ELENA Weekly Legal Update - 11 September 2015
View this email in your browser

11 September 2015


European Union
Council of Europe
National Developments

European Union


CJEU: Case C-44/14 Spain v. European Parliament and Council of the European Union

The CJEU has ruled that it is lawful for the UK and Ireland to participate in a limited way to the Schengen acquis on external border controls.

Articles 4 and 5 of the Schengen Protocol provide that the UK and Ireland can request to take part in some or all of the provisions of the Schengen acquis at any time, subject to acceptance by the Council. It must also be a measure in an area of the Schengen acquis which that Member State has accepted. Neither participates in provisions of the Schengen acquis relating to the crossing of external borders.

The Eurosur Regulation No. 1052/2013 established the European Border Surveillance system and a system of cooperation at the external EU borders. Article 19 of the Regulation established an ad hoc procedure for participation of the UK and Ireland to exchange information, through multilateral cooperation agreements which need not be authorised by the Council. Spain brought an action to annul this provision for infringement of the Schengen Protocol on the basis that it permits these states to take part in the development of an area of the Schengen acquis which they have not accepted.

The CJEU considered that Article 19 of the Eurosur Regulation allowed only for a limited form of cooperation between Ireland and the UK and one or more neighbouring Member States, but did not place them in an equivalent position to other Member States, who were subject to other rights and obligations. The objective of Article 4 of the Schengen Protocol was to allow Ireland and the UK to be placed in an equivalent situation to other Member States as regards certain provisions of the Schengen acquis which they had chosen to participate in. These limited forms of participation did not constitute a form of ‘taking part’ in the provisions of the acquis in the area of crossing of the external borders and thus Spain’s action was dismissed.  

European Commission: Proposals for European Agenda on Migration 

Following Jean-Claude Juncker’s State of the EU address on 9 September, the European Commission has published its package of proposals to the Council for measures to respond to the refugee crisis. These must be approved at the extraordinary meeting of the Justice and Home Affairs Council on Monday 14 September.
This includes an emergency relocation mechanism of 120,000 asylum seekers from Italy, Greece and Hungary as a temporary derogation from the Dublin III Regulation and applies to those who are in prima facie in clear need of international protection, by belonging to a nationality for which the EU average recognition rate on Eurostat is above 75%. The number is mandatory with 15,600 to be relocated from Italy; 50,400 from Greece and 54,000 from Hungary, to other EU states over 24 months, based on a distribution key.
The Commission also proposes a Regulation establishing a common European list of Safe Countries of Origin which will include all EU countries, as well as Albania, Bosnia and Herzegovina, FYROM, Kosovo, Montenegro, Serbia and Turkey on the basis that these States fulfil the criteria for becoming a candidate of the EU relating to stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.
Moreover, in order to make return policy more effective and improve the return policies of Member States, the Commission has issued a common Return Handbook and an EU Action Plan on Return.
The legislative documents relating to the full package of proposals are available here

Council of Europe

European Court of Human Rights: R.H. v. Sweden (no. 4601/14) 

The case of R.H. v. Sweden (no. 4601/14) relates to a Somali national from Mogadishu who applied for asylum in Sweden in 2011. She claimed that she would face persecution from her family due to having fled a forced marriage, a risk of sexual assault and marginalisation as a single woman without a male network and due to the dire humanitarian situation in Somalia. As such her removal would be contrary to Article 3 ECHR.

The Court noted that this was the third time that the issue of whether the general situation in Mogadishu was such to expose anyone there to a risk of treatment contrary to Article 3 had come before it. It had to consider whether the situation had worsened since its finding in K.A.B. v. Sweden in September 2013. Considering the objective reports, it noted that the general security situation remained serious and fragile, but there was no indication that the situation had deteriorated since that judgment which should stand. It attached weight to the UK Upper Tribunal decision of MOJ and Others which concluded that there had been an improvement. Turning to the applicant’s situation, it considered that her evidence was inconsistent and her claims as to her personal experiences and claimed danger on return were not plausible. As such, it found that she would have access to family support and a male protection network upon return. It concluded that her deportation to Mogadishu would not violate Article 3.

Judges Zupančič and De Gaetano issued a joint dissenting opinion considering that the applicant would face a real risk of being subjected to inhuman or degrading punishment on return, criticising the majority for the weight it placed on minor inconsistencies in the applicant’s evidence and for downplaying the general situation in Somalia as evidenced in the international reports. They noted that the reception and accommodation facilities in Italy reached the Article 3 threshold in Tarakhel and therefore failed to see how it did not in the applicant’s circumstances. 
Back to top

 European Court of Human Rights: T.A. and others v. Switzerland (no. 50165/14) 

The case of T.A. and others v. Switzerland  related to a challenge to removal from Switzerland to Italy, under the Dublin Regulation on the basis that removal there would expose the applicants to a real risk of treatment contrary to Article 3, and also violate their rights under Article 8 and 13. 

