BMPR-Conference Report FINAL

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Border Management and Protection of Refugees Conference Report Trans-Regional Conference 24 – 26.11 2010 Hungary, Budapest
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Transcript of BMPR-Conference Report FINAL

Trans-Regional Conference

Border Management and Protection of RefugeesConference Report

24 26.11 2010Hungary, Budapest

Published by United Nations High Commissioner for Refugees Regional Representation for Central Europe Budapest, July 2011

TABLE OF CONTENTSGLOSSARY .................................................................................................................................... 6 Part IINTRODUCTION .............................................................................................................................................................................................................................................7 OPENING REMARKS ....................................................................................................................................................................................................................................9 (Mr. Gottfried Koefner, UNHCR Regional Representative for Central Europe) WORKING GROUP RECOMMENDATIONS .................................................................................................................................................................................11 Working Group 1 .................................................................................................................................................................................................................................................11 Working Group 2................................................................................................................................................................................................................................................13 Working Group 3 ................................................................................................................................................................................................................................................ 15

Part IISUMMARY: DAY 1 ............................................................................................................................................................................................................................................17 SUMMARY: DAY 2 ...........................................................................................................................................................................................................................................21 SUMMARY: DAY 3........................................................................................................................................................................................................................................... 29

Part IIICOUNTRY PRESENTATIONS...............................................................................................................................................................................................................35 Bulgaria .................................................................................................................................................................................................................................................................. 36 Croatia ....................................................................................................................................................................................................................................................................40 Czech Republic................................................................................................................................................................................................................................................... 43 Greece .....................................................................................................................................................................................................................................................................46 Hungary.................................................................................................................................................................................................................................................................49 Moldova...................................................................................................................................................................................................................................................................51 Romania ................................................................................................................................................................................................................................................................. 54 Serbia....................................................................................................................................................................................................................................................................... 56 Slovakia .................................................................................................................................................................................................................................................................. 58 Slovenia ..................................................................................................................................................................................................................................................................60 Turkey..................................................................................................................................................................................................................................................................... 63 Ukraine .................................................................................................................................................................................................................................................................. 65

ANNEXESConcept Note....................................................................................................................................................................................................................................................... 67 Agenda of the Conference ............................................................................................................................................................................................................................70 List of participants............................................................................................................................................................................................................................................ 73

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GLOSSARY10-Point Plan of Action Refugee Protection and Mixed Migration: A 10-Point Plan of Action (UNHCR, rev. 1, 2007) EC Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Country of Origin Information European Court of Justice European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) European Court of Human Rights European Union European ngerprint database for identifying asylum seekers and irregular border-crossers. Executive Committee of the High Commissioners Programme European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union International Organization for Migration Non-governmental organization EC Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualication and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted Rapid Border Intervention Teams Convention relating to the Status of Refugees (1951) EC Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals UNHCR Regional Representation for Central Europe Schengen Borders Code Ofce of the United Nations High Commissioner for Refugees

Asylum Procedures Directive

CAT

COI ECJ ECHR

ECtHR EU Eurodac

EXCOM FRONTEX

IOM NGO Qualication Directive

RABIT Refugee Convention Return Directive

RRCE SBC UNHCR

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Refugees at the Border

INTRODUCTIONFrom 24-26 November 2010, the UNHCR Regional Representation for Central Europe (RRCE) organised in Budapest the rst trans-regional conference on border management and the protection of refugees. The general aim of the conference was to raise the prole of international protection considerations in the context of regional migration dynamics at the external borders of the European Union (EU) and neighboring countries, and to encourage border management approaches which respect protection imperatives such as access to territory and to the asylum procedure, non-penalization for illegal entry, alternatives to detention and non-refoulement. The overall objective of the conference was to develop protection-sensitive migration strategies built on strong cooperation and partnerships between States, international organisations, academia and civil society organisations. Initially planned as a cross-border meeting between the UNHCR RRCE and the Regional Representation for Ukraine, Belarus and Moldova with the aim to further develop existing mechanisms, invitations were later extended to ve more countries of the region. Consequently, fteen countries from the region were represented at the conference. The delegations of each country included representatives of the border authority, UNHCR and its implementing partner NGOs. The conference offered a great opportunity for the participants to identify the main protection challenges in Central Europe and neighboring countries, focusing on persons in need of international protection. Presentations by academics, representatives of EU agencies and UNHCR addressed the main topics of the conference including admission to territory and the principle of non-refoulement, alternatives to detention, EU developments on access to the asylum procedure, access to refugee status determination procedures and the FRONTEX/ UNHCR partnership. After the more general topics, the conference continued with more specic presentations. The overview of UNHCR activities and the framework related to access to asylum procedures in Central Europe and Ukraine, Belarus and Moldova was followed by fteen country presentations that outlined the major challenges countries face in identifying persons in need of international protection at the borders as well as good practices and experiences in this eld; presented current practices regarding placement in detention or reception centres of persons applying for asylum at the border; revealed practices on readmission and safeguards for refugee protection in the framework of readmission agreements; and overviewed cooperation mechanisms involving NGOs in monitoring the situation of persons in need of international protection at the borders. Participants had the chance to discuss and interact in three working groups and make recommendations on three problems: cross-border cooperation on protection-sensitive border management practices, alternatives to detention, and training, learning opportunities and tools for border police and NGO staff. The last point on the agenda was a visit to the Border Police Directorate of the Ferihegy International Airport in Budapest where participants also had the opportunity to see the detention facility at the airport. The conference offered a great opportunity for networking, information-sharing and dialogue between international organisations, State authorities and civil society with the purpose to exchange good practices related to the identication of persons in need of international protection. The Border Management and Protection of Refugees conference was the rst trans-regional conference of this size involving a large number of States with various experiences in the area of border monitoring and refugee protection.

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Organisers and participants of the conference propose to use the results of the discussions to improve access to the territory and asylum procedures for persons in need of international protection, within the framework of tripartite agreements among UNHCR, State border authorities and NGOs. This report on the conference is published in an effort to continue cooperation and information-sharing on access to territory and asylum procedures.

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OPENING REMARKSby Mr. Gottfried Koefner UNHCR Regional Representative for Central Europe Dear Participants, I would like to welcome all of you to the Border Management and Protection of Refugees Conference. Initially planned was a cross-border meeting between the Regional Representation for Central Europe and the Regional Representation for Ukraine, Belarus and Moldova, in order to further develop the existing mechanisms and synergies between our regions. Soon we came to understand, though, that this meeting would not be complete without the participation of neighbouring countries with which we are working on issues of access for people in need of protection to territory and to asylum procedures. Therefore, we did consider it benecial to extend our invitation to ve more countries, namely Turkey, Russia, Serbia, Greece and Croatia. We are grateful for the cooperation with our colleagues from the Regional Representation in Kiev as well as for the nancial contribution of the European Commission which covers part of the costs of the conference. The overall objective of the conference is to discuss the most recent developments related to protection-sensitive migration strategies for refugees and the promotion of a holistic and collaborative approach built on strong partnership between States, international organisations, academia and civil society organisations. More specically the conference will aim to raise the prole of international protection considerations in the context of regional migration dynamics at the EU external borders and in neighboring countries. It will encourage border management approaches which respect protection imperatives such as ensuring access to territory and to asylum procedures, non-penalization for illegal entry for those who seek and are in need of protection, as well as alternatives to detention, the observance of the principle of non-refoulement, the UNHCR/FRONTEX partnership and cooperation, and the identication of training and learning opportunities for all actors ensuring protection for refugees. The conference will offer opportunities to exchange good practices and lessons learned related to the identication of persons in need of international protection, including women, unaccompanied minors and persons with special needs; and also to actively participate to enhance cross-border cooperation mechanisms, information-sharing and dialogue between international organisations, State authorities and civil society at national and trans-regional level; as well as, last but not least, to participate in the elaboration of practical recommendations on cross-border cooperation on protection-sensitive border management practices, alternatives to detention and training opportunities. Therefore, the three day event will try to analyze and discuss recent developments in regard to the so-called asylum-migration nexus. No doubt, in many cases, refugees and migrants travel together and use the same routes and employ the same smugglers and equally become victims of exploitation by them. Obviously this makes it difcult for States to identify those who are in need of international protection. Growing security concerns make the effective control of borders, a duty of State authorities, an even more urgent priority for most governments. At the same time, today, governments face many new challenges. They include the difculty of identifying those who are in need of international refugee protection from other individuals who may be leaving their homes for other, non-refugee related, yet compelling reasons. Equally importantly, they include the need to preserve the in-

