ELENA Weekly Legal Update (EWLU)

15 October 2021


European Union United Nations National Developments NGOs

European Union

CJEU: Elects and renews multiple members

Over the last week, the Court of Justice has had a partial renewal of its membership with both re-elections and new Members entering the Court of Justice. Firstly, Mr Koen Lenaerts was re-elected as President of the CJEU. He began this role in 2015 and will continue it until 2024. Nine members of the Court of Justice entered in to office as judges and Advocate Generals. The new judges are Maria Lourdes Arastey Sahún, Zoltán Csehi, Octavia Spineanu-Matei, Miroslav Gavalec and Dimitrios Gratsias. The new Advocate Generals for the Court of Justice are Anthony Michael Collins, Laila Medina, Nicholas Emiliou and Tamara Ćapeta.

Furthermore, there were elections for President, Vice President, First Advocate General and Presidents of the Chambers. Mr Lars Bay Larsen was elected as Vice President of the CJEU. The Presidents of the Chambers elected were Mr Alexander Arabadjiev, Ms Alexandra Prechal, Ms Küllike Jürimäe, Mr Contantinos Lycourgos and Mr Eugene Regan who will hold this position for three years. Similarly, the judges of the court elected five other Presidents of the Chambers; Mr Siniša Rodin, Mr Irmantas Jarukaitis, Mr Niila Jaaskinen, Mr Inete Ziemele and Mr Jan Passer for a period of one year. Mr Maciej Szpunar was elected as First Advocate General, a position he has been in since 2018. Mr M. Geert De Baere replaced Anthony Michael Collins (following his move to Advocate General) as President of the Chamber where he will sit until August 2022.

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CJEU: AG Saugmandsgaard Øe Opinion on internal border controls when public policy and internal security are at risk

On 6 October, AG Saugmandsgaard Øe issued his Opinion in C-368/20 and C-369/20 following a request for a preliminary ruling from the Regional Administrative Court in Austria. In September 2015 in response to increased arrivals Austria reintroduced border checks at the Slovenian border. In the present cases the applicant, NW sought to enter Austrian territory from Slovenia on two occasions, but he was controlled by the border authorities and asked to present his passport. Arguing that border checks in the internal borders of the Schengen area were contrary to EU law, NW refused to present his passport and was consequently ordered to pay a fine of 36€. The applicant lodged a complaint against this decision, arguing that the border check and the fine imposed infringed his right of free movement under Article 21(1) TFEU in conjunction with Article 22 of the Schengen Borders Code. In light of the foregoing events, the Regional Administrative Court of Austria decided to stay the proceedings and asked the Court of Justice whether the Schengen Borders Code precludes the reintroduction of successive internal border controls in the event that the Member State, on expiry of the six-month period, is still faced with a serious threat to public policy or internal security.

First, the AG considered that an interpretation whereby the exception set out in Article 25 of the Schengen Borders Code cannot be reapplied several times in a row would lead to the unacceptable result that Member States would be forced to abolish border control at the end of the six-month period, even though they would, at that time, still face serious threats to public policy or internal security, for which border control would be strictly necessary. In the words of the Advocate General, such an interpretation would lead to absurd results. The AG noted that a restrictive interpretation of Article 25 would risk undermining the powers to maintain public order and safeguard internal security reserved to Member States by Article 72 TFEU and Article 4(2) TEU. Thus, if a Member State was forced to abolish a strictly necessary border control at the end of the six-month period, that Member State would be prevented from assuming its powers and responsibilities.

However, the AG explained that, where the serious threat concerned is, in essence, similar to the previous serious threat, the requirement of proportionality laid down in Article 25(1) of the Code should be assessed by the Member State even more scrupulously in order to prove the strict necessity of the continuation of the control. This means that a Member State that envisages a new application of Article 25(1) of the Schengen Borders Code must explain, on the basis of concrete, objective and detailed analysis i) why the renewal of the control would be appropriate, assessing the degree of effectiveness of the initial measure of reintroduction of control and ii) why it remains a necessary means, explaining the reasons why no other less coercive measure would be sufficient.

