The ELENA Weekly Legal Update wishes you relaxing holidays and a fantastic 2020! 🎄 ❄
2019 has been rich with legal and policy developments in Europe. We did our best to keep you up-to-date reporting not only on asylum related judgments, but also on important decisions that may impact this area of your work. We published 41 Updates and welcomed over 800 new readers who subscribed to the ELENA Update in 2019. We are incredibly grateful to all of you who have recommended it to your colleagues and friends.
This year, our team, with the help of the national ELENA coordinators, responded to over 100 legal and litigation requests. Most of these supported cases before the European Courts and UN mechanisms. Together with our Litigation Task Force (comprised of ECRE, the AIRE Centre, the ICJ and the DCR) we provided legal submissions in 7 important cases before the ECtHR and the CoE Committee of Ministers. We continue to work with the ICJ and GCR on our collective complaint against Greece, declared admissible by the Committee this year. We provided training and coordinated discussions, including some in partnership with UNHCR, for lawyers across Europe in a number of countries such as the Czech Republic, Croatia, Greece, Finland, Spain, Turkey, and Sweden. We continue to update the European Database of Asylum Law (EDAL) and are grateful to our academic pro bono partners for their support.
We would like to thank all of you who have supported our work by informing us of your national judgments, assisting with translations and legal summaries, or by being enthusiastic readers of the ELENA Weekly Legal Update. We are grateful to all the ELENA coordinators and legal professionals who have worked tirelessly to advance the respect for refugee rights. It is thanks to you that we are able to offer support and intervene in cases as well as report on developments in asylum law.
Our team take a break and will be back in January 2020 with renewed energy to support and report on your cases.
We wish you fantastic holidays and a wonderful 2020 from Ciaran, Julia, Sofia, Francesca and Stavros.
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European Court of Human Rights
Communicated case against France
E. H. v France (Application No. 39126/18): The case concerns a Moroccan national who was placed in a holding area at Roissy-Charles de Gaulle airport in 2018. The applicant was later moved to an administrative detention centre and their request for international protection was rejected as manifestly unfounded. The applicant complains that his expulsion to Morocco exposed him to a risk of ill treatment contrary to Article 3 ECHR. He also complains under Article 3 and 13 ECHR that there existed no effective remedy to assert his asylum claim.
Based on an unofficial translation by the EWLU team.
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M.A. v Estonia: Uzbek national’s deportation to Russia struck out of the list due to unlawful return order
On 19 December 2019, the European Court of Human Rights published its decision to strike the case of M.A. v Estonia out of the list. The case concerned an Uzbekistan national’s deportation from Estonia to Russia which according to him would subject him to the risk of ill-treatment, contrary to Article 3 of the Convention, if Russia were to transfer him back to Uzbekistan. It further concerned the alleged lack of effectiveness of the domestic remedies with regard to the applicant’s complaint under Article 3.
The Court decided that the expulsion decision was unlawful, as the authorities had not indicated the State to where the applicant would be expelled, but concluded that this could only be Russia. The authorities had not properly considered whether expulsion to Russia carried a further risk of return to Uzbekistan. Notwithstanding this, the Court decided that in the absence of an enforceable return decision, and because the applicant had since left Estonia of his own accord, there was no risk of treatment contrary to Article 3 and no need to examine the application further.
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CJEU: Interpretation of Schengen Borders Code in return decisions on grounds of threats to public policy and internal security
On 12 December 2019, the Court of Justice of the European Union (the Court) published its judgment (case C-380/18) on the interpretation of the Schengen Borders Code 2016/399 (SBC) concerning return decisions issued on the grounds of a threat to public policy.
The case concerns a third country national who arrived in the Netherlands for a short stay and exempt from visa requirements. The applicant was then suspected of a criminal offence and was ordered to leave on the grounds that they posed a threat to public policy contrary to requirements laid down in Article 6(1)(e) SBC. The decision was overturned and the referring Court questioned the uncertainty of what constitutes a genuine, present and sufficiently serious threat to fundamental interests of society. The question to the Court of Justice was whether Article 6(1)(e) SBC must be interpreted as precluding practice under which a competent authority may issue a return decision on the basis that the third country national who is not subject to visa requirements is considered a threat to public policy as a result of a suspicion of having committed a criminal offence.
