SYRIAN REFUGEE CRISIS; Protection for Syrians seeking asylum in the UK?

On 16 September 2014 the UK Government set out in a Factsheet: The UK ‘s Humanitarian Aid Response to the Syria Crisis and Region how it is responding to the humanitarian crisis in Syria and other neighboring countries, “As conflict continues in Syria, millions of people are in desperate need of asstiance. The UK has committed £600 million to provide humanitarian support including food, medical care and relief items for over a million people in Syria and the region”.

The question however arises as to whether largely offering financial aid is enough to deal with the crisis of Syrian refugees fleeing to Europe including the UK. Further, regard should be had as to how and whether Syrians fleeing violence in Syria are provided with refugee protection by the UK government.

Read my views on the UK’s and Europe’s response on the humanitarian situation in Syria.

EUROPE’S RESPONSE

It may be relevant to initially have regard to what may generally be considered to be Europe’s response to the Syrian refugee crisis. On 22 July 2014 the Guardian reported in a news article, Europe Must Give Syrian Refugees A Home:

“……When histories are written about the humanitarian cost of Syria’s civil war, Europe’s response to the crisis of a generation might be summed up in a single phrase: never was so little done by so many for so few….. In response to the largest forced displacement crisis in the world, taking place only a short boat ride away, Europeans have provided refuge to a grand total of 124,000 Syrians- less than 4% of all Syrian asylum seekers.

Lebanon, by contrast, a country with a population of around 4.4 million, is host to 1.1million Syrians in exile….. In other words, person for person, the wealthy EU is offering refuge to 1,000 times fewer Syrians than cash-strapped Lebanon, a country already struggling with severe internal difficulties……More than half of all new Syrian asylum applications in Europe are absorbed by only two countries: Sweden and Germany. Both stand out by granting protection to Syrians seeking asylum, with Sweden additionally offering permanent residency. They have exemplary humanitarian admission and resettlement programmes; Germany also leads the way in private sponsorship of refugees.

The next five countries account for about a quarter. That means many other EU states are doing less than their fair share to absorb Syria’s fleeing millions; they should be doing far more to help….

A news article by Reuters on 4 September 2014 reports on Greece’s concerns that Greece is slipping into a “danger zone” without the funds or resources to handle a fast-growing wave of refugees trying to enter the European Union from war-torn countries like Syria and Iraq. The Greek government is reported to be facing a great challenge from a pool of more than two million migrants- half of whom are Syrian and other migrants now in neighboring Turkey who could attempt to enter the EU via Greece. http://www.reuters.com/article/2014/09/04/us-greece-immigration idUSKBN0GZ27I20140904

THE UK GOVERNMENT’S POSITION

The UK Government’s policy in relation to the Syrian crisis appears to show a large commitment to offering financial humanitarian aid as opposed to offering protection.

A House of Commons Parliamentary Brief of 30 July 2014, titled In Brief: Syrian refugees and the UK clarifies;

“3. UK Government policy

Until 29 January 2014, the UK Government’s response to the crisis in Syria was to commit large amounts of humanitarian aid to the relief effort (around £600 million), but not to offer resettlement to Syrian refugees either as part of, or in addition to, its annual resettlement quota. The UK declined to participate in the UNHCR resettlement programme for Syria, arguing that it would be tokenistic given the huge numbers of refugees and that the best approach to the crisis was the provision of humanitarian aid.

On 29 January 2014, following pressure from across the House( and prior to an opposition day debate and vote on the issue), the Home Secretary announced that the government would establish a programme to offer resettlement in the UK to some of the most vulnerable Syrian refugees. The Home Secretary described the “vulnerable person relocation(VPR) scheme” as separate to- but “entirely consistent” with- the UNHCR’s existing resettlement programme. She said that it would prioritize cases involving victims of sexual violence, the elderly, victims of torture, and the disabled. Those resettled under the UK’ s scheme are granted five years Humanitarian Protection and have access to public funds and the labor market. The Government said that it expected several hundred refugees to arrive over the next three years, but that there would be no quota. Press reports suggested that the scheme would cater for around 500 refugees. The Shadow Home Secretary welcomed the Government’s change of policy and the scheme’s focus on victims of sexual violence, but questioned the decision to establish a parallel scheme instead of participating in the UNHCR’s scheme.

