Jozef Miškolci IPS II.
The refugee issue in the Czech republic in comparison to the United Kingdom
It is the responsibility of States to protect their citizens. When governments are unwilling or unable to protect their citizens, individuals may suffer such serious reduction or violation of their human, political and economic rights that they are forced to leave their homes, and often even their families, to seek safety in another country.
Refugee, according to the 1951 Convention relating to the Status of Refugees as the basic and universal instrument of international law concerning the status of refugees, is a person with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, who is outside the country of origin and is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution. The term is often popularly understood in far broader terms, however, encompassing persons fleeing war, civil strife, famine, and environmental disasters.
The drafters of the 1951 UN Convention Relating to the Status of Refugees, limited the modern definition of refugee not only to persons fearing a relatively narrow range of human rights abuses, but also restricted its scope to migrants in Europe who fled as a result of events occurring before 1 January 1951. As new refugee crises emerged during the late 1950s and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee Convention. In 1967, the Protocol relating to the Status of Refugees dropped these limitations. As of 1999, the Convention and/or Protocol have been signed by 134 countries.
Together, the Refugee Convention and Protocol cover three main subjects. Firstly, as it was already mentioned, they include the basic refugee definition, along with terms for cessation of, and exclusion from, refugee status. Secondly, they constitute state’s obligations, including cooperation with the UNHCR in the exercise of its function and facilitating its duty of supervising the application of the Convention. And finally, they determine the legal status of refugees in their country of asylum, their rights and obligations, including the right to be protected against forcible return, or refoulement, to a territory where their lives or freedom would be threatened. With regard to the principle of non-refoulement, refoulement is prohibited explicitly or through interpretation even by other significant acts of international law such as the International Covenant on Civil and Political Rights (Article 7) or the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3).
Although the Protocol universalised the applicability of the Convention, it did not expand the refugee definition. In the developing world, the Convention and Protocol's definition was often seen as not adequately encompassing the many reasons people fled their homelands to seek protection elsewhere. The conflict that accompanied the end of the colonial era in Africa led to a succession of large-scale refugee movements. These population displacements prompted also the drafting and adoption of the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa. However, in contrast to the 1951 Refugee Convention the OAU Convention is, to date, the only legally binding regional refugee treaty. Perhaps the most important portion of the OAU Convention is extension of this definition of refugee to include as refugees persons compelled to leave his/her country owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his/her country of origin or nationality. Similarly, representatives of Central American states in 1984 issued the Cartagena Declaration, which includes as refugees persons fleeing generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. Although the Declaration is not legally binding on States, most Latin American States apply the definition as a matter of practice and some have incorporated the definition into their own national legislation.
On 26 November 1991 the Federal Republic of Czechoslovakia, to which a Czech Republic is a successor, ratified without reservations the 1951 Convention, and its Protocol of 1967 and in August 1993 the Convention entered into force upon its publication as Law 208/93 in the collection of laws. Primarily the 43rd Article of the Charter of Fundamental Rights and Basic Freedoms, which refers to the duty of the Czech Republic to grant asylum to those foreigners who are persecuted for validation of political rights and freedoms, represents the primary guarantee in Czech juridical system. As a majority of other states, even the Czech Republic has a special law (Law no. 325/1999 Coll.), which arises from the 1951 UN Convention. This law entered into force on 1 January 2000. However, it is relatively new it has already been amended.
The Refugee Act in lawful wording consists of the definitions of important terms related to the area of asylum law, describes procedures of granting asylum and to the addition it determines rights and duties of all subjects.
Every foreigner, that enters the Czech territory with an intention to seek for asylum, must make a pronouncement about this intention in either oral or written form. It is possible to express this intention at a border crossing, at the specified reception centre for asylum seekers (at Vyšné Lhoty near Frýdek Místek), at a department of the Aliens and Border Police or at an institution for detention of foreigners. Immediately after the statement of intent to seek for asylum there rises certain duties for the foreigner that he/she has to follow. Primarily he/she must make an appearance within certain time at the specified reception centre for asylum seekers. At the reception centre the foreigner has to bear some necessary acts such as medical examination and performance of identification acts.
The asylum procedure itself starts with a submission of a filed application for refugee status that has a prescribed form. The procedure is double-instanctive. In the first instance the Ministry of Interior – the Department of Asylum and Migration Policy decides about the applications for granting asylum, so in other words the administrative body. Within the procedure there are distinguished two different proceedings in front of the administrative body – normal or standard and quickened or shortened procedure in ”manifestly unfounded” cases.
