The Challenges in Covid19 Times for Refugee Determination and Accessing Protection

By Prof Elspeth Guild, Queen Mary University of London and Kathryn Allinson, Research Assistant, Queen Mary University of London and Teaching Associate, University of Bristol.

The spectre of the Covid19 pandemic has stalked political leaders, at local, regional, national and European levels since mid-January 2020. In amongst the myriad responses that States have taken to combat the spread of the virus those relating to refugee protection make grim viewing. The scenes at the Turkish Greek land border where the President of the Commission, the President of the European Council, the EU High Representative of the Union for Foreign Affairs were present to witness, and applaud, the violent actions of the Greek border guards and military in preventing people seeking to cross from Turkey to the EU to seek protection is exemplary of the approach of many States. And it did not help the image of the EU in these exceptional times, as a place where refugees are welcome and provide protection in accordance with international law.

This unedifying political spectacle addressed towards the Turkish President and intended as a response to his responsibilities came at a most problematic time. EU states were within a week of closing internal and external borders to movement of persons with little regard to the needs of refugees. In this blog we will examine the subsequent efforts of the EU (and associated countries including the UK) to comply with their obligations under the 1951 Refugee Convention, in particular, as regards the processing of asylum applications.

Who is an Asylum Seeker?

The category of ‘asylum seeker’ does not exist in international refugee law. The 1951 Refugee Convention and 1967 Protocol never use the phrase ‘asylum seeker’. For the purposes of international refugee law (the Convention) refugees are those people who fulfil the definition contained in Article 1A (Persons with a well-founded fear of persecution who is outside the country of persecution and fears persecution on the grounds of race, religion, nationality, membership of a social group or political opinion). As a result, they are entitled to protection from the date they fulfil these conditions, not from the date when the host state determines that they are a refugee. Being a refugee is not a status imparted by State processes but is inherent to the need for international protection. It creates a legal obligation on States to provide that protection as soon as they identify the individual’s status as a refugee.

By contrast, where an individual does not fulfil this definition, they are not covered by the Convention and thus are not refugees. The authors acknowledge the detailed debates that have concerned the extension of the refugee definition to war refugees (see UNHCR Guidelines No.12 and Refuge from Inhumanity), as well as to victims of forced displacement as a result of economic or natural disasters. However, it is not the purpose of this discussion to delve into this topic; rather it is to highlight that within international refugee law a person is either a refugee or not, and the term ‘asylum seeker’ is absent from this framework.

The right to seek asylum is found in Article 14(1) Universal Declaration of Human Rights (UDHR), asylum being the provision of refuge and protection that ‘everyone has the right to seek and enjoy…’. However, the wording of Article 14(1) UDHR was kept purposefully free of any moral or legal obligation on States. The drafters maintained that to grant asylum was the right of the sovereign State, not of the individual seeking it. While debates concerning the right to be granted asylum have continued, bolstered by acknowledgement of the right from international human rights bodies, the human rights protection of non-refoulment and Article 18 of the Charter of Fundamental Rights of the EU, the international legal obligation to grant asylum remains unclear. States continue to deny they have a legal obligation to grant asylum. However, what has developed is that, following the ratification of the 1951 Refugee Convention, the refugee definition was adopted by States as the criterion for granting asylum (see Goodwin-Gill and McAdam 2011 p415). Thus, the seeking of asylum and refugeehood became entwined.

The term ‘asylum seeker’ gained currency in Europe in the 1980s as a way to differentiate people who have applied for international protection but not yet been assessed by the authorities of the host state from those who have already been assessed and determined to indeed fulfil the definition (for a recent history of asylum law see Boccardi 2002; Byrne 2004). The need for this intermediary term arose as a result of administrative backlogs between the receiving of asylum applications and the making of decisions. However, as refugees are refugees from the time when they fulfil the conditions (not the date when the state assesses that they fulfil the definition) the distance between the rights of asylum seekers and refugees could not diverge too widely. If they did, then refugees could be denied their entitlements under the Refugee Convention simply because state authorities were unable to assess their applications in a timely manner. Thus, an asylum seeker became someone in limbo, neither deemed worthy of protection (yet) nor of the denial of that protection; and States had to respond accordingly.

This legal reality came under pressure in the 1980s and 1990s when some EU Member States encountered massive backlogs in applications. At the same time the situation in Europe was changing with the demise of the USSR, the emergence of new states and the ongoing Balkan wars resulting a rise in asylum applications (see Chalmers et al 2009). This created an unstable environment where many asylum applications which pre-dated the turbulence were refused as the conditions in the place of origin had changed and thus the statistics indicated a substantial rise in rejected asylum applications. This, in turn, formed the basis of an argument for differential and disadvantageous treatment of asylum seekers in comparison with recognised refugees as the majority of the former would be rejected and so should not benefit from the high standards of protection that the later were entitled to. The asylum seeker was born as an administrative practice and eventually a term in EU law.

In 2003, a directive was issued from the EU Council outlining the minimum standards for the reception of asylum seekers (2003/9/EC) This was quickly followed by Regulation 343/2003 which set out the criteria and mechanisms for examining asylum applications. These documents provide for a series of civil rights and benefits to be granted to asylum seekers. However, they are granted contingently and provide for no unconditional rights, with many being subject to withdrawal for failure to comply with very strict conditions. The rights of ‘asylum seekers’ were now conditional and differentiated from those of refugees.

