Refugees facing obstructions to sanctuary following European court ruling

Refugees in Croatia facing obstructions to sanctuary following European court ruling
7 min read
01 Sep, 2017
Comment: The European Court of Justice has left Croatia responsible for dealing with hundreds of thousands of refugees. And Croatia is rejecting as many as it can, writes Tajana Tadic.
Thousands of refugees are trapped in Europe in legal limbo [AFP]
In April, two Croatian civil society organisations, the Center For Peace Studies and Are You Syrious?, raised concerns in a report regarding the sudden increase in rejections of applications for international protection, made mainly by persons from Syria and Iraq.

A common thread connects the rejections - they are all issued against refugees deported to Croatia per the Dublin III regulation, and they are based on a so-called security "obstacle", put forward through the assessment of the Security and Intelligence Agency (SIA).

In the context of the recent European Court of Justice decision, which deemed Croatia to be responsible for people who crossed through its territory on the way to central and western Europe, it is crucial to address this matter, as it may affect many more refugees.

In the cases mentioned in the report, the Ministry of the Interior, upon receiving the applications for international protection or status regulation, submitted a request for security vetting to the SIA. After the vetting is carried out, the agency submits an opinion stating only whether an "obstacle" exists - providing no explanation or furtehr details of such "obstacles", and thus preventing refugees from ever finding out what they have been accused of, or having a chance to defend themselves.

Herein, SIA appears to break its own regulations - the Law on Security Agencies - where it says that the agency ought to restrict access to the sources of information, but must not restrict the access to the information itself, for this is fundamental to a person's right to a fair trial.

After receiving an asylum rejection based on security reasons, the applicant can file a complaint to the Administrative Court of Croatia within 30 days. The judges largely have security clearance for reading "restricted" case files, and in 100 percent of the rulings to date, they have concluded that the agency has only irrelevant and, in many cases, dubious evidence to support the asylum rejections.

For many of these Dublin III deportees, no evidence exists that they ever crossed Croatia's territory in the first place

It is particularly concerning that almost all refugees deported to Croatia through the Dublin III regulation have been designated as potential threats to the country's national security and their asylum claims rejected - even after it was concluded that they will likely face persecution and possible death if returned to their home countries. Among them are babies, single mothers, people with disabilities, and teenagers wanting to see their mothers after years of separation.

Furthermore, for many of these Dublin III deportees, no evidence exists that they ever crossed Croatia's territory in the first place - which raises questions regarding profiling and the selection criteria of those who are to be deported.

Why were these 900 people deported to Croatia, while the other 600,000 people who took the exact same route and have similar home-country conditions, were not?

The follow-up report prepared by the civil society organisations shows that the arbitrary and unlawful practices of the Interior Ministry and the SIA towards asylum seekers and refugees continue with impunity, and that there is very little concern for the well-being of people seeking international protection.

By August, there had been no response from the relevant state or public institutions - and there is no indication that any citizen-based or parliamentary oversight, or even internal supervision of Interio Ministry and SIA practices will be implemented.

All the people mentioned in the report have met all formal conditions for international protection, and their applications have been denied solely because of these supposed "security obstacles". It is important to note that these decisions affect the whole family, which means that if parents are denied international protection, their children are automatically included.

Such is the case of the Al-Sadoons, an Iraqi family of seven who were deported from Austria after living there for 11 months. The family now lives in fear, awaiting an appearance in front of the Administrative Court later in September.

While there is the possibility of the rejected being cancelled, a new set of complications arises from the fact that, in previous cases, despite the Administrative Court's legal mandate to determine the facts, independently present the evidence and even grant asylum based on the merits of the case - they have not always done so.

Read more: Refugees still braving the soul-crushing "Balkans route"

Those cases were instead returned to the Interior Ministry and SIA for a new round of assessments - extending the legal limbo into indeterminable oblivion, and leading us to question if there is any justice to be found in returning the asylum request to once again be evaluated by the very same institutions whose arbitrary and illegal procedures were proven by the court.

The situation is difficult as well for the people observing the proceedings, watching and waiting for their own asylum decisions. Some are terrified to such an extent that they picked up their families and fled, either to the relative safety of western Europe, or have "voluntarily" returned into their war-torn home countries. Others face extreme emotional and psychological distress. Suicide attempts are, sadly, not unheard of. 

The Center For Peace Studies and Are You Syrious? maintain that "there is a visible and planned discouragement policy towards the asylum seekers implemented by the state", and it is manifested in the unlawful Interior Ministry and SIA practices described.

The euphemism "discouragement" refers to direct border violence, as well as making access to the territory and the international protection system virtually impossible, along with the unfounded rejections of applications for international protection, as well as the severely lacking integration policies and practices.

The two organisations also insist that this information must be viewed in the light of the recent ruling by the European Court of Justice in the cases C-490/16 A.S and C-646/16 Jafari. Among the questions referred to the Court of Justice by the Supreme court of Austria and the Slovenian Administrative Court in the two cases was whether the cooperation and facilities provided by the EU transit states amount to visas within the meaning of the Dublin III regulation - or if they should be considered as an "irregular crossing".

The court has ruled that "the Member States in which applications for international protection were first lodged are responsible for examining those applications" and that persons who crossed Croatia's border en masse during the height of the 2015/2016 crisis must be regarded as having crossed the external border of Croatia irregularly within the meaning of the Dublin III regulation.

Putting the onus of examining applications for international protection by persons who crossed its border on Croatia in this situation is problematic on a few levels. First in terms of numbers - between 16 September 2015 and 5 March 2016, a total of 685,068 people entered Croatia, and from what we've seen so far, Croatia does not have the capacity - or the will - to deal with even a fraction of that number.

Other disturbing aspects are the previously mentioned systematic violations of asylum seekers' human and refugee rights in terms of the arbitrary and unlawful actions of the Interior Ministry and SIA, the violations of the state's own legislative framework, as well as the treatment of those who dare appeal the decisions at the Administrative Court.

The plaintiff, who is also a victim of torture, had to endure the trial with no provisions ensuring his psychological well-being

As evident from the ruling in Taramsi v the Ministry of Interior, the plaintiffs are subjected to an almost surreal procedure, where the truthfulness of their account is questioned as a result of the fact that the interpreter, who does not speak the plaintiff's dialect, misunderstood the nuances of his testimony.

The plaintiff, who is also a victim of torture, had to endure the trial with no provisions ensuring his psychological well-being. He delivered pictures, recordings and diplomas confirming his boxing career, yet was accused of hiding his identity after an expert from the Ivan Vučetić Forensic Science Centre Googled the transliterated name of his boxing club from Gaza and found a football club on Wikipedia instead.

Upon Googling the name in Arabic script, something which has been done by judicial authorities, the official page of the club can be found among the first results.

One can only hope that as many Member States as possible will remember what solidarity means and invoke the "sovereignty clause", which enables them to decide to examine applications for international protection lodged with them, even if they are not required to carry them out under the criteria laid down in the Dublin III Regulation.

Tajana Tadić is a Balkans-based graduate student and refugee aid worker with 'Are You Syrious?'

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