Access to Official Documents by Eritrean Refugees in the Context of Family Reunification Procedures: Legal Framework, Practical Realities and Obstacles
Source: Equal Rights Beyond Borders (Athens & Berlin)
By Daniel Mekonnen and Sara Palacios Arapiles
This Independent Expert Report (hereinafter “the report”) is concerned with challenges experienced by Eritrean refugees in Europe in the context of family reunification processes, in particular those relating to strict documentary requirements demanded by some EU Member States, in particular Germany. The report shows that these requirements often hinder the effectiveness of the right to family reunification. Further, those requirements pose unnecessary risks, often placing Eritrean refugees, and their relatives in Eritrea, at serious risk. In presenting its main findings and conclusions, this report uses a methodological approach that combines analysis of primary and secondary data. The data gathering method involved desk research and thirty-nine semi-structured interviews conducted between October and December 2020 with a range of carefully selected sources.
Section 1 begins by setting the context and introducing one of the major issues Eritrean refugees continue to face in family reunification processes, which is related to the requirement of in-person appearance before Eritrean diplomatic missions to comply with evidential requirements. A significant body of international and national jurisprudence urges European national authorities to consider “other” evidentiary standards where refugees are unable to provide official documentary evidence. In addition, Article 11(2) of the EU’s Family Reunification Directive provides that “[a] decision rejecting an application may not be based solely on the fact that documentary evidence is lacking,” a provision which according to the Court of Justice of the European Union (CJEU) does not leave a margin of appreciation to the Member States. This was determined by the CJEU in a preliminary ruling of 2019 (E. v Staatssecretaris van Veiligheid en Justitie) that arose from the rejection of an application for family reunification lodged by an Eritrean citizen. In this judgment, the CJEU also urged national authorities to pay particular attention to the situation of refugees and this implies that it is “often impossible or dangerous for refugees or their family members to produce official documents, or to get in touch with diplomatic or consular authorities of their country of origin.” (CJEU, ibid., para. 66).
Section 2 outlines the political and human rights situation in Eritrea with emphasis on the country’s National Military Service Programme (NMSP). Whereas it does not purport to be a detailed or exhaustive account of the situation in Eritrea, it helps in providing an improved understanding of the core issues that are discussed in the remaining sections. This section, in particular, outlines the conditions under which the NMSP takes place. It also addresses the problem of widespread and systematic human rights violations that constitute a prima facie case of crimes against humanity, as established by various authoritative pronouncements: first by the UN Commission of Inquiry on Human Rights in Eritrea (COIE), and most recently by the Swedish Migration Court of Appeal. In Section 2, the report also shows that there has been no tangible change in the situation of human rights in Eritrea since the signing of the new peace agreement with Ethiopia in July 2018. This has been sufficiently corroborated by credible official sources published over the past two years. In addition, there is a newly erupted armed conflict in the northern part of Ethiopia, in which Eritrean troops are reportedly actively involved and because of which a new wave of Eritrean refugees may continue to flee. The discussion in this section serves as overall background context for the following core sections of the report.
Based on primary data gathered from Eritrean legal practitioners, Section 3 first underlines the lack of institutional infrastructure at the ground level causing deficiencies in the registration of vital events, and overall, in the documentation system. This also makes it impossible for citizens living in rural areas to register or get access to official documents. Section 3 also clarifies the (non-)applicability of the 2015 Civil Code. Although made public in May 2015, it has never been put into effect in the “conventional” way of entry into force of laws in Eritrea and as such, it has not become operational. This finding is supported by first-hand information obtained from a former member of the Law Reform Committee of the Eritrean Ministry of Justice. Section 3 also analyses the pertinent domestic laws regulating the official documentation system in Eritrea as well as the practice of issuance of official documents, such as national ID cards, passports, and records of vital events, in particular birth, marriage and death certificates. This section also discusses other important documents having probatory value in establishing the identity of individuals in Eritrea, namely, the residence card and the ration coupon. While there is no law in place that recognises these two documents as official identification documents, in practice, at least within Eritrea, these documents can be used in proving the identity of individuals. This section also highlights that the production of records of vital events, in particular birth, marriage, divorce or death certificates, is not a very common practice in Eritrea. Eritrean law recognises religious marriage as one form of valid marriage, and as a result in the local context, religious marriage certificates are considered as valid official documents.
