ELENA Weekly Legal Update - 25 September 2015
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25 September 2015


European Court of Human Rights

European Court of Human Rights


Nabil and Others v. Hungary (no. 62116/12), Article 5(1)

The case of Nabil and Others v. Hungary concerned three Somali nationals, who entered Hungary via Serbia in November 2011, and were intercepted and arrested by the Hungarian border police. They were subsequently transferred to the border station in Röszke due to having entered Hungary irregularly without identity documents.

They were served with an expulsion order to Serbia, which was suspended for a maximum period of six months or until the expulsion became feasible, as the Serbian authorities had failed to respond to Hungary’s request within the relevant time limit. The applicants’ detention was ordered on the grounds of their refusal to leave the country and their involvement in delaying the enforcement of expulsion or transfer. They applied for asylum, claiming fear of persecution from Al-Shabab on return to Somalia

Domestic courts reviewed their detention on five occasions between 8 November 2011 and 3 March 2012. It was extended on the grounds of their irregular entry into Hungary, the risk of them frustrating their deportation and their pending asylum applications. The applicants were released on 24 March after being granted subsidiary protection. Invoking Article 5(1) ECHR, the applicants complained that their detention became arbitrary as it had no basis in domestic law following their asylum request and the suspension of their deportation to Serbia. They argued that this had not been remedied by appropriate judicial review contrary to Article 5(4) ECHR.

The Court ruled that the applicants’ first three days of detention, prior to lodging their asylum claim, were justified by Article 5(1)f) , as they were being detained with a view to deportation. With regards to their further detention, this had been justified this mainly on the basis of the first decision to detain the applicants, without addressing the criteria set out in domestic law: whether the applicants were indeed frustrating their expulsion and posed a flight risk; whether alternative, less stringent measures were applicable and whether or not expulsion could eventually be enforced. Due to the lack of requisite scrutiny by the domestic courts who failed to assess the specific circumstances of the case and the applicants’ personal situation led to a violation of Article 5(1). 

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M.K. v. France (no. 76100/13), Article 3

The case of M.K. v. France relates to a national of Algeria who was sentenced to 9 years imprisonment in 2009 for the murder of an Algerian national on French territory. He was then served with a deportation order on the basis that his presence on French territory constituted a serious threat to public order. After the applicant’s appeals against the order were dismissed, he submitted an asylum claim. This was further refused as the French authorities considered it not to amount to persecution under the 1951 Refugee Convention, and although he may be exposed to inhuman or degrading treatment, he should be excluded from subsidiary protection on the basis that he posed a serious threat to public order.

He was placed in administrative detention following the end of his custodial sentence and deportation to Algeria was ordered. His appeals against these measures, with further supporting statements from friends and family in Algeria were dismissed. He claimed that he would be at risk of ill-treatment contrary to Article 3 ECHR on return to Algeria, and an interim measure was granted by the ECtHR under Rule 39.

The Court considered that domestic courts were best placed to assess the facts and evidence relating to the asylum claim. It noted that different domestic courts who had considered this case had come to different findings as to the probative value of the statements submitted by the applicant relating to the threats against him. The Court agreed with the applicant that it was difficult to obtain other types of evidence for such a threat, but shared concerns with the domestic authorities as to their value given that they were written by his friends and family. In any event, it considered that the Algerian authorities could provide adequate protection to the applicant and/or that he could relocate to a different part of the country to avoid harm. It concluded that there would be no risk of Article 3 violation on return, and ended the Rule 39 measure.

Based on an unofficial ELENA translation 

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Guido Raimondi elected as President of the European Court of Human Rights 

On 21 September 2015, the ECtHR elected Guido Raimondi, judge in respect of Italy, as its new President by secret ballot. He will take office on 1 November 2015, following the end of the mandate of the current President, Dean Spielmann, judge in respect of Luxembourg. His CV is available here

European Union


Justice and Home Affairs Council: 120,000 asylum-seekers to be relocated

The Justice and Home Affairs Council (JHA) reached a decision on 22 September 2015 to relocate 120,000 people in clear need of international protection from Italy and Greece. Despite Hungary, the Czech Republic, Slovakia and Romania voting against the proposals, and Finland abstaining, the use of a qualified majority vote saw the proposals accepted. The figure of 120,000 is in addition to the decision to relocate 40,000 people that the JHA adopted earlier this month.

The provisional measures foresee the mandatory relocation of 15,600 people from Italy, and 50,400 from Greece. 54,000 places that were initially marked for relocation out of Hungary will now either be proportionally divided between Italy and Greece, or if the situation changes in the next year and there is a need to adapt the relocation mechanism to different needs, the Commission may submit a proposal to amend the decision.

