“TESTING” THE SEXUALITY OF ASYLUM SEEKERS ENTERING THE EU – ADVOCATE GENERAL OF THE ECJ CONDEMNS “HUMILIATING” CREDIBILITY ASSESSMENTS

On the 17th July 2014, the Advocate General of the Court of Justice of the European Union gave her opinion on the upcoming joint case called C-148/13, C-149/13 and C-150/13. 

The applicants (A, B and C) came to the Netherlands seeking asylum as feared persecution because of their homosexuality. All of the applicants were denied asylum as they had not passed “Credibility Assessments” and thus had not “proved” their sexuality. The three men’s case have now reached the Court of Justice of the European Union.

Before the judges deliberate on a case, an Advocate General delivers a non-binding opinion. Ms Eleanor V.E. Sharpton is acting as Advocate General in this case. AG Sharpton’s opinion can be followed, ignored or to some extent taken into account by the judges when they determine the case. 

In this case, AG Sharpton was highly critical of tests on sexuality imposed on asylum seekers. Her opinion is that medical, psychiatric or psychological “expert opinions” in order to access an asylum seekers’ sexuality are not allowed under the asylum seekers’ Qualification Directive. This is because they breach the European Charter of Fundamental Human Rights.

Some “Credibility Tests” imposed by Member States that are considered by AG Sharpton include:

1) Upsetting and humiliating interrogations being forced on asylum seekers, including questions based on stereotypical assumptions of sexuality 

2) Demanding participation in “pseudo-scientific” medical tests such as phallometric measurements of arousal

3) Authorities seeking “proof” of sexual activity such as recordings of sexual activity

She notes that sexuality is something that is just inherently unmeasurable and personal thus these “Credibility Tests” breach refugees’ rights under the EU Charter to human dignity, right to consent to medical procedures, right to physical and mental integrity and the right to a private life, which includes the right to keep very personal information secret and the right to chose one’s sexuality.

AG Sharpton urges that refugees should not be subjected to a “trial” to prove their sexuality. Instead, AG Sharpton wants “co-operation” between authorities and asylum seekers. The first step in accessing a person’s sexuality is to simply ask them what sexuality they think they are.

Ergo, the authorities should look for what is not credible about the facts of situation rather than what is stereotypically “credible” for a LGBT person.

If AG Sharpton’s reasoning is followed by the Court, it is likely to have a positive and reforming impact on credibility assessments of LGBT asylum-seekers. It will also reinforce to Member States that not every person’s sexuality fits into the same narrative.

Brophy Solicitorsa

DIRECT PROVISION ACCOMMODATION IN IRELAND – A BREACH OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND VALUES

Writing in Jesuit Quarterly Studies this week, the Ombudsman Emily O’Reilly has heavily criticised the system of direct provision for asylum seekers. According to O’Reilly, the system is in breach of the Irish Constitution and international human rights law as there is a real risk of child abuse and a lack of protection of family rights. Delays in processing asylum applications result in some families living in direct provision centres for years. The Ombudsman argues that the centres are suitable only for very short periods of time and not for long-term residency.

Nearly 5,000 asylum seekers currently reside in direct provision centres and over 1,800 of those are children. Meals are prepared for the asylum seekers, meaning that they have no control over their diet, families are often required to share rooms with other families, leading to a lack of privacy, and each person receives a sum lower than €20 a week to live on, with children receiving less than €10 per week. The Ombudsman also notes that enforced idleness is common, as asylum seekers cannot work while there asylum status is under review. 

In her investigation into a complaint made by one family, O’Reilly found that they had been separated due to a failure on the part of the HSE to implement a Social Welfare decision. An African woman and her two daughters who came to Ireland to seek asylum were placed in a direct provision centre and lived there for fifteen months. The family left because of serious concerns over the mental health of one of the daughters, who had attempted to take her own life. Her mother felt that the conditions in the centre they were living in were having a negative impact on her child’s mental health and decided to leave the centre on this basis. The child was placed in foster care because the family had no income. Initially, the mother’s application to receive Social Welfare was rejected, but following a lengthy appeal process, she was eventually approved to receive payments. However, the decision was not implemented, which had adverse consequences for the family, who are still separated. The Ombudsman has criticised the lack of implementation of the decision in strong terms.

O’Reilly believes that the conditions described are in breach of Article 41.1.1 of the Constitution, which protects family rights and Article42A.1, which was inserted as a result of last year’s referendum to protect children’s rights. In her article, the Ombudsman notes that while there are some contradictory Supreme Court rulings, there is general consensus that the natural rights provisions of the Constitution apply to all people in the state and not only to Irish citizens. 

