Protecting Romani refugees around Europe: a Position Paper by the EuropeanRoma Rights Center
5 December 2000
The post-1989 era has been punctuated by episodes in which groups of Roma have fled countries in Central and Eastern Europe and sought international protection. In many instances, reception of Romani refugees in the countries to which they have fled has been inadequate. Asylum in Europe has become a right often not available in practice, and much of the asylum system in Europe appears infected by racism in general, and anti-Romani sentiment in particular. On the occasion of the International Consultation on Roma Refugees and Asylum Seekers organised within the framework of the Organization for Security and Co-operation in Europe (OSCE) Implementation Meeting on Human Dimension Issues, this position paper presents ERRC concerns in the field of asylum and refugee protection, and provides a series of recommendations aimed at their remedy.
Principles: distinguishing immigration, individual establishment and asylum
Legislation regulating the status of non-citizens in any given country must be clearly divided into at least three categories: (i) laws regarding immigration and the status of immigrants and their families, including rules governing family reunification; (ii) laws regulating the status of persons who can demonstrate factual long-term residence in a given country, including rules governing family reunification; and (iii) legislation on persons fleeing persecution and therefore in need of international protection, including rules and guidelines for implementation of the 1951 Geneva Convention Relating to the Status of Refugees taken together with the 1967 New York Protocol Relating to the Status of Refugees (hereinafter "The 1951 Geneva Convention")1. Therefore:
- Laws on immigration should proceed from the recognition that migration is a fact. Restrictive laws have not been shown to reduce numbers of immigrants, but have demonstrably had a negative and humiliating effect on the lives of thousands of individuals in Europe in the past decade, as well as given rise to conditions under which many hundreds of persons have died2.
- In all countries of Europe, policies on persons already settled in a given country should be distinct from those regulating new immigrants3. Rules governing the extension of residence and other permits should never, for example, mandate that an individual leave the country to have them renewed and an individual's residence history should never be jeopardised due to missing deadlines for extension of such permits. Laws on family reunification should recognise that persons with no special disabilities of up to twenty-one years of age may be dependants, and that certain individuals may be life-long dependants. Additionally, rules on family reunification should be sensitive to cultural differences in the size and character of immediate families. Persons with factual residence in a country for more than five years should be provided with the option of applying for citizenship4.
- International protection from serious harm in one's country of origin is a basic human right. Persons who anticipate that they may face persecution on grounds of race, religion, nationality, political conviction or membership in a social group must be provided with refugee status under the 1951 Geneva Convention5. In Europe, persons ineligible for refugee status may nevertheless be able to avail themselves of protection under Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment6.
It is the position of the ERRC that recent grave threats in Europe to the right of individuals to access international protection from persecution in their country of origin have at least in part been caused by the failure of many European governments to provide legal regimes in the fields of immigration, individual establishment and integration in accordance with international law and human rights norms. This position paper addresses however only ERRC concerns in the area of asylum and international protection of Romani refugees.
Roma and asylum in Europe: present ERRC concerns
Many Roma are presently in flight from their country of origin. Romani individuals may be able to demonstrate a well-founded fear of persecution in their country of origin. Particularly at risk are:
- Roma from Kosovo: During the course of 1999, ethnic Albanians ethnically cleansed the greater part of the Romani population from Kosovo, and as of October 2000, Kosovo remains a very dangerous place for Roma7. In recognition of this fact, the international refugee agency United Nations High Commissioner for Refugees (UNHCR) has been advocating "[...] the recognition of Kosovo Roma as refugees or persons in need of international protection [...]8."
- Roma from countries in which cases of serious harm by public officials or members of racist groups have been reported: Roma have fled other countries of Europe, often due to the fear of physical attack by public officials or members of racist groups in their country of origin. Often such attacks remain without adequate judicial remedy. Countries in which serious incidents of violence against Roma have occurred in recent years include: Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, France, Greece, Hungary, Italy, Poland, Romania, Russia, Slovakia, Ukraine and Yugoslavia9.
- Roma unable to live with dignity in their country of origin due to extreme levels of discrimination: Roma face intense discrimination in many countries of Europe, in such areas as housing, education, employment, health care and social welfare. Many Romani children are placed in effectively segregated schools or classes, including classes for mentally disabled children. In some areas, unemployment of Roma rises near 100%. The UNHCR has made clear that refugees are not only those persons fleeing torture or other serious harm on racial, ethnic or religious grounds, but that non-violent discriminatory measures may also rise to the level of persecution10. Roma whose grounds for flight include the inability to earn a living due to anti-Romani discrimination may be refugees under the Geneva Convention. It is the position of the ERRC that Roma facing particularly desperate circumstances resulting from such discrimination should be provided with humanitarian protection.
