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Amendments made by Governmental Ordinance (OG) 1/2014 to Law no. 122/2006 on asylum in Romania and to OG 44/2004 on the social integration of aliens
Andra Bucur - Legal Researcher
15 April 2014
In addition to non-essential amendments related to terminology, such as defining the ”form of protection” as temporary protection and international protection or extending the term of the permit to stay, there are also a number of more consistent amendments. We will thus refer to these latter amendments, one by one:
1. The asylum seeker is the "foreign citizen or the stateless person who expressed his or her will to obtain international protection in Romania, as long as the asylum procedure related to their application has not been completed yet". The previous regulation mentioned explicitly that the completion of the asylum procedure meant an irrevocable court order. It is true that, in the case of accepting the application at the administrative stage, the procedure is completed at that moment. A potential problem consists of the fact that the new regulation suggests that the asylum procedure may also be finalised at the time when the asylum application is rejected at the administrative stage, regardless whether the right to recourse was exerted or not. Therefore, to avoid situations when asylum seekers are sent back before they exert their right to recourse or while the recourse is under trial in court, it would have been preferable to provide in detail or to define what the lawmaker considered when using the word "finalised".
2. The minor single children of the husband or wife of the beneficiary of the statute of refugee or subsidiary protection were also included in the family members’ category.
3. The category of vulnerable persons or persons with special needs is defined – persons who are assessed individually and who should benefit from specialised support. This category includes: "minors, unaccompanied minors, persons with disabilities, aged persons, pregnant women, single parents accompanied by their minor children, victims of trafficking, persons with mental disorders, persons who were subject to torture, rape or other serious forms of psychological, psychic or sexual violence, or persons in other similar special situations". Specialised support is offered by competent authorities, which encourages inter-institutional collaboration for providing adequate public services.
4. A positive thing is that the beneficiary of a form of protection who committed a serious crime, for which the special maximum term is more than 5 years, by fault or even by oblique intent, can no longer be expelled from the country’s territory, considering that legal provisions explicitly require that the crime be committed "intentionally".
5. From now on the investigation of the circumstances in fact and law which may lead to the settlement of the case is no longer left to the discretion of competent authorities, even if the said circumstances were not invoked in the asylum application or in the complaint, and an obligation for investigation is established. This encourages the pro-active role of responsible authorities.
6. As regards the assessment of the asylum seeker’s credibility, one of the conditions was that the latter’s statements should not be contradicted by information from his/her country of origin; this phrase was replaced by "general and specific information known". This new provision is quite interpretable and does not reveal the lawmaker’s intention - information known by whom?
7. From now on the evaluation commission will assess Romanian language skills not only of the beneficiaries of a form of protection, but also of minor asylum seekers, to enable their registration in the appropriate school grade. Minor asylum seekers benefited from access to the education system before as well, but according to the law they were not bound to go through this assessment stage.
8. As far as rights are concerned, the beneficiaries of a form of protection benefit from access to accommodation in the same conditions as Romanian citizens and from equal treatment for the recognition of studies, diplomas, certificates, skill testimonials and professional qualifications. However, what happens when the beneficiaries of a form of protection do not hold the respective evidence documents but they have professional skills and qualifications?
9. Minors who benefit from a form of protection enjoy a free preparatory course, lasting for one school year, in view of their registration in the national education system; the course is organised by the Ministry of National Education in collaboration with the General Inspectorate for Immigration. It is however rather unclear to what extent this course is different from the initiation course offered to asylum seekers or why these legal provisions are separate.
10. The compulsory notification of the beneficiary of a form of protection was introduced, in a known language, with respect to his /her rights and obligations in his/her capacity related to the new statute acquired.
11. The new provisions enhance the reasons for exclusion from awarding a form of protection; these include aliens and stateless persons who "having their residence in another state are considered by the competent authorities in that state as beneficiaries of rights and obligations resulting from the citizenship of that state or they benefit from equivalent rights and obligations". On the one hand it should be mentioned that each state, even a totalitarian state, considers that its citizens enjoy rights and obligations resulting from citizenship, therefore one may not really trust third country authorities. In addition the persecution agent may be a non-state one. On the other hand the provision may suggest that the person would have a country of residence where they enjoy protection, in addition to the country of domicile, having thus double citizenship.
12. In addition the rejection of the asylum application is encouraged in the case when the asylum seeker has the possibility to find refuge in another geographical area of the country of origin in order to escape from the scope of the persecution agent.
13. Not only the minor asylum seeker but also the minor beneficiary of a form of protection will have a legal representative appointed by the competent authorities. The staff in charge with cases involving minors shall benefit from specialised training.
14. A potential restriction of asylum seekers’ rights lies in the provision which considers as unfounded the asylum application submitted "with the obvious purpose of obstructing the imminent application of a measure ordered by the competent authorities, to take out of the country, to extradite or to expel, although the person had the possibility to submit such an application prior to such measure being ordered". The law-maker refers here either to asylum applications submitted after the immigrant was considered to be present illegally on the territory, or to asylum seekers who submit an application for access to a new asylum procedure, as a result of new evidence being obtained or of a changed context in the country of origin. Regardless of such situations, this legal provision breaches, from my point of view, the "non-refoulement" principle.
