06 May 2020
Claiming asylum from democratic countries
Where a displaced person originates from a war-torn country or faces persecution from a regime that is widely viewed as authoritarian, the path to obtaining asylum is relatively easy to discern. In contrast, it can be extremely difficult to successfully claim asylum where the applicant originates from a developed democracy that the Home Office considers ‘safe’.
That poses a problem, because in many countries the fundamental tenets of democracy are under attack. Across the world we see a rise in populist “strongman politics”, which is almost always accompanied by attacks on political outsiders, the judiciary, and immigrants – including, by association, ethnic minorities – as well as an erosion of human rights. These attacks have only been exacerbated during this period of pandemic lockdown. International law is often slow to respond to such changes, because it is directed by political and diplomatic considerations just as much as an objective respect for human rights. It takes ambitious and creative legal action to overcome or challenge that paradigm.
Where an applicant’s country of origin has traditionally been considered a ‘safe’ developed democracy, they must do one of two things to obtain asylum. They can seek to persuade the decision maker to disavow altogether the prevailing view that the state machinery in their home country is fair, non-discriminatory, and able to protect individuals against rogue private actors; or they can argue that despite the general rectitude of the prevailing view, their circumstances are so exceptional that the state is either unable or unwilling to protect them.
In Horvath, Lord Lloyd held that sufficiency of state protection should be measured by “the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it”. When assessing this question with respect to a recognised democracy, the Tribunal will first check whether there is a relevant country guidance determination. If there is, the Applicant may find it difficult to overcome: in R (Iran) v SSHD and SG (Iraq) v SSHD it was held that contravening country guidance amounts to an error of law, unless there are “very strong grounds supported by cogent evidence” to justify the departure. If the case does not fall within the purview of any country guidance, the Tribunal will instead look to authoritative reports, including those from the Home Office.
To overcome a settled view that the applicant’s country of origin is a developed democracy, it will therefore be necessary to provide strong evidence of a significant change in the country’s conditions. This invariably means gathering expert evidence and investigators’ reports, as well as open source material from reputable organisations.
India is perhaps the most obvious example of a country whose ostensible democratic nature is no longer entirely reflected in reality. In 2018, there were 1,632 Indian asylum applications in the UK, many from Muslims. Relevant country guidance from 2002 held that India provided sufficient protection for Muslims because of their independent judiciary and government initiatives to prevent police abuses, and that in any event most of India was “largely untouched” by anti-Muslim violence. Yet since Narendra Modi became prime minister in 2014, violence by militant Hindu nationalists against religious minorities has risen and spread nationwide. On February 24th 2020, 53 people we killed in violence that broke out in Kardampuri, a district in Delhi, and over 200 were injured. Reports suggest that the police enabled and even participated in these attacks.
In addition, there is an increasing consensus that Modi is seeking to undermine the independence of the judiciary. Perhaps most shocking of all, the administration recently passed two laws that directly impinge upon the rights of ethnic minorities. One allows non-Muslim immigrants from neighbouring countries to have their asylum claims fast tracked, but excludes altogether the Muslim majority in the neighbouring states of Afghanistan, Bangladesh and Pakistan. The other established a nationwide citizenship verification process that purports to identify undocumented migrants but in fact acts to strip legitimate Muslim citizens of their rights, with an estimated two million already at risk of arbitrary detention and statelessness in India’s northeast state of Assam. On 28 April 2020, The United States Commission on International Religious Freedom (USCIRF) on 28 April 2020 concluded that India’s treatment of religious minorities was as bad as Pakistan, China and North Korea, stating that the new legislation “potentially exposes millions of Muslims to detention, deportation, and statelessness when the government completes its planned nationwide National Register of Citizens”.
The institutionalised deterioration in India’s treatment of its Muslim minority suggests that it might be an example of a country where the time is ripe for a challenge to the perception that it is a developed democracy capable of protecting asylum seekers.
A further question arises where an applicant is claiming asylum from an EU Member State. Under the Spanish Protocol, all Member States are classified as safe countries that respect human rights, meaning that asylum claims from those territories are presumptively unfounded. The only way around that presumption in the UK is through the exhaustive exceptions under the Immigration Rules, which apply either where the Member State has formally derogated from the European Convention of Human Rights, or where the Council has initiated or concluded a process determining that the Member State has persistently breached the EU’s founding values.
These exceptions are extremely narrow, and appear unable to respond adequately to the erosion of human rights and democratic norms. They would not, for example, capture Hungary, despite the increasing slide into authoritarianism under Viktor Orbán, whose Fidesz government have recently pushed through a battery of regressive laws under the cover of their COVID-19 response. These include the power to rule by decree for an indeterminate period; prison sentences for anybody considered to publish facts that are deemed true or distorted; an end to the legal recognition of trans people by redefining gender as “biological”; and an alteration to the structure of the judiciary, so that state institutions can appeal directly to the Constitutional Court, which contains a majority of judges who are widely considered to be politically loyal to the current regime. Until Romania declared its intention to derogate from the ECHR it too did not fall under these exceptions, despite being classified by Transparency International as a country with serious corruption problems.
The agreement across all EU Member States that internal asylum claims should ordinarily be refused is plainly conditioned by a desire to maintain the institution’s cohesiveness and diplomatic unity. However, as with non-EU cases involving countries that have traditionally been treated as ‘safe’ developed democracies, the legal difficulties can be overcome. We know of a number of cases where bold and innovative litigation has caused the Home Office to fully consider EU asylum claims, even when the narrow exceptions are not obviously met.
Certainly asylum remains the optimum form of protection for those who originate from developed democracies, because political considerations are of even greater salience in the extradition context. This is partly because of the UK’s statutory extradition regime, which presumes that requests from EU Member States are lawful and valid, and for most other countries permits the executive branch of government to input into the process. It is also because extradition proceedings are held in public, which makes it even more contentious for judges to declare that a country that holds itself up as democratic is in fact nothing of the sort.
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