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New asylum laws bringing good and bad news for refugees
Thursday 6, September 2007
BUDAPEST, September 6 (UNHCR) - Currently, many of the countries along the eastern EU border are amending their asylum laws in line with an EU policy to harmonise asylum legislation among its member states. It is UNHCR's mandate and responsibility to make sure that international legal standards and best practice are reflected in those laws.
Unfortunately, experience has shown that this is not always the case. The transposition of EU Directives into national law has often been conducted in a selective manner aimed at restricting international refugee protection.
Transposition of EU Directives into national asylum laws is at different stages in the various countries: Slovakia's new asylum law has come into force on 1 January 2007, but more amendments are under way. Hungary is following next. The Hungarian Parliament adopted the new law just before its summer break. It will become effective on 1 January 2008. In Slovenia, a draft law has been submitted by the government and will be discussed in Parliament in October. In Poland, preparations to amend the law have been going on for many months and the draft law has been submitted to the Parliament. However, the legislative process might be halted due to the expected decision of the Parliament to hold early elections in autumn this year.
Lloyd Dakin, UNHCR's Regional Representative in Budapest sees two contradictory trends relating to refugees - a strong fear of foreigners coupled with the need for growing economies with ageing populations to open their labour markets to others, including asylum-seekers.
"Through various kinds of restrictions and hurdles many states try to make it as difficult as possible for asylum seekers to obtain refugee status. But we also see in the growing need for new workforce an opportunity for asylum-seekers and refugees to get jobs and be productive. We hope that this will increase their acceptance and make their integration easier."
UNHCR encourages governments to consult with its experts during the process of drafting new refugee legislation so that their knowledge may be put to good use from the very beginning.
Once draft laws are formally shared, UNHCR's legal experts in the Region and in Headquarters carefully review them and provide written comments and recommendations. They are usually discussed in detail with the governments having the final say in the content of the law.
Slovakia: Unclear stories may still be true
In Slovakia, the Government consulted closely with UNHCR experts during the drafting process and incorporated some of their comments and recommendations. Several months into the new law, UNHCR already sees a number of positive changes. The introduction of a subsidiary protection status proved a useful tool to positively resolve many cases, such as those of the majority of Iraqi asylum-seekers in Slovakia.
Another step forward was the opening of the labour market persons with subsidiary protection status and for asylum-seekers after one year of stay in Slovakia. Already now, many persons were able to find jobs and move out of government reception centres.
The transposition of EU Directives has not been concluded yet. The next amendments of the asylum law are in their final drafting stage. UNHCR's lawyers are very concerned about the fact that these amendments include a number of formal reasons why an asylum claim may be rejected as inadmissibly or "manifestly unfounded".
According to the draft law, no full asylum procedures will be carried out if the claim was lodged too late or if asylum-seekers provided "disconnected, contradictory or insufficient data."
UNHCR in its comments points out that there are many reasons why someone's story might seem jumbled, such as language difficulties, trauma suffered, cultural and gender barriers or even a general fear of authorities due to past experience at home. Therefore, it is a shared responsibility between the authorities and the asylum-seeker to ascertain all relevant facts and to resolve inconsistencies and misunderstandings.
"UNHCR hopes that these provisions will be still corrected in the final draft. Even if a refugee story is difficult to understand, it may still be true", says Dakin.
Hungary: Feeding only the well-behaved?
For persons who seek international protection in Hungary, the new law will bring a number of improvements. UNHCR especially welcomed the introduction of a subsidiary protection status for persons who do not qualify for asylum but still cannot be sent back to their country of origin for humanitarian or human rights reasons. Instead of being left in a legal vacuum, such persons will basically enjoy the same rights as recognised refugees when it comes to employment, health-care, social benefits and education.
Another welcome change is a restriction of detention of asylum-seekers. Whilst they could be kept in confinement for up to a year in previous times, under the new law this period should be limited to a few days at the beginning of the procedure.
