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Lessons Learned from Limbo: A Right to Counsel for Asylum Seekers

As posted with the Harvard Humanitarian Intitiative:

Omar is 21 years old. He arrived in Greece in late February 2016. A series of shellings had destroyed his neighborhood in Damascus, forcing him to flee. After several months of uncertainty and misinformation, he was finally able to register with the Greek Asylum Service (“GAS”) in July, and was scheduled for an interview to determine his eligibility for protection in January 2017. His older sister and younger brother had made it safely to Finland, and Omar desperately wished to reunite with them. Omar is alone; living in the Derveni Camp northeast of Thessaloniki, stranded with about 1000 other refugees. Derveni is just one of the many overcrowded and dangerous camps scattered throughout Greece and the islands where approximately 62,000 refugees are left waiting, indefinitely.

Living in Limbo

It is January 1st 2017, the day before his interview, and Omar is trying to focus. He is suffering through a brutal winter in the camp where due to corruption and incompetency, the Greek Ministry failed to implement a winterization plan before freezing temperatures struck.

Although his sister and brother live in Finland, he does not qualify for “family reunification” with them because they are merely his siblings (not his parents or children), and he is not a minor. Instead, he will have to attempt “relocation” – the transfer of asylum seekers in need of international protection from one EU Member State to another – and he will list Finland as his first choice, although one’s preference is often overlooked. The Relocation Program concerns citizens of countries for which the rate of granting international protection is over 75%, based on the European average recognition rates. The nationalities eligible for relocation are constantly changing based on this calculation. At this time, the opportunity for relocation is only available to asylum seekers who arrived in Italy or Greece after March 24, 2015 from Syria, Yemen, Antigua and Barbuda, Bahrain, British overseas countries and territories, Eritrea, Grenada, Guatemala, and stateless persons previously residing in one of these countries. Since July 2016, Iraqis are no longer eligible because the positive recognition of asylum applications from citizens of Iraq at the EU level fell below the 75% threshold.

Omar waits all day for information from UNHCR (the United Nations High Commissioner for Refugees) regarding his transportation to the Asylum Office in Athens. Nothing. Finally, on the day of his interview, he is awoken at 1:00 a.m. and told that he’ll be picked up at 2:00 a.m. The journey to the Asylum Office takes about five hours. He arrives at 7:00 a.m. and waits to hear his name called. There is not enough seating, so he sits patiently on the floor. Although he has to go to the bathroom, he is afraid to leave the waiting room because he doesn’t want to miss his call to be interviewed. The clock ticks. By noon, he is told that there are not enough officers to conduct all the interviews that day (GAS employees have been going on strike intermittently since last year because the Greek Ministry has failed to pay their wages. The most recent strike took place on April 5th and 6th). Omar will continue to wait. He is relieved that he can at least go to the bathroom. He is starving by now. Another waiting refugee offers to share his banana provided by one of the many humanitarian organizations operating throughout Greece. Omar accepts.

At around 5:00 p.m., an Asylum Officer finally calls his name. He enters the small, sterile office and in a sleepy and hungry daze, he confirms his identity and origin; how and when he arrived in Greece; and requests “relocation,” emphasizing that his sister and brother are already in Finland.

It is now April, and he is still waiting for a decision. He constantly replays the interview in his head. Did he say everything he needed to? Will he be accepted by Finland? What will he do if he is not accepted? Although he has had work authorization in Greece since his date of registration, between Greece’s economic crisis and the rise of anti-immigrant neo-fascism, it is practically impossible for refugees to gain employment in Greece. Instead, they languish in overcrowded and dangerous camps under the constant and oppressive weight of a seemingly endless limbo.

Officially, the majority of EU countries have agreed to receive asylum seekers for relocation – including Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden. The proposal was originally implemented in May 2015 with an initial quota of 40,000 refugees to be relocated as a measure of solidarity in order to alleviate the burden of Member States, specifically Italy and Greece, experiencing high migratory pressure. The EU then called on Member States to relocate an additional 120,000 in September of the same year.

However, only certain EU countries are truly implementing the program by accepting refugees from Greece and Italy. As we approach the two-year mark since the plan was initiated, neither Austria, Hungary, or Poland have made any space available for refugees under the relocation scheme. To date, only 10% out of the promised 160,000 have actually been carried out.

(In)access to Counsel

I met Omar at a community center in Thessaloniki where Advocates Abroad, a small-NGO operating throughout Greece and Turkey, offers free legal counsel and representation to asylum seekers. We were one of the very few organizations on the ground providing such a service. When we met, Omar was practicing a rap performance that he and some of his friends had written and choreographed. His friends, like him, were waiting to hear the determination of their fates. They all experience extreme anxiety resulting from conflict-induced trauma and prolonged suffering in the camps, so it was a relief to see them using art as an outlet.

As an attorney practicing immigration law, and primarily asylum law, for the last seven years, I am no stranger to government inefficiencies, interference of access to counsel, interminable wait times, misinformation, and the dehumanization of vulnerable populations. I was, however, struck by the many similarities between the manner in which the European Union and the United States are (mis)managing our global refugee crises. It was also interesting to see the way both the EU and U.S. interpret and apply the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees, which outline states’ basic legal obligations to protect people fleeing from persecution. Although the Protocol does not provide a right to counsel, both regions have created such complex legal procedures that, in practice, it is highly difficult to navigate the asylum process and obtain international protection without legal aid.