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tegrity of the asylum system and to prevent its abuse by criminal elements. It is also a fact that the majority of the worlds refugees seek refuge and are found in developing countries who already face their own difculties and often lack the required capacities. Numerous safeguards are in place against the arrival of undesirable migrants. The toolbox, as it were, includes visa requirements, interception practices, carrier sanctions, and out-posted immigration ofcials. Foreign search and rescue operations seem to be becoming a new point of reference in the context of decisions on the disembarkation of rescued boat-people and where rst asylum should happen, which State should become responsible, inter alia to deal with protection obligations in respect of refugees. No doubt governments have a right and an obligation to control their own borders. Interestingly enough though, it is the increased freedom of movement within the European Union for instance which seems to cause the need of more effective control and management of movements across the external borders. At the same time it is essential to remember particularly in the context of the management of mixed migratory movements that refugees are victims of serious human rights abuses for whom States have a responsibility. Immigration control and related measures need to be implemented in a protection-sensitive manner that does not prevent refugees from exercising their human right to seek asylum e.g. at borders. The principle of non-refoulement as also enshrined in Article 33 of the 1951 Refugee Convention should protect refugees from being turned back or returned to countries where they are persecuted or where they are not protected against such return. Hence, potential receiving countries need to pay attention in their border and migration management activities and in their cooperation with countries of origin so that they do not become part and parcel of policies that prevent individuals from escaping persecution and other dangers. If that happened they would no longer be able to leave the State where they are in danger since no access to other countries would be granted. It is also a most recent development that many countries are placing those in need of international protection in detention. It is very heartbreaking to know that a person after enduring so much to reach a safe place would be again de facto punished and end up in a prison. Unfortunately in far too many cases these practices are quite protracted and refugees do not know what to expect and what future s/he will have. Innovative forms of alternatives should be explored. There is a clear need to create more space for a humanitarian approach. A prerequisite for any migration management system to be effective and reliable is an asylum system which deals in a fair and efcient manner with the needs of persons seeking protection. Every asylum system must include clear and specic provisions relating to the admission of asylum seekers at the borders and their referral to the refugee status determination procedures/authorities. An effective asylum system must ensure the involvement of trained and well-equipped staff both at the border and inland to deal with asylum requests. To this end, joint efforts must be made by the governments, civil society, UNHCR and other international organisations to contribute effectively to the protection of refugees. This conference tries to make a contribution to that. I again thank you for your committment to join this effort and I am looking forward to interesting presentations, debates and forward-looking conclusions. Thank you for your attention.

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Refugees at the Border

WORKING GROUP RECOMMENDATIONSWORKING GROUP NO. 1 Cross-border cooperation on protection-sensitive border management practices: what support/actions are needed to ensure that asylum seekers get access to the territory and asylum procedure? Moderated by Armen Yedgaryan, Protection Ofcer, UNHCR Regional Representation for Belarus, Republic of Moldova and Ukraine. General Comments: 1. There is a need for increased lobbying and advocacy for the adoption of the necessary legal framework that would ensure independent protection monitoring and access of UNHCR and NGOs to border and detention venues. MOUs may be considered to foster and regulate protection and detention monitoring. 2. Access to procedures should be understood as effective access to entering the procedure by having the opportunity to complete an application, duly reecting the reasons communicated by an asylum seeker, who is properly informed of the legal aspects and consequences of ling an asylum application. 3. Possible aws in the initial asylum application process and registration have a long-term impact on the asylum procedure itself, by affecting the credibility of the asylum seeker, by the application of a certain procedures for the determination of the applicants claim (e.g. accelerated procedures, manifestly unfounded procedures), and by the application of necessary procedural safeguards (e.g. for victims of trauma or violence). Refugee status determination often offers a very limited possibility to actually remedy those ows, usually to the detriment of the asylum seeker. 4. Access to procedures (in the border context) refers not only to new arrivals, but also to returnees from other countries (most notably under the Dublin II Regulation), and persons ling a second application upon receiving a negative decisions (e.g. where there has been a recent change in the situation in the country of origin). 5. Positive practice can be enhanced in the form of sub-regional cooperation and meetings in the Western Balkans. Such meetings could be organised 5-6 times per year. Initial agreement on the exchange of information on asylum seekers has been reached and is currently in the process of nal endorsement. Recommendations: 1. The identication of asylum seekers and persons with specic needs in mixed migration ows should be enhanced (e.g. through uniform standard operating procedures), in order to ensure that they are referred to the competent asylum authority, or appropriate procedure, and to ensure that persons with specic needs receive specic guarantees and services. The development and use by entry and law enforcement ofcials of a proling questionnaire or screening form for identication of asylum seekers and persons with specic needs (amongst irregular migrants) has been recommended. The screening form developed by UNHCR and IOM in 2009 could serve as a basis in this respect. The placement of information boards on asylum at border crossing points should continue.. 2. Improvement of in-country and cross-border dialogue between agencies, civil society actors and humanitarian organisations should be pursued, and the establishment of clear communication channels among the various asylum actors on both sides of the border should be formalised.

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3. An annual regional meeting and sub-regional meetings/missions, as appropriate, should be organised to foster cross-border cooperation and dialogue and exchange of good practices. Given geographical considerations, the following sub-regional groupings are suggested: Turkey, Greece, Bulgaria and Romania; Serbia, Croatia, Hungary, Slovenia and Slovakia; Belarus, Moldova, Ukraine and Poland; and Slovakia, Hungary and Romania. 4. Appropriate translation and interpretation services should be developed, in order to ensure that asylum claims are properly communicated and that the contents of the claim are fully transmitted. Cross-border cooperation in establishing a pool of interpreters in unfamiliar languages would maximise cooperation and the use of resources. Development and sharing of a manual for interpreters, including a code of conduct and condentiality provisions, has been recommended regionally. 5. Capacity building should continue in respect of border, law enforcement and asylum authorities, as appropriate, through cross-border joint trainings, experience-sharing and inputs from experts from countries generally acknowledge to lead with good practices. In particular, training on detention and expulsion, as well as extradition of asylum seekers and refugees has been recommended. UNHCR guidelines on these subjects need to be communicated to respective authorities and civil society organisations involved in refugee and human rights protection. 6. With regard to asylum seekers who are returned under the Dublin II Regulation or a readmission agreement, it is recommended that standardised ways be elaborated of informing them of the possibility, as applicable, to le a new asylum application or reopen the procedure, or to continue the suspended procedure. 7. Similarly, the establishment of a standardised means of informing accompanying family members of an asylum seeker of the possibility, as applicable, to le their own asylum claims is also recommended.

