Declaration of Czech non-governmental organisations regarding the impending changes to the amendment of the Czech Foreign and Asylum Acts

DECLARATION

Regarding the impending changes to the Foreign Residence and Asylum Acts

In April 2007 a new extensive amendment to the Foreign Residence and Asylum Act reached the Parliament. This amendment proposes a series of changes, which, if passed, will have a very negative impact on the life of foreigners and their Czech family members, as well as on the standard of human rights in the Czech Republic.

Of special concern are the following proposed modifications to the law:

1) Dramatic worsening of the treatment of foreigners married to Czech citizens

a) The proposed modification of the Foreign Act will deprive those foreigners who married Czech citizens of the right to gain a permanent residence permit in the Czech Republic (paragraph 87h). Foreign spouses of Czech citizens will only have the right to get a temporary permit and only after two years apply for a permanent residence permit. That will give them a lower residence status, such as assigned to spouses of EU members- for example, a Russian wife of a Slovak citizen working in the Czech Republic.

-    In the first year of their marriage, couples will lose their right to receive social benefits, such as, child allowances, social supplement and/or housing assistance. If a child is born to the couple in the first year of residence of the foreign spouse, the parents will lose their right to get delivery and child benefits;

-   Many married couples will not receive health insurance (for example, foreign housewives will only have the right to buy a private insurance, which can be difficult to obtain if a person is seriously ill). It is very likely then that many foreign women will have to cover the costs of delivery; even though, they are giving birth to a Czech citizen (see paragraph 2 of the law no. 48/1997 Document about the General Health Insurance).

-    Spouses will not have the right to receive the state allowance in the form of the “building savings” (paragraph 4 of the law no. 96/1993 of the Document about “building savings”)

-   They will not have the right to buy properties (paragraph 17 of the Foreign Exchange Act)

-  Spouses of Czech citizens may encounter a problem finding a job without a work permit- obtaining a work permit takes at least 2 months and costs 2 500 CZK. When changing jobs, foreign spouses will have to get a new work permit (see paragraph 3 and paragraph 85 of the law no. 435/2004 of the Document about employment, which is very unclear)

-   Waiting period for Czech citizenship will be prolonged an additional 2 years.

This amendment to the law is justified by the Foreign Police and the Ministry of the Internal Affairs on the basis of eradicating the so-called fake marriages. However, it is not possible to agree with this argument, for the following reasons:

-     If someone abuses the law, it is not a reason to punish everyone;

-    The Foreign Police have currently both the authority and the obligation to uncover so-called “fake” marriages and cancel residence permits, if these were issued on the basis of “fake” marriages. The investigation of the “fake” marriages surely takes time and energy: it is necessary to question spouses separately, verify their statements, question their neighbors or acquaintances and in the end justify a decision of refusal. Therefore, one can assume that the police are trying to ease their job by proposing such changes to the law which will in turn radically influence the lives not only of foreigners, but also of their Czech spouses.

-  Proposed amendments to the law will not help to uncover “fake” marriages at all; it will only complicate it for another 2 years. If the police do not make the effort to uncover “fake” marriages, these people will obtain their permanent residence after two years anyway.

The real aim and consequence of this amendment is to ease the job of the officers at the Foreign Police Department and strengthen their power over foreigners and their Czech spouses. Issuing residence permits for foreign spouses on the basis of humanitarian reasons will only result in obscuring the work of the Foreign Police and increase the risk of corruption.

The amendment to the act is in conflict with the following principles:

-   non-discrimination and equal treatment: spouses of citizens of the EU member states (for example, an Algerian wife of a Frenchman working in the Czech Republic or a Ukrainian husband of a Slovak citizen studying in the Czech Republic) will have superior rights than spouses of Czech citizens although there are no grounds to justify this. It creates an unsubstantiated  privilege of EU citizens compared to Czech citizens.

