The plight of the persecuted: the European Union and United States asylum law.

• Author: Morrill, Riikka E.

INTRODUCTION

Meltem Avcil was no older than eight when she and her parents fled persecution in Turkey. (1) Six years later, Meltem turned fourteen behind bars at an immigrant detention center in the United Kingdom, leading a life far different than the one her parents had hoped for her. (2) In limbo, the young girl awaited possible removal to Turkey where human rights abuses occur despite the country's continued effort to join the European Union. (3) As the European Union grows, allowing countries with poor human rights records to accede, options for Europe's persecuted become scarce. (4)

This Note examines how European Union (EU) expansion affects the ability of persecuted Europeans to seek and receive asylum. (5) Part II of this Note presents the relevant history of international, EU, and United States asylum law. (6) Part III of this Note discusses EU expansion and the consequent changes to the makeup of the Union. (7) In Part IV, this Note analyzes how the existence of the EU affects persecuted Europeans seeking asylum in the European Union and the United States. (8) Finally, Part V of this Note concludes that as the EU continues to grow, the EU and the United States must work to ensure that the human rights of EU citizens fleeing persecution are adequately protected. (9)

2. ASYLUM LAW

   1. The United Nations and Refugees

      The United Nations established the Office of the United Nations High Commissioner for Refugees (UNHCR) in 1950. (10) The UNHCR's primary purpose is to "safeguard the rights and well-being of refugees," relying on governments to work with the UNHCR to reduce situations resulting in forced displacement of civilians and to collaborate with the UNHCR to resettle refugees. (11) The two documents central to the UNHCR's mission, the United Nations 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the United Nations 1967 Protocol Relating to the Status of Refugees (Protocol), call upon states to become parties and for those who are parties "to co-operate with the Office of United Nations High Commissioner for Refugees in the exercise of its functions and, in particular, to facilitate its specific duty of supervising the application of the provisions of these instruments." (12)

   2. Asylum in the European Union

      1. Standardization of Asylum Law

         In October 2008, the Vice President of the European Commission (EC) declared that providing asylum is both a duty and a moral obligation of Europe. (13) To fulfill this responsibility, the EU has worked for almost two decades to develop a common asylum system. (14) In 1997, the Treaty of Amsterdam created a new Title IV for the EC Treaty which addresses "visas, asylum, immigration and other policies related to the free movement of persons" and, in 1999, the European Council in Tampere outlined specific aims of the common asylum system. (15) A 2005 EU Directive (Asylum Directive) was the "last of six important legislative texts establishing the Common European Asylum System" and in 2006, the EC encouraged Member States to cooperate in implementing the system, suggesting ways to best ensure that it is fully harmonized. (16) More recently, in December 2008, the EC approved proposals to amend current legislation to more fully meet the goals of the common asylum system. (17)

         The idea behind a common European asylum system is "to improve the quality of individual decisions ... to reduce the proportion of challenges to negative decisions, while providing greater consistency, which would hopefully deter secondary movement or multiple demands (as cases would be judged on the same basis across the whole of the EU)." (18) Lack of consistent adjudication has resulted in what has been termed an "asylum lottery" where the same claim may have a different outcome depending on the state in which it is filed. (19) Consequently, applicants often engage in "asylum shopping," either applying for asylum in multiple EU states hoping that at least one application will be approved or traveling through safe states without applying for asylum in an attempt to reach a state with a higher rate of asylum approvals. (20)

      2. Designated "Safe" Countries

         Most EU Member States currently abide by the Asylum Directive's problematic "safe country" policies--a "safe third country" and a "safe country of origin" policy--perhaps in an attempt to better allocate resources to those most in need. (21) To aid in carrying out the policy, the Asylum Directive provides that certain non-EU countries be considered "safe" and assumes that all EU Member States are safe. (22) The policy allows a Member State to return asylum seekers to any "safe" third country to pursue their claim, even if there is less of a chance of receiving protection therein. (23) Worse still, asylum seekers who flee "safe" countries can be repatriated in violation of the U.N. non-refoulement provision that prohibits returning a person to a country where he or she fears persecution. (24)

