ELENA Weekly Legal Update - 27 June 2014
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27 June 2014


European Court of Human Rights

European Court of Human Rights

M.E. v. Sweden (no. 71398/12) [Articles 3 and 8], 26 June 2014 

A six-to-one majority of the European Court of Human Rights (ECtHR) has rejected a Libyan national’s complaint that his return from Sweden to Libya would expose him to a risk of persecution based on his homosexuality.

The Swedish authorities refused the applicant’s asylum claim and seek to require him to return to Libya in order to apply for family reunion with his partner, a permanent resident of Sweden to whom he is married. The authorities indicate that the process would take about four months. The applicant argued that removal to Libya, even for four months, would entail a risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights.

Based on the absence since the fall of Gadhafi’s regime in 2011 of public records of any prosecutions for homosexual acts, which are punishable by imprisonment under the Libyan Penal Code, the ECtHR majority hold that there is insufficient evidence that ‘the Libyan authorities actively persecute homosexuals’. In reaching this conclusion, the majority has regard to the fact that ‘homosexuality is a taboo subject and seen as an immoral activity against Islam in Libya’.

The ECtHR majority go on to conclude that, based on his decision not to reveal his sexual orientation to his family back in Libya, the applicant has made an ‘active choice to live discreetly’ due to ‘private considerations’ rather than fear of persecution. In the majority’s view, ‘even if the applicant would have to be discreet about his private life [during the four months in Libya], it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time’.

Although the lack of Swedish representation in Libya will necessitate the applicant to travel to the Swedish embassy in Algeria, Tunisia or Egypt for a few days in order to be interviewed for family reunion, the majority again state that the applicant won’t be exposed to persecution ‘in such a short time frame’.

The single dissenting judge concludes that ‘[w]ith this judgment, the Strasbourg Court introduces a new test of ‘duration’ that is not to be found elsewhere in comparative European law’. Citing the X, Y, Z judgment of the Court of Justice of the European Union, which holds that individuals cannot be expected to conceal their sexual orientation to avoid persecution, the dissenting judge states that ‘[w]hat counts is the fact of having to exercise greater restraint and reserve than would be required of a heterosexual in the expression of sexual orientation—and not the length of time for which the discriminatory restraint and reserve would have to be endured’.

The dissenting judge also highlights the United Kingdom Border Agency Country of Origin Information Report on Libya, dated 19 December 2012, which reports allegations of homosexuals in Libya being arrested, assaulted and beaten ‘simply for being homosexual’.

The ECtHR unanimously rejected two additional complaints of the applicant: his allegation that his prior arrest for illegal weapons smuggling put him at future risk of reprisals from the military authorities was dismissed due to a perceived lack of credibility; the claim that separation from his partner would violate his right to family life was rejected because the time apart was temporary and telephone contact was possible.

Read the judgment of the European Court of Human Rights.

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De los Santos and de la Cruz v. Greece (nos. 2134/12 and 2161/12) [Article 3], 26 June 2014

The applicants are nationals of the Dominican Republic who were arrested in August 2011 for illegal entry into Greece and detained in the Thessaloniki department for illegal immigration pending removal.

The applicants state that the Thessaloniki detention centre was overcrowded, poorly ventilated and insufficiently lit due to wire mesh covering the windows; they also state that there was inadequate recreation provision. Conditions were such that the first applicant required transfer to Papageorgiou Hospital in Thessaloniki after a little over a month of detention.  The applicants also submit that the sum of 5.87 euros allocated to them per day was insufficient to purchase a meal each.

The ECtHR noted that is has on several occasions found deficiencies in detention conditions in Greece, particularly with respect to overcrowding and lack of recreation provisions (Siasios et al. v. Greece, no. 30303/07; Vafiadis v. Greece, no. 24981/07; Shuvaev v.  Greece, no. 8249/07; Tabesh v.  Greece, no. 8256/07; Efremidi v.  Greece, no. 33225/08; and Aslanis v. Greece, no. 36401/10).

The Court held that in the present case the applicants were placed in a cell where the area was less than 3 square meters per person, where the majority of inmates slept on mattresses on the ground, the only exercise consisted of walking into a small hallway, and they had only poor access to light. Finally, the Court noted that it has repeatedly stressed the inadequacy of the allocation of a sum of 5.87 euros per day for food (see, among others, Chkhartishvili v. Greece, no. 22910/10).

The ECtHR found that there was no cause for it to reach a different conclusion in this case than that which it had reached in the various cases cited. The Court found for both applicants a violation of Article 3 ECHR during their stay in Thessaloniki.

The applicants were granted 6,500 Euros each as compensation for non-pecuniary damage.

