ELENA Weekly Legal Update - 27 March 2015
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27 March 2015



Council of Europe

Council of Europe

Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights, Annual report 2014

The Committee of Ministers of the Council of Europe has published its annual report on the supervision of the execution of the ECtHR’s judgments.

With regards to the state of play in 2014 there is a new decrease in the number of pending cases, a considerable increase in the number of judgments executed and an increased capacity of response on the part of the Committee of Ministers (CoM). Nevertheless, statistics show that there has been an increase in the number of cases under enhanced supervision with certain cases revealing significant “pockets of resistance.” The repetitive case burden thus remains significant for the Court. This is partly attributed to entrenched social considerations but also due to important systemic/structural problems, in respect of which the domestic remedial response has been slow given the sheer size of the problem or the underlying economic or political sensitivities. This is particularly noted with regards to prison overpopulation and the handling of asylum requests. In this respect there are calls for the implementation of new tools to improve national capacity to execute the judgments. Particular attention is paid to the provision of necessary information, realistic action plans, better communication with national governments and training of legal counsels.

Reporting on the main pending cases as well as those which raise significant structural problems, the publication refers to M.S.S v Belgium and Greece (supervision has been closed with respect to Belgium), Suso Musa v Malta, M.A. v Cyprus, Mubilanzila Mayeka and Kaniki Mitunga v Belgium and Longa Yonkeu v Latvia. Summaries of these judgments are accompanied by final resolutions and decisions as well as the status of action plans and developments. The report comprehensively provides statistics on cases falling under enhanced and standard supervision as well as figures on closed cases, payment of just satisfaction and average execution time of pending and closed cases (Italy, the Russian Federation, Turkey and Ukraine are amongst the countries with the highest outstanding payments as well as the longest execution time for cases).

It is noteworthy to mention that following on from the annual report and a conference on the implementation of the ECHR, a number of NGOS have provided recommendations on how the Ministers should improve implementation. Amongst the main points, the NGOs request that the Brussels Declaration, to be adopted today, asks States to provide information on how the case law of domestic courts takes into account ECtHR judgments, how compatibility of draft and existing legislation with the ECHR and with the jurisprudence is assessed and what domestic accountability mechanisms exist for the non-execution of judgments.

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European Union

European Asylum Support Office (EASO): Judicial analysis of Article 15(c) Qualification Directive 

In order to provide an understanding of the current state of law in international protection claims, EASO has published a judicial analysis of Article 15 (c) of the Qualification Directive (QD), accompanied by CJEU, ECtHR and Member State jurisprudence on the provision.

Published with the judiciary in mind, the analysis first examines the constituent elements of Article 15(c), secondly how the provision is to be applied in practice and thirdly the questions courts and tribunals need to ask when applying Article 15(c). In this regard, then, and noting that a meta-teleological or holistic approach must be pursued when interpreting Article 15(c), the publication highlights that courts and tribunals must take into account a number of elements; armed conflict; civilian’s life or person; serious and individual threat; indiscriminate violence; threshold of the violence; geographical scope and the internal protection alternative. Importantly, the guidance states that within the notion of real risk of serious harm the types of harm may overlap with acts of persecution defined in Article 9 of the QD and, thus, the granting of refugee status is the priority.

Referring to Elgafaji and Diakite from the CJEU and Sufi and Elmi from the ECtHR the publication provides a non-exhaustive list of possible indicators to assess the level of violence in a country of origin. This approach must be qualitative as well as quantitative and, amongst others, must take into account the methods of warfare, the geographical location, socio--economic conditions and the cumulative effects of long lasting armed conflicts.

Attention is further paid to the concept and application of the sliding-scale test, the level of indiscriminate violence and the amended wording in the recast of internal protection, notably safely and legally travel to another part of the country and gain admittance as well as “stay” to “settle” which accordingly envisages a situation of greater stability.

For further information on the topic of internal protection please see: Actors of Protection and the Application of the Internal Protection Alternative (APAIPA)

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United Nations

UNHCR: Comments on the transposition of the Procedures and Reception Directives in Italy

The UNHCR has published its comments on Italy’s transposition of both the recast Procedures and Reception Directives.

Turning first to the Procedures Directive, the UNHCR recommends that in order to ensure compliance with Article 4 of the Directive Italy should create an autonomous body under the Ministry of Interior, specifically responsible for the independent evaluation of asylum claims. Current committees have no specific competences within the field of asylum law. Moreover, the UNHCR urges Italy to introduce and respect the time limits for the registration of an international protection claim, up to 19 days according to Article 6, in order to prevent asylum seekers staying in the centralised reception system, CARAs, for months. Specific time limits should also be established in the case of first instance appeals. In this regard, UNHCR recommends that Italy repeal additional derogations to the suspensive effect of appeals codified in domestic legislation, which arguably go beyond what is allowed for in Article 46 of the Directive.  