During the procedure in the first instance the administrative body i.e. the Department of Asylum and Migration Policy has a duty to detect correctly and completely a real state of the case, of course with a necessary cooperation with the applicant him/herself. For this purpose it is carried out an interview, about which there is written a protocol. After the detection of the state of the case the administrative body delivers a decision, which is verifiable by the court in the legally prescribed period.
All asylum seekers have a suspensive right of appeal and that legal remedy submitted to the court in time has a dilatory effect on execution of the decision. Generally the legal remedy is submitted within a 15-day period from the day of deliverance of the decision. (In the law there are assigned certain exceptions.) The legal remedy is submitted to the administrative body, which takes the case to court (in the Czech Republic it is the High Court), with its references and comments. Rejected asylum seekers waiting for the decision of the High Court are treated like foreigners and are allowed by the Alien Police to stay in the country and wait for the decision. For those without a valid document, accommodation, work, medical care, etc. are very problematic. UNHCR provides funds, through NGO’s, to pay for accommodation for them in refugee camps, a stay usually limited to two months.
If the application is refused by the competent court in this second instance, whole procedure finishes. The Constitution of the Czech Republic provides ”last chance” for asylum seekers to appeal to the Constitutional Court. But in that case the complaint has not a dilatory effect, so the refused asylum seeker is not entitled to stay legally in the territory of the Czech Republic. In addition he/she is obliged to be pleaded at the bar. After the depletion of legal remedies Czech juridical system recognises one more possibility to appeal to the European Court of Human Rights i.e. independent judicial body, situated in Strasbourg.
In the first instance there are distinguished certain kinds of decisions. The administrative body may decide to stop a procedure in cases the applicant died; the applicant didn’t repeatedly appeared in an interview; the applicant didn’t removed all shortcomings in his/her application; the asylum seeker baselessly entered a territory of some foreign state or he/she attempted to do so. The administrative body may decide to refuse an application as ”manifestly unfounded” if the applicant alleges only economic reasons; baselessly alleges incorrect data about his/her identity; seeks for asylum only to flee from a situation of common misery or in a repeatedly submitted application he/she alleges the same facts as in the refused application. It may even happen when the applicant comes from ”safe country of origin” or ”safe third country”.
An application will be refused as ”manifestly unfounded” also in cases the applicant doesn’t state realities, which would confirm his/her exposure to persecution from reasons of validation of political rights, from reasons of race, nationality, religion…or in case he/she declares manifestly implausible circumstances. And last reason for refusal of an application as ”manifestly unfounded” would be the situation that the applicant asks for asylum in order to avoid imminent expatriation or criminal proceeding. To be complete the decision for such refusal of an application as ”manifestly unfounded” may be made only by 30 days and a legal remedy has to be submitted within 7 days.
The administration body may decide not to recognise an applicant as a refugee within a standard asylum procedure if the applicant doesn’t fulfil all the necessary conditions for granting asylum i.e. to prove that he/she was threatened by an individual persecution and in his/her case there are not considered special reasons for granting asylum (e.g. humanitarian reasons – bad state of health of the applicant, high age…).
And the last possible decision and the ”happiest” one is to grant an applicant asylum. In that moment the asylum seeker is recognised as a refugee and he/she is entitled to a permanent residence in the territory of the Czech Republic. Consecutively he/she is included in a state integration program, which endeavours to work with local governments in providing housing for recognizing refugees after 6 months stay in a government run integration centre. This scheme is an important element in assisting refugees to achieve self-sufficiency in the Czech Republic and thereby in promoting tolerance of refugees by the Czech Republic. Refugees accepted by participating local communities are given housing for a ten year period and often receive other assistance or support from local governments. Recognized refugees are entitled to the same level of social assistance as Czech nationals and are able to study, receive a work permit (necessary for the first three years) and find employment. Refugee status is now considered permanent residence for naturalization purposes so that refugees are eligible to apply for Czech citizenship five years after recognition.
