ELENA Weekly Legal Update - 26 June 2015
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26 June 2015



European Court of Human Rights

K.O.J. v. the Netherlands: struck out 

The issue to be considered was whether the removal of the applicant and her young child from the Netherlands to Italy under the Dublin III Regulation would be contrary to Article 3 ECHR in light of the judgment of TarakhelThe case was struck out as the applicant had been granted an asylum-based residence permit, and the matter was therefore resolved. 

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European Union

CJEU: Case C-373/13: revocation of residence permit for a refugee alleged to support terrorism 

H.T. v Land Baden-Württemberg relates to a Turkish national who claimed asylum in Germany due to his political activities in exile in support of the PKK. He was recognised as a refugee in 1993 and granted an indefinite residence permit.

H.T. was later convicted under national law due collecting funds for the PKK (which was banned in Germany) and attending its meetings. An expulsion order was made which automatically invalidated his residence permit. The execution of this order was suspended due to H.T.’s strong family ties in Germany and his ongoing status as refugee.

H.T. appealed against the expulsion decision, and the Administrative Court of Baden-Württemberg referred a number of questions to the CJEU for a preliminary ruling, relating to the scope of the Article 21 derogation to protection from refoulement and the possibility to revoke a residence permit issued to a refugee pursuant to Article 24 of the Qualification Directive.

Article 21(3) gave States a discretion to revoke a refugee’s residence permit only where the conditions set out in Article 21(2) were met: where this was not prohibited by their international obligations and where there were either reasonable grounds for considering that the refugee is a danger to the security of State or, having been convicted by a final judgment of a particularly serious crime, he constitutes a danger to the community. The Court noted that its scope was restricted to situations of refoulement, as opposed to expulsion to a third country.

Although the explicit wording of Article 24(1) only covered the possibility of not issuing a residence permit, where justified by compelling reasons of national security or public order; the Court considered that it implicitly allowed for revocation too. This was in view of the aim of the provision, the scheme of the Directive, the travaux preparatoires and based on a logical analysis.
The Court held that although there was an overlap between Article 21(2) and (3), and Article 24(1), they were distinct in scope and pertained to different legal regimes. The former, constituting a derogation to the fundamental principle of non-refoulement and the drastic consequences this entailed, was subject to rigorous conditions. Revocation of a refugee’s residence permit had less onerous consequences as it did not entail the loss of refugee status or return to a country of risk. This meant that ‘compelling reasons’ was broader than ‘reasonable grounds’ in Article 21(2) and accordingly, that there were circumstances in which activity would be covered by the former, while not meeting the threshold of the latter.
The Court went on to consider the concept of ‘compelling reasons of national security or public order’ in Article 24(1) and did so with reference to its previous jurisprudence on the meaning of the concepts of ‘public security’ and ‘public order’ in the Citizenship Directive. It concluded that support provided by a refugee to a terrorist organisation fell within the scope of Article 24(1) in principle and justified the revocation of a refugee’s residence permit. However, the referring court was obliged to undertake an individual assessment of the specific facts relating to H.T. before this step was taken, considering the actions of the terrorist organisation, the involvement of H.T. and the principle of proportionality. The Court emphasised that revocation of his residence permit under Article 24(1) would not deprive H.T. of the rights he was entitled to as a refugee pursuant to Chapter VII of the Qualification Directive. 
An analysis of the judgment by Steve Peers is available on the EU Law Analysis blog.
Advocate General Sharpston’s opinion can be found here, and is summarised here.

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Council of Europe


Commissioner for Human Rights Report on Bulgaria  

The Commissioner for Human Rights has issued a report raising concerns over Bulgaria’s asylum procedures, reception conditions for asylum seekers, border practices, detention policies and the integration framework.
He observed that since mid-2013 Bulgaria witnessed a huge influx of migrants and asylum seekers, mainly from Syria, and at that time the reception conditions and asylum procedures in place were inadequate to respond. He welcomed the improvement of living conditions in reception centres since then but highlighted the fragility of this situation which was liable to reversal by arrival of a large number of refugees or Dublin returns, particularly as it appeared to be financially unsustainable. He noted that ECRE had called for the suspension of Dublin transfers to Bulgaria in April 2014.
Further, the Commissioner raised concerns over the lack of early identification and referral mechanisms for asylum-seekers with specific needs, including unaccompanied children. He was also concerned about the fence built on the Bulgarian-Turkish border and the reported use of force, violence, ill-treatment and push-backs of migrants which have not been investigated further.
He expressed worries about reports of seriously substandard conditions in detention centres and incidents of ill-treatment. He called on the Bulgarian authorities to abandon their plans to adopt a law envisaging the systematic detention of asylum seekers and unaccompanied minors in closed centres. He indicated that current and proposed practice in relation to detention fell short of EU standards.
Finally, he found that the Bulgarian system to support the integration of refugees suffered from serious deficiencies and urged it to make improvements to ensure that refugees could enjoy their social and economic rights. 