The scope of the decision envisages that the relocation mechanism will only apply to those applicants for international protection who belong to a nationality for which the proportion of decisions granting international protection among decisions taken at first instance on applications for international protection is 75% or higher, according to the latest Eurostat quarterly data. It is applicable to those who Italy and Greece would have been responsible for under the normal operation of the Dublin regulation.

Time limits are set out for the relocation procedure, which should be completed a swiftly as possible, with Italy or Greece remaining responsible in the event of non-compliance. There is an explicit provision on the need to set up reception facilities to temporarily accommodate people while being identified, registered and processed in Italy and Greece, until a decision is quickly taken on their situation. The legal and procedural safeguards set out in the Dublin regulation remain applicable, which includes the right to an effective remedy against a relocation decision. Such an appeal may not be automatically suspensive but the applicant should have the opportunity to request suspension of transfer pending the outcome of any appeal.

For further information, please see the draft decision and the JHA press release

European Commission: 40 infringement decisions adopted against 19 Member States 

The European Commission has adopted infringement decisions against 19 Member States for failing to fully implement the recast Qualifications Directive, the recast Asylum Procedures Directive and the recast Reception Conditions Directive.  These relate to 37 new cases and 3 ongoing ones. In addition, it sent letters to Cyprus, Germany, Greece, Hungary and Italy on 28 August 2015 requesting clarification on compliance with the EURODAC Regulation and administrative letters requesting clarification on the adoption and enforcement of return decisions (Directive 2008/115/EC) to Germany, Italy and Greece on 11 September 2015.

In relation to Greece, it sent a second supplementary Letter of Formal Notice for violations of provisions in the Reception Conditions Directive and the Asylum Procedures Directive. This concerns deficiencies in the Greek asylum system with regard to reception conditions available for applicants for international protection, particularly those with special reception needs and vulnerable persons; and structural flaws in the functioning of the guardianship system or legal representation of all unaccompanied minors during the asylum procedure. It notes that despite improvements, there is still a structural and persistent lack of reception capacity, independent of the large and unexpected recent arrivals of asylum seekers.

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CJEU: Reference for a preliminary ruling from Court of Appeal (Ireland), Case C-429/15 

The Court of Appeal of Ireland has submitted a reference for a preliminary ruling to the CJEU, on 6 August 2015, in the case of Evelyn Danqua v The Minister for Justice and Equality Ireland and the Attorney General. The questions referred are:
  1. Can an application for asylum, which is governed by domestic legislation which reflects a Member State's obligations under the Qualification Directive, be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?
  2. If the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection serves the important interest of ensuring that applications for international protection are dealt within a reasonable time?

Council of Europe


Meeting of the Committee of Ministers on the Execution of ECtHR judgments 

The Committee of Ministers 1236th human rights meeting, in which it supervised the execution of judgments of the ECtHR, took place between 22 and 24 September. A number of asylum-related judgments were on the agenda, although they were not subject to detailed examination, and relevant documents were distributed prior to the meeting.

M.A. v. Cyprus (no. 41872/10)

A revised action plan was submitted by Cyprus which notes that individual measures are not required as the applicant was recognised as a refugee, released from detention and just satisfaction was paid.  With regard to the finding of an Article 13 violation, it states that the Attorney General’s office prepared legislation to provide for suspensive effect to the enforcement of a deportation order where there is an allegation of violation of Article 2 or 3. To comply with the judgment’s finding on Article 5(4), a bill has been placed before the Ministry of Interior which includes a maximum period within which the Supreme Court should decide on the lawfulness of a detention order issued for the purpose of effecting deportation.

Louled Massoud v. Malta (no. 24340/08); Suso Musa v. Malta (no. 42337/12) ; Aden Ahmed v. Malta (no. 55352/12)  

Malta has submitted an action plan in relation to the implementation of these judgments, which relate to the detention of immigrants in the Safi Military Barracks and Lyster Military Barracks between 2007-2013. With regard to individual measures, all of the applicants were paid just satisfaction and have been released from detention.

The document sets out the numerous measures taken in order to address violations. These include measures aimed at the better processing of asylum applications, measures to facilitate deportation to avoid the risk of arbitrary detention pending deportation, legislative amendments in order to allow an effective challenge to detention measure and measures to improve conditions of detention. It also describes recent changes to Malta’s detention policy.