The low levels of refugee recognition in Europe give rise to fears that European standards in the area of asylum and refugee protection are too strict to provide real and effective protection to those who need it. In recent years, Roma who have sought international protection due to anticipation of serious harm in their country of origin have often not received such protection, and even found it close to impossible to gain access to a fair and open procedure in which to have their claims heard11. Particularly disturbing examples of recent failures to protect Roma, as well as policy-level concerns pertaining to the ability of Roma to avail themselves of international protection where domestic protection has failed, follow:
- Some European countries, including Belgium, Denmark, Finland, Norway, Sweden and the United Kingdom have responded to the arrival of Romani refugees from other countries by imposing a visa regime on the country of flight, effectively hindering Roma who may be in need of international protection from having access to procedures in which to have claims heard.
- In several European countries, including Norway and the United Kingdom, there have been disturbing reports by non-governmental organisations that Roma who have applied for asylum have received identically-worded letters of rejection, suggesting that they may have not been provided with a substantive individual hearing.
- Many countries have applied extremely restrictive definitions of terms including "refugee" and "persecution". For example, Austria, France and Switzerland apply an interpretation of the Convention whereby persecution only takes place when it is tolerated or encouraged by the state12; the House of Lords, the United Kingdom's highest domestic instance of appeal in asylum cases has recently issued a ruling in connection with a Slovak Romani man seeking international protection which narrows the definition of persecution recognised in Britain13. The ERRC is of the view that persecution should be understood as a sustained or systemic violation of basic human rights demonstrative of a failure of state protection14.
- Some asylum authorities in Western European countries have ruled that Roma are ineligible for asylum because they should have sought so-called "internal flight alternatives" - i.e., fled to a different part of their country of origin - before seeking international protection15. This logic has especially been applied in the case of Romani asylum seekers from Romania, a country with a strongly regional character. Rulings of this kind are flawed because:
- they impose an element of hindsight which is not foreseen in the 1951 Geneva Convention and is not consistent with the real situation of persons forced to flee;
- they presuppose a situation in a given locality prior to the arrival of the individual at issue and are therefore counterfactual.
- Many member states of the European Union now apply so-called "manifestly unfounded claims" procedures to persons they believe are fraudulently applying for refugee status; in light of deeply ingrained prejudice in Europe regarding Roma as chronic liars, there are serious concerns that authorities dismiss legitimate claims for asylum lodged by Romani individuals.
- "Safe country of origin lists": Paragraph 8 of the European Union's non-binding "Resolution on manifestly unfounded applications for asylum" permits an application to be categorised as manifestly unfounded if the country is determined by the member state in question to be "one in which in general terms there is no serious risk of persecution" and many countries reportedly apply such "safe country of origin lists" with respect to countries where the situation of Roma is very serious in human rights terms. A Protocol to the Treaty of Amsterdam, signed in October 1997, defines other member states of the European Union as safe countries of origin for asylum purposes and provides that applications for asylum from nationals of one member state in another member state will only be considered or declared admissible in very limited circumstances16. Taken together, policies on "manifestly unfounded claims" and "safe countries of origin" give rise to a very serious risk that Roma may be "refouled17".
- Another reason frequently brought as justification to deny Roma access to an adequate asylum procedure is that the refugee applicant has passed through another member state of the European Union on the way to the country in which she has applied for international protection and therefore that that country is the country responsible for the asylum claim18, or more frequently, that the asylum applicant has passed through a so-called "safe third country" outside the European Union19. On the latter grounds, for example, during the course of 1999, Finland issued decisions ruling inadmissable the asylum applications of hundreds of Slovak Romani refugees, on grounds that they should apply for refugee status in the Czech Republic, over the explicit protests of the ERRC due to concerns about the human rights situation of Roma in the Czech Republic20. According to non-governmental organisations in Finland, the Helsinki Administrative Court agreed with the Directorate of Immigration of Finland that the Czech Republic21 and Hungary22 were "safe third countries" for the Romani applicants.
