The European Convention on Human Rights often provides better protection to those needing protection from persecution than EU law, according to an expert on European and asylum law.
Nuala Mole, whose parents come from Ireland, is director of the London-based Advice on Individual Rights in Europe (AIRE) Centre, which gives advice and representation before the European courts and also provides advice and training to EU institutions and NGOs. She was in Dublin to speak to a group of immigration and asylum lawyers about the protection of vulnerable migrants.
“The sad truth is that as long as the world has states that can persecute and abuse their citizens with impunity we will have people who seek to flee to other states,” she said.
“And so long as states in the EU want to have its benefits they will have to accept that one of the benefits is the free movement of people, and they should see this as a benefit rather than an invasion.”
She acknowledged that asylum law presents states and their judiciaries with challenges. “One of the things which is quite problematic is that every migrant’s story is very personal and fact-specific,” she said. “It is very hard to formulate statements of legal principle which are sufficiently clear to create legal certainty and sufficiently flexible to benefit the people it is intended to help.
“It is very important there is vigilance on the part of states, judges and NGOs to ensure that the balance is correctly struck.”
She stressed that unmeritorious cases should not be taken on behalf of people who were not entitled to asylum, as this prejudiced the integrity of the system and was irresponsible.
But she said it was equally important that lawyers acting for asylum seekers were not discouraged by the hostile attitude of the authorities. She said various EU instruments introduced to provide consistent protection across all EU states had failed to operate effectively for a number of reasons.
The 2004 qualification directive, intended to define who needed international protection, excluded a whole range of people whom the European Court of Human Rights in Strasbourg had said were entitled to it.
The 2005 procedures directive, intended to ensure there were the same minimum standards in procedures across the EU, contained so many exceptions where there could be accelerated procedures, with very few safeguards, that it had little meaning.
The 2003 reception conditions directive, intended to ensure that no one was destitute while they sought asylum, made no provision for those who actually got asylum status.