ELENA Weekly Legal Update (EWLU)

15 January 2016


European Court of Human Rights
Council of Europe
National Developments

European Court of Human Rights

Moxamed Ismaaciil and Abdirahman Warsame v. Malta (nos. 52160/13 and 52165/13) [Articles 3, 5(1)f), 5(4)], 12 January 2016 

The applicants in these joint cases are nationals of Somalia who arrived in Malta irregularly in August 2012, before claiming asylum. They were detained in Lyster Barracks during the processing of their asylum claims and appeals. They complained that the conditions of their detention violated Article 3 ECHR; their prolonged detention was arbitrary and unlawful contrary to Article 5(1) ECHR; and that they had no effective remedy to challenge the lawfulness of their detention, contrary to Article 5(4) ECHR.

The Court rejected the government’s submissions that the Article 3 claim was inadmissible for non-exhaustion of domestic remedies, in reliance on its findings in Aden Ahmed v. Malta in which it found that there were no accessible effective remedies in domestic law to challenge conditions of detention. Turning to assess their conditions of detention, the Court found that overcrowding in certain months of their detention was not so severe in itself to violate Article 3. It was concerned with regard to the allegations of the applicants suffering from the cold and the lack of female staff but noted that there had been various improvements to the centre. The Court reiterated the importance of the authorities keeping a comprehensive record of the state of health of detainees but found that the applicants had not shown that they were denied adequate medical assistance. It concluded that the cumulative effect of the conditions of detention did not amount to degrading treatment and found no violation of Article 3.

Having repeatedly found that domestic remedies in Malta to challenge the lawfulness of detention violated Article 5(4), the Court saw no reason to depart from its previous case law, thereby finding a violation. With regard to the lawfulness of their detention after lodging their asylum claims, this was justified for the purpose of processing their claims and fell within 5(1) f), to prevent unauthorised entry. It considered the period of detention, eleven months and three weeks in total, lengthy, but found that overall it complied with the requirements of Article 5(1). 

Please note that Malta has now introduced a new migration strategy which ends its practice of automatic detention of people that have entered the state irregularly and introduces grounds for detention and alternatives to detention into domestic law. More information is available here

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A.G.R. v. The Netherlands (no. 13442/08); A.W.Q. and D.H. v. the Netherlands (no. 25077/06); M.R.A. and Others v. the Netherlands (no. 46856/07); S.D.M. v. the Netherlands (no. 8161/07); S.S.v. the Netherlands (no. 39575/06) 

The applicants in each five of these cases are nationals of Afghanistan who claimed asylum in the Netherlands. Each of them had held senior positions in the former Afghan army or intelligence service during the communist regime. They claimed that upon return to Afghanistan they would be at risk of persecution by the mujahedeen or the Taliban; or would otherwise be at risk of ill-treatment due to the general security situation.

The Dutch authorities decided to exclude them from protection pursuant to Article 1F of the 1951 Refugee Convention, based on a report by the Ministry of Foreign Affairs which considered that Afghan asylum seekers holding certain senior posts during the communist regime in Afghanistan were implicated in human rights violations. This was based on analysis of their individual responsibility. They considered that the applicants’ expulsions would not breach article 3 on the basis of their former careers or any individual or personal circumstances they had raised. The applicants challenged these findings before the ECtHR.

The Court considered that the applicants had not demonstrated individual factors showing a real risk of persecution upon expulsion.  It noted that since December 2010 the UNHCR no longer classifies former employees of the Afghan security service or soldiers in the Afghan army during the communist regime as specific categories of persons exposed to a risk of persecution in Afghanistan. Further, it relied on its judgment in H. and B. v the United Kingdom in finding that the general security situation in itself was not such to lead to a risk of article 3 upon return to Afghanistan.

Interim measures preventing expulsion in three of the cases remain in place until the judgments become final. 

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Council of Europe

Nils Muižnieks submits third party intervention in S.O. v. Austria (no. 44825/15) and A.A. v. Austria (44944/15) on Dublin transfers to Hungary 

On 17 December 2015, Nils Muižnieks submitted a third party intervention in the cases of S.O. v. Austria (no. 44825/15) and A.A. v Austria (no. 44944/15) which relate to the transfer of the two applicants from Austria to Hungary under the Dublin III Regulation. His observations are primarily based on his visit to Hungary from 24-27 November 2015 and his report published following his visit to Hungary from 1-4 July 2014.

His intervention refers to recent national case law from the Netherlands (Council of State, 26 November 2015) and Germany (Administrative Court of Düsseldorf, 3 September 2015) in which Dublin returns to Hungary were suspended.

He concludes that current asylum law and practice in Hungary are not in compliance with international and European human rights standards. Dublin returnees are at high risk of being detained in poor conditions with ineffective remedies available to challenge this. Furthermore, Dublin returnees are exposed to a very high risk of being subject to deportation to Serbia and onward chain refoulement leading to a risk of violation of Article 3 ECHR, due to the Hungarian law considering Serbia as a safe third country, which applies retroactively. 

