ELENA Weekly Legal Update - 11 April 2014
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11 April 2014


European Court of Human Rights
United Nations
Council of Europe
National Developments

European Court of Human Rights

Upcoming judgments and decisions of interest 

Tuesday 15 April 2014

- Asalya v. Turkey (no. 43875/09) [Articles 2, 3, 5, 8 and 13] (conditions, lawfulness and lack of review of detention pending deportation from Turkey of a wheel-chair bound Palestinian to the Gaza strip, where he fears persecution by Israeli forces)

- Decision on the applicant’s request of referral to the Grand Chamber of Sharifi v. Austria (no. 60104/08), judgment of 5 December 2013, in which it was held that the Austrian authorities could not be expected to have known that the applicant’s Dublin transfer to Greece in October 2008 would expose him to deficiencies in the asylum system reaching the Article 3 threshold.

Thursday 17 April 2014

- Paposhvili v. Belgium (no. 41738/10) [Articles 2, 3, and 8] (proposed deportation of man with a number of serious medical conditions to Georgia, where necessary treatment is allegedly unavailable and he would be separated from his family in Belgium)

- Lici v. Greece (no. 69881/12) [Articles 3 and 13] (detention conditions and availability of effective challenge for an Albanian national held in pre-trial detention in police headquarters and the Aliens Directorate premises in Salonika)

- Gayratbek Saliyev v. Russia (no. 39093/13)[Articles 3, 5 and 13] (Persecution risk of proposed extradition to Kyrgyzstan of ethnic Uzbek charged with involvement in inter-ethnic riots in Southern Kyrgyzstan, and complaints concerning effectiveness of remedy against extradition and length of review of detention legality)

- Ismailov v. Russia (no. 20110/13) [Articles 3, 5 and 13] (Proposed deportation to Uzbekistan of an Uzbek national wanted on suspicion of membership of an extremist and terrorist organisation, lack of effective remedy against removal, and lawfulness of detention pending removal)

Read the forthcoming judgments press release and the forthcoming Grand Chamber referral decisions press release of the ECtHR.

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United Nations

UNHCR: Recommendations on the implementation of the Durable Solutions Process for refugees from Croatia displaced by the 91-95 conflict, including cessation of refugee status

Almost 20 years after the end of the 1991-95 conflict in the former Yugoslavia, UNHCR has recommended the cessation process for refugees from Croatia to commence.

Article 1C(5) of the Refugee Convention provides that the Convention shall cease to apply to any person if ‘he can no longer, because circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’. An important caveat in the same paragraph excludes cessation for a refugee ‘who is able to invoke compelling reasons arising out of previous persecution’.

UNHCR concludes that ‘the circumstances that triggered displacement have fundamentally changed. Regional cooperation has intensified, voluntary returns have taken place, different ethnic groups have proven able to peacefully co-exist and economic and political progress is increasingly visible’. Exceptions to UNHCR’s recommendation that international protection is no longer required are made with regard to witnesses of war crimes, members of the Roma minority, undocumented stateless refugees, and refugees whose trauma during the war was particularly severe.

UNHCR states that by the close of 2014, host countries can end refugee status for the 49,056 refugees from Croatia registered in the region, almost all of whom are ethnic Serb.

Notwithstanding the cessation of refugee status, UNHCR notes that the individuals affected still need support, and recommends that states remain engaged in the Regional Durable Solutions process, which includes a programme providing housing to refugees, internally displaced persons, and their families. ‘The successful integration of former refugees is a long term process which continues after refugee status has ceased. In the Western Balkans challenges remain for minority groups to access employment, housing, public services and infrastructure as well as to overcome discrimination’.

Read UNHCR’s press release and the full recommendations.

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Council of Europe

Parliamentary Assembly: Resolution adopted on ‘Urgent need to deal with new failures to co-operate with the European Court of Human Rights’

During the Council of Europe Parliamentary Assembly’s debate on 10 April 2014, Resolution 1991 (2014), concerning disrespect for Rule 39 interim measures of the European Court of Human Rights (ECtHR), was adopted.

In paragraph 4 of the Resolution, ‘the Assembly strongly condemns instances of outright violations by several States Parties to the Convention (Italy, the Russian Federation, the Slovak Republic and Turkey) of the Court’s interim measures aimed at protecting applicants from extradition or deportation to countries where they would be at risk of, in particular, torture’.

