The Challenge of Asylum to Legal Systems

Prakash Shah

• Publisher: Routledge-Cavendish
• Year: 2020
• ISBN:
  9781000158342
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A collection of papers presenting critical perspectives in the development of asylum law with a focus on European and UK developments, incorporating international human rights law and comparative law perspectives. Issues covered range from law-making at the EU level, with a particular focus on extra-territorial processing of refugees claims, asylum procedures, family members of those in need of protection, welfare benefits and impact of national level on the reception of EU norms. Domestic and comparative perspectives offered include discussions on detention, judicial decision-making, appeal rights, claims processing with particular reference to the role of interpreters and developments in Australia which have provided a model of thought worthy of emulation in the UK.

CHAPTER 1

ASYLUM SEEKERS IN THE NEW EUROPE: TIME FOR A RETHINK?

Dallal Stevens

INTRODUCTION

Increasing numbers of asylum seekers to Europe over the last two decades have engendered a feeling of panic amongst EU Member States, which has resulted in a range of restrictive measures at both national and EU levels. Although the year 2003 witnessed a fall in asylum seekers to the EU,¹ a trend which appears to be continuing,² the legacy of rising numbers of asylum applications in the 1990s lends urgency to the quest for a firm solution to the asylum issue. It was only in May 2004 that the five-year plan on asylum, first conceived in Amsterdam, saw fruition in the partial realisation of the Common European Asylum System (CEAS). The adoption of the Dublin II Regulation,³ and directives on reception conditions for asylum seekers,⁴ on temporary protection in the event of mass influx of displaced persons,⁵ on family reunification,⁶ and on the definition of a refugee⁷ provide the basis of a new ‘harmonised’ or ‘communitarianised’ asylum policy post-Tampere. Only the Procedures Directive remains outstanding, though the ‘general approach’ was agreed in the final hours before the deadline of 1 May 2004.⁸

Tampere was not simply about advocating the introduction, in the short term, of minimum standards in the asylum and refugee fields; it also proposed that ‘in the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union’.⁹ More generally, the European Council stressed ‘the need for more efficient management of migration flows at all their stages’.¹⁰ These longer-term goals were again articulated at Thessaloniki in June 2003, when the European Council ‘reaffirmed the importance of establishing a more efficient asylum system within the EU to identify quickly all persons in need of protection, in the context of broader migration movements, and developing appropriate EU programmes’.¹¹ It is now impossible to approach the issue of asylum in Europe without consideration being given to the question of migration more generally.

This chapter offers some reflections on the future of asylum and refugee policy in the new Europe within the context of the wider debate on migration. It addresses three main aspects. First, it assesses briefly the ability of the CEAS to provide effective protection to asylum seekers and refugees. Secondly, it considers new approaches advanced by the EU Commission and United Nations High Commissioner for Refugees (UNHCR) to deal with the migration of asylum seekers. Thirdly, it argues that a whole range of underlying factors relating to asylum (and migration) in an increasingly globalised world are not adequately addressed by the EU or UNHCR initiatives, and that consequently EU asylum policy has entered a new phase of uncertainty.

THE CEAS

The background to the CEAS and the problems with the directives on procedures and refugee status and with the Dublin II Regulation have been addressed in some detail elsewhere.¹² For many, Tampere represented a milestone in its apparent commitment to ‘an open and secure European Union, fully committed to the obligations of the Geneva Refugee Convention and other relevant human rights instruments’,¹³ and its reaffirmation of the ‘absolute respect of the right to seek asylum’ and the principle of non-refoulement.¹⁴ Despite such assurances, the European Council on Refugees and Exiles (ECRE) published in June 2004 a rather damning report on the development of EU minimum standards for refugee protection from Tampere 1999 to Brussels 2004.¹⁵ While acknowledging the undoubted achievements of the past five years in the EU’s asylum policy – the centrality of the 1951 Convention; the adoption of a refugee definition broadly reflecting international standards; the granting of a subsidiary form of protection in all Member States; the recognition of persecution by non-state actors and of gender-specific and child-specific forms of persecution; the provision of adequate reception conditions for asylum seekers – the report is still largely critical.¹⁶ Much of the criticism is reserved for the yet unadopted Procedures Directive, which is described as ‘gravely flawed’.¹⁷ Of particular concern are the concepts of ‘safe third country’ and ‘safe country of origin’. According to the proposed directive, a country may be considered safe for return of an asylum seeker despite not having ratified and implemented the 1951 Convention, not complying with other human rights obligations, and failing to have a prescribed asylum procedure in place.¹⁸ In addition, ECRE objects to the introduction in the directive of a ‘super safe third country’ concept, according to which asylum seekers can be returned to a country without examination of their application so long as the country concerned has in fact ratified and observes the 1951 Convention and the ECHR, and has in place an asylum procedure prescribed by law.¹⁹ The safe country of origin concept is also incorporated into the Directive. UK asylum lawyers have a long relationship with such a concept since its first appearance in UK law as the so-called ‘white list’ in the Asylum and Immigration Act 1996. Applications from listed countries are deemed to be unfounded and subject to accelerated procedures. While confirming the right to an effective remedy,²⁰ the directive also permits the use of non-suspensive appeals, thereby undermining the ability of asylum seekers to make use of such a right.

The Qualification Directive, too, attracts censure. The directive incorporates the internal protection alternative (IPA), widely practised by most states, but fails to provide any guidance to Member States on how to judge whether IPA is appropriate.²¹ Furthermore, ECRE, while acknowledging the advances made in the directive through inclusion of subsidiary protection status, is concerned that the grounds giving rise to such status do not reflect the full spectrum of obligations under international human rights law;²² nor do they guarantee those offered subsidiary protection equal rights to refugees.²³

The Reception Directive implements a provision permitting Member States to ‘refuse reception conditions in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival’.²⁴ In the UK, this found form in the now notorious s 55 of the Nationality, Immigration and Asylum Act 2002. Such has been the strength of the campaign against s 55 that, finally, in late June 2004, the Government announced a climbdown, pending appeal to the House of Lords in the case of Secretary of State for the Home Department v Limbuela, Tesema and Adam.²⁵ As from Monday 28 June 2004, asylum seekers should not be refused state support unless it is clear that they have some alternative means of support.²⁶

The objections rehearsed above are not new. James Hathaway, for example, in an article in the European Journal of Migration and Law in 2003, alerted readers to a range of problems with the proposed directives, many of which hav...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• List of Contributors
• Preface
• Table of Contents
• Introduction: From Legal Centralism to Official Lawlessness?
• 1 Asylum Seekers in the New Europe: Time for a Rethink?
• 2 Protecting Refugees in the Context of Immigration Controls
• 3 Deflecting Refugees: A Critique of the Ec Asylum Procedures Directive
• 4 EC Law on Family Members of Persons Seeking or Receiving International Protection
• 5 Towards a Just European Welfare System for Migrants?
• 6 A ‘Common’ EU Immigration and Asylum Policy: National and Institutional Constraints
• 7 Detention of Asylum Seekers and Refugees And International Human Rights Law
• 8 Judging Asylum
• 9 Asylum Appeals: The Challenge of Asylum To The British Legal System
• 10 Communicative Barriers in The Asylum Account
• 11 ‘Don’t Bother Knocking’: Australia’s Response to Asylum Seekers
• Index