Paper details

Paper authors	Lina Jasmontaite
In panel on	Connected Refugees: Opportunities and Challenges of Communication Technologies for Refugees
Paper presenter(s) will be presenting	In-Person / Online

Abstract

This contribution includes a reflection on the limitations to fundamental rights to data protection principles and privacy in context of applications for political asylum. After describing the applicable regulatory framework, the contribution delves into challenges that refugees face when applying for political asylum. Refugees increasingly rely on mobile devices and online platforms to navigate themselves to safe environments. Consequently, throughout their journey to safety they leave digital traces. The contribution in particular questions the proportionality of measures taken in order to establish an individual’s identity or to confirm a narrative presented to the immigration authority. Can if yes under what conditions migration authorities request to provide access to personal devices and social media in order to speed up the process. To what extent such policy practices fall within the scope of EU data protection framework, as revised by the General Data Protection Regulation?

The 2015 migration crisis has challenged European society, its values and hospitality. Welcoming around one million of refugees and migrants – triple the amount that arrived in the European Union (EU) a year before – proved to be difficult in terms of an economic, logistic, social and political implications. The migration crisis is still ongoing and many political nuances as well as tension concerning reallocation of refugees, their integration and economic support, remain unresolved. This contribution does not intend to offer a solution to any of these issues. Instead of focusing on policy challenges related to the movement and management of refugees in EU, the chapter paper reflects on the issues concerning applications of political asylum seekers.
In the EU, the legal framework governing the procedure for applications of political asylum seekers at its essence is based on the Geneva Convention relating to the Status of Refugees. The Geneva Convention was adopted in the aftermath of the atrocities of the Second World War in 1951. Its main principles, such as remain valid today but it has been argued that the rationale of the Convention needs to be revised because of the following two reasons explained by Bohmer and Shuman in their book titled ‘Political Asylum Deceptions: The Culture of Suspicion’. Firstly, the accepting country is not necessarily the ideological opponent welcoming refugees because of political reasons (as it was the case after the Second World War) and secondly, asylum seekers are required to prove not only that they have fled due to the existence of general prosecution but because they are subject to such prosecution because of some reasons, which may include race, nationality or religion.
EU legal framework for asylum application seekers is rather complex and it is based on five tools, namely the Asylum Procedures Directive, the Reception Conditions Directive and the Qualification Directive, the Dublin Regulation and the EURODAC Regulation. The use of directives, as it is going to be further explained in section 2, implies a fragmented nature of migration regulation. EU legislative framework should help accommodating claims of asylum seekers, including the ones that fled as a result of the Syrian conflict. But in practice this framework, even though recently revised, raises concerns over refugees’ rights to privacy and data protection.
In response to the 2015 migration crisis and an overwhelming number of political asylum applications, some of EU Member States voiced proposals to adopt laws requiring asylum seekers to provide access to mobile devices owned to authorities handling asylum applications. In 2016 the Guardian reported that officials in several EU Member States, including Denmark, Norway, Sweden and the Netherlands, practice examining mobile phones in order to establish identities of refugees in cases where they have no identification documents. On the one hand, it can be argued that indeed by accessing to applicants mobile devices and social media accounts, officials can be in a better position to validate and check background of asylum seekers. It may also speed up the process. Nonetheless, the question that should be considered in this particular context is whether such policy and access to devices meets the principle of proportionality, which is at the core of EU data protection regime.
The proportionality principle requires considering whether a particular action or measure that entails processing of personal data is appropriate to its pursued objective. In case of application of asylum seekers, the following questions could be asked: Is access to a mobile device appropriate in order to establish identity of an applicant? Is access to a social media account of an asylum seeker appropriate way to establish facts of his or her story? Is it appropriate to rely on the information hosted on a device as the primary form of evidence supporting the application? How could a narrative presented by an asylum seeker without identification documents be confirmed in case the digital record is absent? Can the absence of digital evidence be considered to be suspicious?

Back