-    support of the families of Czech citizens:  the state provides many family benefits, but on the other hand, it proposes drastic decrease of rights of mixed marriages (up to 4 600 families per year) in the first year of marriage, when young families need state support the most.

-   stability of the legal order and legal security: officers at the Foreign Police and the Ministry of the Internal Affairs are purposefully attempting to amend the law on foreign residence which will lead to further obscurity in the law.

-   unjustifiable deviation from a well-established tradition of the Czech Alien Law: spouses of Czech citizens have been issued a permanent residence permit ever since the beginning of the Permanent Residence Permit Institution in 1992. Similar to the German and Austrian legal systems, one of the few strong points of the Czech Foreign Act was a strong respect for family ties of Czech citizens

-    transparency of public administration: the amendment would strengthen the unaccountability of the work of the Foreign Police;

-    integration of foreigners: spouses of Czech citizens are exactly the kind of foreigners that should be invested in most. They should be assisted to integrate in Czech society, since it is highly probable that they will settle in the Czech Republic permanently.

b)  Stemming from the proposed changes to the paragraph 87, it follows that Czech citizens and their foreigner spouses will not only need to submit their marriage certificates to the Foreign Police but also prove that their marriage is not fake or one of convenience! While it is the Foreign Police, which should investigate suspicious cases on their own initiative, the state thus places the burden of proof on married couples to establish the true nature of their life together.

Every marriage, which means even the marriages of Czech citizens with foreigners, should be judged as genuine, unless there is a reason to believe otherwise. The amendment to the law aims at changing this principle and will result in the assumption that every mixed marriage is fraudulent unless the spouses themselves can prove that their life together is not contrived or artificial.

2) Changes to the Asylum Act: a significant step in changing the asylum system into a system of detention camps

a) The proposed modification to paragraph 73 of the Asylum Act strengthens the power of the Ministry of the Internal Affairs to detain asylum seekers in camps located near international airports, or in other camps. A new deadline will be established making it possible for this kind of imprisonment to continue for up to 6 months. The sole reason for putting asylum seekers into such detention facilities is based on the fact that they requested asylum at the airport and not at the land crossings.

b)  Paragraph 46a of the Asylum Act plans to allow the Ministry of the Internal Affairs to limit the freedoms to other asylum seekers as well, i.e. to those who are not being detained at airports. The reasoning behind this is based on the claim that they entered the Czech Republic illegally or remained in the country illegally. It is necessary to note that the vast majority of refugees who come to Europe to seek safe haven were forced to violate the residency rules of their destination countries. They did so because they could not enter the Czech Republic via proper channels given the nature of the threat they faced in their countries of origin.

c)  The amendment to the paragraph 67 of the Foreign Act limits the rights of the refused asylum seekers, who have been living in the Czech Republic for more than 4 years and who are often very well integrated into society, to apply for permanent residence. The right to re-apply for asylum has been in place for a short time - since 2003.

d)  The proposed wording of paragraph 124b of the Foreign Act charges the police with the obligation to restrict the freedoms of the refused asylum seeker at the end of the asylum proceedings, even in cases where the asylum seeker has not been notified about the results of the proceedings.

Despite certain concessions from the Ministry of the Internal Affairs- compared with the original, even more restrictive, measures- the proposed amendment still remains dangerous in the sense that it will:

-   treat all asylum seekers as simulators who are trying to abuse the asylum system and whose lives in the Czech Republic are thus to be made as unpleasant as possible, for instance, by the prison-like living conditions;

-   treat all asylum seekers as posing a threat against which the society must be protected despite the fact that there is no reason to claim so at present;

-   make the asylum proceedings into a pilgrimage of foreigners across various detention camps

-    create zones with lower standards of rights than in other parts of the Czech Republic where detainees are legally disentitled from their rights (like in the USA which is planning to detain asylum seekers in the notorious Guantanamo base).