As to the Receptions Directive, UNHCR encourages Italy to reform CARAs due to the low quality of services, the prevalence of abuses and inefficiencies, as well as the complete lack of integration perspectives. Instead, Italy should establish an integrated and decentralised model, mirroring the System for Protection for Asylum Seekers and Refugees (SPRAR). Furthermore, reception centres should be considered legal residence for civic registry, thereby facilitating social inclusion.

Additionally, limited reception capacities as well as a lack of political and financial programming, according to the UNHCR, further hinder access to adequate reception conditions. Thus, transposition of the recast allows for the introduction of new governance measures, i.e the National Table of Coordination (Tavolo Nazionale di Coordinamento) and the establishment of a National Reception Plan (Piano Nazionale Accoglienza). The latter would regularly evaluate and monitor reception standards and needs, implementing flexible measures in the case of an unexpected increase of individuals seeking international protection.

Lastly, the UNHCR encourages the Italian government to adopt guidelines for the management of reception centres including integration measures for refugees, such as participation within centres and vocational programmes, as well as specific provisions to rectify deficiencies regarding vulnerable people’s protection and access to health care assistance.

The ELENA Weekly Legal Update would like to thank David Chirico, UK ELENA co-ordinator, for informing us of this publication and Elena Sbarai for providing us with a translation.

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UNHCR: Asylum Trends 2014

The UNHCR have published their annual report on the patterns and trends in the number of individual asylum claims submitted in Europe and elsewhere in 2014.

The report highlights that within the 28 Member States of the EU 570,800 asylum claims in 2014  were registered, which signifies a 44% increase compared to 2013 (396,700). EU States together accounted for 80% of all new asylum claims submitted in Europe, with Germany and Sweden accounting for 30% and 13% of asylum claims in the EU, respectively. Indeed, amongst the five Nordic countries an overall increase of 36% in annual asylum levels was reported with large increases within Sweden and Denmark. In Southern Europe the number of newly registered asylum seekers went up sharply by over 95%, with Turkey and Italy receiving the highest numbers of asylum applicants in the region (87,800 and 63,700, respectively).

The report goes on to note that the Syrian Arab Republic, Iraq, Afghanistan, Serbia and Kosovo and Eritrea were the five top source countries of asylum-seekers in the 44 industrialized countries included in the report in 2014. In this regard Germany continued to be the largest single recipient of new asylum claims with 58% increase from the previous year. This is attributed to the threefold increase of Syrian applications and four fold increase from applicants fleeing Eritrea.  Conversely, France saw a 2% decrease in asylum applications whilst Hungary experienced a more than doubling of asylum applications. 

Lastly, the report details the numbers of sea arrival in 2014, with more than 218,000 refugees and migrants having crossed the Mediterranean Sea– almost three times the previous known high during the ‘Arab Spring’. Almost half of these arrivals were people coming from the Syrian Arab Republic and Eritrea. Information suggests that more than 3,500 women, men and children have been reported dead or missing in the Mediterranean Sea in 2014.

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National Developments

Austria: High Administrative Court finds detention of asylum seekers subject to a Dublin transfer illegal

The High Administrative Court of Austria has ruled that the detention of asylum seekers in Austria pending removal to another EU Member State under the Dublin framework is currently illegal. Therefore, for the time being, no one in a procedure under the Dublin III Regulation should be kept in detention.

The case was brought by an Eritrean national regarding the order of his detention pending his transfer to Italy, the Member State that had been declared responsible for assessing his asylum claim.

The Court found that no provision in domestic law (Fremdenpolizeigesetz (FPG)) reflected the requirement of Article 28 Dublin III, which requires a legal establishment of the "risk of absconding" as a condition for detention. Given that no definition is provided in Austrian legislation as to what risk of absconding means, the Court found that no persons subject to a Dublin transfer can be put into detention. In the course of its ruling, the High Administrative Court also noted that it has repeatedly stressed in its jurisprudence that the use of detention in Dublin cases must not become a standard measure when dealing with asylum seekers.

The ELENA Weekly Legal Update would like to thank Austrian ELENA co-ordinator, Kathrin Kessler, for notifying us of this judgment and David Watt for providing us with a translation. 

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Belgium: Brussels Labour Tribunal emphasis declaratory nature of a refugee status

The facts of the case relate to a Tibetan national who lives with her husband, a recognised refugee, and had applied for asylum in Belgium and later social aid equivalent to the rate of integration income. In light of her cohabitation with her husband, the Federal Agency for the Reception of Asylum Seekers (FEDASIL) did not provide the applicant with a compulsory place of registration. The applicant’s request for integration income from the Public Centres for Social Welfare (CPAS) was later rejected on grounds that the applicant was staying irregularly in Belgium.

