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CTJTD1031I EL OBJETO DE METADATOS ESTÁ VACÍO
The current trend towards allowing member states to protect their internal borders and determine whether they are willing to process additional asylum applications from migrants currently in refugee camps107 does not seem likely to change the EU’s
relationship with the UK and Ireland in the area of asylum. The UK and Ireland have always remained at the periphery of the EU’s focus on border control, both by declining to participate in the Schengen Agreement in favour of a Common Travel Area108 and by maintaining an opt out for any legislation within the CEAS.109 Both member states have historically maintained a great deal of autonomy within this area of competence.110
Far more likely to be influential should be the United Kingdom’s decision to leave the EU. It is currently unclear what the relationship between the UK and the EU will be or which legislation from the EU will be maintained within UK domestic law.111 There have been no decisions released regarding the future of the UK’s current national asylum legislation. Statements made by Britain’s new Prime Minister in her previous role
106 See discussion in chapters 3 and 4.
107 d’Oultremont (n 1) 4 and Borg-Barthet and Lyons (n 1) 232.
108 Maria Fletcher, ‘Schengen, the European Court of Justice and flexibility under the Lisbon Treaty: balancing the United Kingdom's “ins” and “outs”’ (2009) 5 European Constitutional Law Review 71, 75.
109 See ibid 91. 110 See ibid.
111 Jessica Elgot, ‘Theresa May to trigger Article 50 by end of March 2017’ The Guardian (London, 02 October 2016) <https://www.theguardian.com/politics/2016/oct/01/theresa-may-to-propose-great- repeal-bill-to-unwind-eu-laws> last accessed 01 June 2016.
as Home Secretary,112 as well as her desire to remove Britain’s obligations under the European Convention of Human Rights113 would indicate that Prime Minister May may seek to uncouple Britain’s asylum law from the human rights protections set out by the CEAS. This is concerning not only for asylum seekers who are particularly vulnerable, but for all applicants for refugee protection in the UK. As Home Secretary and Prime Minister, Theresa May has been an advocate for increased legal protection for survivors of gender-based violence.114
It is disheartening that this advocacy does not extend to vocal protection for refugees who have experienced similar violence. The UK government has maintained a culture of disbelief,115 which has meant that asylum seekers are often treated as dishonest and ineligible for protection until proven otherwise.116 It can be incredibly re-
traumatising for gender-based violence survivor to be questioned in a harsh manner, from the viewpoint of disproving and finding inconsistencies in their stories. Traumatic
memories are inconsistent117. Instead of using the asylum process as an opportunity to build trust, listen to the applicant’s narrative and then determine if the Refugee
Convention is applicable, asylum applications have often been treated as an adversarial process between the government and the asylum seeker.
When the UK government uses a circular thinking which treats low acceptance rates as evidence of abusiveness and fraud amongst asylum seekers, providing
justification to impose more difficulties and procedural barriers to asylum applications,118 asylum seekers should be protected by international treaties which create obligations on behalf of member states.
112 Alan Travis, ‘Theresa May criticised for ‘compassion quota’ in asylum strategy’ The Guardian. (London, 27 February 2016). <https://www.theguardian.com/uk-news/2016/feb/27/theresa-may- criticised-for-compassion-quota-in-asylum-strategy> last accessed 31 August 2017.
113 Anushka Asthana and Rowena Mason, ‘UK Must Leave European convention on human rights, says Theresa May’ The Guardian. (London, 25 April 2016)
<http://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human- rights-theresa-may-eu-referendum> last accessed 01 June 2016.
114 Rowena Mason, ‘Theresa May: I want to transform how we think about domestic violence’ The Guardian (London, 17 February 2017) <https://www.theguardian.com/society/2017/feb/17/theresa- may-domestic-violence-abuse-act-laws-consultation> last accessed 18 December 2017.
115 See discussion in chapter 5. 116 See discussion in chapter 5.
117 Patricia A. Resick, ‘Psychological Effects of Victimization: Implications for the Criminal Justice System’ (1987) 33 Crime & Deliquency 468.
