ELENA Weekly Legal Update (EWLU)

22 April 2016

Please note that the ELENA Weekly Legal Update will be on a break until 3 June 2016.


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

European Court of Human Rights

Ha.A v. Greece (no. 58387/11), [Articles 3, 5(1) & 5(4)], 21 April 2016

The case of Ha.A v. Greece (no. 58387/11) relates to an Iraqi national who was arrested for irregularly entering Greece in August 2010. An order was made to detain him pending deportation, and he was transferred to the Tychero border post. The applicant’s asylum claim was rejected. He challenged his detention on 13 December 2010, but this was upheld on the basis that he posed a risk of absconding. This decision was revoked in January 2011 as he had been offered accommodation by an NGO, and he was released.

The applicant complained before the ECtHR that there had been a violation of Article 3 ECHR on account of his poor conditions of detention at the Tychero border post, and violations of Article 5(1) and 5(4) ECHR in relation to the lawfulness of his detention and inability to challenge it.

Given several reports by Greek and international bodies that visited the Tychero border post which described severe overcrowding, the ECtHR considered that the applicant did not have sufficient living space according to the criteria set out in its previous case law. As such, the detention of the applicant for five months in these conditions amounted to a violation of Article 3 ECHR.

The Court considered that the applicant’s detention was based on national law, and was for the purpose of preventing his irregular stay in Greece and for the purpose of his expulsion. The period of his detention of around five months was not excessive in light of the administrative formalities for expulsion, its request to Turkey to admit the applicant and it’s processing of his asylum claim. There was therefore no violation of Article 5(1) ECHR. There were shortcomings in domestic law at the relevant time as to the effectiveness of the judicial review of detention pending deportation in violation of Article 5(4) ECHR, in accordance with the ECtHR’s previous case law (see e.g. A.A. v Greece, Tabesh v. Greece, S.D. v Greece).

Based on an unofficial ELENA translation. The English press release from the ECtHR is available here.

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European Union

CJEU: Case C-558/14 Khachab v Subdelegación del Gobierno en Álava

The CJEU has given a preliminary ruling in Case C-558 Khachab v Subdelegación del Gobierno en Álava, relating to the interpretation of Article 7(1) c) of the Family Reunification Directive (FRD). The applicant is a third country national with a long-term residence permit in Spain, whose application for family reunification with his spouse was refused on the basis that he had not provided evidence of sufficient resources to maintain his family once reunited.

The Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco submitted a question to the CJEU for preliminary ruling on the compatibility of Spanish legislation with Article 7(1) c) FRD. This permitted a refusal of family reunification where a prospective assessment by the national authorities indicated that the sponsor would fail to retain stable and regular resources sufficient to maintain the family in the year following the application, taking into account the sponsor’s income pattern in the 6 months preceding the application.
The CJEU reiterated principles set out Joint Cases O & S that as authorisation of family reunification is the general rule, the margin of appreciation for Member States in Article 7(1) c) must be interpreted strictly, and cannot be used in a manner undermining the objective of the FRD and the effectiveness of this. It had to be interpreted and applied in light of fundamental rights set out in inter alia, Article 7 of the Charter and with a view to promoting family life (preamble 2 FRD; Parliament v Council).

It considered that the words ‘stable and regular’ in Article 7(1)c) required a certain degree of permanence and continuity, which meant that Member States were not precluded from analysing the pattern of such resources, or a prospective assessment of whether they would be retained. The use of the present tense ‘has’ did not alter this interpretation, as it required the sponsor to have sufficient resources at the time of application, but which must also remain stable and regular. Reference to ‘prospects’ of obtaining permanent residence (Article 3(1) FRD) and the ability to withdraw or refuse applications where conditions are ‘no longer satisfied’ (Article 16(1)a) FRD) also supported such an interpretation. Furthermore, the objective of Article 7(1) FRD was to assess whether the family were likely to become a burden on the social assistance system during their period of residence. This necessarily implies that the Member State is able to prospectively assess whether a sponsor will retain stable and regular resources beyond the date of submitting the application.

The national legislation allowed Spanish authorities to assess this for a period of one year after application, which the CJEU considered a proportionate, balanced, and reasonable time period in light of other provisions in the FRD and in line with its case law. Similarly the 6 month period prior to application for assessing the pattern of resources was not considered capable of undermining the objective of the FRD. In addition, a family reunification application could only be refused under Spanish law if it is determined ‘beyond doubt’ that the sponsor would be unable to retain sufficient resources, which was deemed proportionate.
The CJEU concluded that the Spanish legislation was compatible with Article 7(1)c) FRD.

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United Nations

UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan

On 19 April 2016, UNHCR published new eligibility guidelines on Afghanistan, which supersede its previous guidelines of August 2013, and contain an assessment of recent developments and up to date country information that may impact the assessment of international protection needs for persons from Afghanistan.

UNHCR sets out a non-exhaustive number of risk profiles related to the ongoing armed conflict in Afghanistan, or on the basis of serious human rights violations not directly related to the conflict, or a combination of both. It reiterates the need to undertake an individual assessment of risk in each specific case, as well as a need for careful assessment in the light of evidence presented by the applicant and other reliable information, given the fluid nature of the conflict in Afghanistan. Guidance is also provided on the application of internal protection alternative in Afghanistan, as well as exclusion.

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National Developments

Sweden: Restrictive changes to asylum and immigration law

An amended Bill presented by the Swedish government, which contains restrictive changes to its immigration and asylum law, is currently going through Parliament. The proposals are aimed at introducing temporary provisions to reduce asylum regulations ‘to the minimum level in the EU so that more people choose to seek asylum in other EU countries’. These are due to enter into force on 20 July 2016 and last for 3 years, although the changes will be applicable to those who applied for residence permits after 24 November 2015, when the proposals were first announced.