AG Saugmandsgaard Øe therefore concluded that Article 25(1) and (4) of the Schengen Borders Code must be interpreted as meaning that, where, on expiry of the six-month period provided for in Article 25(4), a Member State is still facing a serious threat to public policy or internal security, those provisions shall not preclude a successive reapplication of Article 25(1), provided that the proportionality criteria is fulfilled. It follows that the possible imposition of a penalty for breach of the obligation to present a passport or an identity card in such circumstances would not be contrary to EU law. 

Based on an unofficial translation within the EWLU team

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United Nations

CRPD: Rules Sweden's decision to deport Afghan would deteriorate his mental health condition

On the 11th October, the Committee on the Rights of Persons with Disabilities made its recommendations to Sweden concerning the case of ZH. This case involved an Afghan national who applied for asylum in Sweden in 2008. His asylum claim was based on threats and persecution after he was held responsible for the death of a member of a powerful family and the risk of persecution and ill-treatment for being part of the Hazara Shia ethnic and religious minority. These claims were rejected and in 2015 the applicant made a new application bringing forward evidence from a medical report showing his diagnosis of PTSD, psychotic mental health symptoms and that his condition was life threatening due to the high risk of suicide originating from the death threats he had received in Afghanistan.

The Swedish Migration Agency noted that although the applicant’s circumstances were exceptionally distressing, psychiatric treatment and the medication prescription he received in Sweden were available in Kabul justifying that there would be no risk of death or ill treatment if he was returned. The applicant unsuccessfully appealed this outcome and subsequently claimed impediments to his deportation order. The Migration Agency justified that the deterioration in the applicant’s mental health was due to his rejected asylum claim and not a serious mental health problem, which therefore did not constitute new circumstances to warrant a fresh examination of his case.

To the Committee, the applicant claimed that Sweden had violated Convention rights Article 10, 15, 12 and 13. The Committee noted from jurisprudence of the CAT and ECtHR that the burden of proof is on the author of the communication to show evidence demonstrating substantial grounds of a risk of ill treatment if removed to Afghanistan. The Committee further noted that the applicant had discharged the burden of proof in this regard but that the State had failed to dispel doubts as to the risks he could face in Afghanistan. Specifically, the States continually attempted to link the applicant’s ill mental health to his asylum rejection and the reports used to show the necessary medical care was available in Afghanistan revealed limited availability of psychiatric care and access to medication. The Committee subsequently consulted additional reports on healthcare in Afghanistan in which they found evidence for a lack of trained professionals, infrastructure, awareness about mental health issues and limited resources. In relation to this, the Committee outlined that Sweden was under an obligation to consider the extent to which the applicant would have access to required care in Afghanistan and if a serious doubt persists, to obtain individual and sufficient assurances from that State. Elaborating on this element, the Committee noted that in the circumstances at hand, individual assurances would have been particularly important given that the applicant left Afghanistan at a very young age -13 years ago- and that returnees can face exceptional challenges accessing healthcare services.

For these reasons, the Committee held that it is unable to conclude that the authorities’ assessment of the real risk of irreparable harm was not arbitrary and therefore the applicant’s removal to Afghanistan would violate his right under Article 15 of the Convention (freedom from torture and inhuman and degrading treatment). In light of this, it declared that is was not necessary to separately consider the applicant’s Article 10 claims.

The Committee laid out its recommendations for Sweden which included: to provide the applicant with an effective remedy to which he would acquire compensation for legal costs incurred in the present proceedings, to review the applicant’s case taking in to account the aforementioned obligations, to publish the present views and circulate them widely in an accessible manner and to take measures to prevent similar violations in the future.

