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October 26, 2016

12 Years an Asylum Seeker: Failure of States

to Deal With Asylum Applications May Breach
Applicants’ Right to Respect for Their Private
Life
Written by Markos Karavias

In its ground-breaking B.A.C. c. Grèce judgment of October 13 2016, the European

Court of Human Rights found that Greece violated the right of an asylum seeker to
respect for his private life under Article 8 ECHR due to the failure of the Greek
authorities to effectively deal with his asylum application. Whilst the facts of the
case are outright extraordinary, the overall significance of the case cannot be
downplayed. For the first time, the Court accepted that Article 8 ECHR may be
breached due to a State’s inactivity in respect of an asylum application.

The applicant, a Turkish national, had been arrested by the Turkish authorities, and
after being charged with an offence against the constitutional order on account of
his pro-communist and pro-Kurdish convictions, was placed in solitary
confinement. Following a 171-days long hunger strike, he was set free. On 15
January 2002, having entered Greece, he applied for asylum, yet the application
was dismissed. The applicant brought an appeal against this decision. According to
the law in force at the time, decisions upon appeal were made by the Minister for
Public Order within a period of 90 days, following an advisory opinion by a
‘Consultative Asylum Committee’. Indeed, the Committee issued an opinion
favorable to the applicant on 29 January 2003.

From this date and for a period of 12 years (up until the application before the
Court), the Greek state refrained from reaching any decision on the asylum
application. The applicant spent these 12 years in Greece as an asylum seeker
denied – in accordance with domestic law – the right to vocational education, to
obtain a driver’s license, to open a bank account. The Greek authorities, including
the Greek police, nonetheless, did not fail to attest on several occasions that the
application was pending, thus renewing his asylum applicant’s identification card.
In the meantime, the Turkish authorities sought to extradite the applicant to
Turkey. Following a legal battle before the Greek courts the extradition request
was defeated. One should also add that the applicant’s wife joined him in Greece in
2003 for a period of 9 years, during which a child was born unto the couple. Still,
the applicant was deprived of the right to family reunification, and the situation of
the couple was only regularised – somewhat – following the issuance of a
temporary work permit to the applicant’s wife in 2008. Eventually, she decided to
return to Istanbul and the couple divorced.

The Greek Government sough to have the application dismissed as inadmissible

invoking non-exhaustion of local remedies. The Court refused to entertain the
arguments put forth by Greece, namely that the asylum application had been
rejected ‘silently’ by the Minister, and that the applicant had failed to seek
annulment of this rejection before the Supreme Administrative Court of the
Republic.

The most important part of the judgment is the one focusing on Article 8 ECHR.
The Court starts by paying lip-service to its settled relevant case-law underlining
that the Convention does not guarantee the right of a non-national to enter or reside
within a State of his or her choice, since States have as a matter of international
law the right to control the admission, presence and expulsion of non-nationals.
Still, relying on the Grand Chamber judgment in M.S.S v. Belgium and Greece, the
Court reiterates that States are under a series of positive obligations vis-à-vis non-
nationals, including an obligation to examine asylum applications promptly («dans
de brefs délais» in the original) so as to prevent asylum applicants being subjected
to situations of precariousness and legal uncertainty (§37). The Court then goes on
to distinguish the situation of the applicant from that of non-nationals contesting
the State’s refusal to award them a residence permit on account of family or social
ties. Indeed, the State did not intend to expel the applicant. What was at stake in
the present case was the omission of the Minister for Public Order over a period of
twelve years to reach a decision on the asylum application despite the favorable
opinion of the Consultative Commission, as well as the position of Greek courts
against the applicant’s extradition to Turkey (§39). The Court follows up on this by
spelling out the nefarious consequences such omission had on the applicant’s
private life: he was forced to work in construction clandestinely due to the severe
restrictions placed upon the right of asylum seekers to access the labour market, he
could not open a bank account, enroll in the University, and – most importantly –
he did not have a right to family reunification. The Court concludes that the Greek
authorities failed to discharge their positive obligation to establish an effective and
accessible procedure for the protection of the applicant’s right to respect for his
private life, namely they failed to examine his asylum application within a
reasonable time period, subjecting the applicant to a situation of prolonged
precariousness, and thus violating his rights under Article 8 taken alone, and in
combination with Article 13 ECHR.

The judgment is bound to stir debate among the refugee and human rights law
contingent. First, it underlines that States are under an obligation to decide on
asylum claims within a reasonable time frame, thus pre-empting any attempts by
States to justify delays in the asylum process on account of the recent spike in the
number of asylum claims. Indeed, throughout the past two decades, European
States – such as Greece – have taken cover behind the ‘back log’ of accumulating
asylum cases as a reason to keep asylum applications pending for years. What is
more, States will think twice before refraining from deciding asylum applications
on account of foreign policy considerations. The Court has paved the way for
(rejected) asylum applicants to attach weight to States’ delays in examining their
application. In this sense, the present case differs from past expulsion cases, such
as Nnyanzi v the UK, where the Strasbourg Court, dismissing an Article 8 claim by
a Ugandan rejected asylum applicant, argued that her removal was not rendered
‘disproportionate by any alleged delay on the part of the authorities in assessing
[her asylum and human rights claims].’ (§76)

Second, and more important, the Court attaches legal weight in the light of Article
8 to the impediments created by the host State to the asylum seeker developing
social ties pending examination of his/her asylum claim. In past cases involving
asylum claims, the Court treated any ties formed as tainted since the status of the
applicant was seen to be precarious ‘from the outset’ (see Useinov v. the
Netherlands). This may well be the case where an asylum claim is filed upon the
service of a deportation order after overstaying one’s visa; in other words when the
asylum claim serves to prolong one’s lawful presence in the host State. Yet, to
create impediments to the formation of such ties, whilst delaying the examination
of a bona fide asylum application filed upon arrival, is manifestly unfair. For once,
the asylum seeker is legally present in the host State and, what is more, presumed a
refugee pending decision on the asylum application. An asylum seeker should thus
be allowed to form social ties within the host State in the light of Article 8. The
burden now lies with States to effectively and speedily examine asylum
applications, with a view to preventing social ties being formed. States cannot both
prolong the duration of the examination of asylum applications beyond any
reasonable time frame (for reasons or failings of their own) and defeat any
protection accorded to asylum seekers under Article 8 ECHR.