The Serbian Ombudsman similarly incorporates a wide set of roles. It is the National Human Rights Institution (NHRI), the NPM, the national mechanism for monitoring the implementation of the UN Convention on the Rights of Persons with Disabilities, and also monitors the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings. All of the ombudsperson institutions in the broader region have NPM and NHRI mandates. The general position is that most of the work done by these institutions is under the NPM mandate. In Ireland, the Office of the Ombudsman does not have a human rights and equality remit and is not the NPM for Ireland. Furthermore, the legislation establishing the office (the Ombudsman Act 1980) excludes complaints “taken in the administration of the law relating to aliens or naturalisation”. This more limited remit means that some of the work of the office in relation to asylum seekers and refugees is more narrowly focused than some of the other international examples presented at the roundtable. However, participants noted that it is important to look not only at the legal powers of ombudsperson institutions, but also what they do in reality. Similarly, it is important to examine not only the formal accessibility of ombudsperson institutions but also how accessible they are in practice and how able various groups are to access ombudsperson services in reality. There was some discussion of the ability of ombudsperson institutions to push at the edges of their legal mandates. There was consensus that ombudsperson institutions must act within the law and that this is essential to avoiding legal challenges and potential accusations of politicisation. But there was also potential for ombudspersons to take actions and exert influence without necessarily using formal legal powers. There was a distinction here between legality and legalism – ombudspersons must act within the law but need not have an excessive focus on adopting a strictly and narrowly legal approach to their work. In Greece, an example was given in relation to failed asylum seekers, who have very limited legal rights in relation to access to public services. Given the human rights issues facing these individuals, the ombudsperson has been able to incrementally seek to ensure that these individuals are being treated better – they have no access to social security or work, but thanks to the intervention of the Greek Ombudsman, they can access medical treatment.
In the context of the growth of right wing governments in Europe and now in the US, there was discussion of how easy it would be for ombudspersons to act in relation to asylum seeker and refugee issues. This would involve spending significant political capital and could result in retaliation, such as through reductions in funding. In the UK, it was unthinkable that the ombudsperson would criticise law and policy in the immigration space, even where there is widespread evidence of the problems that this causes for those subject to it. In the Netherlands, while the Dutch National Ombudsman is very visible on asylum seeker and refugee issues, the office’s effectiveness depends on government and parliament to take action and respond to the concerns being raised. The hard right government currently in power in the Netherlands is interested in pursuing hard line anti-immigration policies, and the ombudsman’s influence is therefore marginalised. There was some challenge to the notion that ombudsperson institution should not be political. Ombudsperson institutions are inherently political in the sense that they are (often) elected by national parliaments and operate deliberately outside of narrowly drawn legal processes. While ombudsperson institutions should never be partisan, this does not mean that they should not be political. Indeed, avoiding any kind of political controversy could limit the relevance and value of the ombudsperson institution. The intervention of ombudsperson institutions constitutes an “art” rather than a science, finding ways to have issues addressed and seek influence which involve a combination of different strategies, not necessarily making use of statutory powers. Barriers facing asylum seekers and refugees in accessing services A group that is particular vulnerable is asylum seekers whose asylum claims have been rejected but who cannot be returned to their home countries. These individuals are often left destitute and have limited access to public services. Reflecting themes discussed earlier in this report, asylum seekers and refugees are not a homogenous groups, with needs varying significantly depending on where they are coming from, their age, religion, and gender. There is significant diversity even in relation to people coming from the same region (who may speak different languages and have different religious and cultural backgrounds). One of the challenges is ensuring that ombudsperson institutions’ staff are trained to deal with this diversity of perspectives and needs and have the cultural knowledge and competency to work with asylum seekers and refugees. The concept of vulnerability does not only relate to individual characteristics but also to situations people may be in. So even people who would not ordinarily be vulnerable can become so when in a particular situation (e.g. illness) or when dealing with an unfamiliar public service. This perspective is helpful to recall when working with asylum seekers and refugees as it provides a more fine grained way of understanding people’s situations. A key issue relates to fear of repercussion and there is a need to find ways of convincing people that making a complaint will not harm their asylum applications or lead to unfair treatment in the receipt of services.
Final report of the of Ombudspersons and the Protection of Refugees and Asylum Seekers (OPRAS) project | 55
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