118 Victoria Canning, ‘International Conflict, Sexual Violence and Asylum Policy: Merseyside as a Case Study’ (2013) Critical Social Policy 23, 25. Discussed in chapter 5.
While the UK is unlikely to ever completely repudiate its commitments under the Refugee Convention, the treaty does not provide an enforcement mechanism for the rights within. Although the EU has not vigorously enforced the rights-based content of the CEAS, the CJEU’s decision in NS v. Secretary of State for the Home Department119 indicates that there is a minimum threshold of treatment which the EU will enforce on member states. Membership of the Council of Europe120 will ensure some procedural protections to asylum seekers in Britain121, but by keeping its obligations under the CEAS, Britain would ensure that all asylum seekers, including those with particular vulnerabilities, are given a minimum standard of human rights enshrined in legislation. Unfortunately, the culture of disbelief for asylum seekers seems unlikely to change, limiting the effects that legislation and guidelines have on improving the treatment of all those applying for protection under the Refugee Convention.
It is also unclear how the UK’s exit from the EU will affect the Common Travel Area and thus Irish migration and asylum policy.122 Ireland currently seems removed from the core of the CEAS – having opted out of all the recent recast directives as well as the minimum standards Reception Conditions directive.123 The recent increase in
migrants within the EU has not been a catalyst to reconsider Ireland’s treatment of asylum seekers. Ireland has announced its intention to accept up to 4,000 resettled migrants – and to process additional applications for family reunification.124 As of the beginning of July 2016, only 273 asylum applicants had been resettled in Ireland from
119 Cases C-411/10 and C-493/10, N.S. v. Secretary of State for the Home Department (2012) 49 CMLR 1735. Discussed in chapter 3
120 Application 30696/09, MSS v. Belgium (2011) 53 EHRR 2. Discussed in chapter 3.
121 The European Court of Human Rights has enforced a minimum standard of protection for survivors of gender-based violence. See Case 392/72 MC v Bulgaria (2005) 40 EHRR 20 and Case 33401/02 Opuz v. Turkey (2010) 50 EHRR 28.
122 See discussion in Sylvia de Mars, C.R.G. Murray, Aoife O’Donoghue and Ben T.R. Warwick (n 17.) 123 Irish Refugee Council, ‘Comments on the General Scheme of the International Protection Bill.’ (Irish
Refugee Council website, May 2015). <http://www.irishrefugeecouncil.ie/wp-
content/uploads/2011/08/IRCs-Comments-on-General-Scheme-of-International-Protection- Bill.final_.pdf> last accessed 01 June 2016, 2-3..
124 Irish Refugee Council, ‘Protection, Resettlement and Integration: Ireland’s Response to the Refugee and Migrant Crisis’ (Irish Refugee Council website, December 2015)
<http://www.irishrefugeecouncil.ie/wp-content/uploads/2016/01/Protection-Resettlement-and- Integration-Irelands-Response-to-the-Refugee-and-Migration-Crisis-Dec-2015.pdf> last accessed 01 June 2016, 3.
Greece.125 Yet it is unclear whether a move from a resettlement camp to the Irish direct provision provides additional safety to women vulnerable to sexual violence.
Prominent Irish NGOs have noted that the Irish government’s handling of this situation, potentially resettling a larger concentration of asylum seekers, has highlighted deficiencies in the Irish resettlement and asylum system.126 Ireland still has separate processes for refugee protection under the Refugee Convention versus humanitarian protection and resettlement.127 The International Protection Act 2015 was intended to combine these processes and incorporate a higher standard of fundamental rights.128 It includes several elements of the recast directives which Ireland had rejected opting into as part of the CEAS.129 While the International Protection Act was disappointing to NGOs as the attempt to redraft Ireland’s humanitarian protections,130 it was an attempt to ensure a higher level of human rights protection in the Irish asylum system.131 The International Protection Act has not been activated, nor has a replacement act been announced or considered.132 This would indicate that any changes to the Irish asylum system have been postponed. The Irish asylum scheme has come under criticism by NGOs, particularly for the policy of direct provision,133 and if Ireland does indeed allow 4,000 migrants to be resettled in Ireland, these problems and lack of support for asylum seekers will be magnified if not solved.
