CJEU: Judgment C-63/15 Ghezelbash and C- 155/15 Karim
On Tuesday 7 May 2016, the CJEU delivered its judgments in Ghezelbash and Karim . These cases relate to the scope of the right to an effective remedy in recital 19 and Article 27(1) of the Dublin III Regulation.
Mr Ghezelbash, an Iranian national, had his asylum claim in the Netherlands rejected following the acceptance of a ‘take back’ request by France pursuant to Article 12(4) DRIII. 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. The Rechtbank den Haag 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 (MS).
In line with the Opinion of Advocate General Sharpston, delivered on 17 March 2016, the Court decided that Article 4 of the Dublin III Regulation confers a right on the applicant to be informed of the criteria for determining the Member State responsible. The Court confirmed that the provision on an effective remedy in Article 27 of the Dublin III Regulation must be interpreted in a way that asylum seekers are given the opportunity to request a court to suspend the implementation of the transfer decision pending the outcome of his or her appeal. The Court considered it apparent from recital 9 that the Dublin III Regulation is not solely meant to improve the effectiveness of the Dublin system, but also to improve the protection afforded to applicants under that system. The Court argues that the Dublin III Regulation decided to involve asylum seekers in the process by obliging Member States to inform them of the criteria for determining responsibility and provide them with an opportunity to submit information relevant to the correct interpretation of those, and by conferring on the asylum seekers a right to effective remedy in respect of any transfer decision. The Court dismissed the argument that enabling an appeal against the misapplication of Chapter III would create an increase in workload by upholding its decision from Petrosian by stating that EU legislation did not intend that the judicial protection enjoyed by asylum seekers should be sacrificed for the benefit of expediting asylum applications.
The Court thus concluded 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.
C- 155/15 Karim
Mr Karim is a Syrian national who had his asylum claim in Sweden rejected after Slovenia accepted a ‘take back’ request pursuant to Article 13 of the Dublin III Regulation. Slovenia confirmed its willingness to process the asylum claim after being informed of additional information which indicated that Mr Karim had left the territory of the Member States for over three months, in circumstances covered by Article 19(2) of the Dublin III Regulation. The applicant appealed against the transfer decision, and the Stockholm Administrative Court of Appeal requested a preliminary ruling on the 1st of April 2015.
The Court acknowledged the fact that after the submissions of new documents indicating that Mr. Karim had left the territory for over three months, a new procedure for determining the responsible Member State had started. The Court then referred to paragraphs 30-61 of the Ghezelbash judgment and reiterated that Article 27(1), read in the light of recital 19, provides an asylum seeker with an effective remedy against a transfer decision made in respect of him, which may concern the examination of the application of that Regulation. Again, the Court’s decision is in line with Advocate General Sharpston’s opinion. It is noteworthy to highlight that the Court clarifies that the right to an effective remedy is not limited to systemic deficiencies in the asylum procedure or reception conditions which provide grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, thereby moving away from its interpretation in Abdullahi concerning the Dublin II Regulation.
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CJEU: Judgment C-47/15 Affum
On Tuesday 7 June, the Court of Justice of the European Union ruled on case C-47/15 relating to a national of Ghana, Ms Affum, who was intercepted by French police on 22 March 2013 at Coquelles, the entrance of the Channel Tunnel, whilst transiting through French territory on a bus from Belgium to the UK. She had no identity documents except a Belgian passport with the name and photo of another person. She was detained for illegal entry pursuant to Article L. 621-2 of the Code of Entry and Residence of Foreigners and Asylum Law, but the prosecutor decided to take no further criminal proceedings against her. The Prefect of Pas-de-Calais made an Order deciding to transfer her to Belgium in accordance with a readmission agreement between France and the Benelux countries. He also ordered her administrative detention for a period of five days pending removal, which was later extended by a judge of the High Court of Lille. Upon appeal, the Court of Cassation submitted a reference for a preliminary ruling to the CJEU on the compatibility of the Return Directive with national law allowing the imposition of a term of imprisonment of a third country national on the basis of illegal entry and stay. The Court decided to follow the opinion of Advocate General Szpunar.
The Court decided, in line with its previous judgment in Achughbabian, that Article 2(1) and Article 3(2) of the Return Directive render the Directive applicable to nationals of a non-EU country who, like Ms Affum, have entered the territory of a Member State illegally and who are regarded as staying there illegally. A third-country national is thus not excluded from the scope of the Return Directive merely because she was in a situation of ‘mere transit’ and only briefly present on the territory of the Member State. Indeed, no duration conditions are attached to the term “staying”.
