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ELENA Weekly Legal Update (EWLU)

27 September 2019
 

Summary


European Court of Human Rights European Union National Developments United Nations NGOs ELENA

European Court of Human Rights


Communicated cases against Finland, Belgium, and Greece

The European Court of Human Rights (ECtHR) has recently communicated the following asylum-related cases:

  • A. B and Others v Finland (Application No. 41100/19): The applicants are A.B, his wife, and their five children. The family, of Libyan nationality, sought asylum upon arrival in Finland on 28 June 2018 after being issued Schengen visas from Italy. On 28 November 2018, the Finnish Immigration Service sought the family’s removal to Italy, the State responsible for the examination of the asylum application under the Dublin Regulation. The applicants’ appeal of the decision was rejected by the Administrative Court, and subsequently by the Supreme Administrative Court. The applicants complain that their removal to Italy violates their rights under Article 3 of the Convention as the children will not be provided with the necessary facilities to access specialized medical care required. The family also complains of the serious risk of deportation from Italy to Libya if returned. 
 
  • M. H v Finland (Application 42255/18): The applicant is an Afghan national who now resides in Helsinki after living with foster parents in Iran from the age of 5. The applicant remained in Iran as an unaccompanied child after his foster father was granted refugee status in the United States and his foster mother died. His first asylum application, made on 8 November 2015 was rejected by the Finnish Immigration Service. A second asylum application was made on 17 April 2018, relying on his particular vulnerability due to psychological problems he had developed as a result of the sexual attack suffered in Iran in 2015. The application and all appeals were rejected. The applicant complains that expulsion to Afghanistan would violate his rights under Articles 2 and 3, together with Article 13 of the Convention. He also claims a violation of Article 14 in conjunction with Article 3 if expelled to Afghanistan. He submits that his position would be worse than that of an internally displaced person since he has lived most of his life outside his home country.
 
  • Ngono v Belgium (Application 23057/19): The applicant is a Cameroonian national suffering from diffuse hepatic angiomatosis. A number of procedures have been heard before the Aliens Office and Aliens Litigation Council to seek the removal of the applicant to Cameroon. She complains that her expulsion would be contrary to Article 3 of the Convention due to the lack of specialist medical treatment available upon return.
          Based on an unofficial translation by the EWLU team.
 
  • Ashraf Ali (and 11 Others) v Greece (Application 68951/17): The 12 applicants, of Bangladeshi, Georgian, Albanian, Pakistani, and Nigerian nationality, were detained in police stations and detention centres in preparation for deportation. Complaints are made regarding the detention conditions under Article 3 and lawfulness of detention under Article 5(1) of the Convention.

          Based on an unofficial translation by the EWLU team.
 

  • A. I and Others v Greece (Application No. 13958/16): The applicants are A.I., an Afghan national, and his two children. They complain that the living conditions in the Idomeni refugee camp were contrary to their rights under Article 3 of the Convention in conjunction with Article 13.

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European Union


FRA: Focus paper providing guidance on rights compliance in cases involving the return of unaccompanied children

The Fundamental Rights Agency (FRA) recently published a focus paper outlining the necessary rights considerations in cases of unaccompanied child returns. The paper aims to provide guidance to national authorities involved in return-related cases to better comply with fundamental rights protection and ensure the best interests of the child are comprehensively considered in any action affecting children. This follows, and adds to, a 2017 FRA report on immigration detention of children.

In its guidance, the FRA comment on, inter alia: Member State practice concerning unaccompanied child returns; the applicability of the best interests the child in return decisions; how the interests of the child should be assessed in such decisions; potential outcomes of a comprehensive best interest decision; and how to better guarantee child protection. Indeed, this paper supplements existing guidance on the best interests of the child principle to ensure this assessment is of paramount importance in all cases of unaccompanied children. Making reference to existing guidance in the form of the Convention of the Rights of the Child (CRC) General Comment 6, CRC General Comment 14, and the EU Return Directive (Directive 2008/115/E), the FRA reiterate the priority to find an appropriate and “durable solution” by striving to promote the overall well-being of the child, rather than one-off or convenient decisions.

