P.R. “International Protection Law – Asylum and Subsidiary Protection: application to special groups”
Online Seminar “Asylum and Refugee Law: Recent European Developments”
4th Meeting: “International Protection Law – Asylum and Subsidiary Protection: application to special groups”
On Thursday 18 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the third meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this meeting was “International Protection Law – asylum and subsidiary protection with regard to special groups”.
The meeting was coordinated by Dr Ioannis Kourtis, Ph.D. in European Law and postdoctoral researcher at the Law School of the University of Athens. Dr Kourtis first welcomed the speakers and attendees to the meeting, and then made a short introduction to the meeting’s subject.
The first speaker, Ms Chrysafo Tsouka, Associate Professor at the Law School of the University of Athens, examined the subject of the protection of the stateless persons -a vulnerable group that, due to the fact that they are not protected by any state, are in need of special protection. The 1954 UN Convention relating to the Status of Stateless Persons is the principal legal instrument whereby the definition of a “stateless person” is given: the term means a person who is not considered as a national by any state under the operation of its law. Ms Tsouka emphasized that the protection of these persons is an important international obligation. The 1954 Convention establishes a framework for the international protection of stateless persons, while other legal instruments -such as the 1961 UN Convention on the Reduction of Statelessness, the 1997 Council of Europe Convention on Nationality and the 1989 UN Convention on the Rights of the Child- set forth rules for the national lawmaker as to how nationality should be acquired and lost with a view to prevent statelessness.
Apart from the aforedescribed de jure stateless persons, whose status is regulated by the 1954 Convention, there exist the de facto ones, namely, persons who are formally considered to be nationals of a state, but in essence do not enjoy the protection and assistance of its authorities. In the relevant discussion about this type of statelessness it has been maintained that the de facto stateless persons should also fall under the 1954 Convention.
The Convention enshrines a wide array of rights that stateless persons shall enjoy, covering their personal situation and social protection, and ensuring their employability. It furthermore introduces administrative measures, such as the issuance of identity and travel documents by the contracting states, and the prohibition of expulsion, which are prerequisites for the actual enjoyment of the rights. The right of stateless persons to lawful residence is not explicitly enshrined in the Convention. Prof. Tsouka expressed the view that, notwithstanding the silence of the text, this right should be recognized for two reasons: a real and a legal one. Firstly, without the right to lawful residence, stateless persons are in danger of becoming a roving population, thus rendering the protection from the Convention a dead letter. Secondly, from a legal point of view, the recognition and implementation of the rights provided by the Convention will be impossible to materialize. However, as the speaker suggested, the right to lawful residence is tacitly implied in the prohibition of expulsion, which is expressly recognized in the Convention.
The rights from the 1954 Convention are complemented by more recent legal provisions, the most prominent of which are those of the Council of Europe Convention on Human Rights. The main obstacle to the effective implementation of the 1954 Convention is that neither the latter nor the 1951 Geneva Convention on refugees provide for a statelessness determination procedure. And, while the refugee Convention is complemented by a plethora of national and EU laws on the criteria for international protection, the majority of states do not have legislation for stateless persons in place. The fact that there is no such procedure means that the 1954 Convention cannot be implemented. Consequently, the status of the stateless persons should be determined by either migration or international protection law. This does not mean that all stateless persons could be recognized as beneficiaries of international protection, because statelessness does not always result from fear of persecution, while the criteria for migrants are much stricter than those for beneficiaries of international protection or stateless persons. Therefore, the absence of a statelessness determination procedure runs counter to the implementation of the 1954 Convention.
Despite the fact that Greece has not ratified the 1961 UN Convention on the Reduction of Statelessness, Greek law prevents statelessness from occurring. The most important legal provision is that jus sanguinis is complemented by jus soli, meaning that, children who are born on Greek soil and do not acquire citizenship of any other state at birth, they acquire the Greek one. However, the fact that there is no statelessness determination procedure under Greek law, results in the non implementation of the 1954 Convention, in spite of the fact that Greece has ratified it. A positive step has been taken with art. 26a of the Code of Greek Citizenship which foresees the determination of statelessness of those who apply for citizenship by naturalisation. In the same vein, art. 5d requires a 3-year lawful residence in Greece, instead of a 7-year one required for non-stateless persons who wish to be naturalised. The speaker remarked that the mere announcement of the determination procedure in art. 26a is not supplemented by any other legal provision, and does not cover all stateless persons, but only those who apply for Greek citizenship by naturalisation.
