|Special reception facilities and services|
In Finland, the share of university-trained social workers in reception centres increased, which made it possible to conduct better and more comprehensive assessment of the needs of vulnerable persons. Following legislative amendments in Hungary, the needs of applicants and beneficiaries of protection, who are accommodated in reception facilities and whose gender identity does not correspond to their registered sex, should be taken into consideration by authorities.
The government in France established special accommodation for vulnerable women, both applicants and recognised beneficiaries of international protection, and provides special accommodation for Yazidi women from Iraq following their arrival to France as part of a special humanitarian operation (for more information see the section on Resettlement and humanitarian admission). Concerning resettled people, five centres located in the Île-de-France, Dijon and Le Havre regions opened up places in order to accelerate the arrival of Syrians, pending their redirection towards permanent housing. A new collective reception system was established to meet the specific needs of people from Chad and Niger, including young people who have been tortured and involved in slavery in Libya and who present significant traumas. 15 reception centres have been set up in eight regions, providing enhanced support over four months for resettled people from Africa. They are then supported for a period of eight months after their entry into permanent accommodation. Compared to 11 in 2016, 21 operators are now involved in searching for accommodation, reception and enhanced social support for refugees resettled for 12 months. In order to ensure regional involvement, an Instruction of 4 June 2018 called upon the regions to establish regional action plans to help operators and regions meet their deadlines and quantitative objectives.
|Identification and referral|
In Belgium, the law of 21 November 2017 amending the Immigration Act and the Reception Act came into force in March 2018. With the new law, Article 36 of the Reception Act, which already provided a non-exhaustive list of who can be considered a vulnerable person, was adapted to include additional examples of vulnerability as appears in Directive 2013/33/EU. Additional profiles included persons with serious illnesses, persons with mental disorders and persons who have been victims of rape or have been subjected to other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation. In addition, the Study and Policy Unit of Fedasil developed a tool for first identification of applicants with vulnerability at the Arrival Centre. The tool consists of a computerised list of vulnerability and resilience indicators to be completed during the first interview of the applicant. Such early identification will allow for making proactively the necessary reception-related decisions to cater more effectively to the needs of individuals with vulnerability. By the end of 2018 the tool was in the testing phase. Moreover, in the context of the project FGM Global Approach, a guidance trajectory was developed to refer and support asylum seeking women and girls who are victims –or are in danger of becoming victims- of female genital mutilation. Another project, Gender-Based Violence & Asylum: an integrated approach, coordinated by the non-profit organisations GAMS Belgium and INTACT, together with the European Family Justice Centre Alliance (EFJCA) aims at developing a similar trajectory for victims of other forms of sexual and gender-based violence.
A questionnaire for the early identification of individuals who have been through traumatic experiences was introduced in Croatia. The findings of the questionnaire are used to inform decisions as to whether the applicant is to be provided with special reception and procedural rights.
In 2018, an agreement was signed between the Italian Central Direction of Civil Services for Immigration and Asylum and the European Commission for the implementation of the SAVE Project (Support Action for Vulnerability Emergence) which will aim at the identification of persons with vulnerability at the Hotspots. Moreover, an addition to the database of the Swedish Migration Agency rendered easier the identification of persons with special needs and the documentation of those needs.
|Strengthening/ improving protection|
In 2018, Fedasil subsidised 5 projects aimed at enhancing the capacity of the reception network regarding reception and care for persons with psychological/psychiatric conditions. In addition, the implementation of the Inter-federal Action Plan against discrimination and violence against LGBTI persons aimed at preventing and combating discrimination and violence against persons on the basis of their sexual orientation, gender identity, gender expression or intersex/ disorders of sex development conditions. In addition, a number of small-scale projects funded by Fedasil aimed at promoting increased civic engagement of vulnerable persons and participation in community life.
In Bulgaria, the Gender and Sexual Abuse Prevention and Response standard operating procedures were updated. Similarly, the Polish Border Guard Headquarters, in cooperation with non-governmental organisations developed a policy framework, with the title Intervention Procedures in the Case of Abusing Children in Guarded Centres, aimed at preventing and combating children abuse, including children accompanied by their parents. In Greece, according to Decision No 18984 of the Director of the Asylum Service, published in October 2018, applicants belonging to vulnerable groups are excluded from the implementation of the imposed geographical restriction.
