Roma and forced migration: lessons of recent Canadian cases

03 April 1999

Arthur C. Helton¹

Introduction and background

From their arrival on the European continent, Roma have faced mistrust, rejection, and exclusion. In 1504, Louis XII forbade Roma from entering France; in 1496, the German parliament declared Roma to be traitors to Christianity; and from the fifteenth century until as late as 1864, Roma lived as slaves in Romania. However, the ultimate act of aggression and violence against Roma came with the Holocaust of the Second World War, in which between 270,000 and 500,000 Roma were murdered.

Despite this legacy of mistreatment, the political changes in Eastern Europe over the past decade brought a new optimism to the Romani community. One scholar described it as a "new Roma awakening," with a flurry of new social, political, and cultural organizations emerging to give voices to the Romani community in Eastern Europe for the first time in their history. However, the political changes have also been accompanied by a new wave of anti-Romani sentiment and violence. The rise in violence has been noted in nearly every country with a significant Romani population. Indeed, many Roma were left wondering if they were better off under previous regimes.

The deteriorating conditions for the Roma in Eastern Europe have prompted many to seek settlement in Western Europe and North America. The movement of these people is considered by some experts to be only the beginning of a new vast migration of Roma westward that may be in the offing.

Within this context, discrimination against Roma as a possible cause of forced migration has been addressed recently in a group of Hungarian Roma cases decided by the Immigration and Refugee Board of Canada (IRB). Utilising a novel procedure involving "lead" cases and the taking of expert testimony, the IRB has attempted to provide authoritative guidance in the resolution of Roma cases in the future. The procedure used for these cases was a disguised effort to import the concept of binding judicial precedent into a system which uses lay persons as adjudicators in order to ensure consideration of community values and flexibility. The bottom-line issue, of course, is whether the IRB's decisions deserve to be accorded precedential weight by virtue of a principled and fully reasoned analysis. For the reasons discussed below, they do not.

The background to this judicial controversy includes a recent decision by Canada to impose a visa requirement for citizens from the Czech Republic. Following a massive increase of Roma asylum seekers from the Czech Republic during the summer of 1997, the Canadian government imposed the visa requirement. The surge of Romani asylum seekers was attributed to a television program which was aired in the region, highlighting favourable living conditions for Roma in Canada. The number of asylum seekers, which had skyrocketed from 148 in 1996, to 1222 in 1997, dropped dramatically after the visa requirement was implemented. However, despite the new visa requirement, in 1998, approximately 70 percent of the claims finalized from the Czech Republic were accepted (739 of 1049). Virtually all of these claims involved Roma. It was this high approval rate coupled with the spectre of an increase in filings again from Eastern Europe that prompted Canadian immigration officials to intervene for the first time in an ordinary refugee case to request the unusual procedure utilised.

This article examines these recent Canadian decisions and discusses the relevant international legal framework for assessing protection claims associated with forced migration. Recommendations are made to improve the presentation and consideration of Roma refugee claims in the future.

The cases

In January 1999, the IRB decided two consolidated cases involving claims for refugee protection by Roma from Hungary. In one case, the claimants were from a family of Romani musicians from Budapest. The principal claimant alleged maltreatment in the past by both teachers and fellow students. He testified to Romani children being separated from Hungarian children by seating arrangements, with the Romani children usually in the back of the class. The principal claimant also testified to an unfriendly community environment, including an incident where the claimant's family was victimised in a highway attack in 1994 or 1995. He noted discrimination in the medical treatment his mother had received, as well as differential treatment while he was in the army in 1985-86. Specifically, he alleged being beaten and kicked during military training. After traveling to the United States in 1993, the principal claimant entered Canada. Upon reviewing the testimony, the IRB found that the claimants had "grossly exaggerated" the severity of their past problems in Hungary, including attacks by "skinheads" in 1997.

In the second consolidated case, the claimants lived in small and medium sized towns in Hungary. They alleged discrimination in employment and the military. Skinhead attacks allegedly prompted the claimants to move in 1988, and again in 1991; continued attacks caused them to come to Canada in 1998. The IRB found the claims asserted to be "exaggerated," particularly as to skinhead attacks and the lack of police protection. Also, the claimants' testimony as to discrimination in education and employment was discounted because of prior inconsistent written statements.

The legal standards

The key legal issue in the Canadian cases concerned the concept of persecution. In order to be considered persecution, an anticipated harm must be serious. The requirement that the harm be serious has led to a distinction being drawn by adjudicators between persecution and mere discrimination or harassment. According to the 1992 Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (UNHCR):

In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds"....

As the IRB noted in accepting international standards concerning refugee protection, when the harm anticipated is discrimination, a wide-ranging inquiry is appropriate. As explained in the UNHCR Handbook:

Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favorable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restriction on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities....

Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances....

Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.

While the IRB putatively recognized these standards, they were not given sufficient attention in the resolution of these cases. The IRB coupled its findings of incredibility with a narrow and grudging approach to the application of the standards. The IRB cited the Canadian Supreme Court decision in the Ward case in 1993, which specifically addressed the issue of when a claimant must avail himself or herself of state protection in order to receive status:

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. ... Where such an admission [of the state's inability] is not available, ... clear and convincing confirmation of a state's inability to protect must be provided ... Absent a situation of a complete breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant.... Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out a better protection than that from which he or she benefits already.

The Board in these consolidated cases relied on the Ward criteria to assess the remedial framework available to Roma in Hungary.