Professor Tsouka made a negative assessment of the Greek legislative framework in respect of the above issues because, as a result of the standing provisions, the 1954 Convention is not implemented, while the provisions per se contravene the spirit of international law that stateless persons should be protected in their own right and not as refugees or migrants, notwithstanding the fact that the status of international protection takes precedence over statelessness. However, in cases where the international protection criteria are not met, problems arise due to the lack of effective procedure for the determination of statelessness. In this manner, the international legal instrument on the protection of stateless persons is rendered void. In closing her presentation, Prof. Tsouka suggested ways to overcome the problem: the Greek lawmaker could draw inspiration from EU legislation and the UNHCR Handbook for the interpretation and implementation of the 1954 Convention.
The second speaker, Dr Fedon Varesis, Ph.D. in Law and postdoctoral researcher at the Law School of the University of Athens, delved into how children are protected within the legal framework of international protection. He first presented the general principles of child protection at the international level. The most important legal instrument is the 1989 UN Convention on the Rights of the Child (CRC), ratified by Greece by Law 2101/1992. It regulates state obligations in relation to the protection and promotion of the rights of the child, such as the right to a name, a nationality, identity, family relations, family reunification and the right to know and be cared for by his or her parents. In addition to the above, the CRC imposes on states the obligation to protect children from abduction, deprivation of liberty (arrest, detention or imprisonment), maltreatement, child labour, trafficking and other forms of exploitation and violence. It furthermore establishes the right to education, social welfare and private life. The key notion of the CRC is the best interests of the child (art. 3), which includes the enjoyment of rights provided not only by the Convention, but also by other legal texts on human rights, e.g., the Convention on the Rights of Persons with Disabilities, which foresees (art. 7) state obligation to take all necessary measures for the full enjoyment of rights by children with disabilities, the 1951 UN Convention on Refugees and the Council of Europe Convention on Human Rights.
As far as primary EU law is concerned, the protection of the rights of the child is among the aims of the EU (art. 3 TEU), while the Charter of Fundamental Rights (CFR) contains detailed provisions on children’s rights (e.g., right to receive free compulsory education, prohibition of age discrimination and child labour). The Charter reiterates the fundamental principles on the rights of the child, such as the freedom of expression, the best interest of the child and the right to maintain a personal relationship and direct contact with both his or her parents. Secondary EU law comprises legislation on children’s data, asylum and migration and judicial cooperation in civil and criminal matters.
The inherent vulnerability of the child is aggravated in situations of armed conflict, migration or lack of a guardian, which are likely to lead children to marginalization and exclusion from the enjoyment of their rights. When the child is an asylum seeker, international protection is granted whether unaccompanied or accompanied, because a child is vulnerable by definition. Regarding the substantive aspects of child protection in international protection law, art. 22 of the Geneva Convention recognizes the right to education. It does not make mention of the principles of family unity and reunification with respect to children that are family members of a refugee, but the Final Act of the Conference urges governments to take all necessary measures towards the protection of the refugees’ families.
EU law, and especially secondary and the CEAS, abounds with provisions on international protection. Greek Codified Law 4939/2022 incorporates many of these provisions, including those on vulnerable groups in general and children in particular. The protection of children in precarious conditions is concretized in the guarantee that, notwithstanding the precarity, children will fully enjoy their rights. Instances of substantive protection are the principles of non discrimination, enshrined in the CRC and the Council of Europe Convention on Human Rights, and family protection and child reunification with his/her parents, laid down in the Dublin III Regulation. The best interests of the child, enshrined in the CRC, is expessis verbis proclaimed in the Greek Codified Law 4939/2022 as well, and is exemplified in the provisions on reception (access to education by admission to primary and secondary school units, access to healthcare and social services). Another substantive aspect is protection from violence, abuse, ill-treatement and exploitation, proclaimed in both the CRC and the Council of Europe Convention on Human Rights.
The procedural aspects of protection are the specific procedural guarantees that are necessary because of the inherent vulnerability of the child. They refer to the procedure to be followed in the framework of international protection. Firstly, the procedure must be adapted to the child’s special needs, and all relevant information must be child-friendly (Directive on international protection procedures and Greek Code on reception – Law 4939/2022). The latter also refers to unaccompanied and separated minors, who must be placed under the supervision of an adult member of the child’s extended family, if the child’s best interest is thus served, or under legal guardianship (art. 66), while they must be legally represented by specially appointed guardians. Furthermore, the reception conditions Directive explicitly defines that the age assessment process must be accurate, reliable and be conducted in full respect of the child’s dignity and private life. Also, the provisions of the Asylum Regulation and Dublin III Regulation on safe third countries and safe countries of origin must be implemented and interpreted with a view to ensuring children’s rights as well as their best interests.