Covid19 and asylum seekers in the EU

In accordance with the aforementioned Directives, people who seek international protection in the EU before the assessment of their asylum applications are entitled to reception conditions (honoured in the breach massively in Greece) which include acceptable housing, access to food, healthcare, education for children and free movement. These reception conditions must be accorded as long as the asylum seeker is within the state (irrespective of Dublin III procedures to move them to another Member State). But they can be subject to detention, delayed rights to work, no family reunification and live under the threat of refusal and expulsion. Being an asylum seeker may be a preferable status than being an irregular migrant but, as a result of the uncoupling of asylum seeker status from refugee status, not by that much.

The only way for someone seeking international protection in the EU to pass from being a suspicious asylum seeker (maybe not deserving of international protection) to being a refugee (or beneficiary of international protection in EU legal language) entitled to rights is to pass through an administrative process. Key to the Common European Asylum System (which the Amsterdam Treaty 1999 required to be established) is common procedures. The objective is that anyone who seeks international protection in the EU will be entitled to the same procedures to determine the validity of the application. The longer-term hope was that common definitions and common procedures would result in equivalent outcomes. This has not been the case but that is less relevant to this blog.

UNHCR, whom assisted with the development of the Common European Asylum System, emphasised that, if states do not apply a prima facie position that people who seek asylum are refugees, then they must provide the individual an opportunity to explain to the authorities in an individual interview the grounds on which he or she fears persecution and to present evidence in support of that claim (see Handbook). Notwithstanding a series of diversionary measures which EU states inserted into the legislation to attempt to avoid responsibility for asylum seekers, such as safe third countries, safe countries of origin or responsibility elsewhere in the EU (Dublin III Regulation), they accepted that an opportunity to present an asylum application was core.

At the heart of the EU directive on common procedures (Directive 2013/32) is the face-to-face interview. Everyone who seeks international protection in the EU is entitled to an interview which provides him or her with the opportunity to present the case for refugee protection. Thus, the key to transiting from being an asylum seeker to being a refugee, or beneficiary of international protection, is the individual interview. This gained massive importance when the Covid19 measures started to be implemented in EU States (in a rather chaotic and uncoordinated manner). For asylum seekers already within the territory of the EU (as opposed to those left at the Turkish border) making the transition from asylum seeker in a reception centre (which are becoming detention centres through the lockdown of the centres) being recognised was, and is, the route to better treatment.

In light of this reality, the suspension of asylum processing in a number of Member States, and in particular the individual interview comes as a serious blow. This in the case of a number of EU states such as AustriaCyprus, the UK which has paused substantive interviews, the Netherlands, and Lithuania as well as general shut down of immigration services in Italy, France and Greece. The argument is that on Covid19 grounds it is too risky for the health of public officials who are charged with carrying out the interviews to continue their work. All alternatives used in other Member States such as plastic shields, on-line options etc, were rejected by these Member States, preferring effectively to ‘punish’ asylum seekers by refusing them access to the key means of proving that they are indeed entitled to international protection. These states use many and diverse arguments, starting with the safety of their officials but also administrative incapacity (no secure internet links) to procedural fairness (the interpreters and legal representatives of asylum seekers might not be able to do their job properly under such conditions). These arguments are drastically undermined by the decision of other States, for example Portugal, to automatically grant all pending asylum applications to ensure access to healthcare and social services.

UNHCR Regional Bureau for Europe issued Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the Covid19 Pandemic on 9 April 2020. Of course, as an international organisation which works closely with States to improve their practices, the role of UNHCR is not to criticise overtly some states over others. However, even in this publication couched in very moderate language, the poor record of some EU states (whom are also the main sources of disputes on the right to asylum) is evident. A welcome Opinion by the Advocate General of the CJEU on 23 April 2020 recommends the European Court find that Hungary had breached EU law in failing to examine asylum applications of two individuals held between 2018 and 2019. The A-G considered that accommodating asylum seekers in the Röszke transit zone, as the Hungarian authorities did in this case, amounted to a situation of isolation and a restriction of the freedom of movement of asylum seekers to such an extent that it constituted ‘detention’ in contravention of the Reception Conditions Directive 2013/33. Given that this case was considering reception conditions and asylum application processes prior to the lockdown measures and delays being experienced as a result of Covid19, if the Court follows the A-G’s argument this will be very important for detention in Covid19 times.

Given the precarity of the position of people whom are awaiting the determination of their asylum status, the suspension of asylum procedures leaves them in a position of heightened vulnerability. They have restricted access to healthcare, benefits and wider social services at a time when access to such services is essential to ensure basic standards of well-being and prevent the spread of Covid19. Further, many are being held in what is essentially, prolonged arbitrary detention (given the lockdown measures) without a clear prospect of when a decision will be made about their status. The Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration detention makes clear that detention of migrants without a clear prospect of release or alternative measures can inflict serious psychological harm upon them, and constitute treatment contrary to Article 7 of the ICCPR. With this in mind, States must make provisions to ensure that asylum seekers claims are not arbitrarily suspended or delayed. Responses like that of Portugal are to be welcomed. However, where States may not be willing to go so far, recommendations by the Joint Council on the Welfare of Immigrants in the UK, wherein States should extend basic healthcare and social service provisions to all migrants and refugees as well as release everyone detained under immigration powers, would go a long way to preserve their basic rights in the face of Covid19.

*This blog was originally published by ‘Refugee Law Initiative – School of Advanced Study University of London’. You can view the original post, here.*

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