United Kingdom Journals

Bonafide or Bogus? : Roma Asylum Seekers from the Czech Republic

Helen O'Nions LL.M

Lecturer in Law: University of North London

<H.Onions@unl.ac.uk>

Copyright © 1999 Helen O'Nions.

First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article critically evaluates UK asylum policy focusing on the treatment of Roma asylum seekers from the Czech Republic. On arrival in the UK, the Roma were quickly labelled as 'bogus' 'economic migrants''. As an associate member of the European Union, it was not conceivable that any minority in the Czech Republic could be experiencing a well-founded fear of persecution. This paper seeks to question these assumptions. There is much evidence to demonstrate that the Roma are discriminated against throughout Czech society. Racist attacks are common. International criticism has particularly centred on the Czech Citizenship Law of 1993 which removed the citizenship rights of several thousand Roma. The EU has been monitoring the integration process with respect to the Roma and their most recent report recognises that the situation has not improved.

Given that the evidence shows that many Czech Roma are experiencing violence and discrimination, their treatment on arrival in the UK is cause for great concern. Many applicants were detained; those that did not apply for asylum immediately on arrival were refused income support; and visa requirements were introduced to dissuade future applicants. The Geneva Convention, which requires each case to be considered on its merits, appears to have been routinely disregarded in the judgement of asylum claims. Furthermore, it is argued that the spirit of the Convention is seriously undermined by European developments to synchronise the asylum process.

Contents

1. Introduction
2. International Law of Refugees
3. The reality of Roma lives in the Czech Republic

(i) Overview
(ii) An Example of the Problems: The Health Care Perspective
(iii) Recognition of the Roma nationality
(iv) Rights Rhetoric and Social Reality

4. Czech Citizenship Denied to Roma

(i) Why are So Many Roma Without Citizenship?
(ii) Why is Citizenship so Important?
(iii) Citizenship Criteria

5. International criticism

(i) The New Amendment
(ii) Examples of the rejected applications
(iii) Local Ordinances
(iv) Failure of the Legal system
(v) Evidence of an anti-Roma policy

6. A well-founded fear of persecution?

(i) The Convention in UK Law
(ii) Demonstrating Persecution
(iii) Standard of Proof
(iii) Economic Motives?

7. The Czech Republic's application to join the EU
8. Conclusion

Bibliography

1. Introduction

In November 1997, the leader of Kent Council urged the Government to speed up the asylum process in order to repatriate an estimated 1,000 Czech and Slovak Roma that had arrived in Dover during the past month (Financial Times, 15 November 1997). The possibility of the Roma being bona fide, genuine asylum seekers in fear of persecution was at best considered remote.

The standard anti-Gypsy prejudices quickly surfaced (O'Nions 1995). The response of the broad-sheet, quality press was barely distinguishable from the tabloids. The Sun reported that `3,000 gipsies' were coming to Britain to utilise the cushy benefit system (The Sun, 20 October 1997) whilst The Independent preferred the image of a country under siege by economic migrants: "Gypsies invade Dover, hoping for a handout" (The Independent 20 October 1997; The Daily Telegraph, 20 October 1997)

There was no recognition of the experiences that gave rise to these claims. An Amnesty International Report in 1996 had documented fifty pages of human rights abuses experienced by Czech Roma. The Council of Europe, United Nations High Commission on Refugees and the Commission on Security and Co-operation in Europe had made several criticisms of the Czech Citizenship Law with respect to the Roma. The ample evidence of discrimination and ethnic violence in the Czech Republic was generally overlooked. The Home Office minister, Mike O'Brien, promptly reduced the period of application for asylum seekers from 28 days to 5 in response to the wave of these allegedly `economic migrants' (CTK, 27 October 1997) and delivered a television message to the regions Roma: "Keep out, you are not welcome" (Toronto Sun, 27 October 1997). Indeed, the Roma were not given the warm welcome they had been led to believe by the TV Nova documentary that is regarded as the catalyst for the migration. A demonstration was soon orchestrated by the right-wing British National Party confirming that racism and extremism are not confined to the `new' Europe (Refugees 1999 No 113).

The UK arrivals were not an isolated incident and need to be seen as part of a wider picture. Earlier in 1997, thousands of Roma from the same region arrived seeking asylum in Canada. The Helsinki Commission noted 1100 arrivals in September 1997 (Helsinki Commission, Letter dated 7 October 1997) and by the end of August 1997 the homeless shelters of Toronto were full to capacity with Czech asylum seekers ( CFRB Radio, 22 August 1997, 6.30pm; RFE/RL Newsline Vol. 1, 101, Part II August 22nd 1997 estimated that 20% of the hostel residents were Roma). Despite the general lack of success in asylum applications, Roma from the former Czechoslovakia continue to come to Britain seeking asylum and in 1998 there were several successful asylum appeals concerning Slovak Roma (The Guardian 1 December 1998; 28 August 1998)

This paper examines the reasons for the sudden migration and critically evaluates the UK government response to the asylum applications. There is ample evidence to suggest that Roma applicants from many European regions may have a genuine case for refugee status based on the criteria in the Geneva Convention. International criticism of the Czech Republic in respect of its treatment of the Roma minority has been extensive. An interesting dimension has been added to the evaluation of claims for asylum from the Czech Republic as the protection of minorities comprises one of the political criteria for accession to the European Union Treaty (EU Memo 98/54).

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2. International Law of Refugees

International law does not guarantee asylum, rather it provides the individual with the right to seek asylum and the guarantee that during this process she will not be repatriated against her will (Universal Declaration on Human rights Article 14; Lambert 1995 p 4; Hathaway and Dent 1995 p 37). This position has been emphasised with regard to UK asylum applications (T v Sec. of State for Home Department [1996] 2 All ER 965 at 868, per Lord Mustill).

The 1951 United Nations Convention Relating to the Status of Refugees (hereafter 'Geneva Convention') as amended by the 1967 protocol defines a refugee as:

"a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and who is outside the country of his nationality or former habitual protection of that country or to return to it" (Article 1(A) (2) Geneva Convention 189 UNTS 150)

The success of an asylum application will depend on the applicant's ability to produce evidence demonstrating a fear of persecution. Persecution will include any form of oppression, harassment or maltreatment (Farinto et al 1997, p 255). However, a distinction is made between the genuine refugee and the `economic refugee' who seeks asylum simply to gain material benefits (Goodwin-Gill 1996, p 29).

