ELENA Weekly Legal Update - 27 November 2014
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27 November 2014


European Court of Human Rights
European Union 

European Court of Human Rights

A.E. v. Greece (no. 46673/10) [Article 3 and 5], 27 November 2014

The European Court of Human Rights has again confirmed that the conditions of detention in Thermi border police station and Thessaloniki immigration police station breached the prohibition of inhumane treatment under the European Convention on Human Rights for a Turkish national who was held at both stations pending deportation to Turkey. The Court has further held that the applicant’s right to liberty and security along with the right for a court to speedily decide on the lawfulness of his detention had also been violated.

The Court acceded to the applicant’s arguments that his detention prior to and after lodging an asylum application had amounted to inhumane treatment especially in light of its previous case law (Tabesh v. Greece and Efremidze v. Greece)  which highlighted that detention conditions in the same Greek centres were overcrowded, unhygienic and not appropriate for the detention of migrants. Moreover, the Court refers to a 2011 Committee of the Prevention of Torture report which highlights that despite assurances from the Greek authorities that administrative detention at border posts would not be continued for those migrants in an irregular situation, the practice, at the time, was still very apparent. The Court thus found that conditions were sufficient to reach the threshold of Article 3.  

Based on an unofficial ELENA translation.

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European Union 

Court of Justice:
Upcoming judgment of interest, Joined Cases C‑148/13, C‑149/13 and C‑150/13 A, B and C, 2 December 2014

Joined Cases C‑148/13- C‑150/13 A, B and C (Assessment of applications for international protection, assessment of facts and circumstances and credibility of an applicant’s averred sexual orientation)

Read the opinion of Advocate General Sharpston.

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National Developments

Belgian Council of State requests preliminary ruling from the CJEU on exclusion

Procedurally the case relates to a refusal of refugee status by the Commissioner Generals’ Office for Refugees and Stateless Persons (CGRS) of a Moroccan national who had previously been convicted of membership of a terrorist organisation and thus, according to the Commissioner General, fell within Article 1 F (c) of the Geneva Convention and Article 12 para 2(c) of the Qualification Directive. Following a ping-pong procedure between the CGRS and the Council of Aliens Law Litigation (CALL), who subsequently recognised the applicant’s status, the administrative section of the Council of State has been called upon to analyse questions of when the acts of an applicant can be said to have fallen under the exclusion clause.

In this regard, and following very much along the lines of C-57/09 and C-101/09 Germany v B and D, the Belgian Council of State refers several preliminary questions to the CJEU:

- Whether a sentence relating to participation in activities of a terrorist organisation, rather than the actual commission of terrorist offences, is still sufficient to meet the test laid out in Article 1 F(c) and, respectively, the Qualification Directive?

- When considering Article 12 para 3 of the Qualification Directive, relating to persons who instigate or otherwise participate in the commission of the crimes or acts, is it up to the individual to show that he was only a member of the organisation and had not tried to commit terrorist acts, or is it necessary to proceed with a thorough examination in order to show that his participation had contributed to the commission of a terrorist offence?

- When examining exclusion on the basis of participation does the act of instigation as defined in Article 12 para 3 have to be within the framework of the commission of a terrorist offence or within the framework of participating in a terrorist group?

- Moreover, is exclusion under the Qualification Directive still applicable in the absence of the instigation, commission or participation of a violent act?

Based on an unofficial ELENA translation.

The ELENA Weekly Legal Update would like to thank Belgium ELENA coordinator Tristan Wibault for notifying us of this reference.

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Irish Supreme Court rules on Family Reunification, A.M.S. (Somalia, Family Reunification) [2014] IESC 65 

The Supreme Court has held that a decision by the Minister for Justice and Equality to refuse a Somali refugee family reunification (with his mother and minor sister) was outside the range of proportionate decisions which were open to the Minister. The Court therefore held that the Minister’s appeal was to be dismissed.  

The facts of the case relate to a Somali national who had received refugee status in Ireland but was subsequently denied family reunification with his family members located in Ethiopia. In this regard, the refusal was based on a margin of appreciation whereby the State could deviate from the right to respect of family life where the legitimate aim of the State is being pursued, namely its economic well-being.

