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ELENA Weekly Legal Update (EWLU)

11 January 2019
 

Summary


European Court of Human Rights National Developments United Nations



 

European Court of Human Rights


Communicated case against Hungary

  • W.K. against Hungary (application no. 14442/18): The case concerns the threatened expulsion of a Congolese citizen who claims to be a member of the Movement for the Liberation of Congo. The applicant complains that his removal to the Democratic Republic of Congo would put him at a serious risk of treatment in violation of Article 3 of the Convention.

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Saber and Boughassal: Court finds that Spain failed to properly assess the proportionality of the expulsion of two convicted Moroccan nationals 

On 18 December, the European Court of Human Rights (ECtHR) ruled on a case (application nos 76550/13 and 45938/14) concerning the expulsion of two Moroccan nationals following their convictions for criminal offences in Spain.

The two applicants had obtained temporary residence permits in Spain, pending the issuance of their long-term residence permits. However, due to their conviction for criminal offenses the Spanish authorities initiated expulsion proceedings against both applicants. Following extensive domestic litigation, the applicants brought the case before the ECtHR arguing that the measures had infringed upon their right to respect for their private and family life.

In view of the applicants' length of stay in Spain, as well as their relationship with their close relatives established there, the Court considered that the contested measures had to be regarded as an interference with their right to respect for their "private life". The ECtHR did not concur with the national court’s finding that the exercise of balancing the right to respect for private and family life, and the respect for public order, had already been conducted by the legislators when providing for the possibility to expel foreign nationals, who have been convicted of offences. Instead, the Court observed that the nature and seriousness of the offences was only one of the criteria to be balanced by the national authorities when assessing the necessity of an expulsion and a ban from the territory, according to its own case law.

The ECtHR further observed that the Higher Court of Catalonia had explicitly refused to examine the proportionality of the impugned measures and that it had held that the conviction of one of the applicants particularly highlighted the fact that he could not be considered as having roots in Spain. In this regard, the Court concluded that the offence alone cannot demonstrate the lack of social or family ties of the person concerned with the country of residence. Additionally, the national court had not taken into consideration the length of the applicants’ residence in Spain, their school attendance, or the solidity of the applicants’ social, cultural and family ties both to Spain and Morocco.

Consequently, the Court held that the Spanish authorities had failed to balance all the competing interests in order to assess whether the challenged measures had been proportionate to the legitimate aims pursued, finding that there has been a violation of Article 8 ECHR.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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The European Court of Human Rights is introducing a pilot non-contentious procedure

Starting on 1 January 2019, the European Court of Human Rights will be piloting a new practice involving a dedicated non-contentious phase, with the aim of facilitating friendly settlements.

The new practice will involve two aspects. Firstly, the Court’s Registry will usually make a friendly settlement proposal when respondent governments are given notice of applications. Secondly, there will be two distinct phases in the procedure: a 12-week friendly settlement phase (non-contentious), and a further 12-week observations phase (contentious with an exchange of observations). The Court, however, may refrain from making a settlement proposal in cases raising novel legal issues or where the nature of the case would render a friendly settlement proposal inappropriate.

The Court will decide whether to continue this practice at the end of a one-year test period.

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Ongoing fax issue and temporary fax numbers

Due to an ongoing issue with the Court’s fax, all communication via fax should be directed to the designated temporary numbers:

  • For interim measures: +33 (0)3 90 21 43 50 instead of +33 (0)3 88 41 39 00
  • For other correspondence: +33 (0)3 90 21 43 10 instead of +33 (0)3 88 41 27 30

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National Developments


Belgium – Council of State suspends registration quota on asylum requests

On 20 December, the Belgian Council of State decided to suspend a measure introducing a cap on the number of asylum application registrations.

The decision, which limited the number of possible registrations to 50-60 per day, was challenged before the Council of State by several civil society organisations. The Council of State assumed competence and dismissed the government’s arguments against the urgent procedure, finding that the risks that prospective asylum applicants were facing, due to the contested measure, could not be the subject of an ordinary procedure.

The Council took note of the applicants’ repeated attempts to return to the registration office, in order to submit an asylum application, to conclude that such a measure constitutes a barrier to the effective exercise of a fundamental right. It further disagreed with the government’s argument that the current measure only postpones and does not bar the exercise of the right to asylum, by referring to the fundamental nature of the right to apply for asylum recognised to everyone fleeing persecution and in the meaning of the 1951 Geneva Convention and the national law.

