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‘Riddled with injustice’ Activist Almut Rochowanski on Russian draft evaders and the EU asylum system

Source: Meduza

Almut Rochowanski is a human rights activist who has been working with asylum seekers from former Soviet countries for almost two decades. More recently, she’s been a vocal critic of the idea of an EU-wide visa ban for Russians. Meduza spoke to Rochowanski about the nature of Europe’s asylum system, what challenges Russian draft evaders seeking asylum in the EU can expect, and the truth behind widespread misconceptions about asylum law.  

As the war in Ukraine has wrought unprecedented havoc throughout the region, displacing millions of Ukrainians and hundreds of thousands of Russians, activist Almut Rochowanski has taken note of a number of mistaken assumptions about migration law that continue to animate public discussion of how European countries ought to treat Russian nationals. A major one of these assumptions is the idea that there’s a theoretical “perfect” asylum seeker who has a good chance of obtaining asylum by nature of their identity and circumstances.

On the contrary, “asylum systems are designed to make it difficult to get asylum,” Rochowanski told Meduza. “Among European migration services and governments, there is a prejudice that many people come to Europe just for the good life, not because they are [persecuted]. And even if people are facing genuine persecution, many European countries are not interested in protecting them and would prefer if they stayed away. So in the asylum process, there is a culture of distrust. Applicants are not believed.”

As a result, she said, decisions not to grant a person asylum are often “faulty” or “illegal,” resulting in a high number of appeals. “Being a ‘perfect’ asylum-seeker doesn’t help,” said Rochowanski.

It’s also not the case that asylum must be sought on the basis of political persecution. People can claim asylum for reasons of persecution based on race, religion, nationality, political views, or “belonging to a social group,” according to Rochowanski. “The last one is really key,” she said, “because that opens the path to protection for queer people, women facing gender-based violence, etc. Fleeing ‘political’ persecution doesn’t make you a more classic, deserving refugee than any of the other forms of persecution.”

Another misconception, Rochowanski told Meduza, is that asylum seekers are tasked with “proving” that they faced persecution; in fact, they only need to make their story “credible.”

“[This] is because your persecutors don’t usually give you a [certificate] proving that they persecute you. In practice, this means telling a consistent, credible story, parts of which can be corroborated with evidence about themselves or their country of origin,” Rochowanski said. “Of course, if an applicant can ‘prove’ prosecution, for example with evidence of a court case against him/her, that certainly helps.”

Given those realities, Rochowanski said, the kind of person most likely to receive asylum:

On October 6, Meduza published a guide (not intended as a substitute for legal advice) to seeking asylum for Russians fleeing mobilization. Rochowanski pointed out several of the guide’s shortcomings, chief among them its failure to make clear that nobody should apply for asylum alone.

“Asylum law is really complicated, in part because governments constantly make it more difficult on purpose (see below). No one should apply for asylum without the help of a lawyer. EU member states (plus Norway, Switzerland, the UK, etc.) are obliged to provide each asylum-seeker free legal aid, but this can look quite differently in each country,” she said. “[...] Lawyers help fill out the paper forms, write up the arguments for written applications, coach asylum-seekers for interviews with asylum officers, make lists of the evidence/documents that should be provided and provide other guidance, etc. They answer questions and solve problems.”

Rochowanski also took issue with a specific line in Meduza’s guide for Russian asylum seekers: “The key objective when applying for asylum is to prove the existence of a threat from the state.”

“[This line is] frightening," said Rochowanski. "Or maybe deterring. It is also not correct. People who fear persecution or threats from any actor can and do get asylum. It doesn’t have to be the government. [...] For example, women who face all kinds of gender-based violence (forced marriage, female genital mutilation, domestic violence) from their relatives or community, or queer people who face threats from their families or neighbors can and do get asylum. The threat could also be from organized crime groups, religious cults etc. Asylum-seekers have to show that their government is unable or unwilling to protect them against such threats, of course, but that is often the case."

Unfortunately, as Rochowanski explains it, people seeking asylum in the EU for any reason have the deck stacked against them — and that’s no accident. 

“[...] Western governments have for decades made asylum procedures stricter, more difficult, and less fair. In part because they think this will ‘deter’ new migrants, in part because they feel pressure from right-wing politicians (and by now even the mainstream). Immigration practice is riddled with injustice, stress, delays, mistakes, cruelty. Among others, they made it possible to be deported even while the appeals process is not over.”

In some of the cases where this has happened, she said, refugees have been deported for committing crimes — low-hanging fruit for European politicians seeking political wins. In other cases, though, asylum seekers, including children, have been deported to “obviously high-risk” environments with no evidence or even allegations that they broke any laws. “In several cases, Chechen men deported back to Russia either disappeared or were tortured,” Rochowanski told Meduza.

On the other hand, she said, not all refugees who are denied asylum are deported; there are other ways to seek humanitarian protection in Europe.

“If you are denied asylum and an appeal is also denied, or they try to deport you during the appeals process, you can claim [Article] 3 of the European Convention on Human Rights – the prohibition of torture. If you can demonstrate that you would face torture, cruel or inhuman punishment when returned to Russia, then you must not be deported. This sounds confusing, because it sounds almost the same as facing persecution, but there are some technical differences,” Rochowanski said.

In addition, she said, a person at urgent risk of deportation can apply to the European Court of Human Rights under Article 39. “The court will then make a speedy ruling ordering the country to halt the deportation, at least temporarily,” she said.

In 2011, the European Parliament issued a directive stating that military conscripts can receive asylum if “performing military service would include [war] crimes.” As Rochowanski pointed out, this simply reaffirmed the norm of protecting draft evaders as refugees, which is outlined in the UN Refugee Agency’s Handbook as a clarification of the 1951 Refugee Convention. But despite the fact that EU countries have recognized and condemned war crimes committed by the Russian army in Ukraine, Rochowanski is skeptical that many Russians fleeing conscription will be granted asylum in practice.

“Legally, it seems pretty clear-cut. There is very well-documented evidence that war crimes have taken place in this war. They have also taken place not just in isolated, exceptional instances, but in many aspects of this war,” she said. “But remember, European countries don’t like to give asylum, so they might make it hard on applicants. They might ask applicants something like, ‘okay, so war crimes have been committed, but how can you be sure that you or your unit would be forced to commit them? How can you be certain that you couldn’t just refuse to commit war crimes?’”

She also noted that actual asylum application processes can vary greatly from country to country.

“It is entirely possible that one state gives asylum to all Russian draft-avoiders with only basic checks in each case, while another state makes every one of them prove that he could not safely decline to commit war crimes, while a third country just denies asylum to all of them (and maybe gives them some secondary protection status, so they won’t be deported). At that level, the EU cannot interfere (not that they want to),” she told Meduza.

On the whole, Rochowanski was reluctant to make broad statements about Russian draft evaders’ prospects for obtaining asylum in the EU. Instead, she repeatedly emphasized the importance of finding a good lawyer. “Nobody should go through the asylum process on their own, without a specialized lawyer,” she said. Later, she specified: “Good asylum lawyers break each case into its components, tell the story of their client in an authentic, individual manner, and match each component of the story to legal norms or precedents, in the most relevant order.”