ELENA Weekly Legal Update (EWLU)

28 October 2016


United Nations National Developments ECRE

European Court of Human Rights

Communicated cases:

S.T. v. Sweden (no. 10984/16), communicated on 23 September 2016

On 23 September 2016, the European Court of Human Rights communicated the case of S.T. v. Sweden (no. 10984/16), which relates to the Dublin transfer of an Ethiopian national from Sweden to Hungary.
The applicant submitted an application to the ECtHR complaining that there would be a real risk of inhuman treatment if she were to be transferred to Hungary without any individual guarantees from the Hungarian authorities regarding medical attention in violation of Article 3 ECHR.

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A.S. and G.S. v. France (no. 4409/16), communicated on 29 September 2016

On 29 September 2016, the European Court of Human Rights communicated the case of A.S. and G.S. v. France (no. 4409/16), which relates to the potential transfer of Kosovar nationals (a male and a female national) from France to Hungary under the Dublin Regulation. At the date of their scheduled departure, the female applicant was 7 months pregnant.
The applicants submitted an application to the ECtHR complaining that their potential Dublin transfer constituted a violation of Article 3 ECHR because (i) the applicants might be at risk of being sent from Hungary to Serbia, and (ii) because of the pregnancy of one of the applicants.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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European Union

FRA publishes their findings on key migration issues

The European Union Agency for Fundamental Rights (FRA) has published their findings on key migration issues of concern that have emerged since September 2015, namely: unaccompanied children; safety and protection at reception facilities; impact on local communities; and violence and hate speech against migrants.
With respect to unaccompanied children, the FRA highlights several instances of inadequate first reception facilities, such as unqualified staff, delays in appointing guardians and legal and practical obstacles to access asylum procedures. Moreover, violence and hate speech against migrants seem to be worsening and spreading in some Member States, including physical attacks, hostile demonstrations and damage to property. In relation to this, specific measures to protect vulnerable people against violence are often lacking. This is largely because of a lack of information-sharing and contact between local and refugee communities.

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Council of Europe

Anti-torture Committee publishes report on Malta concerning immigration detention

The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on their visit to Malta from 3 to 10 September 2015. The report examines, inter alia, the treatment of persons in two immigration detention facilities.
The CPT positively notes that the number of persons held in immigration detention has been reduced from 750 in 2011 to only 10 in 2015. Hence, the current approach towards immigration detention should be reviewed. This includes, for instance, the improvement of the living conditions at the Safi Barracks, addressing detainees by their name instead of by numbers, and providing every new detainee a proper medical screening.
In their response, the Maltese Government clarified that detainees are now being addressed by name. Moreover, with the issuance of the ‘Strategy for the Reception of Asylum Seekers and Irregular Migrants’ significant progress can be noted in the conditions of detention for migrants. Lastly, systemic improvements have been made as regards the medical screening of new detainees.

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United Nations

UNGA publishes report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has published its sixth annual report addressing the impact of counter-terrorism measures on the human rights of migrants and refugees. The report outlines the key activities undertaken by the Special Rapporteur from February 2016 to August 2016.
In the main findings of the report, the Special Rapporteur acknowledges that the current discourse focusing on migration as a fuel for terrorism has led to “migration policies being viewed overwhelmingly through the prism of security.” While States have the obligation to protect their citizen against terrorism, the current restrictive asylum and migration policies have become conducive to terrorism. In order to develop an effective counterterrorism policy, a comprehensive migration policy should respect human rights, justice, accountability, human dignity, equality and non-discrimination.
The report concludes with a number of recommendations related to the decriminalisation of irregular migration, the importance of the principles of legality, proportionality, non-discrimination and due process in relation to instances of exclusion, expulsion and revocation, and the absolute prohibition of non-refoulement. In addition, the Special Rapporteur highlights that the detention of migrants, refugees and asylum-seekers should always be a last resort.

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National Developments

Netherlands: The CJEU’s Ghezelbash judgment applied by the referring District Court

On 13 October 2016, the District Court of The Hague, which referred the Ghezelbash case to the CJEU, applied the judgment of the 7th of June 2016.
The District Court of the Hague had requested a ruling from the CJEU on whether the applicant had the right to an effective legal remedy to appeal against the application of the Chapter III criteria used to determine the responsible Member State. In line with the Opinion of Advocate General Sharpston, the CJEU concluded in Ghezelbash that Article 27(1) of the Dublin III Regulation should be interpreted as meaning that an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Dublin III Regulation.
The applicant, an Iranian national, had his asylum claim rejected in the Netherlands following the acceptance of a ‘take back’ request by France pursuant to Article 12(4) of the Dublin III Regulation. After being informed of this, the applicant submitted circumstantial evidence in support of his claims that he had returned to Iran from France for over three months, and argued that the Netherlands was responsible for his application, as this was where he had lodged his first asylum claim.
Referring to the Ghezelbash judgment, the District Court ruled that the Secretary of State is required to submit evidence of proof or circumstantial evidence, which demonstrates that the responsibility criterion has been incorrectly applied in relation to the requested Member State. At first instance, however, the State Secretary is required to assess whether such evidence of proof or circumstantial evidence exists. To this extent, the State Secretary is responsible for the examination of the probative value of the evidence of proof and circumstantial evidence.
In the present case, the District Court found that the State Secretary should have examined the authenticity of the documents, as provided for by the applicant, pursuant the obligation of cooperation under Article 4(1) of the Qualification Directive. As this had not been carried out in the present case, the District Court ruled that the argument of the State Secretary, whereby the applicant had failed to discharge the burden of proof, was inadequately substantiated. The appeal of the applicant is therefore deemed admissible.   

The ELENA Weekly Legal Update would like to thank Flip Schüller, lawyer at Prakken d’Oliveira, for bringing this to our attention. Based on an unofficial translation by the ELENA Weekly Legal Update.

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EDAL: Blog on the interpretation of the Internal Protection Alternative in Slovenia

Gruša Matevžič, Legal Officer at the Hungarian Helsinki Committee and Slovenian national ELENA Coordinator, has written a blog which assesses the ‘reasonableness test’ within the Internal Protection Alternative concept in Slovenia.
In Slovenia the Internal Protection Alternative concept is used in practice, mostly regarding Kabul in cases involving Afghan applicants. Practice has demonstrated that problems have been encountered in the application of Internal Protection Alternative by decision makers, notably in the assessment of the “reasonableness test”, and more precisely how the humanitarian situation in the country affects the application of the Internal Protection Alternative. This article presents ECtHR case law on this issue and highlights how Slovenian administrative and judicial practice has developed in recent years.

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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 the European Commission, UNHCR, or 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 Isa van Krimpen (, or Julia Zelvenska (

Supported by the Fundamental Rights and Citizenship Funding Programme of the European Union and UNHCR

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