Regarding international human rights, FLAC has commented that ‘the direct provision system does not provide an environment conducive to the enjoyment or fulfilment of the most basic human rights, including the rights to health, food, housing and family life. It also has negative repercussions on the right to education and the right to work as well as to freedom of expression, freedom of movement and freedom of association.’ Ireland is party to a number of international human rights conventions, including the European Convention on Human Rights and the International Convention on the Rights of the Child, and therefore is required by law to respect the rights of all people as listed by FLAC.

At Brophy’s, we have encountered appalling reports from clients living in such accommodation. We welcome the Ombudsman’s review and call for the Minister to take immediate action to review the living conditions in Direct Provision centres around Ireland. 

Katie O’Leary

Brophy Solicitors

Ireland will not benefit from EU Migration Law advancements

The Irish Presidency has advanced important developments to complete the final two legislative measures on the processing of Asylum Claims forming part of the Common European Asylum System (CEAS).

CEAS is provided for in Article 78 of the Treaty on the Functioning of the European Union. It provides that the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection in accordance with the principle of non refoulement and the 1951 Geneva Convention on the Status of Refugees.

The Irish presidency programme outlined the objectives to secure agreements in relation to the Student and Researchers Directive, Seasonal Workers Directive and the Intra Corporate Transfers Directive. The President also aims to establish the Asylum and Migration Fund Regulation, an instrumental part of an overall framework for EU financial support in the field of international security, to contribute to the operational costs at national and EU level of border control.

Proposals for compromise texts on the recast of the Asylum Procedures Directive and the Eurodac Regulation have been approved by Member States. The adoption of these measures remains subject to the approval of the European Parliament and the Council.

Minister for Justice, Equality and Defence, Alan Shatter, Chair of the Justice and Home Affairs Council stated in relation to these developments:

"Completing the Common European Asylum System will be an important milestone towards ensuring the consistent and equitable treatment of asylum seekers irrespective of the Member States in which they present their asylum application. 327,345 asylum applications were received in the EU in 2012, an increase of 7.8% on the previous year. It is vitally important that the Union has a system that ensures that procedures for processing applications are both fair and effective but also robust and not open to abuse. I am pleased that the Irish Presidency has been able to advance discussions with the Parliament and we are now hopeful of reaching an early agreement on this basis."

However, whilst it is evident these developments mark an important progression in the area of migrant reform, it must be noted that Ireland has ‘opted out’ of participating in the revised laws which form part of the CEAS, and not signed up to others including the Reception Conditions Directive. Only Ireland and Denmark failed to sign up to the latter, however unlike Ireland, Denmark has provided the right to work in separate legislation. Consequently Ireland will not benefit fully from this important milestone towards ensuring the consistent and equitable treatment of asylum seekers, placing Irish Immigration laws out of line more now than ever with that of other European countries. 

For information on this item and further developments of the Irish Presidency see: http://eu2013.ie/news/news-items/20130327ceaspr/

Brophy Solicitors 

04.04.13

Tackling the Culture of Disbelief in Asylum Claims

Earlier this month, following the Irish refugee council’s report ‘Difficult to believe’, a conference was held on Credibility in asylum claims.

Professor Guy S. Goodwin Gill a senior research fellow and professor of International Refugee law at Oxford University was the keynote speaker.

He spoke about the protection of refugees as “a matter of international obligation”, stressing the importance of “a fair and efficient procedure” in the determination of asylum claims. He highlighted that the 1951 Refugee Convention says nothing about procedures or process leaving its implementation up to the states themselves.

He described how a fair process must include certain essential elements such as a full hearing; appropriate evidential standards; evidence-based decisions and the requirement of a review or appeal.

In terms of establishing the risk of persecution he noted the problems with the onus being placed solely on the applicant and said practical considerations impose a duty on the decision maker.

In discussing the decision in Rustamov  v Russia 2012, the professor asked “what must asylum seekers show?”

In this case,  the Court pointed out that requesting  an applicant “to produce "indisputable" evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.”

The professor asserted that “The Strasbourg court is clearly sending signals about the process of decision-making.”

He also noted that the appreciation of fear of persecution is based on an objective situation and said that the decision-making process requires us to look at a series of variables making it unpredictable.

The professor noted that decision makers can’t ever have absolute confidence in their decisions but insisted that a well established process anchored in International law is needed.

In terms of personal credibility, he noted that although asylum applicants have a duty to tell the truth, there is a duty on decision makers also. He claimed that too little attention is paid to assessment and more attention needed to be paid to form for example early legal assistance, affirming that “this is what experience has taught us”.

The professor said he was pleased to read the IRC report and agreed that the system is not working and is not in compliance with international obligation. He described our system as “a ready-made case-study of what not to do”.

