her family, including food, clothing, accommodation, medical care and necessary social services. Furthermore, Article 5 provides ‘protection from torture and cruel, inhuman or degrading treatment. Secondly, the ICESCR spells out basic reception principles in the area of economic and social rights. Thirdly, the ICCPR provides standards for the existence of civil rights such as protection against arbitrary detention and torture and the right to recognition everywhere as a person before the law. Finally, at the European level, the 1950 European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) protects asylum-seekers’ human rights. Article 1 of this convention applies to everyone within the jurisdiction of the contracting states. In terms of international refugee law, basic regulations are founded upon the 1951 United Nations Convention relating to the Status of refugees, including its 1967 Protocol. The Convention sets minimum standards for the treatment of refugees, including the basic rights to which they are entitled. Although neither the Convention nor its Protocol explicitly mention their applicability to asylum-seekers, nothing in this convention says that the provisions apply to formally recognised refugees only. Concept of Vulnerability I briefly attempt to analyze the court interpretation of the concept of ‘vulnerability’ and as such the determination of the applicant as an asylum-seeker under Article 3 analysis concerning both his detention and living conditions in Greece. The Court has referred to several groups as ‘vulnerable’ in its previous case laws. One example is the case of a Roma minority who, ‘as a result of their history’, the court has held as ‘disadvantaged’ and as a ‘vulnerable’ minority in need of special protection6. Another example, included people with mental disabilities, which have been regarded by the Court as a ‘particularly vulnerable group in society, who have suffered considerable discrimination in the past’7. M.S.S v Belgium and Greece In this case, an Afghan National fled Afghanistan in 2008 and claimed that an attempt was made on his life by the Taliban. His first entry to Europe was through Greece, where he was fingerprinted on arrival pursuant to the Eurodac system; however he did not claim asylum. He was detained under gross conditions for a number of days before he was told to leave the country. He then entered Belgium travelling, through France, and filed for asylum where his fingerprints were recorded on the Eurodac system. This system showed that he had passed through Greece. Based on this finding, an order was made in Belgium for him to be returned to Greece; pursuant to the Dublin Regulation, he was transferred to Greece. On arrival in Greece, he was detained for the second time in a building next to the airport. He was held in a small space with twenty other detainees, was not allowed into the open air, was given very little to eat and was made to sleep on dirty mattresses sometimes on the bare floor, and was only given the chance to use the toilets at the discretion of the guards. When he was released, he had no means of subsistence and so he slept in a park. He was further detained for seven days; he was also beaten in detention when he attempted to escape Greece on false identification documents. MSS later complained to the ECtHR about the treatment he received from both Greece and Belgium. Against Greece, he alleged breaches of article 3 of the ECHR by reason of his conditions of living; and a breach of Article 13 of the ECHR because of the deficiencies in the asylum procedure as well as the risk of expulsion to Afghanistan. The Court found in favour of the applicant and held that both Greece and Belgium were in violation of their obligations under Articles 3 and 13. Moreover, the Court ‘attaches considerable importance to the applicant’s status as an asylum seeker and, as such, a member of particularly underprivileged and vulnerable population group in need of special protection’ (at para.251); EU Asylum Procedure a critical analysis The asylum Procedures Directive does not explicitly mention vulnerable groups, but obliges Member States to take the ‘vulnerability’ of the asylum-seeker into account. It is therefore a crucial responsibility for member states to make an assessment of the condition of the asylum seeker, and for them to consider the qualities and vulnerabilities which the asylum seeker may possess. On a previous occasion, the European Commission found that the current European Union asylum procedure system was defective. In particular, the minimum standards were (a) insufficient and (b) vague, thus lacking the potential to ensure fair and efficient examination. The EC recommended additional measures in order to grant applicants a realistic opportunity to substantiate their request for international protection. This is one of the issues seen in the present problem. Asylum-seekers are generally at least somewhat vulnerable because of their past experiences. Moreover, the fact that they have to live in a new and different environment where their future is very much uncertain makes them vulnerable. Waiting and hoping endlessly for a final official decision on a fundamental existential issue caused by official neglect arouses feelings of fear, anguish or inferiority and these feelings can break an individual’s moral and physical resistance; as such, these feelings can make a person highly vulnerable. In this case, the Afghan asylum seeker can be viewed as vulnerable because of his fears, anguish, and feelings of inferiority. Qualification Directive In reviewing the application of the QD, the QD only mentions that member states should