ELENA Weekly Legal Update (EWLU)

23 August 2019

The EWLU will be back on 6 September 2019


European Court of Human Rights

Updated Guide on Article 1 of the European Convention of Human Rights

The European Court of Human Rights has updated its guide on Article 1 of the European Convention of Human Rights (ECHR) regarding Contracting States’ obligations to respect human rights, concepts of “jurisdiction”, and the imputability of violations of the ECHR to the European Union and other organisations.

The guide first presents case law on the territoriality principle, including an assessment of the relationship between Article 1 and Article 56 ECHR, as well as jurisdictional links created by the commencement of civil or criminal proceedings. This section also examines exceptions to the territoriality principle examining cases such as the acts of diplomatic or consular agents and acts committed on board a ship or aircraft.

The second section addresses imputability to the European Union of an alleged violation, examining the Bosphorus presumption and the principle of equivalent protection, as well as imputability to the UN and other international organisations of alleged violations. 

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European Union

CJEU: New Preliminary Reference from the Netherlands on the Returns Directive

The Court of Justice of the European Union has communicated a new asylum-related preliminary reference from the Court of the Hague in the Netherlands, T.Q. (C-441/19) regarding the Return Directive 2008/115/EC:

  • Should Article 10 of Directive 2008/115/EC (‘the Return Directive’), read in conjunction with Articles 4 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’), recital 22 of the preamble and Article 5(a) of the Return Directive and Article 15 of Directive 2011/95/EU  (‘the Qualification Directive’), be interpreted as meaning that, before imposing an obligation to return on an unaccompanied minor, a Member State should ascertain and then should investigate whether, at least in principle, adequate reception facilities exist and are available in the country of origin?
  • Should Article 6(1) of the Return Directive, read in conjunction with Article 21 of the Charter, be interpreted as meaning that a Member State is not permitted to make distinctions on the basis of age when granting lawful residence on a territory if it is established that an unaccompanied minor does not qualify for refugee status or subsidiary protection?
  • Should Article 6(4) of the Return Directive be interpreted as meaning that, if an unaccompanied minor does not comply with his obligation to return and the Member State does not and will not undertake any concrete actions to proceed with removal, the obligation to return should be suspended and lawful residence should be granted? Should Article 8(1) of the Return Directive be interpreted as meaning that, where a Member State imposes a return decision on an unaccompanied minor without then undertaking any removal actions until the unaccompanied minor reaches the age of eighteen, that must be considered to be contrary to the principle of loyalty and the principle of sincere cooperation in the Union?

United Nations

UNCAT: Seventh Periodic Review of Greece addresses summary returns and immigration detention 

The United Nations Committee Against Torture (UNCAT) has published its Concluding Remarks in the Seventh Periodic Review of Greece, held on 7 August 2019.

The UNCAT expressed concern about summary returns to Turkey of asylum seekers and migrants, particularly in the Evros region. It urged Greece to adhere to the principle of non-refoulement, to ensure effective access to the asylum system, and criminal accountability for perpetrators of summary returns.

With regard to the asylum system, the UNCAT called for a strengthening of the Greek Asylum Service’s capacity, for case-by-case assessments under the accelerated border procedures, and ensuring that measures restricting freedom of movement are compliant with the UN Convention Against Torture and other human rights legislation. The UNCAT also commented on immigration detention, calling on the Greek Authorities to ensure access to basic safeguards and to refrain from detaining asylum seekers and migrants for prolonged periods, recalling that detention should be used as a measure of last resort. It urged authorities to ensure children are not detained solely on the basis of their immigration status, and that, if detained, they are held in suitable facilities for as short a period as possible.

The UNCAT commented on sexual and gender-based violence against refugee and asylum-seeking women, calling on the authorities to ensure that all cases of gender-based violence are thoroughly investigated and perpetrators are prosecuted. The excessive use of force of police officers, particularly in the hotspots, is also addressed in the review.