However, there are some negative aspects as well. Under the new law, the use of false or forged documents by asylum-seekers may be a reason to withdraw protection. UNHCR urged the Government to keep in mind that refugees sometimes have no other choice but to use such documents during their flight. Asylum claims must not be automatically regarded as fraudulent just because an asylum-seeker had no access to genuine travel documents in his/her home country.
Another point of concern to UNHCR is the possibility to deny basic human needs such as accommodation, food and clothing to asylum-seekers who seriously violate the code of conduct at a reception centre. "Misconduct" may occur for very different reasons which have to be taken into account. Problems should not be tackled by refusing to house and feed asylum-seekers. UNHCR considers such treatment as degrading and dangerous, especially when families with children or persons with special needs are affected.
Slovenia's asylum-seekers mostly in detention?
In Slovenia, the new asylum law is the second major piece of refugee legislation to be proposed by the government in two years. In both cases, UNHCR was not involved in the drafting process, was given short deadlines to provide comments and found many worrying provisions in the proposed laws.
One of the most troubling provisions of the law from UNHCR's point of view is the unrestricted substitution of full-scale asylum procedures by accelerated procedures. According to international legal standards such abridged procedures are justified only in clearly abusive and fraudulent cases ("manifestly unfounded"). Nonetheless the Slovene draft law foresees accelerated procedures seemingly for all but "manifestly well-founded" claims and asylum applications by separated children or persons with special needs. Hence, only a small minority of asylum-seekers would have the benefit of a complete examination of their cases.
Formally, an asylum-seeker has the right to appeal against a negative decision in an accelerated procedure. However, he might already be back in the country of persecution when his appeal is decided as the authorities are entitled to remove him from the country during that time. UNHCR is specifically concerned about this provision since experience shows that over the years many asylum-seekers in Slovenia have only been recognized after the appeal.
Another point of concern is the widespread use of detention for asylum-seekers foreseen in the draft law. According to the proposal, the movements of all asylum seekers in accelerated procedures may be restricted. In combination, those two provisions may result in the detention of the vast majority of asylum-seekers, a clear breech of international legal standards.
Fleeing from persecution is not a crime. Hence asylum seekers should not be subjected to a treatment that societies normally reserve for criminals.
"The new proposed asylum law has not been adopted yet in Slovenia," says Regional Representative Lloyd Dakin. "and UNHCR will make every effort to persuade Parliament to improve it."
Job opportunities for asylum-seekers in Poland
The collaboration between UNHCR and the Polish authorities in the transposition of EU Directives has been good. A number of UNHCR's suggestions were included in the final draft sent to Parliament earlier this year for its approval. Among the improvements is the fact that persons with subsidiary protection would be allowed to fully participate in integration programmes. They would be eligible for rental subsidies and Polish language courses.
Another very encouraging point is the fact that the draft law fully strictly follows UNHCR's recommendations regarding detention of asylum-seekers.
A point of concern to UNHCR is the provision that some categories of asylum-seekers could be excluded from personal interviews during the asylum procedure.
Following a coalition crisis, the major political parties in the Polish Parliament announced their plans to hold early elections in autumn this year, which has put the consideration of new legislation on hold. It is not known what impact these developments will have on the draft law.
At the same time, an ordinance recently amended by the Ministry of Labour and Social Policy in Warsaw significantly simplifies access to the labour market for certain groups of foreigners. UNHCR is hopeful that this will lead to more employment for asylum-seekers and persons with subsidiary protection status.
UNHCR encourages higher standards
UNHCR's senior legal expert for the region, Leonard Zulu, is closely involved with the transposition of EU Directives into national asylum laws. "UNHCR welcomes the harmonisation as such," says Zulu. However, he points out an unfortunate trend. "Governments tend to go for the lowest possible asylum standards contained in the EU Directives and justify that by saying that they are meeting EU requirements."
"Therefore UNHCR keeps reminding governments that when they transpose EU Directives, they are allowed to introduce or retain more favourable standards than the absolute minimum," says Zulu.
Melita H. Sunjic in Budapest, Hungary