|Processing of applications and procedural safeguards|
In Belgium, with the new computerised tool for the identification of vulnerabilities, the social and medical intake in the reception centres, the individual assessment of the needs by the social worker in the reception facility, and special procedural and reception needs will be identified as early as possible. While these needs are identified, Fedasil, upon permission of the applicant, will make recommendations regarding special procedural needs to the Immigration Office and the GCRS. The Asylum Unit of the Finnish Immigration Service updated its guidelines for dealing with cases of female genital mutilation. The most significant change is that the FGM theme is now by default examined in cases where it is known that FGM is traditionally exercised in the area or the population group that the minor applicant comes from. This is examined both for unaccompanied minors and for minors applying with their parents. In September 2018, the State Secretary for Justice and Security in the Netherlands, introduced a number of amendments to the Aliens Act Implementation Guidelines (Vc) 2000, including a clarification on how to deal with future expressions of sexual orientation of LGBTI persons in their countries of origin. The starting point for the assessment will be a ‘lower limit’ which will entail individuals’ actual expression of their own orientation and entering into relationships in a way that is not different from that of heterosexuals in that particular country of origin. Finally, in the UK a new policy guidance was published on processing asylum applications from those with additional support/care needs (under Section 67 of the Immigration Act 2016).646 The law of 10 September 2018 in France simplifies the procedures for asylum applications relating to minors exposed to the risk of female genital mutilation by providing a derogation from the general regime of medical confidentiality: the doctor who conducted the examination sends directly the medical certificate to OFPRA. This law also provides for the facilitation of conducting the personal interview that applicants with disabilities may be accompanied by the health professional who usually supports them or the representative of an association for the support of persons with disabilities, at the applicants’ request and with authorisation of the OFPRA Executive Director.647
|Increasing capacity, enhancing competence|
Trainings and seminars meant to increase competence in dealing with vulnerable persons were offered in a number of countries covering areas such as: medical and psychological aspects related to female genital mutilation (Belgium, Finland, Luxembourg); addressing specific needs of transgender persons in the context of asylum (Belgium); identification of victims of sexual violence and responses toward reducing the risk (Belgium, Bulgaria, Luxembourg, Poland); gender identity and sexual orientation (Finland, Luxembourg, the Netherlands); and identification of victims of human trafficking.
|Case law regarding vulnerable persons|
In its judgement648 of 12 April 2018 on Case C-550/16, Court of Justice of the European Union responded to a prejudicial question asked by a Dutch Court (rechtbank Den Haag) on family reunification of unaccompanied minor refugees. The question concern the moment at which a person should be under 18 years in order to qualify as a minor. The Court reasoned that an unaccompanied minor who attains the age of majority during the asylum procedure retains its right to family reunification as a minor. Therefore, it is the moment of submitting of an asylum application, which is relevant for the person to be regarded as a minor. The Court also added that an application for family reunification must be made within a reasonable time.
On 10 April 2018, the European Court of Human Rights ruled on the case of Bistieva and others v Poland (Application No 75157/14).649 The case concerned the detention of a Chechen family at the detention centre in Kętrzyn for almost 6 months. The Court held that the Polish authorities had not viewed the family’s administrative detention as a measure of last resort. According to the Court, the Polish authorities had not given sufficient consideration to the best interests of the children. The Court held that detention of the family constituted a violation of Article 8 of the European Convention on Human Rights.
On 28 February 2019, the European Court of Human Rights ruled on the case of H.A. and others v Greece (Application No 19951/16).650 The case concerned the detention of unaccompanied minors, apprehended at the borders of Greece and placed under ‘protective custody’ in police stations in northern Greece before being transferred to the Diavata centre. The Court ruled that the detention conditions, which applicants had been subjected to in police stations, represented degrading treatment and could have potentially had negative consequences for their physical and moral well-being. In addition, the Court ruled that the conditions at the Diavata centre, which had a safe zone for unaccompanied minors, had not exceeded the threshold of seriousness required to engage Article 3. Finally, the Court held that the applicants had not had an effective remedy.
In national jurisprudence, on 1 October 2018, the Belgian Council on Alien Law Litigation, ruling on Case No. 224.725/V ordered the suspension of the transfer of a Cameroonian national to Greece under the Dublin Regulation.651 The Council of State in Belgium ruled in June 2018652 on Case No 241.990 that the Guardianship Service exceeded their competences when they assigned a certain age to an UAM knowing that s/he declared another age him/herself. The aim of the age assessment is only to determine if the foreigner is a minor. The competence entrusted to the Guardianship Service does not extend to that of fixing a new, fictitious date of birth deduced from the medical examination carried out, so the assignment of a certain age to an UAM was considered unlawful.