At the same time as millions of refugees from mostly Syria, Iraq and Afghanistan are fleeing to Europe in search of safety from conflict, we are also seeing a surge of refugees fleeing gang violence in Central America showing up along the U.S.–Mexico border. Nicknamed “the zone of death,” El Salvador, Honduras and Guatemala are three of the deadliest countries in the world outside of war zones.

No matter where in the world a refugee lands, if s/he survives the harrowing journey to safety, whether on skiffs through the Aegean Sea, or on rafts through the Rio Grande, s/he is then faced with the next hurdle of a complex and inefficient bureaucracy in an often hostile nation where misinformation and corruption abounds. In this context, the need for expert legal assistance is paramount.

Both in Greece and the U.S., asylum seekers more often than not lack access to basic information, legal counsel and due process. In the U.S., an asylum seeker has the right to counsel at his/her own expense, but unlike a criminal defendant who has the right to counsel paid for by the government under 6th Amendment to the Constitution, this right does not attach to civil immigration proceedings. Similarly, in Greece, legal counsel is only guaranteed by the law at the appeals stage, which is often too late. Therefore, many asylum seekers either go unrepresented, or if they are lucky, rely on a volunteer attorney to provide pro bono representation.

Studies show that immigrants in the U.S. who are represented by lawyers in removal proceedings are twice as likely to win relief as those without them (and for those detained, they are 1000% more likely to succeed with an attorney!). In Greece, where the system is even more opaque, a lawyer, if accessible, can provide potentially life-saving counsel to refugees as they seek protection. In the face of the most critical interview of their lives, applicants like Omar often have little or no information about how interviews are conducted, what evidence to bring, or even the purpose of the interview. For example, they may not understand that an “admissibility interview” means they will not be asked about why they fled their country, but only about their time in Turkey (or another transit country). In many cases, an applicant will have a strong claim for asylum due to the persecution s/he suffered, but the application will be rejected because s/he did not understand the importance of speaking about her/his experiences. And even when lawyers are available, some people are informed of their interviews on such short notice that they do not have enough time to receive counsel and assistance. Others arrive for their scheduled interview, only to learn that it has been postponed indefinitely due to a lack of interpreters, unless they choose to proceed in a language that is not their own – a difficult and potentially perilous choice. Often, unrepresented asylum seekers agree to go forward without an interpreter out of fear that they will need to wait several more months in substandard conditions for their next chance. Unfortunately, Omar’s experience is common, where the agony of uncertain fate in an opaque system is palpable.

Going Forward-- A Right to Free Counsel

Policies like detention as a deterrent strategy, the arbitrary separation of families due to inapplicable definitions of “family” and “minor,” and the lack of uniformity in the application of refugee law throughout a region are common in both the U.S. and the EU. For example, asylum applicants from Central America have a 74% chance of being granted Asylum in San Francisco versus a 2% chance in Atlanta, Georgia. Similarly, nearly 90% of Syrians applying for asylum in the U.K. are granted protection, but only 64% of Syrians are approved for asylum protection in Italy. Worse, basic human rights violations are taking place on a regular basis in both regions. Women and children at the U.S.–Mexico border are often held in “hieleras” (“iceboxes”) during processing. Likewise, in Greece, some recent arrivals are being housed in cages. Refugees need advocates to guide them through convoluted, and often corrupt and inept systems to ensure that their rights are protected and that governments are abiding by the law.

As the Trump Administration in the U.S. litigates the ban on individuals from certain Muslim majority countries and the halt to refugees from entering the U.S.; as more asylum seekers are forced to present their cases while confined; and as SyriansLatin Americans, and others continue to be ravaged by violence in their home countries, it is incumbent upon us to remember one of the most basic concepts of the Refugee Protocol – the principle of nonrefoulement, “which is so fundamental that no reservations or derogations may be made to it.” The principle of nonrefoulement prohibits member-states from returning a refugee to a country where her/his life or freedom would be threatened on account of a protected ground. When it is so clear that access to counsel increases the likelihood of success on the merits of an asylum claim, such a safeguard becomes a matter of life and death for those fleeing persecution.

Although access to free counsel may sound like a heavy burden on states, such a provision would ultimately save costs by curbing the countless inefficiencies we are now witnessing, and safeguarding due process at every step. While it is important for advocates to continue with strategic litigation in the higher courts to prevent corruption and the implementation of misguided policies, states should provide refugees with legal assistance similar to the public defenders program from the moment they land on safe soil. Public counsel would provide refugees with essential information regarding their rights and obligations; they would ensure due process; they would promote efficiency and transparency; and they would zealously advocate on their clients’ behalf so that no refugee is returned to a place where s/he could be persecuted.

Asylum-seekers like Omar and the women and children detained at the southern border of the United States are not criminals or terrorists, and must not be held in real or virtual prisons. While the world sits and watches, our governments are wasting billions of dollars on dysfunctional processes that are not only making us less safe, but are also adding to the suffering of the most vulnerable. One step to ensure an effective policy that promotes due process for all asylum seekers would be to provide free access to counsel from the first instance. It is a small provision that would have a monumental impact on the efficiency and humanity of our current systems. We can, and must, take a step back and learn from each other’s mistakes.

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    Women and children at the U.S.–Mexico border are often held in “hieleras” (“iceboxes”) during processing

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