ELENA Weekly Legal Update (EWLU)

23 September 2016


European Court of Human Rights European Union National Developments NGOs

European Court of Human Rights

Grand Chamber strikes out Khan v. Germany (no. 38030/12), [Article 8], 21 September 2016  

On 21 September 2016, the Grand Chamber of the European Court of Human Rights decided to strike out the application in the case Khan v. Germany (no. 38030/12). The case concerned an expulsion order against a Pakistani national living in Germany, who had committed a murder in Germany in a state of mental incapacity. 
The German Government had given assurances to the Court that the applicant would not be expelled under the current expulsion order. If the applicant would be subjected to a new expulsion order, this would only be enforced after a thorough medical examination. In addition, the Government would take into account the amount of time which had passed since the current expulsion order.
The Court held that it had no reason to doubt the validity of the assurances and their binding effect. The expulsion order was therefore no longer enforceable and the applicant had been granted ‘tolerated residence’ status. Moreover, if a new expulsion order would be issued, the applicant would have remedies available under domestic law and have the opportunity to lodge a new complaint at the ECtHR.
In light of the subsidiary nature of the supervisory mechanism established by the Convention, the Court considered that it was not justified to continue the examination of the application as the applicant faced no risk of being expelled. The Grand Chamber decided to strike the application out of the list of cases in pursuance of Article 37 § 1 (c) of the Convention.

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European Union

EASO: Country of Origin Information – Recruitment by armed groups in Afghanistan

The European Asylum Support Office published a Country of Origin Information (COI) report on Afghanistan on 19 September 2016, in which it focuses on recruitment by armed groups.
The EASO report provides a description of the recruitment practices in Afghanistan, by the insurgent factions of the Afghan Taliban, the Islamic State in Khorasan (IS) and the Hezb-e Islami group led by Gulbuddin Hekmatyar. The recruitment of children by different armed groups, including Afghan security troops, is a topic of particular concern since a high percentage of the Afghan asylum applicants in Europe concerns unaccompanied minors.
The report was co-drafted by EASO and Cedoca, the COI unit of the Belgian Office of the Commissioner-General for Refugees and Stateless Persons, and presents information until 19 August 2016, stemming from publicly available sources and a series of interviews conducted with experts on the matter.

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Eurostat: 306.000 first time asylum seekers in the second quarter of 2016 in EU Member States

Eurostat has published their statistics regarding the first time asylum applicants in the second quarter of 2016 in the EU Member States.
In the second quarter of 2016, 305.700 asylum seekers applied for international protection in the EU Member States. Syrians remained the main citizenship of people seeking international protection in the EU Member States, with nearly 90.500 first time applicants between April and June 2016. There were 50.300 first time applicants with Afghan citizenship and 34.300 first time applicants with Iraqi citizenship. Six in ten of all the first time applicants applied for asylum in Germany.

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National Developments

Netherlands: Council of State rules on the use of a Eurodac result issued by another EU Member State  

On 1 September 2016, the Council of State ruled on the use of information – an Eurodac result – provided by other Member States. In the present case, the State Secretary had declared an asylum application inadmissible as the asylum seeker already enjoyed international protection in Greece.

The decision was based on the 2014 case law (201304293/1/V4 and 201304291/1/V4) stipulating that the State Secretary can rely on information originating from another EU Member State, such as a Eurodac result. However, the time elapsed since the search in the Eurodac system should be minimal and the information relied upon needs to specify the residence rights upon return. If a result from the Eurodac search is not recent enough or lacks relevant information on the residence rights, the State Secretary is required to investigate whether the applicant is still in possession of a valid residence permit or any other permission to reside issued by the Member State in question .
Given that the search in Eurodac dates back to 24 September 2015, the information extracted from it is not sufficiently recent for the case on 10 May 2016. Moreover, the Eurodac result does not specify for which period international protection in Greece was granted. The State Secretary has, without enquiring further information on the reception in Greece, unjustifiably presumed that the applicant would be granted a residence permit or any other form of permission to stay upon return to Greece. The appeal of the applicant is therefore deemed admissible. 

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Switzerland: State Secretariat for Migration (SEM) changes their practice regading Yemen and Mali

On 30 August 2016, the State Secretariat for Migration (SEM) decided to change their practice regarding Yemen. Due to the generalised violence across the country, the enforcement of removals to Yemen is considered generally unreasonable.
On 23 of August 2016, the State Secretariat for Migration (SEM) decided to change their practice regarding three northern (Gao, Timbuktu, Kidal) and two central (Mopti, Ségou) provinces of Mali. The enforcement of removals of persons from these regions is now also considered as generally unreasonable if no internal relocation in the south of the country would be possible.
The ELENA Weekly Legal Update would like to thank Adriana Romer, ELENA Coordinator for Switzerland, for bringing this to our attention.

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United Kingdom: Home Office Country Information and Guidance on Non-Christian religious groups in China 

The Country Information and Guidance China: Non-Christian religious groups provides information and guidance to decision-makers on handling asylum applications from Chinese asylum seekers, who are involved with a non-Christian religious group. For the purpose of the guidance, non-Christian religious groups include folk religions, Buddhism, Taoism (also spect Daoism) and Islam.
The UK Home Office finds that, in general, the treatment faced by members of these religious groups in China is unlikely to amount to persecution or risk of serious harm. There may however be a risk of persecution or serious harm for persons who choose to worship in unregistered places of worship and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views. This concerns mainly Tibetan Buddhists and Uighur Muslims, who are perceived to support separatism, religious extremism and terrorism. However, persons at risk in their local areas will in general be able to relocate safely elsewhere in China.
For further country information and guidance on the treatment of Christians in China see China: Christians.

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Save the Date: ELENA Course on 2 and 3 December 2016 in Berlin

ECRE and the ELENA network are delighted to invite you to the ELENA Course, which will take place on 2 and 3 December 2016 in Berlin, Germany. This year, the course will run for 2 full days and will focus on refugee rights.

  • Day 1 will feature James C. Hathaway, James E. and Sarah A. Degan Professor of Law and Director of the Program in Refugee and Asylum Law of the University of Michigan Law School, who will speak on the International Refugee Rights Regime.
  •  Day 2 will focus on access to rights and anti-discrimination; cessation, exclusion, and anti-terrorism measures; as well as a debate on the role of new EU asylum and border agencies and enhanced collaboration with third countries.    

Registration will be open by the end of September 2016 and will be shared, along with a more detailed agenda, through the ELENA Weekly Legal Update

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Minority Rights Group: The State of the World’s Minorities report 

In the Middle East and North Africa Section of the State of the World’s Minorities and Indigenous Peoples 2016 report, Minority Rights Group (MRG)  focuses on the situation for minorities in a series of countries in Egypt, Iraq, Israel/Palestine, Libya, Syria and Yemen. MRG identifies these countries as problematic with regard to the treatment and position of different minorities.
Concerning Iraq, the report states that the rise of the Islamic State (IS) has caused a dramatic deterioration in the (already bad) situation for minorities. Cultural, religious and intellectual heritage and symbols of minorities are systematically destroyed as a part of the strategy of IS. The rise of Shia militias and other groups has worsened the sectary divisions. Human rights organisations report that many minorities view immigration from Iraq as a permanent solution. 

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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 Isa van Krimpen (, or Julia Zelvenska (

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

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