Council of Europe report on asylum
11 July 2000
A new Council of Europe report on asylum, published on January 25, 2000, expresses concern about the increasing climate of hostility towards refugees, asylum seekers and other persons in need of international protection in Europe. Recently many European governments have introduced restrictions in their immigration and asylum policies and practices "with a view to substantially reducing the number of refugees and asylum seekers on their territory." Romani refugees from especially Bosnia and Herzegovina, the Czech Republic, Slovakia, Poland, Romania, Kosovo and the rest of Yugoslavia are in many countries of the European Union. The report cites the example of the Roma fleeing Kosovo, "where they suffered wholesale persecution and violence, being effectively denied the international protection they undoubtedly deserved. For example, in July 1999, Italian authorities announced their intention to cease considering persons fleeing Kosovo, including Roma, as entitled to such protection, and would instead treat them as illegal immigrants." The report criticised increasingly stringent immigration rules which prevent asylum seekers from reaching the territory and the refugee status determination procedure of the country whose protection they seek. For example, visa requirements may prevent legal departure from the country of origin: "In July 1999 Finland, in swift reaction to arrival of several hundreds of Roma fleeing Slovakia, imposed a visa regime on Slovak citizens, and on 6 December 1999 Slovak Foreign Minister Eduard Kukan announced that Norway intended to do the same on account of the number of Roma asylum seekers arriving in that country. On the other hand, if the asylum seeker obtains a visa, the fact that he or she departed legally may undermine the validity of the asylum claim on arrival." The report also noted with concern that airlines may be fined for carrying passengers without proper documentation. In addition certain airlines have begun to "take certain 'preventive' measures of their own."
The Council of Europe report also expresses concern at "measures designed to expedite the consideration of applications by those asylum seekers who do manage to reach their destination or to shift the determination procedure to other countries." This includes the practice of hastily rejecting asylum applications for refugees coming from certain countries which are considered to be "safe countries of origin". Also included is the "safe third country" practice, which requires "that asylum applicants should apply in the first country considered 'safe' in which they have an opportunity to do so." This practice has raised concerns over the possibility of so-called "chain deportations", ultimately resulting in the forced return of the asylum seeker to her country of origin prior to a fair hearing.
A third category of restrictive policies, according to the Council of Europe report, includes "restrictive interpretation of international refugee law, and in particular the refugee definition." The Council of Europe report points out that although the Universal Declaration of Human Rights declares that "everyone has the right to seek and to enjoy in other countries asylum from persecution," states now often seek to limit the number of refugees accepted by applying a narrow interpretation of the definition of refugees. Some countries interpret the definition as referring only to persecution by agents of the state, excluding persecution by non-state agents.
Finally, the Council of Europe report criticised deterrence measures taken to make life uncomfortable for asylum seekers awaiting a decision. The Parliamentary Assembly of the Council of Europe has already recommended that detention of asylum seekers be avoided as much as possible. "Moreover, the Assembly asked member states to introduce rules on a maximum allowed period of detention and to review detention conditions with a view to improvement. Under no circumstances should asylum seekers be detained with common-law prisoners... Yet detention is still widespread. In the United Kingdom, male Roma asylum seekers are routinely separated from their families and placed in detention immediately after applying for asylum - although, according to British law, this can be done only when there is reasonable doubt that the applicant will comply with the asylum procedures. British lawyers assisting these asylum seekers claim that the reasons given for this detention are unusually weak." Furthermore, in several states, social rights and benefits for asylum seekers are being curtailed. The report also notes that access to education and training for refugee children and young people is a matter of particular concern.
The Council of Europe does not have a legally binding instrument on the right to asylum, but the European Convention on Human Rights has become a major source of refugee law and is increasingly invoked in asylum cases. "In particular, there is a prohibition on expulsion where such a measure could lead to violation of Article 3 (banning torture and inhuman or degrading treatment or punishment). This implies the need for general application in the member states (and the European Union) of the right of appeal with suspensive effect for asylum seekers whose applications have been rejected. This was clearly not available to the 74 Roma rejected asylum seekers deported from Belgium to Slovakia in October 1999, despite the explicit request of the European Court of Human Rights to delay deportation made in response to a complaint filed on behalf of the Roma applicants by the Belgian League for Human Rights."
The report recommends that Council of Europe member states ensure that their policies and practices do not threaten the right to asylum. Furthermore, the report urges the Committee of Ministers to draw up a European Convention on the harmonisation of asylum policies in Europe, in cooperation with the European Union, and to incorporate the right to asylum into the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(Council of Europe)