The FRA highlights that child protection services must work in close cooperation with immigration authorities in order to encourage a more comprehensive and effective assessment in such cases; in cases where returns have been deemed appropriate, children must have access to counselling and support; all removal operations are a last resort, and must be carried out in the most child friendly manner possible; and children granted the right to remain must be guaranteed continued support by the Member State.

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National Developments


United Kingdom: Upper Tribunal rules country guidance on Non-Arab Darfuris still applies

On 7 August 2019, the Upper Tribunal (Immigration and Asylum Chamber) published its ruling in a case concerning the return of two non-Arab Darfuri applicants for international protection to Sudan.

The Home Office had previously refused the two asylum applications, finding that the applicants would respectively not be at risk as Darfuris upon return to Sudan. On appeal, the First-tier Tribunal upheld the decisions of the Home Office and considered that it could depart from the country guidance provided by AA (Sudan) and MM (Sudan).

During the proceedings, the Home Office produced a fact-finding report in November 2018 on Sudan. The Home Office further submitted that the evidence on recent protests and the government’s response did not show a specific interest in Darfuris to have an impact on potential risks upon return. The applicants instructed three expert witnesses to comment on the report and Home Office submissions.

In examining the case and the evidence put forward, the Upper Tribunal held that the situation in Sudan remained volatile. In particular, it highlighted the changes in government and violence perpetrated by forces such as the Rapid Support Forces (the Janjaweed). It found that there is insufficient evidence to show that the guidance given in AA (Sudan) and MM (Sudan) requires revision and therefore granted the applicants international protection.

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Finland: Supreme Administrative Court dismisses the finding of a marriage of convenience used to reject a residence permit

On 18 September 2019, the Supreme Administrative Court published its ruling to overturn the decision of the Administrative Court and Finnish Immigration Service to reject a request for a residence permit on the basis that it was a marriage of convenience, or “sham”.
 
The applicant, who resides in Burkina Faso, met his wife, a Finnish citizen, online in April 2015. The Finnish Immigration had denied the applicant’s request to be granted a residence permit on the basis that the marriage was part of an attempt to circumvent the entry rules under the Aliens Act. The question before the Supreme Administrative Court was therefore whether spouses who reside in the different countries are capable of enjoying a genuine family life. The applicant argued that while he and his wife had never lived together, they had been in active contact throughout the entirety of their three year marriage, provided financial support to one another, and were legally married in January 2016.

The Administrative Court advanced the argument that the absence of cohabitation signified an attempt to gain residence and showed a lack of intention to enjoy family life. The same doubts were expressed by the Finnish Immigration Service. The Supreme Administrative Court rejected these arguments, highlighting that while spouses may live in different countries, this fact alone does not indicate a lack of intention to enjoy a family life when granted the opportunity to live together. As a result, the Supreme Administrative Court has affirmed the protection afforded under Article 8 of the European Convention on Human Rights by ruling there are no doubts regarding the intention of the couple to start a genuine family life together.

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Italy: Refugee status granted to Gambian citizen affected by serious mental illness

On 28 August 2019, the Tribunal of Milan recognised the refugee status of a Gambian citizen suffering from a serious mental health issue on the basis that he belonged to a particular social group.

On 26 October 2017, the applicant appealed the decision of the Tribunal of Milan to reject his application for international protection. While his case was waiting to be heard, he was hospitalized several times and diagnosed with schizoaffective disorder. After an episode of violence inside the reception centre, the applicant’s right to reception was withdrawn. The hospital’s ethnopsychiatry department therefore recommended that his treatment continue in a specialised centre for vulnerable persons.

The Court noted that the Gambian health care system was ill-equipped to deal with the applicant’s mental illness. It was also highlighted that the current mental health legislation is outdated and, although the Gambian Constitution forbids discrimination against disability, lacks specific references to mental illness. The Tribunal of Milan highlighted the fundamental rights of individuals with mental illnesses are often violated, something exacerbated by social stigma surrounding mental illness. In particular, it found that the common perception in Gambia of people suffering of mental illness was they were “less human”, together with the association of this disease with witchcraft, implies that people affected by serious mental illness in the country are considered as part of a distinct group, both by the society and the national authorities.

