ELENA Weekly Legal Update (EWLU)

27 January 2017


European Court of Human Rights European Union United Nations National Developments ECRE

European Court of Human Rights

X v. Switzerland (no. 16744/14) [Article 3], 26 January 2017

On 26 January 2017, the European Court of Human Rights delivered its judgment in X v. Switzerland (no. 16744/14) concerning the deportation of a Sri Lankan Tamil man and his subsequent ill-treatment while imprisoned in Sri Lanka.

The applicant was a former member of the Liberation Tigers of Tamil Eelam and had been ill-treated while being detained in Sri Lanka. He applied for asylum in Switzerland on the grounds of political persecution, but his asylum application was rejected and the Swiss authorities ordered his deportation to Sri Lanka. The applicant complained that the Swiss authorities had failed to properly assess these submissions and had deported him to Sri Lanka, where he had been subjected to further ill-treatment at the hands of the authorities.

The Court found that the Swiss authorities should have been aware of the risk that the applicant might be subjected to ill-treatment if deported, as there had been ample evidence of this at the time. They had therefore failed to properly assess the applicant’s asylum application, in violation of Article 3. After his release in Sri Lanka, the applicant applied for a visa on humanitarian grounds to return to Switzerland and his application was allowed. Although the Swiss Government had apologised and subsequently granted him asylum, the applicant had continued to be a victim of the violation of Article 3 because he had not been paid any compensation and the Government had not demonstrated that he could have acquired any through domestic proceedings.

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European Union

CJEU: Preliminary reference from Lille Administrative Tribunal (France)

The Lille Administrative Tribunal has referred the following question to the CJEU in case C-647/16 Hassan under the expedited procedure provided for in Article 105 of the Rules of Procedure:

Does Article 26 of the Dublin III Regulation prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?

EDAL and the ELENA Weekly Legal Update would like to thank Flor Tercero for bringing this to our attention.

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United Nations

UNHCR: position regarding the detention of refugee and migrant children in the migration context

UNHCR has published a note concerning the Agency’s position regarding the detention of children, unaccompanied, separated or in families for immigration related purposes.

UNHCR’s position is that children should not be detained for immigration related purposes, irrespective of their legal or migratory status or that of their parents. The principles of minimal intervention and the best interest of the child should govern any measures taken by States and detention is never in the best interests of children. UNHCR pleads for appropriate care arrangements and community-based programmes to ensure adequate reception of children and their families. Thus, alternatives to detention should be explored, preferably through family-based alternative care options or other suitable alternative care arrangements as determined by the competent childcare authorities.

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National Developments

UK: Upper Tribunal publishes new Country Guidance on returns to Baghdad

On 23 January 2017, the Upper Tribunal published a new Country Guidance case on returns to Baghdad, BA (Returns to Baghdad (CG)).

The judgment states that - although the level of general violence in Baghdad city remains significant - there is no general risk of persecution in Baghdad. Nevertheless, some will be at risk and this is particularly the case for persons perceived as having collaborated with foreign coalition forces. The latter are likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups.

The Upper Tribunal also finds that kidnappings are a significant problem and often remain underreported. These might be linked to political or sectarian motives. The judgment states that sectarian violence has increased since the withdrawal of US-led coalition forces in 2012. A Shia dominated government is supported by Shia militias in Baghdad and evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL.

In general, authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection. Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive (2004/84/EC) or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.

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Belgium: CALL recognizes two Iraqi brothers from Baghdad as refugees

In two judgments of 14 December 2016 (nos. 179 408 and 179 409) the Belgian Council for Alien Law Litigation (CALL) recognised two Iraqi brothers as refugees. The applicants had lived most of their lives in Malaysia and had studied in Tajikistan, but had to leave the country as their student visas were no longer valid. They returned to Iraq and worked at the Zayouna Health Centre in Baghdad for less than a month, when they received a letter with a gun bullet. They were not able to read the letter, except for their names, as they did not understand Arabic. After receiving the letters, one of the brothers got kidnapped by militias and was told to leave the country within three days. Both applicants fled to Belgium and applied for asylum.                                                

According to the Council for Alien Law Litigation, the protection officer of the CGRS who refused to grant refugee status had based his credibility assessment too much on his own assumptions. The CALL states that context should be taken into account when assessing the credibility of the facts. As the applicants were in Iraq for less than a month and had no family or network to fall back on, it is plausible that they did not want help from their landlord nor from colleagues in the hospital to translate the letter, since they feared losing their job or being made homeless.

Taking into account the individual circumstances of the applicants - they are doctors with Sunni background without a family network who moved into a Shiite neighbourhood shortly before their flight - and the general situation in Iraq, the CALL decides that the applicants have a well-founded fear of persecution within the meaning of Art 1A(2) of the Geneva Convention in conjunction with Article 48/3 of the Belgian Aliens Act.

Based on an unofficial translation by the ELENA Weekly Legal Update.

The ELENA Weekly Legal Update would like to thank Brecht De Schutter for bringing this to our attention.

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ECRE Policy Note: Agent of protection? Shaping the EU Asylum Agency

In the Policy Note Agent of protection? Shaping the EU Asylum Agency, ECRE comments on the Commission proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 showing potential shortcomings and offering policy recommendations.

The Regulation proposes to strengthen the role of EASO, which will become the European Union Agency for Asylum (EUAA), and will play a more central role in shaping the Common European Asylum System. While ECRE acknowledges the potential of the proposed Agency, it raises human rights concerns linked to the current proposal and urges that the reform of the Agency cannot take place in isolation from the rest of the asylum package. ECRE recommends strengthening the monitoring and assessment mechanism, the establishment of an Independent Expert Panel on country of origin information (COI) that takes into account the most recent UNHCR eligibility guidelines and ensuring that personal data is kept confidential. Finally, given the serious conflict of interests that may raise, third party officials must be excluded from processing applications on the territory of Member States.

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ECRE Policy Note: Chartering a way to protection - The EU Charter of Fundamental Rights – An indispensable instrument in the field of Asylum

The ECRE Policy Note “Chartering a way to protection - The EU Charter of Fundamental Rights – An indispensable instrument in the field of Asylum” offers an overview of how the EU Charter can be used to further the rights of those in need of protection.

The note analyses the reach the Charter of Fundamental Rights of the EU. Although the EU Charter has been a legally binding instrument since December 2009, its use to date has been limited. Given its importance in ensuring that fundamental rights are upheld, ECRE recommends awareness raising and training activities on its use and scope. Furthermore, the EU Charter plays an indispensable role in ensuring that laws are drafted in a manner that complies with fundamental rights. EU agencies such as Frontex, Europol and EASO are also bound by its remit and must ensure that any action undertaken is in compliance with Charter when implementing EU law. With the increase of powers being vested in EU Agencies, ECRE recommends that a specific mechanism is required to ensure that any violation of fundamental rights can be reported and that an effective remedy is available.

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ECRE Policy Notes: the right to work and the right to housing for beneficiaries of international protection

ECRE has published policy notes on the right to work for beneficiaries of international protection and on the right to housing for beneficiaries of international protection.

The Policy Note on the right to work focusses on access to the labour market and access to procedures for the recognition of qualifications of beneficiaries of international protection. It examines the international and European standards, with particular attention paid to the Charter of Fundamental Rights of the EU.

In the Policy Note on the right to housing, the right to accommodation as set out in the international and EU law framework is examined, as well as the right to free movement and dispersal policies within a State which is inextricably linked to housing rights. The note examines and highlights certain safeguards that can be found within EU and international law that can challenge dispersal practices.

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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 Julia Zelvenska (

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

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