Paragraph 6: ‘The Assembly is therefore particularly concerned about the recent phenomenon, observed in the Russian Federation, of the temporary disappearance of applicants protected by interim measures and their subsequent reappearance in the country which had requested extradition. The clandestine methods used indicate that the authorities had to be aware of the illegality of such actions, which can be likened to the practice of “extraordinary renditions” repeatedly condemned by the Assembly’.

The Resolution concludes with two recommendations to the ECtHR: (1) ‘be as specific as necessary in indicating [Rule 39 interim] measures and ... cautiously explore the possibility of ordering damages on the basis of Article 41 of the Convention in case of violations of interim measures; (2) ‘speed up, to the extent possible, the proceedings on the merits in cases in which it indicates interim measures’.

In the Appendix to an earlier version of the Resolution, and in a Report on which the Resolution is based, a table displays the cases in which Rule 39 has been breached/allegedly breached and whether the ECtHR has declared a consequent violation of Article 34 of the Convention. (Note: the table has not been updated in light of judgments since May 2013).

Read the adopted Resolution (provisional version) of the Parliamentary Assembly.

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Committee of Ministers: Annual report 2013 on the supervision of ECtHR judgments

Last week the Committee of Ministers of the Council of Europe published their annual report for 2013 on supervision of the execution of judgments and decisions of the European Court of Human Rights. Within the report’s thematic overview of the most important developments in the supervision process in 2013, pages 101 to 109 cover ‘issues related to foreigners’. This section is divided into:

(1) Unjustified expulsion or refusal of residence permit (including judicial review of expulsion from Bulgaria, collective transfer of irregular migrants from Italy to Libya, family separation due to deportation from Norway and Russia, and risk of flagrant denial of fair trial due to deportation on national security grounds from the UK)

(2) Detention in view of expulsion (including detention in a closed transit centre in Belgium, transfer by Belgium of an asylum seeker to Greece under the Dublin II Regulation, and detention on security grounds and proposed deportation to Syria from Bosnia and Herzegovina).

Read the Committee’s press release and full report.

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National Developments

United Kingdom: Judicial review finds Home Secretary acted unlawfully in setting payments to meet essential living needs of asylum seekers

In Refugee Action, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) (09 April 2014), the High Court of England and Wales declared unlawful the UK government’s decision to freeze the level of cash payments to meet the essential living needs of asylum seekers for 2013/2014 at the rates which had applied since 2011. The High Court agreed with the applicant, ECRE Member Refugee Action, that the government had failed to take into account relevant essential living needs in the provision of asylum support, and had failed to gather sufficient information to enable a rational judgment to be made. The weekly cash support for asylum seekers must now be reconsidered in light of the judgment.

Asylum seekers in the UK are excluded from most social security benefits and are ordinarily prohibited from working pending the determination of their claim. Instead, under section 95 of the Immigration and Asylum Act 1999, the government may provide support to asylum seekers without accommodation and unable to meet other essential living needs.

Alongside free accommodation, healthcare and education services, support for essential living needs is met by weekly cash payments. From 2000 to 2007, asylum support was increased proportionately to Income Support rates. From 2008 to 2011, asylum support increased in line with price inflation, at a lower rate than before. Since 2011, there has been no increase in weekly asylum support levels, which have remained at £36.62 for a single adult, £72.52 for couples, £43.94 for lone parents, £39.80 for 16 & 17 year olds, and £52.96 for children under 16.

The High Court ruled that the Home Secretary, when setting the level of cash payments, had erroneously failed to take into account (1) certain essential household goods, (2) special requirements of new mothers, (3) non-prescription medication and (4) ‘the opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life’ [117]. She also failed to consider whether it is an essential living need to (1) travel by public transport to attend appointments with legal advisors, (2) make telephone calls to maintain necessary contact with families and legal representatives, and (3) purchase writing materials for communication and for the education of children [118].

At [158], the Court concluded further flaws: (1) She [the Home Secretary] erroneously treated the rates as being increased by 11.5% from their 2007 levels; (2) She failed to identify and take into account the extent of the decrease in rates in real terms since 2007; (3) She misunderstood or misapplied information which she treated as important in reaching her decision ... (4) She failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014; (5) She failed to understand that a majority of 16 and 17 year olds would be subject to compulsory full time education for the school year 2013/2014.