The Geneva Convention and Protocol have not been formally incorporated into United Kingdom law. However, since the 1971 Immigration Act the Convention has been referred to as establishing the criteria for asylum applications. Section 2 of the 1993 Asylum and Immigration (Appeals) Act states that "Nothing in the immigration rules...shall lay down any practice which would be contrary to the Convention". In determining the legitimacy of an asylum application it is therefore necessary to use the Convention criteria as the starting point. However, as this paper will later argue, there are many areas in which the sprit of the Convention is actually being undermined by the development of UK asylum policy.

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3. The reality of Roma lives in the Czech Republic

(i) Overview

There are estimated to be around ten million permanent residents in the Czech Republic, and between 250,000-300,000 (2.5-3%) of these are Roma (Liégeois and Gheorghe 1996). According to the Czech Embassy, however, they account for 0.3% of the population, and in the 1991 census only 33,000 Roma registered as such.⁽¹⁾ During the Second World War most of the Roma in the Czech lands were exterminated by the Nazi regime, and most of those Roma now living in the Czech Republic were originally moved from Slovakia as part of an organised dispersal programme (Ulc 1991; Crowe 1995; Guy in Koudelka 1975). The vast majority live in extremely poor conditions and are routinely discriminated against by all sections of society.

Following the Velvet Revolution, the Roma were officially recognised as a national minority group. However, the improvement in their nationality status was not accompanied by a material improvement in their social and economic situation at the bottom of Czech society. The Czech Citizenship law introduced in 1992 has dramatically worsened this problem. Many of the Roma who were born in Slovakia before moving to the Czech lands have found themselves having to apply for citizenship in the country which they regard as their home. As a result, many Roma now find themselves ousted from society, their residence depending on the discretion of the municipal authorities. For many, the only alternative is to leave their home, returning to Slovakia or emigrating to the West.

(ii) An Example of the Problems: The Health Care Perspective

The average life-span of a Romani male born in 1980 is expected to be thirteen years less than that of a comparable `Gorgio' or non-Roma (Kalibova quoted in Powell 1994, p 106). Health care and child care standards are extremely poor, with around 20% of children being born retarded as a result of inferior pre-natal care, and a hugely disproportionate number of Roma children attending special schools for children with learning difficulties (Conway, 1996).

(iii) Recognition of the Roma nationality

Following the Velvet revolution, the new Government issued `Principles of the Governmental Policy of the Czech and Slovak Federal Government Toward the Romany Minority'. The first principle states that Romany nationality is equal to all other national minorities in the Czech Federal Republic. On the dissolution of Czechoslovakia, a new constitution was established incorporating an impressive range of rights and freedoms which exceeds the requirements of the European Convention on Human Rights.

Article 3 of the Charter on Fundamental Rights prohibits discrimination on the basis of race, national or social origin and membership of a minority (Blaustein and Flanz 1993). Particularly relevant to this discussion are the provisions concerning the inviolability of personal privacy (Article 7); the protection of dignity, honour, reputation and name; and protection from interference with family life (Article 10). Article 12 states that no-one shall be deprived of citizenship against their will (there is no comparable provision under the European Convention, although Protocol 4, Article 3 does contain prohibitions on expulsion of a national, and deprivation of the right to enter a state of which a person is a national). Article 14 provides for freedom of movement and settlement. Minorities are specifically addressed in Chapter 3 of the Charter. The right to an ethnic identity and to develop culture, language and association in community with others, provide the basis on which minority rights are situated (Articles 24 and 25). Article 25(2) provides for positive rights in fields including education in the minority language; use of their own language in official contact; and the right to participate in minority affairs. These provisions may be found in the Framework Convention on the Protection of National Minorities which the Czech Republic ratified in December 1997.

(iv) Rights Rhetoric and Social Reality

Despite the impressive list of constitutional rights and freedoms, there can be no doubt that violence towards Roma has increased substantially in the Czech Republic, as is the case throughout Central and Eastern Europe, since the events of 1989. Increased freedom of expression has led to individual attacks and public demonstrations of racist sentiment, which had been held in check under Communist rule. In 1992 alone there were estimated to be 26 deaths of Roma from racially motivated attacks in Czechoslovakia (Crowe 1995, p 64). The Czech non-governmental organisation HOST has documented 1250 racially-motivated attacks directed at Roma in the period 1991-1997 (European Roma Rights Centre, 22 October 1997.) Demonstrations such as that which occurred on the 24 November 1991, when a large group of fascists marched on central Prague shouting slogans such as `Gypsies to the gas chambers!' and `Czech for the Czechs', are evidence of a new tide of ethnic hatred. Press accounts reveal that non-Roma onlookers clapped in support of these chants (Financial Times 19 December 1994)

The change of values inherent in the democratisation process, implementation of the free market and the free expression of extremist beliefs are clearly not good news for the Roma in the Czech Republic. Fear is commonplace. An article in the Canadian press observed:

"Every Gypsy in Ostrava appears to have a first-hand account of discrimination. They're the victims of skinhead beatings, verbal abuse on public transport, threatening letters. They're refused service in bars and restaurants. They're even excluded from the local swimming pool, they say. And it's getting worse" (Globe and Mail, Canada, 19 August 1997.)

Ethnic violence is rarely the subject of successful prosecutions and the attitudes of many of the general public are reinforced through official prejudice. The denial of citizenship rights, through the operation of Law 40/1993, is the most pertinent example of this hostility.

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4. Czech Citizenship Denied to Roma

Despite seven years of international criticism, the Czech Citizenship Law (40/1993 of the Czech National Council) remains on the statute books. The law has the effect of denying citizenship to a large number of resident Roma, making them de facto, and in some cases de jure, stateless.

Of course, there are other non-legal means in which citizenship may be denied on a daily basis, particularly through the use of intimidation and violence. Roma are frequently labelled as `foreigners' and `outsiders' in racist dicta throughout Europe, and ethnic violence, as this paper demonstrates, is steadily increasing⁽²⁾. This makes the recognition of legal citizenship of paramount importance and it is thus essential that Roma are able to attain citizenship as of right in the same way as other citizens. If rights violations which occur on the street are to be redressed, the law must not be seen to mirror them.

(i) Why are So Many Roma Without Citizenship?

The resettlement programmes of the Communist period, whilst not entirely successful, did result in the relocation of a significant number of Roma families. Indeed it has been estimated that up to two-thirds of the Roma on Czech soil were either moved forcibly or through economic incentive by the Communists (Powell 1994, p 117)

Under the Constitution Act 1969 there were two types of legal identity: firstly, as citizens of Czechoslovakia, and secondly, as citizens of either of the two federal states according to the place of birth. Until 1993 there was no use for this federal citizenship and its significance was largely regarded as symbolic. However, this archaic law is now the basis of the new citizenship provisions. Those who were Slovak citizens in 1969 and their families are denied citizenship as of right, and will need to apply for the new Czech citizenship - notwithstanding their permanent residence on Czech soil. A child born in Czech lands whose ancestors are Slovak will thus be a Slovak citizen, as will those born in Slovakia even where these is no connection with Slovakia. They will need to apply for citizenship under Article 18 of the new law, despite often being forcibly moved from Slovakia in the first place. It is estimated that up to 150,000 Roma had to apply for citizenship in their own country (Powell 1994, p 117).