Read the judgment (French only) of the ECtHR.

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Yarashonen v. Turkey (no. 72710/11) [Articles 3, 5 and 13], 24 June 2014 

The applicant, a Russian national of Chechen origin, fled to Turkey in 2000 after his father and brother were allegedly killed by Russian security forces. In October 2010, he was arrested and, found to not possess a passport, was detained pending deportation at Atatürk International Airport police station and then at Kumkapı Removal Centre. He was released in April 2011 and granted an asylum-seeker certificate.

The applicant complained to the ECtHR that, contrary to Article 5(1), (2), (4) and (5) ECHR, his detention was unlawful, he was not informed of the reasons for his detention, he was not given an opportunity to challenge his detention, and he was not able to obtain compensation. He also alleged that his detention conditions at the removal centre - which included overcrowding, poor hygiene, and lack of medical care for the tuberculosis he contracted in detention – as well as his inability to rasie complaints about the conditions, were contrary to Articles 3 and 13 ECHR.

Article 5

The ECtHR followed earlier judgments in finding that, at the time of the detention, the absence of clear legal provisions in Turkish law establishing a procedure for detention pending deportation meant the authorities acted unlawfully and therefore inconsistently with Article 5(1). The absence in the applicant’s interview transcript of any notification of the reasons for detention led the ECtHR to also find a violation of Article 5(2). The ECtHR also saw no reason to depart from earlier judgments which found that foreign nationals were unable to seek judicial review of detention or obtain compensation, and accordingly declared violations of Article 5(4) and (5).

Article 13

On the effectiveness of the remedy to complain about conditions of detention, the ECtHR noted that the Turkish authorities could not find a single example ‘where recourse to an administrative court or authority had led to the improvement of detention conditions and/or to an award of compensation for the anguish suffered on account of the adverse material conditions’. The Turkish authorities had therefore failed to illustrate the practical effectiveness of the alleged judicial review remedy. The ECtHR also stated that two additional facts undermined the effectiveness of any remedy: (a) under Turkish law at the material time, the detention of foreign nationals under immigration was not regarded as a ‘deprivation of liberty’, but merely ‘accommodation’ or ‘sheltering’ pending deportation; (b) there is no comprehensive regulation concerning detention conditions against which the conditions in practice could be evaluated. A violation of Article 13 was declared.

Article 3

Without considering the matters in dispute between the parties concerning detention conditions, the ECtHR felt able to find a violation of Article 3, based on the government’s own submissions and reports by the Committee for the Prevention of Torture, the UN Special Rapporteur for migrant rights, and a delegation of Turkish MPs. Overcrowding, lack of outdoor access for the entire six month detention period, and the absence of indoor recreational activities were the principal problems relied on.

Concerning a related complaint that the applicant’s lack of medical assistance constituted a violation of Articles 3 and 13, the ECtHR ruled that the applicant, by not raising complaints during or after detention, had failed to exhaust domestic remedies.

The ECtHR ordered 10,000 Euros to be paid to the applicant in respect of non-pecuniary damage.

Read the judgment of the European Court of Human Rights.

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Upcoming judgment of interest

Thursday 3 July 2014

Mohammadi v. Austria (no. 71932/12) (Proposed Dublin removal of Afghan asylum seeker from Austria to Hungary – risk of detention in deplorable conditions and of refoulement to a third country without consideration of asylum claim)

Read the forthcoming judgments press release of the European Court of Human Rights.

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European Union

Court of Justice: AG Opinions in cases C-166/13 Mukarubega & C-249/13 Boudjlida, 25 June 2014

Advocate General Wathelet has published two Opinions on French preliminary references C-166/13 Mukarubega and C-249/13 Boudjlida, which both concern the nature and scope of an individual’s right to be heard when their removal is sought by national authorities in accordance with the Returns Directive. ‘[T]he right of every person to be heard, before any individual measure which would affect him or her adversely is taken’ is guaranteed by Article 41(2)(a) of the Charter of Fundamental Rights of the EU (“the Charter”).


Boudjlida concerns an Algerian national who was asked to leave French territory within 30 days after his application for a residence permit in France was refused by French authorities. In the context of his appeal to the Pau Administrative Court, that court asked the Court of Justice of the EU (“CJEU”) to clarify whether the right to be heard in this removal context includes ‘the right to be put in a position to analyse the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection, and to enjoy the assistance of counsel of his own choosing?’ Additional questions asked whether, and if so, to what extent and on the basis of what criteria, the right to be heard can be limited in view of the general interest objective of the Returns Directive.