Residence permits for those granted international protection will no longer be permanent, with refugees to be granted three years residence and holders of subsidiary protection, thirteen months. These are extendable if the grounds for protection still exist. In Sweden, the majority of Syrian nationals are granted subsidiary protection rather than refugee status. Upon expiry of the temporary residence permit, a permanent residence permit will be granted only if the person is able to support themselves. For those under the age of 25, this will only be granted if they have completed upper secondary education, and not solely through working. A child may be granted permanent residence in limited circumstances in light of the state of their health.

The Bill also includes restrictions to family reunification, which will now be limited to refugees, excluding holders of subsidiary protection, unless ‘a decision to refuse a residence permit would be contrary to a Swedish Convention obligation’. Furthermore, family reunification will be restricted to nuclear family members 

The Bill is available in Swedish here.

The ELENA Weekly Legal Update would like to thank the ELENA national coordinator for Sweden, Michael Williams, for providing this information and his assistance with the summary.

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Finland: Supreme Administrative Court rules against Dublin III returns to Hungary due to ‘systemic flaws’ in asylum procedures and reception conditions

In decision KHO: 2016: 53 of 20 April 2016, the Supreme Administrative Court of Finland has ruled that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in Hungary within the meaning of Article 3(2) of the Dublin III Regulation (DRIII). This ruling sets a precedent and therefore must be followed by lower courts in Finland. 

The appellant is an Afghan national who challenged his transfer from Finland to Hungary, which was responsible for examining his asylum application under Article 18(1)b) DRIII and which had accepted his transfer.

The Supreme Administrative Court  referred to the AIDA Country Report on Hungary, the AIDA Fact-Finding Mission and the third party intervention by the CoE Commissioner of Human Rights in two ECtHR cases relating to Dublin returns to Hungary. It also relied on a number of national judgments of other EU Member States in which courts had prevented Dublin returns to Hungary due to a risk of human rights violations, many of which are included in the ECRE Case Law Fact Sheet

The Court found that in accordance with Article 3(2) DRIII, the principle of mutual trust and presumption that a responsible Member State under the Regulation will comply with the fundamental rights of asylum applicant, was not absolute. Although the threshold to depart from this presumption was high, there were strong indications that there were systemic flaws in the asylum procedure and reception conditions in Hungary within the meaning of Article 3(2) based on the materials before the Court, including the jurisprudence of other Member States.

As such the Court finds that transfer is not allowed for particularly vulnerable persons. Although the appellant in the case is an adult healthy male, he would still be at risk of removal to Serbia and onward refoulement to his country of origin without his asylum claim being substantively considered in any jurisdiction.  Although he could apply for suspension of removal in Hungary, including possible recourse to the ECtHR, the effectiveness of such a remedy was uncertain due to the numbers of applications the Hungarian authorities had to deal with as well as problems with legal advice and interpretation services for asylum seekers. When the principle of the ‘benefit of the doubt’ was also taken into consideration, alongside the principle of interpreting laws in a manner respective of fundamental human rights, the case had to be ruled in favour of the appellant in this uncertain situation. Taking into account up-to-date country of origin information, it was not possible to reliably ascertain that the appellant's return to Hungary would not violate Article 4 CFREU or Article 3 ECHR

The Court concludes that based Article 3(2) DRIII, the appellant's application for international protection must be assessed in Finland.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank the ELENA national coordinator for Finland, Marjaana Laine, for providing us with this information and her assistance with the summary.

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ECRE: AIDA Country Report on Spain

AIDA has published a new country report on Spain, written by ACCEM. It details the workings of the Spanish asylum procedure, pending a legislative reform of the Asylum Law aimed at implementing the recast EU Directives on Asylum Procedures and Reception Conditions, which should have been transposed into national law by last July. It also offers a critical discussion of the country’s controversial age assessment procedure for unaccompanied children.

Access to the territory and the asylum procedure remains acritical challenge in the Spanish protection system. Following an amendment to the Aliens Law in March 2015, allowing authorities to “reject at borders” third-country nationals that are found crossing the border illegally, Spain has been criticised for ignoring human rights law and international law obligations towards asylum seekers and refugees. This critique has also formed the subject of N.D. and N.T. v. Spain, a case pending before the European Court of Human Rights, which ECRE has jointly intervened in, with the AIRE Centre, Amnesty International, and the ICJ. Persons entering the enclaves of Ceuta and Melilla are kept in temporary stay centres (CETI), before being transferred to the mainland. Conditions in those centres were, however, substandard due to overcrowding last year. The CETI of Melilla, whose maximum capacity is 480 places, was hosting 1,156 people last October.

Beyond Ceuta and Melilla, Spain has generally suffered from a shortage of accommodation places in recent months. To address gaps in the reception system up until now managed by 3 NGOs, the government adopted a Decree in September to expand reception capacity by authorising 3 more organisations to provide housing to asylum seekers. The same measure provided for the possibility to host asylum seekers in hotels for a maximum period of 30 days to wait for an accommodation place to be made available.

Based on the AIDA article dated 18 April 2016, available here.

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Thank you to Zarina Rahman

ECRE/ELENA would like to express our appreciation to Zarina Rahman for her invaluable contribution to the ELENA Weekly Legal update and the work of ECRE and ELENA over the past eleven months. Zarina has contributed her energy and time in order to make the EWLU interesting, up to date and informative. Her excellent legal research and drafting skills were instrumental in ensuring the efficiency and high quality of ECRE/ELENA legal research and support. Her blog articles and case summaries were appreciated by many users of the EDAL database.

Zarina will be greatly missed and we wish her the best of luck in her future endeavours, and hope that she continues her engagement with the ELENA network.

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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 Zarina Rahman (, or Julia Zelvenska (

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