On 27 September 2018, the Committee on the Rights of the Child, in Spain, issued an opinion on the case N.B.F. v Spain, offering guidance on age assessment. In particular, it stated that, in the absence of identity documents and in order to assess the child’s age, authorities should proceed to a comprehensive evaluation of the physical and psychological development of the child and such examination should be carried out by specialised professionals. The evaluation should take place swiftly, taking into account cultural and gender-related issues, by interviewing the child in a language s/he can understand. States should avoid basing age assessment on medical examinations such as bone and teeth examinations, as they are not precise, have a great margin of error, may have a traumatic effect on persons concerned and give rise to unnecessary procedures.653
In the UK, on 31 July 2018, the Court of Appeal ruled in Case No C4/2017/2802 and found the expedited procedure that was in place in Calais, operated by the British and French authorities, for unaccompanied minors that had family members, siblings or relatives in the UK to fall below the requirements of procedural fairness as a matter of common law.654
|UNHCR and Civil society perspectives|
UNHCR and civil society actors consistently reported on the situation of vulnerable persons in the area of asylum throughout 2018. Reporting on the general situation in regards to the protection of children, UNHCR called for an end in the detention of children in the context of immigration and for early identification of asylum-seeking unaccompanied minors and their integration into national child protection systems. It also underlined the importance of providing information to unaccompanied minors in an accessible way on their rights, available services, and asylum procedures. Similarly, of importance is the early identification of survivors of sexual and gender-based violence, including male and child survivors, ensuring refer to adequate multi-sectorial services655 Moreover, in its recommendations to the Austrian presidency of the Council of the EU, UNHCR raised concerns about certain age-assessment methodologies and pointed out that best-interest procedures are not carried out systematically.656 Among others, UNHCR recommended that the Presidency encourage EU Member States to actively participate in the European Network of Guardianship to facilitate the exchange of good practices and push for an end to the detention of minors in the context of immigration.
In a report on age assessment and fingerprinting of children in the context of asylum657, the Fundamental Rights Agency (FRA) mapped existing national legislative provisions on age requirements in the area of children’s protection and participation in asylum and migration procedures in the EU and offered a set of recommendations:
At a national level, in Finland, upon invitation by the Finnish Ministry of Interior, UNHCR expressed its views on the Draft Law Proposal of 5 October 2018 amending the Aliens Act. Upon review of the proposal, among other recommendations, UNHCR suggested that the inability of applicants with specific vulnerabilities, such as LGBTI and child asylum-seekers, as well as victims of trafficking, to assert their claim initially be recognised as a valid reason for examining a subsequent application.
In Greece, UNHCR noted that persons with vulnerability are often accommodated in mainstream reception facilities in view of the insufficient number of alternative accommodation places.658 Moreover, in October 2018, UNHCR published an interagency participatory assessment report, reflecting the concerns of 1 436 asylum seekers and refugees in Greece in regards to risks and challenges they face.659 Among others, through the focus groups held for the purposes of this project, it emerged that, often, basic standards for the prevention of sexual and gender-based violence (SGBV) are not respected, especially in reception centres, while participants in the focus groups noted a lack of awareness on response procedures and service providers. There is a lack of interpreters and female staff when reporting incidents, while in some locations, women reported that by citing past incidents they are exposed to new SGBV-related risks. In regards to the age assessment process of UAM, HumanRights360 reported that x-ray is used systematically, at times without any prior contact with the person in question660, while the Network for Children’s Rights and Solidarity Now Greece indicated that there is no common age assessment process on the islands and on the mainland.661 Several civil society organisations662 and UNHCR663 reported that children face several barriers in accessing education both on the Greek islands and on the mainland.664
In addition, in 2018, Amnesty International published a report informed by consultations with more than 100 women and girl migrants in Greece, presenting their experiences in camps on the islands and the mainland in conditions that they characterised as hazardous and unsafe.665 Refugee Rights (UK) conducted research on the situation of persons with vulnerability in the context of asylum in France and Greece and reported on poor and deteriorating health conditions, with vulnerable individuals at times feeling in a state of physical and psychological precarity due to harsh treatment by authorities or other migrants. Sexual abuse is also often reported.666 Moreover, pregnant women in Greece have reported to be unable to access vital healthcare both during and after pregnancy. 667
In France, Forum Refugies-Cosi reported that occasionally deficiencies have been identified in the conduct of vulnerability interviews during registration, which are at times too short or not conducted with the assistance of an interpreter.668 The organisation also points to the importance of adopting sensitive approaches when dealing with persons with vulnerability, not only when interviewing, but also when communicating a negative decision, so as to avoid re-traumatisation. Safe Passage noted delays in the appointment of legal guardians for unaccompanied minors, which may consequently cause delays in family reunification, when applicable. 669
Moreover, in June 2018, the Hungarian Helsinki Committee published a report, mapping conditions and services available in the Hungarian asylum system for individuals with gender-based vulnerabilities. 670 The findings indicated a lack of systematic and tailor-made assistance to vulnerable asylum seekers, in particular to women and LGBTI persons, as well as absence of a standardised protocol for the identification and effective addressing of vulnerability-based special needs during both the asylum and the integration process.