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WORKING GROUP NO. 2 Practical recommendations for alternatives to detention Moderated by Michele Cavinato, Policy Ofcer, UNHCR Bureau for Europe (Brussels) General Comments: 1. Art. 14(1) of the 1948 Universal Declaration of Human Rights provides that everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. Art. 31(1) of the 1951 Refugee Convention provides that no penalties should be imposed on refugees, coming directly from a territory where their life or freedom was threatened on Convention grounds, on account of their illegal entry or presence in the territory of the State. 3. The detention of asylum seekers, in the view of UNHCR, is inherently undesirable. UNHCR guidelines on the detention of asylum seekers inter alia provide practical guidance on the interpretation and application of Art. 31(1), specify exceptions to the general rule that asylum seekers should not be detained, establish procedural safeguards, and suggest alternatives to detention (see UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, 26 February 1999). The Agenda for Protection also urges States to explore more concertedly appropriate alternatives to the detention of asylum seekers and refugees, and to abstain, in principle, from detaining children. 4. The Working Group further noticed that the detention of Asylum Seekers/refugees should only be permitted in the framework of the general regime disciplining detention in a given country. It should only be possible when it is foreseen by the general legal framework applying to all the citizens of a State. In other words, asylum seekers can be detained only if they violate criminal law, otherwise the non-discrimination principle would be violated. Recommendations: 1. In accordance with the international legal framework and the EU Aquis, the rule is that asylum seekers and refugees should enjoy the right to freedom of movement. 2. If for any reason Member States need to ensure the presence of asylum applicants in certain specic places, this can be done through one or more of the following means: Reporting mechanisms Sureties by 3rd parties (guarantors) including by associations/organisations Release to case worker or coach Bail Surrender of passport Electronic monitoring (with the proviso that electronic monitoring be conducted in a manner in full compliance with fundamental human rights, noting the experience of Belgium and Australia in this regard) 3. As highlighted in UNHCR guidelines and other documents, alternatives to detention must be considered in each and every case. If, for individual reasons alternatives to detention are found not to be feasible, the following non-exhaustive list of procedural guarantees, at a minimum, must be put in place: Anyone arrested must be informed immediately in a language that s/he understands of the reasons for her/his arrest.

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The person arrested should be entitled to a speedy judicial review by an independent authority so that a court can decide without delay on the lawfulness of the arrest and detention. Should the arrest prove unlawful, the detained person has a right to compensation. The grounds for detention must be established by law. The shortest possible time limit for detention must be established. The detainee should be notied in a language s/he understands of the reasons for custody and on how to appeal. Asylum seekers should not be detained in the same premises as criminals. UNHCR and NGOs must have accelerated access to the person in custody. Detention should be regularly reviewed by a court. Detention must not be an obstacle to asylum. Applications for protection made by asylum seekers in detention should be prioritised. Conditions of detention must be in accordance with the full respect of the human rights of the detained person. Persons with specic needs and children should not be detained. Children should not be separated from their parents or guardians. 4. The Working Group noted that each State has a right to control those entering its territory, but also highlighted the serious implications of an arbitrary deprivation of liberty. For this reason, it is long established that the deprivation of liberty may only be exercised in accordance with a legal framework established in legislation. For detention of asylum seekers to be lawful and not arbitrary, such a framework must be consistent with Art. 31 of the 1951 Refugee Convention and other international instruments, and must be exercised in a non-discriminatory manner and subject to review. The Working Group recommends that the threshold for detention of asylum seekers should be a breach of criminal law, short of which the non-discrimination principle would be violated.

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WORKING GROUP NO. 3 Identication of training, learning opportunities and training tools for border police and NGO staff. Moderated by Julia Ivan, Project Coordinator, Lawyer, Hungarian Helsinki Committee General Comments: The Working Group discussed matters pertaining to capacity-building for those persons working with persons of concern to UNHCR, including Border Police Ofcers and NGO staff. The Working Group considered the challenges faced, and the needs and opportunities available to setting up training and/or learning programmes. Recommendations: 1. Training programmes for border guards, and the curricula of police and border guard academies, should cover international refugee law and modules on asylum, including on the identication of persons in need of international protection in mixed migration ows. 2. UNHCR, border authorities and NGOs must collaborate further in improving the impact of training. This could be ensured by including the border management and protection of refugees as part of the general induction training package, instead of leaving it as a stand-alone, ad hoc training. 3. Refugee law and practice should be included as a standard part of all border police training curricula. Governments should aim at encouraging and supporting development and education of border guards by promoting a training package in their own curriculum. Including Border Management and Protecting Refugees Training (BMPRT) in the Border authorities regular curriculum will contribute to the sustainability of training delivery. Such training should be made accessible and more comprehensive to ofcers in a user friendly and interactive manner, hence putting less burden on junior ofcers. 4. Border Guards from EU Members States, as well from non-EU States, should be trained on EU law and fundamental rights, both through formal training programmes and cross-postings. The exchange of best border practices from one Member State to another should be ensured through continuous cooperation with UNHCR, NGOs and other relevant international organisations, which should actively participate in elaborating the content of border guard trainings. 5. There is a need to initiate and strengthen training programmes that will lead to changing the mindset of police ofcers in order to be more broadminded towards migrants and persons seeking international protection in general, and to be more sensitive to vulnerable persons, in particular. Thus, there is a need to have components of training programmes with specic focus on vulnerable individuals and groups and persons with specic protection needs, including families, women, children, UAMs, the disabled, survivors of torture or trauma, etc. 6. It is of high importance that the attitudes and knowledge of those who work at entry points and borders is improved in order to ensure that the rst interview/interaction with persons in need of international protection after interception is undertaken in a humane and dignied manner. 7. The high turnover and rotation of ofcers endangers continuity and considerable professional experience is lost. Training should be addressed at the senior level to make senior ofcers understand that quality management is also in their interest and the interest of their organisations. Moreover, training programmes should take advantage of hierarchical command structures, with the intention of facilitating the rapid implementation of orders and policy decisions.

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8. Taking into consideration that legislation changes frequently, the content of the training needs to be updated correspondingly frequently, in order to remain accurate and relevant. Alternative, creative and interactive approaches to training are encouraged, along with practical components, because case studies make human rights more easily understandable. 9. Alternative sources of funding are needed to ensure adequate training. Border management authorities, UNHCR, and relevant EU agencies, NGOs and international organisations should undertake concerted efforts to identify funds available annually for this purpose. 10. Human rights lawyers, NGOs, and UNHCR will need to establish an approach that demonstrates awareness of the specic challenges of border management, with due regard to the needs and concerns of ofcers being trained. For example, a training module on the psycho-social aspects of border management work could be included in the overall training package. 11. The role of UNHCR in the context of EU and regional dynamics should be further enhanced by promoting a stronger position and stronger guidance. 12. For training and learning programmes to be effective, it is necessary that facilitators should be possessed of identied knowledge, skills and attitudes.

