Differential treatment of asylum seekers by category: discrimination or rationalisation?

In recent years, there has been focus on the poor reception conditions for those arriving in the European Union to seek protection. Indeed, some have described “the refugee crisis” as a “reception crisis” in part because one of the factors leading a challenging but manageable situation to become a crisis was the poor reception conditions in the countries of first arrival which then led to onward movement. Reception conditions to be provided are stipulated in the recast Reception Conditions Directive but there has been a widespread lack of compliance for years, to the extent that courts were ruling it illegal to transfer people back to certain countries. As well as violations caused by the harshness of conditions, reception may entail restrictions on movement such that it becomes de facto detention. Europe’s short-term crisis response measures and longer term plans also involve the increase in nationality-based approaches at the level of reception with the concomitant risk of discrimination.

The current situation is exposed by ECRE’s AIDA database which provides an overview of the asylum situation in Europe, including on reception conditions, and it makes for bleak reading. The main conclusions on reception from the analyses of 23 countries are that movement restrictions are now deeply entrenched in many reception systems (Austria, Bulgaria, France, Hungary, Greece, Germany and Turkey), often de facto constituting detention. Differential treatment based on nationality is evident in Germany, and differential treatment based on ostensible but questionably justified problematic conduct in Switzerland and the Netherlands. There are wildly varying degrees of preparedness, the absence of which is a major factor in the risk of rights violation. While there are good examples of sufficient planning, such as Spain, the reception systems in certain countries, Italy and France being prominent examples, remain in a state of crisis.

The approach pursued from spring of 2016 combined the EU-Turkey Statement with the closure of the Balkan Route and led to the containment of people in Greece. The humanitarian consequences have been appalling and widely documented – to no avail as the policy continues. Despite attempts to bolster capacity in Greece through the deployment of EASO and through the creation of a humanitarian funding instrument which at first supported international organisations and international NGOs with the Greek government now taking over, the humanitarian crisis continues.

Of course, the situation in Turkey is far more dramatic, with extraordinary numbers of people hosted there and prevented from leaving due to the deals underlying the Statement. There are now 3.4 million Syrians under the Temporary Protection Regime introduced in response to the Syrian war, and around 112,000 in standard international protection procedures. While the Turkish government, international organisations and local and international NGOs manage the situation, it is both harder to monitor and riskier to speak out due to political developments in Turkey.

The proposed reforms of the Common European Asylum System (CEAS) will actually place more pressure on the reception point in the asylum process for two reasons. First, they increase the responsibility of the countries of first arrival within the EU, through the additional “admissibility procedures” (“pre-Dublin checks”) that they will have to carry out and then through the punitive approach to secondary movement designed to keep people in countries of first arrival. Second, the proposals are based on outsourcing responsibility to third countries, through the use of the first country of asylum and safe third country concepts, which entail transfer of people to countries where it is likely that reception conditions are worse.

Policies are increasingly based on nationality-based approaches where there is a preliminary filtering based on the nationality of the persons arriving. This may be based on safe country of origin lists or on the rates of recognition of claims for international protection of the nationality in question in the country of arrival or across the EU. For example, in Greece, and as a result of the agreements underlying and supporting the EU-Turkey Statement, asylum applications from Syrians and other nationalities are filtered and separated as only the former can be returned to Turkey on the basis that it may be a safe country for them due to the Temporary Protection Regime (which only covers refugees from Syria). In the other direction, the relocation programme applies to nationalities with average recognition rates of 75% or higher. In practice, the legal difficulties of forcibly deporting people to Syria and the low take-up of relocation candidates by other member states meant that people remained stuck in Greece in any case.

A final but no less significant issue is the increasing focus on return, with the over-optimistic view that returning large numbers of people to countries of origin will resolve the asylum crisis in Europe. Who is returned in practice will continue to depend to a large degree on the countries with which return agreements can be concluded, leading to further divisions among nationalities.

Despite the increased relevance of nationality in asylum policy, a legal challenge on this basis is difficult and unlikely to be fruitful. Article 14 of the European Convention on Human Rights guarantees equal treatment in relation to the substantive rights set out in the Convention, prohibiting discrimination in the provision of the rights including on the basis of nationality or national origin– and of course applying to all persons within a state’s jurisdiction, including non-nationals.

In practice it is invoked in conjunction with the allegation of a substantive right violation and as a secondary provision, for example a violation of the right to family life in conjunction with the prohibition of discrimination under Article 14. The Court has tended to focus on the first part of the claim (although it has made clear that it will examine Article 14 violations even in the absence of violation of the substantive rights when they are brought in conjunction).

