HNLAC RESPONSE TO GREEN PAPER ON FUTURE COMMON ASYLUM SYSTEM

HNLAC RESPONSE TO GREEN PAPER ON FUTURE COMMON ASYLUM SYSTEM The Halina Nieć Legal Aid Centre as one of the main stakeholders on asylum field in Poland is pleased to present its opinion on the future desired shape of the common asylum system within Eurpean Union. The Halina Nieć Legal Aid Centre is a non-governmental, a-political and non-profit organization, located in Cracow, Poland. The Centre was registered in a legal form of association on the 25 th of May 2002 (KRS no: 0000113676). The Centre was established by young seasoned lawyers, graduates of the Jagiellonian University, led by Dr Halina Nieć, with the aim to promote the respect for human rights, provide free of charge legal assistance and implement programs in the field of education and democratization. After Dr Nieć s untimely death the organization kept her as a patron. The founding idea which gave rise to the establishment of Legal Aid Centre was the effective use of the intellectual potential and enthusiasm of young lawyers for the improvement of access to legal aid in Poland and the promotion of respect for human rights. These goals are to be achieved by providing legal assistance in individual cases but also by implementing broader initiatives including monitoring, advocacy and information campaigns. The Legal Aid Centre is also involved in legal research and education. The most of the Halina Nieć Legal Aid Centre beneficiaries are aliens in need of protection, including asylum seekers and refugees, covering victims and potential victims of human trafficking, other vulnerable groups (unaccompanied minors, victims of trauma and violence, disabled, elderly) Moreover the Legal Aid Centre is focusing on preparing educational programs and carrying out specialized trainings for different professionals (especially law enforcement agencies). Legal Aid Centre conducts public information campaigns focusing on different social problems and promoting respect for human rights, do expert trainings for clerks, border guards and the police, as well as conducting watchdog monitorings whenever human rights abuse is at stake. General remarks on green paper

HNLAC gladly welcomed Commission initiative to launch the broader discussion regarding the shape and design of the future asylum system withing the European Union. This is very precious idea, taking into account the fact that most of the common instrument are implemented with vast delays and controversies, causing pararelly numerous unwelcome side effects, just to name ongoing secodary movement and replacing the Geneva Convention protection with subsidiary forms of protection. For that reasons for NGOs working in the field it is very important to take part in the consultation prosess and point out the most important issues that need to be resolved in order to design common asylum system as fair, just and migration friendly system of the people s movement. Such future system must be faithful to the spirit of Geneva Convention and shall never serve any utilitarian or instrumental interest but full and inclusive protection of basic human rights. Having in Europe the most developed human rights protection system we must be far away from idea to exclude others from sharing our understanding of human dignity or to form different standards for European Citizens or citizens of highly developed countries and other for the citizens of the rest of the World. We, as an NGO defending asylum seekers right to obtain protection and an implementing partner of UNHCR, fulfilling the goals of that agency are strongly devoted to idea of the highest possible standards of refugee protection and for that reason will be opting to shape common asylum system having those above mentioned ideas on account. General remarks on common protection system and minimum standards idea It is worth considering whether the standards proposed in the so called reception, procedural and qualification directives or the Dublin II regulation adequately shape common system of international protection. Is it enough creative a development of international treaties in the field of asylum, or step back comparing to Geneva Convention tradition and doctrine. Some of the ideas proposed by European Union are contrary to Geneva Convention regulations causing fear of erosion of the refugee protection notion. The European Union established minimum standards of protection and in our view the role of NGOs is to advocate for higher standards in particular Member States and for adoption of those best practices that were successfully introduced in other states. NGOs workers and activists are a natural source of experts that may join EU initiative of European support office or the expert forum that is mentioned in Green Paper. They constitute the closest link to asylum seekers the beneficiaries of future common system, having the best knowledge of the most important problems as well as the real impact and result of particular protection system institutions. Their position shall be then taken into account with natural priority.