The Court reiterated its findings from Achughbabian and stated that the Return Directive precludes any legislation of a Member State which lays down a sentence of imprisonment for an illegal stay, but that it does not preclude legislation permitting the imprisonment of a third-country national to whom the return procedure has been applied and who is staying on the territory without a justified ground for non-return. The Court repeated that imprisonment merely on the basis of illegal stay would thwart the application of the return procedure and delay return, thereby undermining the effectiveness of the Return Directive. The Court clarified that this interpretation applies despite the fact that Ms. Affum was taken back by another Member State pursuant to an agreement within the meaning of Article 6(3) of the Return Directive. The Court stated that the transfer to the first Member State in order to bring the individual’s illegal stay to an end must be done speedily as to not further delay the return procedure.
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European Court of Human Rights
R.B.A.B. And Others v. The Netherlands (no. 7211/06), 7 June 2016, Grand Chamber
On 7 June 2016, the European Court of Human Rights delivered a judgment in the case of five Sudanese nationals. After having two asylum requests rejected in the Netherlands, the Sudanese family, consisting of father, mother, two daughters and a son lodged a third asylum request based on the claim that, if they were sent back to Sudan, their daughters would be subjected to Female Genital Mutilation (FGM). This application was rejected as well, on the grounds that the family failed to establish that they did not belong to the group of higher educated people who, according to a report drawn up by the Netherlands Ministry of Foreign Affairs, were able to resist the practice of FGM. In their appeal before the European Court of Human Rights, the applicants relied on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. The Court stated in paragraph 56 that in general there is no real risk of a girl or woman being subjected to FGM at the instigation of persons who are not family members. FGM is thus mainly a parental choice, which in casu is clearly not a choice supported by the parents of the girls. The Court therefore decided that the applicant was at no real risk of being subjected to FGM and subsequently no treatment contrary to Article 3 of the Convention.
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Communicated case T.S. v the Netherlands (11001/15), 12 May 2016
On 12 May 2016 the Court communicated the case of T.S v the Netherlands, which relates to a Russian national, originating from Chechnya, and the ensuing risk of an Article 3 breach if the applicant were to be expelled to Russia. The applicant claims that an expulsion to the Russian Federation will lead to a breach of Article 3 of the Convention since the local authorities are aware of the fact that her son has joined the insurgency and the authorities now wish to question her about her son. The Court communicated the case on 12 May 2016 by asking the parties whether the applicant would face a real risk of being subjected to treatment in breach of Article 3 of the Convention if expelled.
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Council of Europe
PACE: Refugees at risk in Greece
On Tuesday 7 June 2016, Tineke Strik from the Committee on Migration, Refugees and Displaced Persons released a report on the situation of refugees in Greece. This report was based on visits the committee and Ms. Strik conducted at the end of May. The report focuses on the overall situation of refugees and migrants in Greece: from the Aegean islands where new arrivals are halted and their applications processed in newly-created facilities under new, accelerated procedures; to Athens and the mainland, where the Greek authorities and others are struggling to provide sufficient reception capacity and to implement a whole new asylum system; to the border with “the former Yugoslav Republic of Macedonia”, where over 10,000 refugees and migrants remain in the desperate hope of being allowed to continue North.
The report raises doubts over the legality of the EU-Turkey deal and the excessive use of detention in the hotspots on the Islands, a view also expressed by ECRE. It is also stated that the relocation mechanism, set up by the European Commission in September 2015, is not working and that Member States need to urgently step up their efforts and try to relieve some of the pressure on Greece. Other topics discussed in the report are the situation on the mainland, the lack of reception capacity, the situation of vulnerable categories, the unofficial camps and the dire conditions in Idomenei.
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Greece: The Appeals Committee issues decisions on Turkey as a Safe Third Country
The Greek Appeals Committee decided in a first ruling on 17 May 2016 that Turkey cannot be considered a Safe Third Country as per Article 38 of the recast Asylum Procedures Directive. The Committee unanimously considered that Turkey did not comply with the principle of non-refoulement and decided by majority that the protection provided to individuals is substantially different and not in accordance with the 1951 Refugee Convention. The fact that temporary protection is not defined as a form of international protection and the lack of an effective residence permit in Turkey are mentioned as arguments to conclude that the core elements of protection in the Convention are not satisfied.
In a second judgment the Appeals Committee ruled again that Turkey was not a Safe Third Country, but this time the Committee considered that Turkey did comply with the non-refoulement principle. However the asylum system in Turkey was still not considered in accordance with the Refugee Convention and therefore the appeal was again granted. In both cases the President of the Committee had a dissenting opinion.
Contrary to these judgments, two appeal cases in June have found that Turkey is a Safe Third Country. Both cases concerned Syrian male applicants who had lived in Turkey for a period of time. The Appeals Committees found in both cases that there was a sufficient connection with Turkey as required by Article 38 (2)a of the Asylum Procedure Directive.
The ELENA Weekly Legal Update would like to thank Zoe Kass for her contribution to this article and Erika Kalantzi, ELENA national coordinator for Greece, for notifying us of these decisions.
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