In January 2015, the Swiss authorities agreed to substantively examine the applicant’s asylum claims with suspensive effect, so they would not be removed to Italy. In view of this the Court considered that the dispute had been resolved and struck out the application.

Based on an unofficial ELENA translation 

Protection of migrants and asylum seekers: States’ main legal obligations under the Council of Europe conventions

The Council of Europe has issued guidance to its 47 Member States of the Council of Europe on the treatment of migrants and asylum seekers, in compliance with fundamental rights.
It sets out relevant legal obligations which derive from the European Convention of Human Rights with reference to the ECtHR case law, the European Social Charter and relevant standards of the Committee for the Prevention of Torture. The guidance relates to access to territory, reception conditions, detention, living conditions, access to asylum procedures, additional safeguards for vulnerable groups and forced return. 

National Developments

Denmark: UN HRC finds that Dublin return from Denmark to Italy would violate Article 7 ICCPR 

A Somali national submitted a complaint to the UN Human Rights Committee alleging that Denmark’s proposed return of her and her three children to Italy, would be in violation of their rights under Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture or cruel, inhuman or degrading treatment.

The applicant claimed asylum in Italy and her and her daughter were granted subsidiary protection and a residence permit in September 2008. On the following day she was informed that she was no longer entitled to remain at her reception centre. They became homeless with no means of subsistence. She travelled to the Netherlands, but was returned to Italy where she again became homeless and destitute with her minor daughter, while pregnant. She could not afford to renew her residence permit upon its expiration. She travelled to Denmark to claim asylum, which was rejected on the basis that she could be removed to Italy, her first country of asylum, under the Dublin Regulation. Her appeal was rejected. At the time of submitting her complaint, the applicant was an asylum-seeking single mother of three minor children, suffering from asthma.

She submitted that reception conditions and basic human standards for beneficiaries of international protection with valid or expired residence permits in Italy did not comply with international obligations of protection. The objective information indicated that those who had previously been granted a form of protection in Italy had no right to accommodation or social assistance. She argued that her past experience was indicative of systemic failures in basic support for asylum seekers and refugees in Italy, and as a vulnerable group, her and her children would be likely to face homelessness and destitution with limited access to medical care and no prospects of finding a durable solution as they had no funds to renew her residence permit or find shelter and food while awaiting renewal.

The Committee recalled that States need to give sufficient weight to the real and personal risk a person might face if deported. This required an individualised assessment of the risk faced by the applicant, rather than a reliance on general reports and on the assumption that, having been granted subsidiary protection in the past, she would in principle be entitled to work and receive social benefits. It found that Denmark had failed to adequately consider the author’s personal experience and the foreseeable consequences of her forcible return to Italy. In addition, bearing in mind the ECtHR judgment in Tarakhel, Denmark had failed to consider seeking assurances from Italy that the applicant and her three children would have their residence permits renewed, would not be deported from Italy, and would be received in conditions adapted to their age and vulnerability. As such it concluded that their removal to Italy would violate Article 7 ICCPR. Denmark must now reconsider her claim, in view of this conclusion and the need to obtain individual assurances from Italy.

The ELENA Weekly Legal Update would like to thank Dorte Smed, ELENA Coordinator in Denmark, for providing us with this information

