When Belkisa Hazizi was a year old, she was issued a deportation order.
Her parents, Vera Kociraj and Ajrol Hazizi, were refused asylum and told that neither they, nor their daughter, had established “a well-founded fear of persecution”, back in Albania.
Kociraj says she and her husband had been involved in political activism there. “My husband was threatened, usually from other parties, everything was getting worse.”
They felt they couldn’t stay in Albania, she says. “Especially when I found out I was pregnant. I said, ‘No, I can’t raise my child here.’”
Kociraj says the couple are now banking on their solicitor to try to revoke the family’s deportation orders, so that they and Belkisa, who was born in Ireland and is now three years old – and their other, younger, child – can stay.
But, that will be a challenge.
That means that decision makers presume that applicants from those countries don’t need refugee status, and applicants have to rebut that.
On the List
A country can be perceived safe if there is “generally and consistently” no persecution, torture, inhuman degrading treatment, punishment or threat of violence in that country, says the International Protection Act 2015.
In addition to the extra burden of proof that falls on applicants from countries on the “safe” list, their original asylum applications and appeals to refusals are supposed to be processed faster.
Sometimes this means an applicant has less time to appeal a negative decision and a shorter time to return voluntarily in case of a final refusal.
Cathal Malone, an immigration solicitor in Dublin, says that’s unfair.
“To say to somebody, rather than 15 working days, you have 10 working days to appeal is just unnecessarily cruel,” he says.
“You accidentally appeal one day outside, and then, that’s the end,” he says.
And sometimes it means an applicant won’t get an oral appeal hearing and can only send a written submission unless authorities are “satisfied that it would not be in the interests of justice to do so”.
It’s up to members of the International Protection Appeals Tribunal to decide whether or not it’s in the interest of justice to hold an oral hearing, said a spokesperson for the Department of Justice.
They do that “based on the facts of the individual case, or following the making of representations by or on behalf the appellant concerned”, said the spokesperson.
Bulelani Mfaco, whose home country of South Africa is considered “safe”, says he waited more than a year to get an invitation for the first interview.
In general, he says, it’s good to have your case examined quickly as long as you’d be getting a fair hearing.
Kociraj says she and her family waited “13 months for the first interview and three weeks for them to answer back”.
The median processing time for asylum applications in the first quarter of 2021 was 22.2 months for all cases and 16.1 for prioritised applications, the spokesperson for the Department of Justice said.
They did not say whether applications from “safe” countries were processed at a different speed to others.
“Statistics are not maintained in a manner to provide a breakdown in respect of processing times for applicants from designated safe countries,” the spokesperson said.
In any case, the presumption of Albania’s safety, Kociraj says, has loomed over their asylum application.
“They said that your country is safe, you don’t need asylum, you don’t need protection, you can go back to your country, you’re a young couple, wherever you go, you can build something,” says Kociraj.
“It has a big impact,” she says. “They hear the prime minister saying our country is the safest. Who’s going to tell you what’s going on in their country? They will hide everything.”
Mfaco, the South African asylum seeker, says he was also told that if he faced harassment as a queer man, his country’s legal system would punish the abusers.
“It is unreasonable to expect a person to go back to a country on the grounds that the person who kills them might be jailed,” says Mfaco.
“Much of the classification of safe country of origin prejudices a person’s asylum claim,” he says.
“It’s hard to have confidence that authorities will treat you fairly when they’ve already told you that you’re not entitled to protection before you even apply for international protection,” says Mfaco.
Femke Vogelaar, an independent expert in asylum and refugee law based in South Africa, says the country has a functioning legal system, but that doesn’t mean all South African asylum cases are baseless.
She points to the case of Fezekile Ntsukela Kuzwayo, who accused former president of South Africa Jacob Zuma of rape, and was granted asylum in the Netherlands.
“There are individual cases, whereas South Africa may be generally safe, but there are always exceptions,” says Vogelaar, who has researched how countries are designated as safe by the UK and Netherlands governments.
The spokesperson for the Department of Justice said that “All applications for international protection are examined fully and individually on their merits, including those from countries which are designated as safe countries of origin.”
Applicants from perceived safe countries are given “an effective opportunity to rebut the presumption of safety in their individual circumstances,” they said.
The International Protection Act 2015 says that the Minister for Justice should review the situation) in perceived safe countries “on a regular basis”.
A spokesperson for the Department of Justice didn’t say whether it has reviewed the list of safe countries that it issued in April 2018.
“The Department does not have a schedule of dates for review, but will generally prioritise a review if there are reasons for concerns to generate same,” the spokesperson said.
“The Act requires that a country is reviewed regularly but does not prescribe specific time periods,” they said.
Ideally the law should clarify what “on a regular basis” means, says Malone, the immigration solicitor in Dublin.“I think that annually would be the minimum.”
Not regularly reviewing these lists can be dangerous when things take a turn for the worse in a country and an outdated list continues to label it safe, says Malone.
A December 2019 report by the United Kingdom’s Independent Chief Inspector of Borders and Immigration highlights issues such as human trafficking, domestic violence and blood feuds in Albania.
In 2020, Albania’s government treated political activism with hostility and used excessive force against protestors on several occasions, says a report by the US-based nonprofit Freedom House.
“Albanian democracy struggled during 2020, with attacks on civil society institutions and independent media,” it says.
“The year ended with a wave of protests against police brutality that led to the resignation of the Minister of the Interior,” according to the report.
A Uniform EU List?
Most EU member states adopted the concept of safe countries of origin for the sake of uniformity in asylum decision-making in the 2000s.
They don’t share a common list, though. The EU Commission withdrew its latest proposal for a common set of countries in June 2020.
