< Viewpoints < 2006

“Seeking asylum is a human right, not a crime”

[30/10/06] The right to seek asylum is not fully protected in Europe today. In spite of a downward trend in asylum applications in several countries – with some exceptions such as Malta and Greece – the policies have remained restrictive. Concerns about irregular migration and terrorist threats seem to have prevented a constructive discussion on asylum and refugee protection issues – creating a significant human rights deficit.

Today, it is more difficult for refugees and other migrants to reach our borders. Airlines are pressurised to refuse passengers who may not be granted entry on arrival. Patrol boats are deployed along Europe’s southern shores to intercept and turn back migrants from African countries. These groups may include individuals whose very survival is under threat at home.

In the past, asylum seekers who, in spite of these difficulties, have managed to reach European countries, have as a rule been given a chance to file their claim – even when they arrived together with others in “mixed flows”. The Spanish Government has tried to secure this right for those arriving in the Canary Islands.

However, the increased use of accelerated asylum procedures may lead to the de facto refoulement of persons in need of international protection. Also, recent proposals for quick decisions on sending back large groups of new arrivals may, if enforced, totally undermine the right to seek asylum. It is therefore crucial that asylum seekers within larger migratory flows are identified at an early stage and offered fair and just procedures.

The Dublin II Regulation opens the possibility of returning an asylum seeker from an EU country to another EU member which is perceived as responsible for the examination of the asylum request. However, as the UN High Commissioner for Refugees (UNHCR) has pointed out, this practice may in reality undermine the chances for the refugee to get asylum because of different standards between EU countries.

Furthermore, the UNHCR recommends a liberal approach so that family connections and previous stays in the country are considered before final decisions. I believe that these recommendations should be taken into account in the revision of the Dublin II Regulation, which is currently under discussion within the EU.

There are several EU Directives on asylum policies aiming at a common approach within the Union, which is a laudable and necessary ambition. However, as the UNHCR has found, the tendency in some EU countries has been to lower standards to the minimum extent possible. More restrictive legislative and administrative provisions have been introduced during the transposition of the Directives.

A major, concrete problem is the fact that a great number of migrants come without documents. It is clear that traffickers in many cases confiscate or destroy their passengers’ passports or other identity papers. Also, some migrants may themselves prefer not to give information about their identity or home country, hoping that this will increase their chances of asylum.

This, however, is no justification for treating this flow of irregular migrants as if they were criminals. They all have the right to a fair procedure. There may always be genuine asylum applicants among them, and people who have run away from severe persecution may not have been in a position to ask their government for a passport.

Non-governmental organisations working in this field have filed extensive reports on the way asylum seekers are interviewed by the police. They have pointed out that little consideration is given to the vulnerability of applicants, which is often rooted in the trauma they have experienced through previous contacts with people in uniform. They may have psychological difficulties in talking to strangers about the torture or other humiliation they have experienced in the past.

Despite that, asylum applicants are often blamed for not being honest from the start, which is something many of them understandably take as an insult. It does of course happen that refugees tell lies. But this should not taint the overall approach to interviewing technique and evaluation. There is a need to make this first meeting with the host society as humane as possible, without sacrificing the need to obtain the necessary information.

It is critical that interpreters be available and that they be selected in a way that it is guaranteed that the accounts of refugees will not be reported to the home authorities. Interviews with children require special attitude and skill – it is key that their experiences be heard independently.

In many countries, the quality of the detention centres also suggests that asylum seekers are treated as criminals. Governments should therefore review the need for detention as well as the conditions in detention facilities. In a number of countries, asylum seekers might be detained in two stages: first upon arrival while their applications are determined and then – after refusal – while the host government tries to secure their reception in the country of origin. The latter process sometimes takes a long time and the possibility for refugees to seek legal assistance in this situation is often restricted or non-existent.

Could we Europeans do better? We should.

Thomas Hammarberg