For many persons devoted for human rights protection the ideal solution is full freedom of movement and settlement among the World, without artificial barriers created by each country. The reality and economical stability however do not serve that idea. Anyway, it is absolutely fundamental to grant refugee status to all persons in vital need of protection on conventional grounds, not excluding a single individual that may be subsequently exposed to persecution due to false determination, even if to reach such standard many others would be granted protection unjustly. We always need to remember that regardless of our nationality, ethnicity, race, religion or membership in a particular social group, we are just humans deserving equal and good treatment and whenever in need of protection we all have the right to obtain help, given without prejudice and on equal, fair and just grounds. Contrary to its initial aim, the introduction of the minimal standards, caused a decrease of standards in all dimensions of asylum system: procedural, in qualification, and in reception. Despite the fact that many countries did not introduced even the minimal requirements as stated in asylum directives, most of others just stopped on the minimal ones, hindering improvement in the area of dealing with migration and rights of the migrants. We are therefore calling for an introduction of such legal or institutional instruments, that would encourage or even award the countries for implementation of good practices and higher standards in all areas of concern. This is especially important if we assume that higher than minimal standards in one of the Member States cause the feeling of automatic discrimination in those which are bellow. Though, each time a higher standard is introduced somewhere it shall automatically become a minimal point of reference for the others. Remarks on standards of determination the protection status The principal objective of the so called qualification directive was to unify the determination process in the system of international protection covering both refugee status and subsidiary forms of protection. The latter differ much among Member States and such unifying steps needed to be taken, but even within RSD procedures considerable differences could be found in the interpretation of particular notions of the Geneva Convention. Although the expressed goal of the directive is justifiable and valuable the legal standards introduced by this document are controversial taking into account some institutions or its approach to conventional refugee definition. Directives are binding as to their goals, not just particular regulations and for that reason their implementation need not be straightforward. European directive is more a notion of common ideas that just a legal act, so implementation shall serve to all principles that gave impulse to issue such regulation. Within these principles the most important are the unification of the legal systems with respect to democratic standards of the civil society

and seeking fair and non-discriminatory solutions of social problems at stake. The common asylum policy shall not in any sense serve restriction of the migration flow, bordering immigration itself or preventing the illegal migration into the territory of EU, but as it was stated in its preamble, establishing and systematical expansion of the area of freedom, safety and justice, open to each individual that is forced by circumstances to seek legal protection. We cannot lose these basic principles from our sight trying to establish Fortress Europe instead of fair and just system of international protection. For that reason we advice that all regulations shall be created or exerted having this superior, enlightened and just aim in mind. Implementation of the common asylum system is a test of democracy and respect to human rights and dignity, understood as universal, and not territorially bound notions of freedom. Europe must learn to intervene sufficiently each time that a crime against humanity or another civilized standard infringement appears. International protection is one of the basic means of such intervention. To reach this superior principle it is necessary to approximate the institutions of refugee status and subsidiary forms of protection, making them more complementary especially in the social benefits dimension. We do not think there is a need to establish a new, unified form of protection within the European Union, as the one of the proposition in Green Paper call for, but we are strongly convinced that these both institutions shall be complementary and that individuals granted one of these protection forms must cherish equal rights and obligations within their legal status. Therefore while grounds for protection might differ the benefits should not. We advice therefore tighten up the MS discretion in the area of combining subsidiary forms of protection with particular benefits. We also recommend that, due the different stages of economical and social development among MS, some of the most developed MS should share the burden of settlement of an equal and fair system of protection for those who were denied refugee status, but cannot be returned to their countries of origin. We are pleased that in the qualification directive Member States agreed to adopt most of the concepts derived from conventional refugee definition by jurisprudence, however we are concerned that inclusion of the detailed interpretation of the Geneva Convention, even though it is not exclusive, might lure determination authorities to adopt interpretation of refugee definition narrowed only to examples given, not exclusively, by qualification directive. We are calling therefore for introduction of the instruments which prevent such negligence. These instruments should be more far reaching than regular trainings, common forum of experts or common databases as in many circumstances narrowed understanding of the refugee definition

meaning is politically inspired. HNLAC adopts the position that common standards shall be reached in the process of interpreting the law by independent and impartial courts rather than by law-making process. We are therefore advising to create common asylum court to give binding interpretation of Geneva Convention instead of specifying rules and regulations. Transferring obligations to EU appreciation is possible and admissible if effectiveness of the system is at stake. HNLAC is against all forms of evidentiary rules and presumptions that were introduced by the qualification and procedural directives. Those rules should be immediately abolished, as all doubts and uncertainty should be adjudicated in a favor of the applicant, and never left unresolved with a label of incredibility. This is absolutely necessary as the life, health and human dignity of the applicant might be at stake. HNLAC support the efforts for the better recognition of persons with special needs, including children and women refugees. Previously these issues were underestimated so we found all the instruments in directives concerning vulnerable people to be a huge step forward towards an adequate level of international protection. As it is quite a new domain HNLAC calls for implementation of necessary measures to ensure better recognition of such persons in determination procedures. Except of obligatory trainings to border guards and other officers dealing with migrants, the broader participation of psychologists and other experts in process shall be advised, as well as introduction of specific trauma tests. Recognition of vulnerability is indispensable for a correct assessment of protection needs. At the end of that part, HNLAC advices to eliminate the regulation that allows serious political crimes to be declared as non-political in the meaning of exclusion clauses in Geneva Convention. This regulation is flagrantly contrary to a reasonable understanding of 1951 Convention and the spirit of human rights. Remarks on standards of the future common procedure The procedural directive is probably the most important measure of the common protection system within the European Union, though in the scope of its regulation the absolute consistency with Geneva Convention requirements must be ensured. Each regulation that goes beyond Geneva Convention must go in favor of the applicant, broadening the area of freedom and rights he might enjoy. In particular, the future asylum system cannot allow decisions restraining access to RSD procedure or limiting it to certain categories of applicants, or creating new, unknown to Geneva Convention system groups excluded form the common asylum system.