The CJEU noted that the scope of the concept ‘threat to public policy’, within the meaning of Article 6(1)(e) SBC, has to take into account the wording of that provision, its context and the objectives pursued. The specific wording of this provision does not explicitly require personal conduct of an individual to represent a threat. States should therefore be accorded wide discretion in determining what constitutes a threat to public policy, as similarly accorded under Article 21 Regulation 810/2009.
Moreover, the Court noted that the safeguarding of public policy is one of the objectives pursued by the Schengen Borders Code. Notwithstanding this, State practice must comply with the principle of proportionality and not go beyond what is necessary to protect public policy. Moreover, the infringement the individual is suspected of must be deemed to be sufficiently serious to justify terminating their stay immediately. In the absence of a conviction, a threat may be shown to exist where there is consistent, objective and specific evidence providing grounds for suspicion. It is for national courts to determine whether State practice meets these requirements. The Court concluded that Article 6(1) (e) cannot be interpreted as precluding the issuing of a return decision if the individual is suspected of committing a crime without establishing that their conduct amounts to a threat to public security, providing that the offence is deemed sufficiently serious to justify terminating the individual's stay and there is consistent, objective and specific evidence to support suspicions.
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CJEU: Interpretation of Directive 2003/86 on the right to family reunification
On 12 December 2019, the Court of Justice of the European Union (the Court) published its judgment in the joined cases C-381/18 and C-382/18 on the interpretation of Directive 2003/86 concerning the legality of decisions refusing residence permits for the purpose of family reunification.
The applicants in both cases were convicted of criminal offences. In case C-381/18, the applicant’s request to extend his residence permit was rejected and his residence permit was revoked with retroactive effect. In case C-382/18, the applicant’s request for a residence permit for the purpose of family reunification was rejected for public policy reasons. The questions referred to the Court included, inter alia, whether Article 6 (1) and (2) of Directive 2003/86 must be interpreted as precluding national practice whereby public authorities may reject a request for entry and residence based on grounds of public policy relating to a criminal conviction, and whereby public authorities may revoke or refuse to renew a residence permit if the applicant has been given a sufficiently serious conviction.
It first noted that Article 6(1) and (2) does indeed allow authorities to reject applications relating to entry and residence permits when there is a threat to public policy. The matter to determine was therefore the scope of a genuine, present and sufficiently serious threat to public policy. On this issue, the Court noted, inter alia: that Article 6 (1) and (2) does not expressly require a genuine, present and sufficiently serious threat; the mere existence of a conviction may be sufficiently serious; and Directive 2003/86 seeks to promote family reunification and protect minor third country nationals. Indeed, this objective should not be undermined and should be pursued in accordance with the principle of proportionality. The competent authorities cannot automatically consider that the individual concerned constitutes a threat to public policy under Article 6 (1) and (2) solely because of a criminal conviction unless it can be shown to be so serious or of such a nature that it is necessary to deny the residence of that individual. The Court added that the competent authorities must carry out an individual assessment of the situation of the person concerned, taking into account the nature and solidity of that person’s family relationships, of the duration of their residence in the Member State and of the existence of family, cultural and social ties with their country of origin.
The Court therefore held that Article 6 (1) and (2) must be interpreted as not precluding practice of competent authorities refusing residence permits, withdrawing residence permits, or refusing to extend permits if the applicant received a penalty for an offence that was of a sufficiently serious nature to justify excluding the residence of the individual on the grounds of public policy.
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CJEU: Interpretation of provisions for family reunification in the event of dependence on medical grounds
On 12 December 2019, the Court of Justice of the European Union published its judgment in case C-519/18 on the interpretation of the right to family reunification guaranteed under Directive 2003/86.
The Hungarian Immigration and Asylum Office refused to grant a residence permit for the purpose of family reunification for the applicant’s sister, who suffered from depression and required medical supervision, on the grounds that she had failed to demonstrate that she was unable to provide her own needs on account of her health condition. The Court was asked to determine whether Article 10(2) Directive 2003/86 precludes a State from making family reunification of a refugee’s sister subject to conditions other than those in Article 10(2) if they are dependent on the applicant. It was also asked to clarify the scope of the meaning of ‘dependant’ in this context.
