ELENA Weekly Legal Update (EWLU)

24 January 2020


European Union United Nations National Developments NGOs

European Union

CJEU: Request for preliminary ruling on the interpretation of “new elements and findings” in asylum applications

On 16 December 2019, the Court of the Hague published its decision to call upon the Court of Justice of the European Union to give a preliminary ruling on the interpretation of Article 40 Directive 2013/32 in circumstances where the authenticity of newly provided evidence in asylum applications cannot be established.
The applicant, an Afghan national fled his country of origin after a number of targeted attacks by the Taliban. His initial application for asylum was rejected on the grounds that individual threats were believed not to be credible. New evidence was provided in a second application, including a statement from the fire brigade and fingerprints from witnesses. The Secretary of State declared this application inadmissible on the grounds that no “new evidence or findings” were presented and the authenticity and substantive accuracy of said evidence could not be established. The Court noted that even if the authenticity of evidence cannot be established a careful assessment of the evidential value would consider: the nature of the documents; the way the evidence was obtained; the relevance of the evidence in the overall asylum application; and the uncertainty surrounding the authenticity of the evidence. The Court considered it necessary to question how the term “new elements and findings” referred to in Article 40 2013/32 should be interpreted in order to determine whether Dutch legislation is in accordance with EU law. The following questions were referred:

I. Is it compatible with Article 40(2) Asylum Procedures Directive, Article 4 Qualification Directive and Article 52 of the Charter of Fundamental Rights of the European Union for Member States to conclude that newly presented evidence can never be new elements or findings if their authenticity cannot be established? If no, does it make any difference if copies of documents or documents originating from a non-objectively verifiable source are submitted?

II. Is Article 40, in conjunction with Article 4 Qualification Directive to be interpreted as permitting the Member State, when assessing evidentiary value of documents, to distinguish between documents submitted at the time of an initial application and those of a subsequent application? Are Member States permitted not to give further consideration to the duty of cooperation if the authenticity of the documents cannot be established?

The Dutch Council for Refugees assisted in the case.

Thank you to Sadhia Rafi, ELENA coordinator for the Netherlands, for informing the EWLU team about this judgment and for assisting us with writing this summary. Based on an unofficial translation by the EWLU team.

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CJEU: Request for preliminary ruling on the interpretation of Directive 2011/95

The German Federal Administrative Court recently requested a preliminary ruling in the case of C-768/19 to clarify, inter alia, which point in the asylum application process is used to determine whether the beneficiary of protection is considered to be a minor within the meaning of Article 2(j) Directive 2011/95.

The CJEU is invited to consider whether an applicant for asylum is to be considered a minor. Such a point may be the time when: (a) the beneficiary of protection was granted subsidiary protection status; (b) the applicant for asylum made his asylum application; (c) the applicant for asylum entered the host Member State; (d) the beneficiary of protection made his asylum application.

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CJEU: Request for preliminary ruling on the conformity of Spanish domestic law with Directive 2008/115 

The Juzgado de lo Contencioso-Administrativo No 17 of Barcelona recently requested a preliminary ruling in the case of C-746/19 concerning the return of third country nationals to their country of origin.

The questions referred to the Court include concern whether Spain correctly transposed Directive 2008/115 into domestic law by permitting the use of fines as the penalty for irregularly residing in the country, with the penalty of expulsion used only in cases with aggravated circumstances.

The CJEU is therefore invited to clarify whether domestic legislation is in conformity with Union law in this matter.

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United Nations

Human Rights Committee: Views on the alleged risk to right to life as a result of climate change and sea level rise 

On 7 January 2020, the Human Rights Committee (the Committee) published its views in the case of Ioane Teitiota v. New Zealand (CCPR/C/127/D/2728/2016) concerning an alleged violation of the right to life as a result of the effects of climate change.

The author, a national of the Republic of Kiribati, was denied international protection status in New Zealand and was subsequently removed to his country of origin. He claimed that the effects of climate change and sea level rise had resulted in, inter alia, unstable and precarious living conditions, the contamination of fresh drinking water, and increasingly violent land disputes. The Immigration and Protection Tribunal of New Zealand indicated that the author did not objectively face a risk of being persecuted as a result of land disputes, and had not shown evidence that the environmental conditions would be so perilous so as to jeopardize his right to life. He complained that his return violated his right to life under Article 6 ICCPR as a result of violent land disputes and environmental degradation.

The Committee noted that the primary issue in this case was whether the State had arbitrarily or erroneously evaluated the authors complaint that his return violated his right to life. In relation to the complaint of violence as a result of land disputes, it noted a general situation of violence is only sufficient to establish a real risk to the right to life in the most extreme cases. It added that the author had not demonstrated a clear arbitrariness or error in the domestic authorities’ assessment of a real, personal and foreseeable risk of threat to life resulting from violence due to land disputes. Moreover, it noted that while environmental degradation had made it hard to cultivate crops, it was not impossible. It added that the author had also failed to provide information regarding alternative employment and financial assistance. He had therefore failed to show the domestic authorities’ assessment to be arbitrary or erroneous.