It also remains possible for Syrians in the UK to claim asylum. Since the crisis began in 2011, the UK has received over 4,000 asylum claims from Syrian nationals and granted leave to remain to over 2,700 Syrian nationals and dependants. Furthermore, in October 2012 the Home Office introduced a temporary concession allowing Syrians in the UK to apply for an extension to their visa or switch into a different visa category. This concession has been extended until 28 February 2015.

4. The Vulnerable Persons Relocation Scheme

The scheme is intended to focus on the most vulnerable cases where evacuation from the region is the only option……

The Government has resisted releasing many details about the resettled cases, on the grounds that this would undermine their privacy and recovery. However, it has been confirmed that the first group of resettled refuges arrived in the UK on 25 March 2014. Press reports suggested that this group of consisted of around 10 to 20 people. As at 24 June, 50 people had been resettled in the UK under the scheme. The Government intends that 2-3 families will be relocated per month. Quarterly updates on the numbers resettled under the scheme are due to be published from August 2014 onwards…..”

On 19 June 2014, the Guardian reported in a news article, UK Has Only Let In 24 Syrian Refugees Under Relocation Scheme For Conflict Victims that Britain has allowed just 24 Syrians to move to the UK under the special relocation programme for vulnerable refugees set up by David Cameron in the face of millions of desperate people fleeing the civil war. The article clarifies that new Syrian asylum applications since the conflict began were: Sweden 24,667; Germany 23,591; Bulgaria 6,020; Netherlands 4,193 and the UK 3,974. The article further states, “……Last week, Germany agreed to double the number of Syrian refugees accepted under its humanitarian admission programme to 20,000. Austria recently agreed to triple the number of refugees it would accept to 1,500….. The Refugee Council said it was disappointed with the figures. “The UK has so far yet to offer enough resettlement places to fill a bus when we should be offering entire caseloads of seats to safety”, said its Chief Executive, Maurice Wren”.

CONSIDERATION OF CLAIMS BY THE UK GOVERNMENT

The Scheme is to be differentiated from the usual UK asylum process in relation to asylum applications by Syrians and other nationalities who are already here in a different capacity- whether lawfully or unlawfully.

The current Home Office policy in the consideration of Syrian asylum claims is set out in the Operation Guidance Note; Syria February 2014;

“3.21 Returning failed asylum seekers

3.21.1 Some applicants will apply for asylum or make a human rights claim based on ill-treatment amounting to persecution at the hands of the state authorities due to them returning to Syria, having claimed asylum in another country.

3.21.2 Treatment: The law provides for the prosecution of any person who attempts to seek refuge in another country to escape a penalty in Syria. Persons who have unsuccessfully sought asylum in other countries and who have past connections with the Muslim Brotherhood have been prosecuted upon their return to the country.

The government has routinely arrested dissidents and also former citizens with no known political affiliation who attempted return to the country after years or even decades in exile. A joint fact-finding mission by the Danish Immigration Service and the Austrian Red Cross interviewed a senior HRW researcher, who stated that “returned failed asylum seekers are most likely detained upon return to Syria, although not necessarily for a long period of time. It was added that there is a high likelihood of illtreatment during the initial detention which can amount to torture if the person is expected to know something of interest to the security service”. A Western diplomatic source also interviewed for the fact-finding mission report stated that “failed asylum seekers would be detained upon return to Syria simply because of the fact that he or she has been abroad. The person would be subjected to interrogation by the security services. However, it is unclear how the person would be treated during this detention that in some cases could last for weeks or even longer”.