The Court first noted that the objective of Directive 2003/96 is, inter alia, to determine the conditions for the exercise of the right to family reunification. Indeed, Article 4 Directive 2003/86 specifically lists the family members on whom this right may be conferred, and Article 10(2) allows States to confer this right on members of a refugee’s family not listed providing they are dependent on the refugee. Referring to previous rulings, the Court reiterated that dependence is a result of a factual situation of material support coming from the family member with a right of residence. On this issue, the Court noted, inter alia, that the family member not listed under Article 4 must be genuinely dependent in that they cannot support themselves in their country of origin and that material support is provided by the refugee who also appears to be the most able family member to provide support. Moreover, it noted that while discretion is afforded to States under Article 10(2) this should not be used to undermine the objective of the Directive, which must be interpreted in light of the right to family life under Article 7 of the Charter of Fundamental Rights of the European Union.
The Court therefore concluded that Article 10(2) must be interpreted as not precluding States from authorising the family reunification of refugee’s sister only if she unable to provide for her needs on account of her state of health. However, a case-by-case examination of all relevant factors, including the special situation of refugees, is to be carried out by the authorities and it must be ascertained that the material support is provided by the refugee who has been deemed the family member most able to provide said support.
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Council of Europe
Committee of Ministers decision following the case of M.A v France
The Committee of Ministers (CM) recently published its decision following the judgment of the European Court of Human Rights (the Court) in the case of M.A. v France.
The case concerned the removal of an Algerian national who had been charged with terrorist related offences. The Court ruled that, at the time of the applicant’s removal, there was a real and serious risk that the applicant would face treatment contrary to Article 3 ECHR. Moreover, the Court found that the interim measures had not been observed and that the French authorities had created conditions whereby the applicant would have found it very difficult to apply to the Court for second interim measures. The State had therefore deliberately lowered the level of protection guaranteed by the ECHR.
In its decision, the CM recalled the vital role of interim measures. As concerns individual measures, the CM again invited the French authorities to employ all means to obtain concrete information on the applicant’s situation in detention. As concerns general measures relating to Article 3 ECHR, the CM requested that the authorities provide more concrete information to show than an individual and substantive examinations of the risk incurred in cases of removal are conducted for individuals with profiles similar to the applicant in M.A. v France. Regarding Article 34 ECHR, the CM urged authorities to inform them of measures adopted or in consideration to enable individuals who face expulsion to apply effectively to the Court and requested authorities adopt awareness raising measures recalling the States’ obligations to comply with interim measures. The CM finally invited the authorities to submit any updated information by the end of June 2020.
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United Kingdom: Court of Appeal order re-hearing of deportation order to Nigeria
On 4 December 2019, the Court of Appeal (the Court) published its judgment on the appeal of a deportation order to Nigeria in the case of Akinyemi v the Secretary of State  EWCA Civ 2098.
The applicant was born in the UK in 1983 to Nigerian parents who arrived in the UK as students. His father was granted indefinite leave to remain in 1897 before obtaining citizenship in 2004. The applicant did not automatically acquire British nationality due to legislative changes prior to his birth and did not take steps to acquire it. He was convicted of a multiple criminal offences in his teens which included death by dangerous driving, possession of drugs with the intention to supply, and possession of a knife. The deportation order was issued as a result of the applicant’s convictions. The applicant suffers from depression, which he claims has been improved by living with his partner of two years, and has previously been identified as at risk of suicide.
The Upper Tribunal (UT) dismissed the initial appeal of the deportation order on the grounds that as a ‘foreign criminal’, there must be a consideration of the public interest in his deportation. This public interest would be outweighed by very compelling circumstances. The applicant argued that the public interest test was flawed as he had lived his entire life in the UK, and therefore should have resulted in a reduced weight afforded to the public interest in deportation. Indeed, he added further, that his deportation would not amount to a return to a home state but an exile from his home.
The Court noted, inter alia, that the UT was wrong to direct itself that little weight should be attached to the fact that the appellant had lived in the UK all of his life. Indeed, the public interest test must be flexible and must take into account the circumstances of the individuals’ case. In this case, the fact that the applicant was born and lived in the UK was clearly a relevant factor affecting the weight of the balancing test against the risk of re-offending and the prospect of rehabilitation. The Court therefore concluded that the UT’s approach to this test was flawed and the case must be reheard.
Moreover, the Court also considered the applicant’s complaint regarding the UT’s failure to address the whether there would be very significant obstacles to integration. The Court concluded that the issue of integration will be considered in the re-hearing, but must adopt a broad evaluative judgment.
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