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SUMMARY: DAY 1The conference was opened by Mr. Gottfried Koefner, UNHCR Regional Representative for Central Europe (RRCE), who spoke about the importance of raising the level of protection within the region through strengthening cooperation among governments, NGOs and UNHCR. He mentioned the signicance of quality border procedures, also taking into account the context of mixed migration ows. Mr. Papp Karoly, Brigadier General of the Hungarian National Police, spoke about the practical aspects of cooperation among government, NGOs and UNHCR. He briefed the participants on the Hungarian Tripartite Border Agreement and its implementation in practice. Mr. Igor Ciobanu, UNHCR Regional Protection Ofcer, RRCE, briefed the participants on the house rules and the course of the conference. The opening lecture on Admission to territory and the principle of non-refoulement under international human rights law was delivered by Dr. Boldizsar Nagy, Associate Professor of Public International Law at Etvs Lornd University, International Law Department, and at the Central European University, International Relations and European Studies Department. It started with an introduction of issues related to admissibility to territory, both in the context of the 1951 Refugee Convention and in the broader human rights context. Prof. Nagy spoke about the legal aspects of time limits to apply for protection after entering the territory of a State (Jabari v Turkey, ECtHR, 2000). Prof. Nagy also referred to the 1999 UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (the Detention Guidelines), according to which no strict time limit can be applied as a reasonable time for transit before entering the country of asylum. Participants also learned about the notion of the territory with regard to sea borders. Following this thought The position of the Council of Europe regarding the detention of asylum seekers was noted, namely that detention should not be applied to penalise asylum seekers, but rather only to to establish identity and the basis of claims, where no effective alternative to detention is available. In cases of prima facie refugees, in the opinion of Prof. Nagy, detention is not necessary, as it is not a preventive measure. The second part of the lecture was dedicated to the issue of non-refoulement and the possible interpretations of Art. 33 of the 1951 Refugee Convention. When does it apply? Is persecution and threat to life or freedom the same? Who is responsible or authorised to apply the principle? Where not to return and why not to refoule? Participants learned about situations of mass inux and the application of Art. 33 in that context. It was noted that a denial of protection in the absence of an assessment of individual circumstances would be inconsistent with the prohibition of refoulement contained in Art. 33(1) Nevertheless, in situations of mass inux, enormous challenges are presented to States, some of which had questioned whether such situations should be exempted from the non-refoulement principle. Although arguments could be made on both sides, Prof. Nagy stated that the text of the 1951 Refugee Convention clearly denies such an exemption. Similarly, a mass inux situation could not justify mass refoulement. Art 33.2 refers to a refugee meaning an individual refugee who poses a danger to the security of the country. The text clearly requires an individual assessment before Art. 33(2) can be applied. Prof. Nagy also explained the broader context of the non-refoulement principle, particularly in respect of persons at risk of human rights violations. He noted that the non-refoulement provision contained in Art. 3 of the 1984 Convention against Torture (CAT) is absolute (Saadi v Italy, ECtHR, 2008), unlike the non-refoulement provision contained in the 1951 Refugee Convention, which is subject to a national security exception. This means in practice that a State may not return a person to a place where the person would be tortured, even if the person constitutes a threat to national security. This part of Prof. Nagys presentation brought the majority of questions from participants, especially with regard to the scope of this broader meaning of nonrefoulement. The presentation by Ms. Jana Gajdosova, Legal Advisor at the European Union Agency for Fundamental Rights, Freedoms and Justice Department in Vienna entitled Alternatives to detention: an overview of practices in 27 coun-

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tries started with an introduction of the EU Agency for Fundamental Freedoms, its mandate and objectives, as well as its working plans for the near future. It was explained that the Agency provides guidance and advice to EU Member States and collaborates with other EU institutions, agencies and international organisations like UNHCR. Ms Gajdosova presented the results of research conducted by the EU Agency for Fundamental Freedoms in 2009 on detention of third country nationals in return procedures. One of the studys chapters relates to alternatives to detention, which was the main topic of the presentation. The entire research project arose from the commentaries to the Return Directive, during discussions at the EU level. Participants learned about various administrative measures imposed on asylum seekers by Member States, and different methods of their use. It was noted that two-thirds of EU Member States have in their legislation provisions allowing the use of these alternatives, but that practice sometimes varies and the use of alternatives to detention is not so common. There were almost no statistics available on the use of alternatives to detention. Indeed, the EU Agency for Fundamental Freedoms had identied only three countries employing such alternatives: France, Austria and Bulgaria. It was acknowledged that States rarely use alternatives to detention due to the fear of absconding from the procedure, but it was also noted that hardly any statistics had been produced that could justify that concern. Specic solutions implemented in Belgium and Australia were given as examples of alternatives to detention. Two presentations followed on EU developments on access to the asylum procedure: proposal for amending the Asylum Procedures Directive and its links with the Schengen Borders Code, the Return Directive and readmission agreements. The presentations were made by Mr. Vladimiras Siniowas, expert and former staff member of the European Commission and UNHCR and Mr. Michele Cavinato, Policy Ofcer, UNHCR Bureau for Europe in Brussels. Participants were briefed on a proposal prepared by the European Commission on the amendment of the Asylum Procedures Directive. The proposal seeks both to address deciencies regarding the level of procedural guarantees for asylum seekers and to ensure greater harmonization of asylum procedures. The most important provisions that are discussed in the proposal relate to the consistent application of the EU asylum acquis and the right of every person to seek asylum. As a general principle, it was noted, a person applying for asylum should have an effective possibility to le application for protection. Concern had been raised in many quarters, (by NGOs, governments, etc.) regarding insufcient accessibility to asylum procedures. In fact, the Council has started one infringement procedure against one Member State regarding access to procedures, a rare action, as there are few infringement procedures in the eld of asylum. An additional concern related to the lack of binding provisions in the Asylum Procedures Directive, leaving to the discretion of the Member State where the application was led to determine how the Directive should be applied. Another eld of interest covered by the proposal is changes that need to be introduced in the Directive in respect of the protection of minors. The proposed amendment clearly species the right of minors to apply for international protection. The Directive, as currently conceived, is based on the assumption that a minor will benet from all rights but does not speak about the practicalities. The proposed amendment also species that border authorities should be enabled to le an application on behalf of the minor if needed. The proposal obliges Member States to ensure procedural guarantees are implemented, including specic guarantees for minors. Another issue relates to the border authorities and their scope of obligations and role in the asylum procedure as well as the time limits for the authorities to process the asylum application. The proposal singles out border guards, police, and personnel of detention facilities, in the context of providing instruction and necessary training on obligations regarding persons in need of international protection. Border guards are obliged to receive and register asylum applications and must transmit them to the competent authority for further procedures. Regarding time limits, the proposal states that from the moment that a person expresses the wish to apply for asylum, the authorities have 72 hours to register the application.

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It remains unclear whether the proposal will survive the amendment process. Mr. Siniovas expressed the opinion that it will not. Another issue discussed was the situation of asylum seekers in the context of mixed migration ows and the sequence of the application of legal instruments in that situation. In the case of third country nationals who do not fulll the requirements for entry into the territory of Member States, the Schengen Borders Code (SBC) immediately applies. The question raised is how the SBC applies in respect of persons seeking international protection. Art. 13 of the SBC stipulates that it applies without prejudice to the application of special provisions concerning the right of asylum and to international protection. Therefore, it clearly gives priority to the rules governing asylum procedures (i.e. EC Directives). It at least suspends the application of the SBC until the conclusion of refugee status determination procedures. As a general principle, asylum seekers should not be subject to the Return Directive. According to Kadzoev v Bulgaria (ECJ, 2009),, which examines the relationship between detention for the purpose of removal and asylum applications, it was found that in the case of asylum seekers, there is a need for a separate detention order in connection with the asylum procedure. The Return Directive should enter into force in one year. It does not apply to the United Kingdom, but does apply to Liechtenstein.) It requires Member States to follow human rights principles, promote voluntary returns, and establishes an EU control mechanism over the returns. It was noted that the title of the Directive refers to illegally staying third-country nationals, with Art. 3 dening third-country national and illegal stay. Entry into the Member State for the purpose of seeking international protection does not constitute illegal stay, according to Schengen Borders Code. As such, it was felt that the Return Directive would not have a large impact in this area. In terms of safeguards and guarantees, the Return Directive and readmission agreements, were seen to give rise to potential risks for persons in need of international protection. For example, the issue of re-entry bans comes into question. In 2009, 7,000 alerts were made in the Schengen registry, preventing signicant numbers of persons from entering EU territory. In such cases, Art. 11(5) of the Return Directive ensures that the right to international protection prevails over entry bans. Another situation that could potentially put persons in need of international protection at risk occurs where appeals are without suspensive effect. Ms. Jadwiga Maczynska, Deputy Project Coordinator of the Further Developing Asylum Quality Project, in her presentation on Access to Refugee Status Determination Procedure: Quality Initiative Projects presented the issues related to the quality of asylum procedures as an aspect of the right to seek and to enjoy asylum from persecution. She spoke about quality itself, different means of assessing quality, as well as different approaches to improving quality. She presented two UNHCR projects on quality, run on the international level: the Quality Initiative, which ended in 2009, and Further Developing Quality, currently on-going. She presented the scope of both projects, the report and recommendations issued as a result of the rst, as well as the stage of implementation of the latter. Ms. Maczynska also presented as an example some national implementations of Further Developing Quality, as well as other projects focusing on the improvement of asylum procedures. For example, in the UK the project is no longer referred to as Quality Initiative but rather as Quality Integration to emphasize its long-standing and sustainable character. In Austria the authorities focus on the specic areas of concern while implementing the quality projects. It is encouraging, in the opinion of Ms. Maczynska, that most of the ndings resulting from the Quality Initiative/ Further Developing Quality projects correspond to the ndings by UNHCR and addressed in various documents and policy instruments (such as the 10-Point Plan of Action). For example, the following were identied: The need to deal with mixed migration situations, which create a risk of improper identication of persons in need of international protection; The similar situation of vulnerable persons that may not necessarily be properly identied by the respective authorities; The use of detention, which may hamper the ability of individuals to play an active role in RSD procedures (to cooperate throughout the procedure and take full advantage of their rights);