If there are no just regulations on RSD procedure or other form of protection, there is no protection at all. Even the highest qualification standards are not reachable if an appropriate procedure is lacking. In general the importance of human beings protection against all forms of persecution is so essential to preserve and develop democratic standards and to build solidarity among people s communities that HNLAC calls for an introduction of a clear, just, flexible and more favorable to Geneva Convention principle of international protection. We need to notice that Geneva Convention was adopted during a period in which racism, women discrimination was natural, and some rights (e.g. homosexual equity) were even not disputed. We all deserve then better treatment and better ideas for our new asylum policies. Europe as a continent of welfare, the domain of absolute human rights priority and democracy is and should be the destination of migration and assimilation of persons persecuted on other soils. Sufficient and humanitarian protection is possible only in a democratic, free world, so HNLAC advises to repeal the ideas of creating refugee camps outside the territory of EU, especially in Northern Africa, where human rights are abused on regular basis. The last thing Europe should do is to build walls, separating us from the poor, inhumane, flaming Third World. One of the most prevalent guarantees of effectiveness and fairness of the system is submitting decisions based on fairly gathered evidence, evaluated by persons possessing adequate knowledge on nature and tradition of granting international protection. Such persons shall be obligatorily trained by professional, independent experts that have academic experience with asylum studies. For many years such trainings were provided by ECRE and on national level by many NGOs. We advise that more funds are distributed to such institutions instead of creating one common training centre, which would probably not be able to train everyone who should be. Time limits for considering the need of international protection is another crucial issue. The faster protection is granted the more effective integration process will be in the new cultural environment. Certain measures to avoid unjustifiable delays must be introduced though into the common asylum system. The up-to-date central COI database would serve that goal, provided it will gather vast, impartial, credible information from different sources and will be transparent to public. The procedure itself must in the broadest sense meet the applicant s needs, particularly enable him/her active and effective participation in determination process, which cannot be reached without common access to interpreters and legal counselors. All applicants shall be able to freely contact UNHCR or NGOs representative, and after the delivery of decision applicants should be duly informed about both its substance and justification. The process of decision making needs to be based on thorough

consideration of all aspects of the case with reflect to relevant information on facts in applicant s country of origin. Special measures must be introduced regarding the treatment of unaccompanied minors. Minors, even accompanied by adults must not face any form of detention. The separate provisions regarding evaluation of minors testimony, the conduct of the interview, etc need to be implemented as soon as possible. The age tests in case of doubts shall be solved in favor of the applicant. HNLAC advises to eliminate the ban on RSD procedure access in case of serving the sentence for a serious crime. Such ban is discriminatory, concerning the fact that according to criminal law doctrine person that served its sentence paid its dues to the society. But the most concerning idea, that should be definitely avoided in the future common asylum system is the safe country of origin and safe third country concept. The shape of this notion is definitely contrary to Geneva Convention. What is more, the procedural directive quote qualification directive instead of Geneva Convention, so in practice devaluate the importance of the basic international protection instrument. The mechanism of determination relating to the above mentioned concept is fully discriminatory and awkward to the spirit and heart of refugee definition. In order to serve instrumental means and utility of the procedure, it excludes from the fair and equal access to protection means a group of asylum seekers, solely on the ground of politically motivated or administrative decision. It also does not seem to accept the fact that refugee claim might be justifiable on individual grounds even in the countries that generally meet democratic standards, but for some reasons exclude the one from its protection. Adopting such a concept is also senseless in a view of refugee determination procedure itself as its time frames do not comply with possible changes in factual human rights situation. HNLAC finds this concept unacceptable and for the reasons expressed above advices to resign from its implementation. Remarks on material condition of reception and integration processes The EU Council Directive 2003/9/WE of 27 January 2003 sets out minimum standards for reception conditions for asylum seekers. The scope of the Directive is set out in Article 3. The Directive applies to foreigners applying for refugee status, with some exceptions, and sets up the minimal standards for reception conditions and family issues. This area of common asylum system probably differs the most among Member States. Even though it was passed two years since the deadline of its implementation the vast variety of its regulations is still not introduced. Therefore the primary actions in settlement of the common asylum system