3.21.3 A western diplomatic source interviewed for the fact-finding mission report stated that the computer system employed at border controls to screen persons upon entry into Syria works well. Border guards check whether the name of someone who enters Syria can be found on one of the wanted persons lists of the security services. These lists contain information from the various security services‟ offices from all parts of the country, including from Qamishli. Immigration authorities are thus able to see whether a returnee has a file with the security services, and can subsequently inquire about the file‟s details with the authorities from these cities or municipalities. It was added that there is no single list of wanted persons but that every security agency maintains its own list. Persons with a security file are transferred from the detention facilities of the immigration services to the security agency‟s detention centre.

3.21.4 The Kurdish Human Rights Project in its submission in June 2010 to the UN High Commissioner for Human Rights reported that “…some Syrian nationals who have been returned to the country after living abroad have been arbitrarily detained on arrival or shortly after their return. To seek asylum abroad is perceived as a manifestation of opposition to the Syrian government, so returned asylum seekers face the likelihood of arrest”.

3.21.5 Since the outbreak of violent civil disorder, the Syrian authorities have become progressively more brutal in their treatment of individuals perceived to be opposed to the Assad regime. Following the lifting of the Emergency Law in April 2011, security forces continued their previous practices and have carried out larger numbers of arbitrary arrests. As levels of violent repression of political protest have intensified, anyone perceived to be critical of, or hostile to, the Syrian authorities is likely to face arbitrary arrest and extreme ill-treatment in detention.

3.21.6 Conclusion: The Syrian authorities have become brutally repressive in recent years, particularly since March 2011. Reports indicate that most returnees, including failed asylum seekers, are likely to be at risk of ill-treatment on return to Syria. The available evidence suggests that returnees of Kurdish ethnicity and those whose opposition to the government is known or suspected by the security services would be at particular risk.

3.21.7 Following the principle established in RT (Zimbabwe) claimants cannot be expected to lie about their political opinion (or lack thereof). Given the growing civil unrest and increasingly volatile conditions, it is likely that returnees would be viewed with suspicion by the authorities, and credible reports of the surveillance of Syrian activists and demonstrators in the UK are likely to increase this risk.

3.21.8 The recent country guidance case of KB (Failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426 (IAC) (21 December 2012) found that it is likely that a failed asylum seeker or forced returnee would, in general, face a real risk of arrest and detention on return, and of serious mistreatment during that detention as a result of imputed political opinion. The Upper Tribunal accepted that the position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would nevertheless be perceived on return to Syria as a supporter of the Assad regime.

3.21.9 Careful consideration should be given to the particular circumstances of the individual, including the reasons for having left Syria, any previous activities within the military or security services, any political profile, or any evidence of having taken part in demonstrations or other expressions of opposition to the regime, including any such activity in the UK. The intention and the ability of the Syrian authorities to monitor all expressions of opposition should not be underestimated. Even where there has been no previous expression of anti-regime views, a grant of asylum will be appropriate if there is a real risk of the individual being perceived as having opposition sympathies.

3.21.10 Caseworkers should note that members of the Syrian armed forces have been responsible for serious human rights abuses of civilians. If it is accepted that an applicant was an active operational member of the security forces, caseworkers should consider whether one of the Exclusion clauses may be applicable. In addition, some members of the armed opposition forces have been guilty of serious human rights abuses of captured Syrian soldiers. Caseworkers should seek advice from a Senior Caseworker if they consider that an applicant in this category may have been responsible for crimes against humanity”.

On the basis of the above it appears therefore it may just be enough for the grant of refugee status in the UK for an asylum claimant to state, ‘ I am Syrian and my life will be at risk should I be returned to Syria”.

In practice however, the UK government has been targeting and subjecting Syrians to language analysis testing with the result that some genuine Syrian asylum claimants are as a result, mostly because of such testing, not being accepted as such by the Home Office.

The recently updated Home Office Language Analysis Policy clarifies;

“1.2 Background

LA involves language experts talking and listening to individuals, and then coming to a reasoned view as to their likely linguistic origin.