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United Nations

UNHCR: Manual on the Case Law of the European Regional Courts 

UNHCR has published a manual which summarises and analyses key case law from the CJEU and ECtHR of relevance to refugees, asylum-seekers and stateless persons.  

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National Developments


Belgium: Council of Alien Law Litigation annuls decision to transfer a single man to Italy  under Dublin III 

This case relates to a Senegalese national who claimed asylum in Belgium in July 2015. His claim was refused, and an order made to transfer him to Italy pursuant to Article 12(2) Dublin III Regulation, on the basis that he had a valid visa issued by the Italian authorities and had not shown ‘systemic deficiencies’ in the asylum system of Italy. The Council of Alien Law Litigation (CALL) suspended this decision after an urgent application, and its reasoning is summarised here.
The applicant relied on a number of reports to challenge his removal to Italy, claiming that the poor reception conditions due to the arrivals of large numbers of asylum seekers in recent months would expose him to a real risk of inhuman and degrading treatment contrary to Article 3.
He argued that this information was not sufficiently taken into account in the Belgian government’s refusal decision, which gave a partial and selective reading to the objective information. In particular the applicant complained that the AIDA country report on Italy, which he had submitted in support of his case, was not properly considered. This was a crucial source of information for analysing his risk of Article 3 ill-treatment upon transfer, given its description of the inadequate legal procedures and reception conditions for asylum seekers in Italy.
The Belgian government argued that the applicant had not expressed any fear of removal to Italy in his initial interview, and later sought to rely on general reports relating to the lack of guaranteed reception conditions for asylum seekers in Italy, without showing how this would subject him, personally, to inhuman and degrading treatment. It was therefore not obliged to give a detailed rebuttal of this aspect of his case, as it had provided sufficient reasons for rejecting the core of his claim.
The Council observed that the Belgian authorities in making the contested decision took a piecemeal approach to the available objective information. This information could not simply lead to the conclusion made by the Belgian authorities that, contrary to the applicant’s position, a single man would be able to access accommodation on return to Italy.
It drew on the Tarakhel judgment of the ECtHR in finding that cases in which a Dublin transfer to Italy is being considered must be assessed with great caution and the decision should be based on an up-to-date, comprehensive and rigorous examination of the available information. The Council rejected the argument put forward by the Belgian authorities and reiterated that the delicate and evolving situation in Italy, which it could not be unaware of, obliged it to take great care when examining information relevant to Dublin transfers to Italy.
The Council found that the reasoning behind the contested decision did not meet this standard, which constituted sufficient and serious grounds to order its annulment. 
Based on an unofficial ELENA translation.
The ELENA Legal Update would like to thank Matthieu Lys for informing us of this decision and Daphné Bouteillet-Paquet for her assistance with the English summary. 

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Czech Republic: Prague Regional Court quashes Dublin transfer to Bulgaria for Yazidi family

The case of A.K.A and others v. Ministry of the Interior related to a Yazidi family of four adults from Northern Iraq. The father had serious psychological problems for which he took medication. The family applied for asylum in Bulgaria and Hungary, but abandoned these claims and attempted to reach Germany. They were arrested on a train in the Czech Republic and placed in administrative detention pending Dublin transfer. Following Hungary’s refusal of responsibility under the Dublin III Regulation, the Czech Ministry of Interior issued decisions to transfer the applicants to Bulgaria where they had first claimed asylum. The applicants had no personal interview at any stage of the proceedings. They appealed to the Prague Regional Court.
The court considered the UNHCR report on Bulgaria published in April 2014, and pointed out the reported problems with the identification of vulnerable persons in the Bulgarian asylum system. It noted that the applicant who suffered from psychological problems was undoubtedly a vulnerable person. The court found that the Ministry of Interior had failed to assess whether the Bulgarian asylum system ensured adequate health care and support for those suffering from psychological problems and as such its decision to transfer him to Bulgaria was insufficiently reasoned and unlawful.
In relation to the absence of a personal interview for the applicants in proceedings about their Dublin transfer, the Ministry of Interior argued that its decisions were based on the police interrogation of the applicants when they were detained. This argument was rejected by the court, as the applicants had not been notified that their interrogations could constitute a personal interview in Dublin transfer proceedings. The court held that the absence of a personal interview violated the applicants’ right to a fair trial and prevented them from raising arguments against their transfer to Bulgaria in the first-instance proceedings before the Ministry of Interior. It therefore quashed all of the transfer decisions on the basis of serious procedural errors.
This judgment became final in June 2015 as the Ministry of Interior did not appeal. The original Czech judgment can be found here

