Recent developments have improved the standing of asylum seekers who are making their first steps towards applying for refugee status.
In IM v. France, the European Court of Human Rights (ECtHR) found that the lack of a suspensive appeals procedure in France’s asylum process was a violation of its obligations under the European Convention on Human Rights (ECHR). A suspensive appeal essentially suspends the return of the asylum seeker to their country of origin until a decision has been made on their appeal. Under France’s faulty “priority” procedure, the asylum seeker stands the risk of being returned to their country of origin prior to their appeal. The European court found that an asylum seeker processed under this fast track procedure does not in practice receive the benefit of an appeal and therefore there is a violation of the right to an effective remedy. Click here to see the ECtHR's press release on the decision (the decision is currently only available in French).
The UK has recently experienced similar condemnation of “fast-track” procedures. The UN High Commissioner for Refugees has criticised UK Border Agency practices in relation to the detention of possible victims of trafficking and torture prior to their “fast-track” deportation from the UK. This problem arises from inadequate screening processes prior to detention. A report by John Vine, Independent Inspector for the UKBA, stated that there was “too great a risk” of survivors of torture or trafficking being detained because of the way initial screening processes were being carried out.
The ECtHR has also held in Irsi Jamaa and others v Italy that the state violated the Convention when it “pushed-back” Somalian and Eritrean migrants at sea to Libya – upholding the absolute nature of non-refoulement principles. In 2009, 200 migrants from Somalia and Eritrea attempted to travel on three boats from Libya to Italy. En route, the boat got into trouble and was assisted by Italian coastguard and customs vessels. However the Italian authorities then returned the migrants to Libya, without any form of assessment of their status.
The court firstly held that the migrants were under Italian jurisdiction when on the Italian vessels. It then found two violations of Article 3 (prohibition of torture or inhuman or degrading treatment). The court held that it was widely known that irregular migrants faced serious rights violations in Libya and that therefore Italy could not return the migrants to somewhere they may fall victim to rights violations. The second violation of Article 3 was due to the fact that the migrants were at risk of being sent onwards to their countries of origin from Libya. Of further importance is the fact that the court found a violation of the prohibition on the collective expulsion of aliens (Article of Protocol 4). Finally the court found a violation of the right to an effective remedy (Article 13) as the migrants had no access to any form of assessment or procedure.
Andrea Saccucci, an Italian lawyer representing African migrants, was quoted by The Guardian as saying, "It is the first time a court has recognized the unlawfulness of the push back operations with regard to international law and human rights ... We are very satisfied and hope it will prevent similar actions in the future."