From the Right of Asylum to Migration Management: The Legal–Political Construction of ‘a Refugee’ in the Post-Communist Czech Republic

Abstract

International law defines refugees and their rights and the legal obligations of states that receive them. However, the actual formulation and implementation of asylum law are based on the politically and historically contingent constructions of the status of ‘refugee’ that are determined largely by nation states. This article analyses the legal–political construction of ‘refugee’ in the post-communist Czech Republic during and after its accession to the European Union. It examines the role of the state and the non-governmental sector and explains the gradual shift that took place towards treating asylum as a matter of migration management rather than a fundamental human right.

Notes

The analysis is based on fieldwork carried out between 2005 and 2007. It involved 29 semi-structured interviews with representatives of state administration responsible for asylum seekers and refugees under the Ministry of Interior of the Czech Republic: 11 respondents from Odbor azylové a migrační politiky (Department of Asylum and Migration Policy) and 18 respondents from Správa uprchlických zařízení (Refugee Facilities Administration). Furthermore, 13 representatives of five major local non-governmental organisations working with migrants and refugees were interviewed—Berkat (Berkat), Centrum pro integraci cizinců (Centre for Integration of Foreigners), Poradna pro uprchlíky (Counselling Centre for Refugees), Organizace pro pomoc uprchlíkům (Organisation for Aid to Refugees) and Sdružení občanů zabývajích se emigranty (Society of Citizens Assisting Migrants)—together with two representatives of the Czech office of the United Nations High Commissioner for Refugees. In-depth interviews were conducted with 45 recognised refugees and asylum seekers from Armenia (13 respondents), Russian Federation/Chechnya (17 respondents) and Belarus (15 respondents). Refugees' ages ranged from 18 to 73; the group comprised of 26 women and 19 men representing all education levels and they resided in 10 different cities and towns of the Czech Republic at the time of the interview.

Article 14 states that: ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. The document is available at: http://www.un.org/en/documents/udhr/, last accessed 3 December 2010.

On the other hand, it needs to be acknowledged that in Czechoslovakia and elsewhere it was illegal to leave the country without special permission, thus emigrants became possible targets of persecution by the very fact of their having emigrated. For the history of emigration from Czechoslovakia see Rychlík (2007).

Czechoslovak Constitution of 1960, No. 100, Article 33, available (in Czech) at: http://www.psp.cz/docs/texts/constitution_1960.html, last accessed 3 December 2010.

Greeks are the only large group of refugees settled in Czechoslovakia that are well documented in the literature (Botu & Konečný 2005; Otčenášek 2001). Between 1948 and 1950, Czechoslovakia responded to the civil war in Greece and accepted almost 14,000 Greek refugees whose evacuation to Central Europe was organised by Greek communist insurgents and coordinated from Moscow. The Greek refugees were resettled in borderland villages and towns ‘emptied’ by the post-war expulsion of Germans and were quickly incorporated into expanding local industries (Otčenášek 2001). Other groups of refugees came from Italy, Yugoslavia, Spain, the United States and France (Olšáková 2007) and also from Middle Eastern countries such as Iran (Zídek 2008). Most of them were members of local communist parties.

It was symbolic that they were mostly placed in the former barracks that became free after the withdrawal of the Soviet Army, which was present in the country from the suppression of the Prague Spring in 1968 until 1991.

It is estimated that during the two biggest waves of emigration from Czechoslovakia (1948–1953 and 1968–1972) more than 170,000 people left the country (Vaculík 2002, pp. 28–34, cited in Baršová & Barša 2005, p. 211).

These include race, religion, nationality, membership of a particular social group and political opinion.

Moreover, a group of almost 5,000 refugees from the former Yugoslavia, mostly from Bosnia & Hercegovina, were granted temporary protection in 1992 and 1993 and aroused a wave of political and public support (Parliament of the Czech Republic 1996).

Author's interview with Marcela Skalková, 11 January 2007, Prague.

Germany declared all states with which it shared borders to be ‘safe third countries' and ‘safe countries of origin’ in an attempt to redistribute its asylum seekers elsewhere, mostly to Poland and the Czech Republic. This strategy was accompanied by an investment in training and equipment for Polish and Czech frontier guards operating along Germany's borders (Schuster 2003, p. 262). Further financial support for strengthening border control came from the PHARE programme financed by the European Commission.

Asylum Act No. 325/1999 Coll., available (in Czech) at: http://www.sagit.cz/pages/sbirkatxt.asp?zdroj=sb99325&cd=76&typ=r, last accessed 13 December 2010.

The transcript of the debate in the Lower House of the Parliament is available (in Czech) at: http://www.psp.cz/eknih/1998ps/stenprot/013schuz/s013411.htm#r1, last accessed 14 September 2008.

