Asylum and Refugee Law: Contemporary European Developments
On Monday, 04/04/2022 the first session of the “Asylum and Refugee Law: Contemporary European Developments” seminar took place online, through the Webex electronic platform. This first meeting delved into issues of asylum law and international protection of refugees.
Assistant Professor at the University of the Aegean and Scientific Director of the Jean Monnet EuropeanEuropean Center of Excellence of the University of Athens, Ioannis Stribis, coordinated the discussion, in which participated as speakers Vassilis Christogiorgos, Special Associate in Protection Matters, UNHCR, Mariana Gkliati, Asst. Professor, Radboud University, and Eleni Spathana, lawyer with a specialization on Asylum and Immigration Law.
At the beginning, Professor Valinakis, President of the Jean Monnet European Center of Excellence of the University of Athens, conveyed greetings to the participants and emphasized the value of studying migration flows, especially during the ongoing Ukrainian crisis, which has so far generated more than 4,000,000 Ukrainian refugees and millions of internally displaced persons. According to Mr. Valinakis, the EU’s attitude towards the current crisis is significantly different compared to previous migration flows.
Mr. Vassilis Christogiorgos explained the fundamental terms of refugee law, based on landmark legal instruments, namely the 1951 Geneva Convention and the 1967 New York Protocol, and outlined the role of the UNHCR in protection matters. In his presentation, he defined and described the categories of mobile populations, as well as the criteria for international protection (refugee status and subsidiary protection) and highlighted the need to find a safe and long-term solution to the current refugee crisis.
Ms. Mariana Gkliati took the floor and analyzed the pressing issue of pushbacks and the forms they can take (land, sea and hot returns). She furthermore referred to the Libya-Italy-Malta triangle, the Greek case of Evros in 2020 and other specific cases. The speaker went on to outline the subsequent risks to human rights’ violations, and concluded with presenting legislative developments regarding refoulement practices.
Next, Ms. Eleni Spathana focused on the rights of recognized refugees once they abolish the representation of their country of origin and seek international protection. The speaker underlined the international, supranational and national protection regime, the difficulties refugees are faced with after their being recognized as such, and concluded by emphasizing the need to share responsibilities in managing refugee flows.
Finally, a discussion followed, during which the participants asked questions about the interviews of refugees upon arrival, the instances when refugees are excluded from international protection, and the determination of a safe third country.
On Monday, 11/04/2022 the second session of the seminar “Asylum and Refugee Law: Contemporary European Issues” was held online, via the Webex platform. Entitled “Common European Asylum System (CEAS): Creation- Evolution- Applicable Law”, it dealt with special issues of asylum and international protection of refugees law.
Coordinator of this session was Assistant Professor at the University of the Aegean and Scientific Director of the Jean Monnet European Center of Excellence of the University of Athens, Ioannis Stribis. Metaxia Kouskouna, Asst. Professor at the University of Athens, Faculty of Law, Evangelia Georgitsi, Islands Coordinator at the Directorate-General of Migration & Home Affairs of the European Commission, and Eleni Spathana, lawyer and expert on Asylum and Immigration participated as speakers.
Ms. Kouskouna took the floor first and offered an overview of the evolution of the European framework for asylum and refugees, based on the relevant articles of the Treaties (TFEU and TEU). The inclusion of asylum issues in the Area of Freedom, Security and Justice with the Treaty of Amsterdam, the establishment of the Common European Asylum System decided at the Tampere Summit, the Dublin II and III Regulations and the problems that arose during their implementation were analyzed next. Finally, reference was made to the 2016 EU-Turkey Joint Statement and the Greece-Germany Bilateral Agreement on readmissions.
Ms. Georgitsi presented the new regulation establishing the European Union Agency for Asylum (EUAA), which replaces EASO. The new Organization, EUAA -being a legal entity in its own right and not an Office, such as EASO- possesses legal personality, is charged with new tasks and supports EU member states in the management of asylum request flows. Special mention was made of the Organization’s external action through the Liaison Officers, who facilitate cooperation, information exchange and capacity-building in third countries (e.g., Moldova, Morocco).
The third speaker, Ms. Spathana, focused on the interpretation of the term “safe third country” introduced in the 1990s. The “safe third country” approach translates into transferring of EU responsibility to provide protection, an international legal obligation under the Geneva Convention, to third countries. The goal is the protection to take place outside the EU. The 2016 EU-Turkey Joint Statement is characteristic, since in this document the neighbouring country is identified as a safe third country. This means that refugees crossing the European/Greek border can be returned to Turkey, even though Turkey is not actually safe. Therefore, the issue of readmission under the umbrella of safe third countries is raised.