The NGOs suggest that this increase in refugees within Europe creates an opportunity for Ireland to rethink its asylum process, to make changes in order to better embed rights protections.134 They have made several recommendations for permanent changes that would not only improve the treatment and application process for recent Syrian migrants, but for all asylum seekers within Ireland.135
125 Michelle Hennessy, ‘Tanaiste agrees to allow an extra 260 refugees resettle in Ireland.’ The Journal. (Dublin, 06 July 2016) < http://www.thejournal.ie/refugees-ireland-2-2865069-Jul2016/> last accessed 18 December 2017.
126 Irish Refugee Council (n 121). 127 See ibid 6.
128 Irish Refugee Council ( 123). Discussed in chapter 6. 129 See ibid 3. Discussed in chapter 6.
130 See ibid 28. Discussed in chapter 6. 131 See ibid 3. Discussed in chapter 6. 132International Protection Act 2015. 133 See chapter 6.
134 Irish Refugee Council (n 124). 135 See ibid.
The direct provision system is currently insufficient for the need of asylum
seekers.136 The Irish Refugee Council has emphasised the importance of accommodation provision by non-profit organisations trained in supporting survivors of trauma who can assist asylum seekers both legally and psychologically.137 As noted in chapter 6, the isolating concept of direct provision is contrary to an intersectional understanding of the difficulties asylum seekers, particularly vulnerable women and children, experience in the Irish asylum system. Yet if the Irish government is not currently willing to prioritise humanitarian protection over financial concerns and eliminate direct provision in favour of integration within the community, a minimum requirement of trained NGO providers would improve the treatment within direct provision. The Irish government should end the current practice of allowing profit-making companies to run direct provision services which ignore the most vulnerable asylum seekers.
As discussed in chapter 6, the Irish government has embraced the Dublin Regulation and the opportunity to transfer asylum applications to other EU member states. However, several member states have sought to deny applicants the opportunity to apply for asylum in accordance with international standards.138 As a result, NGOs
recommend that the Irish government makes greater use of their option to process asylum applications within Ireland, rather than transferring them to member states with
overwhelmed asylum systems or poor treatment of asylum seekers.139 Of course, these recommendations should be taken in conjunction with an improvement of Irish treatment of asylum seekers. This should similarly extend to the EU’s idea of “safe third
countries.” The only way to determine whether an applicant is safe in their country of origin is through processing an asylum application.140 The Irish government should ensure that all applicants receive the same sensitive examination of their individual circumstances. Lists of “safe countries of origin” can lead to applicants having to meet a higher standard of proof, being given fewer resources to prove their application and
136 See chapter 6.
137 Irish Refugee Council (note 124) 6.
138 d’Oultremont (n 1) and Borg-Barthet and Lyons (n 1). 139 Irish Refugee Council (n 124) 5.
receiving only cursory consideration by Irish decision-makers.141 The Irish government should ensure to never transfer an asylum applicant without having assessed that the applicant will receive treatment in accordance with the principles of the CEAS.
Both the UK and Ireland should guarantee that national asylum systems reflect not only the minimum of their obligations under international law, but the constantly evolving norms regarding humanitarian protection. These norms include specific protection for women who have experienced gender based violence: interactions with female staff members, childcare, accommodation without access to male asylum seekers and staff, and sensitivity during questioning. The EU has previously increased the protections in the CEAS over time by drafting recast versions.142 This focus on a slow increase of human rights has been jeopardised by the EU’s reliance on internal borders during the increase in migration.143 The UK and Ireland should seek to dismiss the EU’s assertions of a divide between abusive and vulnerable asylum seekers – by ensuring fair, uncomplicated, non-adversarial procedures for all asylum seekers, national decision makers are better able to determine if applicants are eligible for protection and can provide support for particularly vulnerable asylum seekers.