In comparison to the Czech Republic in the United Kingdom the legal basis related to asylum procedures is mainly composed of certain Immigration Acts of which the 1999 Immigration and Asylum Act is the most recent legislation dealing specifically with asylum procedures and support for asylum seekers and marked a radical break with the past. Furthermore it is comprised of numerous pieces of secondary legislation, the Asylum Appeals (Procedure) Rules of 1996, the Dublin Convention and as in case of the Czech Republic it contains the Geneva Convention of 1951 and New York Protocol of 1967 as well.
With regard to asylum procedure in the United Kingdom the Immigration and Nationality Directorate (IND) of the Home Office is responsible for all decisions relating to claims for asylum, whether made on arrival or after entry into the country, including the recognition of refugee status. Asylum seekers can make their application either with an immigration service officer at a port (”port” applications), or with the screening unit of the IND in London (”in- country” applications), if they apply after entering the country. The IND or the immigration service ”screens” asylum seekers to establish their identity and nationality, and takes their fingerprints in order to guard against fraudulent or multiple applications. Beginning in April 2000, all new asylum applicants who are not immediately interviewed in full must complete in English a new form—Statement of Evidence Form (SEF)—which they must return to the IND within 14 days. Immigration officers or asylum caseworkers in the IND usually then interview asylum seekers within a few weeks.
Asylum seekers are officially entitled to free legal advice and representation at all stages of the asylum procedure, including (from the beginning of 2000) for representation at appeals, subject to testing of financial means and legal merit. However, as some applicants have their cases dealt with in a period of days, often while they remain detained, they frequently cannot obtain legal assistance. Also, asylum seekers accommodated outside London face difficulty finding asylum or immigration law specialists because more than half the country’s immigration lawyers are located in London. The government will not pay asylum seekers’ travel expenses to visit legal advisers. The problem is that interviewing officers have no obligation to ensure that applicants are aware that they may seek legal assistance. All applicants are just offered the services of an interpreter for their asylum interviews.
Asylum claims are considered by caseworkers or immigration officers who are specially trained to consider applications in accordance with the 1951 UN Refugees Convention. Each claim is examined individually on its merits. The caseworker must decide whether the facts show a reasonable likelihood of persecution to the asylum seeker for a Convention reason in the event of a return to their country of nationality or habitual residence. To amount to a 'well-founded fear of persecution' a judgement by the Law Lords decided that the fear must be objective. A decision will be made on the basis of the information contained in the SEF, any other documents that have been provided by the applicant in English, and the interview. Caseworkers have access to detailed Country Assessments to assist them when considering the claim. Decisions are notified in writing. The outcome is normally sent by post but in certain circumstances, the applicant may be told of the decision in person.
Applicants accorded refugee status receive settlement rights, ”Indefinite Leave to Remain” (ILR). In addition in the United Kingdom asylum seekers may be granted so-called ”Exceptional Leave to Remain” (ELR) that is an extendable four-year protection from deportation, based on unsettled home country conditions or other humanitarian grounds. Normally, failed asylum applicants only receive ELR if compelling humanitarian reasons exist for not enforcing their removal from the United Kingdom. People granted exceptional leave have to wait four years before receiving ILR. People with ILR have rights equivalent to those of British citizens, except the right to vote (unless they come from a Commonwealth country.)
Rejected asylum applicants, except those who are rejected on safe third country grounds, have the right to appeal their denials in the United Kingdom in several stages. Appellants who have not been ”certified” have seven workdays to lodge an appeal with an independent special appeal adjudicator, who must decide the appeal within 42 days. (This is often extended in practice, however.) If the adjudicator decides that the case is not unfounded, the rejected claimant may appeal to the Immigration Appeal Tribunal or the Court of Appeal. The Court of Appeal may review the Tribunal’s decision.
In October, the government adopted the UN Human Rights Convention into domestic legislation—the Human Rights Act. Under the Immigration and Asylum Act, appellants can appeal on grounds arising directly from the European Convention on Human Rights. The time limits for appeals also changed. Appellants now have ten days to appeal to an independent adjudicator. If that is unsuccessful, they will have another ten days to appeal to the Immigration Appeal Tribunal or Court of Appeal.
