In the Foreign Policy Centre’s 2014 publication ‘Shelter from the Storm’, The European Council on Refugees and Exiles (ECRE) gave an overview of the development of the Common European Asylum System (CEAS) and the types of issues that could be faced by someone fleeing persecution from the Russian Federation^[1]. In this essay we will discuss current issues for people seeking international protection in Europe, particularly those from the former Soviet Union, and how proposed changes to the CEAS may affect this group in future.

Although refugees from the former Soviet Union are not in the media as often as those from some other countries, the on-going conflict in Ukraine^[2], recent horrific reports of internment ‘camps’ for homosexuals in the Chechen Republic^[3] and crackdowns in Tajikistan^[4] are among the issues that remind us that people are still being forced to flee their countries of origin to seek international protection.

Of the countries of the former Soviet Union, only the Russian Federation was present in the top ten countries of origin in 2016 in the European Union (EU), ranking in 9^th place with 27,875 asylum applications. This was a slight increase on 2015 but a drop since 2013^[5] when Russian citizens were in second place^[6]. The European Asylum Support Office (EASO) reports that applicants from Russia were gender balanced and approximately half were children, indicating that larger numbers of families came from Russia last year^[7]. Russian citizens applied for asylum most often in Germany and were the highest nationality of applicants in Poland. There were also sizeable numbers of people seeking international protection in Europe in 2016 from Ukraine (12,475); Armenia (8,505); Georgia (8,315); Azerbaijan (5,735); Moldova (3,655); and Tajikistan (3,210)^[8].

The predicament of those fleeing the former Soviet Union in search of protection is not equally felt across the European continent, however. While Russia, Ukraine and Tajikistan figured among the top countries of origin in Poland^[9], and Ukraine represented the top nationality in the Czech Republic and Slovakia and third largest country of origin in Spain, the majority of European countries have mostly received asylum seekers originating from other regions such as the Middle East or Northern Africa^[10]. As a result, national asylum systems have not necessarily dealt with the protection needs of those coming from former Soviet Union countries extensively over the past year.

Protection rates and the ‘safe country of origin’ concept

People coming from the former Soviet Union face widely divergent chances of obtaining asylum depending on the EU country of destination. According to 2016 figures published by the EU’s statistical office, Eurostat, disparities in recognition rates were particularly strong for nationals of Russia, Ukraine and Tajikistan:

Source: Eurostat^[11]

Overall, while Poland has maintained some of the lowest protection rates for asylum seekers originating from the region, EU countries have not been consistent in the treatment of protection claims from the former Soviet Union. Recognition rates for Russia have varied from 8.1% in Poland to 42.6% in Austria, thereby dispelling the relevance of common legislative standards and guidance at the EU level. The disparity in protection opportunities persists despite efforts from EASO to promote convergence in country of origin information (COI) on Russia through a Country of Origin Information (COI) Specialist Network on the Russian Federation and a COI report on the Russian Federation – State Actors of Protection, published in March 2017^[12].

The Internal Protection Alternative (IPA) can also be invoked to deny refugee status to persons at risk of being persecuted for a Convention reason in part, but not all, of their country of origin. The IPA concept is not currently used consistently across the countries applying the CEAS^[13] but has been used in the past in the case of applicants from the Russian Federation. A European Migration Network (EMN) ad-hoc query from 2013 shows that whilst some countries applied the IPA concept to applicants who were or who had aided insurgents from the North Caucasus and their family members (Norway, UK, Hungary), others used it sometimes or rarely (Finland, Cyprus), whilst others countries did not use it at all (France). In fact France saw the fact that a person had relocated inside Russia as a potential indicator of problems^[14]. In 2015 another EMN ad-hoc query looked at whether there had been any increase in LGBTI asylum seekers from Russia and included a question on the application of the IPA in these cases. The few Member States who responded to this question indicated that it might be difficult ascertaining the degree of protection available at the local level, but every case would be assessed individually. If it was clear from the documents that there was an IPA available then there would be no obstacle to applying it in a given case^[15]. More recently there has also been case law from Austria^[16] and Poland^[17] on the use of the IPA in cases from Ukraine.

