ELENA Weekly Legal Update (EWLU)


European Union European Court of Human Rights National Developments

European Union

CJEU: AG Opinion Case C-573/14 Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

Advocate General Sharpston has given her opinion on the preliminary ruling from the Conseil d’Etat (Council of State) in Belgium. In 2006, the Brussels Criminal Court found Mr. Lounani guilty of having participated in the Belgian cell of a terrorist group called the ‘Moroccan Islamic Combatant Group’ (MICG) and ordered him to a six years’ imprisonment. In 2010 he applied for refugee status to the Commissioner General for Refugees and Stateless Persons (CGRA), but was refused international protection on the grounds of participation in a terrorist organisation. After this decision was overturned by the asylum appeal body, the Council for asylum and immigration proceedings (CCE), the CGRA went to the Council of State in a subsequent appeal. The Belgian Council of State referred several questions to the Court of Justice of the EU concerning the relation between participating in a terrorist organisation and the exclusion grounds in the Qualification Directive.

AG Sharpston considers it unnecessary to demonstrate that an asylum applicant has previously been convicted of a terrorist offence with the meaning of Article 1(1) of the Framework Decision in order to be refused refugee status on the ground laid down in Article 12(2)(c) of the Qualification Directive. The AG bases this on the fact that even though the Framework Decision is relevant for the assessment, it cannot determine the scope of the exclusion clause. Also, the interpretation of the exclusion clauses should depend on the system of rules for determining refugee status instead of concepts originating in other areas of EU law, such as the Framework Decision. 

By the second and third question the referring court asks whether participation in a terrorist activity is sufficient to trigger the exclusion grounds in the Qualification Directive. Building on the CJEU judgments in B and D and H.T, AG Sharpston concludes that a previous conviction for being part of a terrorist organisation may not automatically lead to the exclusion from international protection. A final conviction for a terrorist offence by the Courts of a Member State should however be given significant weight in the individual assessment of, whether the grounds for exclusion in Article 12(2)(c) of Directive 2004/83 apply. She argues that the assessment should include an examination of whether he shares personal responsibility and the implications of group’s activities for international peace and security. In order to invoke grounds for exclusion it is not necessary to establish that the applicant himself has instigated or participated in terrorist acts.

Finally, AG Sharpston submits that an applicant can also fall under the exclusion grounds in Article 12(2)(c) and (3) when no actual offence within the meaning of Article 1 Framework Decision has been committed.

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CJEU: Case C-181/16 Sadikou Gnandi v Etat belge

On 8 March 2016 the Belgian Council of State lodged a request for a preliminary ruling to the CJEU, relating to the preclusion of a return decision under the Return Directive before the legal remedies against a rejection decision have been exhausted. The question referred is:

  • Must Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, which requires Member States to respect the principle of non-refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of the aforementioned Directive 2008/115/EC and under Article 52/3(1) of the Law of 15 December 1980 on entry to the national territory, settlement, residence and removal of foreign nationals and Article 75(2) of the Royal Decree of 8 October 1981 on entry to the national territory, residence, settlement and removal of foreign nationals, after the rejection of the asylum application by the Commissioner General for Refugees and Stateless Persons and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?

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FRA: Annual Report focuses on Asylum and Migration

On May 2016 the European Union Agency for Fundamental Rights (FRA) published its annual Fundamental Rights Report with a specific ‘focus’ chapter on asylum and migration into the EU in 2015. The report looks at the risks that refugees and migrants face to reach safety, new challenges with regard to non-refoulement and the prohibition of collective expulsion. It describes selected developments and possible solutions in the field of asylum as well as fundamental rights issues in the context of returns of migrants in an irregular situation. The report makes several recommendations to the EU for a further development of a Common European Asylum System with more respect for fundamental rights.

The report states that legal avenues for refugees seeking to reach the EU are limited. The right to life under Article 2 of the EU Charter requires States to adopt positive measures if a loss of lives can be prevented. FRA considers that EU Member States should offer resettlement, humanitarian admission or other safe schemes to facilitate legal entry to the EU for persons in need of international protection. In the light of the right to family life enshrined in Article 7 of the Charter, FRA calls upon the MS to overcome practical and legal obstacles preventing or significantly delaying family reunification and to refrain from imposing new ones.