The Court held that if returned to Gambia the applicant would face a well-founded fear of persecution based on his membership of a particular social group.

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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Greece: National Commission for Human Rights urges authorities to act upon immediate measures regarding the safety of migrant children

On 19 September, the Greek National Commission for Human Rights (GNCHR) issued a statement calling on the Greek authorities to undertake urgent measures, as indicated by the European Committee of Social Rights, to ensure safe and dignified living conditions for migrant children in Greece. The immediate measures were indicated in the Committee’s decision of May 23 following a collective complaint filed against Greece by the International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) concerning the situation of migrant children.

The Commission observed that the European Network of National Human Rights Institutions (ENNHRI), of which the GNCHR is a member, has expressed its support for the Turin process, aiming to reinforce the normative system of the European Social Charter (ESC). It further emphasised the role of National Human Rights Institutions in the protection of social rights and the promotion of the ESC, as reflected in a recent decision by the Committee of Ministers of the Council of Europe on the protection of civil society space in Europe.

The Commission reiterated its position on the protection of migrant children, including the need to provide sufficient guarantees of housing, access to health care and education, the prompt appointment of a guardian, and the abandonment of detention measures. It also expressed concern over the number of unaccompanied children currently living in inappropriate conditions in the reception centres of the Eastern Aegean islands and Evros, as well as those held in police stations under protective custody. Moreover, the implementation of the newly adopted national guardianship system has been postponed until March 2020. Lastly, ongoing administrative obstacles relating to the issuance of social security numbers may impede access to health and education for children both on the islands and the mainland.

The GNCHR recalled that Greece ratified the revised European Social Charter in 2016 and has accepted the Collective Complaints system established with the 1995 Additional Protocol. In this vein, it noted that immediate measures are necessary to avoid irreparable harm and the effective protection of ESC rights. Greek authorities have therefore been urged to implement the immediate measures as instructed by the Committee as a matter of priority.

Thank you to Stavros Papageorgopoulos, Legal Officer at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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United Nations


UNHCR: Updated policy on engagement with internally displaced persons

The United Nations Refugees Agency (UNHCR) has published a mandatory policy outlining its engagement with internally displaced persons (IDPs).

The policy reaffirms the UNHCR’s commitment to effective engagement in cases of internal displacement, requiring country, regional, and global operations to deploy resources to secure solutions for IDPs. The UNHCR therefore aim to promote, inter alia: the responsibility of States to respond to cases of IDPs; direct engagement with affected communities; and a multi stakeholder engagement with IDPs. The UNHCR has also outlined the need to use its expertise in protection and scenario planning to prepare strategies in case of emergencies, as well as the coordinated operational strategy to deliver solutions, before allowing local and national actors to take over when possible.

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NGOs


Refugees Welcome: Response to reduced deadline for family reunification applications in Denmark

On 19 September 2019, Refugees Welcome published a consultative response to the reduced deadline for family reunification applications in Denmark. This response describes changes made by the Danish government to reduce family reunification application deadlines from two years to three months. Refugees Welcome argues this change constitutes a major setback in family reunification cases.

In concluding, Refugees Welcome express deep concern that the restricted time-frame will have negative consequences on a number of families and fails to reflect a sensible approach to investing in the future of applicants.

Based on an unofficial translation by the EWLU team.

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ELENA


Many thanks to Emily Cunniffe for her contributions to the EWLU 

ECRE/ELENA would like to express our appreciation to Emily Cunniffe for her invaluable contribution to the ELENA Weekly Legal update and the work of Legal Support and Litigation Team over the past six months. Emily has contributed significant time and energy in order to make the EWLU interesting, up to date and informative. Her excellent legal research and drafting skills contributed to high quality and timeliness of ECREs' legal research and submissions. Her case summaries and social media skills were appreciated by many users of the EDAL database.

Emily will be greatly missed and we hope she continues her engagement with the ELENA network. We wish her the best of luck with her timely and much needed research on asylum proceedings.

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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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