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ELENA Weekly Legal Update (EWLU)

26 February 2016

Summary


European Court of Human Rights National Developments NGOs

 

European Court of Human Rights


Pajić v. Croatia (no. 68453) [Articles 8 & 14], 23 February 2016

The case of Pajić v. Croatia relates to a national of Bosnia and Herzegovina who sought a residence permit in Croatia for the purposes of family reunification with her same-sex partner. They had been in a relationship for two years and planned to live together and start a business. Her application was refused as it did not meet the requirements of the Aliens Act. She challenged this arguing that this was implicitly on the basis that there was no provision for family reunification for same-sex couples, but that the law should be construed in a way to ensure there was no difference in treatment based on sexual orientation, in view of the domestic anti-discrimination legislation, the Constitution, and Convention and ECtHR case-law. She relied on Article 14 ECHR in conjunction with Article 8.

Recalling its case-law on Article 14 in the context of differences in treatment based on sexual orientation, the Court reiterated that this required ‘particularly convincing and weighty reasons’ to be justified, and could not solely be based on sexual orientation. It found that the applicant’s relationship fell within the concept of ‘private life’ as well as ‘family life’ as they had maintained a stable relationship, with regular contact and a serious intention to live together in the same household in Croatia.  In considering whether there was discrimination, the appropriate comparator was an unmarried heterosexual couple seeking to obtain a residence permit for family reunification. This possibility was expressly provided for within the Aliens Act while same-sex couples were tacitly excluded from its scope which amounted to a difference in treatment based on sexual orientation. In this context the margin of appreciation for the State was narrow and difference in treatment should pursue a legitimate aim and be proportionate to achieving this. Noting that no justification had been provided for this by the Croatian government and that the provisions provided for a blanket exclusion of family reunification for same-sex couples there was no objective and reasonable justification for maintaining this distinction. There was therefore a violation of Article 14 in conjunction with Article 8.

National Developments


France: Administrative Tribunal of Nantes: Dublin transfer decisions insufficiently motivated


Italy – no. 1601004

On 12 February 2016 the Administrative Tribunal of Nantes annulled a Dublin transfer to Italy for a female national of Nigeria. The reasoning was essentially the same as in a previous case by the Tribunal, summarised here, finding that due to the current situation in Italy it had not been established by the French authorities that the applicant would be treated in conditions confirming with respect for the right to asylum and to adequate reception.

Spain – no. 1600828

On 18 February 2016 the Administrative Tribunal of Nantes annulled a Dublin transfer to Spain. The case relates to a national of Cameroon who was subject to an expulsion order from Spain due to having entered irregularly. He then entered France and made an application for asylum. The prefecture of Vendée made a decision on 22 January 2016 to transfer the applicant to Spain, which had accepted a ‘take back’ request.

The Tribunal found that the prefecture had justified the transfer decision on the basis that the applicant’s fingerprints had been recorded on the Eurodac database, which established that he had previously filed an application for asylum in Spain. However other documents in the file, including an interview carried out by the Spanish authorities, showed that in fact he had been apprehended for irregular border crossing and had not filed an asylum claim in Spain. The prefect was aware of this. As such the transfer decision was based on erroneous information, and along with the lack of examination of the applicant’s personal circumstances, it was flawed and should be quashed. The Tribunal ordered the prefecture to review the applicant’s situation within two months.

In both cases the prefect must now re-examine the situation.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Emannuelle Neraudau for her assistance.

The Netherlands: additions to ‘safe countries of origin’ list

Ghana, India, Mongolia, Jamaica, Senegal and Morocco have been designated as "safe countries of origin" by the Dutch Minister for Immigration, according to a letter addressed to the Parliament on 12 February 2016. The letter clarifies that Morocco and Senegal are designated as safe for all persons except LGBTI individuals, while the same assessment concluded that Egypt cannot be included in the list.

The addition of the above countries extends the list of "safe countries of origin", which was introduced in the Netherlands following the transposition of the recast Asylum Procedures Directive. The list designated EEA countries, US, Australia, New Zealand and Canada, as well as Albania, Bosnia-Herzegovina, FYROM, Kosovo, Montenegro and Serbia as safe in November 2015.

Based on the AIDA news article dated 24 February 2016 available here. For further information please see the AIDA country update on the Netherlands dated November 2015, and the AIDA legal briefing on ‘safe countries of origin’ dated September 2015.

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UK: recent Upper Tribunal Country Guidance decisions

The UK Upper Tribunal has issued a new country guidance decision on trafficked women from Albania, which updates its previous guidance on this issue in AM and BM.  It has also issued guidance on the risk of persecution for lone single women In Pakistan.

When considering the risk for gay men in Algeria for its country guidance the Tribunal found that homosexual behaviour is criminalised by legislation in Algeria but that there is no real risk of prosecution, taking note of the ruling in Minister voor Immigratie en Asiel v. X, Y and Z. The only risk of ill-treatment sufficient to amount to persecution is likely to be at the hands of the family of a gay man in Algeria, with no reliable evidence to establish risk from others.

The Tribunal also considers the issue of ‘concealment’ finding that a gay man may choose to conceal his homosexuality and live discreetly to avoid shame or disrespect rather than to avoid persecution.Considering the evidence, the UT finds that if a gay man flees the family home in order to avoid persecution, he will not be at risk of persecution at his place of relocation as he will generally choose not to live openly as a gay man. This is driven by respect for social mores and a desire to avoid disapproval that does not amount to persecution, and also as an Algerian man may not self-identify as a gay man in any event.

As such the Tribunal considers that a gay man from Algeria will be entitled to recognition as a refugee only if he can show that it would be unreasonable and unduly harsh for him to internally relocate to avoid persecution from his family; or if he can show particular characteristics which may give rise to a risk of treatment amounting to persecution.

In AR and NH, the Tribunal gave Country Guidance on the risk to lesbians in India, finding that its guidance on “same-sex oriented males” in MD (India) applied equally. It found that the risk of persecution for lesbians in India would generally arise from family members though whether risk extended beyond the home is a question of fact in each case. Internal flight/relocation alternative will depend on the facts and circumstances of the woman in question but there would normally be sufficient state protection, and it is possible for lesbian women to live openly in one of the major cities of India.

For further information on actors of protection and internal protection alternative please see the APAIPA comparative report.

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NGOs


ICJ: Practitioners’ Guide to refugee status claims based on sexual orientation and gender identity 

The International Commission of Jurists has published a practitioners’ guide on refugee status claims based on sexual orientation and gender identity. It describes the elements of the Refugee Convention definition as related to this type of claim as well as the concepts of internal flight/ protection alternative and sur place refugee claims. It also includes a table of relevant CJEU, ECtHR and domestic cases.   

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Amnesty International Annual report 2015/16

Amnesty International has published its annual report on the state of the world’s human rights during 2015, with five regional overviews and more detailed chapters on 160 countries.

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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 (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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