LA is used by the Home Office( HO) to assist in identifying an individual’s true place of origin where it is in doubt, and to deter fraudulent claims based on false claims of origin for actual or perceived benefit……

The Home Office’s LA capability is provided by private suppliers. Until August 2014, the exclusive supplier was “Sprakab”. Commercial changes in early/mid 2014 introduced a second supplier, Verified AB”. From August 2014, the Home Office will place reliance on the services of both companies. Verified AB will be the main supplier, with Sprakab providing language analysis services in a secondary capacity( use of this secondary capacity is determined by the LA Team).

2.3 Language Analysis Targeted By Nationality/National Origin

Language analysis testing may be targeted on the basis of an individual’s claimed place of origin ONLY in cases where an Equality Act exemption has been authorized by the Minister.

A referral to test on this basis does not require particular doubts as to the applicant’s claimed place of origin to be articulated; it simply needs there to be a lack of acceptable evidence regarding the applicant’s claimed place of origin(e.g.the applicant is undocumentated).

An Equality Act exemption came into effect on 20 February 2013, allowing the targeted testing of applicants claiming nationality of/national origin in:

Syria;

Kuwait;

Palestine.”

Refusal to participate by an asylum applicant caught by targeted testing seems no option as such behavior will be seen as action likely to conceal information or obstruct the handling or resolution of the asylum claim.

The Home Office Language Analysis Policy states that the testing will have several possible outcomes and results are relevant to linguistic background;

“7.2 Full Report Outcomes

Each report will express its analysis and results according to at least one and possibly two hypotheses. Every report will address the first hypothesis, which is that the speaker has the linguistic background as claimed. If linguistic background is not as claimed (see negative outcomes below), a second hypothesis proposing an alternative background will be tested.

There are 7 possible outcomes to each hypothesis in a Verified report (Sprakab reports differ):

+3 The language analysis shows with certainty that the results obtained are clearly consistent with the linguistic community as stated in the hypothesis.

+2 The language analysis clearly suggests that the results obtained most likely are consistent with the linguistic community as stated in the hypothesis.

+1 The language analysis somewhat suggests that the results obtained more likely than not are consistent with the linguistic community as stated in the hypothesis.

0 The language analysis can neither confirm nor refute the hypothesis, as the results obtained do not constitute a basis on which to assess the linguistic community as stated in the hypothesis.

-1 The language analysis somewhat suggests that the results obtained more likely than not are inconsistent with the linguistic community as stated in the hypothesis.

-2 The language analysis clearly suggests that the results obtained most likely are inconsistent with the linguistic community as stated in the hypothesis.

-3 The language analysis shows with certainty that the results obtained are clearly inconsistent with the linguistic community as stated in the hypothesis.”

It is therefore not enough upon claiming asylum to merely expect to be believed to be Syrian and be granted protection. Vulnerable asylum seekers from Syria are therefore not only enduring arduous journeys to reach what they consider to be a place of safety in the UK but are being subjected not only to a screening and substantive asylum interview but unlike asylum claimants from other countries, also being subjected to language analysis testing in order to prove that they are indeed entitled to protection.

In practice the Language Reports (as the outcomes largely seem to be adverse to the claimants) are substantially relied upon by the Home Office at the decision making stage to refuse the asylum claim on the basis that the claimant is not from the stated country of origin. The same argument is carried forward at appeal stage before the immigration and asylum Tribunal with the result that the Tribunal places considerable weight upon the Report and dismisses the asylum claim on the basis that the claimant has not proved their nationality. Most Syrians claiming asylum have therefore found themselves sometimes unfairly disbelieved by reference to these reports with the result they are unable to receive the protection that they are entitled to in the UK.

LANGUAGE ANALYSIS: RELEVANT CASELAW

Until recently, Guidance caselaw governing the area of language analysis was such that where the asylum appeal came up before the Tribunal, the Tribunal substantially appeared to be almost routinely giving considerable weight to the Language Analysis Reports which were until August 2014 prepared only by Sprakab. The relevant caselaw appeared to leave the Tribunal with no other option but to appear in effect to give precedence to Sprakab conclusions.