Source: [url=http://www.dreptonline.ro/legislatie/og_1_2014_modificare_lege_122_2006_azilul_in_romania_og_44_2004_integrarea_sociala_strainilor_protectie_drept_sedere_romania.php
]Drept online[/url]
Date: April 15, 2014
1. The asylum seeker is the "foreign citizen or the stateless person who expressed his or her will to obtain international protection in Romania, as long as the asylum procedure related to their application has not been completed yet". The previous regulation mentioned explicitly that the completion of the asylum procedure meant an irrevocable court order. It is true that, in the case of accepting the application at the administrative stage, the procedure is completed at that moment. A potential problem consists of the fact that the new regulation suggests that the asylum procedure may also be finalised at the time when the asylum application is rejected at the administrative stage, regardless whether the right to recourse was exerted or not. Therefore, to avoid situations when asylum seekers are sent back before they exert their right to recourse or while the recourse is under trial in court, it would have been preferable to provide in detail or to define what the lawmaker considered when using the word "finalised".
2. The minor single children of the husband or wife of the beneficiary of the statute of refugee or subsidiary protection were also included in the family members’ category.
3. The category of vulnerable persons or persons with special needs is defined – persons who are assessed individually and who should benefit from specialised support. This category includes: "minors, unaccompanied minors, persons with disabilities, aged persons, pregnant women, single parents accompanied by their minor children, victims of trafficking, persons with mental disorders, persons who were subject to torture, rape or other serious forms of psychological, psychic or sexual violence, or persons in other similar special situations". Specialised support is offered by competent authorities, which encourages inter-institutional collaboration for providing adequate public services.
4. A positive thing is that the beneficiary of a form of protection who committed a serious crime, for which the special maximum term is more than 5 years, by fault or even by oblique intent, can no longer be expelled from the country’s territory, considering that legal provisions explicitly require that the crime be committed "intentionally".
5. From now on the investigation of the circumstances in fact and law which may lead to the settlement of the case is no longer left to the discretion of competent authorities, even if the said circumstances were not invoked in the asylum application or in the complaint, and an obligation for investigation is established. This encourages the pro-active role of responsible authorities.
6. As regards the assessment of the asylum seeker’s credibility, one of the conditions was that the latter’s statements should not be contradicted by information from his/her country of origin; this phrase was replaced by "general and specific information known". This new provision is quite interpretable and does not reveal the lawmaker’s intention - information known by whom?
7. From now on the evaluation commission will assess Romanian language skills not only of the beneficiaries of a form of protection, but also of minor asylum seekers, to enable their registration in the appropriate school grade. Minor asylum seekers benefited from access to the education system before as well, but according to the law they were not bound to go through this assessment stage.
8. As far as rights are concerned, the beneficiaries of a form of protection benefit from access to accommodation in the same conditions as Romanian citizens and from equal treatment for the recognition of studies, diplomas, certificates, skill testimonials and professional qualifications. However, what happens when the beneficiaries of a form of protection do not hold the respective evidence documents but they have professional skills and qualifications?
9. Minors who benefit from a form of protection enjoy a free preparatory course, lasting for one school year, in view of their registration in the national education system; the course is organised by the Ministry of National Education in collaboration with the General Inspectorate for Immigration. It is however rather unclear to what extent this course is different from the initiation course offered to asylum seekers or why these legal provisions are separate.
10. The compulsory notification of the beneficiary of a form of protection was introduced, in a known language, with respect to his /her rights and obligations in his/her capacity related to the new statute acquired.
11. The new provisions enhance the reasons for exclusion from awarding a form of protection; these include aliens and stateless persons who "having their residence in another state are considered by the competent authorities in that state as beneficiaries of rights and obligations resulting from the citizenship of that state or they benefit from equivalent rights and obligations". On the one hand it should be mentioned that each state, even a totalitarian state, considers that its citizens enjoy rights and obligations resulting from citizenship, therefore one may not really trust third country authorities. In addition the persecution agent may be a non-state one. On the other hand the provision may suggest that the person would have a country of residence where they enjoy protection, in addition to the country of domicile, having thus double citizenship.
12. In addition the rejection of the asylum application is encouraged in the case when the asylum seeker has the possibility to find refuge in another geographical area of the country of origin in order to escape from the scope of the persecution agent.
13. Not only the minor asylum seeker but also the minor beneficiary of a form of protection will have a legal representative appointed by the competent authorities. The staff in charge with cases involving minors shall benefit from specialised training.
14. A potential restriction of asylum seekers’ rights lies in the provision which considers as unfounded the asylum application submitted "with the obvious purpose of obstructing the imminent application of a measure ordered by the competent authorities, to take out of the country, to extradite or to expel, although the person had the possibility to submit such an application prior to such measure being ordered". The law-maker refers here either to asylum applications submitted after the immigrant was considered to be present illegally on the territory, or to asylum seekers who submit an application for access to a new asylum procedure, as a result of new evidence being obtained or of a changed context in the country of origin. Regardless of such situations, this legal provision breaches, from my point of view, the "non-refoulement" principle.
Source: [url=http://www.dreptonline.ro/legislatie/og_1_2014_modificare_lege_122_2006_azilul_in_romania_og_44_2004_integrarea_sociala_strainilor_protectie_drept_sedere_romania.php
]Drept online[/url]
Date: April 15, 2014
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