ELENA Weekly Legal Update (EWLU)

9 August 2019

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European Court of Human Rights

Communicated Cases against Spain, the Netherlands, Sweden and Belgium

The European Court of Human Rights (ECtHR) has recently communicated the following asylum-related cases:

  • Totopa v. Spain (Application No. 74048/17): The applicant is an Ivorian national. On 23 March 2017, the applicant’s son and sister (the child’s aunt) tried to enter Spain by sea from Morocco. They were rescued by the Spanish authorities and transferred to Melilla. The child and his aunt were separated upon arrival, and the aunt was later transferred to the mainland. On 17 April 2017, the applicant tried to enter Spain by boat and was rescued and brought to the Spanish mainland. Between 17 April 2017 and 13 November 2017, the applicant remained separated from her son in Melilla and applications for reunification were refused. The applicant complains that this separation violated Article 8 ECHR, and the lack of an effective remedy in this regard was a violation of Article 13 ECHR. 
  • Z.H. v. the Netherlands (Application No. 45582/18): The applicant is an Afghan national. She applied for asylum in the Netherlands in 2017 and her application was refused on the grounds that it was not believed she was threatened by the Taliban. The applicant complains under Article 3 that if expelled to Afghanistan she will be at risk of ill treatment because she is a Westernised woman who was formerly employed by a foreign NGO.
  • M.J. v. the Netherlands (Application No. 49259/18): The applicant is an Afghan national from Laghman province. In 2015, he applied for asylum in the Netherlands. The application was refused as it was found that an internal protection alternative was available in Kabul. The applicant complains under Article 3 that no internal protection alternative exists in Kabul. He further complains under Article 13, taken in conjunction with Article 3, regarding the lack of access to an effective remedy. 
  • Jafari v. Sweden (Application No. 18568/19): The application concerns an Afghan national who applied for a residence permit in Sweden on account of family ties to his father and two brothers. His application was rejected on the grounds that he had not sufficiently substantiated his identity. The applicant complains that the Swedish authorities’ refusal to grant him a residency permit violated his right to respect for family life as guaranteed by Article 8 of the Convention.
  • R.L. v. Belgium (Application No. 15388/18): The applicant, a Colombian national, submitted an application for international protection in Belgium stating that he faced threats from armed groups involved in drug trafficking in Colombia. The application was refused. The applicant complains under the procedural limb of Article 3 regarding the Belgian authorities failure to sufficiently assess the risk to the violation of his rights under Article 3 if he were to be returned. The applicant also complains under Article 13 in this respect.

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European Union

CJEU Ruling in Torubarov: Courts have power to grant protection 

On 29 July, the CJEU published its ruling the case of Torubarov (C–556/17) holding that, in accordance with the right to an effective remedy, judicial courts have the power to overturn administrative decisions in the granting of international protection, in line with the Advocate General Bobek’s Opinion.  

The case concerns a Russian national, a businessperson who participated in the activities of an opposition political party and a non-governmental organisation representing the interests of businesspersons. Since 2008, several sets of criminal proceedings have been brought against him in Russia. Mr. Torubarov submitted an application for international protection in Hungary in 2013. The Immigration and Asylum Office (IAO) rejected this application twice, and both times, on appeal, the Administrative and Labour Court, Pécs, annulled these decisions for separate reasons. In the second annulment, the court advised that the third application for international protection be granted. The IAO subsequently refused the third application, disregarding of the judicial guidance of the court. The applicant sought a third judicial review. The court stayed proceedings and submitted a preliminary reference to the CJEU to determine whether the court can derive power from EU law to alter an administrative decision, specifically from the recast Asylum Procedures Directive 2013/32/EU (rAPD) and Article 47 of the Charter of Fundamental Rights of the European Union (the Charter).

In assessing the referred questions, the CJEU recalled that the aim of the rAPD is to establish common procedures for granting and withdrawing international protection pursuant to the Qualification Directive 2011/95/EU (QD). Accordingly, Member States are required, subject to the grounds for exclusion provided for by that directive, to grant international protection status if the person meets the minimum standards set by EU law to qualify for it.  

Referencing its own case law, the CJEU held that under Article 46(3) of the rAPD, Member States are required to order their national law in such a way that the processing of appeals includes a ‘full and ex nunc examination’ of the international protection needs of the applicant. While it recognised that the rAPD affords Member States some discretion in the determination of rules for handling an application for international protection, the CJEU ruled that that Member States must comply with Article 47 of the Charter on the right to an effective remedy. It stated that this right would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party. It is in that context that the Court held that Article 46(3) of the rAPD would be deprived of any practical effect if the quasi-judicial or administrative body could take a decision that ran counter to that assessment.