Whilst the Supreme Court conceded that “economic consequences for the State of the admission of persons as a result of a successful family reunification application are a factor which can be taken into account,” in this case the only factors for refusal put forward by the Minister was the general burden on the State. The Court found that the financial consequences were in fact extremely limited. Thus, in those circumstances the Court surmised that it could not reasonably be held that “those factors outweigh, in a proportionate fashion, the family and other rights which had to be balanced on the applicant’s side.” The Court consequently submitted that the decision of the Minister to refuse family reunification in respect of the applicant’s family was disproportionate.

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Swedish Migration Board issues position following Tarakhel 

Following on from Tarakhel v. Switzerland (no. 29217/12), the Swedish Migration Board (first instance) has issued a statement on their interpretation of Tarakhel which concerned the proposed return of a family to Italy under the Dublin Regulation. The Migration Board has submitted that in light of the judgment’s primary focus on families with children and children’s particular vulnerability, there is no need, where there is a risk of treatment contrary to Article 3 ECHR, for the sending state to seek guarantees from the receiving state for applicants who do not belong to families with children or other vulnerable groups. Moreover, according to the Board it can be stated that individuals who have already been granted a residence permit do not enter the reception system and are therefore not covered by the scope of the judgment.

In addition the Board submits that the Grand Chamber in Tarakhel does not consider that general systematic shortcomings exist in Italy which in themselves would give rise to preventing transfers. The detailed guarantees on housing conditions required by the judgment are only possible to obtain at the time of the actual transfer. Thus, according to the Board, guarantees must be obtained in the implementation phase of the transfer.

Finally, the Board surmises that if it should turn out that the obtaining of individual guarantees entails excessive processing time, which in turn would result in a violation of the fundamental rights of the asylum seeker, then the discretionary clause of Article 17.1 of the Dublin Regulation should be used and the family's applications for asylum be examined instead in Sweden. In this manner reference by the Board is made to C-411/10 and C-493/10 NS and Others v UK and Ireland.

The ELENA Weekly Legal Update would like to thank Swedish ELENA coordinator Michael Williams for providing us with this information. 

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UK Home Office Country of Information and Guidance on Iran

In the first of two documents which detail country information in Iran, the UK Home Office highlights that the Iranian criminal justice system is seriously flawed with reports of politically motivated charges, a lack of due process, defendants being denied access to representation in court, unfair trials, bribery and widespread corruption. Moreover, the document submits that effective protection against persecution by state or non-state actors is unlikely to be available depending on the particular circumstances and profile of the person. 

With regards to the second document on sexual orientation and gender identity the report details legislation that criminalises homosexuality, which is punishable by death or flogging. The country evidence demonstrates that the authorities rely upon discriminatory laws to harass, arrest, and detain people whom they suspect of being LGBTI. Moreover, LGBTI persons experience familial violence, forced marriage and forced medical treatment. The report concludes that “where there is a real risk that LGBTI persons or those suspected of being such, will come to the attention of the authorities, the person would on return to Iran face a real risk of persecution, qualifying for refugee status under the Convention.” 

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ECRE paper on mutual recognition and transfer of status within the EU 

ECRE has released a discussion paper on the mutual recognition of positive asylum decisions and the transfer of international protection status within the EU.

ECRE concludes that having a system in place which recognises another Member State’s positive asylum decision and allows for the transfer of international protection status between States would alleviate these problems facing refugees. It would also rectify the anomaly which allows States to recognise and implement another State’s negative and return decisions, yet there is no systematic recognition of a Member State’s positive asylum decision. Having such instruments in place would also complete the Common European Asylum System and would ensure that a uniform status on asylum be truly valid within the Union.