In RB (Linguistic evidence – Sprakab) Somalia [2010] UKUT 329 (IAC) the Upper Tribunal reviewed detailed evidence on Sprakab’s operations and methodology, including oral evidence from their Manager. In light of their considerations, the Tribunal endorsed the use of the Sprakab reports subject to certain safeguards. The Upper Tribunal’s guidance is summarized within the Headnote to RB;

“1. Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal with the particular factors identified in the report.

2.Recordings of all material derived from the appellant and used as material for linguistic analysis should be made available to all parties if the analysis is to be relied on in the Tribunal.

3. Sprakab linguists and analysts are not to be required to give their names (as distinct from their identifiers, experience and qualifications) unless there is a good reason particular to the individual case”.

The Tribunal’s approach was generally supported by the Court of Appeal in RB(Somalia) v Secretary of State for the Home Department 2012 EWCA Civ 277

The Supreme Court gave judgment on 21 May 2014 in Secretary of State for the Home Department v MN and KY 2014 UKSC 30. The issues among others were the admissability of Sprakab reports. The Supreme Court found that, subject to appropriate safeguards, the Upper Tribunal in RB was entitled to find no objection in principle to the admission of the Sprakab reports.

Although the Supreme Court found that the Guidance in the Upper Tribunal was helpful and appropriate, the Court was concerned that the Guidance appeared “unduly prescriptive and potentially misleading”.

In particular the Supreme Court observed;

46. The first is as to the weight to be given to such evidence in future cases. Tribunals are advised that, where there is a “clear, detailed and reasoned linguistic analysis” leading to “an opinion expressed in terms of certainty or near certainty”, then “little more” is required to support a conclusion. This seems to me to underplay the importance in any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion (not necessarily limited by the scope of any criticisms or evidence that may be presented by the appellant). The language of the guidance gives rise to a real risk of being interpreted as prejudging issues which are for the individual tribunal to determine. As will be seen, the present appeals are illustrative of that risk.

47. Also problematic to my mind is the special weight given to reports expressed “in terms of certainty or near certainty”. As has been seen, it is a feature of the Sprakab reports in the present case that the conclusions are so expressed, both positively and negatively. In RB itself, two of the Sprakab reports were expressed in similar terms but not it seems the final most detailed report (paras 13-15). The reasons for the discrepancy were not further discussed. It is unfortunate that, through circumstances beyond their control, the Upper Tribunal did not have the benefit of oral evidence from experts critical of Sprakab’s methods. That was another reason for caution.

48. In any event, as one would expect, the Upper Tribunal’s subsequent discussion and conclusion did not turn on the degree of “certainty or near-certainty” expressed by Sprakab, but on an evaluation of all the evidence of which theirs was one part. That would be the duty of any future tribunal, regardless of the “certainty” of Sprakab’s own views. What matters is not the confidence with which they are expressed, but the strength of the reasoning and expertise used to support them.

49. The other concern is similar, relating to the guidance on anonymity (para 174). The Upper Tribunal were entitled on the evidence they had heard to indicate, as they did, that were no objections in principle to the form of the Sprakab reports, to the methodology used to produce them, or in general to the contributors not being identified by name in the reports. However, they went further, describing their reasons on this aspect as of “general applicability” and requiring “some very good reason” for a departure (para 174).

50. Again that seems with respect unduly prescriptive on an issue which must depend on the circumstances of each case. As already noted, in RB itself, counsel for the appellant had made “no reasoned objection… in the circumstances of [that] case” (para 25). This no doubt was because he was satisfied that the procedure adopted (including cross-examination) and the information available to him enabled him properly to present his client’s case. That concession could not be regarded as transferable to other cases. It was important in any guidance to emphasise that it would remain the duty of the tribunal in any future case to determine what justice requires, in the light of the evidence and submissions made to them. That could not be predetermined by general guidance given by the Upper Tribunal”.