Thus, in the event of the file being referred back to the quasi-judicial or administrative body, the CJEU held that that body no longer has discretionary power as to the decision to grant or refuse protection. A new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. In order to guarantee that an applicant for international protection has an effective judicial remedy, a national court or tribunal seised of an appeal is required to vary the decision of the administrative or quasi-judicial body that does not comply with its previous judgment, and to substitute is own decision by disapplying, if necessary, the national law that prohibits it from proceeding in that way.

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European Commission: Infringement Proceedings Launched against Hungary 

On 25 July, the European Commission launched infringement proceedings against Hungary in the Court of Justice of the European Union (CJEU) concerning current legislation on asylum and the treatment of asylum applicants.  

The referral to the CJEU concerns the so-called “Stop Soros” legislation, which entails the criminalization of all support for asylum and residence permit applicants, particularly from international and non-governmental organisations and lawyers. The legislation also places restrictions on the right to request international protection and creates new inadmissibility grounds. This reference from the European Commission follows a letter of formal notice sent to Hungary in July 2018 and a follow-up reasoned opinion in January 2019. The Commission has found the response of the Hungarian government thus far to be unsatisfactory. 

The European Commission also sent a letter of formal notice to the authorities regarding the non-provision of food to third-country nationals held in transit zones at the border with Serbia. The Commission states that their compulsory stay in the Hungarian transit zones qualifies as detention under the Return Directive 2008/115/EC, and Hungary must therefore provide the guarantees and safeguards provided for under that Directive. The Commission finds that the detention conditions in the transit zones, in particular the withholding of food, do not respect the material conditions set out in the Return Directive and the Charter of Fundamental Rights of the European Union. The Commission set a one-month deadline for a response from Hungary.

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National Developments

The Netherlands: Ruling against return to Greece for vulnerable beneficiaries of international protection

On 15 July, the Dutch Council of State ruled to suspend the transfer to Greece under the Dublin III Regulation 604/2013 (the Dublin Regulation) of a single mother and her daughter, who were considered vulnerable. The mother and daughter had previously been granted asylum residence permits in Greece.

The Court first recalled the findings of the Ibrahim judgment (C-297/17) from the Court of Justice of the European Union (CJEU), which found that a transfer of a status holder under the Dublin Regulation cannot occur if it risks a violation of Article 4 of the Charter of Fundamental Rights of the European Union (the Charter), the equivalent of Article 3 of the European Convention of Human Rights (ECHR). In assessing a transfer appeal, the relevant court must conduct an examination of whether there are structural deficiencies in the Member State concerned or deficiencies that affect certain groups of people. It must make this assessment with regard to the threshold of seriousness required for a violation of Article 4 of the Charter.

In examining the situation in Greece for returning status holders, the Court referenced its own case law from 2018 where it found that returned status holders had difficulties in finding paid work, accessing healthcare and did not receive state support to find accommodation. In the case from 2018, the Court held that the situation did not risk a deprivation of basic material needs and thus did not suspend the transfer.

With regard to the instant case, the Court found that the situation had not changed in Greece since the previous ruling. Nonetheless, given the serious mental health problems faced by the daughter and the fact that she requires constant care from her mother, it held that they would struggle to earn an income if returned and would have difficulty accessing medical and psychological care.

The Court held that the State Secretary must re-assess the case with due consideration of the vulnerability of the applicants and examine whether they would risk exposure to inhuman or degrading treatment if returned to Greece.

 Based on an unofficial translation by the EWLU team.

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France: Court rules against exclusion of Syrian asylum applicant due to lack of evidence

On 19 July, the French National Court of Asylum overturned a decision of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) regarding the cessation of refugee status of an applicant from Syria.  

The applicant was granted refugee status in December 2013 on the grounds that he was a member of the political opposition who was arrested and detained in 2011, and who had been targeted by the Syrian Free Army for challenging their official statement on the death of the French-Belgian journalist Yves Debay.

On 23 May 2017, OFPRA received a confidential document from the Directorate-General for Foreigners in France, which it stated gave reasons to believe the applicant had concealed his motives in seeking protection in France. OFPRA held that the applicant failed to sufficiently explain his activities in Syria and in Turkey in the years before his arrival in France, that he had concealed his use of social media, and that he was in contact with ISIS. On 19 June 2018, OFPRA terminated the refugee status of the applicant stating that his presence on French territory constituted a serious threat to national security, pursuant to Article 1(C) of the Geneva Convention.

On appeal, the French National Court of Asylum held that in the interviews and subsequent investigations, including in the account the applicant gave to the French Consulate in Turkey regarding the death of Yves Debay, the applicant had been consistent in his account of his time in Syria and Turkey and in explaining his use of multiple telephones and social media accounts. The Court held that the confidential note did not produce any specific evidence to accuse the applicant of a crime and solely details the fact that four of his brothers were involved in ISIS and that he had several Facebook accounts and telephone numbers.

