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 applicantâ€™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 â€œHandbook and guidelines on procedures and criteria for determining refugee statusâ€
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 applicantâ€™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 seekersâ€™ physical needs and do not promote any sense of integration.
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UK: Joint Committee on Human Rights, The UKâ€™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 â€œdue regardâ€ 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 childrenâ€™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 â€œa significant black mark on the UK governmentâ€™s human rights recordâ€. 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 childrenâ€™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 â€œthe treatment of child migrants is an area where, despite some improvements, the situation has grown worse overall during this Parliament.â€
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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 childrenâ€™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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