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States should not impose penalties on arriving asylum-seekers

Strasbourg 17/03/2008
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A minimum of solidarity with those oppressed is to receive them when they are forced to flee. The “right to seek and to enjoy in other countries asylum from persecution” is indeed a key provision in the Universal Declaration of Human Rights. Sadly, this right is not fully observed in parts of Europe today. Instead, refugees are met with suspicion and too often even placed in detention.

It has to be repeated that some of those who seek to enter Europe have well-founded fear of persecution. They are under threat because of their ethnicity, religion, nationality, political opinion or membership of a particular social group. Some of them have already suffered serious ill-treatment in their country of origin. They are refugees who have been forced to migrate.

Their background distinguishes them clearly from other migrants and has made it necessary to provide them with a special protective status under international law. Unfortunately, that status is not always respected. Some of the actions taken to deter groups of migrants from arriving have made it impossible for refugees among them to apply for asylum.

Refugees who have entered the country without a permit should not suffer a penalty. Restriction of their freedom of movement may take place only on exceptional grounds. These have been fundamental principles established in international refugee law for almost 60 years.

The 1951 UN Refugee Convention (as amended by the 1967 Protocol) has prescribed in Article 31 that “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who (…) enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

States may only restrict refugees’ freedom of movement if such restrictions are considered “necessary”, that is, in clearly defined exceptional circumstances and in full consideration of all possible alternatives. The United Nations High Commissioner for Refugees has been stressing this principle for many years.(1)

This position was clearly endorsed by the Council of Europe’s Committee of Ministers in 2003 when it adopted Recommendation Rec (2003)5 to member States on measures of detention of asylum seekers. In 2005 the European Union also expressly accepted this principle in Article 18 of the Council Directive 2005/85/EC on minimum standards on procedures for granting and withdrawing refugee status.

The conclusion of these standards is that detention upon entry of asylum seekers should be allowed only on grounds defined by law, for the shortest possible time and only for the following purposes:

• to verify the identity of the refugees;
• to determine the elements on which the claim to refugee status or asylum is based;
• to deal with cases where refugees have destroyed their travel and/or identity documents or have used fraudulent documents to mislead the authorities of the country of refuge;
• to protect national security or public order.

Like all limitations to fundamental rights and freedoms, these exceptions should be applied restrictively. Some vulnerable categories, for instance unaccompanied children must never be detained. Unfortunately, my own experience and information I receive from credible sources show a very different reality.

For example, I am worried about reports on the situation of refugees in the Aegean Sea and the detention by national coast guards of all new arrivals, including asylum seekers. Among those detained on border islands have been disabled persons, pregnant women and minors. This is not the only case; clearly, the treatment of those arriving to some other parts of Europe also require review.

The detention of persons who have claimed asylum but whose claims have been refused is a matter of concern as well. Again, such deprivation of liberty can only be defended if there is an objective risk that the individuals would otherwise abscond and that alternative measures like regular reporting do not exist. Such detention, if necessary, should be limited in time and open to challenge before a judicial authority.

I am concerned by the fact that some EU member States detain asylum seekers when their transfers are under way to the member State responsible for examining their application, in the context of the “Dublin II Regulation” (No 343/2003).

The “Dublin II Regulation” should be revised in order to reflect the basic principle of non-detention of asylum seekers. An effective EU-wide monitoring system is also necessary so that places used for detaining asylum seekers are under constant surveillance by an independent organ. Special attention, in this context, should be paid to the widely used detention in airport (transit) areas.

The need for common European procedures in this area is obvious. I have met government representatives who have been worried that a rights-based policy would send “signals” which would attract further refugees. That attitude tends in turn to feed a negative chain-reaction. Policies should instead be coordinated on the basis of the agreed human rights standards.

I sincerely hope that the judgment of the European Court of Human Rights’ Grand Chamber in the case of Saadi v UK (29/01/2008) will not be understood as a justification for a general practice of detention. The Court accepted, in effect, that a State may detain an asylum seeker for seven days “in suitable conditions” for a fast-track procedure, if that State is confronted with an “escalating flow of huge numbers of asylum-seekers”

No doubt, an increase of asylum applications may cause administrative problems. This, however, should not be seen as a reason to allow the corrosion of an established international law principle that proscribes the detention of asylum seekers upon entry. It is important that the raison d’État does not automatically prevail over the État de droit.

In view of the above, I think it would be useful to recall and stress some crucial principles that the European States have already accepted, at least in law:

• Refugees are particularly vulnerable persons subject to persecution in their countries of origin; thus, they are in need of special protection by the States of refuge;
• The non-detention of asylum seekers upon entry should remain a fundamental international law principle, respected by States in practice;
• Detention should be allowed restrictively only in the four aforementioned situation;.
• Detention should take place in special detention facilities for refugees;
• Alternatives to detention measures should be considered by States and provided for clearly in domestic legislation;
• States should always provide special attention and care to particularly vulnerable refugees, such as those who are torture or other trauma victims, unaccompanied minors, pregnant women, single mothers, elderly persons or persons with mental or physical disability;
• States should effectively apply the procedural and substantive safeguards provided for by Article 5 (Right to liberty and security) of the European Convention on Human Rights;
• State organs dealing with asylum seekers in detention should be specially trained and subject to a continuing, special training.

These are not just humanitarian principles. Under international human rights and refugee law they correspond to individual rights which, in turn, engage State responsibility.

The principle and practice of asylon is a challenge for modern Europe but its origins are found on this continent. European States should try harder to cope effectively with this challenge and to live up, at the same time, to their own tradition.

Thomas Hammarberg