(ii) Why is Citizenship so Important?

Those who do not apply for citizenship may nevertheless be granted permanent residence if they have no criminal record in the past five years and have proof of income. This will enable claims for medical and unemployment assistance and access to education - all vital in a community with between 30-50% male unemployment (The Globe and Mail, 7 May 1996 p D5). However, the importance of full citizenship status should not be understated. On a personal level, it bonds the individual with the State, conferring a sense of belonging over and above that received from the immediate ethnic community. Citizens are entitled to a variety of state benefits as of right rather than by virtue of discretionary permission. Non-citizens are unable to vote in elections and are unable to participate in certain professions such as the police and the military. Those non-citizens who are not entitled to permanent residence may be deprived of a host of associated rights. According to the Report on the Situation of the Roma in the Czech Republic:

"they cannot be legally employed or start a business; they cannot be registered by labor offices or receive unemployment benefits; they have no social or medical insurance; they have no right to the state social support benefits; their children are often taken from them and placed in children's homes as a result of neglect which leads to a chain reaction of social problems; their children should not, in theory, attend school unless the parents directly reimburse the costs". (Czech Government 1997)

There is also the ever-present possibility of expulsion for any non-citizen. The Council of Europe have been particularly critical of the law in this respect (C/E 1996, p 15). The fact that permanent residence is also dependent on the absence of a recent criminal record may also prevent successful applications.

It is therefore vital that those people on Czech soil without citizenship should make an application under the new law. The preferential procedure for Slovaks under Article 18 ended in June 1994 and now the criteria are the same for Slovaks as for other foreigners.

(iii) Citizenship Criteria

a. Permanent Residence on Czech Soil for at least five years.

(Originally Slovaks only had to show two years residence under Article 18).

This is a common citizenship requirement that nevertheless presents some difficulties for the Roma community. It is difficult for many to prove this permanent residence, as often dwellings occupied in the re-settlement programme were sub-standard and over-crowded and thus were not registered as permanent by the Municipal Authorities. Additionally, some Roma have been forced to flee their homes due to harassment and violence, and as a consequence their residence has not been recorded.

b. Clean Criminal Record (Article 7(1)(c))

The so-called `Gypsy clause' must also be satisfied in an application for permanent residence. A person should not have been sentenced to an intentional criminal offence in the previous five years. Romanies have been convicted of a disproportionate number of criminal offences, many of them petty in nature. However, the citizenship requirements fail to distinguish between crimes of theft and murder; most crimes are intentional for the purposes of the Czech Criminal code. Ina Zoon, a Czech human rights lawyer, highlighted the paradox that a person recently sentenced for theft may not acquire citizenship but a person convicted of War Crimes after World War Two would be eligible (Tolerance Foundation 1994a, p 16). The Tolerance Foundation have found that out of a sample of 208 Roma who had failed to obtain citizenship, 23% were indicted for theft and 12% for other petty crimes (Tolerance Foundation 1995, p 13).

This provision appears to contravene the prohibition on the imposition of retroactive penalties laid down in Article 7(1) of the European Convention on Human Rights and Article 40 (6) of the Charter on Fundamental Freedoms. However, an examination of the case-law under Article 7 reveals that administrative acts such as the denial of citizenship may be interpreted so as not to constitute penalties (see for example Jamil v France (1995) 21 EHRR 65; M v Italy (1991) 70 DR 59; X v Federal Republic of Germany (1968) 27 CD 136). Nevertheless, the provision is regarded as an essential tenet of international human rights law. The Council of Europe, the Office of Security and Co-operation in Europe and the United Nations have all criticised the legislation in this respect.

c. Requirement to Master the Czech Language

The imprecise nature of this provision leads to obvious difficulties, for example, how is mastery to be determined and what is the position of illiterate applicants. It would appear that much depends on the discretion of the administrative officer. However, in the case of former Slovaks, Article 10(2) provides that this requirement will be relaxed, though the Tolerance Foundation have evidence which suggests that officials do consider language ability when applicants present the application documents (Tolerance Foundation 1994a p21).

Other problems with the administration of the law include the requirement that Slovak citizens surrender their passport and Slovak citizenship prior to submitting their application. This has resulted in many people becoming stateless in contravention of international law. Although the Czech Government is not a signatory of either of the United Nations Conventions relating to Statelessness, the Council of Europe experts were firmly of the belief that the prevention of statelessness is an international obligation (C/E 1996 p 21, para. 54).

The cost of applications may also act as a deterrent for applicants, as will the prejudice exhibited by officials towards Romany applicants in some regional offices. Furthermore, it should be noted that there is no right of appeal at this stage, as technically the administrative process has not been fully embarked upon until the application is accepted at the municipal office.

The application for permanent residence if the person cannot fulfil the citizenship requirements is dependant on possession of the Slovak passport. One can assume that many applicants will have surrendered their Slovak identity papers as a prerequisite to the citizenship application, and will thus be stateless in the interim.

Despite the apparent problems with the legislation, the Czech Constitutional Court ruled in September 1994 that the law did not violate the new Constitution (Decision 9/94 of Constitutional Court, September 13th 1994).

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5. International criticism

Whilst the Council of Europe felt that the clean criminal record requirement was usual in naturalisation criteria for foreigners generally, they felt that in the case of state succession it was discriminatory if a person had established ties with that country and had been in long-term, permanent residence (C/E 1996 p 10, para. 21(e) and pp 24-25, paras. 73-87). Statistics issued by the Tolerance Foundation indicate that over half of the Roma denied citizenship were born and have remained on Czech soil, and over 80% of those denied citizenship have been living there for over twenty years (Tolerance Foundation 1995, p 4).

The Council of Europe experts were of the view that the international criteria of proportionality and forseeability were not met by this legislation. The well established family ties of those denied citizenship, and the importance attached to relatively minor criminal offences as well as more serious offences, clearly led to injustices. Furthermore, they stated that democratic States respectful of the rule of law and human rights should not allow people to be deprived of their right to vote on the basis of legislation which was not in force at the time the offence was committed (C/E 1996, p 26, para.80). The criteria for determining citizenship should be a genuine and effective link with the state concerned.

