A draft of a bill from the Ministry of Justice proposing a number of changes to the Law On Foreigners expands police powers, evokes compulsory medical procedures, and gives veto rights to the chair and vice chair of the Immigration Appeals Board, amongst other stipulations. A lawyer the Grapevine spoke with believes many of these provisions could contradict human rights laws.
The bill draft was made public on January 28th, with a deadline of February 4th for anyone to offer feedback and criticism of the bill.
“They’ve given a very short period for comments to be submitted on the bill,” attorney Claudia Ashanie Wilson with Claudia & Partners Legal Services told the Grapevine. “There are many other bills that have longer deadlines for comments. This is not very common, based on the ones I’ve observed at least. So I wonder what is the hurry in this case.” [UPDATE: The deadline was extended today to February 11th.]
Compulsory medical procedures
There are many changes made to the existing Law on Foreigners that focus specifically on those applying for international protection in Iceland. One of the more striking parts of this bill is Article 19, which would give immigration authorities the power to order an applicant to submit to a series of physical examinations, including urine and blood samples and “other biological samples”, prior to deportation. Failure to comply to these demands will result in the applicant’s treatment subject to the Law on Criminal Procedures.
“The European Court on Human Rights has reached many decisions with respect to forced medical treatment or compulsory medical procedures, where they’ve concluded that this violates Article 8 of the [European] Convention [on Human Rights],” Claudia points out. “This proposed changed in the immigration law has to be considered in light of that fact. In my opinion, this could be considered disproportionate to the objective that the government seeks to reach in carrying out these kinds of invasive procedures. This is cause for concern.”
Veto power to the board chair
Other changes would also remove the right of an applicant to appeal their case from abroad. In addition, the bill would give the chair and the vice chair of the Immigration Appeals Board absolute veto power over “repeat asylum appeals”, a new and narrowly defined term, brought before the board.
Furthermore, Article 7 states that an appeal application will be terminated if not only an applicant, but also individuals connected to an applicant’s case, engage in “uncooperative behaviour” that cause delays in the processing of the case. Claudia believes these changes are being made in order to close a right that applicants already have.
“What’s being challenged in court right now is that there’s no legal obligation to force applicants of international protection to take a COVID test to ensure deportation,” she told the Grapevine. “The government considers this to be uncooperative behavior. By adding this language in the new bill, in addition to provisions on compulsory medical procedures, the government is making sure that’s covered. The language is intentionally broad, designed to cover every likely scenario and obviously subject to the authorities’ discretion.”
Sending someone into imminent danger
These provisions, amongst others, can terminate an applicant’s case, even if the case has not been materially examined. Claudia believes this contradicts one of the most fundamental rights enshrined in refugee law.
“Immigration authorities have a duty to not send someone to a country where their life, security and liberty would be in danger,” she says. “You cannot make that assessment unless you examine the case on its merits. Classifying applications that have been withdrawn and resubmitted as a ‘repeat application’ creates a situation that could violate the principle of non-refoulement; that is, that you cannot send someone to a country where they face imminent danger. This is one of the fundamental principles of refugee law, and it’s something I fear the Icelandic government is ignoring with this bill.”
Claudia sees these changes as deliberately open-ended, saying, “These provisions are clearly to the detriment of individuals seeking international protection in Iceland. It is in part designed as a deterrent for specific nationalities as well as to create exclusion for a wider group of applicants. This version of the bill, which goes even further than the previous failed versions, is in my view, to emphasise this intention.”
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