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ELENA Weekly Legal Update (EWLU)

11 October 2019
 

Summary


European Court of Human Rights European Union  National Developments

European Court of Human Rights


New communicated cases against Slovakia and Russia

  • Shiksaitov v Slovakia (Application No. 56751/16): The applicant is a Russian national, detained pending extradition on the suspicion of terrorism in Russia. The applicant complains that his provisional arrest and detention are unlawful and incompatible with Article 5 § 1 (f) of the Convention. He also complains that the lack of effective remedies in domestic law has left him unable to seek compensation following his alleged unlawful detention. This complaint is made under Article 5 § 5 in conjunction with Article 13 of the Convention. 

     
  • F. and Z. and Others v Russia (Application No. 18570/19): The applicants are North Korean nationals who arrived in Russia between 1991 and 1995 on employment visas. In 2016, Russian authorities granted temporary asylum status to F. and Z. and two other applicants. This status was later revoked on the basis that their identities could not be verified. The applicants complain that if returned to North Korea they would be subject to a risk of death, torture, and/or ill-treatment contrary to Articles 2 and 3 of the Convention in conjunction with Article 13. An additional complaint is made by applicant M.L. that the foreseeable length of detention pending expulsion is incompatible with Article 5 § 1 (f), and the lack of effective procedures to challenge the lawfulness of his detention is contrary to Article 5 § 4 of the Convention.

     
  • M. A. v Russia (Application No. 16868/19): The applicant is a Syrian national who arrived in Russia in 2013. The migration authorities refused to renew his temporary asylum status, which was granted between 2015 and 2017. He was subsequently detained by the immigration authorities and his expulsion to Syria was ordered. The applicant complains that if removed to Syria he would face a real risk of death and or ill-treatment, contrary to Articles 2 and 3 of the Convention, and the lack of an effective domestic remedy to challenge this under Article 13. He also complains under Article 5 § 1 (f) that his detention pending expulsion is unlawful.

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O.D. v. Bulgaria: Expulsion to Syria would amount to a violation of Articles 2, 3, and 13 ECHR

On 10 October 2019, the European Court of Human Rights published its decision on the case of O.D. v Bulgaria (Application No. 34016/18) concerning an order for the expulsion of an applicant of international protection.

The applicant, a Syrian national, arrived in Bulgaria from Turkey in 2013. His request for international protection was rejected, and an expulsion order to Syria was issued on 6 November 2013 on the basis that he posed a threat to the national security of Bulgaria. The applicant was held in a temporary detention centre until January 2015. While in Syria, the applicant was a member of the national army before he deserted and joined the Free Syrian army. He therefore complained that he would face a real risk of death or ill-treatment if returned to Syria, relying on Articles 2 and 3 of the Convention. He also complained under Article 13 of the Convention that his circumstances as an applicant of international protection had not been properly assessed, and no effective remedy existed to guarantee protection in relation to Articles 2 and 3.

The Court noted that the security and humanitarian situation in Syria had deteriorated dramatically since the applicant’s arrival in Bulgaria. It added that there is substantial evidence of executions, arbitrary detention, and ill-treatment of individuals who have deserted the Syrian national army. Moreover, there have been large scale arbitrary arrests and detentions in 2019 in the vicinity of Homs, the applicant’s city of origin.

The Court held that the applicant’s return, if carried out, would amount to a violation of Articles 2 and 3 of the Convention due to the real risk of death or ill-treatment in Syria. In refusing to grant the status requested, the Supreme Administrative Court, while noting the existence of a serious and widespread situation in Syria, had given precedence to considerations relating to the threat to national security over an evaluation of the risk in the destination country. The remedy in question had therefore failed to provide sufficient consideration of the risk posed to the applicant should he be returned. Moreover, the Government had not referred to any other remedies available in Bulgarian law for that purpose. Hence, under the legislation as it currently stood, the applicant would have had no other means of obtaining effective scrutiny of his complaints under Articles 2 and 3 of the Convention. A violation of Article 13 of the Convention was therefore found. The Court stated that it would continue to apply Rule 39 of the Rules of the Court requesting interim measures to prevent the applicant’s expulsion.