He highlighted how medical evidence is not given any weight in Ireland. In contrast he gave an example of a UK Court of Appeal case in which the applicant was totally lacking in credibility but succeeded on the basis of medical evidence alone.

The professor also discussed decision-makers assumptions, taking for example the claim that you can’t through an airport on a fake passport.

In terms of Appeal and review Professor Goodwin Gill said that it is not enough to say “I do not believe” and described the system as a “world of inferences”. He noted that almost universally a late submission equals a lack of credibility.

He expressed that what we want is a picture of the individual in context, concluding that “The individual needs to be brought back into the picture, back into the realm of international law.”

Justice Catherine McGuiness, who was chairing this discussion added that the “the narrow concept of judicial review opens itself up to a culture of disbelief.”

The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the Director of the centre for post-conflict justice at Trinity. Professor Byrne said that a “serious reconsideration of the system was needed” and that there was reason for significant concern over the low recognition rate here.

She discussed asylum testimony as human rights testimony and noted that “the nature of the asylum seeker as a victim has an impact on the way testimony is presented”.

She expressed the importance of rethinking how we approach credibility.

She mentioned Canadian studies that highlight a “presumptive scepticism” in asylum claims showing that unstated assumptions are driving the process.

She mentioned in particular the problems of the unstated assumption that the motivations of asylum seekers are to deceive the system.

Following this Dr. Jane Herlihy, Executive Director of the centre for the study of Emotion and the Law (CSEL) gave a presentation on psychological evidence in asylum claims. She focused particularly on the diagnosis of post traumatic stress disorder and emphasised that the absence of a diagnosis does not disprove a history of trauma just as the presence of a diagnosis is not evidence of trauma.

Fadela Novak-Irons, the UNHCR Policy Officer for Europe, described the importance of quality in decision making and expressed how credibility was at the core of this process. She highlighted the various challenges faced by the system such as decisions under conditions of uncertainty; Absence of witnesses; General nature of country of origin; human behaviour; the role of memory as well as trauma and vulnerabilities.

She went on to discuss the CREDO project currently been undertaken by the UNHCR and described it as taking a multidisciplinary approach to these issues.

The aim is for the UNHCR to launch new credibility guidelines by 2014.

Brophy Solicitors 

26.11.12

“Urgent Review” of Asylum Process is required

In their report “Difficult to Believe: the assessment of asylum claims in Ireland”  the Irish Refugee Council call for an “urgent review” of the entire asylum process. The vast majority of asylum cases in this country are refused with only 5% of applicants being granted protection despite apparently legitimate claims.

The report criticises the decision makers in Asylum applications and appeals. Their main concern is a “culture of disbelief” that permeates the asylum system that seemingly results in many applications not receiving fair consideration. The number of successful asylum seekers in Ireland is less than half the EU average according to the report. Conversely, the UK granted just over one in five of the applications decided in the same year (22%) This is four times the amount afforded protection in Ireland.

Sue Conlan. chief executive of the council, said the study had been carried out “to get a better understanding of why the majority of applications for refugee status in this country are refused”.

The report concluded that the application and appeal processes themselves were behind the low acceptance rate here.

“Particularly where the Tribunal is concerned there are reasons to believe that there is a ’culture of disbelief’ that informs the approach that some Tribunal members take.”

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325339068.html   

Brophy Solicitors

23.10.12

UN High Commissioner for Refugees criticizes our Asylum system

Antonio Guterres, UN High commissioner for Refugees has said that Ireland would benefit from a simpler asylum process. Ireland has one of the lowest numbers of successful asylum applications in the EU.

He was in talks last week with the Department of Justice and Equality  that  “in relation to potential improvements in the Irish asylum system, namely the possibility, through legislation, of the simplification of procedures”.

He mentioned that sought also to “improve the quality of the decisions”.

He noted that “In Ireland, I would say that the tradition is of a very strict approach to these things and what is now being discussed is how to have a more nuanced approach.”

In addition he expressed “deep gratitude and appreciation” of Irelands continued support of his office despite  its economic difficulties.

http://www.irishtimes.com/newspaper/ireland/2012/1012/1224325187869.html

Brophy Solicitors

19.10.12

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

Article from UK’s “Asylum Aid” Quarterly report: The Director’s Note

Minister Damian Green has revealed plans to reform the UK’s asylum system, specifically regarding the “culture of disbelief.” Frequently, claims of asylum are denied because the interviewers question the applicant’s credibility, or believe they are outright lying about the treatment they received in their country of origin. This objectivity and bias leads to many poor decisions, reports author Maurice Wren. Asylum Aid, the UK-based asylum assistance organization, is committed to providing quality legal advice to vulnerable asylum-seekers, helping them overcome bureaucratic hurdles and the “culture of disbelief.” Wren calls on the Home Office to show leadership in this matter.

