Asylum Procedures Research Articles

Refugees and the Dublin Convention

The Dublin Convention defines which EU State is responsible for the asylum application of third country nationals or stateless persons. According to this Convention, the first Member State in which an asylum seeker enters is responsible for the person’s asylum procedure. It thereby stands in gross contrast to the freedom of mobility of EU-citizens within Europe. While extensive research has focused on the attempts to build up a Common European Asylum System, mostly taking up an institutional perspective, only limited sociological research has concentrated on the perspective of refugees and on the way they are affected by the Dublin Regulation and react to it. This article explores the biographical impacts of the Dublin Convention and the reaction of concerned individuals to it through the method of biographical policy evaluation. It bases on 29 biographical interviews conducted with refugees affected by the Dublin Regulation in France. It provides an in-depth analysis of three key biographical moments regarding the Dublin Convention: the arrival in France, the process of integration and moments when refugees change the European State they live in after having sought for asylum. It shows that beyond the (intended) impact on the “choice” of the country of arrival, the Dublin Convention often impacts refugees’ integration processes in a long-lasting way.

Linguistic, psychological and epistemic vulnerability in asylum procedures: An interdisciplinary approach

This article analyzes three video-recorded asylum interviews, their written records and the corresponding decisions by the Finnish Immigration Service. The goal is to identify the causes and consequences of vulnerability in instances that are particularly important when assessing whether the asylum seeker has a well-grounded fear of persecution. A combination of linguistic, psychological and epistemic perspectives on vulnerability shows that these three dimensions are closely intertwined in asylum interviews. Linguistic vulnerability is linked for the most part to interpreting, whereas psychological vulnerability stems from the difficulty in recounting traumatic experiences. Both linguistic and psychological vulnerabilities are central forces that also lead to epistemic vulnerability. Epistemic vulnerability, we claim, gives rise to certain practices within the asylum procedure, which again represents the materialization of the discourses of reporting, truth and credibility.

The Situation of Migrant Women in the light of the (Draft) Reform of CEAS

The purpose of this paper is to outline a framework of the Common European Asylum System reform taking into consideration the gender perspective as a point of reference. Migrant women are disproportionately more likely to be exposed to different forms of violence (also sexual and gender based), so it is worth examining whether their specific situation and needs have been taken into account also within ongoing and forced by current migration crisis (draft) reform of the CEAS. In order to show its potential influence first of all the proposals directly related to the standards of treatment and rights for asylum seekers (as Regulation replacing the Asylum Procedure Directive, Regulation replacing the Qualification Directive and the reformed Reception Conditions Directive) were investigated. Nevertheless, the Author has also paid some attention on the other elements of “third asylum package” (as EUAA Regulation).

Reception Centres Above.The Mountain, Emblem of the Paradox of the Integration of Asylum Seekers in Switzerland

This article analyses “what the mountain does” to people seeking asylum in Switzerland. It focuses on their experiences while they are accommodated in collective reception centres at high altitudes. At the level of Swiss society, asylum seekers are subject to an « integration » injunction, despite the uncertain outcome of their application. When the waiting and uncertainty imposed by the asylum procedure is experienced at an altitude of more than 1300 metres, the feeling of being kept away from life in urban centres is reinforced and the emotional burden exacerbated.The specific experiences of collective accommodation in the mountains, experienced by asylum seekers - and by the professionals or volunteers accompanying them - are expressed in their story telling of the place. Far from the tourist and romantic representations of the mountains, the oppositions between the top and the bottom (the valley and the plain), between the periphery and the centre (the mountain and the town) run repeatedly through the collected narratives. They maintain a representation of the mountain as a non-place of social life, an isolated place, as opposed to cities on the plain. When the reception above lasts, it sustains a process of social effacement « below» which makes the injunction to integrate into Swiss society eminently paradoxical.