shall be focused in the fields of reception, especially if we realize that differences in national reception systems cause most of the migration problems, secondary movement, tensions in asylum seekers premises, ongoing rejection of the subsidiary protection in order to subsequently access refugee procedure. One of the most prominent problems is probably the lack of sufficient communication between different authorities dealing with asylum seekers and refugees, which continues to cause ongoing procedural infringements. It happens also that no adequate information about medical treatment and insufficient information about NGOs working in the field of asylum is provided. The mediocre language skills of officials processing the asylum applications leave asylum seekers and other immigrants without proper knowledge of their rights and obligations. Moreover, written decisions are still provided in national languages, thereby restricting the right to defend oneself. However, there are improvements too. All those problems must be solved by certain measures adopted by the future system. One of the most important principles in the field of reception is the freedom of movement and avoiding unnecessary detention. In particular detention shall not be imposed on those that crossed the border illegally or had no right to access the EU territory, unless constitute the threat to the security of the country. The opposite solution would mean normally detaining the largest number of asylum seekers and as such it cannot be accepted in democratic societies. Arbitrary detention need to be avoided by all means and HNLAC call for the introduction of the preventing measures to stop unjustified deprivation of freedom. Grounds for detention in national law must be certain and strict, leaving possibility of court s discretion to justify in individual situations. The right of detainees to be personally present at a hearing before the courts and the deciding bodies shall be one of the key issues in common asylum policies. Unfortunately in many Member States detention is still not restricted only to those cases in which it is necessary, but rather is applied automatically to whole categories of persons who have stayed illegally on national territory or who have entered the country illegally. The courts frequently have no discretion in this matter. Detention may be imposed for up to 12 months in many countries, an unacceptable length of time. Furthermore, detainees reaching the end of the 12 month period are frequently still awaiting the resolution of their legal status and may endure subsequent and multiple 12 month periods of detention.

The solution should be brought on European level with introduction of common maximum length of possible detention, not exceeding 4 months, as it was determined by human rights courts (see ECHR judgments: Amur v. France, Shamsa v. Poland and other) as a maximum period of non-arbitrary detention. Such period should not be prolonged or repeated as according to democratic standards 4 months give sufficient time to conclude the procedures regarding expulsion and after there is no prospect of successful deportation. The automatic subsidiary protection status should be given to those who faced such detention and were not returned to their countries. The rights of families in reception are vary considerably among Member States, both legally and practically, but unfortunately in most countries adhere to minimum standards of reception directive only. Many countries did not introduce legal provisions for unmarried partners or religious marriages settled according to Muslim law, nor for gay couples, as some legal system do not recognize such social groups as families. HNLAC advices to tighten a bit the national margin of appreciation or enable the burden sharing mechanism that would allow persons seeking protection not recognized in one country to seek protection in another that respect their family status. Such mechanism shall be introduced also in the scope of Dublin II procedure enabling the movement of the persons to countries where relatives, keen or even larger number of fellow nationals of the applicants are settled. Such solution would strengthen the integration processes. The area of education is alongside of access to labor market the most important tool of successful integration. That is why educational opportunities for asylum seekers must be introduced at once. Better education is investment that has practical impact even in the case of return to the country of origin. Well-educated people have less desire to migrate again and may positively change and develop their own countries decreasing the scale of economical migration. All reception centers need to provide language classes and children with appropriate language skills must attend school. European Union shall consider establishing the special fund that would grant scholarships to skillful asylum seekers in order to enable them social promotion and access to better schools. Legally, the provisions of the Directive concerning access of asylum seekers to employment meet the greatest resistance. Only few countries enable the access to labour market earlier that a year after submitting asylum application. Nevertheless asylum seekers have to often apply for a regular work permit as do other non-eu foreigners, in practice they have to fight the hierarchy which gives priority on the labour market to EU citizens.