It was urged that the Czech Government review the twenty-two administrative expulsions and consider the implications of Article 8 of the European Convention concerning respect for private, family and home life (C/E 1996, p 107, para. 32). Whilst the European Convention does not guarantee rights to enter or remain in a country, there is limited protection for those whose families remain in a state and who have established a link over time with that state. For example, in Lamguindaz v UK 17 EHRR 213 the European Commission upheld the case of a Moroccan national threatened with deportation for criminal behaviour on account of the immense hardship he would suffer. The case was not heard by the Court as a friendly settlement was reached between the parties.

The United Nations High Commission for Refugees has also issued a report criticising the citizenship law for failing to prevent statelessness resulting from the dissolution of Czechoslovakia. The report `The Czech and Slovak Citizenship laws and the Problem of Statelessness' also recommends that in preference to an internal Communist law, the relationship between territory and population should be the governing factor in implementing citizenship laws. The Czech Government's apparent intransigence to the issue was further criticised (UNHCR 1996).

The Czech Government claim that only two hundred Roma have been denied citizenship. Whilst the exact figures remain elusive, it is clear that this figure is a blatant underestimate. In one two year period, the Tolerance Foundation managed to find over four hundred people who have had their applications refused and the Roma National Congress estimate that 77,000 Roma have been affected (Roma National Congress Representatives speaking at a Press Conference on 30 June 1994, Prague) The official figure clearly fails to take into account the number of people whose applications are rejected at local offices, or who have been discouraged from applying for any number of reasons. The Equal Rights programme established by the Tolerance Foundation found that out of a sample of ninety-nine cases 92% of those without citizenship had not got a Slovak passport and 8% had relinquished their Slovak identity and were thus de jure stateless. None had acquired legal permanent residency (Tolerance Foundation 1994b, p 17) .

(i) The New Amendment

As a consequence of continued international criticism the Czech Government passed Jiri Payne's Citizenship Law amendment on 26 April 1996 (139/1996 Coll.). Whilst initially welcomed by those working in the field, it has now become obvious that the amendment fails to address some of the most serious deficiencies in the legislation. The problematic criteria for permanent residence still needs to be complied with in all residency applications and the major hurdle of the clean criminal record requirement still remains on the statute books.

The amendment's effect is to give the Ministry of Interior the discretion to waive the clean criminal record requirement. Therefore, if the Minister decides that the requirement should be imposed, it will continue to be so. The high crime rate of the Romany population in general may well act as the kind of justification that the Minister will consider legitimate.

(ii) Examples of the rejected applications

Examples reveal that citizenship may be refused for minor criminal offences as well as more serious offences. Applicant `A' was born in the Czech Republic in 1955 and has remained there ever since. His citizenship was refused after he received a life sentence for murder. Similarly, `B' was born in the Czech Republic and permanently resided there, he had never lived in Slovakia. B was unable to obtain citizenship due to a fourteen year prison sentence. A third applicant, `C' failed to satisfy the citizenship criteria despite permanent residence with his family in the Czech Republic, owing to a 5 year sentence for serious mayhem.

In 1998, the Czech Supreme court clarified the legality of citizenship denials for minor criminal offences. Ludovit Gorej, was sentenced to expulsion for the theft of $4 worth of sugar beets. He has lived in the Czech Republic since he was three months old and was bought up in Czech orphanages. It was argued that the denial of citizenship was a violation of the right to respect for family and private life and it was not `necessary in a democratic society'. The Supreme Court quashed the decision stating that the crime did not meet the threshold for what constitutes a criminal offence. He is now appealing to have his residence rights reinstated after they were removed by the Aliens Police.

The Gorej case is encouraging news but it does not go far enough. Those who have committed more serious crimes and those who are not aware that the amendment exists as well as those people whose citizenship was denied for other reasons such as failure to establish permanent residence, remain outside the protection of the law. The Czech Helsinki Committee has documented thousands of cases from former `Czechoslovaks' where applications for citizenship appear to have been indefinitely `stalled' (Helsinki Committee, Letter 7th Oct. 1997). In a letter to the Interior Ministry, Chairman Smith of the Commission on Security and Co-operation in Europe states:

"In particular, I am deeply troubled that the amendment would continue to permit the ex post facto increase of criminal penalties. This, it seems, is one of the most salient problems with the existing Czech law. Any law which attaches to past criminal acts a heavier penalty (here, the loss of citizenship) than existed at the time that the crime was committed violates Article 11(2) of the UN Declaration on Human Rights and Article 15(1) of the International Covenant on Civil and Political Rights" (CSCE Letter dated 13.5.96)

(iii) Local Ordinances

The citizenship law should not be viewed in isolation. Following the dissolution of Czechoslovakia, several regions had pre-empted the national policy by introducing restrictions on the number of Roma residents. The Jirkov rules, so called after the town where they were first introduced, restricted the residence of people staying with non-family members to five days in any six month period following registration with the municipal authority. The ordinance failed to take account of extended Roma families with permission being required for any stay longer than three days (Hubshcmannova 1993). Under the ordinance local police were empowered to check the identity of any person in an apartment between 6am and 12pm. Although the rules did not make specific mention of a target group, the explanatory text says that the objective was to `regulate' the migration of Roma. It has been suggested that in practice the regulations were used to send all Roma residents who were not registered as Czech citizens back to Slovakia, regardless of whether they had ever lived there (Powell 1994, p 116).

Many other localities were quick to follow in the footsteps of Jirkov and although the ordinance and following decrees were interdicted by the Government in February 1993, the pace with which they developed is indicative of a deep hostility towards the Roma which had survived the transition to democracy. Public opinion polls listed three particular areas of concern in the new democracy: international criminality, the fear of Communist revival and the Roma (Ulc 1995, p 27). In 1997 the mayor of Marianske Hory, a town east of Prague, was rebuked by President Havel after she publicly demonstrated her support for Roma migration by offering public funds to assist Roma with their flight expenses (Globe and Mail, 13 August 1997). Recently a deputy Mayor has been found guilty of encouraging racial hatred and fined when he issued a ban on Romanies using the public swimming pool (CTK 20 February 1998). The Usti Nad Labem municipal authority responded to the wishes of the local residents by constructing a wall to segregate Roma and non-Roma inhabitants (The Guardian, 20 June 1998, p 16).

