ELENA Weekly Legal Update (EWLU)

5 August 2016


European Court of Human Rights

Overview of the Court’s case law from 1 January to 15 June 2016

The European Court of Human Rights has published an overview of the Court’s case law from 1 January to 15 June 2016. The overview includes important case summaries on topics such as the right to life, the prohibition of torture and inhuman or degrading treatment and punishment, procedural rights and the lawful arrest or detention.   

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European Union

EASO: Country of Origin Information – Pakistan Security Situation 

The European Asylum Support Office (EASO) has published a report on the security situation in Pakistan, intended to provide information relevant for the international protection status determination of Pakistani asylum seekers.

The publication provides background information on the conflict in Pakistan and an overview of recent security trends. It also describes the impact of the violence on the civilian population and the state ability to secure law and order. In addition, the report provides a detailed examination of the security situation in specific regions in Pakistan.
The main findings of the report include, inter alia, the continuation of the so-called Zarb-e-Azb military operation against militant groups in North Waziristan in 2016. This is in addition to the several airstrikes and ground operations, including drone strikes and targeted killings, conducted by the Pakistani military. At the same time, cities and urban centres remained the target of several militant and terrorist attacks. Nonetheless, it is noted that the number of civilian causalities continued to decline throughout 2015 and the first quarter of 2016.

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United Nations

UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Honduras

The United Nations High Commissioner for Refugees (UNHCR) has published the Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Honduras. The Guidelines are intended to assist decision-makers and private practitioners, in assessing the protection needs of Honduran asylum seekers. 

The recent increase of asylum seekers from Honduras is directly related to the structures and patterns of organised violence in the country, including violence related to gangs, drug smuggling, and state and private security forces. Honduras has seen an unprecedented increase in their homicide rates, drug trafficking and corruption scandals. Thus far, the country’s government has been unable and, in some instances, unwilling to provide adequate protection to its citizens and residents. This is mainly related to the strong (corruption) link between these criminal structures and government officials.

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National Developments

Germany: The Administrative Court of Baden-Württemberg suspends Dublin transfers to Hungary because of systemic deficiencies in the asylum system 

On 5 July 2016, the Administrative Court of Baden-Württemberg suspended the Dublin transfers of asylum seekers to Hungary because of systemic deficiencies in the asylum system.

The case relates to a Syrian national, who had entered Germany via Greece, Hungary and Austria. The Federal Office for Migration and Refugees declared his asylum application inadmissible pursuant the Dublin III Regulation and ordered his return to Hungary. The Administrative Court Sigmaringen overturned this decision because of the apparent systemic deficiencies in the Hungarian asylum system. It ruled that asylum seekers would be subjected to severe human rights violations when returned to Hungary. The Federal Office for Migration and Refugees appealed.
The High Administrative Court dismissed this appeal. It reiterated the severe systemic deficiencies in the asylum system of Hungary and in addition, considered the serious threat of detention of asylum seekers when returned to Hungary. Even though the Hungarian law is in accordance with Article 8 of the recast Reception Conditions Directive (2013/33/EU), several reports revealed the failure of Hungary to adhere to this law in practice. The applicant would therefore face a real risk of being subjected to inhuman or degrading treatment in Hungary.
Besides the general situation in Hungary, the Court found foreseeable that the Dublin transfer would likely not take place within the six months’ time limit pursuant Article 29(2) of the Dublin III Regulation. The applicant could also not be retuned to Greece (systemic deficiencies) or Austria (merely a transit country).
In those circumstances, the Federal Office for Migration and Refugees should have taken the responsibility for examining the asylum application in accordance with Article 17(1) of the Dublin III Regulation).
Based on an unofficial translation by the ELENA Weekly Legal Update.

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UK: Secretary of State for the Home Department v ZAT & Ors [2016] EWCA Civ 810

The Court of Appeal has given its ruling in the case Secretary of State for the Home Department v ZAT & Ors concerning the relationship between the Dublin III Regulation and the right to private and family life pursuant Article 8 ECHR. 