Based on an unofficial translation by the EWLU team.

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R. K. v Russia: Detention pending expulsion amounts to violation of Article 5 §§ 1 and 4 ECHR

On 8 October 2019, the European Court of Human Rights published its ruling on the case of R. K. v Russia (Application No. 30261/17) regarding the lawfulness of detention pending return to the Democratic Republic of the Congo (DRC).
 
The applicant arrived in Russia from the DRC in October 2015 on a short term student visa. On 10 March 2016, he requested temporary asylum status on the basis that he had previously participated in political protests while living in the DRC and would face a real risk of ill-treatment should he be returned. All appeals were dismissed and a removal order was issued following the applicant’s arrest on 6 March 2017 for violating migration regulations. The applicant complained under Articles 2 and 3 of the Convention that his return to the DRC would pose a real risk of death or ill-treatment as a result of his participation in political protests. He also complained that his detention pending removal was unlawful and contrary to Articles 5 § 1 (f) and 4 of the Convention. No violation was found in relation to the complaints made under Articles 2 and 3.
 
In ruling, the Court held that the applicant’s detention was unlawful and that no procedures for review had been made available to challenge the detention. The Court therefore found a violation of Articles 5 §§ 1 and 4 of the Convention, affirming its position in recent case law regarding detention pending expulsion from Russia.

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Savran v Denmark: Expulsion without assurances of appropriate psychiatric treatment amounts to violation of Article 3 ECHR

On 1 October 2019, the European Court of Human Rights published its ruling on the case of Savran v Denmark (Application No. 57467/15) relating to the proposed deportation of the applicant suffering from serious mental illness without assurances from his State of origin as to the availability of supervision to accompany intensive outpatient therapy.
 
The applicant, a Turkish national, entered Denmark in 1991, at the age of six, with his mother and four siblings for family reunification with his father. In 2007, he was sentenced to 7 years imprisonment for assault under highly aggravating circumstances, resulting in the death of the victim. His expulsion to Turkey was subsequently ordered.
 
During appeal proceedings, he underwent psychological evaluations and was deemed to fall within the definition of unsound mind in the Danish Penal Code. He was then transferred to a secure residential institution for the severely mentally impaired. The applicant’s guardian requested a review of the expulsion order on the basis of his mental state. The High Court reversed a positive initial decision of the City Court on the basis that the applicant could access to the same medical treatment for free in Konya, his region of origin. The applicant subsequently complained that his return to Turkey would be in violation of Article 3 of the Convention.
 
The Court reiterated its position in previous case law regarding the factors to be taken into consideration when assessing exceptional removal cases related to a naturally occurring illness covered by Article 3 ECHR. The authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3. They must also consider, inter alia: the extent to which the individual in question will have access to this care and related facilities in the receiving State, including the distance the patient will need to travel; the cost of medication and treatment; and the existence of a social and family support network.
 
The Court affirmed that a follow-up and control scheme was essential for the applicant’s psychological outpatient therapy and for the prevention of any degeneration of his immune system, a potential side effect of his medication. For that reason he would, at least, need assistance in the form of a regular and personal contact person. The Danish authorities ought to have assured themselves that, upon his return to Turkey, such assistance would have been available to the applicant. Accordingly, the Court found it was unclear whether the applicant had a real possibility of receiving the relevant psychiatric treatment, including the necessary follow-up and control in connection with intensive outpatient therapy, if returned to Turkey. That uncertainty raised serious doubts as to the impact of removal on the applicant. When such serious doubts persisted, the returning State had to either dispel such doubts or obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment would be available and accessible to the persons concerned so that they did not find themselves in a situation contrary to Article 3.

Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary.

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European Union


CJEU: Income from a third party family member not excluded by Art. 5 (1) (a) Directive 2003/109 

On 3 October 2019, the Court of Justice of the European Union published its ruling in C-302/18 determining whether income from a third party family member was excluded in assessments granting long-term resident status for third country nationals.

