Blog de Borja Fdez. Burgueño

Blog especializado en derecho administrativo, derechos humanos, asilo y protección internacional.

Asylum: Right to private and family life

A review of asylum processes in Germany, Italy, Spain and the UK, with particular reference to the right to private and family life

Topic:

A review of asylum processes in Germany, Italy, Spain and the UK, with particular reference to the right to private and family life.

Borja, Universidad Rey Juan Carlos

Marisa, Philipps-Universität Marburg

Joyce , University of Glasgow

Riccardo, Università di Cagliari

Please be aware that this article has not been revised since 2012. There might be some major mistakes!!

The right to private and family life is expressed at European level in Article 8 ECHR. The article is divided into two parts. The first paragraph sets out the rights that an individual can expect to be protected – in this case: ”Everyone has the right to respect for his private and family life, his home and his correspondence”[1]  The second paragraph sets out the instances in which the state may interfere with this right: “There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”[2] In other words, the state can only interfere with this right if 1) it is in accordance with existing law 2) it is in pursuit of a legitimate aim and 3) it is necessary in a demoratic society.

Whilst the range of instances are limited, the wording of paragraph two is broadly framed, meaning that there is considerable scope for interference with this right by a public authority, in certain situations that are considered to be of overriding importance to the state or the public as a whole.

In reviewing asylum processes of four member states: Germany, Italy, Spain and the UK, and with reference to case-law, the aim of this essay is to consider to what extent the four states balance Article 8 ECHR rights with their power to derogate from these rights.

GERMANY

In 2011 Germany experienced a rise in the number of asylum seekers. With 46,000 applicants, this is an increase of 11% compared to 2010. The highest number of asylum seekers in 2011 came from Afghanistan (7,767 applications), followed by Iraq (5,831). Figures show that compared to 2010 there is a rise of 77% of the numbers of applicants from Syria (2,643), a rise of 35% in Iranian asylum seekers (3,352) and even a tripling of the number of asylum seekers from Pakistan, with a total of 2,529. [3]

The NGO ProAsyl has criticized that only 22.3 % of the applicants in 2011 were able to receive protected legal status in Germany. Furthermore, the German state takes advantage of the EU law which provides that the country which a refugee enters first must deal with the application process – many refugees reach Germany by crossing the EU border between Greece and Turkey, meaning that Germany can legally send back many asylum applicants to countries where the asylum seeker first entered the EU.[4] The low percentage of asylum seekers who are granted legal protection, coupled with the advantage Germany is gaining from this EU law demonstrates that German asylum policies are very restrictive.

The first legal source for asylum in Germany is Article 16 in the German Basic Law, which provides potential protection for political refugees who are persecuted by the state in their country of origin due to race, nationality, political preferences/membership or belonging to a certain social group. Therefore, there is no protection in the constitution for refugees who leave their country due to economic emergency situations such as famine.[5]

In addition, the Asylverfahrensgesetz (AsylVfg) is the relevant legal source which is referred to when deciding an applicant´s right to asylum. § 14a and § 28 of this law become relevant for the focus of this essay on the right to private and family life, as they deal with the topic of family unit and family asylum. According to these paragraphs, the spouse and the underaged unmarried children of an accepted asylum seeker will be granted an asylum status as well if they apply.[6]

Article 6 of the German Basic Law is also important regarding asylum processes, as it deals with the protection of family life as one of the basic rights. While this article of the German Constitution and the above mentioned paragraphs provide only a very narrow definition of the family, the international law of the ECHR gives with Article 8 and its right to family and private life a broader picture of family: It applies also to full aged children, other relatives, non-married or same-sex partnerships as well.[7] As the concept of family is an evolving concept it always underlies certain definitions. From the above shown differences between wider, progressive concepts of families which can, for example, be derived from Article 8 ECHR there may be conflicts between narrow, conservative concepts of families, which only apply, for example, to married couples. As it is in the state´s interest to limit the number of accepted asylum seekers it is most likely that narrow definitions will be used.

Article 8 ECHR can become relevant to asylum processes in the following contexts: firstly, it is likely that asylum seekers form personal or family relations during the (usually long lasting) time period between the asylum application and the final decision about the application. Secondly, it becomes relevant in the case of a rejection of the asylum application or expulsion of the applicant because the applicant can possibly become separated from his/her accepted family members. Thirdly, Article 8 is relevant in situations when the asylum applicant has been successful while other family members have not been successful.[8]

ITALY

Moving now to consider asylum in Italy, the main source of law is found in the Italian Constitution. Art. 10.3 states “foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitutions hall been titled to the righ to fasy lumunder the conditions established by law[9].

