ELENA Weekly Legal Update - 14 February 2014
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14 February 2014


National Developments NGOs

European Court of Human Rights

Grand Chamber hearing of Tarakhel v. Switzerland (no. 29217/12), 12 February 2014

On 12 February 2014 the Grand Chamber of the ECtHR heard the complaint of the Tarakhel family against the Swiss government’s order that they be transferred to Italy under the Dublin II Regulation. The family submitted that removal would violate their rights under Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights due to the accommodation conditions for asylum seekers in Italy. The family also argued that, when they appealed against removal, the Swiss authorities failed to give due consideration to the reception conditions in Italy and the best interests of the children, in violation of Articles 8 (right to family life) and 13 (right to an effective remedy).

As well as hearing the submissions of the family’s legal representatives, the Grand Chamber heard from the governments of Switzerland and Italy. The UK, Sweden, Norway and the Netherlands sent written submissions to the court. The AIRE Centre, Amnesty International and ECRE collectively submitted a written intervention, as did Defence for Children.

The Tarakhel family, an Afghan couple and their five children, travelled to Italy via boat from Turkey having resided in Iran for 15 years. The parents were fingerprinted and the family was taken to a reception centre in Italy. They then left the country and sought asylum in Austria. Once their application was rejected, the family entered Switzerland, where their deportation under the Dublin Regulation to Italy was ordered. When their appeal to the Swiss Federal Administrative Court was refused, the family complained to the European Court, which asked the Swiss authorities to halt the family’s removal for the duration of proceedings.

The Grand Chamber, comprising 17 judges, reserved judgment until a later date.

Read the ECtHR’s press release and watch a webcast of the hearing.

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Rule 39 Interim Measure issued on proposed expulsion of Syrian family from Denmark to Italy

On 30 January 2014, the ECtHR granted an Interim Measure under Rule 39 of the Rules of the Court staying the expulsion of a Syrian woman and her three minor children from Denmark to Italy. The applicant travelled by sea to Italy in October 2013. Upon arrival in Italy she and her children were apprehended by the Italian police and placed in a closed camp for three days. The Italian police registered the applicant’s fingerprints and released the family from the camp. The Italian authorities gave no instructions or guidance on where and how the applicant could lodge an application for asylum or where they could be accommodated. Furthermore, the applicant was exposed to traumatizing experiences while in Italy. After a short stay in Italy, the applicant and her children travelled onwards to Denmark.

The Danish authorities found Italy to be the responsible State according to Article 10(1) of the Dublin II Regulation and Italy accepted the transfer in December 2013. The appeal instance processed the case in January 2014. The references to violations of Article 3 ECHR (and accordingly the request to apply the sovereignty clause) were rejected, both in relation to the experiences in Italy and the lack of protection from the Italian authorities, as well as the risk of future violations due to the inadequate reception conditions and the risk of the applicant being re-traumatized upon return to Italy.

The Weekly Legal Update would like to thank the Danish Refugee Council for informing ECRE about this development.

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European Union

Official Journal: Implementing Regulation sets out detailed rules for applying the Dublin III Regulation 

Commission Implementing Regulation 118/2014 entered into force on 9 February 2014 to provide detailed rules for the application of the Dublin III Regulation, which determines the Member State responsible for examining any asylum application lodged in the EU from 1 January 2014 onwards. The Implementing Regulation is designed to ‘increase the efficiency of the [Dublin] system and improve the cooperation between national authorities’ by ensuring the ‘effective application’ by Member States of the Dublin III Regulation in practice.

The detailed rules cover the preparation required of States prior to requesting another State to ‘take back’ an asylum seeker, obligations in the case of delays in the procedure, the necessary consultation between States that host different members of the same family, required actions by States to identify the family of unaccompanied children seeking asylum, and the conditions and arrangements for exchanging health data before transfer of an asylum seeker.

Standard forms are included for making a request that another State ‘take charge of’ or ‘take back’ an asylum seeker, for making a request for information from another State, for compiling the proof and circumstantial evidence that another State is responsible for the asylum seeker, and for the transfer of data and information between States.

As required by the new ‘right to information’ introduced by Article 4 of the Dublin III Regulation, the Implementing Regulation also contains new common information leaflets on the Dublin Regulation for applicants seeking international protection. Specific leaflets are also published for unaccompanied children, persons apprehended for an irregular crossing of an external border, and persons found to be illegally staying in a Member State.