The case concerned seven applicants from Syria. Four were living in the unofficial camp near Calais known as ‘the Jungle’. Three of them were unaccompanied minors and the other was the adult dependent brother of one of them who suffered from mental health problems. The other three applicants were their siblings, who had refugee status in the UK. The applicants claimed that the refusal of the Secretary of State for the Home Department (SSHD) to admit them to the UK to be reunited pending the determination of the asylum applications of the first four applicants amounted to a disproportionate interference with their Article 8 ECHR right to family life.
In ZAT and others v SSHD, the Upper Tribunal ordered the SSHD to admit the four vulnerable asylum seekers from the Calais camp in France to the United Kingdom in order to be reunited with refugee family members during the examination of their asylum applications. Although the applicants had not applied for asylum in France and therefore were not subjected to the Dublin procedures, the particular circumstances of the case meant that failing to do so would lead to a disproportionate interference with their right to respect for family life. The SSHD appealed.
The Court of Appeal concluded that the Upper Tribunal had erred in its approach to the Dublin III Regulation in relation to Article 8 ECHR.  According to the Court, an application for entry by an unaccompanied child, without first invoking the relevant Dublin III Regulation in France, can “only be justified in an especially compelling case”. This is only the case where the applicants “can show that the system of the Member State that they do not wish to use, in this case the French system, is not capable of responding adequately to their needs”. In the particular circumstances of this case, the evidence is unlikely to meet the required threshold of “an especially compelling case” in order to completely bypass the initial procedural stage of the Dublin procedure on the grounds of Article 8 ECHR. 
The Court of Appeal allowed the appeal. As the SSHD did not seek the return of the four vulnerable asylum seekers to France, the Court made no further return order. At the present time, the SSHD has granted refugee status to two of the applicants.

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UK: Home Affairs Committee report on the Migration Crisis

On 3 August 2016, the Home Affairs Committee published the report entitled Migration Crisis. The report addresses the causes of mass migration, the protection of the EU’s external and maritime borders and the treatment of migrants.

The Home Affairs Committee concludes that the failure of the EU Member States to develop and implement an effective border control mechanism has directly contributed to the intensified migration crisis. It highlights that all Member States should be held responsible for the reception of asylum seekers and not only the southern countries, such as Italy and Greece. Moreover, the Member States should adopt a coordinated approach to support those countries around Syria, which have taken in large numbers of refugees, including Lebanon, Jordan and Turkey. The Home Affairs Committee proposes a deal between Member States, including the development of safe and legal routes, such as humanitarian visas and resettlement schemes.
As regards the so-called Calais jungle, the French and UK governments have failed to establish a long-term solution. The humanitarian conditions in the Calais camps are severely condemned. The report therefore calls on the UK government to establish safe and legal migration routes. This includes, inter alia, the possibility for unaccompanied children to reunite with their family members in the United Kingdom.

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Bar Human Rights Committee of England and Wales report on the policing and access to justice in the camps at Calais and Grande-Synthe in France 

The Bar Human Rights Committee of England and Wales (BHRC) has published their report entitled Camps at Calais and Grande-Synthe: Policing and Access to Justice. The report is based on BHRC’s fact-finding mission to the Calais and Grand-Synthe camps in France between 21 and 22 March 2016. 

The BHRC highlights the several instances of police violence, the use of excessive force and the failure of the police to protect inhabitants of the camp facing violence from others. For instance, immigrants and asylum seekers have been subjected to severe beatings and tear gas. These instances of excessive police violence occurred during the evictions from and demolition of certain parts of the camps. The report further draws attention to the lack of adequate legal advice, representation and observation within the camps. As such, asylum seekers have been misinformed about their rights and, therefore, unable to report any human rights violations.  
The BHRC calls upon the French government to set up an independent investigation into allegations of police neglect of power in the camps, and for further human rights monitoring to be put in place urgently. In addition, police officers and law enforcement officers should receive clear instructions and training regarding the use of force in the camps. Regarding the legal advice and information in the camp, the French and UK Governments are called upon to establish a permanent legal advice centre and a template for the documentation and monitoring of police abuses. In addition, independent legal/human rights observers and interpreters should be able to access the camps.

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Migreurop report on the situation of asylum seekers in the Spanish enclaves of Ceuta and Melilla

Migreurop, in cooperation with GADEM and La Cimade, has published a report entitled Ceuta y Melilla, centros de selección de personas migrantes a cielo abierto a las puertas de África. The report is based on several fact-finding missions conducted in northern Morocco in the proximity of Nador and in the Spanish North African enclaves of Ceuta and Melilla. Migreurop conducted several interview with actors working on migration issues in and around the enclaves and people directly affected by the migration policies.  

The report covers, inter alia, the issues related to the cooperation between the Moroccan and Spanish authorities, the legalisation of so-called ‘pushbacks’ and collective expulsion, the operation of asylum offices at the borders of Ceuta and Melilla, and the creation of a legal limbo in the migration management on the southern border of Europe. It focused on the operation of the detention centres, the transfers to mainland Spain, and the impunity of the Guardia Civil.
Migregroup finds that the rights of asylum seekers and immigrants in these enclaves are violated as a direct result of the continued instances of arbitrariness and impunity in the border management of the European and African borders. The organisation, therefore, calls for the immediate development of a plan to end the impunity related to the border control mechanisms currently operating in the Spanish enclaves.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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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 Isa van Krimpen (, or Julia Zelvenska (

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