As a rule, access to the labour market is granted to all asylum seekers, who have not received a first instance decision, one year after the submission of their application, as long as the delay has not been caused by their own negligence. In practice complicated procedures introduced in many countries causes a lot of problems for asylum seekers trying to access the labour market, extending the period of time they spend finding a job indefinitely. In Poland for example in order to obtain the work permit an asylum seeker needs first to find an employer as a permit is issued for a specified job or designated position by a particular employer. If an asylum seeker finds an employer, the latter will need to submit approximately 20 documents to the Labour Office to prepare the application. The whole procedure may last 2-6 months or more, and if the decision of the Labour Office is positive the employer will have to pay 300 Euros as a permit fee. Of course, this discourages most employers from engaging non-eu citizens or leads to illegal employment of asylum seekers paid the lowest possible wage. In opinion of HNLAC the access to labour market shall be immediate for those who are prepared, and others shall have been empowered by vocational training opportunities to assess their qualification, improve the skills and eventually find better employment, in the host country or the country of origin. The immediate access would decrease the cost of reception and support the process of integration. HNLAC does not see the real threat to national economy, or to the employment opportunities of national unemployed. We need to realize that ban on access to labour market is ineffective in many ways, causing several important side effects, like illegal employment, increase of the scale of the grey economy, social exclusion of the numerous group of people, rise of the crime rates, as well as depression, feeling of senselessness for asylum seekers. Asylum seekers in countries that restrict the access to labour market mostly work in illegal jobs, which can expose them to human trafficking, slavery and other forms of exploitation. Access to the labour market is also limited by the lack of a professional system of empowerment and preparation, no vocational training opportunities, poor language skills of asylum seekers and competences that do not easily match the market s needs. Provisions in the Directive concerning vocational training opportunities have not been implemented properly almost everywhere. That is why vocational training is mostly provided within EQUAL initiatives. Potential employers do not invest in asylum seekers skills improvement, mainly due to the high risks associated with employing an asylum seeker who may leave after a short period depending on the outcome of his/her asylum procedure. The one year ban strengthens this attitude.

In the opinion of HNLAC European Union should implement more favorable solutions regarding the employment policies if the desired points in integration are to be reached. Social benefits and reception conditions in new Member States are obviously at a lower level than in most Western European countries. Poor reception is one of the most common causes of secondary migration to other EU Member States. Material reception conditions have been only partly implemented in those countries, but medical care and therapy almost do not exist. Social help is often not granted to persons in detention. The proper measures within EQUAL and ERF initiatives shall be implemented in order to fulfill this gap. Although the material reception conditions are not satisfactory, there have been some improvements. EU funds allowed Poland and other new Member States to increase the capacity of reception centers and enabled renovations that improved the conditions of accommodation. Legally, asylum seekers have the same access to medical procedures as EU citizens. In reality, especially in new Member States the level of provision is very low. Medical consultations are cursory and for almost all illnesses only basic drugs are provided, usually pain relievers. Access to specialists is limited and outside non-governmental initiatives there is rarely psychological treatment for traumatized persons. In refugee camps and detention institutions, high levels of epidemic threats have been observed, as well as insufficient knowledge of the personnel regarding epidemiology calls for immediate professional trainings. Skin diseases, tuberculosis, hepatitis and HIV infections are spreading among asylum seekers over Europe. Meanwhile, the good health condition is another prerequisite of successful and effective integration, as well as precondition of the health of the all society. Many countries have not implemented the Reception Directive s provision to treat the consequences of trauma or violence experienced by those who seek protection in that country. Due to a lack of funds, mental health problems caused by torture or inhumane treatment are rarely treated though. Access to legal aid is only partly implemented in many Member States. In Poland the government does not provide grants for legal assistance. It is worth considering the paneuropean mechanism of financing legal assistance. Despite these practical problems, appeal procedures in Poland go beyond the minimum standards required by the Reception Directive. Poland allows one administrative appeal and two stages of judicial review, free of charge, and HNLAC advices to adopt this solution as common European standard.

Remarks on Dublin II issues One of the most important problems identified by the authorities of the new EU bordering countries is their inability to restrict secondary movement. Many people who leave those countries for other EU countries are sheltered within their territories with subsidiary forms of protection and for this reason, as they live there legally, cannot be stopped or detained as they are not crossing the border illegally. An increasing number of cases are registered as multiple returns on the grounds of the Dublin II regulation. As long as the reception conditions, qualification system and procedural regulations are not equal among EU states, the impact of Dublin II will be minimal and unable to mitigate against the continuous movement to countries that provide better material conditions, not only for reception but also for integration and life itself. We advise to introduce a burden sharing mechanism that would allow certain migrants to determine their legal status in the countries where they have relatives, keens or where large migrant and common for them community settled down. Access to the RSD procedure during Dublin II transfers is generally granted and enabled, however NGOs have identified a few cases of malpractice in this field. Such cases generally involve mistreatment and incidents of violence towards Dublin II returnees, but also barring access to the refugee procedure. Therefore some kind of control mechanism shall be adopted with cooperation of NGOs.