A Step Towards a Fair Asylum Policy in Europe

Share on facebook
Share on google
Share on twitter
Share on linkedin

My colleague, Spanish human rights lawyer Sara Palacios Arapiles and myself have just completed a lengthy Expert Report, commission by the Berlin-based Equal Rights Beyond Borders and its partner the International Refugee Assistance Project. A full version of the expert report, titled “Access to Official Documents by Eritrean Refugees in the Context of Family Reunification Procedures: Legal Framework, Practical Realities and Obstacles,” is available at https://equal-rights.org/en/news/report-documents-eritrea/. The following are brief personal remarks, over and above what has been said in the expert report, hoping that it will help in alleviating the predicament of Eritrean refugees in Europe.

Sara and myself were formally instructed to provide nuanced analysis related t critical legal and factual questions about inter-connected problems encountered by Eritrean refugees in certain European countries (mainly in Germany) with regard to access to official documentation from certain Eritrean embassies located in various countries. In an effort to explore the “possibilities for Eritrean refugees to obtain official documentation from Eritrean authorities,” we had to discuss a broad range of issues related to the legal framework, political realities and obstacles involved in the issuance of official Eritrean documents pertaining in particular to proof of identity and civil status, or so-called records of vital events (birth certificate, marriage certificate, divorce certificate, death certificate, national ID card, passport and other official documents).

Our expert opinion shows that the most common documents Eritrean refugees continuously try to obtain from or via the involvement of Eritrean embassies are: identity cards, passports, birth certificates and marriage certificates. One particular problem we addressed in our report is related to the plight of unaccompanied Eritrean minors or underage refugees, who bear the brunt of increasingly hostile migration and integration policies more than any other category of forced migrants.

The expert report is mainly concerned about one particularly odious practice of Eritrean embassies, related to a very controversial practice of the embassies that involves coercive payment of a so-called “diaspora income tax of 2%” and signature of a self-incriminating statement, widely known as the “regret form.” As shown in our expert report, it is an established fact the provision of any consular service to Eritreans abroad, refugees and non-refugees alike, is subject to the fulfilment of the two preconditions cited above, which have far-fetching implications on the fundamental rights of refugees and their loved ones back in Eritrea. What makes this practice more problematic is that, as shown in the expert report, European Governments are now explicitly requiring (or even compelling) Eritreans to fulfil the above extremely onerous “obligations” in order to successfully process family reunification procedures. The expert report shows this, among other things, by sampling an extract of an official letter that was obtained most recently and related to a formal application for family reunification lodged at the German in Ethiopia. In the relevant part of the expert report (p. 46), this problem is discussed as follows:

“The information comes from a person who has a pending application for family reunification in the German Embassy in Ethiopia. In relation to the procedure of obtaining official documents from Eritrea, the applicant has been informed by the Family Assistance Program of the International Organization for Migration (IOM) that it is a standard procedure for Eritrean refugees in Germany to pay a 2% diaspora income tax and sign the regret form in order to the obtain official documents from Eritrea. According to our source, IOM is currently actively involved in assisting several German Embassies in East Africa in processes related to the family reunification applications submitted by Eritrean refugees. This in turn reveals that the German Embassies in the region, including the one in Ethiopia, are aware of the fact that in order to obtain official documents (or authenticate such documents) Eritrean refugees have to pay a 2% diaspora income tax and sign the regret form in the Eritrean Embassy in Germany. The preconditions requested by the Eritrean Embassy, as noted repeatedly, are not only cumbersome but also illicit by their very nature.”

On pages 60-61, the expert report concludes that: “Eritrea does not have a harmonious official documentation system, and in the local context, the use of records of vital events is not a very common practice” – as opposed to the general assumption by some European countries. The report adds: “The process of obtaining documents from or via the involvement of Eritrean diplomatic or consular authorities is replete with abusive practices, as it requires Eritreans to pay a so-called diaspora income tax and to sign a self-incriminatory regret form.”

Asking Eritrean refugees to report to Eritrean consular offices, in order to obtain official documents, is therefore a violation in contradiction with salient obligations emanating from International Human Rights Law, International Refugee Law and European Union Law. This is so because “approaching Eritrean embassies usually poses unnecessary risks and puts Eritrean refugees and their relatives in Eritrea at risk of human rights violations.”

The report highlighted that unaccompanied minors face particular obstacles when it comes to accessing official documents from Eritrean embassies, thus requiring special protection of their legitimate interests. These observations are in line with the relevant jurisprudence of the broad body of laws cited above. Sara and I finally conclude that documentation requirements in family reunification procedures shall not put refugees at further risk from their countries of origin (through their diplomatic missions) or imperil their family members back home. International law requires this.

Our expert report was based on extensive desktop research and thirty-nine semi-structured interviews. Some part of the desktop research continued almost up to the eleventh hour of the publication of the report. The semi-structured interviews were conducted between October 2020 and December 202 with a range of carefully selected sources: refugees, asylum seekers; former Eritrean legal professionals, including judges, prosecutors, registrars, law graduates, diplomats; researchers, staff members and representatives of independent organisations working for the protection of refugees. Our interviews live in Canada, Egypt, Ethiopia, Germany, Kenya, the Netherlands, Norway, Sudan, Sweden, Switzerland, the UK, the USA, and Uganda.

The expert report is intended for usage in forthcoming court proceedings related to Eritrean asylum seekers and refugees in Germany and some other European jurisdictions, and we very much hope that it helps in alleviating the unnecessary suffering endured by some of these helpless refugees. Last but not least, I profusely thank all those who have made various contributions in the finalisation of this report.