ELENA Weekly Legal Update (EWLU)

13 January 2017


European Court of Human Rights European Union Council of Europe National Developments ECRE

European Court of Human Rights

Kebe and Others v. Ukraine (no. 12552/12) [Articles 3 and 13], 12 January 2017

On 12 January 2017, the European Court of Human Rights delivered its judgment in Kebe and Others v. Ukraine (no. 12552/12) concerning two Eritrean nationals and one Ethiopian national who attempted to claim asylum in Ukraine.
The applicants had arrived in the port of Mykolayiv in Ukraine in February 2012 after they had stowed themselves away on a commercial vessel flying the Maltese flag. They complained that when the ship they were travelling on had arrived in Ukraine, border guards had prevented them from entering Ukraine, stopped them from lodging claims for asylum, and exposed them to the risk of ill-treatment in their countries of origin by ensuring that they remained on the vessel (which was headed to Saudi Arabia). They also complained that they had had no opportunity to use a domestic legal procedure to address these actions. The Court struck out the application in so far as it concerned two applicants: one of the applicants had died in the course of proceedings (and no family member had applied to continue the case); and one applicant had ended contact with his lawyer in 2014.
In the case of the third applicant Mr Kebe, the Court held that, after it had indicated an interim measure in March 2012, the applicant had been allowed to leave the ship and make an asylum application in Ukraine. He was therefore no longer at immediate risk of ill-treatment in his country of origin and there had been no violation of Article 3 of the Convention.
The Court held that there had been a violation of the third applicant’s right to an effective remedy under Article 13 taken in conjunction with Article 3 of the Convention. Prior to the Court’s interim measure, the border guards had prevented the applicant from disembarking in Ukraine, which made him liable to be removed from Ukraine at any time without having his claim of potential ill-treatment being examined by the authorities.

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Abuhmaid v. Ukraine (no. 31183/13) [Articles 8 and 13], 12 January 2017

On the 12th of January 2017, the European Court of Human Rights gave its ruling in the case of Abuhmaid v. Ukraine (no. 31183/13), concerning a Palestinian national residing in Ukraine. The applicant had been residing in the country for over twenty years on the basis of temporary residence permits, which were regularly extended by the Ukrainian police. In 2010, Ukrainian police noted that the applicant’s residence permit had expired and that since then the applicant had been in Ukraine in violation of migration regulations. The applicant tried to regularise his residence in Ukraine, and applied several times for asylum, but these attempts were unsuccessful.
Relying on Article 8 of the Convention, the applicant complained that his potential removal from Ukraine would entail an unjustified interference with his private and family life, as he had lived in Ukraine since 1993, had established close personal links with this country and was married to a Ukrainian national. The Court however found that the applicant does not face any real or imminent risk of expulsion from Ukraine since his new application for asylum is still being considered and therefore declared this complaint inadmissible. 
The Court also held that Ukraine had complied with its positive obligation to provide an effective and accessible procedure or a combination of procedures for him to have the issues of his further stay and status in Ukraine determined. Consequently, the Court found no violation of Article 13 in conjunction with Article 8 of the Convention.

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European Union

Austrian Administrative High Court refers preliminary questions to CJEU on the definition of visa under the Dublin Regulation and Schengen Borders Code

On the 14 December 2016 the Austrian High Administrative Court referred preliminary questions to the Court of Justice in C-646/16 Jafari on the definition of “visa” under the Dublin Regulation and the Schengen Borders Code. In general, it is requested whether the de facto tolerated entry into a Member State’s territory for the sole purpose of transiting it and applying for international protection in another Member State is to be regarded as “visa” under Article 2 and Article 12 of the Dublin III-Regulation where national authorities of the involved Member State are confronted with an extraordinary high number of persons demanding transit through their territory.
Based on the EDAL article of 14 December 2016.
EDAL and the ELENA Network would like to thank Leonhard Call and Gloria Kinsperger, ELENA coordinators for Austria, for translating these questions.

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Council of Europe

Committee for the Prevention of Torture published reports on monitoring of returns by air

The Council of Europe’s Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) has published reports on two return flights it has monitored: one report on the return flight from Italy to Nigeria on 17 December 2015 and another report on the return flight from Spain to Colombia and Dominican Republic on 18 February 2016. The responses of the Italian and Spanish authorities to the reports are also published.
In its report on Italy, the CPT concludes that some detainees were returned to Nigeria while court appeals in relation to their asylum requests were still pending. In order to avoid violations of the principle of non-refoulement, the CPT recommends Italy to ensure that foreign nationals are not removed when a court has suspended their removal, when their request for suspension of removal is still pending before a court, or when a request for suspension of their removal is legally possible. In its conclusions on Spain, the CPT concludes that access to a lawyer should be ensured for all returnees and the returnees should have the possibility to make at least one phone call to relatives before being returned. In both reports The CPT also highlights inadequate advance notification of the removals and emphasizes the importance of a medical examination of every returnee before removal. The Committee also advises Frontex to develop more precise common rules on the use of means of restraint, as there was evidence of different approaches by national escort staff. It also recommends to further strengthen the newly established complaints mechanism.