EU Member States have been more convergent towards claims from Georgia, which have mostly been treated as unfounded. In some EU Member States, this country is also classified as a country whose nationals are presumed to run no risk of persecution or harm. Georgia was recently reaffirmed as a ‘safe country of origin’ in France^[18] and was added to ‘safe country of origin’ lists in Austria, Belgium and the Netherlands in 2016^[19]. This designation means that the examination of asylum applications are processed under accelerated procedures, subject to fewer safeguards and shorter time limits^[20]. In addition to Georgia, the Netherlands also added Ukraine to its list of ‘safe countries of origin’ at the end of 2016^[21].

A new deflection zone for the EU? Access to the territory and the ‘safe third country’ concept

As the numbers of applications for asylum rose in Europe over the course of 2015, we witnessed various strategies to cope with higher numbers of arrivals. Many of these have taken the forms of physical or legal barriers designed to keep people from arriving in the EU and to externalise responsibility for those seeking international protection outside of its borders. Whilst most of the attention has been focused on the Central and Eastern Mediterranean route where the majority of people arrived, as well as the Western Balkan route which was closed in 2016, there have also been reports of problems and push backs in the east.

Poland has spearheaded attempts to prevent asylum seekers from entering through its Belarusian border in search of protection, mainly affecting those coming from Chechnya and Tajikistan^[22]. Push backs in Terespol, already reported in previous years, have intensified since 2016, resulting in individuals refused the right to enter Poland and to lodge asylum applications despite clearly formulated requests invoking persecution in their home countries. Reports claim that the border guards ignore the requests of persons who ask for international protection, and often act purposely to humiliate foreign nationals through the use of derogatory and offensive language^[23]. More recently, despite an interim measure imposed by the European Court of Human Rights, access to the asylum procedure was denied to a Chechen asylum seeker trying to enter Poland from Belarus. According to a press statement by the Polish Ministry of Foreign Affairs, the interim measure is not applicable as the “foreigner to whom the order of the Court in Strasbourg was issued did not actually enter the territory of Poland”^[24].

Beyond refusals of entry which have affected those coming from the region, European countries have also relied on legal concepts to deflect asylum applications and shift protection responsibilities to former Soviet Union countries. The use of the ‘safe third country’ concept, allowing authorities to dismiss applications without examining their merits on the ground that another country is able to afford protection to the claimant, emerged in the practice of countries such as Norway, Finland and Estonia in the case of individuals transiting through Russia^[25].

These designations have been rigorously scrutinised by national courts, however. The Administrative Court of Helsinki in Finland considered in a series of decisions the situation of applicants arriving to Finland from the Russian Federation while having a valid visa or residence permit for Russia (granted on grounds other than international protection). The Court found that they could not be considered to have received protection in Russia solely on the grounds that the appellants had been granted visas or residence permits and they could reside there and so other grounds for such a consideration would be required. In this way, Russia could not be considered a safe third country for the appellants on the grounds presented by the Finnish Immigration Service^[26].

In 2016 Estonia also started to apply the ‘safe third country’ concept to reject asylum applications lodged by individuals transiting through Russia. Several decisions were reviewed by Estonian courts, including the Tallinn Circuit Court, which concluded that the Russian Federation cannot be considered a safe third country. Estonian courts concluded that there are serious obstacles in the Russian Federation with regard to effective access to its asylum procedure, as well as substandard protection of rights of asylum seekers, including respect of the principle of non-refoulement^[27].

Piece of a bigger puzzle: The changing architecture of the Common European Asylum System

Several of the issues that are obstacles to refugees and asylum seekers from the former Soviet Union accessing international protection in Europe form part of a broader change in the EU’s vision of its asylum policy.

In 2016, the European Commission issued proposals to overhaul the Common European Asylum System as a reaction to higher numbers of arrivals in a proclaimed ‘refugee crisis’. The CEAS will be redesigned on the basis of seven legislative proposals for reform, including proposals to reform the Dublin Regulation and to transform the Asylum Procedures Directive and the Qualification Directive into Regulations^[28], to reduce differences in recognition rates and procedural guarantees and standards from one Member State to the next. Whilst there are some positive changes in all of the reformed instruments, ECRE has profound concerns about the speed of their introduction and the key principles underlying them. Overall, these proposals shift the CEAS to a situation whereby ‘protection in the region and resettlement from there to the EU should become the model for the future’^[29].