(iv) Failure of the Legal system

The legal system fails the Roma in many respects. Racially motivated crimes are not taken sufficiently seriously. The perpetrators of such attacks are rarely identified and prosecuted. In data collected by the International Helsinki Federation for Human Rights, the conviction rate for racially motivated attacks against Roma was around 50% (IHF 1997, p 90). When prosecutions do take place there is little sympathy shown to the Romani victim. In a case concerning a group of Roma that had been forced from a train for `whites only' the prosecution of a racially motivated crime was unsuccessful as both the skinhead perpetrators and Roma victims belonged to the same `Indo-European race' (ERRC 1998). Article 198 of the criminal code concerning defamation of a nation, race or belief was however, used to prosecute five Roma who were involved in a violent dispute with police officers (ERRC 1998). The conviction for the murder of Tibor Berki in 1995 bought considerable criticism when the judge found that there had been no racial motivation. On appeal, the Czech Supreme Court overturned the judges ruling and increased the sentences of the four involved (IHF 1997, p 90).

It is pertinent at this point to mention a recent report by the Roma National Congress which highlighted a survey revealing that 90% of Roma now see no point in remaining in the Czech Republic (RNC 1995). The US State Department's Human Rights Report of 1996 found that 35% of Czechs favoured `concentrating and isolating the Roma' whilst a further 45% favoured removing them from the Czech Republic (US Dept of State 1997, p 13). It is perhaps unsurprising then that many Roma have formed the conclusion that they were better off under the restrictive policies of the Communists (Ulc 1991, p 115).

(v) Evidence of an anti-Roma policy

There is some evidence to indicate that the citizenship law may be part of a deliberate attempt to reduce the number of Roma living in the Czech Republic. A leaked Government report from before the dissolution of Czechoslovakia raised the possibility of a large exodus of 'Gypsies' following the break-up (OMRI Daily Digest, 17 September 1992.). As predicted, an exodus has occurred, although it appears to have largely gone unnoticed until the recent arrivals in the UK and Canada. In 1993 the Czech Government had detained 24,000 people attempting to depart illegally for Germany, a significant number of whom were Roma (Edginton 1994). Additionally, many have crossed the border to Slovakia. Given the history of discrimination and violence that Roma have experienced in these respective countries, it will come as no surprise that they are now travelling further (Young 1994, pp 2-3; Roma National Congress 1995, p 21; Edginton 1994; Hockenos 1993, pp 28-9).

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6. A well-founded fear of persecution?

The question remains as to whether the treatment of Roma in the Czech Republic may amount to evidence of a well-founded fear of persecution under the 1951 Geneva Convention as amended.

(i) The Convention in UK Law

It has already been noted that the definition of refugee in the Geneva Convention is restrictive in that it excludes economic migrants. There is no recognition that economic deprivation and persecution may be two sides to the same coin (Shorts and De Than 1998, p 613). The exclusion of economic migrants has been criticised by several writers. Patricia Tuitt argues that the Convention definition perpetuates discriminatory attitudes towards asylum seekers by defining those outside the narrow definition as bogus, illegal and fraudulent (Tuitt 1996, pp 14 & 19). She describes an irreconcilable conflict between refugee law and the refugee (Tuitt 1996, p 23).

This conflict can be seen clearly with respect to the Home Office practice of designating certain countries as safe. The Geneva Convention requires that each case be decided on its merits. Nevertheless, if the applicant comes from a country regarded as 'safe' under the Asylum and Immigration Act s1, they are presumed to be bogus and consequently, may be summarily expelled. The right to appeal against summary expulsion is only exercisable from within the home country (Asylum and Immigration Act 1996 s2(2); Stevens 1998). This is notwithstanding Article 3 of the Geneva Convention which requires that the provisions shall be applied without discrimination as to race, religion or country of origin (1951 Convention Relating to the Status of Refugees, Art 3).

The safe country list includes all EU member states, Canada, Norway, Switzerland and the US. In addition, a 'white list' has also been established under which the Secretary of State designates countries that are regarded as giving rise to a large number of unfounded claims (Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 SI 1996 No 2671)⁽³⁾. The purpose of the safe country designation is described by Hailbronner:

" the idea is to single out, at an early stage, those applicants who have nothing to fear in their home country, and who can therefore be presumed to have abused the asylum procedures to circumvent immigration laws" (Hailbronner 1993, p 32)

As an associate EU member, the Czech Republic does not yet fall into the category of safe country and the Czech Roma are thus prevented from being summarily expelled. However, this does not prevent officials from acting under the assumption that as an associate EU member, the Czech Republic is 'safe' and that the asylum seekers are therefore bogus. Consequently, there is a real danger that Roma applications are not being decided according to the particular facts of the case. Goodwin-Gill identifies two issues relevant to assessing the applicants credibility: first, could the applicant's story have happened given what we know of the country of origin? Secondly, is the applicant personally believable? (Goodwin-Gill 1996, p 354). As to the first issue, it has been argued that the association of the Czech Republic with the EU gives rise to an assumption that human rights are respected therein. In respect of the second issue, there is an abundance of documentation ranging from news articles to international human rights reports, which suggest that the Roma across Europe are the victims of discriminatory prejudice and stereotyping (for example see Liégeois 1994; Liégeois and Gheorghe 1996; O'Nions 1995). Consequently, it is difficult to envisage that these prejudices are not operative in the asylum decision process.

Recent developments in United Kingdom asylum law based on the arbitrary policy distinction between economic migrant and genuine refugee have not made things easy for asylum seekers. Whilst the Asylum and Immigration Appeals Act 1993 was aimed at reducing the delays and speeding up the application process, the system remains clogged with delay (Cholewinski 1998, p 477; Refugee Council 1996). Furthermore, the shortened asylum application process for applicants from those countries considered to represent no serious risk of persecution, raises serious implications concerning the fairness of the process (Harvey 1997, p 64).

Economic benefits to assist those seeking asylum have been substantially reduced by regulations issued under s8-11 Asylum and Immigration Act 1996 which limit social security assistance to those asylum seekers prudent enough to apply for asylum immediately on arrival (Social Security (Persons from Abroad) Miscellaneous Amendments Regulations (SI 1996 No 30) as amended by Schedule One Immigration and Asylum Act 1996).

The harshness of these provisions has been mitigated to some extent by the Court of Appeal decision in R v Hammersmith and Fulham LBC exp. M and Others, The Times, 19 February 1997) in which it was held that s21(1) of the National Assistance Act 1948 placed local authorities under a duty to provide food and shelter for destitute people. At first instance on 18 October 1996, Collins J had outlined the unenviable situation of the applicants as follows:

"None of the applicants is entitled to work for the first 6 months of his stay while his application is being considered. None of the applicants has funds of his own...Furthermore, none of the applicants has friends to whom he can turn on assistance. Thus, unless he can find help from charitable sources, he has no means of livelihood. Each applicants is destitute and faces the dilemma that he must either starve without a roof over his head or return to the country from which he has fled" (QB The Times 18th Oct. 1996)

As well as the restrictions on income support for those who fail to apply immediately on arrival, a whole range of benefits including priority housing, child benefit, council tax benefit and other non-contributory benefits have been withdrawn in all asylum cases (Zaidi 1998, pp 20-21; Cholewinski 1998, p 465). The justification for withdrawing benefits has been the perceived need to reduce the number of economic migrants. However, as Cholewinski has argued, the principle of non-refoulment is potentially undermined by the destitution which asylum seekers face as a result of this legislation (Cholewinksi 1998; Geneva Convention 1951, Art 33).

