Russia Angered by UK Asylum Grant

by Jason Dzubow

Recently, I wrote about people from friendly countries receiving asylum in the United States. There are few such cases, and they generally seem to be aberrations.  For these reasons, the source countries are not particularly concerned that we are granting asylum to their nationals.  That is not always the case, however. 

Russia called. They want their Baryshnikov back.
Russia called. They want their Baryshnikov back.

Earlier this month, the United Kingdom granted asylum to Andrey Borodin, a 45-year-old Russian banking tycoon, who owns Britain’s most expensive private house (it’s quite nice, as you can see here). Russian authorities accuse Mr. Borodin of bank fraud.  But Mr. Borodin claims that the charges were trumped up after he accused a key ally of President Vladimir Putin of corruption. The case became public after Mr. Borodin and his lawyer spoke to the press about receiving refuge in the UK (Britain, like the U.S., keeps such claims confidential).

Moscow was not pleased by the Brit’s offer of asylum:

The Russian premier’s press secretary Natalya Timakova said that the accusations against Mr. Borodin—who fled to London in April 2011—are of “pure criminal character” involving the Bank of Moscow, which he formerly owned. “There [is] now a practice of seeking political asylum, especially in England, whereby it doesn’t matter what the seeker has done,” she said. “What matters is how loudly he shouts about political persecution—and this will become a guarantee that the asylum will be granted.” Ms. Timakova accused Britain of ignoring that Interpol “is after him.” Moscow also insists that it would continue to demand Mr. Borodin’s extradition from Britain.

Mr. Borodin counters (probably correctly) that, “Any political asylum seeker must submit the application together with… proof showing the political character of the persecution in his native country.” “My lawyers submitted all necessary proof,” added Mr. Borodin. 

This case reminds me of one I worked on as a wee law clerk at the Arlington Immigration Court. Alexander Konanykhin was a Russian businessman in the roaring 90’s who made hundreds of millions of dollars. The Russian government eventually seized most of his assets and forced him to flee for his life. He made his way to the United States, but the Russians wanted him back and INS tried to deport him. After an epic trial in 1999, he received asylum. The asylum grant was overturned, but later (in 2007) re-instated, and Mr. Konanykhin is now a successful businessman in the United States. Although Mr. Konanykhin always seemed a bit shady to me, it was quite clear that the Russian government was up to no good. Mr. Konanykhin called the government a “Mafiocracy.” 

Between the UK and Russia, I will choose the UK, and–Gerard Depardieu notwithstanding–my bet is that there was ample evidence that Mr. Borodin faced persecution on account of his political activities. He would certainly not be the first Putin opponent to end up in jail (Mikhail Khodorkovsky) or dead (Anna Politkovskaya).

Russia can complain about Britain (or the U.S.) granting asylum to its nationals. But so long as those countries follow international human rights law, and so long as the Russian government continues to persecute its opponents, Russians will be able to obtain asylum in the West. To (badly) paraphrase The Bard: The fault, dear Putin, lies not in the asylum process, but in yourself.

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Paralympic Athletes Seek Asylum

by Jason Dzubow

The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home. 

Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom.  Ms. Kimbata seems to be the more well-known of the two.  She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old.  “I thought my life was over,” she said.  “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not?  Even if I accept this new life I do not have legs.'”  After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross. 

Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

Ms. Kimbata is now a wheelchair racer.  She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair.  She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.

In the United Kingdom, she decided to seek asylum.  Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila.  While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country.  For these reasons, she likely has a good chance for success in her asylum claim.

It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK.  As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.

Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land.  It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support.  She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.

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New Handbook on Best Asylum Practices in the US and UK

by Jason Dzubow

A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.

In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged–an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.

The U.S. and Britain agree: We don't like the asylum system or the French.

The report found many similarities between the U.S. and Great Britain, which led to the conclusion that “there are merits to dialogue and exchange… across these distinct country contexts.”  Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.

The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain.  The report also recommends sharing ideas and policy objectives between organizations in different countries.

One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries.  Despite the relatively small amount of international cooperation between asylum support groups, survey respondents “felt that there was much potential for co-ordinated international approaches to the issues they face,” particularly issues that could draw on international experience, like alternatives to detention.  While this is true in theory, I am not exactly sure how it would work in practice.

