The Fiction of Harmonised Safety

The Fiction of Harmonised Safety

Written by Martin Rozumek

For Ruslan and Issa, the accession of the Czech and Slovak Republics to the European Union brought additional hardships. Both Ruslan and Issa are refugees fleeing the wide scale persecution of Chechens in the Russian Federation.

In Ruslan's case, he decided to leave Chechnya with his wife and three children after Russian soldiers killed his father. He had already given up hope for the return of his brother Magomed from detention in the Russian military base in Chankala. Ruslan was just an ordinary young Chechen in contemporary Russia; he has never been involved in any military or political activities for the liberation of Chechnya from Russian administration. But for the Russian security forces that are heavily present in the officially declared stabilising Republic within the Russian Federation, being an ordinary Chechen young man is enough to brand you as a suspected target. Ruslan's problems only increased once he made it to European soil. In hopes of applying for asylum in Austria, Ruslan passed through Slovakia after the 1^st May 2004. According to the wider European Union's policies in the area of freedom, security and justice, Ruslan's should have sought protection and a new life in Slovakia, a safe country for asylum seekers.

Issa has been even less successful in applying for asylum in Austria, where his brother was already recognised as a refugee. Like Ruslan, Issa got stuck in yet another supposedly safe new EU Member State: the Czech Republic.

As of 1 May 2004, the Czech Republic, Slovakia and other 8 new EU Member States are obliged to implement the so called EU Dublin 2 Regulation. The Regulation establishes which EU Member State is obliged to assess asylum claims submitted in one of the 25 Member States of the EU. In practice, usually the first state of the asylum seeker's entry to the EU territory is the one responsible for reception of the given asylum seeker and determination of his refugee status. In the past, the results of the Dublin Regulation were poor due to the lack of evidence that the applicant was present in another EU State before submitting his asylum claim in a subsequent State. This changed significantly with the introduction of the EURODAC Regulation establishing a joint EU database of fingerprints and identification data (which entered into force in 2003). Together, these two EU Regulations give EU Member States a sound legal basis for sending asylum seekers to countries of their first registration, such as Poland, Slovakia, Italy, Spain or Greece. Disadvantages of the improved “transfer” regulation are obvious: burden shifting instead of burden sharing; asylum seekers forced to stay in countries they did not want to stay; and reception shortfalls in countries creating the external EU border. In addition, the transferral costs, often repeated transfers of same persons, are very high.

Ruslan rightly understood that his life and the lives of his family members would not be safe in Slovakia. In 2004, the Slovak authorities have granted refugee status to a grand total of 2 asylum seekers, a shocking figure in light of the 9.025 refugees who requested asylum in Slovakia between January first and the end of September 2004. The UNHCR branch office in Slovakia expressed its concern over the low recognition rate and said: “The system is not fully in line with the EU standards.” Noteworthy is the fact that refugees from Chechnya constitute the most numerous national group in the population of asylum seekers in Slovakia. A leading Russian human rights NGO and perhaps the only agency to publicly speak out about this issue, Memorial stated that every asylum seeker of Chechen origin must be granted international protection in any form, a statement made before the Beslan tragedy. It is also important to mention that vast majority of the asylum seekers left Slovakia before any decision about their asylum claim was made. As such, according to the Dublin Regulation, these asylum seekers should be sent back Slovakia to start the process again (or to be more ironic “to play asylum roulette again”).

This was exactly the case of Ruslan. Austrian asylum officials decided in an accelerated procedure that Ruslan must be sent back to Slovakia. In order to prevent asylum seekers from escaping Dublin transfers, the responsible Austrian authorities detain the asylum claimants who are going to be taken back the responsible EU Member State. Facing detention and the transfer to Slovakia, Ruslan went underground. With the support of a few Austrian NGOs, he managed to hide himself before the transfer to the allegedly “safe third country” Slovakia by concealing himself in different locations in Vienna. Meanwhile, the NGOs alarmed Austrian authorities and launched a media campaign with the clear message: “Ruslan would not be safe in Slovakia”. Thanks to their efforts, Ruslan was finally granted asylum in Austria. Moreover, later this year the Austrian Constitutional Court decided to remove controversial parts of the Austrian Asylum Act regarding the suspensive effects of appeals and provisions on detention of rejected asylum seekers who submitted appeals against the first instance decisions.