Unlike Germany, this means that the right of asylum granted by the Italian Constitution is wider than the same right in international instruments, such as the UN Convention Relating to the Status of Refugees (1951), which defines a refugee simply as “person who has the fear of being persecuted for reasons of race, religion, nationality, membership of aparticular social group or political opinion[10]

However, until 2007 there was no law enforcing the right to asylum established by the Constitution, and the only other legal source was the legislative decree 286 of 1998 (Consolidated Act on Immigration), which enforces Art. 10.2 of the Constitution and states in Art. 1 that every foreigner shall enjoy the fundamental rights of a human being granted by the Italian law, by the International treaties and by the generally recognised principles of International law[11].

Two other articles of the decree are particularly relevant in relation to Article 8 ECHR: art. 19.2 c) which prohibits the deportation of immigrants who live with second-degree relatives or their spouse, if they have Italian citizenship[12]and; art. 29 bis, which grants family reunification.[13]

In 2007, in order to implement Directive 2004/83/CE, the Italian Government adopted the legislative decree n. 251, which grants refugee status to foreigners or stateless persons who are subject to persecution of such a serious nature that an issue arises as to the violation of human rights[14]. Art. 22 of the legislative decree also guarantees the maintenance of the family unit by according family members the same rights as the refugee[15]. However, these protections are not absolute – in line with paragraph two of Article 8 ECHR, the same decree allows the deportation of the applicant if there is a possibility that he or she represents a threat to national security or public order and security[16].

An example of balancing the requirement of the State to protect national security with a refugee’s right to family life can be found in Saadiv.Italy. The applicant, Nassim Saadi, was due to be deported to Tunisia because the Italian State considered him to be a terrorist and therefore a threat to security. Although the main argument of the applicant was the high risk of being tortured in Tunisia, he further maintained that his expulsion should be considered a violation of Article 8 ECHR, as it would deprive his partner and his son of his presence and assistance[17].

 

SPAIN (This part has not been corrected. If you want to know more about the Spanish refugee law, please check any of the articles published on this blog after the first of September 2015)

In Spain, Article 10 of the Spanish law of Asylum[18] regulates the right of family integration of refugees. This right applies to parents, children, spouses and civil partners. However, it does not apply to those who have been involved in one or more of the causes of the UN Refugee Convention[19] of 1951 (the Geneva Convention) or in the Law of Asylum, such as having committed a crime against peace, a war crime, a crime against humanity, crimes against the principles of the United Nations or been considered as a danger to national security.

The procedure of family reunion is convoluted and complex due to the fact that many different national institutions are involved, not just the Central Administration. The procedure is divided into two parts: the first part consists of an application to the Office of Asylum and Refugees (OAR)[20]and at this stage, the applicant has initial contact with diplomatic representation and is provided with identification documents for themselves and their relatives.

The second part is extremely bureaucratic. Many state departments are involved in the procedure. The diplomatic representative will send the application and documentation to the General Direction of Law and Consular Issues of the Ministry of Foreign Office[21]. Later in the process, the documents are returned to OAR in order to be assessed but the final decision rests with the CIAR (”Comisión Interministerial de Asilo y Refugio”).[22]The complexity of the asylum process can arguably obstruct the proper application of Article 8 ECHR rights.

If the decision is in the applicant’s favour, the government will provide an immigration visa to the applicant and his family, if necessary. However, if the applicant is unsuccessful, it is possible to  appeal to the Spanish Administrative Court[23].

One of the main issues under Article 8 ECHR is that it is almost impossible to obtain a visa for sons over 18, for older family members who are still under 65 or for another family member. In addition, there are many cases where the applicant arrives without official identification, which complicates matters, sometimes making it difficult to prove that there is a legal family connection; for example, many refugees come from countries where marriages are celebrated in a non-official ceremony and it is extremely difficult to prove that the marriage exists, in order to claim Article 8 rights.

UK

In the UK, family life is an evolving concept and continues to develop as new cases arise. Family ties automatically apply to mother and child in the UK, and therefore Article 8 ECHR provides protection for this relationship.[24] However, in relation to asylum applications this does not necessarily translate into clear decisions in favour of the applicant and their child(ren), because there are multiple issues to consider when reviewing an asylum application, of which Article 8 rights are only one aspect. Moreover, Article 8 rights can present difficulties in evaluation, due to the very subjective nature of private and family life, thus making it impossible to generalise.

That said, Article 8 rights continue to gain in importance, year on year. Strasbourg has issued a series of judgements on Article 8 ECHR over the last few years that have taken into account the importance of family life, including the wider family. In Beoku-Betts v Secretary of State for the Home Department the House of Lords held that the right to family life of all family members must be considered by the immigration authorities and not just those of the applicant in question.[25] In other words, the family unit must be looked at as whole when assessing whether a decision is proportionate.