The then Minister of Labour and Social Affairs, Vladimír Špidla, who has been identified by some NGO informants as supporting the provision of the right to work, became the EU Commissioner for Employment, Social Affairs and Equal Opportunities in 2004 (interview with a lawyer from Poradna pro uprchlíky (Counselling Centre for Refugees), 16 January 2007, Prague).

Alien Act No. 326/1999 Coll., available (in Czech) at: http://www.sagit.cz/pages/sbirkatxt.asp?zdroj=sb99326&cd=76&typ=r, last accessed 13 December 2010.

There were three main measures: first, the previous practice of switching from a temporary/tourist status into a long-term stay on Czech territory was abolished. From this point on migrants who came as tourists but found themselves a job and wanted to stay for longer had to apply for a long-term visa at a Czech consulate outside the country. Given the visa requirements of neighbouring countries and the fact that some foreigners no longer had valid passports, this proved impossible and led to their illegalised status. Importantly, this change also impacted on rejected asylum seekers who could no longer legalise their status through employment related residence without having to leave the country. Second, the financial costs of prolonging a residence permit increased significantly. Migrants had to demonstrate that they had large sums of money at their disposal and a proof of payment of health insurance. Unable to borrow these sums of money, many people found it impossible to sustain their legal residence. It also led to increased corruption and illicit practices that were generated by demands for short-term loans. Third, the Alien Act was published on 23 December 1999 and came into force on 1 January 2000, thus giving one week over the Christmas holiday period to both immigrants and relevant institutions to adapt to a vast array of changes. This led to profound confusion on both sides and consequently many foreigners missed various administrative deadlines and lost their legal residence (interview with a lawyer from Poradna pro uprchlíky (Counselling Centre for Refugees), 16 January 2007, Prague).

The restrictive and highly bureaucratised character of the new Alien Act was criticised by many NGOs (Burdová Hradečná 2005; Hronková et al. 2002), legal experts (Čižinský 2007; Uhl 2005) and in the 2000 Report on the State of Human Rights in the Czech Republic (Government Council for Human Rights 2001).

On the other hand, it should be noted that despite its overall restrictive character this law also enabled, for the first time, foreigners who did not have family relations to Czech citizens to obtain permanent residence in the country and thus also a future access to Czech citizenship (Baršová & Barša 2005, p. 224).

Interview with a lawyer from Poradna pro uprchlíky (Counselling Centre for Refugees), 16 January 2007, Prague.

After Ukrainians the most numerous were nationals of Moldova and Romania; the three groups topped the ranks of asylum seekers in 2001 and represented 48% of all applications that year (DAMP 2010).

See also Drbohlav and Janská (2009).

It was estimated that in 2002 the median length of the asylum procedure was approximately two-and-a-half years (DAMP 2003).

The most significant falls were recorded among nationals of Romania, Ukraine and Moldova, but significantly fewer asylum seekers from Armenia, India and Afghanistan applied in 2002.

Interviews with representatives of Odbor azylové a migrační politiky (Department of Asylum and Migration Policy), 19 April 2006, 25 April 2006 and 10 May 2006, Prague.

Interview with Milena Valešková, 10 May 2006, Prague; interview with Lucie Stárková, 24 April 2006, Prague.

Interview with Milena Valešková, 10 May 2006, Prague.

Interview with a lawyer from Poradna pro uprchlíky (Counselling Centre for Refugees), 16 January 2007, Prague; interview with a social worker from Berkat (Berkat), 27 April 2006, Prague.

Interview with a social worker from Berkat (Berkat), 27 April 2006, Prague.

Interview with a lawyer from Poradna pro uprchlíky (Counselling Centre for Refugees), 16 January 2007, Prague.

Amendment No. 165/2006 Coll. of the Asylum Act, available (in Czech) at: http://www.sagit.cz/pages/sbirkatxt.asp?zdroj=sb06165&cd=76&typ=r, last accessed 15 December 2010; Amendment No. 379/2007 Coll. of the Asylum and the Alien Acts, available (in Czech) at: http://www.sagit.cz/pages/sbirkatxt.asp?cd=76&typ=r&zdroj=sb07379, last accessed 15 December 2010.

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal L 304, 30/09/2004 p. 0012–0023, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTML, last accessed 15 December 2010).

Given that the Czech Republic is surrounded only by other EU countries, landing by plane becomes an increasingly important means to apply for asylum. If asylum seekers enter the country by land, they risk being transferred back to the country they crossed which can be found responsible for their asylum claim based on the Dublin II Regulation (Council Regulation (EC) No 343/2003 of 18 February 2003). This established the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national.

Resettlement has long been promoted by the UNHCR as one of the ‘durable solutions' to refugee situations (UNHCR 2004, p. 1). Since 2003 it has gained prominence also at the level of the EU. Also,the new member states were asked to join in and start organising their own resettlement programmes.