Immigration Barristers' Blog

The Court of Justice of the European Union has given an Opinion on what constitutes an 'act of persecution' for the purposes of recognition of refugee status for asylum seekers.

Under minimum standards established for all member states, the recognition of refugee status requires that the third country national concerned faces a well-founded fear of persecution in his country of origin for reasons of race, religion, nationality, political opinion or membership of a particular social group. The concept of an act of persecution covers serious acts which, on account of their nature or repetition, constitute a severe violation of basic human rights, in particular indefeasible rights.

The Federal Administrative Court of Germany had asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of the directive.

In his Opinion, Advocate General Bot recalled that the aim of the common European asylum system is not to grant international protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the conventions on the protection of human rights in his country of origin, but limits the recognition of refugee status to an individual who may be exposed to persecution in his country of origin, that is to say a serious and intolerable attack on his person and, in particular, his indefeasible rights, and whose life has become intolerable in that country.

Therefore, the Advocate General states that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ within the meaning of the directive where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom in his country of origin, runs a real risk of being executed or subjected to torture, or inhuman and degrading treatment, being reduced to slavery or servitude, or being prosecuted or imprisoned arbitrarily.

In that context, it is for the authorities responsible for examining the application for asylum to verify specifically the rule invoked in the country of origin and the repressive practice in a broad sense.

Recent data released by Eurostat, the statistical office of the European Union, has revealed that the number of asylum applicants registered in the EU27 rose to 301 000 in 2011.

It is estimated that around 90% of these were new applicants, and around 10% were repeat applicants. In 2010, there were 259 000 asylum applicants.

In 2011, the main countries of citizenship of these applicants were Afghanistan (28 000 or 9% of the total number of applicants), Russia (18 200 or 6%), Pakistan (15 700 or 5%), Iraq (15 200 or 5%) and Serbia (13 900 or 5%).

In 2011, the highest number of applicants was registered in France (56 300 applicants), followed by Germany (53 300), Italy (34 100), Belgium (31 900), Sweden (29 700), the United Kingdom (26 400), the Netherlands (14 600), Austria (14 400), Greece (9 300) and Poland (6 900). These ten Member States accounted for more than 90% of applicants registered in the EU27 in 2011.

In some Member States, a large proportion of the applicants came from a single country. The Member States with the highest concentrations were Poland (63% of the applicants came from Russia), Latvia (52% from Georgia), Luxembourg (44% from Serbia), Lithuania (43% from Georgia), Bulgaria (39% from Iraq) and Hungary (38% from Afghanistan).

In 2011 in the EU27, 237 400 first instance decisions were made on asylum applications. There were 177 900 rejections (75% of decisions), 29 000 applicants (12%) were granted refugee status, 21 400 (9%) subsidiary protection and 9 100 (4%) authorisation to stay for humanitarian reasons.

EU Commissioner Malmström has issued a statement welcoming the European Council adoption of a common position on the Joint EU resettlement programme.

In his statement, the Commissioner says: “This is a much needed measure and a considerable step towards concrete engagements and increased cooperation regarding resettlement of refugees to Europe and will allow us to pool our resources and make a true difference in a spirit of solidarity."

2012 is the deadline for setting up the Common European Asylum System which will guarantee common minimum standards and procedures, and a uniform refugee status. A stronger engagement in resettlement also forms an integral part of the EU common asylum policy.

The Joint EU Resettlement Programme will increase the impact of the EU resettlement efforts in providing protection to refugees and maximising the strategic impact of resettlement through a better targeting of those persons who are in greatest need of resettlement.

The Resettlement Programme will specify a broader list of refugees whose resettlement will qualify for EU funding. There will also be specific EU resettlement priorities, specifying the nationalities of refugees and the countries from which resettlement should take place as a priority and for whom EU funding is available. In 2013 that list will include refugees from Congo, Iraq, Afghanistan, Somalia, Burma and Eritrea. Finally, the programme offers additional financial incentive for the countries that start to engage in resettlement activities.

For the period 2014-2020, the Commission proposes to set up a new mechanism which will be more flexible and attractive for the Member States and which will allow for more strategic use of resettlement. This should lead to a substantial increase in resettlement to the EU. The aim is to see more national resettlement schemes established and to increase the already existing ones.

A new report by The Children’s Society has revealed alarming levels of destitution among refugee, asylum-seeking and migrant children and young people.

A rising number of children who have nowhere to live - and no source of financial support - are turning to The Children’s Society for help. Between April and September 2011, more than a third of young refugees supported by The Children’s Society's New Londoners project were destitute - compared with 14% in the previous year (2009-10).

Young people who were destitute reported serious illness and mental health problems. Some young people self-harmed and attempted suicide. Other young people have even been forced into sexual relationships in exchange for shelter or food.

Destitute families with very young children, but no access to work or welfare support because of immigration restrictions, are living in severe deprivation for long periods of time, in some cases for several years.

The Children’s Society is calling for immediate action to make sure that children and young people in the immigration system are not forced to live in destitution. It is also calling for the government to urgently review the levels of support provided so that children and young people seeking protection are not forced to live in absolute poverty and despair.