In December 2018, UNHCR published a report on initial reception of unaccompanied minors in Sweden, which came as a result of numerous meetings, focus groups, and consultations with key stakeholders in the area of protection for unaccompanied minors, including unaccompanied minors themselves.671 The key findings of the project indicated that the child protection system is not accessible to all children; a lack of coordination among stakeholders may hinder the systematic application of best interest assessment (BIA) and best interest determination (BID) procedures; children may not necessarily comprehend their own situation; and a lack of legal guardianship exacerbates this experience. Recommendations that came out of this project, among others, include dissociation of the child protection system from the asylum system; development of standard operating procedures to formalise the reception procedure and make it more predictable, and development of transnational mechanisms for proper BIA and BID procedures. In its comments on the inquiry Ett ordnat mottagande – gemensamt ansvar för snabb etablering eller återvändande 672 , after highlighting that the country has an overall well-functioning reception and asylum system for unaccompanied minors, UNHCR provided a set of recommendations toward the mainstreaming of best interest procedures throughout the reception process. These, among others, include the establishment of reception centres for the immediate arrival, in which all unaccompanied and separated children would be accommodated and supported by several actors, including an on-call guardian; and the implementation of the Barnahus model 673, currently used for survivors of or witnesses to sexual exploitation, abuse and violence and human trafficking.
In Belgium, Nansen Refugee reported that no effective identification procedure for vulnerability seems to be in place in detention, with the result being that a number of persons in a vulnerable situation may not be identified and, accordingly, not have their needs addressed. 674 In Poland, concerns were raised in regards to the detention of applicants for international protection and immigrants, who have been survivors of violence, despite the fact that this is prohibited by the Polish law. 675 In a similar concern, the Spanish Ombudsman indicated that applicants in detention centres or detainees at border posts, who may have a condition of vulnerability, do not enjoy any special services and are, therefore, treated the same as other applicants, who do not belong to vulnerable groups.676
In Spain, it was reported that the best interest of the child seems not to be considered and deficiencies have been identified for unaccompanied minors in accessing a guardian during the asylum process.677 On this point, the Spanish Commission on Refugee Aid indicated that a standardised process for the identification of vulnerabilities does exist, with the Red Cross being in charge of it. The proper conduct of this identification, however, is contingent on the number of arrivals, as in the event of increased inflow the quality and effectiveness of the process is compromised.678 The UNHCR's focal point for LGBTI affairs in Spain welcomed the positive developments and listed some of the remaining challenges in an interview.679 An emphasis was placed on the importance of engaging civil society organisations with a focus on LGBTI issues, into the asylum system, as they have an important role to play in terms of accompaniment.
Civil society, on several occasions, also reported overcrowding in facilities for unaccompanied minors and other vulnerable persons, or accommodation of vulnerable persons in mainstream reception facilities680 681, or accommodation of selected adult applicants in facilities that are normally reserved for minors.682 In addition, questionable, insensitive, or overly intrusive age medical assessment methods have been reported in a number of countries.683 684
Finally, in the input provided to the Annual Report, the European Council for Refugees and Exiles (ECRE) underlined a number of positive developments and remaining concerns vis-à-vis the reception of vulnerable persons, detention, identification of vulnerabilities, and legal representation of unaccompanied minors in a number of EU Member States. Challenges include delays in the registration and processing of applications by individuals with vulnerability; delays in and lack of careful assessment of vulnerability; lack of effective remedy to challenge the result of age assessment; overcrowding or inappropriate accommodation arrangements; reductions in financial support to vulnerable individuals; the practice of detaining individuals with vulnerability, which still persists in some countries; and delays in the appointment of legal representatives.685 Positive developments include further steps to provide tailor-made accommodation services, adapted to the individual needs of persons with vulnerability (Belgium); introduction of procedural safeguards when interviewing minors (Hungary); development of child protection systems against violence in accommodation facilities (Poland); introduction of rules and procedures for the immediate referral of unaccompanied minors from the police to child protection services (Bulgaria); systematisation of age assessment with the involvement of medical institutions (Slovenia).686