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That appropriate translation and interpretation remain a signicant challenge, both for the authorities as well as for other entities involved in refugee assistance. This was noted as especially important in terms of securing the right to effective procedures and not to worsen the position of the asylum seeker through poorly or mistranslated/misinterpreted interviews, documents and decisions; That access to legal information and legal aid may be infringed; and That, with regard to training and capacity building, in many countries in the region the situation has changed signicantly in the recent past years joining the Schengen zone, the EU etc. and that in many cases new personnel have been employed in positions responsible to receive asylum applications or deal with RSD procedures. Training and capacity building should be adjusted accordingly. Mr. Michele Simone, Senior Liaison Ofcer to FRONTEX, UNHCR Liaison Ofce to FRONTEX in Warsaw, briefed the participants on the scope of operation of FRONTEX as well as its mandated areas, such as: risk analysis (within the EU meaning), coordination of Member States actions in the implementation of the management of external borders, training of national border guards including common training standards, research on control and surveillance of external borders, and technical and operational assistance. He mentioned that FRONTEX would be opening a new operational ofce in Greece in October 2010. In February 2010, a new proposal to recast the FRONTEX regulation was made and is currently being discussed by the European Council and European Parliament. In the opinion of Mr. Simone, overall the proposal is good as it refers to fundamental rights and international protection obligations. It especially species that the border guards need to be trained on fundamental rights and international protection obligations before being employed in the relevant area. The overall cooperation between UNHCR and FRONTEX was described as good. Areas of common interest include training activities, information sharing and working on a common curriculum. UNHCR has expressed its willingness to strengthen cooperation with FRONTEX, for example, through participation in Rapid Border Assessment Teams (RABIT) starting January 2011. Mr. Simone then presented the outline of the new of UNHCR Protection Training Manual for European Border and Entry Ofcials, its structure, modes of use, perspectives of implementation, prerequisites and purposes. He assured participants that the manual will be available (rst only in English) by the end of 2010.

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SUMMARY: DAY 2The second day of the conference opened with a summary of the rst working day made by Ms. Maria Pamula, Assistant Protection Ofcer (UNHCR Poland). Mr. Armen Yedgaryan, Protection Ofcer, UNHCR Regional Representation for Belarus, Republic of Moldova and Ukraine made a presentation thereafter on the UNHCR policy in these three countries. His presentation is summarised as follows: 1) General overview of the situation with specic peculiarities of the region The speaker underlined that all three States represent transit countries for those migrants and asylum seekers who want to enter EU Member States. However, Belarus, Moldova and Ukraine are also countries of destination for some asylum seekers and migrants. Taking into account the above-mentioned phenomena, there is a need to build and improve an adequate and fair asylum system and provide effective protection to persons of concern. 2) Projects implemented in the region Regional Protection Support Project (the whole region with specic emphasis on Moldova and Ukraine, 2009-11); Strengthening Protection Capacity in the Republic of Belarus phase II (Belarus; 2009-11); Local Integration of Refugees in Belarus, Moldova and Ukraine (phase I) (the whole region; 2009-11). 3) Legislation Belarus and Moldova recently modied their asylum laws (Belarus 2009; Moldova 2008) introducing subsidiary and temporary protection. The new Ukrainian Law on Refugees is now in the process of examination. Recently its draft was sent to the Parliament. 4) Readmission Moldova and Ukraine have readmission agreements with the EU and between each other. The majority of readmissions take place at the Ukrainian border with Moldova and at the border between Ukraine and the EU. Belarus does not have any readmission agreements. (The main problem is the open border with Russia.) A readmission agreement between Belarus and Ukraine is being discussed, and a similar agreement with the EU is being considered as well. The importance of advocacy with the Government in order to have access to migrants in transit zones (mainly airports) was underlined. 5) Non-refoulement No cases of refoulement were reported in Belarus and Moldova in 2009. Effective border monitoring is crucial: as non-admission to the territory could be considered refoulement, proper identication of asylum seekers among migrants is essential. A lack of interpreters, especially in rarely used languages, hampers effective border monitoring and identication of persons in need of international protection. 6) Border monitoring

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Effective cooperation and exchange between NGOs for better identication of persons in need of international protection is important. UNHCR should support and facilitate the cooperation of NGOs in the sphere of border monitoring. 7) Improvement of cooperation between States and parties Bilateral meetings could be used for this purpose. 8) Improvement of effectiveness of work with persons of concern in the broader context of migration Leaets for Ukrainian Border Guards were elaborated, produced and distributed. Training of relevant State authorities and their personnel should be conducted on a regular basis. Training/learning courses (migration and asylum issues) should be introduced into the curriculum of educational institutions, especially those which are in charge of tutoring future border guards, police ofcers, etc. 9) Reception facilities Belarus 4 reception facilities (necessity of personnel training). Ukraine 3 reception facilities (necessity of improvement of conditions in accommodation facilities of border guards). Moldova 1 reception facility. 10) Good practices Memorandums of Understanding were signed in Belarus and Moldova (providing for the scope of cooperation and responsibilities of parties within the framework of border monitoring). Ukraine cooperation is maintained on the basis of steering committee meetings and working meetings of the parties involved. Good level of cooperation with IOM (joint border monitoring). Public awareness has been raised. Cooperation with the European Council on Refugees and Exiles (ECRE) for training of NGO personnel. Cooperation with the Danish Refugee Council (project which covers vulnerable categories of persons of concern). 11) Voluntary return/assisted voluntary return Return of migrants is performed on voluntary basis (all countries). Few cases of voluntary repatriation in Belarus and Moldova were reported. Voluntary return is negatively affected by lack of embassies and consulates (pending responses to requests for assistance). IOM is involved in assisted voluntary return of migrants (Belarus). 12) Local integration and resettlement Further improvement of work in the sphere of local integration of refugees is needed. Low recognition rate in all countries. Recognised refugees do not see a lot of integration prospects for themselves. Language training as well as employment are the most vital issues for recognised refugees (all countries of the region).

