Sharing the responsibility for refugees: A new global compact

An aerial view of the Za'atri refugee camp, Jordan, Wikimedia Commons

An aerial view of the Za’atri refugee camp, Jordan, Wikimedia Commons

Amnesty International, Sharing the responsibility for refugees: A new global compact, 9 May 2016, Index number: IOR 40/3906/2016

Wealthy states and the international community as a whole have failed to equitably share responsibility for managing the ongoing global refugee crisis. In his report In Safety and Dignity: Addressing Large Movements of Refugees and Migrants, published today, UN Secretary-General Ban Ki-moon has proposed a “Global Compact on responsibility-sharing” to create a more predictable and equitable way of responding to large movements of refugees.

This briefing urges states to use key upcoming international meetings to move from short-term stop-gap measures to long-term, proactive and globally coordinated solutions.

At the UN General Assembly High-Level Plenary on addressing large movements of refugees and migrants in September 2016, states should adopt a new Global Compact on predictable and equitable refugee responsibility-sharing, based on international human rights and refugee law. The Global Compact should include:

  • A permanent distribution system of resettlement places, based on objective criteria;
  • In cases of large movements of refugees, an additional distribution system to admit refugees through expedited safe and legal routes (“legal pathways” for admission) based on objective criteria;
  • Guaranteed full, flexible and predictable funding for refugee protection and meaningful financial support to countries hosting large numbers of refugees, over and above existing development assistance programmes;
  • Strengthened refugee status determination systems and increased use of prima facie recognition of refugee status;
  • Respect, protection and fulfilment of the rights of refugees in their country of asylum, including the enjoyment of an adequate standard of living, access to education, healthcare and other services, and economic self-reliance.
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The EU is in dangerous territory with “safe” country lists for asylum-seekers

Lampedusa (Photo: noborder network/ Sara Prestianni)

Lampedusa (Photo: noborder network/ Sara Prestianni)

On 20 July the EU Justice and Home Affairs Council recommended that EU member states assess whether to include Western Balkan countries (Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Kosovo) in a possible common EU list of “safe countries of origin”. However, the “safe countries of origin” concept has little to do either with EU member states’ human rights obligations or with an evidence-based, rational assessment of the current reality of asylum in Europe.

Since 2005, EU law allows member states to designate certain countries as “safe” to make the asylum process quicker and cheaper. The asylum applications of those from “safe” countries can be examined at the border or in transit zones and in fast-track procedures. But quick and cheap can come at the expense of legality and fairness.

“Safe countries of origin” procedures are inherently unfair. The general presumption is that a country on the “safe” list does not “normally” produce refugees, so its nationals’ asylum claims are unfounded. It is up to the asylum seeker to prove otherwise – which is difficult to do, since documents and other evidence are often lost during long and turbulent journeys. The task becomes almost impossible since national accelerated procedures for “safe” countries impose strict time limits, which can be as short as two or three days.

Not only is this unfair; it is inherently discriminatory. What “safe countries of origin” procedures ultimately boil down to is that some asylum seekers are presumed to be bogus solely on the basis of their nationality. The prohibition of discrimination based on nationality is one of the most fundamental principles of international law, recognized in the EU Charter of Fundamental Rights and numerous others international agreements. Only three days after the EU decision, Canada’s Federal Court struck down as unconstitutional and discriminatory a government decision to designate 26 EU countries and the USA as “safe countries of origin” (2015 FC 892).

The assumption that people coming from certain countries do not need protection because their country is inherently “safe” runs against one of the key foundations of refugee law, i.e. the individual nature of the need for international protection. The idea that someone’s risk of being persecuted may be assessed on the basis of whether or not there is “generally” persecution in their country is simplistic. In fact, specific individuals (journalists, lawyers, opposition leaders, human rights defenders or members of ethnic or religious minorities) face persecution exactly because of what makes them the individual that they are: their gender, race, ethnicity, political and religious beliefs, sexual orientation, etc.

For this reason, even countries that portray themselves as “generally safe” can produce asylum seekers and refugees. EU countries are no exception. According to the UN Refugee Agency (UNHCR), at the end of 2014 nearly 50,000 people from the 28 EU member states had been recognized as refugees around the world, while a further 3,000 EU nationals were waiting for their asylum case to be decided (source: UNHCR Global Trends 2014).