Volegaar, the independent refugee law expert, says the EU should introduce a uniform, legally binding method for assessing data for preparing safe lists.
“There is not much standards on how you assess the country-of-origin information, and that gives a lot of discretion,” she says.
Malone, the immigration solicitor, says he is concerned that some EU governments misuse the concept of safe lists to stop citizens of certain countries from crossing their borders.
Up until 2007, Bulgaria was the only EU country that had Turkey listed as a safe country, he says. “Because Bulgaria was afraid of loads of Turkish people coming over the border.”
He says the EU Commission is not beyond making political decisions when its interests are at risk.
“In 2014, 2015, when the Commission tried, yet again, to come up with a common list, one of the countries they proposed on that common list was Turkey,” says Malone.
That was because the Commission had a migration deal with Turkey to send people back, he says.
“And there was a fear that if they didn’t include Turkey on the safe country list, then it will be very difficult to justify the fact that the EU is paying Turkey huge sums of money to stop people making it to Greece,” says Malone.
Ireland has used the notion of safe countries to justify turning back a disproportionate number of people from Albania and Georgia at its borders, he says.
In 2018, Albanian nationals filed the highest number of asylum claims with 976 applications, followed by Georgia with 635.
In December 2019, Ireland also joined forces with Belgium and Iceland as part of an operation known as Frontex Joint Return which saw the deportation of 23 citizens of Albania and Georgia.
Three of the five countries with the highest refusal rates at Ireland’s border in 2019 were on the safe countries of origin list: Albania, South Africa and Georgia.
However, a spokesperson for the Department of Justice said there is no connection between border checks and any assessment of international protection.
“The purpose of the checks is to prevent illegal entry to the State and to disrupt activities that are often highly organised involving exploitation of the persons concerned,” they said.
Border control officers at Dublin Airport can stop people at the border on 12 grounds, and each person gets a written notice informing which one applied to their case, said the spokesperson.
“In all cases, return of persons refused leave to land are conducted in accordance with the law, with the vast majority of such returns being made to other EU Member States,” they said.
From 1 January to 31 May 2021, 425 travellers were turned back at Dublin Airport, including 199 Eritreans, 59 Syrians and 18 Albanians, according to Department of Justice figures.
Malone says it’s reckless to assume that because a country is on an official safe list or has high rates of refusal on asylum claims by its citizens, that it’s okay to turn them back at the border in large numbers.
“And what happens if you send them back and what they said is going to come through, comes through?” he says.
“You always have to remind yourself, whenever someone’s like, oh well, Albanians might not be telling me the truth or whatever as the Department might see it,” he says.
“Okay, but if only one in a 100 of them were, we shouldn’t be taking the risk of sending back the one?” says Malone.
Lack of Transparency
During her research, Vogelaar realised she couldn’t tell how two countries she wanted to look at, Germany and Belgium, evaluated countries for safe lists.
Reports on how safe lists are put together “are not made public in Germany and Belgium”, her study says.
In Belgium, designation is based on confidential advice by the Commissioner General for Refugees and Stateless People, it says.
The concept of having a safe list in itself is a controversial one, Vogelaar says, and she is not in favour of it.
She found during the course of her research that such categorisation is not based on a “proper assessment of the factual situation in a country of origin”, she says.
And standard safeguards for the asylum process are often not guaranteed for people whose countries carry the “safe” label, she says.
The 1951 Refugee Convention also says that governments should not discriminate against refugees based on their countries of origin. Having safe lists violates that by dividing asylum seekers into different categories, says a 2015 report by the European Council on Refugees and Exiles.
But since the notion of having a list of safe countries is here to stay, it’s important to be transparent about how such lists are compiled, Vogelaar says, and how information has been used and assessed.
“And why you’ve given probative value to certain information that leads to your conclusion that it’s generally safe to go back to that country,” says Vogelaar.
In 2020, 34 out of 118 Albanian citizens who were refused asylum in Ireland and were able to appeal that decision got their refusals overturned, according to IPAT’s annual report.
A refusal letter from IPAT to Kociraj’s family references a section of a 2018 American report on countries’ human rights practices as one reason why it was safe for them to go back to Albania.
It quotes from the report that Albania’s law and constitution respect the notion of freedom of movement, and its government cooperates with humanitarian organisations in protecting and helping returning refugees.
Earlier this year, the High Court overturned IPAT’s decision to refuse refugee status to another Albanian couple, sending the case back to IPAT for fresh deliberations.
One of the applicants had said he was an active member of the Democratic Party in Albania, and when he tried to approach members of the rival Socialist Party to win their votes at the general election, he was attacked and threatened at gunpoint.
When the Socialist Party won the election, he said, some of its members who were involved in organised crime, attacked his wife, throwing her out of a bus.
He had backed up his claims with evidence, including medical records. But IPAT had only accepted simple facts of the case, that the applicant was a married Albanian man and an active member of the Democratic Party.
IPAT had said the applicant had failed to establish “his general credibility”, that the evidence he had put forward contradicted the country-of-origin information on Albania.
Justice Max Barrett disagreed and said in his judgment that IPAT’s reasoning for refusing the couple’s asylum application was nearly irrational.
It was wrong to dismiss someone’s claims for asylum based on a “perceived correct instinct or gut feeling as to whether the truth is or is not being told”, he said.
Last year, a South African family not only challenged a negative decision from IPAT, but also the core concept of designating South Africa as safe, which had been a powerful factor behind the refusal.
IPAT judges had agreed that the family’s fears of robbery, murder and worries about the potential abduction of their 13-year-old child were valid and could count as persecution.
But country-of-origin information on South Africa said that state protection was available to the family, they said. A High Court judge greenlit the family’s request to launch a judicial review.