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Resettlement is still a relevant durable solution for persons of concern in all countries of the region (more than 200 cases submitted for resettlement). The third speaker, Mr. Igor Ciobanu, Regional Protection Ofcer (UNHCR RRCE) spoke about UNHCR policy in Central Europe. A short movie from Kyrgyzstan preceded the presentation, in order to demonstrate to the audience what is happening in the 21st century and in how many situations UNHCR assistance is needed, especially when persons escaping persecution are blocked at the border. The speaker continued with a short refresher related to the main instruments used for work and those which create a comprehensive framework for activities. In particular, the following were highlighted: The Agenda for Protection (2000), the main features of which were described. The 10-Point Plan of Action, with emphasis on the necessity to guarantee unhampered access to RSD procedures. Conclusions of UNHCRs Executive Committee which emphasised the necessity to guarantee free access to the territory of the country of asylum. Good practices from the region. Statistics presented showed that the three main refugee-receiving countries in Central Europe are Poland, Hungary and Slovakia. Poland and Bulgaria have the highest rate of granting subsidiary forms of protection. It was stated that Hungary was the rst country in Central Europe where a Memorandum of Understanding was signed. This introduced a well elaborated tripartite framework for cooperation in the sphere of border monitoring. Today all countries in the region, except the Czech Republic, have concluded such Memoranduma of Understanding. Procedural rules that are in fact a compilation of good practices from the region are being adopted and used in practical day-by-day activities. The speaker noted that a protection-sensitive entry system is an issue of vital necessity. It should be based on the 10-Point Plan of Action and it should aim to provide protection to persons of concern as well as to observe human rights standards and the principle of non-refoulement. He noted that, with regard to border monitoring, this instrument should guarantee asylum seekers unhindered access to the territory of the country of asylum and the RSD procedure. Provision of legal counseling to asylum seekers, observance of the non-refoulement principle, early identication of asylum seekers and training and capacity building for border guards should be performed within the framework of border monitoring activities. In order to make work more effective and practical Protection Unit has elaborated a Border Management and Protection of Refugees framework containing guidance on UNHCR Implementing Partners related tasks and responsibilities, Tripartite Working Group procedural rules and provision for drafting the annual report. Mr. Ciobanu stated that training of border guards of different levels is a crucial part of activities performed in all countries of Central Europe. The main purpose of the training is improvement of the quality of work and enhancement of cooperation between parties involved in border monitoring activities (State authorities and ofcials, UNHCR and NGOs). According to the Memoranduma of Understanding, tripartite working groups are operating. Their activities as well as the monitoring of the implementation of agreements, analysis and reports on border monitoring missions are used to monitor the process, identify difculties that arise and improve joint actions in the sphere of border monitoring and provision of protection to people applying for asylum.

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The speaker underlined that border entry ofcials are assisted in the identication of asylum seekers and their referral to RSD procedures. Assistance is provided both by UNHCR and its implementing partners. In order to improve effectiveness of work, the following actions are performed: relevant training for entry ofcials, elaboration of a methodology on the reception and identication of asylum seekers, and the provision of information (including the distribution of materials in the form of leaets). For ensuring cross-border cooperation, multipartite meetings and study visits (including study visits to Hungary for familiarization with Hungarian practice in the sphere of border monitoring) are organised. The rest of the day was dedicated to presentations made by the representatives of 11 countries: Belarus, Bulgaria, Croatia, the Czech Republic, Hungary, Moldova, Poland, Romania, Slovakia, Slovenia and Ukraine. Speakers provided information about their respective countries, agencies/organisations working with migrants and asylum seekers, recent developments and projects (both on the national and regional levels) that are being executed and/or were previously executed. Some presentations contained information about the main legal instruments that are used in practice. Relevant statistics were provided as well. It was highlighted that border guards are not responsible for RSD procedures, but rather are required to receive and register applications for asylum and are obliged to transfer applicants and their cases to the competent State authorities. Speakers emphasised that the number of asylum applications is decreasing. Good practices Country delegations identied the following positive achievements: 1. Memoranduma of Understanding were signed in all countries, except the Czech Republic and Ukraine. 2. Trainings for border guards and representatives of other State authorities and NGOs working with refugees are being organised on a regular basis. Assessment of training needs of respective State authorities and NGOs is performed as well (noted in the presentation of Poland). Hungary mentioned psychological supervision sessions for border guards. 3. A high level of cooperation with educational institutions exists. Training courses on migration and asylum issues are introduced into the curriculum of educational institutions in charge of tutoring future border guards, police ofcers and other personnel of State authorities who will deal with migrants and asylum seekers in their respective work. In Hungary, a handbook for students of the Hungarian Police Academy on human rights-sensitive border management and monitoring inclusive of access to territory and asylum procedures was jointly drafted by border guards, UNHCR and the Hungarian Helsinki Committee. 4. A high level of cooperation and mutual understanding between State authorities, UNHCR and NGOs exists. 5. Migrants and asylum seekers are informed (at the border) about their right to seek asylum and other rights described in international and national legal instruments. 6. Poland and Slovakia reported a high level of cooperation both between national NGOs and between national NGOs and NGOs from neighboring countries.

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Refugees at the Border

7. Belarus, Moldova and Ukraine emphasised the good cooperation shared with the International Organization for Migration (IOM), especially in the sphere of assisted voluntary return of migrants apprehended at the border (Belarus). 8. Non-penalization for illegal entry was clearly articulated by Belarus, Moldova, Romania and Ukraine. Hungary reported on unhampered access to the territory and Romania to RSD procedures. 9. In the Czech Republic, vulnerable categories of asylum seekers have access to RSD procedures without any delay (after they are identied). UNHCR has free access to asylum seekers and Ministry of Interior decisions on asylum claims. Asylum seekers accommodated at the airport reception centre enjoy free-of-charge legal counselling provided by NGO personnel, as well as social services. 10. In Slovakia, an independent lawyer is present during interviews with foreigners conducted by border guards. Files of foreigners are accessible. 11. In the Czech Republic and Hungary, NGO partners have free and unhampered access to asylum seekers In Slovakia, a Code of Conduct for interpreters was elaborated. 12. No cases of refoulement were reported in Bulgaria and Romania. 13. Hungary became a source of best practices: a number of familiarization visits of delegations from neighboring countries were organised in recent years. 14. Bilingual annual/biannual reports on border monitoring activities and related follow-up have been published in Hungary. 15. Positive changes in national legislation regulating migration and asylum: introduction of subsidiary and temporary protection (Belarus and Moldova). 16. Croatia reported comprehensive monitoring mechanisms established in the country and supported by all actors involved (at borders and inside the country). Challenges The following challenges were mentioned: 1. A lack of interpreters in general and lack of professional interpreters in particular. 2. Difculties with the identication of asylum seekers among all other migrants (Croatia, Moldova). Asylum seekers are also often smuggled, which again hampers their effective identication (Bulgaria). More attention should be paid to the identication of victims of human trafcking (Ukraine). 3. A lack of effective identication of applicants with special needs: although the State is obliged to ensure access to the territory to an applicant considered to have special needs within ve days from her/his declaration to apply for protection in the transit airport zone, in practice this is often not the case (Czech Republic). 4. The State authority in charge of RSD procedures is not operational at the border (Bulgaria). 5. There is no possibility to observe preliminary interviews conducted by border guards with migrants/asylum seekers in order to monitor whether border guards inform people that they can apply for asylum if they want (Slovenia). There is a lack of mechanism which allows nding out whether all asylum seekers crossing the border were identied, whether migrants were informed of their right to seek asylum, etc. (Croatia).

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6. People seeking asylum at the border are not safeguarded from detention. Since April 2010, asylum seekers have been subject to criminal prosecution for illegal entry (Bulgaria). Correspondingly, registration and accommodation of asylum seekers are postponed. 7. Asylum seekers should have access to speedy judicial review of detention decisions, as today there are examples where no judicial review was undertaken, ten months after the appeal was submitted to the court (Czech Republic). 8. Slovenia stated that the existing RSD procedure is not fair and it should be improved. The Czech Republic underlined that existing legislation should be improved in order to improve the quality of RSD procedures, as well as to ensure that rejected applicants use their right to appeal against the negative decision of the respective State authorities in charge of RSD procedures. 9. Bulgaria reported that legal assistance is not provided at the border and in custody during the rst 24 hours of detention. Moreover, BHC is the only NGO that monitors and ensures access of asylum seekers who applied at the border. The Czech Republic added that access to asylum seekers requires the previous consent of State authorities. Poland reported that more legal assistance should be provided to persons in need of international protection. 10. Asylum seekers should be properly informed about their rights, rst and foremost, about the right to seek asylum (Poland, Ukraine). Asylum seekers should be aware of their right to communicate with UNHCR and its implementing partners (Slovenia). 11. Cases of refoulement (especially to Ukraine) were identied (Hungary). 12. More trainings and awareness-raising sessions for border guards should be organised in order to make them better understand that people are entitled to apply for asylum (Slovenia). More training of border guards and relevant State authorities should be organised in order to increase the effectiveness of their work in the sphere of identication of asylum seekers (Moldova). More training for Ministry of Interior ofcials who are in charge of identication of vulnerable categories of asylum seekers should be organised (Czech Republic). 13. A lack of country of origin information (COI) research, inadequate instruction and the non-existence of a border monitoring agreement hampers effectiveness in the identication of asylum seekers as well as the effectiveness of work with them (Slovakia). 14. There is no uniform understanding of how to deal with cases of applicants who attempt to cross illegally into another EU Member State (Ukraine). 15. UNHCR and IOM should support the establishment of accommodation centres for asylum seekers (Ukraine). Reception facilities solely for asylum seekers should be established. Asylum seekers should not be afliated with organised crime and smuggling and trafcking (Moldova). 16. The State withdrew from the Memorandum of Understanding and now insists on the conclusion of a separate bilateral international agreement with UNHCR as it thinks that it is UNHCRs task to work with asylum seekers. The State considers that UNHCR cannot transfer its work and responsibilities to any other legal subjects (Slovakia). 17. Quick readmission to Ukraine is problematic, with the use of Slovak territory for return to Ukraine from the Czech Republic being highlighted (Slovakia). 18. The open border between Belarus and Russia was also mentioned, noting that there is no control at the border (Belarus).