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National Developments

Germany: Administrative Court of Munich finds German-Greek Administrative Agreement violates European law and orders return of applicant from Greece

On 8 August 2019, the Administrative Court of Munich (single judge), in a summary proceeding, ordered the Federal Republic of Germany to return an asylum applicant from Greece and to grant him provisional entry to Germany.
The applicant, an Afghan national, crossed the German-Austrian border by train in May 2019. The Federal Police apprehended him during a border entry check and found EURODAC hits for Greece and Austria. The applicant was refused entry to the territory on the grounds that there were ’indications’ that Greece was responsible for the asylum application as per the Dublin Regulation 604/2013 (the Dublin Regulation). A readmission procedure was initiated pursuant to §18 (2) 2 Asylum Act (AsylG) – regarding refusal of entry decisions – and the applicant was returned to Greece on the same date. The Federal Police did not conduct a procedure according to the Dublin Regulation nor an in-depth examination of the applicant’s case or provide for a hearing.
The Federal Police sent a ‘Notification of Refusal of Entry’ to Greece pursuant to the German-Greek Administrative Agreement (the so-called ‘Seehofer Deal’), in respect of the applicant. Upon return to Greece, the applicant was arrested and detained for two-and-a-half months and the authorities in Greece refused to process his asylum application. The applicant has appealed and is awaiting a decision.  Before the Administrative Court of Munich, the Federal Police stated their actions complied with a so-called ‘Pre-Dublin procedure’ for determining the responsible Member State for conducting the actual Dublin procedure, during which it is not mandatory to follow the established procedures of the Dublin Regulation.
In assessing the case, the Court held that it was particularly unclear on which legal grounds the applicant was sent back to Greece by the Federal Police. The Court raised doubts as to the legality of the “Pre-Dublin Procedure” under EU law, particularly given that the applicant’s rights under the Dublin Regulation were not respected and that the overall objective of the Dublin Regulation had been circumvented. It additionally held that the procedural safeguards provided for under the Return Directive 2008/115/EC and the Schengen Borders Code were not also not adhered to. The decision also failed to comply with domestic law as it was carried out by the Federal Police and not the competent authority.
The Court recognised that the applicant was unable to re-launch his asylum application in Greece and was instead likely to face return to Afghanistan without an assessment of the substantive grounds for asylum. Lastly, the judge assumed that Germany had become responsible for the asylum application as no effective take back request pursuant to Article 23 (1) of the Dublin Regulation was issued and the two-month period had thus expired.
The case was litigated with the support of PRO ASYL/RSA and Equal Rights Beyond Borders in Germany. In Greece, AITIMA supported the case.

The EWLU would like to thank Meral Zeller and Belinda Bartolucci of Pro Asyl for providing us with a summary of the case. Based on an unofficial translation.

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Italy: Administrative Court rules against the Italian Government refusal to share documentation of the Italian SAR operations in the Mediterranean Sea

On 1 August 2019, the Regional Administrative Court of Lazio overturned a decision from the Italian Ministry of Infrastructure and Transport to refuse to share information related to the Italian Search and Rescue (SAR) Operations on the grounds of national security and international relations.

At the end of 2018, ASGI (Associazione Studi Giuridici Immigrazione) presented to the Italian Ministry of Infrastructure and Transport a public access request to the reports on two SAR Operations conducted by the Italian Maritime Rescue Coordination Center (IMRCC) on 3-12 October and 5-7 November 2018.

The Ministry rejected this request stating that the SAR operations were part of national and NATO military activities and that information sharing was potentially injurious for national security and Italy’s international relations as established by D. lgs 33/2013 c 5bis.

The Regional Administrative Court of Lazio overturned the decision and held that SAR operations cannot be defined as military operations solely on the grounds of the possible use of military vessels. It concluded that due to the significance, frequency and nature of the fundamental rights at stake in SAR Operations, this type of information cannot be concealed from the public under the rules of transparency. 

