A landmark ruling by the European Court of Human Rights has profound implications for states intent on dragging their feet over decisions on asylum claims. A judgment in relation to a Turkish man who spent 12 years in Greece awaiting a ruling on his refugee status underlines that states are under an obligation to decide on asylum claims within a reasonable time frame.
It arguably preempts any attempts by E.U. members to justify delays in the asylum process on account of the recent spike in the number of asylum claims. Indeed, throughout the past two decades, European States such as Greece have taken cover behind the “backlog” of accumulating asylum cases as a justification for keeping asylum applications pending for years.
The increase in large-scale arrivals in Europe in the wake of the refugee crisis of 2015 has led to a surge in the number of asylum applications lodged in the member states of the European Union. This, of course, presents European states with a formidable challenge, as they are called upon to process such applications in a manner that both meets the standards of good administration and respects the fundamental rights of asylum applicants. There is a fine balance to be struck in this respect.
Naturally, the processing of asylum applications within extremely tight deadlines on the basis of E.U. law has generated concern. In its recent report, “The Length of Asylum Procedures in Europe,” the European Council for Refugees and Exiles (ECRE) has underlined that “extremely truncated procedures may violate the individual’s right of access to asylum and to an effective remedy.”
Still, processing asylum applications in haste is only one side of the coin. States faced with a sharp increase in the number of asylum applications may not only fail to meet self-imposed strict deadlines, but on the contrary, unduly extend the duration of asylum procedures. The result is equally problematic, as applicants may find themselves in a state of legal limbo. They are effectively stranded in the country of asylum pending a decision, enjoying a limited number of rights compared to those recognized as refugees.
The European Court of Human Rights was called upon to decide on the matter in a recent judgment. In B.A.C. c. Grèce, the court concluded that Greece had violated the right to respect for the private life of a Turkish asylum applicant, as it failed to decide on his asylum application within a reasonable time frame. Furthermore, it found that due to such a failure, the applicant faced the risk of being returned to his country of origin, where he had in the past been tortured.
The facts of the case, while extraordinary, point to the potential plight an asylum applicant may face. The applicant, a Turkish national, had been arrested by the Turkish authorities, and after being charged with an offense against the constitutional order on account of his pro-communist and pro-Kurdish convictions, was placed in solitary confinement. Following a 171-day-long hunger strike, he was set free. On January 15, 2002, having entered Greece, he applied for asylum, yet the application was dismissed. The applicant brought an appeal against this decision. According to the law in force at the time, decisions upon appeal were made by the Minister for Public Order within a period of 90 days. In fact, Greece failed to issue a decision for more than a decade.
The Turkish national spent this period in Greece in a state of precariousness associated with his status as an asylum applicant, denied – in accordance with domestic law at the time – the right to vocational education, to obtain a driver’s license, or to open a bank account. He was forced to work in construction clandestinely due to the severe restrictions placed upon the right of asylum seekers to access the labor market, and – most importantly – he did not have a right to family reunification. Despite efforts on behalf of his wife who joined him for a period of time in Greece, the couple eventually divorced. In the meantime, the Turkish authorities sought to extradite the applicant to Turkey. Following a legal battle before the Greek courts, the extradition request was defeated.
The court underlined that states are under a series of positive obligations vis-à-vis non-nationals under the European Convention on Human Rights, including an obligation to examine asylum applications promptly so as to prevent asylum applicants being subjected to situations of precariousness and legal uncertainty. It then went on to find that the failure of Greek authorities to decide on the asylum application within a reasonable time period resulted in a violation of his right to respect for his private life, and his right to an effective remedy. Besides, the court noted that due to his precarious status, and the fact that his asylum application was still pending, the applicant faced the risk of being unexpectedly returned to Turkey, despite it being established that, during his detention there, he had been submitted to torture. Greece was accordingly found in violation of the prohibition of torture, degrading and inhuman treatment.
The B.A.C. judgment shines a new light on the question of asylum applicants’ human rights when present in European states of asylum. It is not solely truncated deadlines, but also delayed procedures, that may pose danger to the vulnerable group of persons claiming to be fleeing persecution. European states will have to think twice before refraining from issuing decisions on asylum applications within reasonable time frames. Indeed, states may not keep asylum applicants in a state of legal uncertainty, while at the same time creating impediments to their right to form social ties within their territory.
One should not lose sight of the fact that asylum applicants are lawfully present in Europe, and, what is more, they are presumed refugees pending decision. They may not be hastily returned or kept in limbo, when this would contravene their rights under the European Convention on Human Rights.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.