In addition, states have successfully argued that persons are not in comparable situations and thus differential treatment is permissible (C v Belgium; Moustaquim v Belgium). Their argument is that groups are not sufficiently similar for discrimination to be the only explanation for differential treatment; the state points to other explanatory variables. Most of the case law concerns non-nationals arguing that they are in a similar position to nationals and relies on demonstrating factual similarity in the absence of legal parity, for instance through residence, work, tax payment, family links and so on. It may be of limited relevance to a situation of alleged discrimination among nationalities in a reception context since the above indicates that the state will likely successfully argue that these are not similar situations. There may also be over-riding reasons that justify the approach of a country in differentiating among nationalities, such as national security and public interest. The right of states to control entry into and residence on their territories is also a well-established principle in ECtHR jurisprudence which will surely come into play. Article 14 and the argument from discrimination will likely remain an ancillary argument, supplementing a main line of argument based on Article 3, Article 8 or other substantive parts of the Convention.

EU law is even narrower: anti-discrimination law does not prohibit nationality-based discrimination. It is not covered by the Racial Equality Directive or by the Employment Equality Directive, according to which the prohibited grounds for discrimination are sex, race or ethnic origin, religion or belief, disability, age and sexual orientation. Nor does nationality feature in the longer list in Article 21 of the Charter of Fundamental Rights (and the Charter only applies when the Member State is applying EU law). The prohibition on nationality-based discrimination is regulated by the Free Movement Directive and thus only afforded to EU citizens as they alone fall within its scope. The anti-discrimination Directives explicitly state that they do not provide equal treatment for Third Country Nationals (TCN) and operate without prejudice to entry into and residence in member states of TCN and also without prejudice to any treatment arising from their legal status.

It could be worth exploring the use of the Revised European Social Charter and its Article E prohibiting non-discrimination. Under the Charter there is a specific right to adequate housing for the family unit, a right to the care and assistance of children and young persons, and obligations on signatory states to reduce homelessness with a view to its elimination. These safeguards have been found by the European Committee of Social Rights to apply to migrants. Whilst the Committee in complaints against contracting states has tended to focus on whether migrants’ most fundamental rights have been respected under the Charter rather than whether states have respected the principle of equal treatment, there may be scope in the future for the (successful) application of Article E to diverging and deleterious reception conditions for certain nationalities.

Overall, a better legal strategy will be to tackle the problem of inadequate reception conditions on the basis that they are not in compliance with EU law or with the Convention, including through continued legal challenge to de facto detention. In addition, the social and political consequences can be highlighted. Tensions between different groups of asylum-seekers and migrants in formal and informal reception contexts is increasingly leading to violence. The stigmatization of nationalities and targeted returns policies are also undermining foreign policy. An overt nationality-based approach of course undermines international refugee law and the core principle of individualised assessment. Even if individual assessment follows a preliminary nationality-based filtering, it may be influenced by assumptions and differences that have already been introduced. The approach both reinforces and derives from the deep flaws that exist in EU asylum systems, as demonstrated by the variation from member state to member state in recognition rates for key nationalities, the most extreme example being Afghanistan where rates of international protection granted vary from 7% to 98%, with no objective reason to explain the difference.

Opposition has to go beyond the nationality questions and challenge the overall problems of inadequate reception conditions and the increasing and illegal use of detention. Poor reception conditions have a significant detrimental impact on integration prospects, with it widely agreed that integration measures should start from day one, even before status determination. This approach is supported in the ambitious and evidence-based proposals for inclusion of refugees and other third-country migrants in France set out by Deputé Aurélien Taché in his report commissioned by President Macron. Harsh or discriminatory reception conditions are damaging not just for the people they affect but also for the societies into which they will be integrated, be that in Europe or in their countries of origin after return.

Dealing with the situation requires a more fundamental shift in approach and a different understanding of the problem. The nationality-based approach is based on the idea that the crisis in European asylum systems is caused by the arrival of “undeserving” economic migrants who “clog up” asylum systems. The solution then is to filter them out. But the crisis of 2015/2016 was caused by the civil war in Syria and state collapse in Iraq and Afghanistan. Collectively these countries made up around 85% of arrivals at that time. Overall, recognition rates are higher than they have ever been, meaning that a higher percentage than ever before of those arriving are entitled to international protection.

The reception crisis stems from institutional failures in countries and from the perceived unfairness of the Dublin system with its disproportionate responsibility on the countries of first arrival. They have a perverse incentive to keep standards low to discourage people from staying and to render it illegal to send people back if they subsequently move onto another Member State. The alternative thus lies in tackling the fundamental dysfunctions of the system itself and in long term commitment to improvements in countries of origin, rather than mass detention and deportation.