- Some European countries, most notably the United Kingdom and Hungary, have resorted to the arbitrary detention of Romani asylum seekers, according to asylum-support groups in Britain in an effort to intimidate them out of pursuing asylum claims. According to reports, British authorities frequently offer no justification for detention of persons who have applied for refugee status and there is no appeal allowed against the administrative decision to detain23. Other countries, including Norway, separate family members while awaiting refugee decisions, and house applicants for asylum in isolated parts of the country.
- On at least one occasion in the United Kingdom, authorities have issued removal orders prior to promulgation of a final decision (in the case at issue, pertaining to a Czech Romani asylum seeker, the applicant was later granted asylum in Britain)24
- Some European countries impose fines on airlines, ferry services and other carriers if aliens arrive without proper documents in a vehicle operated by them. In the United Kingdom, such fines are reportedly reimbursed to carriers only if the person who arrived illegally receives asylum status, putting considerable pressure on carriers to take the lead in preventing even threatened categories of persons from entering Britain25. In the case of Roma, British authorities appear to have additionally demanded from carriers the provision of information on race: according to reports in the domestic and international media, in October 1999, employees of Czech Airlines stated that British immigration officials had requested information on the ethnicity of Czech citizens travelling to Britain on Czech Airlines flights and they had been providing it, marking lists with "G" for "Gypsy", "for years".
- Some countries appear to have altered asylum practice and/or law as a direct result of the arrival of groups of Romani asylum seekers; Canada for example introduced quasi-precedential "lead cases", designed to guide the decisions of adjudicators in Hungarian Romani asylum cases, to its system of asylum claims, following the arrival of several hundred Roma from Hungary who applied for international protection. No such "lead cases" had previously been applied for any group of asylum applicants in Canada. Similar concerns â€? that countries have amended legislation as a direct result of the arrival of Romani refugee claimants â€? have been expressed with respect to recent amendments to Finnish law26.
- In many countries, including the United Kingdom, interpreters provided to Romani asylum claimants are unintelligible or only partly intelligible to Romani asylum seekers, leading to instances in which applications for asylum have been dismissed because the applicant contradicted herself; in Spain, in many instances according to local NGOs working with asylum seekers, no interpretation is provided to Roma who have applied for refugee status.
- Finally, some European countries are incapable of protecting Romani refugees because they have inadequate legal regimes regulating the protection of refugees. For example, as of May 9, 2000, some European states, including Belarus, Moldova and Ukraine, had not yet ratified the 1951 Geneva Convention; Turkey continued to impose geographical limitations to its application as of that date.
Effective protection has also been denied in the particularly serious case of Roma from Kosovo:
- Austrian protection of Kosovars has taken place through a system whereby refugees were recruited abroad - primarily in Albania and Macedonia - during the 1999 NATO bombing of Kosovo. Following the cessation of bombing in June 1999, Austria ceased the programme, although ethnic cleansing of Roma from Kosovo by ethnic Albanians began after the end of the bombing; effectively, Austria has refused to recognise persecution of Roma in Kosovo.
- More disturbingly, on several occasions in 1999 and 2000, Germany has expelled Roma to Kosovo.
- There are presently thousands of Roma from Kosovo in Macedonia. The Macedonian government has not, however, provided Roma from Kosovo with refugee status under the 1951 Geneva Convention and has repeatedly set deadlines for the entire group to leave Macedonia.
- According to information provided by local refugee advocacy organisations, in individual decisions, Hungarian authorities have not recognised that Roma suffer persecution in Kosovo and have not recognised that the situation of Roma in Kosovo has been different from that of ethnic Albanians. The ERRC is not aware of a single positive decision in Hungary recognising Romani individuals as suffering persecution in Kosovo.
All over Europe, many Roma from Kosovo presently live in extremely precarious circumstances and many live under the threat of expulsion and possible removal to Kosovo.
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Additional ERRC concerns in the area of refugee reception in countries of exile pertain to responses by public authorities and the media:
Authorities, including high-ranking government officials, have responded to the arrival of Roma in flight, especially Roma fleeing countries of Central and Eastern Europe, by making comments that can at best be characterised as irresponsible.
- For example, following the arrival of Romani refugees to Belgium, Prime Minister Guy Verhofstadt was quoted in the daily Het Laatste Nieuws on September 20, 2000, as referring to the Roma as "illegals". Minister of Social Integration Vande Lanotte was also quoted on "the issue of illegals" in the daily De Morgen, on 21 September 1999. Another article, published in the daily De Standaard on September 24, quoted a local official from the town of Tienen as stating, "There are some of them who want to stay here, who want to learn Dutch and look for a job. But they're Gypsies, most of them just loiter about."