Issa in the Czech Republic has not been so lucky. The Czech Aliens Police caught him on his way to Austria. The police officials in Ceske Budejovice decided within few hours to expel him from the Czech territory and immediately put Issa in detention center to enforce the expulsion order. The police did not give special consideration to the fact that Issa was a refugee from Chechnya or that his brother was a recognised refugee in Austria. Finally, Poland was charged with the responsibility of assessing Issa's refugee claim as he had stayed in Poland before entering the Czech territory. Nevertheless, Issa quickly made it clear to OPU lawyers visiting the detention centre in Balkova: “Well, send me back to Poland as soon as possible and I make another try to get to my brother in Vienna. I know you will never recognise me as a refugee and I cannot stay in Poland either.”

The idea of harmonised standards of safety for all asylum seekers in EU Member States is fiction: it does not work. Almost nobody is recognised as a refugee in Slovakia. Poland introduced a detention system for nearly all asylum seekers in the country instead of holding them in open accommodation centres. Greece terminates the determination procedure for all asylum seekers who leave the country. Thus, in the case of Dublin transfers, Greece is clearly not going to look at the protection needs of returned asylum seekers. The Czech Republic traditionally belongs to countries with the lowest recognition rate in Europe (1.2 % during 2000 and 2004) and is unlikely to change its ranking any time soon. Italy returned a thousand of asylum seekers from Lampedusa last month without even looking at their asylum claims. Germany proposed the ridiculous idea of processing asylum claims in Libya or Morocco without considering jurisdiction issues in such centres or what to do with recognised and rejected asylum seekers, how long to hold them in the closed detention facilities or even how to make Libya sign the Geneva Convention. The Conservative Party in Britain encourages the UK to shirk some of its obligations under the Geneva Convention. This kind of Europe is not a safe haven for refugees in the 21^st century!

One must admit that the EU has no plan for dealing with immigration and asylum, as last week's Luxembourg summit demonstrated. The EU Member States justice and home affairs ministers again reiterated the need for a common asylum system as of 2010, but the only mutual agreement among them was the one about restriction measures and the fight against illegal immigration, organised crime and terrorism. The current state of EU Asylum Acquis is far from Tampere's promise of a full and inclusive application of the Geneva Convention and the EU as an area of freedom, security and justice. The “transfers systems”, be they Dublin or joint processing centres inside or outside the EU, are not the right answer to the immigration problems of the European Union today.

The European Union needs to understand that you can not force asylum seekers to stay in a country in which he or she has no ties nor prospective of being recognised as a refugee, and later integrated in the host society. If it does not, we will have more cases like a man returned for the seventh time from Berlin to Italy. A system that would reimburse costs to states admitting significant numbers of asylum seekers and refugees should be created. The EU must fight illegal immigration but not create higher and higher walls around Europe hoping that the neighbouring state will be more affected by migrants who always manage to find their ways to the Western Europe. Rather, a transparent system of legal immigration must be established as an answer to the failed immigration policy and as a possible solution to the emerging problem of ageing populations. The EU must face the threats of terrorism but it does not mean that everyone from Middle East or Northern Africa is a potential terrorist and it is necessary to return him home already from the airport in Prague with no consideration of his asylum claim. The Geneva Convention itself excludes terrorists and criminals from international protection. The EU approach of enhancing protection in regions of asylum seekers' origin is certainly right though not original: UNHCR has been operating protection programs in Africa or Asia for decades. However, if someone in the region is found to be in need of international protection, the EU Member States must put in place resettlement programs, which they are reluctant to do today. Constructive discussions on how to help genuine refugees enter the EU and how to integrate them better in their new societies are also needed. In order to protect better fundamental rights of people within the European Union, an EU “Fundamental Rights Agency” must be established soon.

It is unavoidable that the EU external policy and the EU policy towards third country nationals must be seen from a completely different angle. The EU needs to shift from restrictive state security policies towards assuming a leading role in promoting democracy and respect to human rights. And, in turn, it needs to recognise that foreigners and refugees are not a threat to Europe but an asset if managed and protected in a humane and effective way.

The author is the Executive Director of OPU - Organization for Aid to Refugees.