According to government data, at the end of December 2013, the number of asylum seekers in receipt of section 95 support in the UK was 23,459.

The Court also reviewed the decision in light of the EU Reception Conditions Directive. Article 13(2) requires the provision of ‘material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence’. However, the Court’s conclusions were adopted only on the basis of domestic law.

Read the judgment of the High Court, and Refugee Action’s press release and judgment briefing.

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United Kingdom: Children’s Commissioner report on unaccompanied children refused asylum

The Children’s Commissioner’s report, entitled ‘"What's going to happen tomorrow?": Unaccompanied children refused asylum’, makes a number of recommendations to the UK government, including (page 89): (1) exempt children’s asylum cases from any merits test in order to obtain legal aid; (2) bring within scope for legal aid all claims from children and young people under immigration control who arrived as children and remain under the age of 25; (3) Appoint a guardian or specialist advocate as soon as an unaccompanied or separated child is identified, in line with Article 18(2) and 20(1) of the UN Convention on the Rights of the Child. Guardianship arrangements should be maintained until the child has either reached the age of majority (where settlement has been established) or has permanently left the UK’s territory; (4) Review the legal aid cap of £800 for unaccompanied children’s cases and base any future cap on a realistic average for properly preparing a straightforward children’s case.

Read the full report and press release of the Children’s Commissioner.

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Italian Council for Refugees: Report published on access to the territory, border controls and the asylum procedure in Italy

The Italian Council for Refugees (CIR) has published a report on the Italian legislation and practices regarding border controls, access to the territory and to the asylum procedure.

In March 2011, Italy officially declared the end of its “push-backs” policy that was condemned by the European Court of Human Rights in Hirsi Jamaa and others v. Italy. According to the report, Italy has respected this commitment with a few exceptions, such as in June 2012 when a joint Italian-Libyan patrol intercepted a boat of Eritrean migrants on the high seas and escorted them to Libyan waters, at which point they were handed over to Libyan authorities. The Italian Custom police denied their involvement.

According to CIR, the law should require that law enforcement authorities must verify the treatment to which migrants would be exposed in the country where authorities intend to return them. Migrants should have the right to appeal a return order and the appeal should have a suspensive effect. Also, CIR recommends that binding rules on disembarkation of migrants and the concept of a “safe place” should be adopted.

CIR also notes that the bilateral agreements signed with North African third countries such as Libya, Egypt, Algeria and Tunisia to speed up the readmission of irregular migrants arriving in Italy, may hinder access to procedural guarantees. Guarantees include the right to be informed and to receive legal assistance, the right to an effective remedy and the possibility to contact NGOs or other organisations specialised in migration-related issues and asylum.

CIR also underlines that these fast-track readmission procedures prevent an adequate identification of vulnerable groups in need of protection, such as unaccompanied children, asylum seekers and victims of torture or trafficking. In addition, these agreements do not envisage provisions concerning the respect of human rights and the principle of non-refoulement.

Read the full report (in Italian but with an English summary at the end) of the Italian Council of Refugees.

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Amnesty International and ECRE: Both reiterate call on European states not to send asylum seekers back to Bulgaria under the Dublin Regulation

Both Amnesty International and ECRE have recently reiterated their call on States not to send asylum seekers back to Bulgaria under the Dublin procedure until the conditions for asylum seekers in the country improve substantially and the Bulgarian authorities are able to comply in practice with their obligations under EU and international law. According to ECRE’s statement, EU Member States and other countries participating in the Dublin system must assume responsibility for examining the asylum application of the asylum seekers concerned, in accordance with Article 3(2) and Article 17 of the recast Dublin Regulation.

While acknowledging and welcoming the efforts made by all actors involved to improve the situation for asylum seekers in Bulgaria, ECRE considers that sufficient safeguards are still not in place to ensure that asylum seekers’ fundamental rights are respected and protected in practice. Moreover, according to ECRE, by not returning asylum seekers to Bulgaria at this time, Member States can show solidarity and allow Bulgaria to further strengthen and improve its asylum system.

During a visit to Bulgaria in March, Amnesty International found that, despite some progress, living conditions in some of the reception centres continue to be inadequate and asylum seekers in Bulgaria continue to be routinely detained.

UNHCR is expected to announce their updated assessment of the Bulgarian asylum system shortly.

Read Amnesty's report and press release and ECRE's statement.

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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