Much has been said in recent days about immigration: the deaths in the Mediterranean Sea, the refugees from Ethiopia, Libya, Syria and many other ones crossing the sea by boat to reach the Italians costs, where they hope to start a new life and to find the salvation they have been coveting for a so long time.
However some aspects of immigration are not discussed enough, such as the topic of LGBTI refugees. These persons have a different sexual orientation or a different gender identity.
Who are refugees? And how does the European Union (EU) protect them?
The European Council (EC) was founded after the end of the World War II in order to unite all European countries and to promote rule of law, democracy, human rights and social development. In 1950 the European Court of Human Rights (ECtHR) was instituted to this end. The ECtHR was established on the basis of Article 19 of the former European Commission of Human Rights (ECHR) in order to ensure the observance of the engagement undertaken by the contracting states in relation to the Convention. In this context the ECtHR takes care of the examination of appeals lodged by individuals, groups of persons, NGOs or juridical persons denouncing violations of the Convention.
In April 2013 the EC had 47 member states. 27 of them (28 since July 1st 2013) are also EU-members. With the exception of some particular provisions, the persons who lodge an appeal before the ECtHR must not be citizens of one of these 47 member states or reside there regularly. The ECtHR can moreover examine appeals of one EC-member state, or more EC-member states, against another member state.
All member states have the international obligation to assure that their functionaries act in accordance with the ECtHR.
After the Treaty of Rome in 1950 the treaties were modified several times, which enlarged the competences of the European communities in migration matters.
In the light of this context we assisted to an uninterrupted evolution of the EU in asylum matters. EU law provides for common rules applying to member states for issuing of short-stay visa and border surveillance activities. The EU has furthermore arranged some rules aiming to preventing illegal entry. In 2004 Frontex, the agency of the EU, was established for supporting the member states in their management of the external borders of the EU.
While acting in the context of an operation of Frontex or of the Rapid Border Intervention Teams (RABIT), member states are anyway responsible for both interventions and omissions.
In the EU law the Article 18 of the Charter of Fundamental Rights of the European Union provides for asylum right and the Article 19 provides for non-refoulement.
The latest deaths in the Mediterranean Sea led to draw the attention of all political actors and interested parties to the EU action. The Common European Asylum System was completed in 2013, but the different sections of the legislation concerning irregular migration in Europe did not succeeded in stopping further tragedies in the Mediterranean Sea. The legislation concerning asylum and irregular migration in Europe was object of continuous criticism: it was not conceived to distribute the weight among all the member states but to share responsibilities among these.
This lack of a real distribution of duties has been discussed for a long time, in particular with reference to the Dublin Regulation. This rules the responsibilities of member states to examine asylum requests, as no European status in asylum matters exists. That is why the European Commission announced the introduction of a European global programme on migrations in May.
Search and rescue operations at sea are an example of cooperation between member states or with the European Border Agency (Frontex). However Frontex has no ships or aircrafts and cannot assure any operational capacity, unless member states provide for their means of transport for joint operations. Likewise “Triton”, the Frontex-coordinated mission in the central Mediterranean Sea, was not launched to replace the Italian operation “Mare Nostrum”. This last cost about EUR 9,000,000 per month while Triton’s budget is estimated at EUR 2,900,000 per month. At first glance we could say it is too few for facing the huge flow of persons coming from third countries.
From Katie Hopkins’s words you can guess that something is twisted in the current system which encourages politicians to do nothing for immigrants and engenders stereotypes that we heard hundreds of times, like “immigrants steal our jobs”, “immigrants are terrorists”, “immigrants represent a danger for our security”, “they are criminal”, “they bring illnesses”. All these clichés showed to be a false social awareness, but they go on being promoted as clichés of citizens.
The United Nations reporter on the human rights of migrants François Crépeau suggested changing asylum policy: “Instead of trying to resist migration, let us organise it”. The UN migration expert argues that opening legal channels for migrants would save many lives and reduce the cost of asylum claims. He is urging the West to adopt a global humanitarian plan to resettle refugees and regulate migrant mobility. For example, creating a visa to come to Europe and look for work. It would be a “multiple-entry visa” for four months per year for five years. So they could come for four months the first time and, towards the end of this period, decide: “Ok, should I stay irregularly or should I go home and come back next year?” If you stay irregularly you are forfeiting four more chances of coming back regularly. If you go back home you have eight months to prepare yourself for the second round. That is why this we have to incentivise registrations and asylum coordinated by the border guard and not by smugglers, but at present we are doing nothing of the kind, François Crépeau said.
After the 10-point plan on the prompt reactions to the crisis situation in the Mediterranean Sea concerning the migration, no conclusion has been drawn yet in spite of the numerous proposals done in the European Parliament Plenary Session in Strasbourg some days ago. We still have a long way to go.
BRUSSELS, 24 APRIL 2015
23rd April 2015 was an awful day: the EC was finally exhorted to “act” concerning the “tragic” situation in the Mediterranean Sea. However the EU reacted by taking measures against migrants and strengthening the securitization of the borders of all member states.
EU’s government leaders encountered serious difficulties during the meeting and only had one message for those thousands of human beings – men, women and children – who risk their life while crossing the sea and often meet their death while trying to reach a place where to begin a new life: “Security”. After rejecting any other proposal, they did not even try to stop their “race to the bottom” to give shelter to the fewest number of migrants, which on the contrary they could do. You can imagine that the EU’s government leaders do not know the meaning of the word “welcome”.
