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ELENA Weekly Legal Update (EWLU)

14 August 2020
The EWLU will take a break and return on 4 September 2020
 

Summary


European Court of Human Rights European Union National Developments Council of Europe Summer School 

European Court of Human Rights


Updated country profiles for 2020

On 30 July 2020, the European Court of Human Rights published updated individual country profiles.

The country profiles are factsheets containing data and information on the significant cases considered by the Court, as well as noteworthy cases pending consideration. The updated profiles are provided for each Council of Europe Member State.

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European Union


CJEU: Request for a preliminary ruling on the right of residence of Turkish children residing in Germany

The Verwaltungsgericht Düsseldorf (Germany) recently made a request for a preliminary ruling from the Court of Justice of the European Union on the interpretation of the ‛EEC-Turkey Association Agreement — Association Council Decision No 1/80’. The domestic court has referred the following questions to the CJEU:  

Does the entitlement of Turkish children under the first sentence of Article 9 of Decision No 1/80 1 also include a right of residence in the host Member State without the need to fulfil further conditions? If so, does an entitlement to residence under the first sentence of Article 9 of Decision No 1/80 require that the parents of the Turkish children benefiting from that provision have already acquired rights under Article 6(1) or Article 7 of Decision No 1/80?

If Question 2(a) is answered in the negative: Is legal employment within the meaning of the first sentence of Article 9 of Decision No 1/80 to be interpreted in the same way as in Article 6(1) of Decision No 1/80?

If Question 2(a) is answered in the negative: Can an entitlement to residence in respect of Turkish children under the first sentence of Article 9 of Decision No 1/80 already arise after one of the parents has been in legal employment in the host Member State for a period of (only) three months? If Question 2(a) is answered in the negative: Does the right of residence of Turkish children also entail, without the need to fulfil further conditions, a right of residence for one or both parents with custody?

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EASO: Country of origin information report - Afghanistan

On 10 August 2020, the European Asylum Support Office published a country of origin information report on Afghanistan entitled ‘Afghanistan, Anti-Government Elements’ (AGEs).

The report is part of a series of country of origin information reports on Afghanistan which aim to provide information to be used in the assessment of international protection status determination. It is divided into substantive sections which provide information on, inter alia, the situation relating to armed conflict and AGEs in Afghanistan; the structure, activities and modus operandi of the Taliban and the Islamic State Khorassa Province; and the targeted profiles relating to these groups.

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National Developments


Finland: Kurdish appellant would face real risk of suffering serious harm if returned to Turkey

On 13 July 2020, the Supreme Administrative Court (the SAC) published its judgment (Case KHO:2020:88) concerning the refusal to grant international protection status on the basis of the applicant’s political opinion and activities.

The applicant is a Turkish national of Kurdish ethnicity. He was a member of the People’s Democratic Party while in Turkey and participated in a number of political demonstrations. His home was raided once and he was arrested four times year 2016. He was beaten during the raids and during one arrest. His request for asylum was rejected by the Finnish Immigration Service (FIS) on the basis that, inter alia, the applicant was no longer of interest to the Turkish authorities and would no longer be at risk of further arrests in the event of return. The Administrative Court (AC) rejected the appeal.

The Supreme Administrative Court first observed that the Finnish Immigration Service had considered the arrests and beatings to be categorised as acts of persecution. The issue for the SAC to address was, inter alia, the meaning of the past persecution when considering the need of international protection in future.

The SAC noted first, that according COI, the Kurdish background and the membership of HDP cannot be regarded as ground for granting international protection alone. It stated, that when considering the information about the applicant’s experiences and activities, according to the COI, and when considering the potential future risk, there was no link to the persecution grounds required for asylum status. The SAC therefore concluded that the applicant did not have well-founded fear for persecution in respect of reasons connected to him individually. Nevertheless, the SAC concluded, in light of the updated COI on South-East Turkey, there were sufficient grounds to consider that the appellant would be in real danger of suffering serious harm in the event of return to Turkey. It therefore concluded that the decisions of the Finnish Immigration Service and AC must be annulled and the case remitted to the FIS for the purpose of issuing a residence permit on the basis of subsidiary protection.

Many thanks to Liisa Välimäki and Marjaana Laine, ELENA coordinators for Finland, for assisting with drafting this summary. Based on an unofficial translation by the EWLU team.

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UK: Judicial review of the discretion afforded in the interpretation of Article 17(2) Dublin III

On 23 June 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment concerning judicial review of the Secretary of State for the Home Department’s (the SoS) duties in relation to Article 17(2) Dublin III Regulation.