“Fallen Angels” under European Union’s migration gesture

According to the European Commission, from January 2020 till now, there have been new 8636 asylum requests to Greece. In the meanwhile, the living conditions of refugees and migrants in the overcrowded camps and hotspots, have attracted the attention of the press once again, amid the COVID-19 pandemic.After her visit at the Greek, and thus European, borders, the President of the European Commission, Ursula von der Leyen was alarmed by the current situation of thousands unaccompanied minors and asked Commissioner Ylva Johansson to ensure their protection. (European Commission, 2020).This policy brief outlines the parameters of all International and European judiciary background, which protects children under refugee or migrant status. Moreover, referring to recent quantitative data, it analyses the current state of affairs, as well as the problems children face as residents in current camps and hotspots in Greece. Thus, taking all these into account it suggests briefly the following possible measures:The creation of a minors’ allocation platform for all EU countries.Public awareness-raising, through media campaigning at a European level.The adoption of the Proposal for a new Asylum Procedures Regulation 2013/32/EU.The facilitation of mutual trust and cooperation between national authorities, in order to proceed quickly with the relocation of unaccompanied minors and the raising of funds for that purpose.The increase of juvenile prosecutors per child.The application of safety measures in camps and hotspots, in order to tackle the COVID-19 pandemic.The establishment of external consultancy methods for NGOs in order to monitor the use of EU funds in accordance with childrens’ needs.

Evidentiary Value of Forensic Medical Evidence in Asylum Procedures: Where Can the CJEU Bring Light into the Darkness?

Abstract The evidentiary value of forensic medical reports in asylum procedures is highly contested, mainly for two reasons. First, a physician usually cannot establish when, where, why and by whom the applicant has been ill-treated. Moreover, a physician can almost never establish with complete certainty which treatment caused a scar or physical or psychological problem. Nevertheless, both the ECtHR and the Committee against Torture (CAT) have recognised the importance of forensic medical reports as evidence in asylum cases in their judgments and decisions. However, they rarely explicitly address fundamental questions relating to the duty to arrange for a medical examination and the evidentiary value of forensic medical reports. This article examines where the Court of Justice of the European Union may step in to provide more guidance regarding these issues to the Member States of the European Union, by interpreting Article 18 of the recast Procedures Directive.

Credibility and Testimony in Asylum Procedures with Unaccompanied Refugee Minors

Abstract The present article reviews the credibility analysis procedure proposed by the UNHCR through which asylum applications are resolved, especially for unaccompanied minors. The particularities of these refugee minors and the general character of the credibility analysis procedure are described. Credibility indicators are analyzed together with the psychological barriers related to them. This manuscript provides evidence of the presence of trauma and resilience in the studied minors and how both influence their memories during the asylum interviews. As credibility assessment has a special focus on the evaluation of narratives through memory, memory is considered as a criterion responsible for the accuracy and credibility of underage applicants’ testimony. Finally, this paper contributes with scientific psychological evidence towards the existence of multiple testimonies in asylum seekers.

The Right to Information of (Un)Accompanied Refugee Children

Refugee children often find themselves in a vulnerable position; they have experienced trauma and mental health problems and in the host country they are involved in a complex and adult-oriented asylum application procedure. International and European legal standards urge states to adapt migration procedures to the age and maturity of children and to make these more child-friendly. In this article, the core concept of analysis is the child’s right to information. It will be shown that this right is closely connected to other children’s rights and concepts, such as access to justice, child-friendly justice and the right to participation. The implementation in practice of the right to information in the asylum procedure in the Netherlands will serve as a case study, to show the precarious information position of both unaccompanied as well as accompanied refugee children. The results of this study show that the information position of these children can be improved, which will benefit their legal position, emotional well-being and possibilities to exercise their rights.

Asylum Proceedings in the Czech Republic During the Migration Crisis

Abstract The article deals with the fundamental problems that emerged on the territory of the Czech Republic during the implementation of the asylum procedure throughout the migration crisis in the years 2015 to 2019. Problematic issues related primarily to the detention of migrant asylum seekers were identified by studying the key decisions of national and international courts. The first problematic point was the amendment to the Asylum Act, which required the courts to discontinue proceedings on the review of detention orders after the foreign national was released from detention. Due to the conflict with EU law and the impossibility to claim damages for unlawful detention, this amendment was finally annulled by the Constitutional Court. The second problem was that the factual conditions for asylum seekers in the EU Member State where the asylum seeker was to be transferred for the purpose of processing his/her asylum application, were not examined. In this regard, the situation had since been rectified and the administrative authorities and courts of the Czech Republic already take this aspect into account when deciding whether an asylum seeker detained on the territory of the Czech Republic is to be transferred to the country where he/she applied for asylum. The most serious problem is so far incomplete transposition of the Procedures Directive, in particular Article 46 of the Procedures Directive, which requires from the court to review the decisions on asylum in full jurisdiction and could possibly grant asylum itself. However, this requirement does not correspond to the concept and system of administrative courts in the Czech Republic and would require a significant and costly change. The last issue identified was the poor implementation of the Dublin III Regulation, involving not setting serious risk of absconding of an asylum seeker as a precondition for his/her detention directly in the law.