take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. The Afghan asylum seeker qualifies as a vulnerable individual under this directive, most especially for the torture he was subjected to as well as the other forms of psychological and physical violence he suffered. UNHCR Reception Conditions of Asylum-seekers in Europe: This paper published by the UNHCR also discusses the recommended treatment for an asylum seeker should receive; it also analyses how they are actually treated throughout 15 EU Member States. Reception Standards- It is essential to enable asylum seekers to sustain themselves during the asylum process, not only out of respect for their rights but also out of respect for fair and effective asylum procedures. Since reception standards can affect eventual integration or return, states consider it to be in their own interest to ensure adequate and humane conditions for asylum seekers during the procedure. Reception standards refers to a set of measures related to the treatment of asylum-seekers from the time they make their claims either in-country or at the border until a transfer is effected to the state deemed to be responsible for the examination of their claims. These measures range from adequate means of subsistence to access education, medical care and employment. Moreover, special arrangements are necessary to cover the specific needs of children, women and elderly asylum-seekers. States are responsible for respecting and ensuring the human rights of everyone on their territory and with their jurisdiction. International and regional human rights law, as well as applicable refugee protection standards are therefore relevant in the context of defining adequate reception standards for asylum seekers. These standards were not applied to the Afghan asylum-seeker. As soon as he sought for asylum in Belgium, he should have been entitled to the above reception standards. International Human Rights In terms of the International Human Rights, there is a minimum core content of human rights which apply to all individuals in all situations. Article 25 of the Universal Declaration of human Rights (UDHR) recognises the right of everyone to a standard of living adequate for the health and well being of himself or/and of his or her family, including food, clothing, accommodation and medical care and necessary social services. More specifically, the International Covenant on Economic, Social and Cultural Rights (ICESCR) spells out basic principles that help secure the framework for reception standards in the area of economic and social rights8. An adequate standard of living includes the provision of food, clothing and accommodation to those asylum seekers who are unable themselves to secure these9. The International Covenant on Civil and political Rights (ICCPR) also provides standards for the exercise of civil rights, including protection against arbitrary detention and torture and the right to recognition everywhere as a person before the law. Both the ICESCR and the ICCPR prohibit discrimination on the grounds, inter alia, of national origin10. Based on these international legal provisions, the Afghan’s rights have been violated and the countries involved must be held responsible for their actions. The asylum seeker was detained illegally under gross conditions, this added to his vulnerability and therefore entitled him under protection as a vulnerable asylum seeker. Legal Status and Material Situation of Asylum-seekers in Greece- including under Dublin Regulation There is a significant amount of support for the status of asylum seekers being vulnerable individuals. The UNHCR also expressed its concern on the challenges which asylum seekers face in line with international and European standards11. Asylum-seekers in Greece, including those returned to Greece under Dublin II face multiple hurdles securing access to asylum procedures and international protection. Their reception arrangements are often grossly inadequate, including the reception for children and other vulnerable individual. They often lack access to interpretation services, legal advice and representation, and are almost certain to have their claims rejected at first instance. They are also rarely able to secure an effective remedy against negative decisions, and consequently, they do not have adequate protection against refoulement. Further, asylum-seekers in Greece experience obstacles in trying to secure access to international complaint mechanisms. In addition, in UNHCR’s view, the changes in the asylum procedure introduced in July 2009 have further diminished the prospects of asylum seekers. Under the above conditions, there is strong support in considering asylum seekers to be highly vulnerable individuals. The vulnerabilities of asylum seekers have also been seen among Dublin transferees who face the same difficulties as others arriving in Greece in search of international protection. Asylum seekers with legal permission to remain in Greece, including transferees, are not exempt from arrest and the risk of possible summary deportation. They are exposed to the same long waiting periods before any decision is made on their asylum claims. In the very likely event that a final negative decision has been taken in the asylum case of a Dublin transferee or when deadlines for appeal have expired, the transferee is often detained; in some instances he may receive deportation orders without any chance to re-open the case or challenge the negative first instance decision. Asylum seekers face various vulnerabilities. In Greece for example, accommodation for registered asylum seekers is officially available in just 12 reception centres. These centres are generally