‘Safe country’ concepts as a mandatory control device

The reform of the Dublin Regulation proposes to reject a substantial part of asylum applications, if not most, before they ever reach the Dublin responsibility-allocation mechanism. New requirements would make Member States of first entry assess whether an asylum seeker can be transferred to a ‘safe third country’ or a ‘first country of asylum’, or be subjected to an accelerated examination for ‘safe country of origin’ or security reasons first. The proposed architecture of the Dublin system would therefore require the majority of asylum seekers to stay in the first EU country they enter, except where their claims may not be rejected on the aforementioned grounds. This seems in line with Poland’s position, as expressed in the Polish Parliament (Sejm)’s resolution on the Dublin proposal^[30].

The proposed Asylum Procedures Regulation brings about a mainstreaming of ‘safe third country’ and ‘safe country of origin’ concepts by making their use mandatory in the EU, in addition to imposing extremely short deadlines for applicants to comply with often onerous procedural requirements. The mandatory use of those concepts will be coupled with mandatory EU-wide lists not only of countries presumed safe for their own nationals (safe country of origin lists)^[31], but also for those deemed safe for persons seeking protection (safe third country lists), as confirmed by EU leaders’ most recent political commitments^[32]. The lists would be adopted by EU legislation, although EU law would still allow Member States to go beyond their scope by using national lists or, in the case of safe third countries, by applying the concept in individual cases even in the absence of lists.

These are likely to result in increasing numbers of applicants, including those originating from or transiting through former Soviet Union countries, being denied a careful examination of the merits of their claim.

Opportunities for obtaining protection will be further reduced through the proposed Qualification Regulation, a new mandatory application of the internal protection alternative would oblige states to reject asylum applications if they find that a person could have sought protection in another part of their home country.

A push for returns

High numbers of arrivals in Europe in 2015 also raised concerns for the European Commission and Member States about the gap between the number of third country nationals who receive a return decision and those who leave the EU. As a consequence, increasing return rates has become part of the discussion of how Europe could ‘regain control’ of its borders. The European Agenda on Migration from 2015 proposed that third countries fulfil their international obligations to take back their own nationals residing irregularly in Europe as well as that Member States apply the Return Directive. The EU Action Plan on Returns, the Return Handbook, the renewed Action Plan and the European Commission Recommendation on making returns more effective when implementing the Return Directive soon followed^[33]. ECRE does not dispute the fact that governments have the right to return asylum seekers whose applications have been correctly rejected. However, people should only be returned after a fair and efficient examination of their asylum claims. Priority should always be given to voluntary return and returns should be carried out in a safe, dignified and sustainable manner.

The current approach favours the deterrence of migration and removal of obstacles to return through decreasing safeguards, decreasing the period and opportunities for voluntary departure, increasing the length of detention and increasing possibilities for sanctions. At the same time the bar for reintegration packages is being lowered. Reintegration packages provide a small level of support to people who have just returned to their country of origin or habitual residence and usually comprise of a small cash sum and in-kind support^[34]. In discussions to reduce reintegration support for fear of ‘return shopping’, the EU is echoing approaches taken in countries like the Netherlands, which, following an increase in the requests for return support by Ukrainians reported by the International Organisation for Migration (IOM) and DT&V, decided to exclude Ukrainians as of 22 March 2016 from additional financial support and return support in-kind^[35]. A study of a small sample of returnees to Russia from Norway in 2014 showed the limitations of reintegration support and how this challenges the sustainability of returns^[36].

There are also concerns after a recent meeting of the European Council discussed adjustments that may be needed in EU legislation to further link return and asylum policies, including the link between ‘safe third country’ concepts and ensuring well-functioning readmission agreements are in place with the countries concerned^[37]. The EU currently has readmission agreements in place with Armenia, Azerbaijan, Georgia, Moldova, the Russian Federation and Ukraine to take back their own nationals, third country nationals and stateless persons found to have illegally entered, be illegally present or residing in a requesting EU Member State. Many applicants for asylum from Central Asia and other countries cross the Russian Federation before applying for asylum in EU Member States and as discussed earlier the ‘safe third country concept’ has been applied by some EU countries to Russia^[38]. Meanwhile, in December 2016, the European Court of Human Rights ruled that Russia’s mass expulsion of Georgians in 2006 had seriously violated their rights^[39]. There have also been several cases against Russia at the European Court of Human Rights, notably by citizens from Central Asia who have faced difficulties defending their rights in Russia and consequently faced potential refoulement^[40]. There are also reports of hundreds of people expelled from the Russian Federation with no regard for their procedural or other rights^[41].