         By assuming all EU Member States are safe, EU citizens are particularly prejudiced when seeking protection. (25) Limited, if any, attention is paid to EU citizens' asylum claims because there is a presumption that everyone from a "safe" country is safe, making it virtually impossible for EU citizens to be granted asylum in an EU Member State. (26) If Europe's persecuted cannot find refuge within the EU, they will be forced to turn to non-European countries for protection with the United States being a likely destination. (27)

   3. United States Asylum Law

      Immigration law in the United States is federal law; thus, with the exception of occasional inconsistencies among the Circuits, a standard set of asylum law applies throughout the country. (28) These laws fairly accurately reflect international refugee law by incorporating both the Protocol and the Refugee Convention. (29) The very definition of a refugee central to United States asylum law mirrors the Protocol's definition, which itself incorporates Article 1 of the Refugee Convention. (30)

      1. Requirements Generally (31)

         1. Applicant Must Be a Refugee

            To receive asylum, a person must be a refugee, which U.S. immigration law defines as a person who is unable or unwilling to return to his or her country of nationality "because of persecution or a well-founded fear of persecution." (32) The persecution must be on account of the applicant's "race, religion, nationality, membership in a particular social group, or political opinion." (33) Moreover, the persecution suffered or feared has to be a "direct result of government action, government-supported action, or the government's unwillingness or inability to control" the actions of private individuals. (34)

            An applicant providing sufficient evidence of past persecution is entitled to a presumption of a well-founded fear of future persecution. (35) This presumption can be rebutted by a preponderance of evidence showing that there was a fundamental change in circumstances or that the applicant could avoid persecution by relocating to another part of his or her country of origin. (36) If, however, an applicant has not suffered past persecution, he or she must demonstrate a well-founded fear of future persecution. (37) The well-founded fear must be both subjectively genuine and objectively reasonable. (38)

         2. Persecution Must Be Countrywide

            An applicant can fail to establish a well-founded fear of persecution, and thus be denied asylum, if the applicant could avoid persecution by relocating within his or her home country. (39) The applicant bears the burden of establishing that relocation is not reasonable, except in cases where an applicant is entitled to a presumption of well-founded fear. (40) Importantly, there is a presumption that relocation is not reasonable if the persecution is by the government or government-sponsored individuals. (41)

         3. Discretion

            An asylum officer or immigration judge grants asylum at his or her discretion; thus, even if an applicant meets the statutory definition of "refugee," a grant of asylum is not guaranteed. (42) In determining whether an application warrants a favorable exercise of discretion, the relevant facts of each particular case should be considered. (43) The list of factors to consider includes: "whether the [applicant] passed through any other countries or arrived in the United States directly ... whether orderly refugee procedures were in fact available to help him in any country he passed through, and whether he made any attempts to seek asylum before coming to the United States." (44)

      2. Asylum Trends in the United States

         Recent asylum statistics show a significant increase in the number of refugees granted asylum in the United States over an eighteen-year period ending in 2008.45 In 2008, for the third year in a row, the United States was the largest single recipient of asylum applications worldwide. (46) A review of the top ten applicant countries of origin shows that about half of those seeking asylum in the United States come from Latin American countries. (47) At the same time, European asylum applicants accounted for only eleven percent of the total grants of asylum in the United States during 2008.48 While statistics of approved asylum applications by region are not available prior to 1990, data of persons granted permanent residence in the United States indicates that Europeans currently make up a much smaller percentage of those seeking immigration benefits from the United States than they have at any time in the last century. (49)

3. EUROPEAN UNION EXPANSION

   The European Union is "the world's most successful peace and integration project since the end of the Second World War." (50) Currently comprised of twenty-seven Member States, the EU has expanded its borders continuously since its inception. (51) In 2007, it welcomed its newest members, Bulgaria and Romania, and at present, Croatia, the Former Yugoslav Republic of Macedonia, and Turkey are candidates for membership...