Media in many European countries have similarly contributed to local anti-Romani sentiment following the arrival of Romani refugees.
- For example, during the Kosovo crisis, the Italian media played shamelessly on popular anti-Romani sentiment. For example, a front-page article in the popular Italian weekly Panorama of August 22, 1999, was entitled "Mama, the Gypsies are Coming!" Another article, which ran in the daily Il Sole-24 Ore of August 31, 1999, expanded on the difficulties of returning Kosovo Romani refugees and emphasised that "the Roma were able to pay the high price of their illegal transportation thanks to the dirty money they received by burying both Serbian and Albanian victims in mass graves." The daily Corriere della Sera went so far as to complain in a headline on July 22, 1999, that "The United Nations is Against Italy" because it was not assisting with the rapid expulsion of Kosovo Romani refugees.
- Similarly, in the United Kingdom, beginning March 9, 2000, the British press ran a series of intensely racist articles on Roma, especially Romani beggars from Romania. Although it was unclear whether any of the Roma concerned had applied for asylum in Britain, the tabloid daily Sun linked the issue of "Gypsy beggars from Romania" to ongoing public debates on refugees in Britain: "Britain has become the laughing stock of Europe for giving asylum seekers huge handouts while our own people struggle. [...] Why are so many Romanian gipsies being allowed into Britain when their country is not even at war?" Following the arrival of several hundred Romani asylum applicants from the Czech Republic in October 1997, usually serious British dailies such as The Guardian and The Independent played with racist stereotypes by publishing headlines such as, "Gypsies Invade Dover, Hoping for a Handout", "They Speak little English, But Know Exactly How to Play the System" and "The Travellers Have Developed New Tactics".
* * *
Finally, there have been disturbing reports that authorities in countries from which Roma have fled have undertaken measures intended to prevent or discourage by threat the further flight of Romani individuals27. For example:
- In Autumn 1999, according to reports by local non-governmental organisations, Slovak authorities detained or otherwise harassed individual Romani activists and interrogated them as to their involvement in "organising ethno-tourism".
- According to interviews conducted by the ERRC in February 2000, Hungarian officials were, as of that date, routinely stopping Hungarian citizens with airline tickets to Canada whom they perceived to be Rome at the Budapest airport and in some cases preventing them from leaving the country on grounds that they did not have enough money.
Related concerns: violations of the rights of de facto refugees
Collective expulsion: Some European countries, including Belgium, Germany and Italy, have in recent years collectively expelled Roma28 For example, in October 1999, Belgium expelled 74 Romani asylum seekers from Slovakia, following press hysteria and racist pronouncements by leading Belgian politicians, and evidently ignoring a faxed request by the European Court of Human Rights not to proceed with expulsions until the case could be adequately reviewed. On March 3, 2000, Italian authorities reportedly expelled to Bosnia fifty-six Roma detained during raids on two Romani settlements in Roma. According to a recent report by Amnesty International, members of the group were later physically abused by ethnic Serbs while attempting to go to prior places of residence in the Bosnian "Republika Srpska" entity.
Failure to integrate: In certain cases throughout the 1990s, authorities have put pressure on Roma who had earlier been provided with protection to return to their country of origin, despite their very long periods of stay in the country of exile. This was especially true of Bosnian Roma in Germany; most fled Bosnia in the early 1990s shortly before or after the outbreak of genocidal ethnic war in Bosnia. Following the signing of the Dayton Peace agreement in 1995, German authorities in 1996 began to assist Bosnians in returning to Bosnia, as well as to apply pressure for them to leave Germany. Often methods of applying pressure were intense and in some locations, measures included group arrests conducted in the middle of the night. Many Roma, especially Roma who had fled areas now located in the Serb entity of Bosnia known as "Republika Srpska", did not return to Bosnia however, and by 1998 non-governmental organisations in Germany were reporting that any person who considered it safe to return to Bosnia had already done so. By this point, many of the Romani refugees had been in Germany for periods of up to seven years and many had children born in Germany; nevertheless, authorities continue to issue only temporary protection - substantively only a stop on expulsion - for periods often as short as three months.