The Independent Chief Inspector of the UK Border Agency, John Vine CBE QPM, has published his thematic inspection report of the UK Border Agency's Detained Fast Track (DFT) system.

The term 'Detained Fast Track' is used by the UK Border Agency to manage asylum applications that have been identified as ones where a decision to grant or refuse asylum can be made quickly.

The Chief Inspector was pleased to find that 93% of the decisions made by the Agency to refuse asylum were upheld by the independent Tribunal. However, he was concerned to find that:

• the DFT was not working as quickly as intended with decisions not being made until 13 days after a person's arrival in the DFT, despite the Agency's published aim of three days;
• 38% of the sampled refusal cases took longer than three months to remove;
• screening was not tailored to capture information that could fully determine whether someone was suitable for the DFT; and
• despite the cost of the detention and the impact on individuals, the Agency had not conducted or published any analysis of its DFT operation.

The European Court of Human Rights has ruled that Omar Othman (Abu Qatada) cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The applicant, Omar Othman, is a Jordanian national who was born in 1960 near Bethlehem, then part of Jordan. He is currently detained in Long Lartin prison, Worcestershire, England. He is suspected of having links with al-Qaeda.

Mr Othman arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act, and in August 2005 he was served with a notice of intention to deport him to Jordan.

Mr Othman appealed against that decision. He had been convicted in Jordan, in his absence, of involvement in two terrorist conspiracies in 1999 and 2000. Mr Othman claimed that, if deported, he would be retried, which would put him at risk of torture, lengthy pre-trial detention and a grossly unfair trial based on evidence obtained by the torture of his co-defendants.

The UK Special Immigration Appeals Commission (SIAC) dismissed his appeal, holding in particular that Mr Othman would be protected against torture and ill-treatment by the agreement negotiated between the UK and Jordan, which set out a detailed series of assurances. SIAC also found that the retrial would not be in total denial of his right to a fair trial.

The case then went to the Court of Appeal and the House of Lords, and in February 2009 Mr Othman lodged an application with the European Court of Human Rights. The European Court has now ruled that in the absence of any assurance by Jordan that the torture evidence would not be used against Mr Othman, his deportation to Jordan to be would be a violation of Article 6 (right to a fair trial).

A report issued by Maggie Atkinson, Children's Commissioner for England, has revealed that an agreement in existence between the UK and France regarding the treatment of unaccompanied children entering the country was in conflict with the UK Border Agency's (UKBA) duty to safeguard children and promote their welfare.

It also uncovered excessive periods of detention prior to release into local authority care due to the number and length of immigration interviews undertaken at the point of arrival.

The 'Landing in Dover' report results from an investigation by the Office of the Children's Commissioner (OCC) into the treatment of unaccompanied children asylum seekers when they first arrive in the UK. It has already led to changes in the way UKBA treats children seeking asylum.

The 'Gentleman's Agreement' enabled unaccompanied children to be sent back to France within 24 hours if they did not immediately ask for asylum. This resulted in a significant failure of child protection. Just over 1,700 unaccompanied children that entered the country in 2010 sought asylum, whilst a number of those returned to France under the Gentleman's Agreement may have been trafficked for exploitation. Investigations by OCC have found children seeking asylum include those escaping war zones and persecution. They are often hungry, ill, exhausted and distressed when they first arrive.

Once the Children's Commissioner brought the Agreement to the attention of Rob Whiteman, UKBA's new Chief Executive, he ended the practice in respect of children immediately.   

Other recommendations in the report which aim to improve the immigration process for children include:

• Using face to face interpreters and stopping the use of telephone interpreters for interviews other than for gathering basic details about the child's identity.
• Exploring ways in which the police can gather bio-data such as finger prints on UKBA's behalf when they are the first agency to encounter children who have just entered. This would enable them to arrange for the child to go directly into local authority care rather than to the immigration office for processing.
• Ensuring that when immigration interviews do take place that the child has had the chance to gain support from a legal representative and that their representative is able to accompany them, along with a Responsible Adult, to the interviews.

The European Commission has adopted a communication on "Enhanced intra-EU solidarity in the field of asylum" which seeks to reinforce practical, technical and financial cooperation, move towards a better allocation of responsibilities and an improved governance of the asylum system, and to contribute to the finalisation of the "Common European Asylum System" (CEAS) by 2012 (a deadline set by the Stockholm Programme).

The CEAS aims to set up a common area of protection and solidarity based on a common asylum procedure and a uniform status for people who have been granted international protection.

The Commission has proposed to reform the legislative framework which will form the basis of the CEAS - it consists of three Directives and two Regulations. The European Parliament and the Council have recently adopted the first of these proposals, the Qualification Directive, on 24th November 2011.

The other instruments (the Asylum Procedures Directive, the Reception Conditions Directive, the Dublin II Regulation and the EURODAC Regulation) are still under intense negotiations with the European Parliament and the Council.

The European Parliament has approved the Commission's proposal to amend the Qualification Directive which will enhance the rights granted to refugees and beneficiaries of subsidiary protection in the EU. The Directive guarantees uniform rights when it comes to health care and access to the labour market.

The European Court of Human Rights has recently ruled that a local authority was justified in not treating with priority a social housing request by an immigrant, whose son was conditionally allowed to stay in the UK.