2016 was a tough year for migrants and refugees, the open boarder policy has seen some countries like Germany paying heavily, Turkey has also suffered and the recent New Year attack is testament to this. Germany currently has a huge number of asylum seekers awaiting confirmation or deportation. In the midst of all that are economic migrants who are mainly from Africa and the European court of human rights has helped in setting precedent over a number of legal issues. The White house has recently announced a stop in its migration policy with Cuba. The special exception for Cuban immigrants — known as the “wet-foot, dry-foot” policy — has been in place since the 1990s. It allows Cubans who make it to U.S. soil to stay, while those caught in transit are sent back. Those who are permitted to remain also may be eligible to receive benefits the U.S. grants to refugees fleeing persecution, including cash assistance and health care coverage.
In its ground-breaking BAC V Greece judgment of October 13 2016, the European Court of Human Rights found that Greece violated the right of an asylum seeker to respect for his private life under Article 8 ECHR due to the failure of the Greek authorities to effectively deal with his asylum application. Whilst the facts of the case are outright extraordinary, the overall significance of the case cannot be downplayed. For the first time, the Court accepted that Article 8 ECHR may be breached due to a State’s inactivity in respect of an asylum application.
The applicant, a Turkish national, had been arrested by the Turkish authorities, and after being charged with an offence against the constitutional order on account of his pro-communist and pro-Kurdish convictions, was placed in solitary confinement. Following a 171-days long hunger strike, he was set free. On 15 January 2002, having entered Greece, he applied for asylum, yet the application was dismissed. The applicant brought an appeal against this decision. According to the law in force at the time, decisions upon appeal were made by the Minister for Public Order within a period of 90 days, following an advisory opinion by a ‘Consultative Asylum Committee’. Indeed, the Committee issued an opinion favorable to the applicant on 29 January 2003.
From this date and for a period of 12 years (up until the application before the Court), the Greek state refrained from reaching any decision on the asylum application. The applicant spent these 12 years in Greece as an asylum seeker denied – in accordance with domestic law – the right to vocational education, to obtain a driver’s license, to open a bank account. The Greek authorities, including the Greek police, nonetheless, did not fail to attest on several occasions that the application was pending, thus renewing his asylum applicant’s identification card. In the meantime, the Turkish authorities sought to extradite the applicant to Turkey. Following a legal battle before the Greek courts the extradition request was defeated. One should also add that the applicant’s wife joined him in Greece in 2003 for a period of 9 years, during which a child was born unto the couple. Still, the applicant was deprived of the right to family reunification, and the situation of the couple was only regularized – somewhat – following the issuance of a temporary work permit to the applicant’s wife in 2008. Eventually, she decided to return to Istanbul and the couple divorced.
The Greek Government sought to have the application dismissed as inadmissible invoking non-exhaustion of local remedies. The Court refused to entertain the arguments put forth by Greece, namely that the asylum application had been rejected ‘silently’ by the Minister, and that the applicant had failed to seek annulment of this rejection before the Supreme Administrative Court of the Republic.
The most important part of the judgment is the one focusing on Article 8 ECHR. The Court starts by paying lip-service to its settled relevant case-law underlining that the Convention does not guarantee the right of a non-national to enter or reside within a State of his or her choice, since States have as a matter of international law the right to control the admission, presence and expulsion of non-nationals. Still, relying on the Grand Chamber judgment in M.S.S v. Belgium and Greece, the Court reiterates that States are under a series of positive obligations vis-à-vis non-nationals, including an obligation to examine asylum applications promptly so as to prevent asylum applicants being subjected to situations of precariousness and legal uncertainty. The Court then goes on to distinguish the situation of the applicant from that of non-nationals contesting the State’s refusal to award them a residence permit on account of family or social ties. Indeed, the State did not intend to expel the applicant. What was at stake in the present case was the omission of the Minister for Public Order over a period of twelve years to reach a decision on the asylum application despite the favorable opinion of the Consultative Commission, as well as the position of Greek courts against the applicant’s extradition to Turkey. The Court follows up on this by spelling out the nefarious consequences such omission had on the applicant’s private life: he was forced to work in construction clandestinely due to the severe restrictions placed upon the right of asylum seekers to access the labour market, he could not open a bank account, enroll in the University, and – most importantly – he did not have a right to family reunification. The Court concludes that the Greek authorities failed to discharge their positive obligation to establish an effective and accessible procedure for the protection of the applicant’s right to respect for his private life, namely they failed to examine his asylum application within a reasonable time period, subjecting the applicant to a situation of prolonged precariousness, and thus violating his rights under Article 8 taken alone, and in combination with Article 13 ECHR.
The judgment is bound to stir debate among the refugee and human rights law contingent. First, it underlines that States are under an obligation to decide on asylum claims within a reasonable time frame, thus pre-empting any attempts by States to justify delays in the asylum process on account of the recent spike in the number of asylum claims. Indeed, throughout the past two decades, European States – such as Greece – have taken cover behind the ‘back log’ of accumulating asylum cases as a reason to keep asylum applications pending for years. What is more, States will think twice before refraining from deciding asylum applications on account of foreign policy considerations. The Court has paved the way for (rejected) asylum applicants to attach weight to States’ delays in examining their application. In this sense, the present case differs from past expulsion cases, such as Nnyanzi v the UK, where the Strasbourg Court, dismissing an Article 8 claim by a Ugandan rejected asylum applicant, argued that her removal was not rendered ‘disproportionate by any alleged delay on the part of the authorities in assessing [her asylum and human rights claims].’
Second, and more important, the Court attaches legal weight in the light of Article 8 to the impediments created by the host State to the asylum seeker developing social ties pending examination of his/her asylum claim. In past cases involving asylum claims, the Court treated any ties formed as tainted since the status of the applicant was seen to be precarious ‘from the outset’ (see Useinov V the Netherlands). This may well be the case where an asylum claim is filed upon the service of a deportation order after overstaying one’s visa; in other words when the asylum claim serves to prolong one’s lawful presence in the host State. Yet, to create impediments to the formation of such ties, whilst delaying the examination of a bona fide asylum application filed upon arrival, is manifestly unfair. For once, the asylum seeker is legally present in the host State and, what is more, presumed a refugee pending decision on the asylum application. An asylum seeker should thus be allowed to form social ties within the host State in the light of Article 8. The burden now lies with States to effectively and speedily examine asylum applications, with a view to preventing social ties being formed. States cannot both prolong the duration of the examination of asylum applications beyond any reasonable time frame (for reasons or failings of their own) and defeat any protection accorded to asylum seekers under Article 8 ECHR.
BY YONGYERA ROLAND
This article appears in our weekly digital law magazine, The Deuteronomy Vol 1, Issue 2 of 13th January 2017
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