The applicant, a Cameroonian national, was granted a right of residency as a student in Belgium from 2007 until 2016, before being issued a worker’s resident permit valid until January 2017. In December 2016, they applied for a permanent resident permit under the conditions of Article 5 (1) (a) of Directive 2003/109/EC, submitting supporting evidence in the form of an employment contract, tax assessments, their brother’s pay slips, and a document signed by the applicant’s brother ensuring that he had stable, regular and sufficient means to support dependent family members. This application was rejected on the grounds that they had failed to prove their resources were stable and regular.   
 
The Court noted Directive 2003/109/EC must be interpreted uniformly in all Union territory, adding that the current requirements were ambiguous as Article 5 fails to determine with certainty the nature or origin of the ‘stable, regular and sufficient resources’ required. Moreover, it noted similar regulations relating to means of subsistence under Article 7 (1) (b) Directive 2004/38/EC and 2003/86/EC which allow individuals to use resources from third party family members.

The Court ruled that Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of ‘resources’ referred to in that provision does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient.

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National Developments


United Kingdom: Secretary of State must reconsider Sri Lankan national’s rejected application for leave to remain

On 4 October 2019, the Upper Tribunal (Immigration and Asylum Chamber) published its ruling concerning the removal of a Sri Lankan national from the United Kingdom despite established family ties.
The applicant arrived in the UK in January 2010 on a student visa before meeting her husband the following year, marrying in August 2012, and having their first child in October 2012. The husband had limited leave to remain until 2018. The applicant’s claim to asylum on human rights grounds was rejected and an appeal was brought against the decision, by which time the couple had a second child. The circumstances of the family materially changed again after the husband was granted indefinite leave to remain in August 2018.

The Upper Tribunal held that the First-Tier Tribunal Judge had erred in their consideration of the Article 8 family life rights by using a capability test, i.e., deciding that because the family could return they should return. In doing so, the First-Tier Tribunal had erred in its consideration of the rights of the children, and the potential impact on the rights of the family. The Upper Tribunal ruled that even if practicable and feasible for a person to return, a proportionality test must be correctly applied to assess a fair balance between the State’s interest in immigration control and the interests of the applicant and the family.
In light of evidence showing material changes to the family, and the tangible and strong social links the family had established in the UK that would be impacted if the applicant alone or the family was returned to Sri Lanka, the Upper Tribunal held that the Secretary of State must reconsider the applicant’s asylum application under human rights grounds.

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The Netherlands: Secretary of State must reconsider application for international protection under Article 17 (1) of the Dublin Regulation

On 7 October 2019, the Court of The Hague published its ruling regarding the rejected application for asylum on the basis that the Netherlands was not responsible for processing the application under the Dublin Regulation.

The applicant, a Ugandan national, made an application for international protection in the Netherlands on 15 March 2019 after being issued a Schengen visa from Spain. The request was rejected on the basis that Spain was responsible for processing his claim under the Dublin Regulation. The applicant subsequently informed authorities that he had been a victim of human trafficking, detention, and rape since he arrived in the Netherlands. The applicant argued that the State had a positive obligation to prevent human trafficking, under Directive 2011/36/EU, and should have used its discretionary power to accept the application on the basis that he was vulnerable, both as an applicant of international protection and a victim of human trafficking.

The issue faced by the Court was whether a declaration of human trafficking prevented transfer to Spain, and whether the application for international protection should be reconsidered under Article 17 Dublin Regulation.

In ruling, the Court held that the Secretary of State had failed to provide reasons why transfer to Spain would not be disproportionate. The applicant had made an immediate attempt to make a declaration of human trafficking, which could not be completed due to the slow approach by Dutch authorities. Moreover, the approach of the authorities was deemed to be at odds with the obligations under Directive 2011/36/EU. The Court concluded that the Secretary of State had failed to give sufficient reasons for not considering the application under Article 17(1) Dublin Regulation.

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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