Read the new Implementing Regulation in the Official Journal.

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Commission: European Migration Network study on asylum reception facilities in 24 countries

A new report by the European Migration Network reveals that the organisation of reception facilities for asylum seekers differs greatly between Member States and also within some Member States at sub-state level. In some cases, asylum seekers face sub-standard reception conditions.

The report points out that not all Member States conduct vulnerability assessments for asylum seekers with special reception needs. France, Hungary, Ireland, Lithuania and Slovenia do not provide tailored accommodation for vulnerable persons. Austria, France, and Italy do not have standard practices in place to conduct a vulnerability assessment. For those that do, great differences exist in terms of assessment criteria, methods, timing and follow-up measures.

In a comparative overview of States’ national provisions of basic material reception facilities, which must be ‘sufficient to provide dignified living conditions’ under EU law, the study highlights disparities. For instance, the surface area of personal space in reception facilities allocated to each applicant varies from 4 square metres in Belgium and Greece to 15 square metres in Sweden. The number of applicants per member of staff varies from 11-13 persons in Finland to 170 persons in Austria.

The study also compares national rules on reduction or withdrawal of reception conditions and explores the ways that different States deal with unexpected numbers of asylum applicants.

Read the full report of the European Migration Network.

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United Nations

UNHCR: Update issued on the refugee situation in Bulgaria

In an update of 7 February 2014, UNHCR is ‘concerned over measures to restrict access to territory’, citing both the 33km fence along part of the Bulgaria-Turkey border and the stationing of 1,500 police officers at the border.  Reception conditions ‘remain inadequate in most centres’, which ‘continue to be overcrowded’. ‘Delays remain in registration and access to registration cards’ as well as in the provision of monthly allowances to asylum seekers. Those granted protection are not receiving financial aid, housing or language courses. ‘Access to formal education remains a serious gap’ for asylum seeking children.

Read UNHCR’s update.

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National Developments

USA: Board of Immigration Appeals delivers two judgments defining ‘particular social group’

The first case, M-E-V-G, concerns a Honduran citizen who refused to join a gang and fled persecution on this basis. The second case, W-G-R, concerns an El Salvador national who fled persecution for deserting his former gang. Both claimed asylum in the United States of America and were required by the Immigration and Nationality Act to demonstrate their membership of a ‘particular social group’, on account of which they feared persecution.

An issue arose in both cases concerning what legally constitutes a ‘particular social group’ for the purposes of an application for asylum. In two judgments dated 7 February 2014, the US Board of Immigration Appeals noted the existing criteria for establishing a ‘particular social group’, namely ‘particularity’ and ‘social visibility’, and decided that the latter phrase can be misinterpreted to require literal visibility. In these judgments, the Board replaces ‘social visibility’ with ‘social distinction’. The following headline rule is proposed: â€˜An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’.

Other proposed headline rules are: ‘Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor’ and ‘An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group'. Although the Board remanded the first case to the Immigration Judge for application of the clarified law to the facts, the Board declared in the second case that the applicant ‘did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member’.

In the judgments, the Board takes into account both US jurisprudence and international interpretations.

Read the M-E-V-G and W-G-R judgments of the US Board of Immigration Appeals on the refworld website.

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ECRE: Guidance Note on the transposition and implementation of the EU Asylum Acquis

The Note explains the transposition timeframes and legal requirements for both EU Directives and Regulations. Specific information is provided on transposition of the key pieces of recast EU asylum legislation: Qualification Directive (recast) 2011/95/EU; Dublin III Regulation (recast) No. 604/2013; Eurodac II Regulation (recast) No. 603/2013; Commission Implementing Regulation No. 118/2014; Asylum Procedures Directive (recast) 2013/32/EU; Reception Conditions Directive (recast) 2013/33/EU.

Guidance is given concerning the monitoring of the transposition and implementation of the EU asylum acquis, so as to ensure that the objectives of the EU legislation are met by national law with clarity, certainty and effectiveness. The Note explains how to submit a complaint about failures to respect provisions or principles of EU law to the European Commission. Information is provided about infringement proceedings brought by the Commission against the alleged non-compliance of a Member State with an EU legal obligation, with respect to both the ‘pre-litigation’ phase and the litigation procedure.

Read the Guidance Note on ECRE’s website.

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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