One particularly egregious case of failing to respect effective ties to the country of exile pertained to a Romani woman named Marie Pascher who was born in Austria in 1963 to a woman who had fled Hungary during the anti-Soviet uprising in 1956 and been provided with the group protection made available to Hungarian citizens at that time. In 1995, Austrian authorities informed Ms Pascher that she would have to go "back to Hungary" (a country in which she had never set foot with a language which she did not speak) in order to apply for a visa as a first time visitor to Austria, since her protection status had run out. Despite having lived in Austria all of her life, at the age of 32, Ms Pascher had no legal status in Austria. It is the position of the ERRC that the repeated issue to an individual of temporary protection status with no integrative component for periods of years is inhumane and arguably violates Article 8 of the European Convention of Human Rights, guaranteeing respect for private and family life.
- Without delay, and with the objectives of alleviating pressure on the international system of refugee protection and bringing legislation into conformity with international law, European governments should assess and remedy the significant deficiencies in domestic and EU law in the fields of immigration, individual establishment, family reunification and the rights of long-term factual residents.
- States which have not yet signed the 1951 Geneva Convention should do so without delay, and states which impose geographical limitations on refugee recognition should lift them.
- Roma who can demonstrate a well-founded fear of persecution in their country of origin on grounds of race, religion, nationality, political conviction or membership in a social group should be provided the international protection guaranteed them under the 1951 Geneva Convention. In the present circumstances, all Roma from Kosovo should be provided Convention refugee status.
- It is impossible for states to comply with their commitments under the 1951 Geneva Convention if individuals are unable to have access to a fair hearing of their asylum claims. Practices aimed at preventing individuals, including Romani individuals, from having access to a fair and unbiased asylum procedure should be discontinued forthwith. Practices which at very least should be carefully reviewed include:
- Imposition of visas to prevent arrival of potential asylum seekers
- Efforts to delineate areas of airports, train stations or other border facilities as "international territory" to preclude applications for refugee status29
- So-called "manifestly unfounded claims procedures"; these should be limited to determining whether or not the individual at issue is already receiving protection in another state
- So-called "safe country-of-origin" lists specifying countries from which applicants for asylum will be considered to have "manifestly unfounded claims"
- So-called "safe third country" rules stipulating that applicants for asylum status must apply for refugee status in the first safe non-EU country in which they arrive
- Arbitrary detention of persons seeking refugee status
- In applying the 1951 Geneva Convention, states must recognise that the character of persecution often entails non-violent measures by non-state state actors; at issue is a sustained or systemic violation of basic human rights demonstrative of a failure of state protection.
- Reference to and dependence on so-called "internal flight alternatives" by asylum adjudicators should be discontinued.
- Without delay, the European Union should revoke the "Protocol on asylum for nationals of member states of the European Union" to the Treaty of Amsterdam. EU member states that apply policies of rejecting without consideration applications for asylum by nationals of other EU member states should abandon these policies forthwith.
- Protection should always consist of more substantive rights than a mere temporary ban on expulsion. Regardless of whether individuals have been provided with Convention refugee status, are in the process of review to determine a refugee claim, are sheltered under a group protection scheme, or have not managed to secure any form of legal status whatsoever, authorities should recognise that persons who have fled their country of origin and spent periods of more than six months in a country of exile are already forming ties to that country; efforts to remove them may violate Article 8 of the European Convention of Human Rights, protecting private and family life. Rights should accrue incrementally to all persons factually in a given country, and within five years of factual residence in a country, the possibility of citizenship and/or permanent residence status should come clearly into view. All domestic legal provisions stipulating forms of protection should include an augmentation of rights over time, including in the short term the right to work, and ultimately participation in local decision-making and access to citizenship.
- Authorities in countries of refugee exile must refrain from irresponsible or inciteful comments about Romani refugees, especially during periods in which groups of Roma arrive and claim asylum, giving rise to the possibility of outbreaks of local anti-Romani actions. High ranking officials have a responsibility for promoting understanding of racism and racist persecution and under no circumstances should aid and abet ethnic hostility30.
- Media should exercise the responsibility required in democratic societies and refrain from inciteful descriptions of individual Roma or groups of Romani asylum seekers, including referring to claims as "fraudulent" or "bogus" prior to their full and fair hearing by asylum adjudicators, and to the groups themselves as an "invasion", "deluge", "horde" or any other of the poetic descriptions applied in recent years to Roma who have fled their country of origin.
- According to Article 1A(2) of the 1951 Geneva Convention, a refugee is an individual who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable or, owing to such a fear, unwilling to avail himself of the protection of that country [...]”.