In addition, many families find themselves divided on arrival with their menfolk being detained at detention centres during the application process. Article 31 of the Geneva Convention authorises restrictions on the movement of refugees in cases of necessity only. According to the Executive Committee on the Detention of Refugees and Asylum-Seekers, detention should be avoided unless necessary to verify identity; to determine the elements on which a claim is based (i.e. for the purpose of a preliminary interview); where travel documents have been destroyed or are fraudulent; or to protect national security and public order (EXCOM Conclusion No 44 (XXXVII) UNHCR 1999). However, more than 800 asylum applicants are detained in prisons such as Rochester jail and special centres such as the infamous Campsfield House run buy Group 4 security. A report by the Chief Inspector of Prisons, Sir David Ramsbotham, concerning the troubled Campsfield House noted that the centres had been established to provide six weeks detention during the application process but in many cases were holding people for up to one year in inappropriate conditions (The Guardian, 18 April 1998; Statewatch Jan-Feb. 1997). The report went on to describe Britain's asylum system as a "complete and utter shambles" (The Guardian, 6 March 1998). The Roma Refugee Organisation claims that many asylum seekers are separated from their families and detained only to be released for deportation once they assent to repatriation agreements⁽⁴⁾.

International law forbids 'non-refoulment' i.e. the forced return of refugees/asylum seekers to a place where they may experience persecution (Geneva Convention 1951, Article 33; UN Declaration on Territorial Asylum 1967 Res. 2312 (XXII) Article 3). The designation of countries as 'safe' irrespective of the testimonies of asylum seekers seriously jeopardises this principle as does the fast track appeal system and the denial of economic benefits (Cholewinski 1998).

(ii) Demonstrating Persecution

Article 33(1) specifies that persecution must consist of a `threat to life or freedom'. Such a threat can be made by a state agent or by other individuals or groups in the state. Although, in practice it may be substantially easier to prove a case where the state has directly promoted the persecution. The Handbook of the Joint Council for the Welfare of Immigrants notes that the individual does not need to have been personally targeted:

"If it can be established that there is a systematic pattern of state abuse and disenfranchisement of the fundamental human rights of a class of people then this will amount to persecution" (JCWI 1999 p92)

Therefore experiences of ethnic violence and discrimination will be a relevant factor as will state complicity in this discrimination. Arthur Helton, Director of the Open Society Institute's Forced Migration Project, argues that Roma may come within the wider definition of persecution:

"While a threat to life or freedom is invariably considered to amount to persecution, severe discrimination and abuses inflicted over time may constitute persecution on a cumulative basis. Also, while explicit state action clearly satisfies the refugee criterion, state inaction may also suffice in instances where the authorities are unable or unwilling to protect individuals from harm--a principle particularly applicable where private discrimination is involved" (Helton, (1997).

(iii) Standard of Proof

The Home Office have a wide discretion to determine asylum cases. However, judicial reasoning has determined that the standard of proof required is less onerous that the civil standard of `the balance of probabilities'. In R v Sec of State for the Home dept exp. Sivakumaran [1988] 1All ER 193 the House of Lords held that a `reasonable degree of likelihood' would be sufficient to establish a genuine claim. A well-founded fear of persecution must be objectively demonstrated in accordance with the Sivakumaran standard of proof. However, in a particularly disconcerting decision, the High Court found that the applicants own conduct may be a relevant factor in the persecution. In this case it was held that the applicant's fear of persecution on account of his homosexual identity was not 'well-founded' as he was in a position not to trigger the discrimination relating to active homosexuals (R v Sec of State for Home Dept exp. Binbasi [1989] Imm. AR 595, at 599-600; Vanheole 1997, p 591). This case must be regarded as a dangerous precedent in that Roma are frequently blamed for the ethnic violence directed at them (Czech Government 1997 see below). The drafters of the 1951 Convention surely did not envisage that members of unpopular ethnic groups should be denied protection simply on account of their sexuality or any other aspects of their personality.

Past examples of persecution may be relevant but are not conclusive in the asylum application (R v Sec State for Home Dept exp. Direk [1992] Imm. AR 330, at 334).

(iii) Economic Motives?

When examining the situation of the Roma, it is apparent that economic incentives are rarely the primary motive for migration. The Czech Governments Report On the Situation of the Roma observes:

"The Roma frequently face such experiences, including racially motivated attacks, for instance from officials, restaurant owners, employers, and in day to day life. Many Roma face the fact that society is not willing to accept them, despite their efforts to integrate. The results of such experience and mistrust of generally declared social principles are fully understandable; they often lead to the emigration of Roma (particularly to Canada, Australia, the Netherlands, Belgium, etc.) Racial discrimination is cited as the reason for emigration." (Czech Government 1997)

In 1997, the UN Economic and Social Council received reports from Human Rights Watch of 181 racially motivated attacks on Roma during 1995 and described the situation thus:

"Being at the bottom of the social ladder, Roma face daily discrimination in housing, education and employment. They are often segregated in 'special schools', denied residency permits and refused jobs solely because of their ethnicity" (ESC, 1997)

It is apparent that dislike of the Roma is not purely evidenced by occasional outbursts of skinhead violence. Anti-Roma sentiment is part of the general public opinion. The right-wing MP Miroslav Sládek was elected to Parliament on the back of an openly anti-Roma policy. In a statement before parliament, Sladék contended "Gypsies should be penally responsible from birth because this is practically their biggest crime..." (reported in IHF 1997, p 91).

In the housing field, the Czech Government's report highlighted the segregation of Roma to "bare flats" concentrated on the outskirts of towns. Among employees of housing departments virtually one third favoured concentrating and segregating the Roma. The report finds that:

"The result is the creation of a sort of neo-ghetto, in which people often live in poor social and hygienic conditions, are distanced from work and education opportunities, and lose contact with the rest of society, which leads to further social decline, an increase in crime, and other problems, which become that much more difficult to solve"

As a consequence of the bare flats and a forced eviction policy it is recognised that many Roma are living in fear of "ethnic cleansing" unofficially supported in the society (1997 para 8.4). Coming from an official source this should surely represent good evidence of a fear of persecution.