Conclusions

In summary, we can see that people continue to flee the countries of the former Soviet Union to seek international protection in Europe, particularly from Russia, Ukraine, Armenia, Georgia and Azerbaijan. There can be barriers to physically access Europe, for example not being able to cross the EU border from Belarus into Poland. Their treatment and whether they are granted a status can be very different depending on the country where they seek protection – although this also depends on the specifics of the individual case. Concepts such as the Internal Protection Alternative, safe third country and safe country of origin have been used in cases of people seeking protection from the region and further restrict access to their fundamental rights. Current changes in the CEAS look set to increase this trend, for example by making it obligatory for the Internal Protection Alternative to be considered by Member States. There are also concerns about the push for returns, reductions in safeguards during return procedures and a focus by Member States on links between the asylum and return regimes, particularly given the difficulty asylum seekers face in accessing their rights in Russia and the risk of refoulement.

Recommendations:

1. The EU should refrain from a mandatory use of safe country concepts (‘safe third country’ and ‘first country of asylum’) to deflect responsibility for asylum applications to its neighbouring regions, as such a move would run contrary both to international cooperation on fair responsibility-sharing in refugee protection, and requirements set out in international human rights law.
2. The EU should equally resist the obligatory use of the Internal Protection Alternative (IPA), a control device whose place in the international refugee regime remains highly contested. The reform of the CEAS would result in consolidating an additional criterion of eligibility for refugee status, contradicting the Refugee Convention and the interpretation given to it by several EU countries[42].

[1] Adam Hug (ed.), Shelter from the storm? The asylum, refuge and extradition situation facing activists from the former Soviet Union in the CIS and Europe, Foreign Policy Centre, April 2014, http://fpc.org.uk/publications/shelter-from-the-storm

[2] Radio Free Europe has a regularly updated blog with news from the conflict, available at: .

[3] ILGA Europe has regular updates on the situation at: https://www.ilga-europe.org/Chechnya

[4]  For example, see Human Rights Watch https://www.hrw.org/europe/central-asia/tajikistan

[5] 41,470 Russian citizens applied for asylum in Europe in 2013 (source Eurostat).

[6] European Asylum Support Office (EASO), Annual report on the situation of asylum in the EU+ 2016, July 2017, available at: , 14.

[7] Ibid, 16.

[8] Eurostat, migr_asyappctza.

[9] Asylum Information Database (AIDA), Country Report Poland, 2016 Update, February 2017, available at: , 6.

[10] AIDA, Refugee rights subsiding? Europe’s two-tier protection regime and its impact on the rights of beneficiaries, March 2017, available at: , 29.

[11] Eurostat, Table migr_asydcfsta, http://ec.europa.eu/eurostat/web/asylum-and-managed-migration/data/database

[12] EASO, Annual report on the situation of asylum in the EU+ 2016, July 2017, 39.

[13] See ECRE, Actors of Protection and the Application of the Internal Protection Alternative, European Comparative Report, October 2014, available at: .

[14] EMN, Ad-Hoc Query on asylum seekers from the Russian Federation, November 2013, available at: .

[15] EMN, Ad-Hoc Query on asylum seekers from the Russian Federation, June 2015, Open Summary available at: https://www.udi.no/globalassets/global/european-migration-network_i/ad-hoc-queries/fi-compilation-on-asylum-applicants-from-the-russian-federation.pdf

[16] Austrian Federal Administrative Court, Decision W111 2131009-1, November 2016, available at: .

[17] Polish Voivodeship Administrative Court, Decision IV SA/Wa 685/15, October 2015, available at: .

[18] AIDA, ‘France: Council of State upholds list of safe countries of origin’, January 2017, available at: .

[19] EASO Annual Report 2016.

[20] See more at ECRE, Accelerated, prioritised and fast-track asylum procedures in Europe, May 2017, available at: .