Dr Varesis then presented the procedural aspect of protection that he considers the most important one, but whose ramifications are of substance as well: the obligation of states that arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time (art. 66 of the Greek Code on reception). Alternative measures must be sought (supervised release, open reception centers, placement with host families). In case of detention, conditions must comply with international standards and ensure the enjoyment of the widely accepted and recognized rights of the child.
In concluding his speech, Dr Varesis once more emphasized the utmost importance of the strict observance of the provisions on the rights of the child in the field of international protection because of his/her vulnerability and especially in precarious conditions. The legal texts (international, EU, national) establish a comprehensive framework for children’s rights in general and in international protection in particular. It is of vital importance that states fully abide by these texts.
The third speaker, Ms Sophia Zisakou, Attorney-at-Law, Ph.D. candidate in Sociology of Law, Lund University, examined the asylum procedure from the angle of sexual orientation and gender identity. In her introductory remark, she explained that the assessment of credibility in asylum applications is two-fold: it for one concerns sexual orientation and gender identity, and -for another- the asylum seeker’s account of events relating to (potential of past) persecution. Needless to say, the second part is common to all asylum applications, but the first one, the assessment of credibility of sexual orientation and gender identity, is a particularly complicated issue. This is because there are no documents nor evidence, but also because it pertains to private life, is a question of self-determination and it can change. As a result, it is highly dubious whether it can be assessed by a third person. As for whether the person’s statement of self-determination suffices to establish its credibility, the CJEU has ruled that it does not, and that it only marks the procedure’s starting point, while according to the UNHCR it is an indication.
The CJEU’s judgment on the practices followed by national authorities, is that questions about the person’s sexual activities violate the right to private life, while the position of the UNHCR is that such practices contravene the rights to dignity, private life, integrity of the person and the prohibition of inhuman or degrading treatment. Furhtermore, the CJEU pronounced that an assessment that is based on stereotypes (previous different-sex marriage, knowledge about and participation in LGBTQ organizations, knowledge of legislation that penalizes homosexuality in the country of origin) should not be the only reason for rejecting an asylum application because rejection solely based on stereotypes would not be in compliance with the obligation of individual assessment of applications under the CEAS (art. 4.3 Directive 2011/95) -notwithstanding the fact that the Court recognized that stereotypes can be useful in the assessment process. The UNHCR holds the view that, depending on how it is implemented, the above practice could be violating human rights. The speaker stressed that, in the absence of well-established case-law by the CJEU, the practice is still in use.
On the same matter of state practices for credibility assessment of LGBTQ asylum applications, Ms Zisakou referred to evidence such as photographs, sexual content videos and medical and psychological tests. The CJEU has ruled that such practices violate the right to dignity, while the evidence per se has no probative value. The UNHCR’s stance is that such practices violate other rights as well (dignity, but also integrity of person, prohibition of inhuman or degrading treatment). As a result of the CJEU decision, the practice has been to a large extent abandoned.
The last practice that Ms Zisakou analyzed, was the belated disclosure of sexual orientation or gender identity (e.g., in a later application or at the stage of appeal). The CJEU and the UNHCR concur with each other in that the sole delay is not a valid reason for rejecting asylum applications.
In their efforts to comply with the CJEU judgements, the states abstained from using the above practices, and developed others instead, which are based on stereotypical representations of gender and sexuality -what is termed as ‘second-generation stereotypes’: e.g., questions about the moment when the person realized their sexual orientation and about their emotions. Although these practices have not been judged as illegal by judicial organs, they have been strongly criticized by theory because they are exemplifications of stereotypical, reductionist approaches, while the process of becoming aware of one’s own identity is not linear and common for all. What is more, second-generation stereotypers seem to ignore the connectivity among sexuality – gender – educational level – social class. For instance, the ability to describe feelings and abstract notions such as the process of realization and acceptance, is directly linked to educational level, while women, due to their assigned roles in patriarchal societies, experience greater difficulties in expressing themselves.
At the stage when the applicant’s well-founded fear must be established, two main issues arise. The first one is if the mere penalization of homosexuality can establish such a fear. The CJEU has ruled that it can not, but the relevant legal provision must additionally be implemented. The UNHCR on its part holds the view that each case should be examined ad hoc, and in relation with the severity of penalty and the real conditions in the country of origin. This CJEU judgment has also been criticized because there is no safe criterion for a legal provision to be characterized as one being implemented or not, given the lack of written information, the possibility of de facto implementation or revival, and the homophobic climate in general that negatively affects the person’s mental health.
