European Court of Human Rights
Ramadan v. Malta (no. 76136/12) [Article 8 ECHR], 21 June 2016
The fourth section of the European Court of Human Rights has given its ruling in the case of Ramadan v. Malta (no. 75136/12) concerning the revocation of an acquired citizenship.
Mr Ramadan (the applicant), originally an Egyptian citizen, acquired Maltese citizenship following his marriage to a Maltese national. It was revoked by the Minister of Justice and Internal Affairs following a decision by the relevant domestic court to annul the marriage on the ground that Mr Ramadan’s only reason to marry had been to remain in Malta and acquire Maltese citizenship. Meanwhile, the applicant remarried a Russian national. They currently reside in Malta with their two children. The applicant submitted an application to the ECtHR complaining that the revocation of his Maltese citizenship by the government violated his right guaranteed by Article 8 ECHR.
The Court reiterated that although the right to citizenship is not as such guaranteed by the ECHR, an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 ECHR because of the impact of such denial on the private life of the individual. The Court observed that a loss of a citizenship already acquired or born into, as in the applicant’s case, could have the same (and possibly a bigger) impact on a person’s private and family life as a person claiming the right to acquire citizenship or complaining about the denial of recognition of such citizenship. Thus, also in these situations an arbitrary revocation of citizenship could in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual.
In the circumstances of the applicant’s case, the Court found that the decision depriving him of his citizenship, which had had a clear legal basis under the relevant national law and had been accompanied by hearings and remedies consistent with procedural fairness, had not been arbitrary. The Court further stated that the applicant was aware that an annulment of his marriage could result in the revocation of his Maltese citizenship. The current claim was therefore a direct result of his own fraudulent behaviour and the consequences are therefore a result of his own choices and actions. The applicant was not threatened with expulsion from Malta and had been able to reside and pursue his business activities in Malta. Moreover, the applicant could still apply for a work and residence permit which could eventually make him eligible for citizenship. Lastly, he had not sufficiently convinced the Court that he had relinquished his Egyptian nationality nor demonstrated that he would not be able to re-acquire it if he had done so. Therefore, there had not been a violation of Article 8 ECHR.
Back to top
CJEU: AG Opinion Case C-429/15 Evelyn Danqua v The Minister for Justice and Equality, Ireland and the Attorney General
Advocate General Bot has given his opinion on the preliminary ruling from the Court of Appeal of Ireland, which concerned the procedural lawfulness followed by the Irish authorities in examining Ms Danqua's application for subsidiary protection.
By virtue of the distinct asylum procedures in Ireland and the time limit with which to apply for subsidiary protection following a negative decision on an asylum application, Ms. Danqua’s application for subsidiary protection had been rejected on the ground that it had not been lodged within a period of 15 working days. An appeal before the High Court on grounds of equivalence was rejected and a subsequent appeal to the Court of Appeal resulted in a preliminary reference to the CJEU as to whether the principle of equivalence precludes a national procedural rule that requires an application for subsidiary protection status to be made within a period of 15 working days of notification of the rejection of an application for refugee status.
Advocate General Bot considers the application of the principle of equivalence in the current proceedings irrelevant. According to settled case law, the principle of equivalence can be applied in two distinct situations, namely in order to compare (i) the procedural rule applicable to an action based on EU law or (ii) the procedural rules applicable to a similar action based on national law. Those situations are not satisfied in the main proceedings. Firstly, the situation in the main proceedings concerns two actions based on EU law, namely the application for refugee status and the application for subsidiary protection status. Secondly, an application for refugee status and an application for subsidiary protection status do not constitute similar actions.
Advocate General Bot however proposes to examine the national procedural rule from the perspective of the principle of effectiveness. In this regard, it should be analysed if the current national procedural rule regarding the application for subsidiary protection ensures that these individuals are in a position to avail themselves of the rights safeguarded by the Qualification Directive. In short, Advocate General Bot proposes that the Court replies to the Court of appeal that the principle of effectiveness must be interpreted as precluding a national procedural rule which requires that an application for subsidiary protection status be made within a period of 15 working days of notification of the rejection of an application for refugee status. It is for the competent national court to determine whether the period within which the application for subsidiary protection status was made is reasonable, taking into account all the human and material circumstances surrounding the examination of the application for international protection. To that end, that court must examine whether the person concerned was put in a position that made it possible for her to exercise her rights effectively, taking into consideration, inter alia, the conditions under which she was assisted in completing her applications and the conditions under which she was given notification of the rejection of her application for refugee status.
Back to top
LIBE Committee – Report on the Reform of the Dublin III Regulation
Dr. Francesco Maiani, associate professor at the University of Lausane, has written a study on “The Reform of the Dublin III Regulation” for the Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee).
The report examines the performance of Dublin and of relocation schemes, and assesses the Commission’s “Dublin IV” Proposal in this light. It argues that by retaining the Dublin philosophy and betting on more coercion, Dublin IV is unlikely to achieve its objectives while raising human rights concerns. The report proposes that the EU responsibility allocation schemes should focus on the quick access to asylum procedures. This requires taking protection seekers’ preferences seriously and de-bureaucratising the process. Such a reform would need to be accompanied by (a) stepping up the enforcement of refugee rights across the EU, (b) moving solidarity schemes from a logic of capacity-building to one of compensation, and (c) granting protected persons real mobility rights.