With respect to Western Balkan countries, the EU decision ignores that in 2014 the French Conseil d’Etat and the Belgian Conseil d’Etat respectively withdrew Kosovo and Albania from their country’s list of “safe countries of origin”. The decision also ignores the fact that in certain states within the Balkans, specific groups may be at real risk of persecution. Few countries are, for example, able to provide LGBTI people or independent journalists whose lives are at risk with adequate protection. In Kosovo, UNHCR has identified a number of groups at “particular risk of persecution or serious harm… including through cumulative discriminatory acts”, including Serbs and Albanians in a minority situation and Roma.

So, if there is no such thing as a “safe country of origin”, what was behind the EU decision to potentially consider Western Balkan states as “safe”? The decision mentions these countries’ “European perspective” and the fact that their nationals are exempt from visa requirements. In other words, Western Balkans countries may be considered to be “safe” merely because they are or may become candidates for EU accession, not because of their ability to respect, protect and promote human rights. The arbitrary nature of any determination of “safe countries of origin”, either at the EU or at the national level, is evident.

In sum, “safe countries of origin” procedures are unfair, unlawful and absurd. The possible selection of Western Balkans countries is superficial and arbitrary. The very substantive danger of returning to persecution someone whose asylum claim is valid should outweigh any consideration based on expediency.

Thank you to: Nicola Delvino, Conor Fortune, Sian Jones and Anna Shea.

How to cite this article:
Francesca Pizzutelli, “The EU is in dangerous territory with “safe” country list for asylum-seekers”, The Rights Angle, https://therightsangle.wordpress.com/, 24 July 2015.

The human rights of migrants as limitations to states’ control over entry and stay in their territory

(C) Valerio Rinaldi for Amnesty International

(C) Valerio Rinaldi for Amnesty International

This post was published on 21 May 2015 on EJIL Talk!, blog of the European Journal of International Law

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition? This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10). Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry.

Limitations on the prerogative to establish conditions for entry and stay

While the limitations imposed by international law on a state’s prerogative to control entry into its territory are relatively well-established, at least on paper, visa regimes are often perceived to be an area where state sovereignty has little boundaries. Once the state has complied with its international obligations in selecting who is allowed into the country, it seemingly enjoys a broad freedom in determining how long they can stay and under which conditions (the generally recognised exception being, again, refugees and those protected by the obligation against refoulement). In fact, the rules of international labour law protecting workers from labour exploitation, forced labour and servitude, and the international legal rules against trafficking in human beings, profoundly impact the prerogative of states to establish conditions for entry and stay in the form of visa regimes. As the requirements of some visa regimes may ultimately be in breach of a state’s international obligations to protect individuals from labour exploitation, forced labour, servitude and trafficking, such obligations limit its sovereignty in establishing visa conditions. In 2014, Amnesty International published an analysis of selected visa regimes in five countries of destination (China/Hong Kong, Italy, Qatar, South Korea and the United Kingdom), showing that some visa requirements, such as the inability to change employer and the employer’s control over the worker’s migration status, increase migrant workers’ risk of suffering labour exploitation and other abuses at the hand of private actors such as recruitment agencies and employers. Recently, the link between visa requirements stopping migrant workers from changing employers and vulnerability to labour exploitation has been at the centre of the debate on a new Modern Slavery Bill in the United Kingdom. NGOs have argued that the current system of overseas domestic workers visas “tied” to the employer (whereby the migrant worker is not allowed to change employer) is open to abuse, as the workers can only leave an exploitative labour relationship at the price of losing their visa. Amnesty International’s research also shows that the promise of regular documents is often used by abusive employers to induce irregular migrant workers to accept exploitative labour conditions. In countries where the administrative procedure to obtain or renew residence and work permits has to be initiated by, or requires the cooperation of, the employer, the employer’s effective power to determine their migration status can easily become a tool to intimidate or threaten workers, undermining further the irregular migrant workers’ limited ability to negotiate better wages and working conditions (Amnesty International, Abusive labour migration policies, 2014, p. 7-10).

Limitations on the treatment of irregular migrants: “firewalls”