The discussion paper starts by examining whether there is a legal basis for the application of the principle of mutual recognition under international and European Union (EU) law and the consequences thereof. It finds that while there is some basis for its application under international and EU law, the principle lacks implementation and as a result more detailed regulation is required to give it its intended effect. ECRE also analyses what it means to transfer an international protection status between Member States, whether it is necessary, and the practical difficulties that may be encountered. Finally, the paper looks at the Long Term Residence Directive as amended and its current protection gaps including in relation to the free movement of beneficiaries of international protection.

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ECRE and the Red Cross EU Office publish new report on Family Reunification

ECRE and the Red Cross EU Office, along with several national organisations, have released a report on practices in 12 EU Member States in relation to family reunification.

The report confirms that current procedures tend to lead to further isolation and separation of families due to the length and costs of such family reunification procedures, including high evidential requirements for selecting eligible family members, and high administrative requirements, in particular for the family members, who are often in more precarious situations than the sponsor.

In order for the right to family reunification to be effective, ECRE and the Red Cross EU Office recommend that family reunification procedures should be applied more flexibly, with better understanding of the realities of forced migrants. Access to procedures are also key to making the right to family life a reality. In that regard, ECRE and the Red Cross EU recommend further reflection so as to ensure effective access to embassies and consulates abroad, without unnecessary obstacles such as disproportionate documentary evidence or unjustified presence requirements.  

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Asylum Information Database (AIDA): new report on Croatia 

The first AIDA Report on Croatia, compiled by ECRE member organisation Croatian Law Centre (HPC), shows that vulnerable asylum seekers are not properly identified and assisted throughout the procedure and that access to medical assistance is generally very limited.

In particular, the report highlights that, in Croatia, asylum seekers who are in need of special procedural guarantees are not identified in a timely manner and as a consequence their claims may not be assessed properly. 

The report further notes that, following changes in the Law on Asylum in December 2013, health care assistance was drastically reduced to emergency healthcare. This only includes treatment “necessary to avoid imminent danger to life and health”. Following these legislative amendments, doctors presence in reception centres have been significantly curtailed, with only one doctor present on a weekly basis at the Zagreb centre. Furthermore, effective access to health care is further impaired by the lack of State-funded interpreters for those seeking emergency healthcare.

Finally, the report notes that free State-funded legal aid and representation are only available during the second instance procedure before the Administrative Court against a negative first instance decision. The lack of free legal aid is reported as an issue also with regard to the possibility of challenging a detention order. In fact, due to the lack of free legal aid and of an automatic review of the detention order, as well as the language barriers when receiving the reasons for their detention, detention orders are not challenged before the Administrative Court.

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The Economic and Social Research Institute (ESRI) publishes report on policies for unaccompanied minors in Ireland

A new report published by the ESRI explores the policies and practices in place regarding non-EU unaccompanied minors (UAMs) in Ireland.

The report notes that improvements have been made to the asylum application procedures for UAMs which are considerably more child-friendly than in previous years. The model of care provided for these children has been overhauled, moving from one of emergency hostel-based care in the late 1990s-2000s, to a model of foster care. Moreover, there has been a significant increase in the percentage of unaccompanied minors who were granted refugee status at first instance: in 2009 approximately 5 per cent were granted refugee status while in 2013 some 27 per cent of minors were issued with a positive asylum decision. However, the number of unaccompanied minors applying for asylum has decreased every year since 2009.

In addition, the report notes that although the Office of the Refugee Applications Commissioner prioritises applications from UAMs, the research found that UAMs generally do not receive a final decision on an 'application for leave to remain' until after he or she reaches 18 years of age, the length of time waiting for a decision and uncertainty as to the final decision subsequently leads to a sense of insecurity for UAMs.

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International Migration and Refugee Law Masters at the Vrije Universiteit, Amsterdam 

The Vrije Universiteit (VU) Amsterdam is introducing a master in International Migration and Refugee Law as of September 2015. The master’s track will address international migration from the perspective of international and European law and focus on the way these legal orders function in domestic legal orders. The interplay between international, European and domestic law is a specific focus of the track.

Other courses within the programme will focus on legal remedies for migrants, irregular migration, human rights, European law, and a migration law clinic.

For more information, click here.

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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 Amanda Taylor (ataylor@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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