Back to top
UN Committee on Economic, Social and Cultural Rights: UK in breach of international human rights obligations towards asylum seekers
On 24 June 2016, the UN Committee on Economic, Social and Cultural Rights adopted their concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland.
The Committee is especially concerned about the challenges faced by asylum seekers in the enjoyment of economic, social and cultural rights, particularly due to restrictions in accessing employment and the insufficient level of support provided through the daily allowance (art. 2, para. 2 and 11). It is therefore recommended that the UK increases the level of support provided to asylum seekers, including through the daily allowance in order to ensure their enjoyment of economic, social and cultural rights, in particular the right to an adequate standard of living.
Furthermore, the Committee is concerned that refugees and asylum-seekers, who have received a negative decision on their application, continue to face discrimination in accessing health care services. In this regard, the Committee notes that the Immigration Act of 2014 has further restricted the access to health services for temporary and undocumented migrants (Article 12). For this reason, the Committee recommends that the UK takes steps to ensure that temporary and undocumented migrants, asylum seekers, asylum seekers, whose claims have been rejected, and refugees have access to all necessary health care services, and reminds the UK that health facilities, goods and services should be accessible to everyone without discrimination, in line with article 12 of the Covenant.
Back to top
Netherlands: The Hague District Court – Dublin Transfer to France
In a judgment of 8 June 2016, The Hague District Court ruled that the State Secretary of Security and Justice had insufficiently justified its decision that a family’s Dublin transfer to France would not constitute a violation of Article 3 ECHR and Article 4 of the EU Charter.
The asylum application of a Serbian family, who claimed asylum in the Netherlands, was rejected because the family had previously applied for asylum in France. According to the take back request, the family would have to report in Bordeaux. In response, the applicants claimed that France currently does not provide adequate reception facilities. In particular, the family argued that in practice many individuals subject to a Dublin transfer lived on the streets or in squats around Bordeaux. In this regard, the applicants specifically referred to the Human Rights Watch report entitled ‘France: Migrants, Asylum Seekers Abused and Destitute’
of 20 January 2015 and the AIDA Country Report: France
of January 2015 and December 2015. They argued that the Secretary of State should obtain individual guarantees from the French authorities regarding the adequate reception of the family in accordance with the judgment in Tarakhel v Switzerland
. The State Secretary claimed absence of systemic deficiencies in the asylum procedure and in the reception system for asylum seekers in France.
Referring to the AIDA report, the Court concluded that many ‘Dublin returnees’ live either on the streets or in squats in France. Even though the local authorities in Bordeaux had created emergency reception facilities in hotels, many asylum seekers still end up on the streets. Additionally, the State Secretary had not referred to any recent information that concluded otherwise. As a result, the State Secretary had insufficiently justified its decision that the family’s Dublin transfer to France would not constitute a violation of Article 3 ECHR and Article 4 of the Charter.
The Court obliged the State Secretary to investigate the current situation regarding reception facilities and conditions in Bordeaux. If necessary, the State Secretary should request individualised guarantees by the French authorities that the family would be placed in adequate reception facilities in order to prevent a breach of Article 3 ECHR and Article 4 of the Charter.
Based on an unofficial translation by the ELENA Weekly Legal Update.
Back to top
Netherlands: The Hague District Court – Dublin Transfer to Lithuania
In a judgment of 3 June 2016, The Hague District Court ruled on the subject of a Dublin transfer to Lithuania.
The case relates to a national of Tajikistan, who arrived in the Netherlands through Kazakhstan, Ukraine and Lithuania. As the applicant’s Schengen visa had been issued by Lithuania, the State Secretary of Security and Justice submitted a take back request to the Lithuanian authorities, which was subsequently accepted.
The applicant claimed that the principle of mutual trust within the framework of the Dublin Regulation should not have been applied with regards to Lithuania. In this regard, the applicant referred to the US Department of State report entitled ‘Country report on Human Rights Practices for 2015’ of April 2015. According to this report, the Lithuanian authorities, as a matter of policy, had previously barred asylum seekers coming from “safe” countries of transit and would return asylum seekers to such countries without reviewing the substantive merits of their asylum applications.
This practice was confirmed by the State Secretary. The State Secretary, however, claimed that it was the responsibility of the asylum seeker to demonstrate to what extent this practice similarly applied to his individual circumstances.
The Court ruled against the State Secretary. According to the Court, the aforementioned report had revealed that certain groups of asylum seekers would be subjected to (indirect) refoulement. Most notably, the report had confirmed that this was ‘a matter of policy’. In view of this, the State Secretary had the obligation to further investigate the application of this practice in Lithuania with regards to the absolute character of Article 3 ECHR. The Court obliged the Secretary of State to take a new decision in light of the present ruling.
Based on an unofficial translation by the ELENA Weekly Legal Update.
Back to top