A.A.M. v. Sweden (no. 68519/10)

The ECtHR found that there would be no violation of Article 3 ECHR provided that the applicant was not returned to parts of Iraq situated outside the Kurdistan region, where internal protection was available. The government of Sweden submitted an action plan stating that the applicant in this case has been granted permanent residence, the judgment has been disseminated, and that it considers no general measures to be necessary.

For more information on the state of execution of ECtHR's judgments, please visit the website of the Service for the Execution of Judgments of the European Court of Human Rights of the Council of Europe.



National Developments


Hungary: Hungarian Helsinki Committee Information note on asylum in Hungary 


The Hungarian Helsinki Committee has published a detailed Information Note titled ‘No Country for Refugees’ that presents the main legal amendments and policy changes that have recently taken place with regard to asylum in Hungary. It also presents the organisation’s view that these provisions deny refugees access to international protection in breach of Hungary’s obligations under EU Law, the ECHR and the 1951 Refugee Convention.


Italy: adoption of legislative decree transposing recast asylum Directives

Italy has adopted a legislative decree  which will enter into force on 30 September 2015, transposing into its domestic law the recast Asylum Procedures Directive and recast Reception Conditions Directive,
The decree reduces the time that asylum seekers must wait before being able to access the labour market to 2 months from the submission of their application and provides for a more structured national reception system, with a control and monitoring mechanism for the management of reception centres. Furthermore, it provides a legal basis for emergency accommodation for the case of substantial arrivals to be used for as short a period as necessary until asylum seekers may be transferred to reception facilities, with the identification and registration to take place at the closest police station. 
The reform provides broader scope for detaining asylum seekers, who may be detained if they fall within Article 1(f) of the Refugee Convention, they have been notified of an expulsion order, they constitute a threat to public order and safety or there is a risk of absconding. In addition, asylum seekers already detained may remain in detention where they make an application for the sole purpose of delaying or frustrating the enforcement of a return decision.
With regards to the asylum procedure, an accelerated procedure is established whereby asylum authorities conduct a personal interview within 7 days of the receipt of the application and take a decision within 2 days. This may be used where the application is considered manifestly unfounded by failing to raise issues relevant to international protection, a subsequent application is lodged without new elements or an application is made for the sole purpose of delaying or frustrating the enforcement of a return decision. In addition, it will be possible for the National Commission for Asylum to regularly designate individual countries of origin, whose nationals may be granted subsidiary protection status without a personal interview, when it believes it has sufficient reason to do so based on the information in its possession.
Based on the AIDA article dated 21 September 2015
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Norway: Reversal of suspension of returns to Tripoli, Libya and certain provinces of Iraq 

The Immigration Appeals Board (UNE), has published statements on its website which reverse the suspension of returns to certain provinces of Iraq and to Tripoli in Libya.

It considers that since the decision to temporarily suspend the duty to return for individuals with a final decision to return to the provinces of Anbar, Ninewa, Salah al Din, Kirkuk, Baghdad, Diyala, Kerbala and Bab in Iraq the security situation has been clarified. Those who have received a decision to return to these provinces are obliged to leave Norway and forced returns will be possible. Those who fear persecution or risk upon return may request a reconsideration of their rejected application, and the Immigration Appeals Board will consider each case on a case by case basis.

It has also reversed the temporary suspension of the duty to return to Tripoli in Libya made due to the unrest and armed conflict there,  based on updated country of origin information on the situation of asylum seekers who return to Tripoli. Similarly, those who have received a decision to return to Tripoli are obliged to leave Norway and forced returns will be possible. The Immigration Appeals Board continues to monitor the situation in Libya and will make an individual assessment in each case of whether return to Tripoli is possible.

The ELENA Weekly Legal Update would like to thank Halvor Frihagen, ELENA National Coordinator in Norway, for informing us of this development. 
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ECRE: AIDA Legal Briefing on “Safe Countries of Origin”

ECRE has published its third AIDA Legal Briefing on the concept of “safe country of origin” in the European Union. Under the recast Asylum Procedures Directive Member States may afford less favourable procedural treatment from asylum seekers coming from countries of origin considered safe under a set of common criteria. However, the “safe country of origin” notion presents substantial conceptual and procedural risks in the asylum procedure, and the Briefing concludes that it remains an unsafe concept.

For further information, see the press release and AIDA’s annual report 2014/2015

Other announcements

Oxford University Press: free access to resources on refugee law

In response to the refugee crisis in Europe, Oxford University Press has made a number of resources freely accessible. The materials are structured around four key questions: who is a refugee, what rights do they have, what are transit states’ obligations, and what are the duties of the state where a refugee applies for asylum.

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