- See UNITED for Intercultural Action, European network against nationalism, racism, fascism and in support of migrants and refugees, “Asylum-Seekers Death Toll Rises to 2000”, press release, June 14, 2000, http://www.united.non-profit.nl.
- As the Council of Europe’s European Commission against Racism and Intolerance (ECRI) has noted, with respect to Austria, “[...] it should be made clear that immigration policies are not the same as policies dealing with immigrants already living in a country, and politicians should at the very least engage themselves to ensuring that immigrant groups already living in Austria are treated in a fair and decent manner.” See European Commission against Racism and Intolerance (ECRI), “ECRI’s Country-by-Country Approach: Report on Austria”, June 1998, http://www.ecri.coe.int/en/02/02/05/e020205120.htm#1.
- The European Convention on Nationality, in effect since March 1, 2000, mandates that in setting conditions for eligibility for citizenship, laws pertaining to naturalisation “[...] shall not provide for a period of residence exceeding ten years [...]”.
- The European Council, meeting in Tampere, Finland, on 15 and 16 October 1999, concluded, “The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement.” See “Presidency Conclusions, Tampere European Council 15 and 16 October 1999”, pt. 13. “Non-refoulement” — the right not to be returned to a situation where there are reasonable grounds to anticipate that one will be persecuted — is provided under the 1951 Geneva Refugee Convention at Article 33(1). The European Council meeting at Tampere was a special meeting of heads European Union member states to discuss justice and home affairs issues.
- See for example Ahmed v. Austria, judgment of 17/12/1996, REF00000587, published in Reports 1996-VI.
- On information about the human rights situation of Roma in Kosovo, see http://errc.org/publications/indices/kosovo.shtml.
- See United Nations High Commissioner for Refugees (UNHCR), “UNHCR Statement to the 57th Session of the Committee on the Elimination of Racial Discrimination: Thematic Discussion on Roma, 15 August 2000”.
- On the situation of Roma in individual countries in Europe, see http://errc.org/publications/indices/cindex.shtml.
- According to the UNHCR handbook, “[...] in certain circumstances [...] discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.” Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reedited, Geneva, 1992 (hereinafter “UNHCR Handbook”).
- A recent report by the Parliamentary Assembly of the Council of Europe identified four types of restrictive policies and practices: “i. those designed to prevent undocumented travellers from arriving in Council of Europe member states at all, whether genuine asylum seekers or not; ii. measures designed to expedite the consideration of applications by those asylum seekers who do manage to reach their destination or to shift the determination procedure to other countries; iii. restrictive interpretation of international refugee law, and in particular the refugee definition; iv. deterrence measures taken to make life uncomfortable for asylum seekers awaiting a decision.” (See “Council of Europe Parliamentary Assembly report on restrictions on asylum in the member states of the Council of Europe and the European Union”, Doc. 8598, 21 December 1999, pt 3).
Although responsibility for particular failures to protect Roma in flight reside with states, there are significant concerns surrounding legally binding conventions as well as non-binding resolutions adopted at an interstate level by the European Union (EU) in the course of efforts to “harmonise” asylum practice by European Union member states. Of particular concern are the legally binding “Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities — Dublin Convention” adopted on June 15, 1990 and in effect from 1 September 1997 (hereinafter “The Dublin Convention”); the non-binding “London Resolutions” of 30 November and 1 December 1992 (the “Resolution on manifestly unfounded applications for asylum”, the “Resolution on a harmonised approach to questions concerning host third countries” and the “Conclusions on countries in which there is generally no serious risk of persecution”); and the “Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term ‘refugee’ in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees” adopted on 23 November 1995 and formally approved March 4, 1996 (on the Internet at: http://europa.eu.int/eur-lex/en/lif/reg/en_register_19103020.html, hereinafter “EU 1996 Joint Position”). Especially the “Resolution on a harmonised approach to questions concerning host third countries”, combined with the threat of withholding financial support or delaying accession to the European Union, has meant that restrictive asylum policies in the EU have spilled over into states bordering on the Union and other candidate countries for accession to the EU (see especially Guild, Elspeth, “The Impetus to Harmonise: Asylum Policy in the European Union” in Nicholson, Frances and Patrick Twomey eds., Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge University Press, 1999, pp. 313-335; Lavenex, Sandra, Safe Third Countries: Extending the EU Asylum and Immigration Policies to Central and Eastern Europe, Budapest: Central European University Press, 1999; Noll, Gregor and Jens Vedsted-Hansen, “Non-Communitarians: Refugee and Asylum Policies” in Alston, Philip ed., The EU and Human Rights, Oxford University Press, 1999, pp. 359-410).
