Ten-minute asylum interview enough to meet ECHR obligations before removal

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In Asady and Others v Slovakia (application no. 24917/15) the European Court of Human Rights has delivered another judgment that will gratify governments seeking to use summary removal to get rid of asylum seekers. The decision continues the court’s retreat over the interpretation of Article 4 of the Fourth Protocol to the European Convention on Human Rights (ECHR), which is meant to prohibit mass expulsions.

The issue in Asady was a factual dispute between a group of Afghans and the Slovak government. The Afghan men complained that when encountered by Slovak police near the Ukraine/Slovakia border, the police had ignored their requests to claim asylum. After a perfunctory series of interviews they claimed to have been removed to Ukraine within 24 hours of entering Slovakia.

The Slovaks asserted that in fact each individual had been provided a full opportunity to claim asylum at an interview with an interpreter but had chosen not to. Therefore the immediate group removal was acceptable because each person had been considered as an individual. In an appeal at domestic level, the Slovak border police directorate found in favour of the police.

At the European Court of Human Rights, the Slovak police were once again vindicated. The majority, in a court split 4-3, were happy to accept that a ten-minute interview would be sufficient for the police to explain the asylum system to each person and to check whether there were any reasons not to proceed with removal to Ukraine. Experienced practitioners might doubt whether they would be able to achieve this in ten minutes through an interpreter, but the Strasbourg court clearly has greater faith in the Slovak police. The majority also noted that the applicants had not provided any details about their asylum claims at any later stage.

Judge Lemmens (who also recently dissented in defence of Afghan asylum seekers in another recent case) joined Judges Keller and Schembri Orland in a dissenting opinion. They identified problems with the evidence provided by the Slovak police: most importantly, the recorded interview times frequently overlapped, but there was only one interpreter present. They also observed that many of the men had subsequently been granted asylum in other countries, casting doubt on Slovakia’s claim that they were not asylum seekers.

Significantly, the dissenting opinion also tries to confine the applicability of the Grand Chamber decision in N.D. and N.T. v Spain by noting its very extreme facts. In a plea to future constitutions of the court, the judges state:

It is vital that the limited scope of the Grand Chamber’s judgment in N.D. and N.T. v. Spain be respecte0d. An overly broad interpretation of the judgment would damage the “broad consensus within the international community” concerning compliance with “the Convention guarantees, and in particular … the obligation of non-refoulement” (see N.D. and N.T. v. Spain, cited above, § 232).

This case is another depressing footnote in the story of how Europe has sought to make itself inhospitable to irregular migrants. But the level and strength of dissent illustrates that these issues remain open for argument before the Strasbourg court.