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ELENA Weekly Legal Update (EWLU)

13 December 2019
 

Summary


European Court of Human Rights European Union United Nations National Developments

European Court of Human Rights


New communicated cases against Russia and Spain

  • R.K. and 2 others v Russia (Application No. 41174/19): The applicants, all Syrian nationals failed to leave Russia upon the expiry of their visas and were detained by immigration authorities. They were subsequently issued with expulsion orders to Syria. Two applicants are detained pending expulsion. All of the applicants complain that their return to Syria would expose them to a real risk of death or ill treatment contrary to Articles 2 and 3 ECHR. They also complain under Article 13 ECHR that there existed no effective domestic remedy in respect of these complaints. The two detained applicants additionally complain that there detention is unlawful under Article 5 § 1 (f).

 

  • Looper v Spain (Application No. 51568/19): The applicant, a British national residing in Spain, was charged with murder in Thailand. The Thai authorities contacted the Spanish authorities requesting applicant’s arrest and extradition, which the British authorities had declined. The Spanish authorities granted the request on the condition that the death sentence would not be enforced and that the life sentence would not be irreducible. The guarantees of these conditions made by the Thai authorities were deemed to be sufficient and the applicant was detained pending extradition. The applicant complains under Articles 2 and 3 ECHR that he would face a risk of death or ill treatment if the extradition is enforced. He also complains under Article 6 ECHR that he may be denied fair proceedings.

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European Union


CJEU: Advocate General Opinion on the interpretation of effective judicial protection and mandatory time limits in asylum proceedings

On 5 December 2019, Advocate General (AG) Bobek delivered his opinion on the interpretation of Article 46(3) Directive 2013/32 concerning guarantees of effective judicial protection and the use of mandatory time limits in asylum procedures in respect of case C-406/18, PG v Bevándorlási és Menekültügyi Hivatal. The case concerns the rejected request for international protection of an Iraqi applicant who arrived in the Hungarian transit zone of Tompa on the Hungary/Serbia border. 

The AG first addressed whether a court’s lack of power to alter a decision adopted by an administrative body in an international protection procedure is compatible with the right to an effective remedy provided for in Article 46(3) Directive 2013/32. The AG noted that the power to annul administrative decisions does not breach the requirement of effective judicial protection and that Member States are free to determine how to examine such matters. He reiterated findings in Alheto and Torubarov, concluding that Article 46(3) Directive 2013/32 must be interpreted as not precluding national legislation that does not give courts the power to alter administrative decisions in matters of international protection. He added that to give practical effect to the guarantee of an effective remedy, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, a new decision must be adopted within a short period of time and comply with the assessment contained in the judgment annulling the previous decision.

The AG secondly addressed the issue of whether Article 46(3) Directive 2013/32 precludes legislation from setting a mandatory time limit of 60 days for a review of administrative decisions in cases of international protection. He added that an adequate time limit must allow for a full and effective review of the issues while respecting the procedural rights of applicants, which include guarantees of, inter alia: the presence of an interpreter; the offer of legal advice; and free legal assistance. The AG concluded that the meaning of an adequate length of time is a matter for national courts to assess in consideration of the obligations to conduct a thorough examination while also guaranteeing the applicant’s rights under Directive 2013/32. When such rights cannot be guaranteed, the court must disapply the time limit and complete the assessment as swiftly as possible.

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CJEU: Advocate General Opinion on Hungary’s provisions relating to a ‘safe transit country’

On 5 December 2019, Advocate General (AG) Bobek delivered his opinion on Hungary’s provisions relating to the notion of a ‘safe transit country’ and domestic time limits for the judicial review of inadmissible applications in respect of LH v. Bevándorlási és Menekültügyi Hivatal (C-564/18).

The case concerned the inadmissible application for international protection submitted by a Syrian Kurd on the basis that the applicant should return to the country he had travelled through, namely Serbia. The applicant challenged the decision of the Immigration and Asylum Office claiming that the stated inadmissibility ground infringed upon EU law. The Budapest Administrative and Labour Court submitted a reference for a preliminary ruling on that question, as well as on the effectiveness of the 8-day time limit to complete the judicial examination of the contested decision.

The AG first stated that the inadmissibility grounds of Article 33(2) of Directive 2013/32 are listed exhaustively in that provision on the basis of a textual interpretation they introduce an exception to the general obligation to examine all cases under Recital 43 and must, thus, be interpreted restrictively. Assessing whether the ‘safe transit country’ ground could fall under any of the existing relevant grounds provided in Articles 35 and 38, the AG noted that the requirement of sufficient and readily available protection of Article 35 cannot be founded on the sole possibility of an application for international protection while in transit.

In respect of the safe third country concept, several principles, rules and guarantees are required under Articles 33(2) (c) and 38, including the obligation of Member States to establish rules assessing the connection of an applicant with that safe third country. Since elaborate rules to establish connection are needed, a mere transit from a country would not be sufficient enough to provide the basis of such a connection. Similarly, the existence of specific procedures and remedies under Article 38 also points to a need for a notion that is more meaningful than a simple act of transit – a point that is also supported by UNHCR. Consequently, Article 33 of Directive 2013/32 should preclude national legislation stipulating that an application by an individual arriving in a Member State through a safe third country is to be considered inadmissible.