The Supreme Court recommended updating the guidance in RB since it was more than 4years old. The conclusion in the appeals in question was stated to provide an opportunity to review the guidance in light of the Judgment and of experiences in the cases and any other relevant evidence both for and against Sprakab’s methodology.

Sprakab no longer appears to be the lead company and it remains to be seen what the outcome will be within the relevant Guidance to be provided by the Upper Tribunal in relation the weight to be placed upon Language Analysis reports. In the meantime, in light of the criticisms leveled by the Supreme Court in relation to the Guidance in RB, it is hoped that the Home Office and the Tribunal upon making decisions in relation to Syrian nationals subject to language analysis testing will look more critically into the reasoning and expertise within the report as opposed to mainly where the report originates from.

POSSIBLE IMPACT OF LANGUAGE ANALYSIS TESTING UPON CLAIMS

Prior to the Supreme Court observations, as a result of the prescriptive approach followed by the Home Office and Tribunal over the past 4years by reference to the guidance in RB, it is considerably likely that quite a few Syrian claimants may have been unfairly excluded from refugee protection in the UK where their asylum claims were refused or dismissed on the basis of nationality. However even where further Guidance is forthcoming from the Upper Tribunal, it is difficult to see why if not to manage the number of claimants being granted asylum, Syrians should be subjected to such language testing merely to prove they are entitled to protection.

A word of warning in relation to language analysis testing is provided as below by an international group of Linguists:

Guidelines for the Use of Language Analysis in Relation to Questions of National Origin in Refugee Cases – June 2004 www.equinoxpub.com/journals/index.php/IJSLL/article/viewFile/…/1386

“(4) LINGUIST’S DEGREE OF CERTAINTY

Linguists should have the right and responsibility to qualify the certainty of their assessments, even about the country of socialization. It should be noted that it is rarely possible to be 100% certain of conclusions based on linguistic evidence alone (as opposed to fingerprint or DNA evidence), so linguistic evidence should always be used in conjunction with other (non-linguistic) evidence. Further, linguists should not be asked to, and should not be willing to, express their certainty in quantitative terms (eg ‘95% certain that person X was socialized in country Y’), but rather in qualitative terms, such as ‘based on the linguistic evidence, it is possible, likely, highly likely, highly unlikely’ that person X was socialized in country Y’. This is because this kind of language analysis does not lend itself to quantitative statistics such as are often found in some others kinds of scientific evidence.

(7) THE EXPERTISE OF NATIVE SPEAKERS IS NOT THE SAME AS THE

EXPERTISE OF LINGUISTS

There are a number of reasons why people without training and expertise in linguistic analysis should not be asked for such expertise, even if they are native speakers of the language, with expertise in translation and interpreting. Just as a person may be a highly accomplished tennis player without being able to analyze the particular muscle and joint movements involved, so too, skill in speaking a language is not the same as the ability to analyze a language and compare it to neighboring language varieties.

(11) WHERE THE DIALECT OF THE INTERVIEWER OR INTERPRETER IS DIFFERENT FROM THE DIALECT OF THE INTERVIEWEE

In some situations interviewees who are speakers of a local dialect are interviewed by an interpreter speaking the standard dialect of the language. In such situations it is common for people to accommodate to the interviewer’s way of speaking, whether consciously or sub-consciously. This means that interviewees will attempt to speak the standard dialect, in which they may not necessarily have good proficiency. This accommodation, brought about by dialect or language difference, may make it difficult for interviewees to participate fully in the interview.

CONCLUSION:

For all of the reasons outlined in these guidelines we advise that language analysis should be used with considerable caution in addressing questions of national origin, nationality or citizenship”.

There being a large risk of Syrian claimants being unfairly excluded from protection, the simple question would be why with adequately trained and experienced Home Office CaseOwners involved in the asylum interview process, it cannot be ascertained who is and who is not Syrian without reference to language testing in the same way as would apply to any other case of disputed nationality from any other country?

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