EU Green Paper on the future Common European asylum system

A Law Centre (NI) response

September 2007

1.  About Law Centre (NI)

1.1  Law Centre (NI) is a public interest law non-governmental organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland .  Five specialist lawyers carry out our immigration and asylum work and we represent in a substantial number of all immigration appeals in Northern Ireland .  We are the main advisers on immigration law in Northern Ireland .  We operate an advice line five days a week and answer queries in relation to all aspects of immigration law.  We also facilitate the Immigration Practitioners’ Group which consists of lawyers and voluntary sector organisations. It meets regularly to discuss all aspects of immigration law and practice in Northern Ireland .  This submission has been informed by the work of our immigration practitioners.   

2.  General Comments

2.1  Given the extensive focus of the paper on issues surrounding the asylum process and the time we have to respond it is our intention to focus our comments on the specific areas of the proposed system that relate specifically to Northern Ireland rather than attempting to reply to all the questions raised within the paper.

We welcome the tone of the consultation document which is largely more positive than the approach adopted in the UK and indeed many other member states.  However this in itself raises a concern that the proposals may lead to a reaction by certain member states to either advance a more repressive approach or to withdraw from the more proactive measures suggested in the paper such as those on border control.  We would welcome seeing more details on how these measures would be adopted in the face of such pressure.

Law Centre (NI) would also like to clarify the UK ’s position in relation to the Directives in place at present.  Our understanding is that the UK has only ratified the Reception & Qualification Directives and not the Family Re-unification and Long -Term Residents Directives (Title IV measures- Article 63.3 Re. conditions on entry & residence and family re-union opt-out protocol to Amsterdam Treaty). Given this we would suggest that the UK should first opt into these measures ensuring that the Common European Asylum System is relevant in the UK for those matters.

3. Specific Comments

Processing of asylum applications (2.1)

3.1  We would argue that “Effective access” is a fundamental human right enshrined in article 14 (the right to seek asylum) of the Universal Declaration of Human Rights.  In practice effective access means not only access to legal representation but also adequate legal aid to ensure that the representation is sufficiently resourced to be of a suitable standard.  Law Centre (NI) would also argue that, for there to be effective access to the asylum system there should be an end to fast-tracking measures, which can have the effect of preventing those seeking asylum from receiving adequate legal representation.  Similarly we would argue that the EU asylum system does not adopt deterrent measures such as have been adopted by a number of member states including the UK .  These measures, which typically criminalize many seeking asylum, through demanding a valid passport, making the act of facilitating an asylum seekers entry into a member state (carriers) a criminal offence, or the widespread use of detention and the withdrawal of provision of basic needs such as housing, healthcare or employment from asylum seekers whose claims have been determined.  For example, we are aware of a family from Afghanistan, who have been living in a car for the last three months and despite their children being ill are scared of seeking medical assistance for fear of being removed.  Within Northern Ireland we have recently seen a rise in the number of unaccompanied minors seeking asylum.  To guarantee these minors get fair and effective access to the asylum process we would argue that there should be a guardianship system for unaccompanied minors that not only guarantees access to the system but also provides sufficient support within it.

Reception conditions for asylum seekers (2.2)

3.2  In our work with asylum seekers it is apparent that the prohibition on working in the UK negatively impacts upon the efforts of the asylum seekers to integrate into Northern Irish society.  The forced reliance on government funded support also often exacerbates the stigmatization of asylum seekers and can be a contributory factor in the racist attacks that have occurred here.  To counter these issues and increase integration we would support an EU wide right to work for those asylum seekers able to do so.  We are, obviously conscious that many of those seeking asylum are unable to work due to the repercussions of their experience which can include torture and trauma.

3.3  The wide divergences on the access of asylum seekers to the labour market are not just between different member states. Within the UK itself delays and the need to request permission to work after a year mean that not all asylum seekers are treated equally. Law Centre (NI) suggests that the right to work should be automatic for those who are capable of working.  As well as allowing the individual seeking asylum to earn an income it would also remove dependence on state funds and other problems that can arise in relation to accessing housing, medical care, and other services.

3.4  Similarly with respect to the reception conditions we would highlight the situation in Northern Ireland where those seeking asylum can be removed to Dungavel detention centre across the Irish Sea in Scotland. It would be in keeping with the spirit of this measure to allow those seeking asylum here to remain within Northern Ireland until their case has been decided.

Granting of protection (2.3)

3.5  The experiences of the asylum seekers Law Centre (NI) have represented in Northern Ireland have led us to believe that the proposal for further approximation of the rights and benefits attached to the protection would be a positive move.  However this would only be the case if the resulting approximation was at the highest levels rather than a lower common denominator.  We would also welcome a move from the European Union to ensure the mutual recognition of asylum decisions across the Union , with the possibility for those seeking asylum of transferral their protection across member states.  We are though cognisant of the potential barriers for this, including administrative, attitudinal and economic issues.  We would also suggest that a move to harmonize decisions around the standards of the member states with the least favourable standards could have severe implications for many asylum seekers across the European Union.

