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ELENA Weekly Legal Update (EWLU)

25 October 2019
The EWLU will be back on 15 November 2019

Summary


European Court of Human Rights European Union National Developments

European Court of Human Rights


G.B. and Others v Turkey: Multiple violations found in case concerning detention pending expulsion 

On 17 October 2019, the European Court of Human Rights published its ruling on the case of G.B. and Others v Turkey (Application No. 4633/15). 
 
The case concerns the detention pending expulsion of a mother and her three children. The applicants, all Russian nationals, were arrested for attempting to cross the Syrian border after entering Turkey in October 2014. The family were transferred to the Kumkapı Removal Centre and an order for the mother’s deportation was issued. In November 2014, the family sought international protection status. This request and all subsequent appeals were rejected and the family were transferred to the Gaziantep Removal Centre. On 5 February 2015, the Gaziantep Magistrates Court ruled the detention of the applicants was unlawful and the family were released five days later.
 
The applicants complained under Articles 3, 8 and 13 ECHR that the material conditions of detention in the Kumkapı and Gaziantep Centres were unsuitable for their mental and physical health, particularly for the children, and no effective remedy was available to raise these complaints. A complaint was also made regarding the lawfulness of their detention under Article 5 (1) (2) and (4).
 
In ruling, the Court noted that the material conditions of detention exceeded the Article 3 threshold and that the detention of children, even for short periods in such unsuitable conditions is contrary to Article 3 ECHR. The Court highlighted the importance of Article 37 Convention on the Rights of the Child and reiterated that the extreme vulnerability of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over considerations of the child’s status as an irregular immigrant. It also held that complaint procedures available to the applicants were ineffective, amounting to a violation of Article 13 ECHR. The Court therefore held that the detention of all applicants in both the Kumkapı and Gaziantep removal centres was contrary to Article 3 ECHR.
 
Furthermore, the Court noted that the detention order made reference only to the mother and that the family had been arbitrarily detained during the five days after their release was ordered. As a result, the Court held that the detention of the applicants was contrary to Article 5(1). Moreover, the available mechanisms to challenge the family’s detention did not function effectively in these special circumstances, which required particular diligence to ensure a prompt review of lawfulness. The absence of such diligence amounted to a violation of Article 5(4) ECHR.

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New communicated cases against Switzerland, Greece, Hungary, and France

  • Rahman and others v Switzerland (Application No. 15472/19): The first applicant, a Swiss national of Bangladeshi origin, entered Switzerland in 2002 seeking international protection. Shortly after his asylum request was rejected in 2003, he married a Swiss national and was granted a temporary and subsequently a permanent residence permit. After, the couple divorced, the first applicant married the second applicant, a Bangladeshi national, in Bangladesh in February 2010. Their son was born in Bangladesh in January 2012. In August 2015, the applicants made a request for family reunification. The child’s application was approved, while the mother’s application was rejected on the basis that the time limit to apply for family reunification (five years) had passed and there were no important family reasons to justify family reunification. The applicants complain that there has been a violation of Article 8 of the Convention.

     
  • Shanmugaratnam and others v Switzerland (Application No. 30995/19): The case concerns the expulsion of a Sri Lankan family. The applicant father entered Switzerland irregularly in 1991 and subsequently made an asylum application. This application was rejected and he was ordered to leave Switzerland. The expulsion order was later deemed unreasonable and the applicant was granted provisional admission in Switzerland. In July 2000, the first applicant married the second applicant, a Sri Lankan national, who had entered Switzerland in 1997. Prior to their marriage, the second applicant had been issued with an order to leave the country. The applicants had three children between 2004 and 2011. The extension of the family residence permit was denied in 2016 and the expulsion of the family was ordered. The applicants complain that their expulsion is contrary to Article 8 of the Convention.

     
  • Tseradze and Sow v Greece (Application Nos. 1168/17 and 43338/18): The case concerns the detention pending administrative expulsion of the applicants in police stations and detention centres. The applicants complain that their detention is incompatible with Article 3 ECHR and unlawful under Article 5 (1) ECHR.

    Based on an unofficial translation by the EWLU team.

