On Thursday 19 August, a meeting was held in the presence of Luxembourg ombudsperson Claudia Monti, outgoing president of the Luxembourg Bar Association François Kremer and ten lawyers specialising in international protection, following the Taliban takeover in Afghanistan a few days earlier. “The initiative comes from an exchange I had with Claudia Monti at the beginning of the week, where we thought of bringing together several members of the bar to initiate a discussion on the dramatic situation in which Afghanistan has been sinking for the last few days,” explains Franck Greff, lawyer and president of the immigration and international protection commission of the Luxembourg Bar.
The aim, says Greff, is to “pool our forces in order to have the most uniform discourse possible with regard to both the Directorate of Immigration and the administrative courts. In this context, the commission I chair is working on the subject so that a document will soon be issued by the bar, intended for all our colleagues.” A basic text is already being drafted on the current situation in Afghanistan. It will compile a maximum of relevant information to be shared in order to facilitate the work of lawyers who defend the cases of Afghan applicants for international protection.
“What does the ministry intend to do for these people?”
Greff, who specialises in international protection and immigration, has himself been contacted by a dozen of his clients since the beginning of the week in view of the deterioration of the situation in Afghanistan, and in Kabul in particular. “Some of them have, for example, had their applications for international protection refused by the Directorate of Immigration and have lodged an appeal with the administrative courts. They are wondering what initiatives we will be able to take.”
The ambition is thus, among other things, to re-evaluate all the files in the light of the current situation in Afghanistan. “This is the great challenge that’s before us now,” continues Greff. “The lawyers hope that the actions they will be able to carry out will enable favourable solutions for all Afghans who are currently on national territory, both those who are in proceedings before the Directorate of Immigration and those who are in litigation before the administrative courts, without forgetting the people who have been rejected. We are going to work for everyone.”
This appeal is also being made by many of the country’s non-profit organisations active in defending the rights of asylum seekers and refugees. “Foreign Minister Jean Asselborn (LSAP) had announced that he would not send the Afghans back to their country, but the question is how to settle their situation administratively,” says Marion Dubois, project manager of Passerell, one such NGO. “We would like to ask the ministry to re-evaluate the files in light of the recent situation. Until now, the administration justified refusals of international protection on the grounds that the Taliban were a private group and that the fears shown towards them were purely hypothetical and did not justify the granting of protection. But the situation has totally changed in the last few days. This is why we are asking for a re-evaluation of the current files. We also wonder about the care of the families of people who are already on our territory and who are still in Afghanistan. What does the ministry intend to do for these people?”
61% refusal rate for Afghan nationals
The organisations Acat, Afghan-Lux Community Outreach, Asti, CLAE, Open Home, Passerell, Time for Equality, Reech eng Hand and RYSE re-launched the “Afghanistan is not safe” platform back in May. In a press release, they expressed their alarm at the security situation, which was “deteriorating in the context of the departure of US troops from Afghanistan. The question is no longer whether the Taliban will take power, but how they will take it. Today, there is a violent coexistence between the Taliban and the regular army in Afghanistan. This prolongs the climate of insecurity for civilians, including members of the Hazara minority, and directly threatens access to education, women’s rights and the hope for a lasting peace.”
Dubois adds: “The administrative court of Luxembourg recognised, in January 2018, ‘indiscriminate violence in view of the situation of internal armed conflict prevailing in Afghanistan.’ At the end of 2019, while Afghanistan showed no sustainable security improvement, the minister in charge of asylum started to issue numerous refusals to Afghan asylum seekers. So much so that in 2020, 61% of international protection decisions were refusals, compared to 7% in 2019 and 0% in 2018. But Luxembourg is not an exception; many European countries such as Germany and France are also increasingly refusing asylum to Afghans.”
A common EU response is required
While the administrative court said in 2018 that “the mere fact of being an Afghan national exposes the person to inhuman and degrading treatment, regardless of where they are on Afghan territory”, in 2021 the message is different. “It says that this is no longer the case,” Dubois points out, “and that it depends on the province of origin and whether or not it is controlled by the Taliban. For Kabul, for example, the court said that return was possible and that there was no risk to the lives of the nationals--but for the province of Ghazni, for example, the court’s decision at the beginning of July said that the Taliban’s control of this area justified granting subsidiary protection. There is no definitive list of which province allows which ruling, but now that the Taliban have conquered the whole territory, these decisions are obsolete anyway.”
And if the migratory consequence of the Taliban’s arrival to power seems inevitable, the NGO does not advocate for the systematic granting of international protection. “It must remain an individual examination of the application, meaning that each person who arrives on the territory must give the reasons why they left their country. There are also exclusion clauses in the European directives and in the Geneva Convention that apply in certain cases.”
“For example,” Dubois continues, “if an Afghan has links with the Taliban, then it is normal that they should not be granted international protection, since they may be dangerous and have potentially committed war crimes. When we are talking about a citizen who has no links with the Taliban and who has received threats, for example, then the granting of protection seems justified. Angela Merkel and Emmanuel Macron have advocated a moderate and controlled reception, so unfortunately I don’t think that we will reach a situation where every Afghan national will benefit from protection. But what is certain is that we need a coordinated and coherent response from the European Union, because we are currently seeing huge differences in the granting of protection.”
This article was originally published in Paperjam. It has been translated and edited for Delano.