Brophy Solicitors

24.08.12

http://www.asylumaid.org.uk/data/files/publications/194/AA_NewsletterSummer_2012WEB.pdf

Journalist asylum-seeker released from detention

A Cameroon national who sought asylum in the UK was released from detention, reports the UK Guardian in an article reported on Monday, 13^th August.

The man fled Cameroon in 2007 after being abused by the ruling governmental party for supporting opposition groups. He was a journalist in Cameroon and he suffered mistreatment. He has resided in the state since, where he met and married a charity worker. He was ordered to return to Cameroon to apply for a spouses visa, and he offered to return voluntarily if the government could guarantee his safety, but as they could not, he refused to go. He was detained and given a deportation order, but has now been released and has been granted permission to apply for Leave to Remain.

Brophy Solicitors

http://www.guardian.co.uk/uk/the-northerner/2012/aug/13/immigration-refugees-bernard-mboueyeu-cameroon-sheffield-uk-borders-agency

New Irish programme supporting child asylum seekers; RIPN materials on PILA website

The latest PILA bulletin from 25^th July includes an article that discussing the rights of child asylum seekers. The Minister for Children has introduced a program entitled “One Good Adult” that will help ease the transition into living in Ireland for child asylum seekers. Each child will be paired up with an adult, who will act as a mentor for him or her and assist them in adapting to life in the State. The report quotes Tanya Ward, stating that, “separated children are alone in Ireland without love, care and solidarity from their families. This project provides them with a person who will walk with them every step of the way on their journey through the care and asylum process ensuring their best interests are taken into account and their voices are heard.” This program is exciting because it will mean that there are less bereft migrant children living in the state with no one to look out for their interests.

Also, the Immigrant Council of Ireland (ICI) has called for a reform on immigration processes that affect children. The number of migrant children in Ireland is growing significantly, and the immigration and education systems are not adequately equipped to deal with the needs of this growing group. The ICI specifically called for a reform of immigration policies, a review of current tuition fees, and schemes targeted and eliminating xenophobia and racism.

Ahmadiyya Community: Advocate’s General opinion in joined cases of the European Court of Justice; C-71/11 and C-99/11, Bundesrepublik Deutschland v Y & Z

According to Advocate General Bot, a serious infringement of the freedom of religion may constitute an act of persecution where an asylum seeker runs a real risk of being deprived of his most fundamental rights by exercising that freedom. This would be the case where he risks death, inhuman or degrading treatment or of being prosecuted or imprisoned arbitrarily.

The German Federal Administrative Court asked the Court of Justice to set out the circumstances in which an infringement of the right to freedom of religion and in particular of an individuals right to live his faith freely and openly may constitute an act of persecution within the meaning of the directive. This reference arose from a dispute between the German authorities and two Pakistani asylum seekers who are active members of the Ahmadiyya community. This is an Islamic Reformist Movement that the Sunni Muslim majority in Pakistan have long contested and their religious activities are severely restricted by the Pakistan Penal Code. They are unable to profess their faith publicly without their activities being considered to be an act of blasphemy, a charge punishable by imprisonment or even the death penalty.

Directive 2004/83/EC seeks to establish common criteria for all of the member states to recognise the refugee status of asylum seekers within the meaning of Article 1 of the Geneva Convention. Advocate General Bot expressed his opinion that the aim of the common European asylum system is limited to an individual who may be exposed to persecution in his county of origin, which is classed as a serious and intolerable attack on his person and his indefeasible rights. 

Advocate General Bot set out the fundamental nature of the freedom of religion and rejected the idea that only a serious interference with the freedom to manifest one’s religion in private may constitute an at of persecution. The freedom of religion is subject to certain limits in order to maintain religious pluralism and the peaceful coexistence of different beliefs. Certain prohibitions may carry criminal penalties once the penalties are proportionate and determined in compliance with individual liberties. A serious infringement of the freedom of religion may constitute an act of persecution where the asylum seeker runs a real risk of being treated unjustly.

The AG was of the view that the prohibitions in Pakistani law in relation to the situation of the members of the Ahmadiyya community in Pakistan are likely to constitute a serious infringement of the freedom of religion. The penalties may constitute persecution because they aim to deprive any person of his most basic rights if they persist in publicly manifesting their faith by threatening them with imprisonment or death.

The authority responsible for examining an asylum application cannot reasonably expect the applicant to renounce his religious activities to avoid persecution. This would deny him a basic right guaranteed by the convention and also deprive the directive of its effectiveness since it would not protect a person who is exposed to acts of persecution.

Brophy Solicitors

27.04.12