Lastly, the Council particularly stressed the importance of Article 7 (1) of the Asylum Procedures Directive, which obliges the Member States to make sure that every person, whether a minor or an adult, has the right to make an asylum request. In this connection, the Council concluded that prima facie the contested act makes it unreasonably difficult to gain effective access to the procedure.

The Council decided to suspend the measure with immediate effect.


Based on an unofficial translation by the ELENA Weekly Legal Update.

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Germany – Münster Administrative Court obliged the German asylum authorities to accept a delayed take charge request from Greece

On 22 December 2018, the Administrative Court of Münster ruled in a case concerning an interim measure brought forward by two brothers, both Syrian nationals, claiming a violation of their rights under Articles 8 and 17 (2) of the Dublin Regulation.

The older brother had been in Germany since September 2015, having been granted subsidiary protection status, while the minor arrived to Greece with his cousin in 2016 and applied for asylum there. After several family reunification requests to the Federal Office for Migration and Refugees (BAMF) were rejected, the case was brought before the administrative court.

First, the Court held that, in light of the paramount importance of the fundamental right to family unity and the best interest of the child, as reflected in Articles 8 to 10 of the Regulation, the applicants had an individual, subjective right to request that Germany be recognised as the Member State responsible for the minor’s asylum application. Such right is justiciable in accordance with Article 27 (1) of the Dublin Regulation, as well as Article 47 of the Charter of Fundamental Rights of the EU and national law, at least where a Member State wrongfully does not assume its responsibility, affecting the applicant’s right to family unity and the best interest of the child.

Secondly, the Court held that the temporary guardianship awarded to the applicant’s cousin could not be regarded as custody under Greek law, resulting in the cousin being considered as a representative of the minor in accordance with Article 6 (2) of the Regulation. Following this, the Court concluded that the young brother was an unaccompanied minor and Germany was the Member State responsible for his application, as reunification with his older brother was in the best interest of the child. Moreover, this responsibility was not affected by the delayed request, as the failure should be attributed to the Greek authorities, having wrongfully insisted on the request for family reunification to be made in writing, and to his cousin’s delay in submitting it. In this vein, the Court found that Article 21 of the Regulation not only aimed at distributing responsibility among the Member States but also at safeguarding the specific interests of asylum seekers to have their applications reviewed in due course. Thus, in the context of the importance of family unity, a delayed request cannot be in line with the overall aim of the Dublin framework, inasmuch as it renders family reunification permanently impossible.

Finally, the Court ruled that Germany was in any case responsible to examine the minor’s application for international protection under Article 17 (2) of the Dublin Regulation, as the discretion therein should be considered as a legal obligation in light of the importance of the child’s rights. The BAMF was ordered to accept the delayed take charge request.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Vinzent Vogt, Legal Coordinator at Equal Rights Athens, for bringing the case to our attention.

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United Nations


UN Committee against Torture blocks return of rejected asylum-seeker from Switzerland to Eritrea

On 7 December, the UN Committee against Torture (CAT) ruled on an individual communication concerning the decision of Swiss authorities to return an Eritrean deserter back to his home country.

The applicant had escaped forced recruitment by the Eritrean armed forces and left his country to apply for asylum in Switzerland in 2014. His account was rejected as not credible and he challenged the first-instance decision before the Federal Administrative Tribunal (TAF).

Following a prima facie consideration, the appeal was rejected as inadmissible as the applicant failed to pay the procedural fee. The case was then brought before the CAT, which issued a request for interim measures to prevent the applicant’s deportation. Upon examination of the communication, the Committee relied on the latest Report of the Special Rapporteur, reiterating the serious situation of human rights in Eritrea and particularly stressing that the forced and indefinite military service constitutes enslavement of an entire population, amounting, thus, to a crime against humanity.

It then went on to consider the handling of the applicant’s case by the Swiss authorities, identifying significant procedural errors at both instances. Taking note of the Swiss government’s claim that the applicant’s account was inconsistent and contradictory, the Committee observed that proper legal counselling was not made available to him during the asylum proceedings, while his request to have interpretation in his mother tongue was also not respected. Lastly, the hasty and costly procedure at the TAF level made it impossible for the applicant to effectively address the risks he would face upon return and to properly contest negative findings regarding the authenticity of the documents he had presented.

The Committee found that the applicant’s expulsion to Eritrea would amount to a violation of Article 3 of the Convention against Torture and ordered Switzerland to re-examine the applicant’s case.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Boris Wijkström, lawyer at the Centre Suisse pour la Défense des Droits des Migrants, for bringing this case to our attention.

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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 Julia Zelvenska (jzelvenska@ecre.org).
 


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