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National Developments

Denmark: UNHCR Observations on the proposed amendments to the Danish Aliens legislation

The UNHCR Regional Representation for Northern Europe has published its observations on the proposed amendments to the Danish Aliens legislation contained in Proposal no. L 87 of 10 December 2015.
The proposals include restrictions to the right to family reunification, a proposal to seize the assets of asylum seekers, the introduction of restrictive criteria for permanent residency, expanded use of the possibility to cease international protection, and the reintroduction of integration criteria in Denmark’s selection of refugees under its resettlement quota.

UNHCR regrets that Denmark is restricting its asylum legislation for the sole purpose of making it ‘less attractive’ to seek asylum in Denmark. It provides detailed observations on each specific measure proposed, recommending that they be withdrawn. 

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France: NGOs concerned over increasing detention of children 

The five NGOs assisting asylum seekers and migrants in pre-removal detention centres in France, have issued a press release voicing concerns over an increase in the detention of children in 2015.
105 minors were detained with their parents in 2015, compared to 45 during the previous year.

Families are increasingly detained with a view to facilitating the logistics of deportation (rétention de confort), without having the opportunity of appealing detention before a judge. The NGOs also report that some families have been detained without prior consideration of alternatives to detention, as required by law.

Based on the AIDA news article dated 12 January 2016 available here. For further information on detention in France, please see the AIDA Country Report. 

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The Netherlands: Hague District Court urgent preliminary reference on detention, recast Reception Conditions Directive, and the EU Charter: Case C-18/16 (PPU) 

On 13 January 2016 the Hague District Court lodged an application for an urgent preliminary ruling (available here in Dutch) from the CJEU, on the following question:
Are articles 8(3)a) and 8(3)b) of the recast Reception Conditions Directive valid in the light of Article 6 Charter of Fundamental Rights of the EU:

  1. In a situation where a third country national is detained under to these provisions but has a right to remain in the Member State until a first instance decision has been made on his asylum claim, pursuant to Article 9 recast Asylum Procedures Directive; and
  2. Considering the explanatory notes to the Charter the limitations that may legitimately be imposed on the rights conferred by Article 6 of the Charter shall not extend further than those set out in Article 5(1)f) ECHR and the interpretation of the ECtHR of this provision, in particular in the case of Nabil and Others v. Hungary (no. 62116/12) in which it found that detention of an asylum seeker will violate Article 5(1)f) ECHR if it is not imposed for the purpose of removal?

The case relates to an Iranian national who claimed asylum in the Netherlands. He was detained pursuant to national law implementing Articles 8 (3)a) and 8(3)b) of the recast Reception Conditions Directive, on the grounds that this was necessary in order to determine his identity or nationality; and as it was necessary to obtain information necessary for assessing claim for international protection, given that there was a risk of absconding. He challenged his detention. He is yet to receive a first instance decision on his asylum claim and has not been issued with a return decision.  
The Hague District Court found that this case raised similar issues to those in Case C-601/15 J.N. currently pending before the CJEU  (summarised in English here).
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Sadhia Rafi, national ELENA coordinator in the Netherlands, for her assistance with this summary. 

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ECRE: Updated AIDA Country report on Sweden 

The updated AIDA report on Sweden provides information on proposed reforms to the asylum system in Sweden, following a rapid increase in refugees towards the end of 2015. In response to the rising numbers and strain on public services, the government proposed a number of reforms to its asylum law.

The proposed reforms would reduce the duration of residence permits to 3 years for refugees, and 1 year for those eligible for subsidiary protection. There are exceptions to this for children and their families whose applications had already been registered, provided that the child is still under 18 at the time of the decision, and for resettlement quota refugees who will continue to receive permanent residence permits. This policy will apply for those who submitted asylum applications after 24 November 2015.

The report also details concerns in relation to age assessment procedures used by the Swedish Migration Agency. These have been criticised by the professional organisation of Swedish paediatricians which encouraged its members not to participate. As part of the government’s reform proposals, it will assess alternative methods for establishing age through the use of MRI scans, and introduces medical age assessments for asylum seekers.

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ECRE: Updated AIDA Country report on Turkey 

The updated AIDA report, written by Refugee Rights Turkey, provides detailed information on the country’s evolving international protection system as well as a compilation of up to date statistics.

It outlines the current state of transition to the new legal framework laid down by the Law on Foreigners and International Protection (LFIP) and recent changes in UNHCR’s special role in Turkey as a ‘complementary’ protection actor. On 18 May 2015, the Directorate-General for Migration Management (DGMM) announced that the transitional arrangement with the Police, under which police authorities continued to handle asylum caseloads, came to an end. Provincial DGMM Directorates were authorised to issue decisions on international protection applications as of 1 July 2015.

Documenting the situation of reception conditions and detention to date, the report explains that Turkey currently only has one operational reception centre. Out of 6 planned centres only one, located in Erzurum, will be dedicated to the reception and accommodation of asylum seekers, while the remaining 5 are to become detention centres, following the EU-Turkey Action Plan of 29 November 2015.

DGMM, which finalised the takeover of the administration of detention centres in November 2015, has indicated plans to achieve a detention capacity of 10,000 places across the country by June 2016. At the same time, DGMM has also reportedly used one of the camps established for temporary protection beneficiaries fleeing Syria, located in the Osmaniye province, as a de facto detention centre in October 2015.

Based on the AIDA news article dated 23 December 2015, available here

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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 Zarina Rahman (, or Julia Zelvenska (

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