- See for example, Messara, France, Counseil d’Etat, Decision No. 167195, Nov. 22, 1996: “A state only bears legal responsibility for harms which it voluntarily encourages or tolerates.” In addition to the countries listed above, German appeals courts have struck down decisions of lower courts which have applied a less strict standard (see Bundesvervaltungsgericht, 15 April 1997 (9 C 38.96) and 2 September 1997 (9 C 40.96)). The restrictive view was taken up by the European Union in its EU 1996 Joint Position, which states, “Persecution is generally the act by a state organ (central State or federal States, regional and local authorities) whatever its status in international law, or parties or organs controlling the State. [...] Persecution by third parties will be considered to fall within the scope of the Geneva Convention where it is based on one of the grounds in Article 1A, is individual in nature and is encouraged or permitted by authorities. Where the official authorities fail to act, such persecution should give rise to individual examination of each application for refugee status, in accordance with national judicial practice, in the light in particular of whether or not the failure to act was deliberate. [...]” (see EU 1996 Joint Position, 1996, Parts 5.1 and 5.2). Notably, Denmark and Sweden dissented: “In relation to the origins of persecution, Denmark and Sweden are of the opinion that persecution by third parties falls within the scope of the 1951 Geneva Convention where it is encouraged or permitted by the authorities. It may also fall within the scope of the Convention in other cases, when the authorities prove unable to offer protection.” (EU 1996 Joint Position, at Annex II). The UNHCR also criticised this aspect of the EU 1996 Joint Position, in a press release stating that the UNHCR “has serious reservations about the new European Union resolution which it believes erodes refugee principles and could leave large numbers of refugees without adequate protection... [the Joint Position] will allow states to avoid recognising as refugees people persecuted by ‘non-state agents’ such as rebel groups or extremist organisations.” (see UNHCR Press Release, “UNHCR Expresses Reservations over EU Asylum Policy”, 24 November 1995). Persecution by third part agents has to date formed a substantive portion of many Romani claims for asylum.
- See “House of Lords Opinions of the Lords of Appeal for Judgment in the Cause Horvath v. Secretary of State for Home Department, 6 July 2000”. Notably, New Zealand, a member of the British Commonwealth which usually follows British asylum precedent, has explicitly refused to apply the standards set by the Horvath judgment (see Refugee Status Appeals Authority of New Zealand, “Refugee Appeal No. 71427/99”, decision of 16 August 2000).
- This wording is from Hathaway, James, The Law of Refugee Status (1991) and is becoming embedded in international jurisprudence on refugees, together with the recognition that the standard for assessing refugee claims are the international human rights conventions. For example, in rejecting the standard set by the Horvath decision, the New Zealand Refugee Status Appeals Authority held, “ Addressing the persecution element of the definition, the view taken by the Supreme Court of Canada in Ward at 733 was that underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. The passage which follows begins with the relevant recital from the Preamble to the Convention and concludes with the adoption of the analysis by Professor Hathaway that persecution may be defined as the sustained or systemic denial of basic human rights demonstrative of a failure of state protection:
Considering that the Charter of the United Nations and Universal Declarations of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p.108, thus explains the impact of this general tone of the treaty on refugee law:
The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.
This theme sets the boundaries for many of the elements of the definition of “Convention refugee”. “Persecution”, for example, undefined in the Convention has been ascribed the meaning of “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”; see Hathaway, supra, at pp.104-105”.
 The Authority has [...] followed the example of the Supreme Court of Canada and adopted the formulation offered by Professor Hathaway in his seminal text, The Law of Refugee Status (1991) at 104, 108 that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard. That is, core norms of international human rights law are relied on to define forms of serious harm within the scope of persecution. In his text at 106, Professor Hathaway initially identified the relevant core human rights as those contained in the so-called International Bill of Rights comprising the Universal Declaration of Human Rights, 1948 and by virtue of their almost universal accession, the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966. However, for the reasons Professor Hathaway has more recently and persuasively given, to the International Bill of Rights there should now be added the Convention on the Elimination of All Forms of Racial Discrimination, 1966 (CERD), the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) and the Convention on the Rights of the Child, 1989 (CRC). See James C Hathaway, “The Relationship Between Human Rights and Refugee Law: What Refugee Law Judges Can Contribute” published in The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary (Proceedings of the 1998 Conference of the International Association of Refugee Law Judges, October 1998) 80, 85-90. We respectfully agree with this analysis and would only add that while the hierarchy of rights found in these instruments is not to be rigidly or mechanically applied, it does assist a principled analysis of the persecution issue.” See Refugee Status Appeals Authority of New Zealand, “Refugee Appeal No. 71427/99”, Op. cit.