No violation was found in this particular instance. However, the Committee noted that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to violations of Articles 6 and 7 ICCPR and thus give rise to non-refoulement obligations of returning states. The suggested timeframe of 10 to 15 years before the island becomes uninhabitable was deemed to allow scope for intervening acts and affirmative measures by the States and the international community to protect and relocate individuals. The Committee was unable to conclude that the assessment conducted by domestic authorities was arbitrary, erroneous, or amounted to a denial of justice.

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National Developments

United Kingdom: Ruling on the responsibility to process asylum claims subject to Dublin III Regulation

On 4 December 2019, the Upper Tribunal Immigration and Asylum Chamber (the UT) published its judgment in JR/11283/2014 [2019] on the responsibility of processing asylum claims subject to Dublin III Regulation when an individual has left the EU.

The applicant, fleeing from Iraq, travelled to Bulgaria. Due to alleged ill-treatment in Bulgaria, he travelled to Hungary and Turkey soon after. A Eurodac hit had detected the applicant having been fingerprinted in Bulgaria. However, he explained that he had been trafficked out of the EU to Turkey where he had stayed for around six months. He then made his way to the UK in the back of a lorry, unaware of which countries through which he passed. The issue to determine was whether the applicant had resided in Turkey for longer than the three-month period specified in Article 19 Dublin III. In such circumstances, responsibility for processing the applicant’s asylum requested remained with the United Kingdom as the take back request did not legally arise.

While the Home Office was informed of the alleged departure from the EU at the initial interview stage, it did not take subsequent steps to investigate this matter further, nor was it addressed in the refusal letter issued to the applicant. It added that information provided after the third country return decision had been made should be treated as inadmissible “post-decision” evidence.

The UT found that the Secretary of State had acted unfairly in rejecting the truthfulness of the applicant’s assertion of facts without a more active investigation prior to its decision. Indeed, the Secretary of State had not undermined the applicant’s case such that it warranted an adverse credibility finding. Indeed, it was appropriate to determine whether the applicant had departed the EU for the requisite three months by admitting relevant post-decision evidence.

Thank you to Mark Symes, Barrister at Garden Court Chambers, for informing the EWLU team about this judgment and for assisting us with writing this summary.

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Sweden: Child should be able to acquire citizenship as part of parent’s naturalisation claim

On 19 December 2019, the Swedish Migration Court of Appeal published its judgment (MIG 2019:26) on the possibility for the Migration Agency to refuse a minor the acquisition of the citizenship as part of their parent’s naturalization claim due to the child’s criminal record.

In November 2018, the applicant parent was granted Swedish citizenship. The son (17 years old), who had been living in Sweden since he was 3, was included in the parent’s claim but his request was refused because of his conviction of theft.

The Migration Court of Appeal considered that, in accordance with the Swedish Citizenship Act, good conduct is to be considered a prerequisite for an adults’ naturalization. However no reference is made in relation to the claim of the applicant’s child and, in this sense, only the legislator is entitled to clarify the scope of the rule.

The Migration Court of Appeal found that in assessing a child’s application, the requirement of good conduct cannot be considered in the same way as that for an adult. However, it has to consider also other elements including the age, the length of residence in the country and the seriousness of the crimes committed. For these reasons, the Court held that the applicant should also acquire citizenship.

Based on an unofficial translation by the EWLU team.

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Swiss Refugee Council: Report on reception conditions in Italy

This week the Swiss Refugee Council (OSAR) published an updated report on the situation of asylum seekers and beneficiaries of international protection in Italy.

The report focuses primarily on the conditions of individuals subject to transfers under the Dublin III Regulation. However, it also comments on, inter alia, the reception and asylum procedures in Italy, social welfare, and a legal analysis of provisions pertaining to individuals seeking protection status. After the entry into force of the so-called Salvini decree, the access to second-line reception centres (SIPROIMI) has been limited only to people with international protection and unaccompanied minors, leaving Dublin returnees, including vulnerable people, in the first-line reception centres. According to the jurisprudence of the CJEU and the ECtHR, the legitimacy of a Dublin return is subordinated to the exclusion of any real risk for the person to suffer inhuman or degrading treatment within the meaning of Article 3 ECHR.

The Swiss Refugee Council recommends States participating in Dublin system not to transfer vulnerable people to Italy. In any other cases, responsible authorities should conduct a detailed individual assessment, including asking Italian authorities for accurate information about the reception facility allocated to every person.

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UCLouvain: Registration now open for Massive Open Online Course ‘Asylum and Refugee Law

Registration is now open for an online course on Asylum and Refugee Law aimed at practitioners, field workers, students and researchers.  

The course aims to help the learners to understand and apply the complex notions of asylum, the principle of non-refoulement, and to who should be recognised and protected as a refugee. It is composed of video clips but also of numerous bibliographical resources, computer graphics presentations and various exercises in order to master the subject in a progressive and diversified way. The course is free unless the participant wishes to obtain a certificate and is currently available in French. It will be available in English next September.

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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 (

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