FRA contends that the EU and its Member States should ensure that their border and migration management policies do not violate the principle of non-refoulement and the prohibition of collective expulsion. The absolute nature of the prohibition of refoulement  provides that returning an asylum seeker to a neighbouring country (such as Turkey or Serbia) is only possible if – after assessing the individual’s personal circumstances - the authorities are sure that the asylum seekers will be readmitted to the third country and protected from unsafe onward removal.

The report also highlights recent developments such as profiling based on nationality and the increasing presence of fences at the Europe’s borders. FRA opines that profiling based on nationality goes against the non-discrimination provision under Article 21 of the Charter and erecting fences may raise questions under Articles 18 and 19 of the EU Charter.             

Finally FRA suggests that a single EU asylum space, where applicants are treated in a comparable manner and have the same chances to receive the same level of protection, would be a solution to a number of challenges faced by MS.

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European Court of Human Rights

Webcast of the Grand Chamber Hearing of V.M. v Belgium is now online

Webcast of the Grand Chamber Hearing of V.M. v Belgium is now online via THIS link.

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National Developments

The Netherlands: The State Secretary failed to take into account the medical examination

In a judgment of 13 May 2016, the Council of State of the Netherlands ruled that the State Secretary for Safety and Justice failed to take the medical situation of a Burundi national suffering from a severe stage of HIV effectively into account when ordering him to leave the territory of the Netherlands.

Relying on the ECtHR case law in D v UK, Bensaid v UK and N v UK, the Council of State clarified that expulsion to a country lacking an adequate medical response to a severe medical condition by the applicant, which will expose him to unbearable suffering and accelerate his death, amounts to torture and a breach of article 3 ECHR.

Following the outcome of an expert opinion by the Bureau for Medical Advice (BMA), the Dutch Secretary of State ordered the Burundi national to leave the territory of the Netherlands. The BMA concluded that the Burundi national suffered from HIV, but due to his current treatment in the Netherlands, his life was not in danger. The expert advice also suggested that without adequate medical treatment upon return to Burundi the patient would reach a certain death within three months due to lack of adequate medical treatment there.

The State Secretary surmised that the medical examination was not in line with the assessment required by the aforementioned ECtHR case law, yet still used the BMA’s advice as the grounds for the expulsion decision.

The Dutch Council of State decided that since the State Secretary submitted that the outcome of the BMA advice was incompatible with the ECtHR test, he was not allowed to use the BMA advice as the grounds for the expulsion decision. Therefore the Council of State quashed the decision previously taken on 9 September 2015.

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

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Belgium: The Council of State orders a humanitarian visa issuance to a Palestinian national with medical needs

In a judgment of 25 May 2016, the Belgian appeal body for asylum, the Council for Aliens Law Litigation (CALL), quashed a decision refusing a humanitarian visa with extreme urgency for an epileptic Palestinian national. The decision carried significant weight to the unstable situation in Gaza and the difficulties to obtain adequate medical treatment in the region.

A Palestinian national, who suffered from epilepsy, applied for a humanitarian visa in Belgium in order to join his father. He was at that time still living in Gaza with his mother and claimed to have difficulties with obtaining the required medication and treatment for his illness. The visa was refused on the grounds that the applicant failed to prove that his physical or mental integrity was in danger if he would stay in the country where he had always been living.

The CALL first assessed the three cumulative conditions qualifying for an extreme urgency appeal. The Council clarified that the situation in Gaza is deteriorating and that hospitals and doctors may be subjected to the violent attacks. Another important factor is the overpopulation and the constant threat of new bombings in Gaza. Due to this extreme instability the extreme urgency is considered justified by the Council.

The second condition relates to the situation of the Palestinian national. The Council reiterates that a lack of access to treatment can amount to a violation of Article 3 European Convention on Human Rights. The fact that the Palestinian national was considered gravely ill and that the necessary medications to stabilize his condition were not available in Gaza, led the Council to decide that the requirement of a serious reason was fulfilled. 

The final condition for suspension of the negative decision is the fact that its continuation could lead an irreparable harm to the applicant. The Council also found this condition to be fulfilled.

In addition to accepting the immediate suspension of the negative decision on the humanitarian visa, the Council also stated that within 5 days, the Palestinian national had to receive a visa or a laisser-passer, valid for three months.

The ELENA Weekly Legal Update would like to thank Selma Benkhelifa for notifying us of this judgment. 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 Ruben Fierens (, or Julia Zelvenska (

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