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ELENA Weekly Legal Update (EWLU)

30 September 2016
 

Summary

National Developments NGOs

European Court of Human Rights


Communicated cases:

 

E.S. v. Spain (no. 13273/16), communicated 25 August 2016

On 25 August 2016, the European Court of Human Rights communicated the case of E.S. v. Spain (no. 13273/16), which relates to the deportation of a homosexual Senegalese national from Spain to Senegal. The Court asked the parties whether the applicant, taken into consideration his sexual orientation, would face a real risk of being subjected to treatment in breach with Articles 2 and 3 ECHR, if returned to Senegal. In addition, the Court asked the parties to what extent the applicant was able to access an effective remedy within the meaning or Article 13 ECHR in relation his asylum application.
 
Based on an unofficial ELENA translation.

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Hannan and Kirakosyan v. the Netherlands (no. 70286/14), communicated 30 August 2016

On 30 August 2016, the European Court of Human Rights communicated the case of Hannan and Kirakosyan v. the Netherands (no. 70286/14). The case relates to the detention of an accompanied Syrian child at the asylum application centre at Schiphol Airport in the Netherlands. The applicants, the child’s parents, submitted an application to the ECtHR complaining that the detention of their son violated Article 3 ECHR. Referring to Popov v. France, Mushkhadzhiyeva and Others v. Belgium, and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, the Court asked the parties whether the detention of the accompanied child in the asylum application centre at Schiphol Airport amounted to inhuman or degrading treatment.

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S.S. v. Russia (no. 21535/16), communicated 5 September 2016

On 5 September 2016, the European Court of Human Rights communicated the case of S.S. v. Russia (no. 21535/16). The case relates to the removal decision of a Syrian national from Russia to Syria. The applicant entered Russia on a single entry visa in August 2014. The Federal Migration Service (FMS) rejected his subsequent application for temporary asylum. The District Court ordered his administrative removal from Russia, which was upheld by the court of appeal. Eventually, the applicant was granted temporary asylum until 26 August 2016. The applicant submitted an application to the ECtHR complaining that his removal to Syria would be in breach of Article 3 ECHR, in view of the ongoing military conflict.
 
Referring to the case of L.M. and Others v. Russia, the Court asked the parties whether the applicant’s removal from Russia to Syria would be in violation of Article 3 ECHR. It further asked if the temporary asylum decision and a pending application for asylum have suspensive or other legal effect vis-à-vis the enforceable removal order.

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S.W. v. Russia (no. 10803/16), communicated 6 September 2016

On 6 September 2016, the European Court of Human Rights communicated the case of S.W. v. Russia (no. 20803/16). The case relates to the detention and removal of a Syrian national from Russia to Syria. The applicant submitted an application to the ECtHR complaining that his removal to Syria would be in breach of Article 2, 3, and Article 4 of Protocol 4 ECHR. In addition, the applicant complained that his immigration detention is in violation of Articles 5(1) and (4) ECHR. The applicant also alleged that his legal representative had not been allowed to visit him in detention.
 
The Court’s questions to the parties raise issues relating to the applicant’s pending removal, detention and effective remedies.

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European Union


CJEU: Case C-348/16 – Request for preliminary ruling from the Tribunale di Milano, Sacko Moussa v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano

On 22 June 2016, the Tribunale di Milano (Italy) lodged a request to the CJEU for a preliminary ruling in the case Sacko Moussa v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano.
 
The question referred is:

  1. Must Directive 2013/32/EU ( 1 ) (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum-seeker — whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview — may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?

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European Commission: Reports on the progress made under the European Agenda for Migration

On 28 September 2016, the European Commission reported on the progress made under the European Agenda for Migration, including the EU’s relocation and resettlement schemes, the implementation of the EU-Turkey Statement and the measures to be taken by Greece in view of the resumption of transfers under the Dublin Regulation.
 
In the Sixth report on relocation and resettlement, the European Commission highlights, inter alia, that 1,202 people have been relocated in September 2016. In addition, 10,695 people have been resettled under the July 2015 scheme to 21 resettling States, including Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom). In the Third Report on the progress made in the implementation of the EU-Turkey Statement, the European Commission addresses the decrease of people crossing the Aegean Sea, the continuing of the return operations to Turkey, and the delivery of funding under the Facility of Refugees in Turkey.
 
Lastly, the European Commission adopted the Third recommendation on urgent measures to be taken by Greece in view of the resumption of transfers under the Dublin Regulation. The recommendation states that further progress needs to be achieved with regards to the reception facilities, the access to the asylum procedure and the structures for vulnerable applications, before a resumption of Dublin transfers to Greece can be considered.