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Refugees at the Border

19. The majority of migrants are apprehended when they try to leave the country, not when they enter the territory (Belarus, Romania). 20. Future accession (in 2012) to the EU could potentially create additional challenges (Croatia). Most probably more migrants and asylum seekers will enter the country and it is yet unknown whether border guards will be in a position to identify asylum seekers properly. It is also not known whether accelerated RSD procedures will be introduced (due to increased numbers of arriving foreigners). Readmission All countries except Belarus have readmission agreements (mostly with neighboring States). These agreements are implemented and, as a rule, foreigners who expressed their wish to apply for asylum have unhindered access to RSD procedures. In such cases asylum seekers cannot be readmitted. Bulgaria reported on a few previous cases of refoulement that, however, were not connected with the execution of readmission agreements (i.e. these were cases of threats to State security or of Interpol concern). The Czech Republic reported that in accordance with national legislation, a foreigner is not entitled to declare the intention to apply for international protection at the border crossing if s/he is subject to transfer under a readmission agreement or the Dublin II Regulation. Hungary raised concern about return of foreigners to Ukraine in accordance with the existing bilateral readmission agreement. It was said that expulsion orders that are very often not based on a thorough assessment of the individual circumstances of the specic foreigner could potentially carry the risk of refoulement. Moldova stated that although a readmission agreement with the EU was concluded in 2008, there were no cases of return of third country nationals to Moldova. In Ukraine, foreigners who are accepted within the readmission framework are placed in temporary centres. If information related to a previous application of the foreigner for asylum (either in adjacent States or other EU Member States) is revealed, UNHCR is informed. Detention In Bulgaria, persons seeking asylum at the border are not properly safeguarded from detention. As border guards are not entitled to examine asylum claims and all asylum seekers should be transferred to the Ministry of Interior, applicants are in limbo from the moment they apply for asylum at the border until the moment the application is ofcially registered. In accordance with Bulgarian legislation, detention of asylum seekers before their transfer to reception centres is legal. Asylum seekers apprehended at the border should be sent to special centres for temporary accommodation (except separated children, pregnant women and individuals who suffered physical or psychological trauma). After that, detained asylum seekers are sent to reception centres. The transfer depends on the accommodation capacity of the centres. Release of asylum seeker from a detention centre for irregular migrants depends entirely on the goodwill of State authorities. Many asylum seekers who illegally entered Croatia were penalised in misdemeanour procedures and placed into detention during the RSD procedure due to the fact that in such cases border guards applied the Law on Foreigners rather than the Law on Asylum. On the other hand, in 2008-2010, the situation signicantly improved and the number of such cases decreased. If a foreigner enters the Czech Republic by plane and applies for asylum, s/he is placed into a reception facility at the airport. The competent State authority must make a decision upon admission to the territory within ve days (from

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the moment the person applied for asylum). In any case entry will not be allowed for those whose identity could not be established, who presented false identication documents, or who could threaten State security, public health or public order. Asylum seekers with special needs are allowed to enter the territory. The stay is limited to 120 days. A decision on international protection must be taken within four weeks, otherwise applicants must be allowed entry to the territory. A decision on not allowing entry to territory may be subject to either administrative re-examination or to a judicial remedy. UNHCRs NGO partners regularly visit the reception facility at the airport and provide asylum seekers with legal assistance and monitor reception conditions. Those who apply for asylum at the Hungarian border must be placed in reception centres, while those who apply upon apprehension for unlawful entry are detained and placed in administrative detention facilities for six months. (If the proposed new law is adopted, this detention period could be extended by another six months). The current practice of keeping asylum seekers in detention for more than 15 days (during the preliminary screening procedure) would seem to qualify as arbitrary detention. Detention conditions in administrative facilities are disproportionately strict, resembling a prison regime. Those who applied for asylum at the border of Moldova are temporarily (for a maximum of 24 hours) accommodated in special premises for asylum seekers. If such premises are not available, the applicant receives a temporary identity card (valid for 48 hours), which allows the asylum seeker to travel to the immigration authority and register his asylum claim there. People who apply for asylum at a border with Romania will remain in a transit centre until a decision on the asylum claim is made, but not longer than 20 days (if the Romanian Immigration Ofce does not grant the asylum seeker access to the territory and to the regular procedure). Existing practice clearly shows that all asylum seekers who applied for asylum at the border were granted access to the territory and to the RSD procedure. If an asylum seeker is caught at the green border (before s/he applies for asylum) s/he will be transferred to an open reception centre. In accordance with relevant legislation, asylum seekers entering Slovakia are not detained nor placed into centres where their freedom of movement is limited. If a person applies for asylum after being detained, however, s/he will not be immediately freed and transferred to the reception centre for asylum seekers. According to the law, the reason for detention is to prevent absconding - and to facilitate the enforcement of expulsion from the territory of the country and the Schengen area as a whole.

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Refugees at the Border

SUMMARY: DAY 3On the third day of the conference the following country presentations were made: the Russian Federation, Serbia, Turkey and Greece. The presentations covered the existing asylum system, readmission agreements, border practice and challenges faced by the relevant country. The Russian Federation, being a State Party to the 1951 Refugee Convention and its 1967 Protocol (without limitations and reservations), has achieved the following: Established a national legal framework on asylum and developed a national Refugee Status Determination procedure; designated executive authorities with activities and responsibilities for asylum seekers and approved their responsibilities (Federal Migration Service of the Russian Federation and its territorial branches, the Ministry of Foreign Affairs, the Border Guard Service of the Federal Security Service); created functioning Temporary Accommodation Centres and has trained specialists in the eld of asylum. Supported the creation of a network of NGOs that provide assistance to asylum seekers. The types of protection provided in the Russian Federation are as follows: political asylum, refugee status and temporary asylum. During the 2005 2010 period, the total numberof applications for refugee status were 128,900, Afghanistan being the main country of origin, with 5,666 applications. A total of 41% of applications for refugee status were lodged in Moscow City. During the same period, 461 persons applied for asylum at the border. During this period, the recognition rate was 7% for refugee status and 38% for temporary asylum. As of 1 November 2010, 4,588 persons were holding an asylum status in the Russian Federation. During the rst 10 months of 2010, 1,910 persons applied for refugee status and 1,515 for temporary asylum. The following main issues and challenges relating to the identication of asylum seekers at the border were identied: Further development of the national legal framework relating to addressing instances of seeking asylum at the border (clarifying procedures for receiving applications for asylum, referral of asylum applications, clear division of responsibilities and duties, identication of legal gaps, etc.); Creation of a network of temporary accommodation centres, including in transit zones of international airports; Training of border guards on the asylum procedure and asylum law; Strengthening cooperation between different national ministries and departments; and Streamlining joint efforts with NGOs. The Citizenship Department of the Russian Federal Migration Service presented the practice under implemen readmission agreements concluded between the Russian Federation and the Republic of Lithuania (2003); and the Russian Federation and the European Union (2006). (Executive protocols were signed in the following years with individualr States, including: Ukraine (2006), Norway (2007), Uzbekistan (2007), Denmark (2008), the Republic of Iceland (2008), the Socialist Republic of Vietnam (2008), Switzerland (2009), and the Republic of Armenia (2010). During the 20092010 period, the Russian Federation sent a total of 25 requests for readmission, of which 18 were approved and 3 rejected. The Republic of Serbia adopted an Asylum Law in November 2007 and subsequently assumed competencies in asylum and refugee protection on 1 April 2008, upon the creation of structures and the adoption of by-laws necessary for implementation. The Asylum Ofce located within the Ministry of Interior assesses asylum claims in the rst instance. Appeals can be lodged at the Asylum Commission, which consists of eight members and a chairperson appointed by the Government. In all cases, as a nal remedy, a claim can be lodged to the Administrative Court, so that judicial