The second issue that arises at the stage of establishing fear, is if it can be expected from a person to conceal their sexual orientation -after being returned to their country of origin or third country- in order to avoid persecution. Both the CJEU and the ECHR have unequivocally ruled that such an expectation would be unlawful, while the UNHCR’s standpoint is in line with the above rulings.
The fourth speaker, Ms Theodora Gazi, Ph.D. in Law and post-doctoral researcher at the Law School of the University of Athens, Attorney-at-Law, elaborated on the protection of vulnerable groups in the field of international protection. Ms Gazi remarked that all individuals can at some point in their life be characterized as vulnerable. Personal indicators of vulnerability are, for example, age, health, psychosomatic issues, loss of autonomy or control of one’s own life as a result of forced displacement from the country of origin. On the other hand, the vulnerability of a group (collective) is a result of systemic factors, like restricted access to basic necessities such as accommodation, employment, education and justice, material deprivation, prejudice, stigmatization and negative attitude of society against a particular group. Both asylum and migration law include provisions on vulnerability, but their importance is greater in the former, because migrants move under more favourable conditions compared to the forced displacement of refugees. The vulnerability of asylum seekers is also linked to feelings of uncertainty because of the long and complex asylum procedure, of potential refoulement to the country of origin, and of the possibility of arrest or detention for illegal entry in the country in which they request asylum. In the field of human rights protection, potential vulnerability on the one hand, and violations of fundamental human rights enshrined in international Conventions on the other, are examined in parallel.
The Council of Europe Convention on Human Rights does not make mention of neither vulnerable individuals nor vulnerable groups, and does not provide a definition of the term”vulnerability”. Its conceptualization derives from the case law by the European Court of Human Rights (ECHR), and more specifically from the ad hoc recognition of vulnerability of each applicant (combination of facts, personal circumstances and social conditions). According to the ECHR, vulnerable groups include, e.g., children, people with disabilities, the Roma community, asylum seekers, aliens in need of international protection, HIV-positive people, detainees, the LGBTQ community, victims of domestic violence or human trafficking. With regard to the Roma community and the HIV-positive people, the Court has ruled that prejudice and stigmatization are indicators that these groups are in danger of becoming “invisible” and of being excluded from participation in social life, which result in their vulnerability. Detainees are considered vulnerable because of their absolute dependency from the state, while asylum seekers because of their forced displacement and their traumatic experiences from flight until arrival at the asylum country. Following the above, an important factor for the recognition of a group as vulnerable is the risk of the group being subjected to harm or discrimination.
The vulnerability of asylum seekers was recognised by the ECHR for the first time in 2011 in the M.S.S. v. Belgium and Greece case (2011) (M.S.S. was transferred from Belgium to Greece as the country of first entry, despite his claims that the Greek asylum system suffered systemic deficiencies). The ECHR stressed the absolute character of art. 3 (prohibition of torture or inhuman or degrading treatment or punishment), ruled that the applicant, as an asylum-seeker, belongs to an especially disadvantaged and vulnerable group, which is in need of international protection, and that it is incumbent upon states to protect asylum seekers in their territory from extreme material poverty.
In inquiring into potential violations of the Convention, the Court at the same time tiers vulnerability. In the Ilias and Ahmed v. Hungary case, it was examined whether the detention conditions in the transit zone amounted to inhuman or degrading treatment. The ECHR referred to the applicants’ vulnerability, having taken into consideration medical certificates that they suffered from post-traumatic stress, but found no evidence that the applicants were more vulnerable than any other adult detained in the transit zone. Consequently, Hungary had not violated art. 3. What can be drawn from the above judgment is that vulnerability does not equal violation of the Convention.
In B.G. and others v. France the Court ruled that art. 3 of the Convention imposes a positive obligation on the state to take preventive measures against the ill-treatment of vulnerable groups. The more than three months sojourn of families with children in tents in reception facilities does not constitute inhuman treatment because the applicants did not experience material deprivation and French Authorities did take measures towards the amelioration of living conditions, and ensured healthcare and access to education. The applicants were recognised as vulnerable in deed, but not as subjected to inhuman treatment, and their private and family life were respected and protected. Therefore, articles 3 and 8 of the Convention were not violated.