The current European debate on irregular migration tends to focus on the limitations on state sovereignty during law-enforcement, i.e. on the procedures of arrest, detention and deportation. In fact, the international obligation to respect, protect and promote the human rights of migrants may require states not only to modify the procedures of their law-enforcement operations, but also to limit law-enforcement operations tout court. In his 2013 report to the United Nations General Assembly, the Special Rapporteur on the human rights of migrants, François Crépeau, called on states to allow migrants to access the public services needed for the enjoyment of their rights without fear of being arrested, detained and deported. In order to do so, states should implement “firewalls” between public services and migration enforcement, whereby public services (healthcare, education, housing, labour inspection, local police) would be instructed not to request migration status information unless essential; and migration enforcement would not have access to the information collected by public services relating to migration status (para. 82). The call for “firewalls” between the public officials charged with protecting and enforcing the human rights of irregular migrants (teachers, doctors, labour inspectors, etc.) and those charged with enforcing migration laws recognises and addresses a problem familiar to human rights advocates: irregular migrants are generally so concerned about coming to the attention of the authorities that they are reluctant to access public services, even when they would be entitled to do so to enjoy their human rights. While, in its first formulation, the “firewall” argument was built on ethical and policy grounds (Carens 2008 at pp. 167-168), this post argues that it also has strong grounds under the legal principle that the human rights of migrants limit the sovereign prerogative of states to control migration. Here again, the debate is far from being academic. The domestic legislation of several European states imposes on public officials a duty to report irregular migrants to migration-enforcement authorities, either expressly (such as in the Irish Immigration Act 2003, s. 8) or via the interplay of legislation criminalising irregular migration and a general requirement of any public officer to report all suspected criminal acts to law-enforcement authorities. Yet, many European states also impose direct or indirect reporting bans on public bodies and officials providing basic services, which either prohibit them or allow them not to report irregular migrants to the police. Although a complete review of state practice in this field is beyond the scope of this post, a few examples may illustrate the point. In Italy, irregular migrants are allowed free access to “urgent or essential” health services and “preventive care” services, including maternal health care, children health care, vaccinations and the care of infectious diseases and epidemics (Legislative Decree No. 286/1998, art. 35.3). To allow meaningful implementation of this right, Italian legislation expressly guarantees that access to health services by irregular migrants will not be reported to the authorities (ibid, art. 35.5). Germany’s migration legislation imposes upon all public administration bodies a general duty to report irregular migrants to the authorities in charge of migration enforcement (AufenthG, s. 87). In 2011, an explicit exception to this provision was introduced for schools and other educational and care establishments for young people (ibid.). In the same way as reporting bans on healthcare and education personnel are a simple measure to “firewall” irregular migrants’ rights to health and education, reporting bans on labour inspectors are a simple measure to “firewall” irregular migrants’ rights at work. Such bans are in fact required under the ILO Labour Inspection Convention, 1947 (No. 81). According to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), tasking labour inspectors with immigration control functions is incompatible with international obligations because it diverts resources from their primary duty “to protect workers and not to enforce immigration law” (General Survey on Labour Inspection, 2006, p25).

Conclusion

This post has attempted to provide a summary overview of the limitations imposed by international human rights law, international refugee law and international labour law on states’ sovereign prerogative to control entry and stay in its territory. The broad scope of these limitations strengthens the comparatively weaker position of the individual migrant vis-à-vis the state. By imposing a range of direct restrictions on law-enforcement operations, states are effectively hampered in their pursuit of the goal of migration control.

Kurdistan Region of Iraq, December 2014: personal diary of a mission

Baharka Camp for displaced people, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

Baharka Camp for displaced people, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

From the plane, the alternation of seasons is evident: what three months ago was a large expanse of arid, dusty yellow land, now is dark brown and punctuated by moist green patches. After a fist visit in September, my colleague Khairun and I are back in Iraqi Kurdistan (officially known as Kurdistan Region of Iraq, or KRI) to assess the human rights situation of both Syrian refugees and displaced Iraqis.

As a result of the advance of ISIS and of the violence across the country, over 2 million Iraqis have been displaced during 2014. Nearly half of them, about 950,000, are now in the KRI, a semi-autonomous area smaller than the Czech Republic with a population of 5.2 million. Most of them are Yezidis from the Sinjar region, in addition to Turkmen and Arabs from towns and villages around Mosul. Before January 2014, the KRI had already opened its doors to about 230,000 refugees from Syria. It is as if the United Kingdom, population 64 million, had received 14.5 million people desperate to flee war.

Camps

The Kurdish Regional Government (KRG) has made efforts to build camps for those displaced. Baharka camp, just outside Erbil, hosts about 3,000 displaced Iraqis and Palestinians in tents. Being very close to the capital, this is one of the most visible camps. Despite the frequent visits by foreign dignitaries, journalists and charities, however, conditions in the camp are far from ideal, especially when it rains. After dark, solar lamps and mobile torches keep the market going.