Section 4 discusses the practice of Eritrean diplomatic missions with regard to the provision of diplomatic or consular services, in particular the issuance of official documents. As a matter of standard practice, Eritreans living in foreign countries need to obtain a Power of Attorney from Eritrean diplomatic missions in order to successfully obtain official documents from Eritrea. Once obtained, the Power of Attorney is sent to a relative or friend (agent) of the concerned individual in Eritrea, based on which the agent may be able to obtain the required documentation and send it back to the applicant. Nonetheless, having an agent is not sufficient to get the required documentation. To start with, the provision of any service by Eritrean diplomatic or consular authorities to Eritrean citizens abroad is subject to the fulfilment of two stringent preconditions: the coercive payment of a so-called “2% diaspora income tax” and signature of a self-incriminating statement, widely known as the “regret form.” This tandem procedure is coercive and abusive by its nature. Importantly, a person who is willing to pay the tax cannot do so without signing the regret form, in particular if such person fled the country after the 1998-2000 border conflict with Ethiopia and is within (or approaching) the age limit of the NMSP.
Section 4 further explores the latest practice of Eritrean embassies in particular in Sudan, Ethiopia, Egypt, Uganda and Kenya. This examination is based on the personal account of several Eritrean citizens, as well as on information provided by independent organisations. Reference is also made to the current practice by the Eritrean embassies in Germany and in other European countries. Through a closer examination of the practice of Eritrean embassies in these countries, it is shown that regardless of the “willingness” of some citizens to comply with these two requirements (namely, the diaspora income tax and the regret form), Eritrean embassies also refuse consular services, including the issuance of documents, to those regarded as political opponents to the Eritrean Government (among which the government may also include refugees and asylum seekers or those recognisable as such), as well as to citizens who fled Eritrea after the peace agreement between Ethiopia and Eritrea (including those who cannot prove the date of departure). The wide-ranging discretion of Eritrean diplomatic missions with regard to provision of consular services is an additional factor that hinders access to official documents by Eritrean refugees.
In addition, Section 4 underscores that in Ethiopia full consular services have not yet resumed, and that Eritrean asylum seekers are experiencing difficulties in having their asylum claims registered. Importantly, the section highlights that by making the Eritrean diplomatic or consular authorities aware of the applicant’s whereabouts and activities, those requesting official documentation and their relatives are put at serious risk. While the authors are aware that the number of interviews conducted for the findings of this Section may be too low to be entirely representative, this has been due to a lack of organisational and financial resources of the commissioner of the expert opinion. Thus, the authors acknowledge the need for further, more detailed research in this field. Nevertheless, the findings of this report are triangulated by citing several other independent sources, in addition to the expert knowledge of the authors.
Section 5 examines relevant jurisprudence and recent practice in relation to family reunification for Eritrean refugees as a means to identify some best practices in this respect. According to information provided by immigration solicitors in the UK, national authorities in the UK do not demand formal identification (such as ID cards or passports) from Eritrean citizens since decisions on family reunification applications are made on the basis that formal identification does not exist or cannot be obtained from Eritrea. This section also discusses the landmark judgment by the Swedish Migration Court of Appeal of 5 March 2018 in which the Court ruled that it was disproportionate to require Eritrean applicants to obtain Eritrean passports from an Eritrean embassy or consulate abroad given the risks this would pose to them and their relatives in Eritrea. Moreover, the Court also focused its assessment on two other factors: the requirement to pay the 2% diaspora income tax, which according to the Court, would be used for political purposes; and the obligation to sign the regret form, whereby, according to the Court, the concerned individual will accept punishment for not having completed the NMSP. This section further elaborates upon the legal reasoning of the CJEU in E. v Staatssecretaris van Veiligheid en Justitie. The CJEU, in particular, referred to the documentation system in Eritrea and the difficulties in obtaining official documents as well as to the personal circumstances of the applicants. In doing so, the CJEU concluded that a concerned national authority must “take into account other evidence of the existence of the family relationship and may not base its decision solely on the lack of documentary evidence.” (CJEU, ibid, para. 79). The report concludes by summarising the main findings
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