Just like two decades ago, when Czechs themselves were flooding the refugee camps in Western Europe, the security organs of the Czech Republic are trying to demonize refugees and portray them as a security threat. Yet it is necessary to realize that imprisoning asylum seekers in detention camps will guarantee those who are trying to pass this change, i.e. the Ministry of the Internal Affairs, more money from the state budget and more job opportunities at the Ministry. Although the number of asylum seekers coming to the Czech Republic has been decreasing every year (on average 26% per year since 2004), the number of officers at the Asylum and Immigration Department at the Ministry of the Internal Affairs has been rising. Furthermore, Czech citizens are being persuaded that even more severe measures need to be taken.

3)      Canceling foreign residence permit cards

The proposed modification to paragraphs 86, 87z and 87aa of the Foreign Act is trying to establish an institution for “the cancellation of a foreigner’s place of residence”. The Foreign Police will have the right to cancel a foreigner’s permanent address, for example, based on information provided regarding accommodation which allows the foreigner to be registered as a resident at the Foreign Police. That is entirely in order. However, what is dangerous is the stipulation that by registering a foreigner with the Foreign Police, s/he will then automatically lose his/her residence permit card. Before a foreigner finds a new place to live, s/he will be without a residence permit card. This concerns citizens with a permanent residence permit and EU nationals.

It is necessary to add the following to these proposed changes:

-    This is a classic bureaucratic example of how to make life for foreigners more complicated. The EU forbids the Czech Republic to cancel the residence permits solely on the grounds that a foreigner lost his/her address of their place of residence. The police would be able to cancel residence permit cards which provide proof of legal residence;

-  If a Czech citizen loses a permanent residence address, s/he is registered at the address of their municipal office, which is then recorded on their ID cards. There is no reason not to apply the same procedure to foreigners who are living in the Czech Republic permanently or who are EU nationals;

-    Canceling residence permits of EU nationals is a discriminatory act and violates the European convention regarding free movement of EU citizens (no. 2004/38/ES, article 10, 19, 20).

During the time their residence permit cards are invalid, foreigners may encounter problems proving their right to reside in the Czech Republic (for example, when dealing with the authorities, when looking for a job, when getting mail or social allowances). They might even encounter problems upon entering the Czech Republic.

Prague

April 24, 2007

The NGOs and individuals signed below endorse this declaration:

The Council for Citizenship/Civic and Human Rights (Poradna pro občanství/Občanská a lidská práva)

Multicultural Centre Prague (Multikulturní centrum Praha)

Caritas, Czech Republic (Charita Česká republika)

The Independent Social-Ecological Movement (Nezávislé Sociálně Ekologické Hnutí)

The Council for Integration (Poradna pro integraci)

The Ukrainian Forum (Forum Ukrajinců)

The Ukrainian Initiative in the Czech Republic (Ukrajinská iniciativa v ČR)

Amnesty International

The Bridge for Human Rights (Most pro lidská práva)

The Center for the Integration of Foreigners (Centrum pro integraci cizinců)

Civic Association Dealing with Immigrants (SOZE)

Organization Helping Refugees (Organizace pro pomoc uprchlíkům)

People in Need (Člověk v tísni)

European Research on Religion

The Czech-Mongolian Organisation (Českomongolská společnost)

Counceling Center for Refugees (Poradna pro uprchlíky)

Centre for Migration Issues (Centrum pro otázky migrace)

Gender Information Center Nora (Genderové informační centrum Nora)

Word 21 (Slovo 21)

OBERIG

Gender Studies

Berkat

La Strada

Gender & Sociologie SOÚ AV ČR, v.v.i.

Tolerance and Civil Society (Tolerance a občanská společnost)

Center for Migration Studies (Centrum pro studium migrace)

Pavel Uhl, attorney

Yana Leontiyeva, The Sociological Institute of the Czech Academy of Sciences

Peter Moree, Theological Faculty, Charles University (ETF UK)

Dana Moree, Faculty of Humanities, Charles University (FHS UK)

For download