For me–and I think for most immigration lawyers and advocates–the local connections are the most important.  I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments.  While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients’ claims, I can find this information on the internet without much trouble.  I certainly like the idea of connecting with asylum advocates in other countries.  It’s just that with limited time, it is difficult to establish and maintain such connections. 

In the report, the authors indicate that they are attempting to start a conversation.  I hope that this proves to be true.  Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue.  Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.

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Female Asylum Seekers Need Not Apply

by Jason Dzubow

In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.”  Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.

One way to avoid the problem of gender discrimination when seeking asylum.

The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.”  Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”

The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.”  As a result, asylum seekers often do not know that certain facts are relevant to their claim.  Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.

The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”

It seems to me that the basic problem is that international law is not designed with the problems of women in mind.  As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape.  These types of harm are not covered by the Refugee Convention.  Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.

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UK Scraps DNA Testing for Asylum Seekers

by Jason Dzubow

A short-lived attempt by Great Britain to determine the nationality of asylum seekers was unceremoniously dumped after it became clear that the testing was of no scientific value. 

In 2009, the Brits started a (supposedly) voluntary program to test the DNA of asylum seekers from certain African countries.  The idea was to reduce fraudulent applications where the asylum seeker claimed to be from a country other than his own (for example, a Kenyan might claim to be from Somalia in order to increase the likelihood that he would receive asylum).  From the beginning, scientists such as University of Leicester’s Alec Jeffreys expressed serious doubts about whether DNA could really determine a person’s country of origin.  Said Mr. Jeffreys:

The [British] Borders Agency is clearly making huge and unwarranted assumptions about population structure in Africa; the extensive research needed to determine population structure and the ability or otherwise of DNA to pinpoint ethnic origin in this region simply has not been done. Even if it did work (which I doubt), assigning a person to a population does not establish nationality – people move! The whole proposal is naive and scientifically flawed.

Now it seems the government has ended the program and even shelved its plans to complete an internal review of the program’s efficacy. 

A second aspect of the program–isotope analysis–has also been canned.  Under this program, the government would analyze hair and nail samples to determine what chemical isotopes they contained.  The government could then (supposedly) determine where the person had recently been.  So for example, if a Somali woman had been living in Italy for the last five years, and then traveled to England to claim asylum, the government could use isotope analysis to show that the woman had not recently been to Somalia.  It is unclear how accurate this analysis is, or how many asylum seekers lie about their country of origin. 

While isotope analysis might provide limited assistance in this regard, it seems to me an easier and cheaper approach is to determine whether the person is fluent in a language from the claimed country of origin.  Of course, like isotopes and DNA, language fluency does not necessarily conform to national borders, but it is probably about as reliable–and much less expensive.

So what, then, is the lesson for us on this side of the Atlantic?  I have not heard about proposals here to use DNA testing or isotope analysis.  Given the lack of success in Great Britain, I imagine that we will not be adopting these methods anytime soon.

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Asylum for Nazis?

by Jason Dzubow

The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway.  Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country’s law on gun ownership and having possible links to organized crime.  Mr. Datsik’s asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.

In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years.  In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing “race-hate” by the Leeds Crown Court in England.  After receiving bail, the two men fled the UK for Los Angeles.  On arrival at LAX, immigration officials took the two men–now dubbed the “heretical two”— into custody.  The men filed for political asylum in the United States. 

The Heretical Two

The heretical two believe that their government is unjustly curtailing their right to freedom of speech.  Indeed, many European governments—in particular Germany—have made neo-Nazi activities and Holocaust denial illegal.

Claims for asylum by European neo-Nazis raise some interesting questions.  For one, can a person receive asylum in the United States for hate speech that is illegal in his home country?  Such speech would be legal in the United States, but can be punished by jail time in Europe.  Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted “on account of” political opinion.  Whether or not the government action against the individual rises to the level of “persecution” might be a more difficult case to make.  But recently, an Immigration Judge granted asylum to some German home schoolers who faced “persecution” because they refused to send their children to public school (the DHS appeal of this decision is currently pending).  If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well. 

Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum.  Our asylum laws, to some extent, reflect our values.  We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary—even crucial—by the Chinese government.  Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant.  Do we think that people arrested for political statements should be granted asylum?  Does the imprisonment of such people rise to the level of persecution? 

If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum.  Whether they qualify as a matter of discretion is another matter.

As for the heretical two, their applications for asylum were denied and they declined to appeal.  After removal to England, they were each convicted of crimes related to racial hatred.  Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months. 

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