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National Developments

Ireland: New International Protection Act commenced: A single procedure and restricted family reunification

The Minister for Justice and Equality in Ireland has signed regulations retrospectively commencing the International Protection Act 2015, which was signed into law on 30 December 2015. This brings about a number of changes to Irish asylum law - the more important of which are outlined below:
Firstly, a single procedure has been created. Ireland was the last remaining EU Member State not to assess claims for refugee status and subsidiary protection in one procedure, instead assessing each one individually, leading to CJEU judgments such as Case C-604/12, HN v Minister for Justice. Under the new procedure, the independent Office of the Refugee Applications Commissioner will be abolished and first instance decisions will now be made by International Protection Officers in the Department of Justice. A right of appeal will exist to the International Protection Tribunal, which replaces the Refugee Appeals Tribunal - this will remain an independent entity. 
Secondly, Ireland has also changed family reunification rights (see section 56 of the International Protection Act). Before, there were two categories: one with an automatic right to reunion with children and spouses, once identity was established and a discretionary category for other family members such as elderly parents or siblings where dependency on the person in Ireland could be established. This discretionary category has now been abolished. The right also now only exists for 12 months following from a declaration of refugee status or subsidiary protection. 
Thirdly, there is no mention of reception conditions in the new legislation. Ireland has opted out of both the Reception Conditions Directive and its recast, instead opting to regulate the issue of the reception of asylum seekers by ministerial order rather than legislation.

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The Netherlands: Decrease in number of reception places in Italian SPRAR locations does not prevent transfer of particularly vulnerable foreign nationals to Italy

On 9 December 2016 the Administrative Jurisdiction Division of the Council of State has judged that the decrease in the number of reception places in the Italian SPRAR centers does not prevent the Dublin transfer of extremely vulnerable foreign nationals to Italy.
In its judgment, the Council of State refers to the European Court of Human Rights’ inadmissibility decision in N.A. and Others v. Denmark (Appl. No. 15636/16). The decision concerns a woman and her minor children who were supposed to be sent to one of the SPRAR centres earmarked for families with minor children. The Council of State found that the ECtHR partly based its negative decision on a circular letter of 15 February 2016 of the Italian Ministry of the Interior. The letter contained a list of all 85 SPRAR centres earmarked for families with minor children. The concern of the applicant that the number of places would be insufficient did not make the Court rule otherwise, because in the absence of concrete indications on the file the applicant did not demonstrate that they would not be able to get a place within such a reception center at the time they would arrive in Italy.
Based on the Court’s decision, the Council of State rules that the Secretary of State was right to take the view that no further individual guarantees were needed and that there was no risk of a violation of Article 3 ECHR when transferring the applicant and her minor child to Italy. The number of reception places within the SPRAR centers is indeed limited according to a letter provided by the Secretary of State to the Court on 23 June 2016 (which referred to the circular letter of the Italian authorities of 15 February 2016), but it has not been shown that the Italian authorities would not live up to their commitment to increase capacity if necessary. Therefore there is no ground to rule that there would be no reception places available for the applicant and her minor child following their Dublin transfer to one of the SPRAR-centers earmarked families with minor children.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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France: Allowance insufficient for asylum seekers without accommodation

In a judgment of 23 December 2016, the French Council of State examined the appropriateness of the level of the ADA (Allocation pour demandeur d’asile, allowance for asylum seekers) for asylum seekers who are not placed in a reception centre throughout their asylum procedure. According to the Decree of 21 October 2015 relating to the ADA, the amount of the allowance depends on the family composition of the applicant. For example, a single adult asylum seeker is entitled to 6.80€ per day. An additional 4.20€ per day is provided to persons who have accepted to be accommodated but cannot be placed in a reception centre.
The Council of State found the latter amount “manifestly insufficient” to ensure an adequate standard of living in accordance with the recast Reception Conditions Directive. It specified that the standard set out in the Directive requires the state, where accommodation cannot be provided to an asylum seeker, to provide an allowance sufficiently high to allow the individual to obtain housing in the private rental market. This has also been affirmed by the Court of Justice of the European Union in the Saciri ruling.
The Council of State has ordered the Prime Minister to set a higher amount for the ADA for this category of asylum seekers within two months.
Based on the AIDA article dated 2 January 2017, available here.

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AIDA: Large-scale expansion of detention centres for tougher migration control in Italy

The Asylum Information Database (AIDA) has published a new article on Italy’s announcements to expand detention centres for tougher migration control. The article reports that the Head of the Italian Police has issued a Circular on 30 December 2016 which has been distributed to all police authorities across the Italian territory and which has outlined commitments towards a stricter policy on migration control. Among other measures, the Circular proposes large-scale use of detention in identification and expulsion centres (CIE) as a measure to control irregular migration and to promote returns to third 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 Julia Zelvenska (

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