With regard to the accommodation system in the Czech Republic and other services for asylum seekers if they do not want to live ”in privacy”, they are accommodated in asylum centres. There are distinguished three types of asylum centres – the specified reception centre at Vyšné Lhoty near Frýdek Místek; residential centres, which are subdivided into those in the first and second instance of the asylum procedure; and integration centres. As it was already mentioned in the specified reception centre there are carried out certain identification acts and medical examinations. In residential centres asylum seekers wait for the decision about their applications for asylum. And integration centres serve for a temporary accommodation for person recognised as refugees. This stay lasts till the refugee gets a permanent residence, which is provides by the state. In the Czech Republic there are four integration centres: Předlice, Jaroměř, Zastávka u Brna, Hoštka. Except for accommodation asylum seekers have right to free board, medical care and pocket money in case that they dwell in the specified reception centre or in a residential centre and their financial conditions are so inadequate that they are not capable to cover these services. If an applicant wants to live out of the residential centre, he/she covers expenses related to accommodation on his/her own. To be exact he/she has also an opportunity considering his/her financial situation to ask for a financial support on reimbursement of these costs but only to the height of living wage and in addition this financial support is terminable. The longest period he/she may make use of this support is three months during time of asylum procedure. This contribution is paid off by the Ministry of Interior in asylum centres.
In the United Kingdom the Immigration and Asylum Act (1999) radically overhauled the support and accommodation system for asylum seekers in the United Kingdom by removing welfare benefits from all asylum seekers and mandating that they be accommodated outside London and the southeast on a no-choice basis.
In April, a new national agency, the National Asylum Support Service (NASS) within the Home Office, became responsible for supporting asylum seekers with vouchers redeemable in certain supermarkets and stores. Asylum seekers who applied before April were gradually phased into the new system during the year.
Single asylum seekers without means of support are entitled to the equivalent of about $56 (35 pounds) per week, of which the equivalent of $16 (10 pounds) is redeemable as cash. Asylum seekers cannot receive change for their vouchers at supermarkets, a hardship highly criticized by NGOs, unions, and even the supermarkets themselves.
Asylum seekers who can demonstrate that they need assistance or housing must apply for support to NASS, waiting in ”emergency accommodations” for two to eight weeks before being assigned dispersal accommodations outside London or in the southeast. The government secures accommodations for asylum seekers through local authority consortia and contracts with private landlords. The government stated that it would take existing ethnic community presence and language into account when deciding where in the country to disperse asylum seekers. However, the majority of the 11,000 asylum seekers dispersed during the year went to the north of England and Scotland, where low-cost and often poor-quality housing was readily available. Asylum seekers who leave NASS accommodations forfeit their right to receive housing assistance.
During the first nine months of the new arrangements, the administration of the voucher scheme was fraught with problems. NASS frequently sent vouchers to the wrong address, sent them late, or not all, leaving asylum seekers without food, often for days. Asylum seekers faced record levels of racial abuse and violence in the towns and cities to which they were dispersed. Unscrupulous landlords profited from their contracts without providing adequate standards of accommodation or basic utilities to asylum seekers.
In the past the Czech Lands were one of the major sources of emigration in Europe. Today, the Czech Republic has become a transit country for migration into Western European countries (in particular Germany). From 1990 to the end of January 2002 the Czech Republic received a total number of 53,313 applications for refugee status with an average of around 4,000 per year. In the year 2001 18,082 persons from 69 countries asked for asylum in the Czech Republic. The number of the asylum seekers was two times bigger than in the year 2000, when there were submitted 8,788 applications. The most asylum seekers came from Ukraine (4,419 persons), who comprised 24% of all asylum seekers. After three years from 1998 the number of Ukrainian (6,303) and Romanian (5,801) asylum seekers exceeded number of those from Afghanistan (5,772), who were most significant after 1998. The forth-largest number of asylum seekers came from Bulgaria (5,112) then from Moldavia (3,582) and India (3,195). In the year 2001 there were recognised as refugees only 83 persons mainly from Belarus. From 1990 till 2001 in the Czech Republic there was granted asylum to 2,114 persons from 58 countries. As a whole the biggest number of refugees came from Romania (474; 22%), in addition more than 200 arrived from Afghanistan, 175 from former Soviet Union, more than 100 from Ukraine and Armenia. Refugee status was mostly recognised to Romanians, and the situation is analogical to case of the former Soviet Union, at the beginning of 90’s and to present this trend radically decreased.