understaffed, under resourced, and lack appropriate support services and material conditions. Their legal capacity is grossly insufficient. As a result, these asylum seekers have no shelter or other means of state support. Single adult male asylum seekers have virtually no chance of staying in any reception centre because these places there are reserved for families or vulnerable individuals. Moreover, asylum seekers do not receive any financial allowance to cover their daily living expenses. These conditions alone are deplorable for any asylum seeker and make them very much a vulnerable population. UNHCR has recorded a number of vulnerable cases where no accommodation was offered. Interviews by the Red Cross and Human Rights Watch also indicate that only one of 14 Dublin transferees managed to obtain accommodation in a reception centre. The others were left unassisted, were living on the streets, in parks, in public gardens, in abandoned houses, or in overpriced and overcrowded common rooms. Asylum seekers may also be vulnerable to round ups and detention in police detention centres. The European Committee for the Prevention of Torture (CPT) has also reported allegations of ill treatment among these detainees. Moreover, majority of these detainees do not have access to information, legal counsel, or to interpreters. In 2009, the Court twice found violations in both articles 3 and 5 of the European Convention on Human Rights. In the S.D v Greece case, the Court ruled that conditions in which the refugee was held were unacceptable, that these constituted degrading treatment, and thus violated Article 3 of the Convention. The Court also found violations of Article 5 because the detention was unlawful and the asylum seeker had been unable to challenge its lawfulness under Greek Law. In the Tabesh v Greece case, the court found that the detention of the applicant, an Afghan asylum seeker in a police detention facility for three months from 2006 to 2007 constituted degrading treatment under Article 3. These cases illustrate how asylum seekers basically possess inherent qualities of vulnerability which often lead them to experience significant violations of their rights. The Council of Europe Commissioner in 2010 visited the facilities in Greece and concluded that asylum seekers “face extremely harsh living conditions in Greece”. UNHCR also found evidence that asylum seekers were systematically detained in mostly overcrowded facilities where alleged ill treatment by police officers occurred regularly. The UNHCR noted detention conditions to be appalling and suffocating; they also noted how detainees had no access to any open space. Asylum-seekers do not only face physical vulnerabilities, but they are also confronted with legal and procedural issues and vulnerabilities. These issues include difficult and limited access to the asylum procedure; shortcomings in training and expertise of the examining authorities; long waiting periods for interviews; lack of access to legal advice; severe deficiencies in the provision of interpreters; and interviews conducted with inadequate confidentiality. Generally, decisions do not contain any reference to the facts of the case, nor do they include detailed legal reasoning. They instead include standardized grounds for rejection, referring to economic motivations for leaving the country of origin. Such reasoning is cited in a large majority of cases, including persons from countries in conflict, which often generate a significant number of refugees. As a result, they are vulnerable to legal delays which hardly help resolve their status in any way. Concluding Remarks The Court’s approach in MSS seems spot on, that is, vulnerability may be the result of a series of past and present circumstances in which the State could bear different degrees of responsibility. Disadvantages may in turn have multiple faces. Be it of material or dignitarian character, different types may overlap and reinforce each other. The discussion above indicates how asylum seekers are vulnerable at the point where they seek asylum. Before they seek asylum, they are often subjected to torture and persecution from their home countries; they are also often displaced from their homes and their livelihoods, as well as their families. As soon as they claim asylum with another country, their vulnerability is exacerbated because they are open to various abuses from their host country. Nevertheless, whatever, the reasons at the root of groups ‘vulnerabilities,’ what matters is the impact of certain actions or inaction on the part of the state on the members of such vulnerable groups. More often the impact is likely to be severe. This was certainly the case of the applicant in M.S.S. Asylum-seekers are undoubtedly, a vulnerable group in Greece, as numerous international reports show. Moreover, the reasoning in the MSS case was a positive approach towards the ‘vulnerability’ of asylum-seekers and opens up the idea of vulnerability to other circumstances and other groups. I would not be in agreement that we should stick one fixed idea of vulnerability, and offer special protection only to those groups that fit into it, namely the protected groups recognised under the Reception Conditions Directive. However, I would like to add, that not all asylum-seekers are or present their claims in good faith and hence may be ‘bogus’ claims in order to gain status in Europe. However, all asylum seekers must be initially treated as vulnerable, until at least a final official decision is made on the merits of their claims. This would help protect their human rights and help ensure that they would be entitled to a speedy resolution of their status. Read More