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MigrationOnline.cz › Refugee status for EU nationals of Roma origin in the EU?

Refugee status for EU nationals of Roma origin in the EU?

23. 3. 12
Source: migrationonline.cz
The short commentary deals with the issue of Roma rights in the EU. The Roma who are EU citizens are forbidden to request asylum in another member state, but that could possibly change in the future. To prove that the Roma ought to be treated more fairly, the article points out the fact that according to a recent ruling of the Irish Court, denial of education to a Roma child amounts to persecution under Geneva Convention, which could set an interesting precedent.
Roma as EU citizens from EU Member states are excluded from the possibility of requesting asylum in another Member State. The EU Asylum system is based on the Asylum Procedures, Reception Conditions and Qualifications Directive, all of which apply exclusively to third-country nationals. The rationale behind this is that all EU Member states follow international standards of human rights protection and non-discrimination. This presumption, however, has been shattered in a different context by the MSS case (and confirmed by the NS and ME case being presented to the European Court of Justice), according to which EU Member States cannot automatically presume that human rights standards are upheld in other Member states when it comes to dealing with returns, as per the Dublin Regulation. Similar arguments could be now used in Roma asylum claims in the EU.

Additionally, a recent Irish case confirmed that the denial of access to basic education amounts to persecution under the Geneva Convention. A very similar situation could be found in case of the Czech Republic, Slovakia, and Hungary.

Irish court decision: Denial of education to a Roma child amounts to persecution under Geneva Convention

The Irish high court delivered the judgment D. [a minor] -v- Refugee Appeals Tribunal & Anor on 10 November 2011 ([2011] IEHC 431), claiming that the denial of access to basic primary education of a Roma child in Serbia violates his basic human rights and amounts to persecution according to the Geneva Convention. See the summary in the Irish Times.

The Court said that while the present case certainly falls outside the classic types of persecution envisaged by the Geneva Convention involving violence and threats of violence, it seems impossible to avoid the conclusion that the denial of even basic education amounts to a severe violation of basic human rights (to adapt the language of Article 9(1) of the Qualifications Directive). In that respect, therefore, the finding that the denial of basic education in such circumstances amounts to persecution within the meaning of the s. 2 of the Refugee Act 1996 (“the 1996 Act”).

Although there is no universally accepted definition of persecution, the judge quoted from Professor James Hathaway’s book, The Law of Refugee Status, where persecution is defined as “the failure to implement a right within the category which is either discriminatory or not grounded in the absolute lack of resources.”

The judgment is interesting not only for defining persecution, but also from the point of view of Roma being granted asylum in the EU. Although Serbia is not an EU Member State, it might have an impact on further asylum applications of Roma based on denial of access to basic education.

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Karolína Babická
Karolína Babická works as migration and asylum policy and advocacy officer in European Brussels-based NGO. She holds a PhD in international law from Charles University in Prague and Odysseus Network Certificate in EU Migration and Asylum Law.



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