Leading on from Beoku-Betts, EB (Kosovo) v Secretary of State for the Home Department recognised the importance of the spousal relationship. Lord Bingham said “it will rarely be proportionate to…remove a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow….”[26]

This applies equally to the parent/child relationship now, after the UK Supreme Court landmark decision of ZH (Tanzania) v Secretary of State for the Home Department[27], which found that the interests of the child must not only be considered but given paramount weight as part of the proportionality assessment under Article 8 ECHR.[28] This case acknowledges the shift in jurisprudence from Strasbourg away from focusing on the wrongs of the parents towards the interests of the child, notably in Uner v Netherlands, Maslov v Austria and da Silva, Hoogkamer v Netherlands. In ZH (Tanzania)the applicant had given birth to children knowing that her immigration status was precarious after three failed asylum claims, and had applied twice under a false identity. The court held that it was “an error of law to place over/emphasis on the precarious nature of the mother’s immigration status before her first child was born.”[29] This suggests that the human rights in the form of the rights of the child are beginning to take precedence over other considerations such as the parent’s legal status, criminal conduct or the legitimacy of an application. Whether this decision opens up the possibility of abuse of the asylum system in the UK (and elsewhere) remains an issue of concern to many, nonetheless.

Claims for rights under Article 8 in asylum applications where there is a fear of persecution in the country of origin due to homosexuality have been affirmed only very recently in HJ(Iran), which held that a gay man “was entitled to live openly and freely in accordance with his sexual identity under the Refugee Convention” and that “it was no answer… that he might conceal his sexual identity in order to avoid persecution…”.[30] This point is referred to by Lord Dyson in the Supreme Court ruling of just last week of RT (Zimbabwe) as the “HJ(Iran) principle”[31]. In RT (Zimbabwe)   the applicant held no political view but would be required to feign allegiance to ZANU-PF party in Zimbabwe or else face persecution in his country of origin.[32]

CONCLUSION

It can be seen, in the broad overview of the processes of the four countries, that the requirements of Article 8 ECHR pose significant challenges for Governments. In the states that have codified constitutions (Germany, Italy and Spain) there can be conflict between, for example, the definition of family in the constitution and the wider definition held by ECHR, where arguably it is not in the interests of the state to have such a wide concept of family. Further conflict exists between the state’s (for example, Italy’s) positive obligation to protect the family unit and the provisions of paragraph two of Article 8 ECHR which allow the state to derogate from this obligation in certain circumstances.

Despite this conflict, it is clear from case law that Article 8 ECHR rights are gaining recognition in the courts, both in domestic courts and in the European Court of Human Rights. As we have discussed, in 2011 the rights of children in the family had a direct impact on the outcome of an asylum application in the UK for the first time, signifying a sea-change in jurisprudence in this area, following important ECtHR decisions. The main issue that arises out of successes such as that of ZH (Tanzania) is the risk of widespread abuse of human rights law to achieve successful asylum applications, which otherwise would not be successful.

The right to private and family life has also been successfully argued in cases regarding persecution for political or sexual orientation reasons, meaning that the scope is considerably wider than merely the maintenance of the family unit and closely related matters. There will continue to be tension between the priorities of the state and the requirements of human rights law. The balance is undoubtedly difficult to strike, but the large number of recent judgements of ECtHR in favour of  Article 8 ECHR rights demonstrate that there is a public appetite for these rights to have greater emphasis than ever before.

Bibliography

Cases

Beoku-BettsvSecretaryofStatefortheHomeDepartment [2008] UKHL 39, [2009] AC 115

EB(Kosovo)vSecretaryofStatefortheHomeDepartment [2008] UKHL 41, [2009] AC 1159, para 12

daSilva,HoogkamervNetherlands 50435/99 (31 January 2006)

HJ(Iran)(FC)vSecretaryofStatefortheHomeDepartment [2010] UKSC 31

MaslovvAustria1638/03 (23 June 2008)

RT(Zimbabwe)&OthersvSecretaryofStatefortheHomeDepartment [2012] UKSC 38

UnervNetherlands46410/99 (18 October 2006)

ZH(Tanzania)vSecretaryofStatefortheHomeDepartment [2011] UKSC 4

SaadivItaly37201/06 (28 February 2008)

Textbooks/Handbooks

Kilkelly, U., HumanRights  Handbooks,No.1: A guide to the implementation of Article 8 of the European Convention on Human Rights (August 2003)

AnnualsandReports

LasituacióndelaspersonasrefugiadasenEspaña.Informe2012. By the CEAR (Comisión Europea de Ayuda al Refugiado/ European Commission of Help to the Refugees)

Informedel2003delaComisiónEspañoladeAyudaalRefugiado

DatosdeasiloenEspañaaño2011.ComparativaconEuropa.By the Ministry of Employment and Social Care of Spain

Articles

Knights, S. UKSupremeCourtBlog:CaseComment: ZH (Tanzania) v SSHD [2011] UKSC 4 at http://ukscblog.com/wp-content/uploads/2011/02/Samantha-Knights.bmp

Caritas (2012): Wer bekommt Asyl in Deutschland? In: http://www.caritas.de/hilfeundberatung/ratgeber/migration/asylundflucht/werbekommtasylindeutschland (lastly reviewed 07/31/2012).