The case concerns a Syrian national who is an unaccompanied minor residing alone in Greece, where he made a request for asylum. The Greek authorities submitted a request for the United Kingdom to take charge of the asylum request so that he may be reunified with his cousin pursuant to Article 17(2) Dublin III. This request was refused by the SoS on the basis that, inter alia, the family relationship was not within the scope of Article 2 Dublin III. The applicant made a request for judicial review of the three decisions rejecting the request for the United Kingdom to take responsibility for his asylum request.  

The Upper Tribunal (the UT) noted, inter alia, that the SoS’s discretion in relation to Article 17(2) must be exercised in the individual’s favour where to do otherwise would breach the individual’s human rights. Moreover, where such an allegation is made, the SoS has a duty to make an assessment on the lawfulness of its decision in human rights terms after taking into consideration, in the case of unaccompanied minors, the principle of the best interests of the child.

The UT highlighted the need to consider whether, on the totality of the evidence, family life had been shown to exist on the balance of probabilities, and whether the decision refusing to take charge of the asylum request disproportionately interfered with the applicant’s family life. Indeed, the Upper Tribunal noted that there was sufficient evidence to show that family life between the applicant and his cousin exists, based on, inter alia, extreme emotional dependency between the applicant and his cousin, and evidence that the applicant’s cousin assumes a position of a father figure. The Upper Tribunal concluded all three decisions were erroneous as, inter alia, they were issued on the assumption that this relationship did not exist. It added that to deny reunification would amount to an unjustified interference with his Article 8 ECHR rights.

Many thanks to Jennine Walker, Head of UK Legal and Arrivals at Safe Passage, for informing the EWLU team about this judgment.  

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Switzerland: Procedural failings when processing an asylum request of an alleged unaccompanied minor 

On 2 July 2020, the Federal Administrative Court published its judgment (Case E-3021/2020) concerning the failure to provide procedural guarantees when assessing the asylum request of an alleged unaccompanied minor.

The applicant, an Ethiopian national, filed a request for asylum in August 2016 claiming to be an unaccompanied minor without identity documents. An age assessment in the form of a radiological examination of his left hand determined the applicant to be over the age of 18. He was therefore heard as an adult and his request for asylum was rejected and his removal from the territory ordered. He later produced an Ethiopian identity card proving his real identity and date of birth. The applicant complained, inter alia, that he was wrongly deprived of procedural advantages conferred on unaccompanied minors.

The Federal Administrative Court noted, inter alia, that when dealing with an alleged minor, the State Secretariat for Migration must adopt appropriate measures and guarantees to ensure the protection of the individual’s rights, including designating a trusted person if there exist doubts regarding the applicant’s age. Moreover, without identity documents, the State Secretariat for Migration was obliged to carry out an overall assessment of elements in favour of or against the applicant’s alleged minority. In this case, despite providing identity documents at a later stage, the applicant was not afforded appropriate procedural guarantees, including the guarantee of trusted person to provide assistance. By depriving the applicant of this right, the hearing rejecting the request for asylum was invalid. The Federal Administrative Court therefore annulled the initial decision remitted the case to the State Secretariat for Migration for a rehearing.

Based on an unofficial translation by the EWLU team. 

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Council of Europe 


Committee for the Prevention of Torture reports on Turkey

On 5 August 2020, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) published reports following its 2017 periodic visit and 2019 ad hoc visit to Turkey.

In particular, during the 2017 periodic visit, the CPT examined the situation of foreign nationals detained under aliens legislation. The 2017 report provides an overview of, inter alia, the ill-treatment of individuals detained in removal centres in Istanbul and Izmir; material detention conditions in removal centres; information on the detention of children; and other issues relating to legal safeguards, contact with the outside world, and health care. 

The Committee presents various recommendations in relation to these issues and is pursuing a dialogue with the Turkish authorities to address its concerns.

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Summer School 


Skopje Summer School 2020: Refugee Rights and Migration*

Applications for the ‘2020 Summer School on Refugee Rights and Migration’ are now open.

This event is a joint venture of Faculty of Law, Iustinianus Primus, University of Ss. Cyril and Methodius in Skopje, in cooperation with International Institute of Humanitarian Law and with support of UNHCR Representation in North Macedonia.

The course, which will focus on the challenges in times of the COVID-19 pandemic, will be held from 24 August to 28 August 2020. The 5-day intensive course is designed to help participants gain an understanding of the challenges in relation to refugee rights and migration during the pandemic and is open for participation to all undergraduate and postgraduate students. More information can be found in the course programme.

*This is an amended article originally featuring in the EWLU on 31 July 2020.

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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 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 Julia Zelvenska (jzelvenska@ecre.org).






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