Baharka camp, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

Baharka camp, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

The governorate of Dohuk, a town of 280,000 inhabitants West of Erbil, is hosting about 430,000 displaced people, in addition to refugees from Syria. When we first visited the Dohuk area, in September 2014, those who could not find hospitality with local families had occupied all of the spaces that they could turn into shelter: the local schools, building sites, unfinished buildings, garages, parks and gardens. Three months later, there are 9 official camps for IDPs in the Dohuk governorate, hosting about 125,000 people.

Two of the official camps were built by AFAD, the Turkish Disaster and Emergency Management Agency; three were built by the United Nations; and the remaining four were built by the KRG. As a result, their standards of accommodation, facilities and services vary greatly. In Bersive I camp, for example, an AFAD camp hosting about 10,000 people near Zakho, the tents are not fully insulated from the rain, there is no hot water and the number of toilets and showers does not meet minimum standards in humanitarian response.

Bersive I camp for displaced people, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Bersive I camp for displaced people, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

With all their shortcomings, the official camps built so far can only accommodate part of those in need. The majority are scattered in hundreds of informal settlements, including construction sites, community spaces and unofficial camps. Others are in private accommodation or hotel rooms. Many of the displaced in the Dohuk governorate live in construction sites and unfinished buildings with limited or no access to water and electricity – a solution which is precarious, dangerous and open to the elements. We visit large unfinished buildings with no walls, windows, doors or bathrooms, sheltering hundreds of families in makeshift rooms with plastic partitions.

Construction site in the town centre of Zakho, hosting dozens of families. Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Construction site in the town centre of Zakho, hosting dozens of families. Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Makeshift rooms in a construction site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Makeshift rooms in a construction site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

In winter, this difficult situation is made worse by the cold and rainy weather: at night the temperature can go below 0 °C. In the places we visit people do not have enough blankets, warm clothes and gasoline for heating, in addition to cooking, water and sanitation facilities. In a construction site near Zakho, Dohuk governorate, we see people making fire with paper to warm up; the weather forecast for the night is 3 °C. Many of the people we visit would not have survived without the help of generous landowners and neighbours.

Displaced people on a building site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, make fire with paper to warm up (Copyright Amnesty International)

Displaced people on a building site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, make fire with paper to warm up (Copyright Amnesty International)

There are an estimated 186,000 school-aged children (6 to 17 years old) displaced in the Dohuk governorate. The majority of them (about 89,000, or 55%) are in non-camp settings. There are significant gaps in the provision of basic education in camps. Outside the camps, parents who are struggling to provide for their family need their children to work in order to contribute to the family’s needs. As a result, very few of the children we meet are going to school.

Displaced children playing in the mud, garbage and sewage, Dairabun informal settlement, Kurdistan Region of Iraq (Copyright Amnesty International)

Displaced children playing in the mud, garbage and sewage, Dairabun informal settlement, Kurdistan Region of Iraq (Copyright Amnesty International)

We visit families in their tents, where we are offered countless cups of aromatic Arabic coffee and sweet tea. As our delegation is composed of women, the women of the families we visit can take their scarves off and the atmosphere becomes immediately more relaxed. We explain carefully Amnesty International’s role and the purpose of our visit, as it is important for our interlocutors to understand that we cannot provide them with food or clothes. However, we find people happy to talk to us; in many cases, none of the humanitarian organisation who provide them with food or clothes has stopped to hear their full story.

Inside a tent for internally displaced people, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Inside a tent for internally displaced people, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Some of the cases we documented will need long-term follow-up. An adequate response to the dire winter conditions, on the other hand, is urgent: immediately after the end of our mission we publish part of our findings, urging the international community to improve coordination and fill the gaps in humanitarian assistance:
Amnesty International, Iraq: Dire winter conditions expose shocking gaps in humanitarian assistance for thousands displaced, 19 December 2014.

 

This post is dedicated to Maria Corsi, my grandmother, who was a displaced child in Italy during the Second World War.

How to cite this post:
Francesca Pizzutelli, “Kurdistan Region of Iraq, December 2014: personal diary of a mission’”, The Rights Angle, https://therightsangle.wordpress.com/, 21 January 2015.

The 2007 Italy – Egypt readmission agreement * in English and Italian

Source: Wikimedia

Source: Wikimedia

The Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt (“Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione”) was signed in Rome on 9 January 2007 and entered into force on 25 April 2008.

According to the Italian Ministry of Interior, responding to a Parliamentary question, the agreement was still being applied in August 2013.

The Italian and English texts of the agreement were published online by terrelibere.org in September 2013.

* * *

Download the 2007 Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt in English (PDF)

Scarica l’ Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione in italiano (PDF)