Cross-cutting issues (2.4)

3.6  Law Centre (NI) endorses the Green Paper’s aim that “the special needs of the most vulnerable asylum seekers should be identified and addressed.”  We would argue that this is a particular area where the current UK system does not safeguard the needs of this vulnerable group. This situation is set to deteriorate further as the UK Government is proposing to reduce protection for vulnerable asylum-seekers by removing discretionary categories of leave in its current Consultation on Simplifying the Immigration System.

3.7  Similarly we would note that in contrast to the aims of the EU Green Paper the current UK immigration proposals include the fast-tracking of asylum claims which will prevent the most vulnerable receiving the help they need.  Furthermore the ongoing erosion of legal aid, including to Law Centres[1], erodes access to good legal representation and basic legal rights of vulnerable. We would also highlight that within the UK the increasing criminalisation of asylum-seekers for, amongst other things, illegal entry also penalizes this most vulnerable group.

3.8  A further point we would wish to make is that attempting to categorize “the most vulnerable” can never be fully comprehensive as the situations facing those seeking asylum are continually shifting and the situations they find themselves in continually evolving.  We would also note that the Green Paper contains no reference to the special needs of asylum seekers who fear persecution on the basis of their sexual orientation, we would argue there should be.

3.9  Law Centre (NI) welcomes the move to establish an appropriate response to situations of vulnerability, particularly as within Northern Ireland there is a lack of culturally-sensitive trauma counselling or child counselling for asylum seekers.  As the Psychiatric Journal highlights in its report on the impact of sexual violence on disclosure during Home Office interviews the trauma experienced by asylum seekers and the vulnerability it engenders can have direct and serious consequences for the asylum seeker when they enter the country in which they wish to seek asylum.  Law Centre (NI) would agree with the Green Paper that it is essential to find ways to meet the special needs of the most vulnerable asylum seekers.  To this end we welcome the suggestions in the paper including the proposal to look at ways to establish an EU wide training programme to disseminate best practice to all the different individuals involved in operating the asylum process.

Implementation – accompanying measures (3)

3.10  Law Centre (NI) would argue to ensure that the accompanying measures suggested within the Green Paper are as positive as possible that they should be assessed developed and audited by independent experts.  We would however urge caution over the suggestion for the development of Europe-wide asylum expert teams, which in principle could have wide ranging benefits.  The impact of such teams on the asylum system within the UK could be detrimental if the structure, role and nature of these teams are not carefully considered.

Responsibility Sharing (4.1)

3.11  In response to the question on whether the Dublin system should be complemented by measures to enhancing a fair burden-sharing, Law Centre (NI) would comment that the current Dublin system can result in prioritising harmonisation over human rights.  This has been highlighted in the recent case where the UK was returning individuals to Greece where their claims, deemed withdrawn, would subsequently not be processed.  We would argue an initial step would be for the EU to recognise that migrants in general and asylum seekers contribute to the countries they move to, one way this could be achieved is by ending the practice of referring to the measures implemented to implement the asylum system as a ‘burden’. The whole concept of sharing the “burden” is a very negative way to describe those individuals who tragically and unfortunately find themselves through no fault of their own outside their home country.

3.12  A further difficulty in this whole idea is the determination of which member states face the biggest pressures. Statistical information in the UK alone is incomplete and collated in an ad-hoc manner.   We would argue that the amount of work involved in making corrective “burden-sharing” a reality in a fair way could be prohibitive.  It is our suggestion that before looking to adopt such a process the EU should focus on how the information would be collected and used as well as devising how such a mechanism could work.  This should be consulted upon before the EU looks to implement such a system.

3.13 A further issue we could foresee with such a programme is that member states may try to manipulate such a system for their own, often political, benefit.  Similarly we would argue that thought needs to be given to the mechanics of such a programme allowing for the movement of asylum seekers.  Within Northern Ireland we have seen the effect on individuals and their families and friends of the policy of removing asylum seekers to Home Office detention facilities in England and Scotland .  The break with their legal representatives, their families and the removal from one judicial area to another have proved formidable barriers in ensuring that justice is delivered and that families and ties are maintained.  Given that these problem are within different parts of the UK we would be concerned that they would be exacerbated greatly on a Europe wide scheme, if care were not taken, to ensure asylum seekers receive the legal representation they need and receive fair access to justice.

External Dimension of Asylum (5)

3.14  Law Centre (NI) welcomes the goal of looking to assist third countries in dealing with asylum and refugees issues more effectively.  We would though suggest that such an aspiration can only be met within a broader discussion of the role of the EU and its member states with relation to the countries of the third world.  It is beyond our remit to address such matters except to note that it is our experience that the great majority of those seeking asylum in Northern Ireland are fleeing from the consequences of war, corruption and extreme poverty.