The situation of Roma in Hungary

As elsewhere in Eastern Europe, the approximately 500,000 to 800,000 Roma currently residing in Hungary have long suffered marginalisation and are generally absent from political, academic, commercial and social life. Anti-Roma prejudice is widespread, and there is broad segregation and deprivation. The 80,000 Roma children in public education are frequently segregated; only 500-600 proceed onward to secondary school, and only some 300 attend college or university. Roma are over-represented in jails, social care homes and institutions for the mentally disabled. Police-community relations are poor. The bottom line is simple: discrimination is pervasive and long-standing.

In terms of ameliorative legislative and institutional measures, the Hungarian Constitution, amended in 1989, forbids discrimination and states that "the national and ethnic minorities in the Republic of Hungary participate in the power of people and constitute components of the state". Since 1997, Hungary has ratified several international and European agreements on minority rights, including the International Convention on the Elimination of all Forms of Racial Discrimination, and Recommendation 1201 of the Council of Europe's Parliamentary Assembly, which provides for the recognition of collective rights for minorities. In 1993, the Hungarian Government adopted a Law on the Rights of National and Ethnic Minorities, and also the Law on the Parliamentary Commissioner on Citizens Rights (Ombudsman). In 1995, the first Ombudsman for National and Ethnic Minorities was appointed to investigate complaints and make recommendations.

In 1993, the National Roma Minority Self Government body was formed, through which fifty-three representatives now operate under a president in a regional network. In 1996, the Hungarian Parliament amended the criminal code to facilitate the prosecution of those who commit crimes against individuals because of their national, ethnic or religious affiliation.

The IRB in these cases thus found it significant that a legal framework exists to provide avenues to Roma to seek redress and pursue remedies in connection with discrimination or abuse. The Board particularly noted that to date, for example, some 300 complaints against Hungary have been filed with the European Human Rights Commission, of which 200 were deemed inadmissible because the alleged infractions occurred before Hungary signed the European Convention. The IRB explained that:

While the coming of democracy in Hungary in 1990 has not translated into economic benefits for the Roma ... in our opinion it would not be correct nor fair to conclude that the Hungarian Government, whatever its motivations, has skirted its responsibility towards Roma, in the implementation of legislation, enforcement of its laws and its introduction of initiatives to address the rights and socio-economic concerns of its Roma minority. Based on our interpretation of the evidence before us, the measures introduced are significant. Given their number, scope and cost, we see in these measures a serious effort addressing a serious problem, even though we agree that the results are not necessarily immediately discernible nor do they meet all the Roma community needs sufficiently.

The Board thus ruled in both consolidated cases that the claimants' fear of discrimination, which it characterized as "exaggerated", could not amount to persecution given the ameliorative legislative and institutional framework in Hungary. In so ruling, the Board gave little weight to the specific claims of the individuals. The IRB explained:

The claimants have not demonstrated, nor does the evidence support that the harm which the claimants' fear on returning to Hungary is serious, and that they will be denied core human rights, that is, denied human dignity in a key way. The claimants' evidence does not show that they will be seriously restricted to earn a livelihood (though they may experience hardship in seeking employment), nor that they will be denied access to education or services normally available to Hungarian citizens, let alone the right to life, thought, conscience, religion, recognition as persons, and freedom from torture, arbitrary arrest, and freedom of movement or residence.... Neither does the evidence substantiate that the discrimination the claimants fear bears the characteristic of repetition and persistence, i.e. that it is sustained or systematic. In our opinion, the discrimination the claimants fear, either individually or cumulatively, does not amount to persecution. What the claimants' fear, in our opinion, is differences in treatment and possibly less favorable treatment...but not serious discriminatory or other offensive acts, which are knowingly tolerated by the Hungarian authorities....

The rationale for both decisions of the IRB was essentially the same - a sufficiently serious harm had not been proven.

Lessons for claimants and adjudicators

The resolution of these cases should provide genuine guidance for the presentation and consideration of future Roma cases. This includes guidance on issues of proof as well as the standard of persecution which must be demonstrated.

Given the minority rights framework in Hungary, adjudicators in Canada and elsewhere will clearly demand in the future an exquisite factual showing in order to sustain a claim for refugee protection. The claims presented, of course, must be detailed and internally consistent in order to be found credible by adjudicators. Credibility will be an issue in many Roma cases, placing a premium on proof of any prior consistent statements, as well as a willingness by the individual to claim protection in the first available place, including the United States, unless such an omission can be adequately explained.

Perhaps most importantly, the efforts to obtain redress in the home country must be detailed in order to rebut the presumption that state protection is available. This would include documenting any administrative and judicial complaints and attempts to obtain redress for incidents of discrimination or abuse. Where appropriate, it should include proof of efforts to obtain police protection and intervention in relation to skinhead attacks, for example, or other incidents of violence.

Finally, establishing the requisite degree of harm on cumulative grounds will require displaying the persuasive and chronic nature of discrimination against Roma. Such a showing is necessary in order to demonstrate a current well-founded fear of serious harm, which on a cumulative basis, rises to the level of individualised persecution. This will in particular require consideration of all of the relevant circumstances concerning the individual asylum seekers, as well as generic conditions in the home country. The general conditions information developed by the IRB in these cases should be of considerable assistance in this regard, particularly if the data is updated and kept current.

The lesson of these Canadian cases is simple: in order for Roma to establish claims for refugee protection, the proof must be exacting and the analysis precise. Only with such detailed evidentiary and legal showings are adjudicators from Canada and elsewhere likely to grant such claims in the future.

Conclusion

Refugee law is designed to provide a remedy in the form of asylum to those who have lost national protection. Recent decisions of the Canadian Supreme Court teach that the Roma of Hungary may be appropriate for consideration as refugees under humanitarian standards concerning forced migration, particularly if they can establish highly individualised claims based on a well-founded fear of persecution.

Endnote:

1. Arthur C. Helton, a US lawyer, directs the Open Society Institute's Forced Migration Project.