The Tribunal conversely found that the applicant was entitled to claim social aid as FEDASIL had not provided her with a place of registration. Crucially, the Tribunal focuses on the nature of the right to asylum, highlighting that the status of a refugee is one which is declaratory and not constitutive. In this manner and in line with the UNHCR “Handbook and guidelines on procedures and criteria for determining refugee status” the Tribunal specifies that a person is a refugee within the meaning of the 1951 Geneva Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined.

In light of the declaratory nature of recognising a refugee status, the Tribunal finds that this retroactively affects the rights to social integration and thus the applicant’s rights should be considered a priority. Given that the applicant did not have any resources of her own throughout the litigation procedure, the Tribunal holds that she has a right of integration income from the moment the request for social aid was lodged, even though at that time she had not yet been recognised as a refugee.

Based on an unofficial ELENA translation.

The ELENA Weekly Legal Update would like to thank Franz Geleyn for notifying us of this decision.

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Asylum Information Database: Updated report on Italy

The Asylum Information Database (AIDA) compiles information on asylum procedures, reception conditions and detention in 16 Member States. A new updated AIDA report on Italy is now out.

The report documents, amongst others, the adoption of new legislation in Italy which foresees an increase in accommodation capacities to up to 20,000 places at the national reception centres (SPRAR) for the period 2014-2016. Improvements are noted which relate to the maximum time frame for detention (reduced from 18 months to 90 days) and reinforced protection for asylum seeking children, whose level of maturity and personal development must be taken into account during personal interviews. Nonetheless these improvements are somewhat mitigated by the prevalence of lengthy asylum procedures as well as ongoing overcrowded reception conditions in Italy (see UNHCR publication above).

In this manner, the publication highlights that asylum seekers are accommodated in reception centres only after the formal registration of the asylum claim, which does not automatically follow the fingerprint phase, leading, in the interim, to asylum seekers sleeping on the streets.  Moreover, the shortage of interpreters and linguistic mediators at any stage of the asylum process, including during personal interviews, further hinders access to material reception conditions due to a consistent lack of information. Additionally, procedures to determine the State responsible for an asylum claim are often long as well as the appeal phase which causes significant delays.

As to the quality of reception conditions the report notes that places available in first instance reception centres (CPSAs) and accommodation centres (CARAs) are still not sufficient to accommodate all migrants and asylum seekers. The result is consistent overcrowding, as well as a lack of legal advice, assistance, information and non-tailored facilities often placed in rural locations, which are ill-equipped to deal with asylum seekers’ physical needs and do not promote any sense of integration. 

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UK: Joint Committee on Human Rights, The UK’s compliance with the UN Convention on the Rights of the Child

A Joint Committee, made up of members from both the UK House of Lords and House of Commons, has released a report detailing how the UK government is complying with its commitment to give “due regard” to the UN Convention on the Rights of the Child (UNCRC) when making new policy or legislation. The report further analyses the extent to which the situation for children’s rights has improved or deteriorated in the UK.

In its focus on the rights of migrant children the report notes that cuts in legal aid as well as the introduction of the residence test, which has been held by the High Court to be both illegal and discriminatory, are areas which flagrantly contravene the UNCRC. Indeed, the reforms to legal aid have been “a significant black mark on the UK government’s human rights record”. Moreover, the report goes on to highlight that there are clear trends that the best interests of the child have been subordinated to a wider concern with restricting immigration. Notably, there is a tendency by the UK authorities to grant unaccompanied children lower forms of leave to remain rather than full asylum, meaning that they could be removed at the age of seventeen and half.

Notwithstanding Home Office statistics which report an overall significant decline in the numbers of children entering immigration detention since the beginning of 2010, the publication goes on to submit that children’s best interests are not always considered and that training provided to decision makers on this topic is very brief and provided only to those decision-makers who handle claims from unaccompanied children. The failure to provide a best-interest assessment is made all the worse by evidence from the UNHCR which reports that in the cases they had reviewed no dependent children had been interviewed at any stage of the asylum process.

The report concludes that “the treatment of child migrants is an area where, despite some improvements, the situation has grown worse overall during this Parliament.” 

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PICUM: Protecting undocumented children: Promising policies and practices from governments

The Platform for International Cooperation on Undocumented Migrants (PICUM) has released a publication on governmental practice in the areas of education, health care, protection from violence, and non-detention of undocumented children. Information is also furnished on EU policy tools and legal entitlements of undocumented children’s access to health care services in the 28 EU Member States.

With regards to detention of children and families the report notes that notwithstanding strict limitations on the use of detention for children and families in the EU Return Directive, and the prohibition of detention of vulnerable people in many EU Member States legislation, detention of children and families is nonetheless widespread in practice. Particularly noteworthy is the finding that 17 EU countries reportedly detain unaccompanied children, 19 detain families with children, alternatives to detention are rarely used and the length of detention varies considerably from Member State to Member State. The report goes on to analyse good practice in States, notably a clear prohibition of immigration detention of all children in legislation as well as the development of alternatives to detention within the community. 

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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 Amanda Taylor (ataylor@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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