Back to top

Hungary: amendments to Asylum law come into force on 15 September 

On Friday 3 September 2015 the Hungarian parliament adopted legislation aimed at dealing with the migrant crisis, which will enter into force on Tuesday 15 September, and contain a number of harsh measures of questionable legality which seriously endanger access to asylum procedures.
The provisions include:
  1. Extremely accelerated procedures: Decisions from the Office of Immigration and Nationality (OIN) on an asylum application will be given within a maximum of 12 days. This highly accelerated procedure is particularity disconcerting in light of EU law which requires applicant's to have effective access to the procedure and by implication effective access to the safeguards and guarantees which this is reliant upon. 
  2. Criminalisation of irregular entry:  new criminal offences will be created for crossing or damaging the 175 kilometre fence that Hungary has constructed on the border with Serbia, and for irregular border crossing, with jail terms of up to five years in aggravated cases (cases where the fence is damaged while crossing for example). The criminal procedure will be expedited with persons found guilty being deported.
  3. Registration on Serbian side of the Hungarian-Serbian border: Asylum seekers will be allowed to enter via specific gates in the fence and queuing is foreseen on the Serbian territory when there are many asylum seekers trying to enter Hungary. Requests have been made by organisations like the Red Cross to provide humanitarian assistance at the border. OIN officers will register asylum seekers on the Serbian side of the border and will then transport them to where accommodation and reception conditions can be ensured. Alongside this the Hungarian government is planning to extend reception capacities; the first of which will be a new facility in a police compound with 700 places. Asylum seekers will have freedom of movement throughout the procedure. 
  4. Extraordinary powers for police: Under emergency powers, which need not be approved by the Parliament, the government has declared a ‘mass immigration crisis’ which enables it to grant the police extraordinary powers for six months which is renewable. This may consist of search and entry into private homes, in order to search for irregular entrants.
  5. Deployment of the army at the border: The army, a minimum of 3800 soldiers, will be deployed to protect the border and are authorised to use force, including weapons such as tear gas and rubber bullets, in order to control the border
  6. ‘Safe’ third countries: Serbia, Macedonia and Greece have already been declared ‘safe’ third countries. With around 99% of those who have entered Hungary irregularly transiting through Serbia this allows for the swift rejection of asylum claims for those deserving of international protection, who will be deported on the basis that they are able to seek safety there. This is contrary to EU practice and UNHCR observations.
It is to be noted that the situation in Hungary is evolving on a daily basis. This information is up-to-date as of 11 September 2015 and is based on publicly available data.

For further information, please see the Migszol blog, the Hungarian Helsinki Committee Information Note on recent and proposed changes to Hungarian asylum law (dated 7 August 2015) and the AIDA Annual report 2014/2015 (dated 10 September 2015).
The ELENA Weekly Legal Update would like to thank Julia Ivan, ELENA Coordinator in Hungary, for her assistance in writing this article. 

UK: Research finds troubling inconsistencies in asylum appeal adjudication

Initial findings of a three year study by researchers at the University of Exeter has found that there are considerable differences between the hearing centres which hear asylum appeals, as well as significant inconsistencies in the practice of appeal judges.
With regard to the hearing centres, there were differences in accessibility, local resources, atmosphere, facilities (including for consultation with legal representative), ability to obtain legal representation and the gender ratio of judges. The research found that there were differences between judges in compliance with important procedure aimed at ensuring fairness, with the likelihood of following these being dependent on extraneous factors such as the gender of judge and appellant. The researchers consider that such inconsistencies could undermine faith in the fairness of the legal procedure and that lack of adherence to procedures are liable to lead to erroneous decision making. 


AIDA: Annual Report 2014/2015 on the State of Asylum in Europe

As the world is witnessing the largest displacement crisis since World War II, which is driving an unprecedented number of people fleeing war and persecution to undertake dangerous, life-threatening journeys to safety, the European Union’s common policy on asylum lacks solidarity and consistency, according to research from the Asylum Information Database (AIDA), covering 18 countries: Austria, Belgium, Bulgaria, Cyprus, Germany, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, the Netherlands, Poland, Sweden, the United Kingdom, Switzerland and Turkey.

The full report, titled Common asylum system at a turning point: Refugees caught in Europe’s solidarity crisis is available here and the press release is here
Back to top

UNHCR: Guidance Note on refugee claims relating to crimes of ‘Lèse Majesté’ and similar criminal offences 

UNHCR has published a Note aimed at facilitating the determination of claims for refugee status related to national crimes of lèse majesté and similar criminal offences against the State and its officials. According to the Note, crimes of lèse majesté may be incompatible with the freedom of opinion and expression as enshrined in Article 19 of the ICCPR. Therefore, the right of freedom of expression may be subject only to certain restrictions in accordance with Article 19(3).

It notes that the main risks associated with such crimes are prosecution and punishment upon conviction as well as potential extrajudicial punishment and ill-treatment in detention. For lèse majesté laws to be considered persecutory, they will usually impose penalties such as imprisonment, physical labour or other physical punishment or be applied or enforced in a discriminatory manner related to one or more of the Convention grounds. The assessment of well-founded fear is forward looking, and as such a sur place claim may arise.  It also highlighted that such crimes are political in character, therefore falling within the "political opinion ground" of the Convention. Finally, it noted that exclusion from international refugee protection based on a person’s involvement in criminal acts is justified only if the acts in question fall within the scope of Article 1F of the 1951 Convention.

Back to top

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 Zarina Rahman (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).

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