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CRC: Declares Switzerland did not consider the best interests of the child in a removal decision to Bulgaria

On 6th October 2021, the Committee on the Rights of the Child gave their decision in the case of MKAH v Switzerland. This case was brought by the Centre Suisse pour la defense des droits des migrants (CDSM) with a joint third party intervention from the AIRE Centre, ECRE and the Dutch Council for Refugees. It concerned a stateless Palestinian boy who was born in a refugee camp in Damascus, Syria. After losing his father and close relatives, him and his mother left Syria. On their way to Switzerland, where they had extended family members, they passed through Bulgaria where both were subject to traumatising strip searches and abuses. They were granted subsidiary protection status in Bulgaria, but after eight months living in a camp with inadequate material conditions and no access to education or labour, they travelled to Switzerland where they stayed with her brother and his family. However due to their subsidiary protection status in Bulgaria, the Swiss asylum authorities ordered their removal back to Bulgaria. After an unsuccessful appeal and reconsideration request, the applicants brought their complaint to the CRC, on the basis of violations of Articles 3, 6, 7, 12, 16, 22, 27, 28, 37 and 39 of the Convention on the Rights of the Child.

The Committee firstly emphasised that the best interests of the child should be a primary consideration in judicial and asylum proceedings. It reasoned that Switzerland did not give this appropriate consideration when it failed to take in to account the numerous reports indicating the risk of inhuman and degrading treatment for children in similar situations in Bulgaria?, the condition of the applicant as a victim of armed conflict and ill-treatment and to carry out an individualised assessment of the risks. Furthermore, in response to the State’s defence that charitable organisations are available for third country nationals in Bulgaria, the Committee disagreed, noting that support of charities are not an implementation of State’s obligations. Subsequently, the Committee draws attention to the severe mental health condition of the applicant’s mother, which was shown in medical reports, her focal role as his caregiver and her inability to speak Bulgarian and access the labour market, all of which should have been key considerations when assessing the best interests of the child. From these deductions, the Committee concludes that there is a violation of Articles 3, 6, 22, 27, 28, 37 and 39 of the Convention.

Focusing on Article 7 of the Convention, the Committee declared that Switzerland had not taken the necessary steps to ensure that the applicant would have access to nationality in Bulgaria, therefore not following the positive obligation implied in this Article. In regards to Article 12, the Committee did not accept Switzerland’s argument that the applicant should have explicitly requested to be heard. The Committee elaborates that the determination of the best interest of the child requires a situation to be assessed separately from its parents and thus the absence of a direct hearing of the child is a violation of Article 12. Finally, the Committee turns its attention to the claims under Article 16 and recalls that the term “family” within the meaning of the Convention covers a range of structures for care including both nuclear and extended family. The Committee states that the applicant’s separation from her cousins and uncle is likely to cause further disruption to the applicant’s development and social re-integration, thereby determining a removal as an arbitrary interference with his privacy and a violation of his rights under Article 16.

In light of the above, the Committee recommended Switzerland to: reconsider the decision to return MKAH to Bulgaria; urgently re-examine the applicant and his mother’s asylum application ensuring the best interests of the child are a primary consideration, the applicant is duly heard and taking into account the particular circumstances of the case; take in to account that MKAH may remain stateless in Bulgaria, ensure MKAH receives qualified psychological assistance to facilitate his rehabilitation and to take all necessary measures to ensure violations don’t recur.

Based on an unofficial translation within the EWLU team

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National Developments

Belgium: Administrative Court rules on exclusion clause for applicant who married and had sexual relations with his wife when they were both minors

On 7th September 2021, the Council for Aliens in Belgium gave its decision in an exclusion case against the General Commissioner for Refugees and Stateless Persons. The case concerned a Syrian national who claimed asylum with his wife and child in 2018 after fleeing compulsory military conscription and the dangerous security situation in Syria. The applicant and his wife were cousins and married when they were refugees in Lebanon, at the request of her father who worried for her safety and the risk of rape that many of the unmarried girls in the camp faced. Although the authorities determined that avoidance of military conscription would constitute a well-founded fear of persecution as required in Article 1A of the Refugee Convention, they concluded that Article 1F excluded the applicant from protection under the Convention because of his marriage and sexual relationship with his wife when she was a minor which constituted a serious non-political crime.