Resilience in liminality: how resilient moves are being negotiated by asylum-seeking families in the liminal context of asylum procedures

AbstractBy elaborating on the concept of ‘resilient moves’, we try to show how resilience in the case of asylum-seeking families living in open, collective reception centres exists in a complicated relationship with vulnerability and is very much a matter of local negotiation rather than mere adaptation in the face of adversity. Building upon consecutive waves of resilience research, this approach inspired by practice theory focuses on the agency of acts performed by families themselves or facilitated by people and structures in various types of relationships to them. It also allows a repoliticization of resilience, explaining how denouncing vulnerability due to structural precarity might constitute resilience through resistance. An in-depth case example of an Afghan family residing for 4 years in a collective reception centre will provide illustrations of our findings and approach.

Asylum-Seekers Prosecuted for Human Smuggling: A Case Study of Scafisti in Italy

Abstract States increasingly prosecute irregular migrants – asylum-seekers included – for their (alleged) involvement in human smuggling during their own migration journey. Based on a literature review and interviews with lawyers, prosecutors, judges, and migrants on Sicily, this article provides insight into the nature and scale of this phenomenon in Italy and discusses the effects of criminal prosecution on these migrants’ asylum procedures. From 2015–2018, as a standard operating procedure, roughly 1,300 “captains” and navigators – scafisti (literally: smugglers by boat) – of small dinghies with migrants arriving in Italy have been arrested for suspicion of “aiding clandestine (or irregular) immigration”. Most scafisti are migrants themselves and there are strong indications that they were forced to steer or navigate the boat. These prosecuted migrants face many difficulties in proving duress and are often inadequately advised about the consequences of a criminal conviction on their subsequent immigration procedures. After a conviction, as well as after an acquittal, they are often excluded from official reception centres and have difficulties accessing asylum procedures. When they manage to apply for asylum, they will be denied international protection if they have been convicted. When they cannot be expelled, they may end up in a legal limbo, having to rely on a temporary humanitarian status with strict limitations.

Acceso al derecho de asilo de los niños, niñas y adolescentes no acompañados en México

Este artículo tiene la finalidad a estudiar los diferentes problemas, realidades y retos que enfrenta la niñez refugiada no acompañada en México para acceder al procedimiento de asilo en México. Sobre todo, cuando el fenómeno de la movilidad humana ha tenido gran relevancia en esta región de las Américas debido a las políticas actuales migratorias, las cuales tienden a darle mayor prioridad al tema de seguridad, que a los derechos humanos de los niños, niñas y adolescentes (NNA) con indicios de desprotección internacional. Al respecto, se utilizará el método sistemático y de revisión bibliográfica, para analizar el problema del acceso al procedimiento de asilo de la niñez refugiada en México y, los retos que enfrentan en cuanto a sus derechos humanos. Esta propuesta toma como referencia los planteamientos abordados desde la perspectiva del derecho internacional de los derechos humanos y del derecho de los refugiados.

Same same but different? DSM-5 versus ICD-11 PTSD among traumatized refugees in Germany

ObjectiveThe recent changes in diagnostic criteria for posttraumatic stress disorder (PTSD) in the 5th edition of the DSM and the 11th edition of the ICD marked a shift towards two perspectives on the same disorder. Previous studies indicate lower prevalence rates for the ICD-11-model as compared to the DSM-5 model. Main purpose of this study is to examine the concordance between ICD-11 and DSM-5 PTSD rates, and to assess the overlap of the two PTSD definitions with anxiety and depression among refugees. Methods167 traumatized refugees were assessed with the PCL-5 for the DSM-5 PTSD model. A subset of the items was used as criteria for the ICD-11 model. Depression and anxiety were measured with the HSCL-25. ResultsThe DSM-5-algorithm for PTSD identified significantly more cases (n = 147; 88%) than the ICD-11 algorithm (80%; n = 134). Level of agreement between the diagnostic systems was substantial (Κ = 0.67, p < .001) and 9% (n = 15) met criteria under one diagnostic system only. Overlap with depression and anxiety was high under both diagnostic systems. ConclusionPTSD rates indicated a highly distressed sample of survivors of war and trauma. Our data provide further evidence that the DSM-5 diagnoses a larger number of persons than the ICD-11. Although the level of agreement was substantial, the observed discrepancies represent a challenge for research and practice to reliably identify individuals with PTSD. Especially for refugees, this might affect their access to mental health care and appropriate treatment during an asylum procedure.