Mole, Nuala/ Meredith, Catherine( 2010): Asylum and the European Convention on Human Rights, Council of Europe, Strasbourg. In: (lastly reviewed 07/31/2012).

Penfold, Chuck (2012): Germany sees Asylum seeker numbers rise for fourth straight year, Deutsche Welle. In: http://www.dw.de/dw/article/0,,15687972,00.html (lastly reviewed 07/31/2012).

Pro Asyl (2004): Familientrennung durch Abschiebung. Eine Falldokumentation über den Umgang deutscher Behörden mit ausländischen Familien. In: http://www.frsh.de/fileadmin/pdf/Familientrennung.pdf (lastly reviewed 07/31/2012).

Pro Asyl: Zahlen und Fakten 2011. In: http://www.proasyl.de/de/themen/zahlen-und-fakten/ ( lastly reviewed 07/31/2012)

Legislation

European Convention on Human Rights 1953, Article 8

UN Convention Relating to the Status of Refugees, art. 1

Italy:

Constitution of the Italian Republic, art. 10, paragraph 3

Legislative Decree 286 of 1998 (Consolidated Act on Immigration), arts. 1, 19.2 c), 29 bis

Legislative Decree n. 251/2007, art. 7, 20 a) and b), 22.1 and 2

Spain:

Law 5/1984, of the 26 of March, about the right of Asylum and Refugees, modify by the Law 9/1994, of the 19 of May. Article 10

Convention of the 28 de Julie of 1951 about the Statute of the Refugees

Germany

Asylverfahrensgesetz 1992 paragraph 14a and paragraph 28 (amended in 20


References:

  • [1]              European Convention on Human Rights, Article 8, Paragraph 1
  • [2]              Ibid., paragraph 2
  • [3]              Penfold 2012.
  • [4]              Pro Asyl.
  • [5]              Caritas 2012.
  • [6]              AsylVfg § 14a, §28.
  • [7]              Pro Asyl 2004: 5.
  • [8]              Mole/ Meredith  2010: 180.
  • [9]              Constitution of the Italian Republic, Article 10, paragraph 3
  • [10]             UN Convention Relating to the Status of Refugees, Article 1
  • [11]             Consolidated Act on Immigration, art. 1
  • [12]             Ibidem, art. 19, paragraph 2, letter c)
  • [13]             Ibidem, art. 29 bis
  • [14]             Legislative Decree n. 251/2007, art. 7
  • [15]             Ibidem, art. 22, paragraphs 1 and 2
  • [16]             Ibidem, art. 20, letters a) and b)
  • [17]             Saadi v. Italy, 28 February 2008, paragraph 161
  • [18]             Article 10 of Law 5/1984, of the 26 of March, regarding the right of Asylum and Refugees, modified by Law 9/1994, of the 19 of May.
  • [19]             Convention of the 28 de julie of 1951 about the Statute of the  Refugees
  • [20]             OAR, Spanish Office of Asylum and Refugees (part of the Spanish Interior Ministry)
  • [21]             “Dirección General de Asuntos Jurídicos y Consulares del Ministerio de Asuntos Exteriores”
  • [22]               Comisión Interministerial de Asilo y Refugio
  • [23]             “Tribunal Contencioso-Administrativo”
  • [24]             Kilkelly, U., 2003
  • [25]             [2008] UKHL 39, [2009] AC 115
  • [26]             [2008] UKHL 41, [2009] AC 1159, para 12
  • [27]             [2011] UKSC 4
  • [28]             Knights, S. 2011
  • [29]             Ibid.
  • [30]             [2010] UKSC 31
  • [31]             [2012] UKSC 38
  • [32]             Ibid.
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Un comentario el “Asylum: Right to private and family life

  1. Asa
    junio 2, 2013

    You really make it seem so easy with your presentation but I find this
    topic to be really something which I think I would never understand.
    It seems too complex and extremely broad for me.
    I’m looking forward for your next post, I will try to get the hang of it!

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Esta entrada fue publicada el octubre 4, 2012 por en Derecho, Derecho de los Refugiados, Derechos Humanos.
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