Q&As followed next, with questions on asylum shopping, the external dimension of supporting asylum procedures and the new position of the Coordinator in charge of the protection of Fundamental Rights in the new Organization.
On Thursday, 05/05/2022 the third meeting of the “Asylum and Refugee Law: Contemporary European Developments” seminar was held online, via the Webex electronic platform, with the title “New Pact on Migration – Armed conflict in Ukraine and developments in Asylum Law”.
The coordinator of the third seminar was Assistant Professor at the University of the Aegean and Scientific Director of the Jean Monnet European Center of Excellence, Ioannis Stribis. Maria Michelogiannaki, Legal Adviser at the Special Legal Service, Department of EU Law, Ministry of Foreign Affairs, Lila Siska, Policy Officer, European Commission, Directorate-General for Migration and Home Affairs, Kalliopi Stefanaki, Head of Protection Sector, UNHCR Greece Office, and Achilleas Skordas, Professor of International Law, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, shared their knowledge and insights with the participants.
The discussion began with Ms. Michelogiannaki, who decoded the current European asylum system, as well as the Commission’s proposals submitted in 2016 with the aim of reforming the CEAS. She then went on to describe the New Pact on Migration and Asylum as proposed in September 2020, the adoption of which requires the prior adoption of seven Regulations and two Directives, confirming its binding nature. Of course, the immigration crisis on the border with Belarus, which impedes progress so as for the New Pact to come into effect, was part of the presentation.
Ms. Siska presented the European Commission’s response to the migration wave towards the EU and other third countries (such as Moldova), as a result of the Russian invasion of Ukraine and the subsequent war this year. What should not go unnoticed is the unanimous decision of the Council to activate the Temporary Protection Directive, for the first time in the history of the EU, by virtue of which Ukrainians can immediately obtain a residence permit and have access to social services. In addition, the Commission is working towards providing correct information to refugees as well as European citizens, and is systematically combating misinformation.
The next speaker, Ms. Stefanaki described the refugee crisis in Ukraine, which so far counts 5.6 million refugees in neighbouring countries and thousands of IDPs. More particularly, she referred to the action undertaken by the UNHCR for the management of the crisis and the provision of humanitarian aid to Ukrainian refugees arriving on Greek soil, a large number of which enter Greece through its land border. She also made mention of the Temporary Protection Directive and the risks of trafficking and gender-based violence arising from the current crisis. It was furthermore stressed that today’s situation presents an excellent opportunity for European Solidarity to be further consolidated.
The last speaker, Mr. Skordas, focused on specific cases of migration. In some cases migrants are instrumentalized so as to put pressure on the EU. This is what actually happens in the current Ukrainian crisis. The International Court of Justice in the Hague condemned and issued an Order to stop the Russian attack. The order makes part of the overall innovative response of the international community to the crisis. Furthermore, the speaker explained the path towards the implementation of the Directive on Temporary Protection -its complex regime giving way to difficulties to arise. In the case of Ukraine the Directive has clearly taken effect, while some of the difficulties are removed.
The meeting ended with a discussion about the pre-screening process at non-certain Schengen entry points, and the EU supervision of the integration of new European jurisprudence at national level. In addition, clarifications were given on the Temporary Protection regime, the New Pact proposed by the Commission in 2020, and the Minsk Treaties.
On Thursday, 05/09/2022 the fourth meeting of the “Asylum and Refugee Law: Contemporary European Developments” seminar took place online, via the Webex electronic platform, on the topic “Asylum and Refugee Law: Application to Special Groups“.
The coordinator of the fourth meeting was Chrysafo Tsouka, Associate Professor at the University of Athens, Faculty of Law. Theodora Gazi, PhD in Law, Lawyer, Sotiria Kasnakoudi, Ministry of Migration and Asylum, Katerina Komita, Lawyer, and Sofia Zisakou, Lawyer, were the guest speakers.
Ms. Komita analyzed the crucial issue of “credibility” during the examination of international protection requests. The stages followed and elements taken into account for the evaluation of these requests were defined. Of course, during such examinations obstacles arise that are detrimental to the applicant’s credibility, while a special case are the victims of torture, who avoid to discuss their experience due to the bad memories they have. Finally, the speaker listed the usual reasons for which asylum applications are rejected. In order for international protection to be granted, applications must not only be supported by appropriate evidence but also thoroughly examined by the competent authorities.