The AG Opinion for Boudjlida concludes that, prior to the return of a third country national, the competent authority must hear the individual’s arguments concerning (a) the lawfulness of their stay, (b) the possible application of Article 5 of the Returns Directive, which requires the authority to take account of the principle of non-refoulement, the right to family life, the bests interests of the child, and individual’s state of health, and (c) the application of any exceptions to return contained in Article 6(2) to (5) of the Returns Directive – these sections cover situations in which the individual can travel to and lawfully remain in another Member State, or the individual can go to another Member State via bilateral agreement, or where there are humanitarian reasons to allow the individual to stay, or where separate proceedings for renewal of a residence permit are pending.

The AG resolves that EU law does not in general require the competent national authority to give information to an individual prior to the hearing for the adoption of their return decision, nor to communicate the elements on which the authority intends to base that decision, nor to allow the individual a period of reflection before raising observations. However, such a requirement does exceptionally apply where a third country national could reasonably doubt the possible adoption of a return decision or suspect the existence of elements that could be used against him, which would require him to conduct certain verifications or to obtain supporting documentation.

On the right to legal counsel, the AG concludes that a Member State, if it permits an individual to obtain legal advice, is not obligated by EU law to enable that individual to do so by way of free legal aid. The right to seek legal advice should also not compromise the smooth running of the return procedure and the effective implementation of the Returns Directive.

Finally, the AG holds that the overall objectives of the Returns Directive do not require any limitation to the content of the right to be heard.


Mukarubega is about a Rwandan woman in France who was detained pending removal after her application for asylum was refused by French authorities. The Melun Administrative Court referred questions to the CJEU asking if, prior to executing a return decision, ‘irrespective of whether or not that return decision is taken after a refusal of a residence permit, and in particular in a situation where there is a risk of absconding, the administration must enable the interested party to present observations?’ An additional question asks whether such a right to present observations can be dispensed with if the individual can initiate separate misuse of power proceedings before the administrative court, which have suspensive effect on any proposed return.

The AG Opinion in this case concludes that, where the authorities have already given the individual a right to be heard in the context of asylum proceedings, and have declared their continued stay to be unlawful, the individual has no right to be heard again prior to making a decision to remove. However, if after an initial rejection of asylum proceedings, the individual chooses to initiate new proceedings on a different legal basis – e.g. an application for regularisation of stay for humanitarian reasons – then the national authority must re-hear the individual, even if the purpose of both applications is substantially identical (i.e. the recognition of the regularity of a stay).

On the additional question, the AG responds that the opportunity after a return decision is issued to lodge ‘contentious’ proceedings with suspensive effect does not absolve the authorities of a responsibility to hear the individual in the first instance prior to making the return decision. This rule, according to the AG, can be qualified by limitations in national law that are consistent with Article 52(1) of the Charter – i.e. limitations on fundamental rights that are necessary, proportionate and genuinely meet objectives of general interest or the protection of others.

Based on unofficial ECRE translations from French

Read the AG’s Opinions in Boudjlida (not available in English) and Mukarubega (not available in English).

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Commission: Proposal to amend Article 8(4) of the Dublin III Regulation on unaccompanied minors

On 26 June 2014, the European Commission published a proposal to amend Article 8(4) of the Dublin III Regulation, which determines the Member State responsible for examining the asylum application of an unaccompanied minor.

Currently, Article 8(4) provides that, in the absence of a family member elsewhere in the EU, ‘the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor’.

According to the Commissioner Malmström’s press release on the new proposal, which seeks to bring the Dublin Regulation in compliance with the C-648/11 MA & Others judgment of the Court of Justice of the EU, ‘a minor applicant for international protection will have his or her case examined by the Member State where he/she has lodged an application, and where he/she is present. The applicant will remain on the territory of that Member State during the examination application process, unless this is not in his/her best interests’.

The press release states that ‘[t]he proposal, amending the Dublin Regulation, provides legal certainty about the responsibility for examining applications from unaccompanied minors who have no family, siblings or relatives on EU territory. It covers cases when the minor has lodged multiple applications for international protection, including in the Member State where he or she is currently present. Also, it proposes that in cases when a minor is present in a Member State without having lodged an asylum application there, this Member State should provide him/her with the opportunity to lodge an application’.

A more detailed Commission press release expands upon the rules: ‘[i]f he/she decides not to lodge an application in the Member State where he/she is present, the Member State responsible should be the one where the minor has lodged his/her most recent application, unless this is not in the best interests of the minor … In order to jointly establish the Member State responsible and avoid conflicts of interest, the concerned Member States shall cooperate in assessing the best interests of the minor. Finally, to facilitate cooperation between Member States and prevent abuse, the proposal provides that Member States must inform each other of a newly assumed responsibility’.