     
  • Hasani v Greece (Application No. 38555/19): The case concerns an Iranian applicant with international protection status who currently resides in Turkey. He claims that he was arrested by Greek authorities and placed in an unspecified detention camp for three days. The applicant complains that he was forced to sleep on the floor, was given no food, had his belongings stolen by police, and was beaten while in detention. He also asserts that he was taken to the Evros River along with 70 other persons and forced to return to Turkey. The applicant complains that the detention conditions were contrary to Article 3 ECHR and that treatment during the push back to Turkey amounted to inhuman and degrading treatment.

    Based on an unofficial translation by the EWLU team.

     
  • Hassan and others v Hungary (Application No.3231/17): The applicants are three Syrian nationals under arrest on charges of crossing the Greek border irregularly between September 2015 and July 2016. One applicant complains that there was no legal basis for his detention, contrary to Article 5(1) ECHR. All three applicants complain that there existed no effective remedy to challenge the lawfulness of their detention under Article 5 (4).

     
  • Rakotobe v France (Application No. 7927/17): The applicant, a Madagascan national, arrived in France in May 2011 on a short stay Schengen visa and granted a temporary residence permit on medical grounds as a sick foreigner from March 2012 until June 2014. Her application for renewal was dismissed on the basis that appropriate treatment was available in Madagascar. All subsequent appeals were rejected on the basis that, inter alia, no evidence of the applicant’s ill health had been provided. She was therefore ordered to leave France. The applicant argues that she is vulnerable due to her age and deteriorating state of health and would be in a position of isolation in Madagascar where she claims to have no social ties. She adds that she wishes to remain with her family in France, including her grandchildren who are French nationals. The applicant complains that her return order is contrary to her right to private family life under Article 8 ECHR.

    Based on an unofficial translation by the EWLU team.
     

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European Union


European Commission: Taking the next steps following the non-provision of food in transit zones* 

On 10 October 2019, the European Commission issued a reasoned opinion to Hungary concerning the failure to provide food for individuals held in transit zones at the Hungarian-Serbian border.
 
The Commission notes that failure to provide food to persons held in transit zones is in direct contradiction to Hungary’s obligations under European law. The persons affected are primarily those who have had applications for international protection rejected and are therefore waiting to be returned to their country of origin. Indeed, the statement adds that compelling persons to stay in the transit zones while they await orders to be returned to their country of origin is effectively equal to detention.
 
The Commission has encouraged the Hungarian authorities to promptly comply with European law, setting a one-month deadline for the State to respond. If this deadline is not met, the Commission may refer the issue to the Court of Justice, where a similar case concerning the detention of asylum seekers in Hungarian transit zones is currently pending. Moreover, the Commission notes that the European Court of Human Rights (ECtHR) has intervened in several cases obliging Hungarian authorities to provide food for those detained and awaits a response from the Hungarian authorities on this matter.
 
*This is an edited version of information originally published in the ECRE Weekly Bulletin on 18 October 2019

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National Developments


United Kingdom: Rejected asylum application referred back to Upper Tribunal in PK (Ukraine) v Secretary of State

On 22 October 2019, the Court of Appeal (Civil Division) published its ruling on a case concerning the rejected asylum application of a Ukrainian national.

The applicant and his wife were arrested in 2014 after arriving in the UK clandestinely in December 2013. Shortly after, the applicant made an application for asylum on the grounds that he evaded draft from the Ukrainian army in 2016 and 2017 due to the army’s association with breaches of International Humanitarian Law (IHL). The applicant therefore submitted that there was a real risk of ill treatment and persecution if he were to return to the Ukraine.

The applicant argued that the First Tier Tribunal (FTT) had erred in its assessment of the applicant’s submission that he did not want to be associated with the IHL breaches of the Ukrainian army and had failed to consider the risk of pre-trial detention. The Upper Tribunal (UP) rejected this appeal after concluding that it was unlikely the applicant would face a penalty or prosecution upon return.

The Court of Appeal noted that both the FTT and UP had erred in considering potential punishment for draft evasion and had failed to engage with background documentation relating to information concerning the alleged breaches of IHL. It added that the UP had contradicted the findings of the FTT by suggesting the applicant would not face prosecution upon return without providing reasoning for this conclusion. As a result, the Court of Appeal ruled that the case had received insufficient analysis and must be reassessed by the UP.