Ms. Kasnakoudi described the administrative practices which are taken into account for stateless refugees and refugees who are unable to obtain a passport from their country of origin, drawing a clear distinction between the two categories. These persons are usually administratively invisible and do not enjoy fundamental rights enjoyed by citizens. The causes of statelessness, the current legal framework and the relevant procedures surrounding the granting of a residence permit to stateless persons in Greece were also explained. The issue of imaginary passports, passports that are not recognized by the rest of the EU, and the need for Greece to adopt a comprehensive approach to tackle the problem were discussed as well.
Ms. Gazi treated the issue of vulnerability in the European Court of Human Rights and the Common European Asylum System. First, the factors that define a person as vulnerable were delineated. The ECHR case-law perceives a group as vulnerable on a case-by-case basis with the basic principle that the people who belong to it are at risk of being discriminated against or harmed. Thus, the ECHR offers a broad interpretation of vulnerability. Regarding the Guidelines of the Common European Asylum System, vulnerable groups are explicitly mentioned and distinguished from applicants who need special procedural guarantees. Vulnerable asylum seekers may follow the fast-track/border screening procedure.
Ms. Zisakou raised the issue of the assessment of sexual orientation and gender identity in relation to the asylum procedure. These are private matters that can be defined only in a subjective manner. The only means of substantiating an applicant’s claims are their own statements. According to the UNHCR and the CJEU a person’s own statements of self-identification are but indicative. Special mention was made of the category of LGBTI rights and the reproduction of stereotypes during the gender identity judgment of asylum applicants.
Last, Q&As were about unaccompanied minors through the assessment process, how objective difficulties when interviewing asylum seekers can be overcome, and how credibility can be ensured.
The webinar “Asylum and Refugee Law: Contemporary European Developments“, which addressed issues of asylum law and international protection of refugees, was completed on Monday, 16/5/2022 with the fifth and last meeting entitled “Control of the implementation of the Asylum and Refugee Law”.
This last meeting was coordinated by Metaxia Kouskouna, Assistant Professor at the University of Athens, Faculty of Law. The speakers were Katerina Kotsopoulou, Judge, First Instance Administrative Court, Gianna Chatzihanna, Senior Attorney for the Attorney General of the Republic of Cyprus, Eleni Micha, PhD in Law, Faculty Member at the Law School of the University of Athens, and Maria Kontou, fmr Legal Adviser, European Commission.
The first speaker, Ms. Hadjihanna referred to how international protection law is implemented in the Republic of Cyprus. The country receives the majority of asylum applications in the EU and in terms of the profile of the applicants, most are economic migrants from sub-Saharan Africa. Recently, there has been an increase in arrivals from the occupied territories and through the green line. Specific examples of cases of rejected asylum applications were given, and the handling of each case by the competent authorities and courts was explained.
Ms. Kotsopoulou analyzed the amendments to the Greek legislation regarding asylum. More specifically, she explained the term “Safe Third Country” in relation to the 2021 Joint Ministerial Decision which recognizes Turkey as a safe third country for a number of nationalities. Based on the above, Turkey’s general modus operandi does not comply with the EU-Turkey Joint Declaration. Nevertheless, there are doubts as to whether Turkey is really a safe third country. Finally, the reasons for granting subsidiary protection were listed.
Ms. Micha analyzed thoroughly the asylum regime as defined in the European Convention on Human Rights. The Convention regulates protection issues and has relevant tools to control its implementation. The negative obligations of the Contracting Parties, such as the prohibition of refoulement, arbitrary detention, discrimination and mass deportations, as well as their positive obligations to provide substantive and procedural guarantees were also presented.
The last speaker, Ms. Kontou, presented the CJEU case-law on asylum issues. With the entry into force of the Treaty of Lisbon, a single regime of international protection was established in the EU. The “principle of solidarity” and the “principle of fair distribution” are thereby consolidated. The European Asylum Policy refers to both the granting of asylum and subsidiary protection, and is fully harmonized with the Geneva Convention and Universal and International legal instruments on human rights.
The seminar ended with a Q&A about the management of people who are not entitled to asylum or subsidiary protection due to crime. However, in any case the receiving state is bound by the obligation of non-refoulement and must keep them on its territory, where the individuals’ basic living conditions will be guaranteed. Clarifications were also given on the asylum procedures in Cyprus.