Europe breaking own rules to deter asylum seekers

This article was published by Al Jazeera International.

ATHENS, Greece - A recent decision by the European Ombudsman that found “serious errors” with an Algerian man’s asylum denial has served to highlight broader issues in Europe’s asylum practices.

Human rights organisations in Greece tell Al Jazeera that the case referred to the Ombudsman is only a part of broader systemic flaws and a deliberately restrictive application of asylum law.

Mr. X was deported back to Algeria after being interviewed by the European Asylum Support Office (EASO) on the Greek island of Leros in January last year. His homosexuality is illegal in his home country, and his sexual partner’s family had threatened to kill him if he returned.

The legal aid group Advocates Abroad, which represented Mr. X, says it has lost touch with him and now fears the deportation may have led to his death.

In a complaint dated April 2018, seen by Al Jazeera, Mr. X’s lawyer said the EASO interviewer “prejudiced the outcome” of Mr. X’s case by conducting the interview “in a hostile and adversarial manner,” that contravened EASO’s own published guidelines.

The European Ombudsman agrees that “the errors… may have contributed to the fact that Mr. X was deported.” 

EASO does not deliver final decisions on asylum cases. That is the legal responsibility of the Greek Asylum Service; but human rights lawyers say that because of workload pressures, the Service often relies heavily on EASO’s recommendation.

EASO’s interviewer, according to AA’s lawyer on the ground in Leros, “appeared confused by the facts, and ignorant on issues related to sexual orientation and gender identity, and at times was impatient, insensitive and aggressive with Mr. X.”

Excerpts from the interview reveal that the interviewer repeatedly probed Mr. X on his sexual preferences and spent little time talking about the substance of his asylum claim, which were the death threats. 

EASO admitted that the questions were “inappropriate” and the case officer had “made a serious error of judgment.” But it did not inform the Greek authorities in time to reverse the deportation decision.

The European Ombudsman ruled that “EASO’s failure to address adequately and in a timely way the serious errors committed in Mr. X’s case constituted maladministration.”

EASO tells Al Jazeera that it has taken steps to address shortcomings. “Quality checks are now carried out on site by team leaders so as to ensure that all standards are met,” it said in written responses. “EASO is also in an advanced stage of the development of a complaint mechanism. Indeed, the Agency has made the matter a priority,” EASO says.

The Greek Asylum Service declined to answer whether it had reviewed the decision on Mr. X.

Europe’s asylum system overwhelmed

EASO’s role at the European Union’s external borders became important after 2015, when increased refugee arrivals meant that the EU annual caseload more than doubled to over 1.3 million.

The EU reached an agreement with Turkey in March 2016 to stem the flow of arrivals to the EU through Greece and Bulgaria. In the EU-Turkey Statement, Turkey agreed to “readmit… all third country nationals or stateless persons who do not, or who no longer, fulfil the conditions in force for entry into” the EU (Art. 4).

That includes migrants and asylum-seekers who do not qualify for international protection.

The Greek Asylum Service, only two years old in 2015, needed help adjudicating tens of thousands of asylum cases and asked for EASO’s help at the border. But EASO was also under pressure to provide case workers in other EU member states. Many new caseworkers had to be hired who may not always have operated flawlessly.

In her exit interview with Al Jazeera in February 2018, the Greek Asylum Service’s founding director said she was not entirely satisfied with the help EASO provided in those early years.

“The case handlers who came in were very uneven in terms of experience and training,” Maria Stavropoulou said at the time. “There were those whom we wanted with 15 years of experience, who were able to support our personnel, which was unavoidably very new, and there were those who were much more inexperienced than our people.”

“On the whole they have certainly helped… but haven’t been as helpful as we had hoped,” Stavropoulou said.

Interviews or interrogations?

Advocates Abroad and other legal aid groups based in Greece believe the behaviour that led to Mr. X’s deportation may not just be the result of inexperience, but of poor policy decisions.

In a series of letters to EASO, seen by Al Jazeera, Advocates Abroad has catalogued repeated breaches of EASO procedure in hundreds of interview transcripts.

These include failure to establish whether an asylum applicant is a minor, which alters their legal status; failure to provide the applicant and their lawyers with transcripts of the interview as required, or to allow an applicant’s lawyer to be present; failure to provide reliable interpreters; and failure to pay caseworkers overtime, meaning that interviews have to be interrupted at 4pm when working shifts end.

These procedural breaches, however, are minor compared to two other observations.

“I’m concerned that whereas [EASO] set out to improve the quality of its interviews through multiple questions and longer interviews, this may come back like a boomerang and EASO may end up being accused of doing interrogations instead of asylum interviews,” says Lora Pappa, president of Metadrasi, a Greek charity that has provided interpretation since 2010 and this year won the Conrad N. Hilton Humanitarian Prize.

“A person may not say exactly the same thing the second or the third time [they are asked],” says Pappa. “Are we aiming to extract a person’s story without fear? Or are we looking to catch him out the third or fourth time, when he says something slightly different, when we pounce on him and say, ‘Aha! You’re a liar.’?”

Apart from confusing interviewees by asking for information they believe they’ve already provided, the repetitive questioning serves another function, human rights lawyers say.

“You’ll have something like an eight-hour interview, but only a 4-5 page transcript, which is impossible,” Ariel Ricker, the founder of Advocates Abroad, tells Al Jazeera.

“They’re actually going through all the questions and then [interviewers] are giving them a 15-minute break, and then bringing them back to ask the same questions again, and then whichever version (we’re assuming) the EASO expert likes the best, has the most basis to adhere to, that’s what ends up going into the transcript, not what was said the first time.”

EASO says that it “has no indication of discrepancies between the length of interviews and that of the transcripts,” and says all interviews are audio recorded.

Admissibility: Heading them off at the pass

The most pivotal point in asylum interviews, human rights groups say, concerns admissibility – an applicant’s right to be admitted to the EU to apply for asylum, rather than being sent back to apply in Turkey. To pass this hurdle, interviewees have to explain why Turkey is an unsafe country for them. As a rule, EASO has conducted admissibility interviews in Greece since the EU-Turkey Statement of 2016.

Vulnerable asylum-seekers – including pregnant women, minors, those who’ve suffered physical or psychological violence or the mentally ill – are by definition admissible, so the determination of vulnerability, which until recently was carried out by EASO, is key to gaining that first foothold on European soil.

The Greek Council for Refugees, a leading legal aid group, says EASO curtailed its vulnerability assessments in July, and legal aid charities were informed orally of the change. 

“Whereas before there was a seven-hour interview on vulnerability, there is now a single question, such as, ‘are you feeling alright?’ or ‘are you ready to do this interview?’” says Maria Louisa Karayianopoulou, a lawyer with GCR. “It is the interviewee’s sole opportunity to talk about their problems.”

GCR believes the vulnerability assessment was deliberately curtailed in order to exclude applicants from the second stage of the asylum process.

“This happens so that lots of people don’t get referred to the Greek Asylum Process,” says Karayianopoulou.

EASO admits to the change in procedure, but says this “does not mean that vulnerability assessment has been curtailed.” Rather, “as of July it was clarified in the workflow that the Greek authorities are fully responsible for vulnerability and medical assessments, meaning that EASO has been able to fully focus and further reinforce its support, as foreseen in the Operating Plan, to interviewing applicants for international protection.”

EASO confirms that “vulnerability issues are still being flagged by EASO experts, for the Greek authorities to assess and further explore if needed.” But Karayianopoulou believes that “this is going to lead to a lot of vulnerability cases being missed, because all the Greek authorities have to go on is a few indicators.”

“In theory [the Greek handler] has the authority to call the applicant to an additional interview, but in practical terms we’ve seen that this rarely happens because of the workload,” says Karayianopoulou.

The Greek Asylum Service did not respond to repeated requests for comment for this article.

Advocates Abroad agrees that vulnerability is a potential cutoff point for many legitimate asylum applicants, and has documented cases of  inappropriate admissibility interviews.

In one, a caseworker repeatedly asks the applicant why she should not be returned to Turkey to apply for asylum there. The applicant was a Syrian mother whose husband had been killed by the Islamic State of Iraq and the Levant (ISIL), the Sunni fundamentalist faction attempting to establish a theocracy in Syria and Iraq.

“They never should have gone through this interview,” says Advocates Abroad’s Ricker. “She’s a single parent with kids… that makes her a vulnerable category… she’s supposed to skip this whole interview and go straight into eligibility [for asylum].”

Vulnerability assessment has long been a hot potato. In the initial refugee rush into Europe it was carried out by the aid group Doctors of the World (MDM) with European funding. After the summer of 2017, when the European Commission diverted funding from charities to the Greek government, the Greek Centres for Disease Control (KEELPNO) took over the task. They proved woefully inadequate because most of their doctors fled the hotspots pleading harsh working conditions. EASO then stepped into the breach until last July, when the Greek Asylum Service took over.

The Greek Asylum Service has so far escaped criticism from human rights lawyers, who believe it has resisted European pressure to make faster and more superficial determinations of asylum status. But Greek government policy is now shifting.

The three month-old conservative government announced on September 30 that it aims to return 10,000 asylum-applicants to Turkey next year – a sharp increase considering that only 1,806 have been returned since 2016.

That suggests even more pressure will be placed on applicants to justify their admissibility to the EU, and heavier emphasis on questions about why Turkey isn’t a safe third country for them. From now on, though, it will not be EASO conducting these assessments but the Greek Asylum Service.

Asylum was conceived in the 1951 Geneva Convention as a primarily humanitarian process, designed for supplicants who’d lost their freedom, security and means of livelihood, and who couldn’t necessarily always produce incontrovertible proof of their claims. Rights groups fear that the more European policy hardens, the more the asylum process moves towards a traditional legal or judicial process in which asylum-seekers face a heavier burden of proof, and the more it risks disadvantaging those it was designed to protect.