Based on an unofficial translation by the ELENA Weekly Legal Update

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Switzerland: Suspension of Dublin transfer to Croatia due to summary returns at border with Bosnia-Herzegovina

On 12 July 2019, the Federal Administrative Court of Switzerland ruled to suspend the transfer of an asylum applicant to Croatia under the Dublin Regulation 604/2013 (the Dublin Regulation) due to the current situation of summary returns at the Croatian border with Bosnia-Herzegovina (E-3078/2019, 12 July 2019).

The applicant, a Syrian national, arrived in Switzerland in March 2019. A EURODAC hit indicated that the applicant was previously registered in Croatia. A take back request was submitted to the Croatian Dublin Unit pursuant to Article 13 of the Dublin Regulation. The applicant appealed the decision on the grounds that Croatia was not a safe country. He stated that he had been returned from the Croatian border 18 times and was imprisoned and abused by Croatian border police. He also submitted that he continues to suffer physically and mentally from his experiences in Croatia.

The Court acknowledged the increasing number of reports concerning the denial of access to the asylum procedures by Croatian authorities and the return of large numbers of asylum seekers to the border with Bosnia-Herzegovina, where they are forced to leave the country. These reports included, inter alia, a report from the Special Rapporteur of the Committee on Migration, Refugees and Displaced Persons of the Council of Europe and the related draft resolution of the Committee.

The Court held that the State Secretariat for Migration (SEM) failed to sufficiently assess the submissions of the applicant, both with regard to the systemic deficiencies in the asylum system in Croatia as well as the applicant’s own experiences and current health. It held that the lower court also failed to examine the risk of chain refoulement from Croatia and whether the alleged ill-treatment by the Croatian authorities could have reached the threshold of a possible violation of fundamental rights protected by Article 3 of the European Convention of Human Rights (ECHR).

Recognising that the right to be heard correlates with the duty of the authorities to actually hear the submissions and to take them appropriately into account, the Court ruled that the SEM must re-examine the case and ordered the suspension of the Dublin transfer.

Based on an unofficial translation by the EWLU team.

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Finland: Supreme Administrative Court overturns ruling on asylum application on grounds of sexual orientation and gender identity

On 20 August 2019, the Supreme Administrative Court of Finland ordered the re-assessment of an applicant’s asylum claim on the grounds of their persecution due to their sexual orientation and gender identity. 

In an appeal from July 2018, the Administrative Court of Northern Finland found the applicant described their sexual orientation, including their experience in a previous relationship, in a general and superficial manner and found their account to not be credible. The Administrative Court upheld the decision of the Immigration Service rejecting the application for international protection and ordered the applicant’s return to Iraq.

In the Supreme Administrative Court, the Court examined the situation in Iraq for individuals who identify as LGBTI+ referencing UNHCR Eligibility Guidelines from 2012, the UNHCR Position on Returns to Iraq from 2016, as well as the latest EASO Country Guidance on Iraq.

The Court held that definitions of sexual orientation and gender identity are unique to each individual and cannot be assessed using generalised concepts. It recognised that sexual orientation as an identity is not directly related to a person's sexual behaviour and that the assessment of international protection concerns should not be based on specific acts of the applicant.

The Court held that the applicant had consistently and sufficiently described their relationship with a man in Iraq and recognised that the applicant self-identified as gay and internally felt that they were a woman. The application was further corroborated by the medical reports submitted by the applicant. The Court held that the applicant had legitimate reasons to fear persecution in their home country. It annulled the previous rulings and referred the matter back to the Immigration Service for re-assessment.

Based on an unofficial translation by the EWLU team.

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Refugee Rights Europe: New report on mistreatment of asylum applicants in Greece

Thirteen civil society organisations have published a new report on the current situation in Greece for asylum applicants. This report relates to a submission from a number of organisations to the United Nations Committee Against Torture (UNCAT) during the recent review of Greece. 

The report details immigration detention, the lack of legal safeguards in detention, access to asylum procedures, reception conditions, access to healthcare, police violence, violence against women, as well as the situation for unaccompanied children and asylum applicants who identify as LGBTI+. Summary returns in the Evros region are also addressed. 

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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 (

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