Human Rights approach to Refugee Protection and Asylum Policy University of Tampere 1 December 2017 Senior officer Heidi Lempiö

Content of the Presentation Role and activities of the Non-Discrimination Ombudsman Asylum as a human right Human rights approach – interpreting the law Our view Monitoring Removals

The Role of Non-Discrimination Ombudsman Autonomous and independent authority The main tasks are to promote equality and to prevent and tackle discrimination Special tasks: to act as the National Rapporteur on Trafficking in Human Beings to Monitor Removals of third country nationals from the country to monitor the status of foreigners and other minority groups and to promote their rights

Activities of the Non-Discrimination Ombudsman Duties include, inter alia.. Performing research, issuing reports, recommendations, statements and intiatives within the mandate Monitoring the application of international human rights treaties within the mandate Reports annually to the Government and every four years to the Parliament Next report to the Parliament in Spring 2018, will include a short research study about the international protection afforded by Finland between 2015-2017, as well as identification of challenges and issuing recommendations

Asylum as a human right ? Asylum law is based on International Treaty (Geneva Conventions) To seek asylum / to be given a refuge are not rights that are included in General Human Rights Treaties (i.e. EHCR or UN CCPC) Except in the EU Charter of Fundamental Rights (Art. 18) according to which ” The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention “ However, the prohibition of torture, cruel and inhuman treatment is included in general HRTs and considered as an absolute right, not derogable even in times of emergency Applies also to expulsion and extradition (=deportation) Summa summarum: to receive an asylum is not an individual human right under traditional international human rights law, but to be free from refoulment to a country where one could be subject to torture, cruel and inhuman treatment is

Human Rights Approach – National Law Finnish Aliens Act: 1 §: “The purpose of this Act is to implement and promote good governance and legal protection in matters concerning aliens. In addition, the purpose of the Act is to promote managed immigration and provision of international protection with respect for human rights and basic rights and in consideration of international agreements binding on Finland. 5 §: ” The application of this Act may not restrict aliens’ rights any more than necessary.” The preparatory material of the law: Finnish Constitution 22 § : ”The public authorities shall guarantee the observance of basic rights and liberties and human rights.”

Semantics? Finnish Aliens Act 6 §: “In any decisions issued under this Act that concern a child under eighteen years of age, special attention shall be paid to the best interest of the child and to circumstances related to the child’s development and health.” vs. Un Convention on the Rights of the Child Article 3: “ In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. “

Human Rights Approach – Interpreting the law What does it mean? the law gets its content by its interpretation and application e.g. ECtHR jurisprudence, CJEU, CAT commmittee Must be remembered also the background of the institution as a international (political) organisation The role of UNHCR? UN human rights agency with a specialized mandate Should be considered as a strong authoritative source within the field of asylum law

Human Rights Approach – Interpreting the Law As to the procedural principles: ECtHR jurisprudence inter alia GC judgment in case of J.K. and others v. Sweden on 23 August 2016 Shared burden of proof between the applicant and the authorities Benefit of doubt – principle Taking into account multiple factors/ grounds for protection together Belonging to a social group subjected to ill-treatment Lower burden of proof If threat emanating from non-state actors The will and ability of the COI authorities to provide protection

Human Rights Approach – Interpreting the Law CJEU jurisprudence inter alia Joined Cases C-199/12, C-200/12 and C-201/12, X, Y and Z v Minister voor Immigratie en Asiel, 7 November 2013 Homosexuals form a social group Cannot be reasonably expected to conceal sex.orientation in COI The imprisonment that is actually applied for homosexual acts constitutes persecution As to the country of origin information: E.g. EU Directive 2013/32/EU on common procedures for granting and withdrawing international protection (preamble 39) UNHCR country guidelines International (Human Rights) Organization’s reports

Our view 1 June 2017 statement given to the Immigration Service concerning the examining and handling of asylum claims of in particularly vulnerable applicants General procedural principles as in ECtHR /CJEU judgments LGBTIQ applicants Victims of GBV and torture Calling for applying the law in accordance with Article 22 of the Constitution and Article 1 of the Aliens Law Human rights perspective Can be found on our webpage www.syrjinta.fi Ajankohtaista > lausunnot > 12.6.2017 We are preparing also another statement concerning Refugee’s right to family life and the best interest of child > expected early 2018

Monitoring the Removals Based on EU Directive (2008/115/EC) on Returning third country nationals: “Member States shall provide for an effective forced-return monitoring system.” Activity whereby it is established and reported whether the return is conducted in a humane manner, respectful of the dignity of the person and in compliance with fundamental rights Monitoring involves observation of and reporting on forced-return operations without powers of intervention External and independent monitoring strenghtens transparency in forced returns operations Protects also escorts against false accusations

Last but not least.. * What happens to the individual after removal ? * ECtHR judgment in X v Swizerland, (Application no. 16744/14), 26 January 2017