The ELENA Legal Update would like to thank the OPU for providing us with the judgment and assistance with the English summary

UK: Supreme Court ruling on tracing obligations for Afghan unaccompanied minors  

TN and MA (Afghanistan) v. Secretary of State for the Home Department; AA (Afghanistan) v. Secretary of State for the Home Department

This joint decision relates to three Afghan nationals who claimed asylum in the UK as unaccompanied minors, on the basis of a fear of persecution from the Taliban, the government and the police on return to Afghanistan. They each had their asylum claims rejected as their accounts were not believed, but were granted discretionary leave to remain in the UK until the age of 17.5 in line with government policy, given the lack of adequate reception arrangements in Afghanistan.
As TN and MA had been granted leave of less than one year, this prevented them from appealing against the rejection of their asylum claim until a decision had been taken to remove them upon the expiry of their leave. This meant they would no longer be able to rely on their risk due to their age in their asylum claim.  They lodged a judicial review of their refusal decisions arguing that this process violated their rights to an effective remedy under Article 39 of the Asylum Procedures Directive.
All three appellants argued that the government’s failure to carry out its duty to endeavour to trace their family members, in Article 19(3) of the Reception Conditions Directive , vitiated the rejection of their asylum claims. If it had complied with the tracing duty as obliged they argued, this would have produced evidence to support their asylum claims.
The Supreme Court considered that the delay in TN and MA being able to exercise their right to appeal did not deprive them of an effective remedy, as it was for a short period and there were understandable reasons for it. Their inability to rely on being members of a particular social group (orphan minors) at the time of appeal was not relevant as a social group should not be defined in a strictly age-specific manner.
The Court upheld the Ravichandran principle, that asylum appeals should be determined by reference to the factual position at the time of the appellate decision, rather than at the original decision. It departed from the only exception to this established in Rashid which found that an abuse of power by the State called for court intervention to give appropriate relief, on the basis that it lacked clarity, stating that this principle should no longer be followed.
It reasoned that the issue of whether an appellant qualifies for asylum must be based on their present risk of persecution, and it was not proper for a court to grant leave as remedial relief for the government’s failure to discharge its tracing obligation. It was open to the lower courts to conclude that the accounts of MA and AA lacked credibility, and they had not given any information from which their family could be traced.
The Supreme Court therefore dismissed both appeals. 

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UK: New country information and guidance report on Iraq

The UK Home Office has issued a report providing guidance on the humanitarian situation in Baghdad, the south and the Kurdistan Region of Iraq. It considers that in general the humanitarian conditions in these regions are not so severe as to make return a breach of Article 3 ECHR. However an individualised assessment must be undertaken with regard to personal circumstances and vulnerabilities. As such, internally displaced persons and single women and children without a support network may face humanitarian conditions which breach Article 3 ECHR. 

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ECRE: AIDA legal briefing on detention under the Dublin III regulation 

ECRE has published its first AIDA Legal Briefing, focusing on the legality of detention of asylum seekers for the purpose of transfer to the Member State responsible for examining their application under the Dublin III Regulation.
The briefing discusses the new Article 28 of the Dublin III Regulation, which only expressly permits detention for the purpose of securing transfer procedures when there is a “significant risk of absconding” and subject to necessity, proportionality and insofar as less coercive alternative measures cannot be applied effectively. It also sketches out the applicable safeguards and conditions of detention under the Dublin III Regulation.
The briefing then examines the legality of detention of asylum seekers subject to Dublin procedures under the European Convention on Human Rights (ECHR) and its corresponding provision in the EU Charter of Fundamental Rights. Article 5(1)(f) ECHR allows states to detain non-nationals either to prevent them from “effecting an unauthorised entry” in their territory, or with a view to deporting them.
The assumption that asylum seekers are detainable as they are “effecting an unauthorised entry”, as suggested by the European Court of Human Rights in Saadi v United Kingdom, seems untenable under EU law, since the Asylum Procedures Directive provides asylum seekers with a right to remain on the territory of Member States pending a decision on their application. As the Court of Justice of the European Union has detailed in Cimade and GISTI, all rights attached to asylum seekers’ status remain applicable throughout the entire Dublin procedure, until a person has effectively reached the territory of the receiving country.
At the same time, the European Court of Human Rights has clarified that asylum seekers cannot be deported before their claim has been examined. In that sense, the Dublin Regulation creates a peculiar category of asylum seekers who may be removed from the territory of a Member State before their application is examined, falling outside the scope of Article 5(1)(f) ECHR. Under an appropriate reading of the ECHR, Dublin detention should not be permissible.

Bordermonitoring.eu: launch of research database

German NGO, bordermonitoring.eu has launched a research database containing press articles, NGO reports and court decisions relating to migration and border practices in Malta, Bulgaria and Hungary.

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 Zarina Rahman (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).

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