As far as the victimisation of Roma is concerned. The report identifies as a significant problem the number of racist attacks on Roma and a failure of the entire justice system to bring the perpetrators to justice (Czech Gov. 1997, para 11.5). Of particular interest to this paper is the recognition that members of the police are often themselves supportive of such extremist ideologies. Complainants are thus unlikely to be taken seriously and there is a tendency for judges to acquit perpetrators of racist motivations in the absence of corroborated evidence. The report also identifies entrenched discriminatory attitudes to the Romani community in all sections of society:

"Legislation for investigation and prosecution of them is lacking, as are the necessary courage and will to deal with them on the part of the appropriate authorities, whether they be state institutions, the Czech commercial inspection offices, local governments, the police, or other bodies involved in criminal prosecution" (para 11.6)

The report cites instances where the Roma have been barred from entry into restaurants and other public areas.

Evidence of the situation of the Roma in the Czech Republic demonstrates that these cases need to be examined on their merits rather than summarily dismissed. There have been only a handful of successful asylum applications (The Guardian, 14 March 1998; 1 December 1998). In one case, following the recent murder of a Romany woman in a racially motivated attack (CAROLINA No 277, 20 February 1998), the High Court ruled that the family were victims of discrimination and would probably face persecution on their return (CAROLINA No 279, 6 March 1998). Whilst British immigration officials were arguing over who should bear the cost of returning these `bogus' asylum seekers, a Czech Rom was stabbed by a skinhead in East Bohemia and the Czech Government Commission on Minorities recorded a dozen Roma deaths from racist attacks since the Velvet Revolution.

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7. The Czech Republic's application to join the EU

It has been noted that the European Commission has been monitoring the situation of the Roma as part of the accession process (Helsinki Commission Press Release). Respect for human rights and the protection of minorities form one of the criteria for full EU membership (Commission Opinion July 1997). Czech President Vaclav Havel has noted that the ability of Czechs and Roma to get along directly affects the country's reputation within Europe. In a recent statement, Havel noted that if Czechs and Roma cannot co-exist "we can forget about integrating into Europe and the European community." (European Dialogue (1999).

The Opinion of the Commission noted the improvements made in the sphere of human rights generally. However, with regard to the Roma, the Commission found:

"They are the target of numerous forms of discrimination in their daily lives and suffer particular violence from skinheads, without adequate protection from the authorities or the police. Their social situation is often difficult (though sociological factors to some extent account for this). Alongside any discrimination they may suffer from the rest of the population, notably over access to jobs or housing. In addition, the way in which some Roma were expelled during partition has been criticised by a number of humanitarian organisations." (Opinion 1997)

As a consequence of the international monitoring process, the Czech Government issued its 1997 report which is surprisingly self-critical; the criticisms of international bodies are found to be substantiated by the documented evidence. There is ample evidence to suggest a prime facie case of a well-founded fear of persecution under the Geneva Convention criteria.

The report recognised at the outset that a tension exists between two population groups in the Czech Republic, namely Roma and Gadze (non-Roma). Furthermore, that discrimination and hostility towards the Roma exists at an individual level and at a state level through the consequences of the Czech Citizenship law, which the report notes, had the effect of creating more people without legalised residence than the official statistics had revealed (Report of the Czech Government 1997).

The report led to a resolution in which an Inter-ministerial Commission on the Affairs of the Roma Community was established in October 1997. The appendix to the resolution contained a declaration (Appendix to Government resolution no. 686 of 29 October 1997). The publication of the resolution followed the departure of Roma to Europe and Canada, and whilst alarm was expressed at the extent of the migration, it was implicitly recognised that there was some justification for the move:

"The Government declares that it is alarmed by the departure of some of our fellow citizens and their requests for political asylum abroad and is firmly resolved to address the causes leading to this." (Article 1 Government Declaration, Appendix to Resolution of 29th October 1997 No 686)

The wording of the declaration is understandably cautious, Article 3 notes that the Government will endeavour to ensure that "nobody in our country has any fear for reasons of belonging to any minority community" but goes on to equate this fear with economic motives: "The economic reasons are solvable in the home country and do not justify requests for political asylum".It has been argued however, that economic motives are not the simple explanation for Romani migration. Though clearly relevant, their identification as the primary motivation for migration is misleading. Such a view is supported by the criticisms provided throughout this paper of the Council of Europe, United Nations High Commission for Refugees and the European Union.

The Declaration furthermore calls on the "citizens of the Czech Republic to do as much as possible for improving the feelings of our Romani fellow citizens and thus help free the country from the feeling of mutual mistrust, undervaluing, accusation or discrimination on racial grounds" (Article 5). This represents an unequivocal statement that a culture of ingrained racial discrimination exists. All individual relevant ministries are requested to acquaint themselves with the existing unfavourable situation "on the ground" (Article 6).

Improvements have been made in respect of the citizenship law. In Resolution No. 338 dated 12 June 1997, the Cabinet adopted and submitted to the Chamber of Deputies a proposed Criminal Code amendment which, in § 57, requires the courts to evaluate the impact of expulsion sentences on a defendant's family ties. The fee for citizenship applications has been substantially reduced and the criminal record waiver introduced by the 1996 amendment waiver has been successfully invoked in 1,698 cases (Czech Government 1997, para 3.2.5). However, it must be emphasised that this number does not significantly impact on the number of Roma who have not acquired citizenship. There is a recognition that many Roma are unaware that the opportunity of a waiver exists. The Czech Helsinki's Committee's Legal Aid Department currently has records of more than 2,800 Roma who have not acquired citizenship despite meeting all the statutory criteria (para 3.3.1). Additionally they have files on 545 children without Czech citizenship on account of their residence in children's homes.

The report itself concludes that:

"the fundamental solution would be adoption of an amendment to Law no. 40/1993 Coll. which would automatically make it possible for Slovak citizens who had permanent residence in the Czech Republic as of 31 December 1992 and have retained it until the present to acquire Czech citizenship." (para 3.4)

This long awaited development has still to materialise and as a consequence the discriminatory effects of the citizenship law have not been fully addressed.

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8. Conclusion

There are signs that, owing to international pressure, the Czech Government are serious about addressing the discriminatory experiences of the majority of Czech Roma. In 1995, a criminal law amendment was introduced which authorises stricter punishment for racially motivated crimes (Criminal Law no. 152/1995 Coll). Disciplinary actions have been commenced against police officers who neglect their duties with regard to racial violence (for example, on September 13, 1995, the director of the Regional Police in Nový Jièín was dismissed because the police did not detain skinheads who attacked Romani citizens).