Fight against migration with the support of third countries, deportation, rejection and detention in centres conceived for criminalizing the illegal immigration are only some of the experiences that the survivors have to live after calculating the numbers of victims among their fellow-travellers. Through these shameful measures the EC turns its back on its responsibility and adds its dishonour to the multitude of dead.
The European associations and organizations defending somehow security and everybody’s right to live cannot accept such a position. A decision against this deadly policy will be reached in the coming weeks.
The EC’s response to the refugee crisis in the Mediterranean is once more predominantly aimed at preventing migrants and refugees from reaching Europe. Nevertheless, as already stated, one should consider the conditions of the asylum seekers and the context they are fleeing.
More legal and safe channels need to be created in Europe because all people fleeing conflicts and human rights violations will do everything they can to reach safety, even in the future.
European Council on Refugees and Exiles (ECRE) and many other associations are deeply concerned to see that the EC’s response to the refugee crisis in the Mediterranean is once more predominantly aimed at preventing migrants and refugees from reaching Europe and at externalising restrictive border control policies to countries of transit and origin.
European leaders are shutting their eyes and refuse to see the refugee crises raging in our neighbourhood. They refuse to see that refugees use smugglers because they are desperate, because they have no other option and no legal means to reach safety.
ANOTHER TYPE OF MIGRATION
The problems connected to migration do not nevertheless only concern the deaths in the Mediterranean Sea. As mentioned above other categories of refugees exist, such as the LGBTI persons coming from African countries and waiting for accommodation. Unlike persons fleeing from war on board of the death boats, they accede to a legal path regularized by the UN High Commissioner for Refugees (UNHCR), where they register in order to obtain the papers allowing them to enter the European countries.
Before this big tragedy raised in a short time the problem of refugees, our association, International LGBTI Support, had already tried to raise a debate about this topic and to express its concern towards this persons. We offered a concrete support to the United Nations and sought a dialogue between the parties. However the EU does not seem to show a great interest in immigration matters, and this new episode is sad evidence of this.
Some months ago the LGBTI persons in the Kenya camps launched an ardent appeal because of the blocking of registrations intended to obtain the documents for asylum application. We asked for having a space to discuss these problems involving LGBTI persons. After many months we are still waiting for an answer nevertheless.
International LGBTI Support mentions that many young men in the camps are forced to experience episodes of considerable discrimination, physical and psychological violence, let alone the consequent traumas that they will never be able to overcome.
Regarding this, here you are the story of Upedo Usawana, a LGBTI refugee coming from Uganda and living at the moment in the refugee camp of the UNCHR in Nairobi, Kenya. Recently, while waiting for his transfer, he was assaulted and robbed.
During this rubbery, occurred on January 1st 2015, Upendo was mutilated and disfigured. His face was cut with a pointed object by his assailants and is unfortunately irremediable. The injuries sustained during the rubbery were reported and treated in the camp. Upendo has been living in this camp since his escape from Uganda after the introduction of a draconian law aimed at punishing homosexuals and at sentencing to life imprisonment any person accused of being homosexual or member of the LGBTI community. Since this tragic event Upendo is still waiting for his evacuation and his freedom to love, for a life in equality.
Unfortunately such cases are quite frequent in the camps and it is not possible to hinder these outbreaks of violence. An additional problem concerns the financial difficulties of many people suffering from diabetes or HIV/AIDS, who cannot afford to buy remedies for their disease.
All these persons have the right to live in freedom and to love freely, without hiding their sexual orientation or gender identity.
That is why we are astonished at this refusal of a concrete help to tackle the problem. We would like something would be done also for helping sexual minorities as it has been for the refugees dead in the Mediterranean.
There is still a long way to go to accommodate these people and to let them integrate, but I think that we can do a lot together. We have to stimulate EU’s action and not to allow these episodes to be ignored.
There is no category less important than the others among people. All persons are equal and have the same rights. Our association, International LGBTI Support, asks for the topics related to discrimination based on sexual orientation or gender identity to be taken into account in the third countries, and for asylum requests – taking sometimes several years – to be facilitated. We want these people to stop suffering and to start leaving a respectable life. To do this, we need everybody’s help.
Another sore point concerns the refusal of LGBTI persons seeking asylum in the EU countries, according to the sentences passed by the courts of each EC’s member state. The position of EC’s countries regarding the Convention’s rights is not clear towards the LGBTI persons seeking asylum in Europe because of their sexual orientation and gender identity. The last event I read about occurred in Sweden. The court had already passed sentences about cases of homosexual immigrants in the past, but in favour of the national authorities’ will, no unequivocal interpretation was ever expressed.
The Swedish court has finally delivered its judgement by avoiding any comment on the chance to force LGBTI migrants to hide their sexuality to prevent the risk of incurring penalties in their origin countries and on the consequences of the violation of article 3 of the Convention. Therefore the question is still dramatically unsolved.
All in all the ECtHR has no settled the question on how to reconcile the national autonomy in defining the fundamental and procedural requirements concerning asylum and the necessity to respect the fundamental rights. It preferred a prudent approach, which is the exact opposite of the military sentence passed by the European Court of Justice of the European Union in 2013. It states: “when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexuality”.
It is quite puzzling: the European Court of Justice argues firmly in favour of the LGBTI migrants, while the ECtHR – founded purposely to protect and promote the increasing growth of the fundamental rights instituted by the European Convention on Human Rights – prefers an approach less procedural and unsatisfactory from any point of view.
This is one of the several dramatic aspects concerning many LGBTI refugees in the European countries, where their asylum requests are rejected and from where they are taken back to their homeland with the risk of serious consequences on their life.
We would like also the European Union to tackle these problems conscientiously and with dedication.