Firstly, the Council emphasised that assessments for international protection must be made on an individual basis and that relevant authorities cannot use doubts about aspects of a case to exonerate them from verifying the fear of persecution or real risk of serious harm. Moreover, the Council confirmed that the credible statements and evidence provided by the applicant demonstrated a well-founded fear of persecution in his country of origin. The Council went on to analyse the statements from both the husband and wife in their personal interviews and deduced that their situation was not a forced marriage but rather a marriage arranged by the parents resulting from the specific situation both families were in. The Council therefore declared that is was unreasonable to determine a crime on the applicant who was a minor at the time himself. In regards to the sexual relationship between the couple, the Council determined that if there was a pressure on the applicant’s wife to engage in their sexual relations this came from her own family and not the applicant. It elaborated that often in Arab culture, newly married couples are expected to start their own family quickly and that delay in this can result in shame for the wife’s family as people could suspect she was not a virgin before the marriage.

The Council finalised by noting that the applicant and his wife were still married, lived together and raised their child together and that Article 1F is an exceptional provision with serious implications, and so should be applied with utmost caution. In light of this, the Council held that the applicant does not fall within the scope of Article 1F and due to the fact that his identity and nationality are not disputed and it has already been established that he has a well-founded fear of persecution in the event of return to Syria, he must be recognised as a refugee in accordance with Article 1A of the Refugee Convention and Article 48(3) of the Law on Aliens.

Based on an unofficial translation within the EWLU team

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Greece: Appeals Committee grants refugee status to Afghan asylum applicant

On 26 August 2021, the 10th Appeals Committee issued a decision overturning a decision of the Greek Asylum Service and recognising an Afghan asylum applicant as a refugee. The applicant, an Afghan national of Hazara ethnicity, applied for asylum in Greece in 2019. In his asylum application, he claimed that he left Afghanistan inter alia because he was not feeling safe due to the violence that prevails in the country, in combination with his ethnicity and religion (Shiite Muslim). He had not been a victim of a violent attack but he made a reference to a relative being killed during a protest. His fear was compounded by the absence of a supportive network in Afghanistan, as all his family resides in Iran. The asylum authority rejected the application as unfounded.

On appeal, the Committee examined the long-standing discrimination and violence that Hazara minorities have faced in Afghanistan. Referring to the UNHCR Guidelines, as well as EASO Country of Origin guidance and queries, the Committee noted that discrimination and risk of violence continue to affect the Hazara community in the country. Members of the Shiite Hazara community have been the target of several recent suicide attacks, while issues with access to the labour market have contributed to a general situation of marginalization.

The Committee also considered the recent developments in the country, including the increasing violence in 2020 and the barriers in accessing health services during the COVID-19 pandemic. In addition, the volatile situation following the establishment of the Taliban regime, as described by UNHCR in August 2021, is characterised by significant security issues and gaps in human rights protection. In this context, members of religious minorities, in particular Shia Muslims and Hazaras, are in greater danger. Consequently, the applicant has a well-founded fear of persecution due to the danger he will be facing in a Taliban-ruled country. Moreover, as the Taliban authorities now control the country, any analysis on potential relocation is not necessary.

This judgment is related to an asylum application submitted before Turkey was designated as a safe third country by the Joint Ministerial Decision 42799/2021, Gov. Gazette 2425/Β/7-6-2021. It is neither representative of the treatment of asylum applications of Afghan nationals nor the present practice in Greece. With many thanks to Maria Flouraki, Lawyer at the Greek Registry of Asylum Lawyers, for bringing this case to our attention.

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Human Rights Watch: Published a report Enforced Misery; The degrading treatment of migrant children and adults in Northern France

On 7th October, Human Rights Watch published their extensive report on the situation in Calais and Grand-Synthe bringing to light experiences from their visits in October and November 2020 and June and July 2021. The report highlights the effects of numerous routine and mass evictions, child protection concerns and solidarity criminalisation. HRW provide tailored recommendations to the Prefects, Child protection authorities, Departmental Councils and Mayors of Pas-de-Calais and Nord and also to the French Government, EU Member States and the UK Government.

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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 (