Many of these measures however, amount to little more than superficial attempts to address vociferous international criticism. The Czech Government's own report contains some particularly illuminating statements which places much of the blame on the shoulders of the Roma themselves. For example, Roma unemployment (between 70 and 90% compared to an average of 5% nationally) is not considered to be wholly attributable to discrimination in the employment process (Czech Government 1997 para 7.2). Rather, the blame is attributed to the stereotypical `work-shy' Romani:

"...among the Romani community there is minimal incentive to find work. A significant part of the Romani population reacts this way to its disadvantageous position in the unskilled labor market." (Czech Gov. Chp 3.7, part II para. 6.4)

In summary, the report concludes:

"The high level of Romani unemployment is a problem for society as a whole, partly caused by the lifestyle of some members of the Romani community, partly by inadequate measures from state and local government. This fact requires systematic steps on all sides; one of the possible solutions could be certain advantages to entrepreneurs who hire difficult-to-employ persons (in this case Roma)." (para 7.5)

In June 1998, the European Commission submitted to the Government a Progress Report on the Situation of the Roma Community in the Czech Republic (EU 1998). The amendment to the Citizenship Law was considered by the Commission to be ineffective and the new Government were encouraged to amend the law so that all those on Czech soil at the time of dissolution are afforded full citizenship. The report noted that:

"...while the situation of other minorities continued to be satisfactory, the situation of the Roma has not really improved since July 1997, despite increased attention to the problem from the previous government."

The Commission found that cases of racially motivated attacks and discrimination mentioned in the June 1997 Opinion have continued, some of which have attracted widespread media coverage. The overall image of the Roma in the media was considered to be rather negative with only minimal attention paid to racially motivated attacks. The migration of Roma to Canada and the United Kingdom was cited as a major cause of concern.

In conclusion, whilst some improvements have been made there remain considerable obstacles at the national level and also at a local, regional level where many discriminatory policies operate unchecked. The disproportionately high level of poverty experienced by Czech Roma has undoubtedly been a significant factor in the decision to migrate. However, international criticism goes far deeper. The Czech legal system can be seen as a reflection of the prejudices in Czech society: discrimination pervades and the Roma rarely receive justice. The perception of the Roma as `outsiders' is given national credibility by the operation of a discriminatory citizenship law. Housing policies aim to segregate and isolate the Roma in furtherance of this exclusionary policy. The 1998 report of the US State Department found that Roma are defined as outsiders by the political culture and "suffered disproportionately from poverty, unemployment, inter-ethnic violence, discrimination, illiteracy and disease" (US State Dept 1998, p 12).

As to the question of refugee status. It is clear that law and policy relating to immigration and asylum across the EU has developed along very restrictive lines. This caution is justified by a rise in those considered to be `economic migrants' (Harvey 1997, p 62). Parliamentary debates preceding the 1996 Asylum and Immigration Act clearly indicate the Government intention to distinguish between `genuine' cases and those with an economic motive (see for example the comments by Michael Howard in HC Debates, Hansard 11th Dec. 1995 Col 699-704). It has been suggested that this policy has perpetuated a `culture of disbelief' in relation to asylum applications (Harvey 1998, p 215). This suggestion is borne out by the treatment of Roma applications.

Evidence indicates that many Czech Roma may have been in a position to demonstrate a well-founded fear of persecution. The Czech Government's own report identified a fear among Roma of `ethnic cleansing' which could be used as support for an asylum application. Thus it is a cause of deep concern that the Roma were not received as bonafide asylum applicants in the United Kingdom. In an article addressing the United Kingdom arrivals, the UNHCR concluded that the merits of individual cases were rarely considered, applicants instead were judged on their perceived lack of 'likeability' (Refugees 1999b, Issue 113).

The European Commission monitoring process and consequent criticism has led the Czech Government to fully consider the situation of the Roma minority. This is of course to be welcomed. However, it is unlikely that the European Commission will press the Czech Government to make firm commitments contingent on full EU membership. The reason for this can be found in the European Union's own restrictive policies towards asylum applications. Harvey notes a "Europeanisation" of asylum law with the general trend being the adoption of a `lowest common denominator' approach (Harvey 1998, p 219).

The designation of all EU states as 'safe countries' which will result in asylum applications from the EU being automatically rejected has been criticised by Amnesty International and the United Nations High Commission for Refugees (The Guardian, 10 January 1998). The Dublin Convention on the Determination of the Member State Responsible for Examining an Asylum Application (1990) aims to establish a Europe-wide system for examining applications. Somewhat controversially, a decision in one EU state will bind all EU states (Dublin Convention 1990 Art 3(2); Joly 1992, pp 107-115; s2(2) AIA 1996). A draft parallel Convention is being considered which will incorporate the associated countries of Central Europe to the 'safe third country' provisions (Statewatch May-June 1997). The Amsterdam Treaty signed in 1997 continues the process of harmonisation and places further restrictions on the rights of asylum seekers from within the Union (EU Doc. CONF/4001/97, 19 June 1997; Colvin and Noorlander 1998; Statewatch, May-June 1997; Kerber 1997; Dearden 1997).

The tightening up of asylum procedures across Europe seriously jeopardises the spirit of the Geneva Convention:

"As these safety nets weaken, it has become easier to manipulate the issue of foreigners, including refugees, depicting them as competitors for scare jobs, housing and welfare funds and creating a convenient outlet for social resentment. Migratory flows themselves have become more complex, blurring easy distinctions between bona fide refugees and huge numbers of economic migrants." (Refugees, Issue 113, 1999)

Further debate is needed as to how the present restrictive approach can be seen to satisfy the provisions of the Geneva Convention when a significant number of the `new Europeans' may have evidence of a well-founded fear of persecution.

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Footnotes

(1)  This statistic is acknowledged to be a gross underestimate but due to the policy emphasis on the equality of citizens it is the only figure available (Czech Government 1997, para. 6.2).

(2) David Sibley's work on the British Gypsy is apropriately entitled Outsiders in Urban Society (Blackwell: 1983)

(3) Amnesty International studied 60 asylum applications between Sept. 1994 and March 1995 that were refused on safe third country grounds. A 43% success rate on appeal was borne out by a study from the Immigration Law Practioners Association which examined 4149 cases and found a 42% appeal sucess rate. Both reports are noted in Dunstan in Nicholson and Twomey (eds) 1998, p 62)

(4) The Roma Refugee Organisation is based at 1 Waterlow Road, Archway, London. The RRO is in desperate need of legal assistance for Roma asylum applictaions and would greatly welcome any support.