On the question of the 8-day limit to review the inadmissibility finding, the AG noted that even if EU law allows Member States not to provide for a full review of an admissibility decision on its merits that should not mean that it also allows for a lesser quality of review. Applicants enjoy the same guarantees under Article 46 of Directive 2013/32 whether it’s a review of admissibility or of merits. In the instant case, a series of strict time limits should be considered as affecting the quality of the applicant’s submissions and the work of the judge, including any possibility for a meaningful review of the applicant’s particular circumstances. The AG opined that the national judge must disapply the domestic provision and resolves the case as quickly as possible.

Thank you to Stavros Papageorgopoulos, Legal Officer at ECRE, for assisting us with the summary.

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United Nations


Human Rights Committee: Deportation to Afghanistan would amount to breach of Article 7 ICCPR

On 18 November 2019, the Human Rights Committee (the Committee) published its views in A.B.H v Denmark, CCPR/C/126/D/2603/2015, concerning the risk of inhuman and degrading treatment in the event of deportation to Afghanistan.

The applicant, an Afghan national, previously worked for Afghanistan intelligence forces and the National Directorate of Security where he trained with Afghan and US forces to apprehend the Taliban. Several threatening letters were sent to the applicant by the Taliban, and an attempt was made to kill him. After being kidnapped he was able to escape, but was also informed that the Afghan authorities had searched his home due to a suspicion that he was affiliated with the Taliban. He entered Denmark in December 2013 and applied for asylum. The request and subsequent appeals were rejected due to concerns about his credibility because of the lack of detail in his account of detention. The applicant complains that he would be exposed to a real risk of torture or ill treatment contrary to Article 7 ICCPR from both the Taliban and Afghan authorities if returned to his country of origin.

The Committee noted that the risk of treatment contrary to Article 7 must reach a high threshold and be personal. In this case, the issue before the Committee was to determine whether past affiliation with international forces would indicate a future risk of persecution. Referring to jurisprudence of the European Court of Human Rights in H. and B. v United Kingdom, it noted that the individual circumstances of the applicant, as well as his connections and profile, should be examined. Similarly, the Committee noted the ruling in J.K and others v Sweden, which found that past ill treatment provided a strong indication of a future real risk of ill treatment in cases where a generally coherent and credible account of events has been presented.

Indeed, the Committee noted that while the applicant’s account had originally been deemed not credible, his account had been reassessed and accepted as fact on appeal. The issue was therefore not one of credibility, but whether the facts of the applicant’s account indicated a real risk of ill treatment. It concluded that the State had failed to conduct an individualised assessment which took into account the real and personal foreseeable risk of ill treatment by both the Taliban and Afghan authorities. It therefore found that the applicant’s removal to Afghanistan would amount to a violation of Article 7 ICCPR.

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National Developments 


The Netherlands: Detention order of unaccompanied minor deemed unlawful following improper age assessment

On 2 December 2019, the Court of The Hague (the Court) published its judgment on the unlawful detention of an applicant claiming to be an unaccompanied minor following an improper age assessment.

On 1 November 2019, the Secretary of State imposed a detention order of an unaccompanied child pending Dublin transfer. The applicant claims to be a child, and argues that he was wrongfully detained as an adult following an age assessment that was conducted not in accordance with the law.

A lawful age assessment requires assessments from both officials of border control and employees of the Immigration and Naturalisation Service (IND) who must individually assess the applicant before drawing their own conclusions. Following this, a unanimous decision is needed declaring that the applicant is clearly of age or clearly a minor. The assessing bodies will consider the physical characteristics of the applicant, as well as behaviour, any statements made, and any other relevant circumstances. Moreover, the Court noted that the detention of unaccompanied minors is permitted only in extreme cases and must be for the shortest possible time. Grounds justifying detention include: on suspicion of a crime; the return of the applicant can be arranged within 14 days; and the applicant presents a risk of absconding.

The Court noted that the initial age assessment of the applicant was not conducted in accordance with the law as no IND employee was involved. It follows that the Secretary of State should not have assumed that the applicant was an adult. In light of the high threshold for detaining minors, it was necessary to conduct a thorough investigation and provide justifications for the grounds of detention. The Court concluded that the detention order was unlawful and must be lifted with immediate effect. 

Based on an unofficial translation by the EWLU team.

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Finland: Supreme Administrative Court rules that request for international protection was assessed incorrectly 

The Supreme Administrative Court recently ruled (case no. KHO:2019:149) on an erroneous decision to deny international protection following an assessment based on the incorrect country of origin.

In December 2016, the Immigration Service rejected the applicant’s claim for international protection and ordered his return to Somalia. The applicant is a Somali national but was born and lived his whole life in Saudi Arabia: he has never been to Somalia, does not speak Somali, and does not know his remaining relatives there. Despite this, the Immigration Service examined his application for international protection in relation to Somalia. On appeal, the Administrative Court concluded that there was no risk in relation to the applicant’s personal circumstances or the general situation in Somalia that suggested a risk of serious harm. It concluded that there existed no grounds justifying international protection.

The applicant complained that he believed his asylum request was being assessed in relation to Saudi Arabia rather than Somalia. Indeed, the questions addressed to the applicant during the asylum interviews related to both countries, but only one question was related to the need for international protection in case of return to Somalia.

The Supreme Administrative Court noted that the applicant should have been clearly informed of how his request was being examined. It concluded that the Immigration Service had failed to conduct a proper investigation in the case and it was unclear in relation to which country the request was being assessed. The Court added that an adequate and proper investigation must include, inter alia, an inquiry into the applicant’s attitude to the possible removal from his country of origin, which was absent in this decision. The Supreme Administrative Court annulled the decision and referred the case back to the Immigration Service.

Based on an unofficial translation by the EWLU team.

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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 (jzelvenska@ecre.org).






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