Protocol 4 to the Convention made the subject of the Hirsi Jamaa and others v. Italy case (interception by Italian Authorities of vessel with migrants on the high seas, and return to Libya). The Court decided that the applicants’ vulnerability resulted from the fact that Libya denied them access to asylum and that there was a real risk of discriminatory treatment.
In the case of M.A. v. Belgium the ECHR ruled that the signing of a statement authorizing his departure by an alien in custody and about to be expelled, is unlawful. The Belgian Authorities took advantage of the applicant’s vulnerability (he was in custody at the airport when he gave his consent in writing), thus violating articles 3 and 13 of the Convention.
In Rahimi v. Greece the Court decided that art. 3 was violated because the minor in question was subjected to humiliating treatment during detention (bad reception and hygiene conditions in combination with his vulnerability as underaged and his general personal predicament). In addition, the best interest of the child was not taken into consideration (alternative measures to detention were not examined), resulting in violation of art. 5 of the Convention (unlawful detention of a minor).
The vulnerability of irregular migrants who work in the host country was recognized by the Court in the case of Chowdury and others v. Greece (Manolada case). Firstly, the ECHR gave a lato sensu interpretation of ‘forced labour’, prohibited by art. 4. The 42 Bangladeshi nationals, who worked exhausting hours supervised by armed guards, were vulnerable because they did not possess alternative resources nor a residence permit in Greece. The latter violated its obligations to deter human trafficking and punish perpetrators, because the Mixed Jury Court of Patras acquitted the accused employers of human smuggling.
Following the above case law by the ECHR, the common characteristic of vulnerable persons is their inability to react when their fundamental rights are breached. This may be due to age, health or social standing. Vulnerability activates the state’s positive obligation to take measures for the person or group to enjoy the rights by the Council of Europe Convention on Human Rights.
Whereas in international law all asylum seekers are regarded as vulnerable, in EU law and the CEAS in particular, only certain categories of asylum seekers or recognized refugees are regarded as such. The Directives on recognition, reception and procedures refer either to vulnerable groups or asylum applicants in need of special procedural guarantees. According to Directives 2011/95 on recognition and 2013/33 on reception, minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence are vulnerable. In addition to the above, Greek Law 4939/2022 defines that the immediate relatives of shipwreck victims as well as people suffering from serious health conditions are also vulnerable. The 2013/32 Directive on procedures refers to vulnerable groups and to persons in need of special procedural guarantees because of their personal circumstances (health, age, sex, sexual orientation, mental disorders). Therefore, the two groups (vulnerable persons and persons in need of special procedural guarantees) are not identical: the latter is wider than the former, since it comprises, e.g., women and LGBTQ persons. Dr Gazi brought attention to the fact that in both the CEAS and Greek Law 4939/2022, vulnerability does not by definition lead to international protection.
With regard to applicants in need of special procedural guarantees, in the Addis case the CJEU ruled that, by means of the interview, the deciding Authority is given the possibility to assess the applicant’s condition and vulnerability. According to art. 72.2 of the Greek Law 4939/2022, an exemplification, among others, of efficient support of the persons concerned, is leniency in instances of minor inconsistencies and contradictions during the interview, provided they can be attributed to the applicants’ health condition. Next, the speaker gave examples of decisions issued by Greek Authorities (unpublished) to elucidate how the latter first assess the vulnerability, mental condition, communicative skills, age and educational level of the applicant, in order to next decide on the reliability of his/her claims.
Directive on procedures and Greek Law 4939/2022 allow the examination of asylum demands by vulnerable persons and by those in need of special procedural guarantees according to the accelerated border procedure. From this procedure are exempted (and their requests are examined according to the standard one) only the unaccompanied minors under the age of 15, the underaged victims of human trafficking, rape or other serious forms of violence, and the persons in need of special procedural guarantees, especially victims of torture, rape or serious forms of violence, when adequate support cannot be provided.
In her concluding remark, Dr Gazi made mention of the fact that the 1951 Geneva Convention does not contain provisions on vulnerable persons, although the cessation of genuine link between the asylum applicant and his/her country of origin makes it imperative that he/she is adequately protected. For this reason, the ECHR considers asylum seekers as vulnerable. Ιn the CEAS, vulnerability is a factor that amplifies support on the part of the host country. However, concrete protection can be achieved only if the legislative framework, combined with the remedial role of human rights, is properly implemented -wish lists that states disregard have proven to be of no use.
The discussion that followed was coordinated by Dr Kourtis.