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protection and legal review is possible. Asylum seekers, pending the adoption of the nal decision on their asylum applications, are provided with accommodation and basic living conditions at the Asylum Centre, which has a capacity of between 80 and 85 persons. The major challenges with which the asylum authorities in Serbia are faced is differentiating between illegal migrants and genuine refugees, as well as determining their true identities. When apprehended, a certain number of aliens, attempting to illegally enter the country, express the intention to seek asylum in the Republic of Serbia. In these circumstances, a proper assessment is crucial in order to distinguish between those attempting to evade punishment for illegal border crossing by loding abusive claims and those who are genuinely in need of protection. Border police depend on such an assessment, given that Art. 4 of the Law on Asylum stipulates that an alien who is on the territory of the Republic of Serbia shall have the right to le an application for being granted asylum in the Republic of Serbia ; in Art. 6 that no person shall be expelled or returned against his/her will to a territory where his/her life or freedom would be threatened on account of his/her race, sex, language, religion, nationality, membership of a particular social group or political opinions ;and in Art. 8 that an asylum seeker shall not be punished for unlawful entry or stay in the Republic of Serbia . It was underlined that because of possible abuse of these rights, the Law on Asylum offers two ways to resolve such situations: the rst is issuing a certicate to asylum seekers by Border Police, which gives them a right to access Serbian territory and is valid for 72 hours, during which time they should report to an Asylum Centre or Asylum Ofce. The second way is used when Border Police suspect that the request for asylum is expressed with the intention to abuse the asylum system in order to evade responsibility for illegal border crossing. Such asylum seeker(s) would be escorted by Border Police to the Reception Centre for Aliens, where the ofcers of the Asylum Ofce will take them over. There are other grounds that can lead to restricted freedom of movement for asylum seekers. The Law on Asylum stipulates that detention is permissible in order to establish identity; in order to ensure the presence of an alien in the course of the asylum procedure, if there are reasonable grounds to believe that an asylum application was led with a view to avoid deportation, or if it is not possible to establish other essential facts on which the asylum application is based without the presence of the alien in question; and in order to protect national security and public order in accordance with the law. The measures through which restriction of movement can be implemented are ordering accommodation at the Reception Centre for Aliens under intensied police surveillance; and imposing a ban on leaving the Asylum Centre, a particular address and/or a designated area. With regard to the readmission of asylum seekers, a difference should be made between two scenarios: the readmission of asylum seekers whose procedure has ended and the readmission of asylum seekers who left Serbia before the processing of their claim came to an end, thus suspending consideration of their claims. The Law on Asylum stipulates rules for both of these scenarios: in the rst case, a new asylum application can be submitted if evidence is provided that the circumstances relevant for recognition as a refugee or for granting subsidiary protection have substantially changed in the meantime. In the second case, a readmitted asylum seeker could submit a proposal for restoration of the original conditions. Decisions in both cases are made by the Asylum Ofce, with the full spectrum of remedies: appeal to the Asylum Commission and a claim to the Administrative Court. Unfortunately, there is no NGO in Serbia whose actions are predominantly dedicated to readmitted asylum seekers. However, there are a few NGOs whose goals are more or less related to asylum seekers, and the Serbian Ministry of Interior has very good cooperation with all of them, and with UNHCR as well. The experience of Serbian asylum authorities in processing asylum claims is neither long nor extensive. As such, real examples of good practice cannot yet be presented. In fact, UNHCR was tasked with the processing of asylum claims in the Republic of Serbia for almost three decades, with Serbian authorities, in the course of European integration, taking over that task only recently (in 2008)., It was pointed out that there is no accelerated procedure and all asylum seekers, no matter whether they are considered to be suspicious or genuine, go through the same procedure, which consists of four stages: recording, registration, interview, and decision making. By doing so, it is ensured that every claim will be processed properly without regard to the motives for seeking asylum in Serbia. The Republic of Serbia is still in the process of building the asylum system and its institutions. Current capacities at the Asylum Ofce and Asylum Centre are not sufcient, especially in light of the constantly increasing number

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Refugees at the Border

of asylum seekers. For comparison, in 2008 there were 77 asylum claims. In 2009 the number of asylum claims increased to 275, and in 2010, until 15 November, there had been 418 asylum claims submitted. However, all staff involved in sustaining and supporting the asylum system are quite enthusiastic and the current lack of capacities and, generally, resources invested in its maintenance is compensated with a tremendous amount of energy. On the other hand, the major challenges, difculties and obstacles are recognised and steps are being taken in order to overcome them. The presenter pointed out that the Government expects further assistance, predominantly from UNHCR, but from all other non-governmental actors as well, in order to achieve better welfare of asylum seekers and refugees. Turkey was characterised as a transit country on the road of irregular migration. The country is bordered by eight other countries, with a 2,870 km land border, and a 6,808 km coastline. Apprehension of illegal immigrants reached its peak in 2000, with 94,514 persons. As at 30 December 2009, the number for the year was 32,789. A total of 15,637 asylum seekers and refugees were reported as of 1 November 2010, the majority being from Iran, Iraq and Afghanistan. It was underlined that Turkey maintains the geographical limitation contained in Article 1B of the 1951 Refugee Convention. Therefore, the only durable solution for non-European refugees in Turkey is regarded as resettlement. A parallel Refugee Status Determination procedure is being conducted by UNHCR. Illegal entry in Turkey is governed by the 1994 Regulation and there is still no law adopted. Persons who have entered legally can apply for international protection to the Governorate of the border cities they entered. Those persons who have been apprehended due to illegal entry, presence or exit are detained at removal centres. The following major challenges in border practices were outlined: Access to information concerning asylum procedures Access to procedures referral mechanisms to be established Access by UNHCR to persons seeking protection Access to UNHCR, NGOs, or legal aid by the persons in need of protection In accordance with an Instruction to the Foreigners Department/Police, in case an application for international protection is received, there is a release from the transit zone, followed by Registration and Referral to a satellite city. However, in the cases where an application is not received, there is a threat of deportation. Readmission agreements with Greece (2002), Ukraine (2005), Syria (2007), Kyrgyzstan (2009), Romania (2009) are in force. Other rreadmission agreements were offered to Iran, Iraq, Afghanistan, Pakistan and preliminary consultations are underway with the Russian Federation, Uzbekistan, Belarus, Hungary, Macedonia, Lebanon, Egypt, Libya and Iran. As safeguards in the Readmission Agreements, the following were outlined: Turkey-Greece Readmission Protocol Article 11 Relation with other International Instruments This Protocol does not affect the rights and obligations arising from other international agreements binding upon the Parties. Turkey-Ukraine, Turkey-Romania, Turkey-Kyrgyzstan Readmission Agreements: Articles Relation to other International Agreements Nothing in this Agreement shall in any way prejudice the rights acquired and obligations undertaken by any of the Contracting Parties, arising from other international legal instruments by which they are bound.

Conference Report

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This agreement shall not apply to the persons subject to procedures related to extradition, extradition in transit or t