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The Netherlands: Assurances of access to legal aid required in transfers to Greece

On 23 October 2019, the Council of State published its ruling concerning the return of applicants of international protection to Greece.
 
The applicant, a Syrian national, submitted an application for international protection in the Netherlands after arriving from Greece. The Secretary of State rejected this application on the grounds that Greece was responsible for processing the application under the Dublin III Regulation. The applicant submitted that he should not be transferred to Greece due to the serious deficiencies in reception and asylum procedures.
 
Referencing information from various sources, including the 2019 AIDA report, the Council highlighted limited access to legal aid by international protection applicants in appeals procedures and its impact on access to effective remedies. While a lack of access to legal aid does not ordinarily amount to a violation of Article 3 ECHR or Article 4 EU Charter, the circumstances in this particular case were such that meant ill treatment was foreseeable.

The Council held that returns to Greece cannot take place unless legal aid can be guaranteed to asylum applicants, or unless there are individual guarantees that asylum applicants will be appointed legal representation upon return. 
 
The Weekly Legal Update and EDAL would like to thank Sadhia Rafi, the Dutch ELENA coordinator, for informing ECRE about this judgment.

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Switzerland: Execution of removal order deemed unreasonable on grounds of mental health and family rights

On 10 October 2019, the Swiss Federal Administrative Court published its ruling in the case E-6932/2017, concerning the expulsion of a family of international protection applicants.
 
The applicants, a couple from Bosnia and Herzegovina of Roma origin applied for international protection in Switzerland in 1997. The application was rejected and their expulsion was ordered. In July 2015, the applicants returned to Switzerland with their two sons and made another application for international protection, primarily on the basis that the mother applicant suffered from severe PTSD and depression. The applicant argued, inter alia, that expulsion would be detrimental to her mental health as the required psychiatric treatment was not available in her country of origin, and that expulsion would be detrimental to the welfare of her children.
 
Medical evidence showed that the applicant suffered from severe and reoccurring episodes of PTSD, depression, suicidal tendencies, and had been resistant to therapy and other treatment. The symptoms were such that the applicant required consistent support in a safe environment on a long-term basis. Indeed, the Court noted, inter alia, that the applicant would require specialist care and the family may not be able to afford the health insurance premiums. There was therefore a real risk that expulsion would result in the deterioration of the applicant’s mental health.
 
The Court also noted that the applicant’s minor sons had spent their formative years in Switzerland and integrated well into society. Moreover, it highlighted the close relationship between the applicant children and mother, and even acknowledged evidence of emotional parentification. As a result, the Court concluded that the expulsion order was unreasonable and that the family be provisionally admitted to remain in Switzerland.

Based on an unofficial translation by the EWLU team.

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Italy: Malian Citizen granted subsidiary protection due to Internal Ongoing Armed Conflict

The Tribunal of Bologna recently published its judgment granting subsidiary protection to a Malian citizen due to the situation of indiscriminate violence caused by the internal ongoing-armed conflict.
 
The applicant, a Malian citizen from the region of Segou, applied for international protection in Italy in July 2017. On 28 March 2018, the Territorial Commission rejected this application as it was deemed that the reasons for fleeing were based exclusively on the applicant’s precarious personal economic situation.
 
On 13 April 2018, the applicant appealed the decision, declaring they were forced to leave Mali in order to escape from a situation of extreme poverty and was therefore, due to the terrorist attacks in the area in 2013, no longer able to support his family. The Tribunal found that the applicant’s declarations, on both their personal history and the Mali situation, passed the credibility test. Moreover, it concluded that the security situation in Mali remains unstable and terrorist attacks carried out by Islamist armed groups are still present within the state.
 
For these reasons, the Tribunal of Bologna granted the applicant subsidiary protection on the basis that they would face a real risk of serious harm as a result of the internal going-on armed conflict in Mali.
 
Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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The purpose of the ELENA legal updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE/ELENA. The contents of this publication can in no way be taken to reflect the views of ECRE/ELENA and in no way purport to provide an exhaustive update on asylum law developments across Europe. For more up to date information, additions, corrections and comments please contact Julia Zelvenska (jzelvenska@ecre.org).






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