646 UK Home Office, Section 67 of the Immigration Act 2016 leave, Version 1.0.
647 FR LEG 01: Law of 10 September 2018.
648 CJEU, Case C-550/16. Also referenced in: ECRE, Input to the Annual Report 2018.
649 ECtHR, Bistieva and others vs Poland, ECLI:CE:ECHR:2018:0410JUD007515714. Also referenced in: ECRE, Input to the Annual Report 2018; Helsinki Foundation for Human Rights, Input to the EASO Annual Report 2018.
650 ECtHR, H.A. and others vs Greece, ECLI:CE:ECHR:2019:0228JUD001995116. Also referenced in: ECRE, Input to the Annual Report 2018; AIDA, Country Report Greece, 2018 Update.
652 BE CALL, Decision no. 210 384; BE Council of State, Decision n° 242.623. Also referenced in: AIDA, Country Report Spain, 2018 Update.
653 UN Committee on the Rights of the Child, Case CRC/C/79/D/11/2017. Also referenced in: AIDA, Country Report Spain, 2018 Update.
654 UK Courts of Appeal,  EWCA Civ 1812.
655 UNHCR, Desperate Journeys: January – December 2018; Refugees and Migrants Arriving in Europe and at Europe’s Borders.
656 UNHCR, UNHCR’s Recommendations to the Federal Republic of Austria for Its Presidency of the Council of the European Union (EU).
657 FRA, Age assessment and fingerprinting of children in asylum procedures – Minimum age requirements concerning children’s rights in the EU.
658 UNHCR, UNHCR urges Greece to accelerate emergency measures to address conditions on Samos and Lesvos.
659 UNHCR, Greece 2018 Country Report: Inter-Agency Participatory Assessment Report.
660 HumanRights360, Input to the EASO Annual Report 2018.
661 Network for Children’s Rights, Input to the EASO Annual Report 2018.
662 See for example: AIDA, Country Report Greece, 2018 Update, p. 136; Human Rights Watch, Debating Europe’s Future, Remember the Children.
663 UNHCR, Greece 2018 Country Report: Inter-Agency Participatory Assessment Report.
664 Human Rights Watch, Debating Europe’s Future, Remember the Children.
666 Refugee Rights Europe, Input to the EASO Annual Report 2018.
667 Refugee Rights Europe, Input to the EASO Annual Report 2018.
668 Forum Réfugiés-Cosi, Input to the EASO Annual Report 2018, contribution not disclosed.
669 Safe Passage International, Input to the EASO Annual Report 2018.
670 Hungarian Helsinki Committee, Safety-Net Torn Apart.
671 UNHCR, I want to feel Safe: Strengthening child protection in the initial reception of unaccompanied and separated children in Sweden.
672 UNHCR, UNHCR Comments on the Inquiry "Ett Ordnat Mottagande – Gemensamt Ansvar för Snabb Etablering eller Återvändande".
673 Child Protection Hub fpr south East Europe, What is Barnahus and how it works.
674 Nansen, Assistance and Legal Aid for Refugees, Input to the EASO Annual Report 2018.
675 Helsinki Foundation for Human Rights, Input to the EASO Annual Report 2018; Polish Human Rights Comissioner, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej (wyciąg) (in Polish).
676 Ombudsman of Spain, Input to the EASO Annual Report 2018.
677 Fundación Cepaim, Input to the EASO Annual Report 2018.
678 Spanish Commission on Refugee Aid / Comisión Española de Ayuda Al Refugiado CEAR, Input to the EASO Annual Report 2018.
679 UNHCR, What are the challenges for LGBTI asylum seekers in Spain? (in Spanish).
680 Fundación Cepaim, Input to the EASO Annual Report 2018.
681 AIDA, Country Report Bulgaria 2018 Update.
682 AIDA, Country Report Belgium, 2018 Update.
683 Save the Children (Sweden Office), Input to the EASO Annual Report 2018.
684 Asylex, Switzerland, Input to the EASO Annual Report 2018.
685 ECRE, Input to the Annual Report 2018.
686 ECRE, Input to the Annual Report 2018.