Seeking Asylum in the Digital Era: Social-Media and Mobile-Device Vetting in Asylum Procedures in Five European countries

Abstract The increasing use of social media and mobile devices by asylum seekers offers new vetting opportunities for immigration authorities, to verify the identity or to assess national-security or 1F-exclusion aspects. Based on interviews with practitioners in Belgium, Germany, the Netherlands, Norway and Sweden, the first experiences with both of these new methods seem to be mixed, while formal evaluations of the results seem to be lacking. We argue that the increasing reliance on these methods, in combination with the further advancement of technology, raises important questions about possible infringements on the right to private life, as well as the risk of function creep and social sorting. It can be questioned to what extent the use of these new vetting tools and methods is proportional to the results they produce and to what extent fundamental human rights, including privacy, are sufficiently safeguarded.

Seeking Asylum in Germany: Do Human and Social Capital Determine the Outcome of Asylum Procedures?

Abstract Although the Refugee Convention and European asylum legislation state that decisions regarding asylum applications should be determined solely based on persecution and other human rights violations, the outcomes of asylum procedures may be subject to socioeconomic selectivity. This article is the first to analyse whether the human and social capital of asylum-seekers affect the results of decisions regarding their asylum applications and the length of asylum procedures based on a comprehensive longitudinal survey of 5,300 refugees in Germany. We find that socioeconomic and social capital resources increase the probability of approval of asylum applications and reduce the length of asylum procedures. Moreover, human capital is particularly rewarding for asylum-seekers from countries subject to severe political and civil rights violations, whereas social networks are more conducive when the case for protection is rather difficult to prove. Finally, asylum-seekers with a higher socioeconomic status before migration seem to be better positioned to efficiently instrumentalize social networks during the asylum process. Throughout the analysis, we control for variables that capture the violation of human rights and other forms of violence, changes in asylum policies and country-of-origin-specific fixed effects. The results are robust to different specifications and are representative for asylum-seekers arriving in Germany between 2013 and 2016. Altogether, similar to other claim-making processes, the asylum process seems to promote social inequality due to socioeconomic and social capital resources.

Holding the European Asylum Support Office Accountable for its role in Asylum Decision-Making: Mission Impossible?

AbstractThe Common European Asylum System (CEAS) seeks to harmonize national asylum procedures. The initial implementation design of the CEAS, reflective of the theory of executive federalism, foresaw that national authorities were to conduct asylum processing and implement the harmonized norms. The implementation design of the EU asylum policy has, nevertheless, started to shift. An integrated European administration is emerging. One area this is pronounced in is asylum decision-making, where patterns of joint implementation have surfaced. This term broadly refers to staff and experts deployed by the European Asylum Support Office (EASO), an EU agency, working alongside national administrators, including on the processing of asylum claims. This Article scrutinizes the emergence of joint implementation patterns in EU asylum policy and the resulting accountability challenge, drawing both from legal analysis and political science theories. I also refer to administrative practice as documented in secondary sources. EASO is currently subject to a mosaic of accountability processes. Two main pitfalls emerge: the intricate balance between accountability and independence; and accessibility for the individual. Against this backdrop, I focus on extra-judicial accountability through the European Ombudsman which, combined with the envisaged internal “individual complaints mechanism” within EASO, could go some way in ensuring applicants’ procedural rights.