In 2000 some 98,900 persons (including dependants) applied for asylum, the highest number of annual applications ever in the United Kingdom and more than in any other Western European country during the year. In 2001 about 88,300 persons asked for asylum. The largest number of asylum seekers who filed applications in the United Kingdom in 2001 arrived from Afghanistan (9,190), Iraq (6,805), Somalia (6,500), Sri Lanka (5,545), Turkey (3,740) and FRY (3,190). Permanently the largest number of applicants comes from Somalia, Sri Lanka, Former Yugoslavia and Afghanistan. In 2001 the United Kingdom granted ”exceptional leave to remain” to 17% of rejected asylum seekers’ cases (19,510) mainly from Afghanistan (7,210), FRY (1,960) and Somalia (1945), what is an increase from the 12% it granted in 2000. In 2001 9% (10,960) of all decisions made about applications for asylum were recognized as refugees and granted asylum. It was primarily a case of Somalis (2,805), Afghans (2,230) and refugees from Sri Lanka (1,385).
I am convinced that in connection with the refugee issue and problems of asylum seekers it is necessary to mention the concept of the ”safe third country”. The ”safe third country rule” provides that the first ”safe” state, which allows entry of an asylum seeker, is responsible for the examination of his/her claim. While the ”safe third country rule” allows denial of access to the asylum procedure for an asylum seeker who has transited such a country, readmission agreements provide legal basis for the return of asylum seekers and irregular migrants to these countries. These agreements, which can apply both to foreign and the third country’s own citizens, have become the central instrument in the emergent pan-European asylum and immigration regime.
The main problem in the implementation of these agreements is that they are used both to deport illegal immigrants and to return asylum seekers to a country which should examine their application on its merits. Two consequences appear here. Firstly, confusion very often exists between asylum seekers and illegal migrants, even when the readmission agreement contains a specific provision on asylum. This means that the asylum seeker’s application risks not being examined. Secondly, as a consequence, asylum seekers can be deported to their country of origin or to a country where their life could be in danger. This is for instance, a risk in the case of readmission agreements between Poland and Lithuania bearing in mind that asylum seekers could be deported from Germany to Poland, from Poland to Lithuania and from Lithuania to their country of origin even if the latter is not considered as safe by Germany.
The situation in the Czech Republic, as elsewhere in Central Europe, is complicated by the fact that many asylum seekers, including those returned from neighbouring western countries through the application of readmission agreements, do not necessarily wish to apply for asylum in the Czech Republic. Rather, they explicitly state their desire to seek asylum in Western Europe and do not avail themselves of the opportunity to wage an asylum request in countries such as the Czech Republic until they are confronted with the possibility of deportation. Moreover, the protection situation in Central Europe has to be seen in the broader context of transit migration and irregular movements, which demand great efforts of the States concerned as well as of the international community to provide a comprehensive regional protection package.
In the United Kingdom when an asylum seeker at a port of entry is identified as having travelled through a third country where he/she could have applied for asylum but did not, the Home Office decides whether he/she should be sent back to that country in order to claim asylum there or whether the asylum claim should be considered substantively in the UK. This procedure is normally only applied to port applicants, but could be invoked for a person who claims very soon after entering the country illegally.
The decision to return the applicant to a "safe third country" is normally taken within 24 hours of arrival, while the applicant remains at or near the port of arrival, and the asylum seeker will be refused leave to enter on the grounds that his/her claim has been certified to be without foundation. Reasons for refusal are given in writing, and the decision is notified orally to the applicant by an immigration officer.
According to the Immigration and Asylum Act 1999 appeal rights are now no longer suspensive if an asylum seeker is being returned to a third country which is a member of the EU, the USA, Canada, Norway and Switzerland. Asylum seekers whom the authorities wish to remove to other countries will usually be detained until they are removed, unless a successful application for bail or temporary admission is made.
There are no disputes about the fact that a considerable amount of asylum seekers are just so-called ”economic migrants” who are only looking for more comfortable conditions for living. But in fact I just cannot hold the view that for instance in the Czech Republic there are 99.5% of them what is actually the number of asylum seekers who were not recognized as refugees in the previous year. Of course there are many aspects of this problem not only the actual willingness of the Ministry of Interior to grant asylum statuses. I would only mention one of the crucial problems with regards to this issue and that’s decreasing capability of the home population to tolerate these foreign ”newcomers”. I think that this problem is definitely the most important and we must do our utmost to change the situation, because if an ”ordinary” citizen of the Czech Republic, the United Kingdom or any other country is just not able to accept and tolerate refugees, do refugees really find there what they are looking for?