[21] AIDA, Country Report Netherlands, 2016 Update, March 2017, available at: , 46.

[22] AIDA, ‘Poland: Worsening restrictions and refusals of entry at the Eastern border’, September 2016, available at: ; ‘Poland: Access to asylum denied at the Eastern borders’, July 2016, available at: .

[23] AIDA, Country Report Poland, 2016 Update, February 2017, available at: , 16-17.

[24] Polish Ministry of Foreign Affairs, ‘Wyjaśnienie MSZ w sprawie zarządzenia Europejskiego Trybunału Praw Człowieka z 8 czerwca 2017r’ (Explanation of the Ministry of Foreign Affairs on the regulation of the European Court of Human Rights of June 2017, unofficial translation by ECRE), available at https://goo.gl/JHNVrd.

[25] See e.g. EASO, Annual report on the situation of asylum in the EU+ 2016, July 2017, 89, 101, 104; Human Rights Watch, ‘Norway/Russia: Don’t jeopardize asylum seekers’, 3 February 2016, available at: .

[26] EASO, Annual report on the situation of asylum in the EU+ 2016, July 2017, 104.

[27] Ibid, 101.

[28] See European Commission, Proposal for a [Dublin IV Regulation], COM (2016) 270, May 2016; Proposal for [an Asylum Procedures Regulation], COM(2016) 467, July 2016; Proposal for [a Qualification Regulation], COM(2016) 466, 13 July 2016. See ECRE’s comments on the proposals at: .

[29] European Commission, Proposal for a Dublin IV Regulation, COM (2016) 270, May 2016, Explanatory Memorandum, 2.

[30] Sejm, Resolution on the Commission proposal for a Dublin IV Regulation, October 2016, available at: .

[31] An EU list is already foreseen in the proposed Asylum Procedures Regulation, which includes Albania, Bosnia-Herzegovina, FYROM, Kosovo, Montenegro, Serbia and Turkey as safe countries of origin.

[32] European Council, Conclusions 22-23 June 2017, available at: , para 23.

[33] See European Commission, Action plan on return, COM(2015) 453, September 2015: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/communication_from_the_ec_to_ep_and_council_-_eu_action_plan_on_return_en.pdf ; Commission Recommendation of October 2015 establishing a “Return Handbook”, C(2015) 6250: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/commission_recommendation_establishing_a_return_handbook_for_member_states_competent_authorities_to_deal_with_return_related_tasks_en.pdf ; On a more effective return policy in the European Union – a renewed action plan, COM(2017) 200, March 2017: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170302_a_more_effective_return_policy_in_the_european_union_-_a_renewed_action_plan_en.pdf ; Commission Recommendation of March 2017 on making returns more effective when implementing the Return Directive, C(2017) 1600: http://data.consilium.europa.eu/doc/document/ST-6949-2017-INIT/en/pdf.

[34] All countries differ in the reintegration package they offer and it depends on the country of origin. However, an example of reintegration support from Norway can be found here: http://iom.no/en/varp/vg

[35] EASO, Annual report on the situation of asylum in the EU+ 2016, July 2017, 142.

[36] Ksenia Volosovtsova, Going back with a future? The case of rejected asylum seekers returning from Norway to Russia, June 2014. https://brage.bibsys.no/xmlui/bitstream/handle/11250/218173/Going%20back%20with%20a%20future%3f%20KVolosovtsova.pdf?sequence=1&isAllowed=y

[37] European Council, Conclusions 22/23 June 2017, available at: , paras 22-23.

[38] European Commission, Readmission agreements, available at: .

[39] EHRAC, ‘European Court rules Russia’s detention and deportation of Georgians ten years ago contravened Convention rights’, December 2016, available at: .

[40] ECtHR, Khamrakulov v. Russia, Application No 68894/13, Judgment of April 2015, available at: .

[41] See Civic Assistance Committee, Administrative Expulsion from Russia: Court Proceedings or Mass Expulsion? http://refugee.ru/en/news/deportations-from-russia-court-proceedings-or-mass-expulsion/

[42] For more information on ECRE’s recommendations on the Common European Asylum System, see ECRE Comments on our publications page available here: https://www.ecre.org/ecre-publications/