The Court therefore ruled that the evidence did not allow the applicant to be considered a serious threat to national security and ordered that the applicant maintain his refugee status.

Based on an unofficial translation by the EWLU team.

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Germany: Suspended Dublin transfer to Greece due to risk of chain refoulement to Turkey

On 17 July, the Administrative Court of Munich ruled to suspend the transfer of a Syrian national to Greece under the Dublin III Regulation 604/2013 (the Dublin Regulation).

The applicant previously applied for asylum on the island of Kos, Greece in 2018. In Greece, his application was deemed inadmissible as Turkey was considered the ‘First Country of Asylum’. The applicant subsequently travelled to Germany to join his parents and two brothers who live in Nuremberg. The German Federal Police apprehended the applicant following a border police check on a bus coming from Austria on 13 June 2019 and placed him in detention, refusing entry to the territory. Proceedings were then launched to return the applicant to Greece under the Dublin Regulation.

In examining the case, the Court held that the applicant, if returned to Greece, would likely risk chain refoulement to Turkey. While it recognised that return to a safe country is provided for under Article 38 of the recast Asylum Procedures Directive 2013/32/EU (rAPD), the third country must meet certain requirements in order for this concept to be applied. It held that it was doubtful as to whether Greece fully complies with Article 38 (1)(c) of the rAPD, which requires that the third country acts in accordance with the principle of non-refoulement enshrined in the Geneva Convention and that there is the possibility in that country to apply for protection.

The Court found that Turkey does not sufficiently implement the Geneva Convention in granting protection status for all applicants for asylum. It found that Syrian nationals are granted “temporary protection” but not a genuine status in accordance with the Geneva Convention. It ruled that this does not meet the requirements of Article 38 (1) of the rAPD.

The Court also held that the German-Greek Bilateral Agreement did not apply in the instant case as the applicant was denied entry to the territory on the grounds that he did not have the correct documentation. The Court also found that the Dublin Regulation proceedings were launched too soon and not in accordance with established procedure of the Regulation. The Court held that while the Dublin Regulation does not prohibit border procedures, transfers should be carried out following the steps laid out in the Regulation. As a result, the Court ruled to suspend the return order, awaiting a further hearing.

The case was litigated with support of Pro Asyl, RSA and Equal Rights Beyond Borders.

The EWLU would like to thank Vinzent Vogt  (Equal Rights Beyond Borders) for bringing our attention to this case. Based on an unofficial translation by the EWLU team.

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HFHR report: Access to asylum procedures at Poland’s external borders

The Helsinki Foundation for Human Rights (HFHR) has published a report on the current situation of asylum at the Eastern borders of Poland.

The report examines the situation at the border between 2015 and 2019, cataloguing a series of relevant reports and rulings delivered by national administrative courts concerning entry refusal decisions issued to individuals who had expressed an intention to seek international protection in Poland. The report details how the number of asylum applications is declining in Poland and how the percentage of applicants lodging asylum applications at the border in Terespol has suddenly decreased from 90% to just over 30% in 2018.

The report also outlines planned changes to the asylum laws. These changes include, inter alia, new border procedures, lists of safe third countries and safe countries of origin, and significant changes in the appeals procedures. The HFHR warn that these amendments will legitimise forced returns of people seeking international protection at Poland’s borders and facilitate mass returns without access to procedural safeguards.

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Third Party Intervention in ECtHR in Al H. and others v. Greece

The AIRE Centre, the Dutch Council for Refugees and ECRE have submitted a third-party intervention in the case of Al H. and others v. Greece (Application Nos. 4892/18 and 4920/18).

The cases concern the situation of vulnerable applicants from Syria, Iraq, Afghanistan, Sudan, Egypt, Eritrea and Ghana, who were restricted to the island of Lesvos by virtue of the EU-Turkey statement. The applicants complain that the living conditions in the Moria hotspot, as well as the detention of some of them in a “cage” for six days, violated Article 3 of the ECHR and that they lacked access to an effective remedy under Article 13 ECHR in this respect. Moreover, several applicants claim that the failure of the authorities to comply with legal deadlines for the registration of their asylum applications affected their reunification with family members in other European countries and, as a result, their right to respect for family life under Article 8 ECHR.
The intervention details how Contracting Parties to the European Convention on Human Rights (ECHR) must ensure that the reception standards and procedures in reception facilities respect human dignity and are adapted to the specific needs of vulnerable applicants for international protection. The interveners also submit that a lack of adequate reception standards, including, inter alia, access to shelter, food, water and medical assistance, would result in a violation of Article 3 of the ECHR and of human dignity. Lastly, it is stated that systematic delays in asylum procedures are not in line with international and EU legal standards, worsen the harmful impact of already lengthy procedures, and result in the prolonged separation of families.

The Third Party Intervention can be read 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 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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