Interpretacja Europejskiej Konwencji Praw Człowieka a międzynarodowe prawo uchodźcze - kilka uwag na tle pozbawienia wolności w związku z migracyjnym statusem

Niniejszy artykuł jest poświęcony problematyce detencji uchodźców i osób poszukujących ochrony międzynarodowej w ramach procedur azylowych i migracyjnych, analizowanej z punktu widzenia interakcji pomiędzy standardami praw człowieka a prawem uchodźczym. Celem podejmowanych rozważań jest odpowiedź na pytanie czy i w jaki sposób Europejski Trybunał Praw Człowieka uwzględnia standardy prawa uchodźczego analizując dopuszczalność tego typu ingerencji w wolność i bezpieczeństwo osobiste pod rządami art. 5 EKPC. Zagadnienie to jest złożone, ponieważ mowa o dwóch reżimach prawa międzynarodowego w ramach których przesłanki zastosowania detencji administracyjnej uchodźców i osób poszukujących ochrony międzynarodowej się różnią. Przeprowadzona w tym kontekście analiza orzecznictwa strasburskiego prowadzi do wniosku, że ETPC aczkolwiek przywołuje i bierze pod uwagę standardy prawa uchodźczego, to jednak jego postawa zdaje się być silnie zdeterminowana faktem, że detencja imigracyjna ściśle łączy się z wykonywaniem przez państwa prawa do kontroli własnego terytorium. W konsekwencji nie wszystkie rozwiązania prawa uchodźczego są przez ETPC uwzględniane, co w sposób szczególny dotyczy zastosowania standardu ostatecznego charakteru środków detencyjnych.

Improving objectivity, balance and forensic fitness in LAAP

This paper is a response to Yaron Matras’s article ‘Duly verified? Language analysis in UK asylum applications of Syrian refugees’. Matras evaluates 50 reports by the Stockholm-based agency Verified AB. He introduces his own approach, which he calls ‘inductive-dialectological’, and claims that it addresses many of the problems in Verified’s approach. We respond on a number of fronts. We interpret the role and duty of the expert performing language analysis in the asylum procedure as essentially the same as that of a forensic expert in criminal law. We argue that Matras’s approach fails to adhere to principles of sound forensic evidence, thereby risking biased conclusions. Furthermore, we contend that Matras’s view on the question to be addressed is not in line with the trier of fact’s requirements. We also consider the need for a fixed conclusion scale, the institutional demands driving casework and the large number of disparate conclusions among experts. We conclude with some advice to asylum courts and LAAP practitioners.

Behind the Scenes of South Africa’s Asylum Procedure: A Qualitative Study on Long-term Asylum-Seekers from the Democratic Republic of Congo

Abstract Despite the difficulties experienced by asylum-seekers in South Africa, little research has explored long-term asylum applicants. This exploratory qualitative study describes how protracted asylum procedures and associated conditions are experienced by Congolese asylum-seekers in Tshwane, South Africa. Eighteen asylum-seekers and eight key informants participated in the study. All asylum-seekers had arrived in South Africa between 2003 and 2013, applied for asylum within a year of arrival in Tshwane, and were still in the asylum procedure at the time of the interview, with an average of 9 years since their application. Thematic analysis was used to analyse the data. The findings presented focus on the process of leaving the Democratic Republic of Congo, applying for asylum and aspirations of positive outcomes for one’s life. Subsequently, it describes the reality of prolonged periods of unfulfilled expectations and how protracted asylum procedures contribute to poor mental health. Furthermore, coping mechanisms to mitigate these negative effects are described. The findings suggest that protracted asylum procedures in South Africa cause undue psychological distress. Thus, there is both a need for adapted provision of mental health services to support asylum-seekers on arrival and during the asylum process, and systemic remediation of the implementation of asylum procedures.

To strive, to seek, to find, and not to yield: Narratives on the road to asylum.

This study aimed to explore the ecological influences on subjective well-being identified by current and former community-dwelling asylum seekers engaged in the process of Refugee Status Determination in Australia. This article presents the qualitative component of a prospective mixed-methods study of 131 asylum seekers and refugees (T1, N = 131; T2, N = 56). The Framework Analysis method was employed to qualitatively analyse the narrative data derived from 187 semi-structured interviews documenting pre-, peri-, and post-migration experiences, and the impact of Australia's asylum policies and procedures. Four overarching themes comprising 15 sub-themes emerged: The Refugee Status Determination process (Waiting; Uncertainty; Worry); Psychosocial factors (Un/employment & gainful activity; Medicare; Accommodation; Family separation & loneliness; Loss); Health and well-being (Mental health; Physical health & somatic issues; Hopelessness; Helplessness); and Protective factors (Hope; Support & social connectivity; Religion). The complex interface between the Refugee Status Determination process, un/employment, and mental health concerns was the most salient finding. Policy implications are discussed in relation to the application of the Convention and Protocol Relating to the Status of Refugees and the Guidelines on the Judicial Approach to Expert Medical Evidence.