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National Developments


Italy: Council of State suspends Dublin transfers to Bulgaria and Hungary

The Italian Council of State has delivered its first judgments suspending transfers of asylum seekers to Hungary and Bulgaria under the Dublin Regulation, to prevent violations of fundamental rights

Hungary: in Judgment 4004/2016, the Council of State examined the recent legislative and policy developments in Hungary, leading to an increase in the use of detention, as well as risks of refoulement to third countries. The Court drew on information contained in reports by UNHCR, the European Commission against Racism and Intolerance (ECRI) and Amnesty International, among others. On the basis of deficiencies in the asylum procedure and reception conditions, the Court found that the transfer of the asylum seeker to Hungary would violate Article 4 of the EU Charter of Fundamental Rights.

Bulgaria: Judgments 3998/2016, 3999/2016, 4000/2016 and 4002/2016 annulled decisions transferring asylum seekers to Bulgaria, on account of risks of inhuman or degrading treatment contrary to Article 4 of the EU Charter of Fundamental Rights.
 
The ELENA Weekly Legal Update would like to thank Silvia Canciani and Loredana Leo from ASGI for bringing this to our attention.

Based on the AIDA article dated 29 September 2016, available here.

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Netherlands: District Court rules the ministerial regulation designating FYROM as a safe country of origin non-binding

On 19 September 2016, the District Court of The Hague ruled upon the designation of the Former Yugoslav Republic of Macedonia (FYROM) as a safe country of origin.
 
The case relates to the asylum applications from a Macedonian family, members of the Romani community. The State Secretary of Security and Justice had dismissed their asylum claims as manifestly unfounded because FYROM was considered as a safe country of origin.
 
The Court deemed the following arguments of the State Secretary irrelevant for the designation of FYROM as a safe country of origin: (i) that Macedonian citizens are exempt from the visa obligation to be admitted to the European Union, (ii) that a number of other Member States have also designated FYROM as a safe country of origin, (iii) that FYROM has been granted candidate country status for membership of the European Union, and (iv) that the European Commission has proposed to place FYROM on the EU list of safe countries of origin.
 
Instead, the State Secretary should his safe country of origin assessment on relevant information from other Member States, EASO, UNHCR, Council of Europe and other relevant international organisations. Referring to the Advocate General’s opinion on the safe country of origin concept, the Court therefore observed that the designation of FYROM as a safe country of origin did not meet the legal requirements. The Court ruled the ministerial regulation, which indicated FYROM as a safe country of origin, non-binding. The appeal was granted.
 
Based on an unofficial translation.

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United Kingdom: Home Office Country Information and Guidance on Sexual orientation and gender identity in Iran

The Country Information and Guidance Iran: Sexual orientation and gender identity provides information and guidance to decision-makers on handling asylum applications based on sexual orientation and gender identity.

Where there is a real risk that an LGBT person – or those reasonably likely of being suspected as such – will come to the attention of the authorities, the UK Home Office finds that the person would face a real risk of persecution. As LGBT persons in Iran are considered as members of a particular social group within the meaning of the Refugee Convention, they are likely to qualify for a grant of asylum. While homosocial and bisexual persons may be able to internally relocate, decision makers must consider this in line with the Supreme Court’s judgment in HJ (Iran).

For further information and guidance on the asylum applications based on sexual orientation see Asylum Instruction on Sexual identity in the asylum claim.                                                                                    

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NGOs


Amnesty International – Stranded Hope: Hungary’s sustained attack on the rights of refugees and migrants

Amnesty International has published the report Stranded Hope: Hungary’s sustained attack on the rights of refugees and migrants. The report addresses Hungary’s structural breaches of European asylum law and international human rights law with regards to the treatment of refugees and migrants. This includes, inter alia, the failure to provide access to a prompt and effective asylum procedure at its border with Serbia, routine push-backs from Hungary into Serbia, and detention of asylum-seekers for extended periods without legitimate grounds.

The report therefore calls on the European Commission to reinforce the infringement proceedings against Hungary in order to bring Hungary’s migration and asylum policies in accordance with EU and international law obligations.

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International Commission of Jurists – Comments on the proposed Dublin IV Regulation  

On 27 September 2016, the International Commission of Jurists (ICJ) published "Procedural rights in the proposed Dublin IV Regulation" Comments of the International Commission of Jurists on specific procedural measures in the Recast of the Dublin Regulation.
 
The ICJ submission focuses on the potential impact of the current proposal on the rights of asylum seekers in Europe, including the right to an effective remedy, the principle of non-refoulement and economic and social rights.

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Vacancy


ECRE is recruiting a Senior Communications Coordinator

ECRE is recruiting a Senior Communications Coordinator to lead its communications work, strengthening external and internal communications in order to protect and advance the rights of refugees, asylum seekers, and displaced persons. ECRE’s communications work will support the delivery of all its objectives, covering legal, research and advocacy work. As part of a process of restructuring and strategic planning, ECRE is rebuilding its communications team, starting with the creation of this position.
 
Deadline for applications is 13 October 2016, see here the job description.

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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 (ivankrimpen@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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






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