- Paragraph 8 of the EU 1996 Joint Position states: “Where it appears that persecution is clearly confined to a specific part of a country’s territory, it may be necessary, in order to check that the condition laid down in Article 1A of the Geneva Convention has been fulfilled... to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move.” Paragraph 7 of the “Resolution on manifestly unfounded applications for asylum” contains similar provisions. The UNHCR Handbook explicitly rejects this approach: “The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.” (see UNHCR Handbook, para. 91).
- See “Protocol on asylum for nationals of member states of the European Union”, OJ, 1997, C340/103.
- The “Resolution on minimum guarantees for asylum procedures” of the Justice and Home Affairs Council of Ministers of the European Union, 20 June 1995, does not apply to procedures deemed “manifestly unfounded”.
- See the “Dublin Convention”, Op. cit.
- See the “Resolution on manifestly unfounded applications for asylum” (one of the “London Resolutions” of 30 November 1992), Op. cit.
- See European Roma Rights Center letter to Mr Paavo Lipponen, Prime Minister of Finland, September 27, 1999, on the Internet at: http://errc.org/publications/letters/1999/fin_sept_27_99.shtml.
- On the situation of Roma in the Czech Republic, see ERRC materials at: http://errc.org/publications/indices/czechrepublic.shtml, including the ERRC Country Report, A Special Remedy: Roma and Schools for the Mentally Handicapped in the Czech Republic, June 1999.
- On the situation of Roma in Hungary, see materials at: http://errc.org/publications/indices/hungary.shtml.
- Detention for reasons other than those enumerated in Article 5(1) of the European Convention of Human Rights (ECHR) is illegal. The Parliamentary Assembly of the Council of Europe has recommended that “detention of asylum seekers should be avoided as far as possible in favour of non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems.” See “Council of Europe Parliamentary Assembly report on restrictions on asylum in the member states of the Council of Europe and the European Union”, Doc. 8598, 21 December 1999.
- The Committee on the Elimination of Racial Discrimination has recently expressed similar concerns with respect to Finland: “The Committee expresses its concern that in some cases the new accelerated procedure in the revised Aliens’ Act would result in the repatriation of an asylum seeker while his or her appeal is still pending.” (See “Concluding observations of the Committee on the Elimination of Racial Discrimination: Finland. 09/08/2000. CERD/C/57/CRP.3/Add.3. (Concluding Observations/Comments)”) on the Internet at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.57.CRP.3.Add.3.En?Opendocument. Several hundred Roma from Slovakia fled to Finland in June 1999.
- Britain’s liability standard is strict, imposing fines even on carriers such as lorry drivers who are not aware that a person may concealed in their container.
- See for example Tageszeitung, 02.06.2000, “Die finnische Regierung verschärft das Asylrecht. Insbesondere Roma aus Osteuropa sollen innerhalb kürzester Zeit wieder abgeschoben werden” and Associated Press Newswires, “European Gypsies face fast eviction with tighter immigration law”, 10.07.2000.
- The Universal Declaration of Human Rights states, at Article 13(2), “Everyone has the right to leave any country, including his own, and to return to his country.”
- Collective expulsions are banned under Article 4 of Protocol 4 to the European Convention of Human Rights.
- This practice has been explicitly ruled in contravention of the European Convention on Human Rights by the European Court of Human Rights: “Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. [...] Despite its name, the international zone does not have extraterritorial status. [...]” (See Amuur v. France, decision of 25/06/1996, REF00000573).
- The Committee on the Elimination of Racial Discrimination has recently recommended, with direct reference to the United Kingdom, that “the State party take leadership in sending out positive messages about asylum seekers and in protecting them from racial harassment.” (See “Concluding observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland. 18/08/2000. CERD/C/57/CRP.3/Add.9. (Concluding Observations/Comments)”) on the Internet at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.57.CRP.3.Add.9.En?Opendocument.