Commentary regarding the Minister of Interior and asylum seekers under the title 'If he wants, he can do it as from today'

published on 2 November, 2008

Dear Mr. Kounnafis,

Further to the commentary published in your newspaper on 2 November 2008, UNHCR Representation in Cyprus would like to make some observations on these very important issues which you may consider for publication. We are happy that there is a debate, because while there is exchange of views there is room for improvements.

In the commentary under the title “If he wants he can even as from today”, the following statements, among others, are made:
- that in 2007 the public allowance to asylum seekers reached 18.281.687 Euro,
- that this amount could be even be double if indeed these persons were genuine refugees, but unfortunately not even 1 out of 1000 asylum seekers fled their country in order to save their lives due to political, religious or other beliefs,
- that this phenomenon concerns illegal migrants who are channelled into the Republic and unfortunately with assistance of citizens of the Republic they are baptised as refugees (political refugees).

1. Refugees and asylum seekers cannot be labelled as illegal immigrants and are not punished by reason of their unlawful entry.

As you are aware the1951 Refugee Convention, to which the Republic of Cyprus is a Contracting State, is the main international instrument that provides for the protection of refugees. It contains, among others, the refugee definition (Article 1A), as well as provisions that prohibit the return of refugees to countries where their life or freedom would be threatened (Article 33- principle of non-refoulement), regardless of the fact that refugees enter unlawfully in the country of refuge (Article 31). The same provisions are consequently included in the national refugee law.

Although drafted in 1951, both the international community and the EU have reaffirmed the relevance and enduring importance of the 1951 Refugee Convention. In 2002 a ministerial-level conference attended by 156 countries, non-governmental organizations and other groups in Geneva adopted a declaration which committed signatory nations to "implement our obligations under the 1951 Convention and/or its 1967 Protocol fully and effectively" and hailed the treaty as one of “relevance and resilience” and of “enduring importance”. It was acknowledged that the Convention was not the problem but the solution and the starting point was to try to improve the policies.

Similarly, the EU organs reaffirmed the centrality of the 1951 Convention by stating clearly that their work towards establishing a Common European Asylum System would be “based on the full and inclusive application of the Geneva Convention”. It is worth noting that Article 31 of the Convention has never been challenged by any Member State in the EU when discussing the relevant legislation on asylum, which has already been adopted by the EU and almost fully transposed into the national laws of most of the EU Member States, including Cyprus.

We could ask ourselves, are all those government representatives from so many countries or parliamentarians selected by the citizens, wrong?

Both Article 31 and 33 of the 1951 Convention have been interpreted to include asylum seekers, because every asylum seeker (when a person indicates his/her fear of persecution) is a potential refugee whose life or fundamental rights are in danger. Therefore, every asylum seeker should be allowed access to an asylum procedure; otherwise his/her return to his/her country of origin/country of transit would endanger his/her life or freedom and would constitute a flagrant violation of the principle of non-refoulement. In other words, access to the asylum procedure must be allowed- in accordance with the law- at the moment any person indicates his/her fear of persecution at any point of entry into the Republic or inside the Republic at any police station, regardless of the unlawful entry. Hence no person needs to be assisted by citizens of the Republic in that regard and if they are it’s because they have unfortunately difficulties in accessing the asylum procedure.

As regards your symbolism through the reference to baptism, in fact the multiple examples of persecution (torture or cruel, inhuman or degrading treatment or punishment, arbitrary arrest and detention, lack of recognitions before the law, arbitrary interference in private, and family life, slavery or servitude) are the ones that no doubt leave an indelible mark in the minds and sometimes bodies of the human beings that international protection aims to assist. A person becomes a potential refugee from the moment s/he leaves his/her country and when reaching another country s/he applies for asylum at the competent authorities of this country (in Cyprus- the Asylum Service) who will then examine whether this person is need of international protection or not.

As regards the rational that lies behind the impunity of asylum seekers who enter unlawfully in a country seeking protection (Article 31), is the established and undisputable fact that the greatest majority of refugees have no other legal option (i.e. valid passports and or visas) to travel to a safe country and indeed they always find themselves in between two evils: either to stay in their country of origin and face persecution or to resort to smugglers, whose last interest is the safety of their clients, and risk their lives by seeking safety, without passports or visas, in another country.