The Commission proposal will now be discussed by the European Parliament and the Council of the EU. According to the press releases, ‘[t]he Commission hopes an agreement can be reached during the Italian Presidency’, which runs from 1 July to the end of December 2014.

Read the Commission’s proposal, and the press releases of the Commission and Commissioner Malmström.

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National Developments

United Kingdom: Court of Appeal approves country guidance on protection claims by Sri Lankans

The Court of Appeal of England and Wales, in MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829, has ruled that the UK Upper Tribunal’s July 2013 country guidance on assessing protection claims by Sri Lankan asylum seekers (“UT guidance”) does not unlawfully depart from UNHCR’s December 2012 Eligibility Guidelines on Sri Lanka (“UNHCR guidelines”).

The appellants contended that the UT guidance unlawfully restricted the more ‘generous’ and ‘protective’ approach of the UNHCR guidelines by stating that: ‘[t]he focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE [Tamil Tigers] in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war... The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state’.

Rather than focus on current activists in the diaspora, the UNHCR guidelines state that ‘previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the circumstances of the individual case’.

The Court of Appeal held that the UT guidance’s narrowing from ‘previous links to LTTE areas’ to ‘existing diaspora activism’ ‘chimes with common sense’ [19]: ‘[t]hree years after the end of the civil war and after the completion of the large-scale rehabilitation programme, it is entirely understandable that the Sri Lankan authorities, seeing that the LTTE within the country was “a spent force” and in the absence of significant acts of terrorism, decided to turn its attention to the group identified by the UT as separatists and destabilisers’.

The Court of Appeal also rejected submissions that the UT guidance did not give appropriate weight to the evidence of actual returnees and human rights organisations.

Read the judgment of the Court of Appeal.

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Asylum Information Database: updated AIDA report on Malta

The Asylum Information Database (AIDA) compiles information on asylum procedures, reception conditions and detention in 14 Member States. Original country reports for each Member State were published in July 2013, and are subject to periodical updates. A new updated AIDA report on Malta is now online.

The updated report, compiled by ECRE member organisations aditus foundation and Jesuit Refugee Service Malta (JRS), indicates that Malta has not yet implemented the July 2013 judgments of  Aden Ahmed v. Malta and Suso Musa v. Malta, in which the ECtHR indicated measures that Malta must take in order to make the detention regime for asylum seekers ECHR-compliant. The ECtHR requested the Maltese authorities to establish a mechanism to allow individuals seeking a review of the lawfulness of their immigration detention to obtain a determination of this claim within a reasonable time-limit. It further recommended that Malta take the necessary steps to improve detention conditions and shorten the length of detention of asylum seekers.

The two ECtHR judgments, which became final in December 2013 after the Grand Chamber refused the Maltese government’s request for referral, found violations of Article 3 (prohibition of inhuman or degrading treatment), Article 5(1) (right to liberty) and Article 5(4) (right to have lawfulness of detention decided speedily by a court) ECHR.

The AIDA report also highlights that anyone who enters the Maltese territory without the necessary documents is detained upon arrival. In 2013, around 1,900 individuals went through detention in Malta. In addition, asylum seekers who arrive in Malta in an irregular manner are not always effectively informed of the possibility and/or of the means of challenging the removal order issued against them.

Finally, the report highlights that, in 2013, the Office of the Refugee Commissioner raised the level of protection granted to Syrian asylum seekers to subsidiary protection (a status granted to people recognised as fleeing war, torture or inhuman or degrading treatment). This decision eliminates the distinction made earlier between Syrians reaching Malta after the start of the conflict, and those in Malta before. Where those who had been in Malta for some time and who only applied for asylum after the start of the conflict were found not eligible for refugee status, they were granted ‘Temporary Humanitarian Protection’ instead of subsidiary protection. This domestic form of protection, while still providing protection from forced return and a selection of the same rights of beneficiaries of subsidiary protection, is not set out in law and is granted on a discretionary basis. In a number of cases, the Refugee Appeals Board has overturned first instance decisions and granted the asylum seekers concerned subsidiary protection. All Syrian applicants who had been granted Temporary Humanitarian Protection have had their protection changed to subsidiary protection. Currently, all new Syrian applicants who prove their Syrian nationality are granted, as a minimum, subsidiary protection.

This report is part of the Asylum Information Database (AIDA), a project of the European Council on Refugees and Exiles (ECRE), in partnership with Forum Refugiés-Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council. AIDA focuses on asylum procedures, reception conditions and detention of asylum seekers in EU Member States.

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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 Matthew Fraser (mfraser@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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