2. Mixed migratory groups and abuse of the asylum system.

It is common in our days, not only in Cyprus but everywhere, that refugees travel away from violence and persecution together with migrants who are travelling for other reasons, all of them without passports without visas. Even if the number of refugees among the mixed migratory groups is small, the importance and sanctity of the institution of asylum can never be disputed. Even 1 life to save is enough to justify the preservation of the institution of asylum. The legal obligation of every democratic state is to protect these people by giving them access to asylum procedures (during which it will be ascertained whether they are refugee or not) and to the basic human rights they lost back in their countries.

It is equally true that there is an abuse of the asylum system, which again is common in our days not only in Cyprus but everywhere in the world. As long as there is poverty, natural and environmental destruction people will be on the move, and in the absence of legal migratory options people will be resorting to asylum as the only available legal means to reside in another country. Maybe if collective constructive efforts would focus on building a more equitable and free from oppression world, the impact in reversing the migration trend will be more visible. Although the distinction between migrants and refugees is difficult to make it’s still possible through the proper examination of the asylum claims.

Because the abuse of the asylum system is not of convenience to any body, UNHCR in Cyprus has strongly and in a sustained manner advocated for legal ways to combat it: to render quality decisions on asylum applications in a short (the earliest within the first 6 months from applying) period of time will fully dissuade abusive applications. This would not only deter non-genuine asylum seekers from applying for asylum but most importantly it would end the uncertainty that genuine asylum seekers are going through during the usually prolonged asylum procedures (that can take 2, sometimes 3 years or more to be completed).

3. Public allowance to asylum seekers.

The right of everyone to an adequate standard of living is recognised by international and regional EU instruments on human rights. At the same time these instruments impose an obligation on States to take appropriate steps to ensure the realisation of this right. The 1951 Refugee Convention provides that refugees are entitled to the same rights as nationals with respect to public relief and assistance. Asylum seekers are entitled to benefits provided by the Convention because every asylum seeker is a potential refugee. Cyprus refugee legislation after transposing the EU Reception Conditions Directive provides that asylum seekers have the right to public allowance if they don’t have sufficient means to ensure a standard of living adequate for their health and subsistence. Thus, given the absence of any reception centers and the abolition of the right to work in the first six months, asylum seekers (until October 10 their right to work after the 6 months was severely restricted) have no other legal way to survive (i.e. to cover their basic needs such as housing, food, etc) than the public allowance.

At the end of 2007, there were 11, 866 asylum seekers whose examination of asylum application was pending. According to the statistics of the Welfare Services, the Republic of Cyprus spent millions of Euros on asylum seekers. In September 2008, 1.039.780 Euro were granted to 2223 persons. According to the statistics of the Welfare Service, the greatest majority of the beneficiaries are from the occupied territories of Palestine, from Syria and from Iraq, thus your assertion that they are non-genuine asylum seekers seems hard to substantiate given the civil war/ extensive human rights violations prevailing in some of these countries.

The statistics announced by the Welfare Service, however, do not indicate how many asylum seekers applied for the public allowance, how many are actually receiving it, whether they are asylum seekers who recently came and they have no right to work (first 6 months) or whether they are asylum seekers who have the right to work in specific sectors but there was no job available. Moreover, the statistics of welfare do not reveal the difficulties inherent in the system – the fact that it is expected by homeless people to indicate an address when submitting an application for public allowance and when they overcome this legally unfounded obstacle, the months they have to wait to receive the allowance (an EU obligation on the part of the government and a legal entitlement for asylum seekers), then other obstacles arise. Perhaps your newspaper would consider this topic relevant for investigative journalism.

The myth that asylum seekers are receiving the monthly allowance at the end of each month while sitting comfortably in their homes is to be dispelled by the long delays in the processing of the applications for public allowance, the long delays in getting their first allowance (or subsequent payments) during a period in which they have no right to work, or termination of allowance without understanding the reasons. Maybe some of the millions of Euros mentioned above could be invested in trained staff who will examine the asylum claims expeditiously while maintaining the quality.

Thank you for your attention and UNHCR remains at your disposal for any additional information and/or clarification you may need.

Yours sincerely,

Cristina Planas

No comments: