ELENA Weekly Legal Update (EWLU)

15 July 2016


European Court of Human Rights

A.M. v France (no. 56324/13) [Article 5 § 4], 12 July 2016

The Fifth Section of the European Court of Human Rights has given its ruling in the case of A.M. v France (no. 56324/13) concerning the lack of an effective remedy, for the purpose of Article 5 § 4 ECHR.

The case concerns a Tunisian national, who entered France unlawfully in February 2011 and on 4 March 2011 was arrested by the French authorities. He was served with a deportation order and an administrative order. As the deportation order was never enforced, the applicant was released. However, on 7 October 2011, the applicant was again arrested and served with a detention order in order to enforce the previous deportation order. On 9 October 2011, he contested the lawfulness of the detention order, but on 11 October the applicant was deported to Tunisia, and was unable to attend the hearing scheduled on the same day. Whereas the Administrative Court of Appeal set aside the detention order, the Conseil d’Etat rejected the applicant’s appeal. Hence, he submitted an application to the ECtHR complaining that he had been deprived of any effective access to a court with jurisdiction to assess the lawfulness of his detention in violation of Article 5 § 4 ECHR.       

In the present case, the administrative court examining an appeal against an administrative decision could only verify the competence of the authority which issued the order, its reasons for doing so and the necessity of the administrative detention. Those courts however had no jurisdiction to review the lawfulness of the measures which had been taken prior to the administrative detention and led to that detention, including the conditions surrounding the applicant’s arrest. Therefore, inasmuch as the domestic courts could not verify the lawfulness of the series of decisions leading up to the administrative detention, the Court held that the review conducted by the French administrative courts was insufficient given their inability to assess the original measures implemented, that is to say, in the present case, the arrest of the applicant. The Court therefore found that A.M had not benefited from an effective remedy for the purposes of Article 5 § 4 of the Convention. There had therefore been a violation of that provision.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Administrative detention of children in the context of deportation procedures

  • A.B. and Others v. France (no. 11593/12) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • A.M. and Others v. France (no. 24587/12) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.C. and V.C. v. France (no. 76491/14) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.K. and Others v. France (no. 68264/14) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.M. and Others v. France (no. 33201/11) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016

In the cases of A.B. and Others v FranceA.M. and Others v FranceR.C. and V.C. v France, R.K. v FranceR.M. and Others v France, the applicants had complained to the ECtHR that the placement of their children in the administrative detention centres amounted to inhuman and degrading treatment in breach of Article 3 ECHR. In addition, the applicants alleged that this placement was contrary to Article 5 § 1 ECHR (the right to liberty and security) and that the available remedies were ineffective under Article 5 § 4 (right to speedy review of the lawfulness of detention). The applicants, relying on Article 8 ECHR, also complained that their placement in administrative detention had infringed their right to respect for family life. 

Article 3 ECHR

The Court reiterated that it had repeatedly found a violation of Article 3 ECHR regarding the administrative detention of foreign national children (Popov v FranceMuskhadzhiyeva and Others v. Belgium, Mubilanzila Mayeka and Kaniki Mitunga v Belgium, Rahimi v Greece, Kanagaratnam v Belgium). The Court reiterated that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of an irregular immigrant. In addition, asylum seeking children have specific needs that are related in particular to their age, lack of independence, and status.

In the present cases, the Court noted that, although the material conditions in certain centres were appropriate, the conditions inherent in establishments of this type are a source of anxiety for young children. The Court therefore concluded that, given the children’s young age, the duration and conditions of their detention, the French authorities had subjected the children to treatment in breach of Article 3 ECHR.

Article 5 ECHR

The Court clarified that in order to fall under Article 5 § 1 f) ECHR, the deprivation of liberty of the children must be necessary to achieve the objective pursued, namely to ensure the expulsion of the family. The Court acknowledged that the deprivation of liberty which resulted from the parents’ legitimate decision not to entrust their children to another person was not, in principle, contrary to the domestic law. However, the Court emphasised that, where children are present, the domestic authorities must ensure that the placement in administrative detention is a measure of last resort for which no alternative measure is available.

In the cases A.B. and Others v France, R.K. and Others v France and R.M. and Others v. France, the Court was not persuaded that the domestic authorities had verified that the family’s placement in administrative detention was a measure of last resort for which no alternative was available. It therefore found a violation of Articles 5 § 1 and 5 § 4 ECHR in respect of the children.

Article 8 ECHR

In A.B. and Others v. France and R.K. and Others v. France, the Court also found a violation of Article 8 ECHR. In particular, it seemed that the authorities had not taken all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. In the absence of a particular risk of absconding, the administrative detention of the family seemed disproportionate to the aim pursued. The Court therefore held that there has been a disproportionate interference with the families’ right to respect for their family life.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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European Union

European Commission: new proposals for an Asylum Procedures Regulation, a Qualification Regulation and a recast Reception Conditions Directive 

On 13 June 2016, the European Commission published their proposals for an Asylum Procedures Regulation, a Qualification Regulation and a recast Reception Conditions Directive to complete the reform of the Common European Asylum System.

Asylum Procedures Regulation COM(2016) 467
The key objective of the Asylum Procedures Regulation proposal is to ensure fast but high quality decision making at all stages of the procedure along 4 key principles:

  1. Simpler, clearer and shorter procedures
  2. Procedural guarantees safeguarding the rights of applicants
  3. Stricter rules to sanction manifestly abusive claims and remove incentives for secondary movements
  4. Harmonised rules on safe countries 
Several provisions have been included in order to clarify access to the asylum procedure. Most notably, the proposal clearly defines and distinguishes the steps to making, registering and lodging an asylum application. In addition, the proposal strengthens the procedural guarantees with regards to the requirements for the personal interview, the right to free legal assistance and representation and the appointment of guardians for minors. The proposal also includes rules regarding the mandatory application of the safe country concepts, tighter deadlines for decision-making and lodging appeals, and additional procedural sanctions. 
Qualification Regulation COM(2016) 466
The aim of the Qualification Regulation proposal is to:
  1. Harmonise the criteria for recognizing applicants for international protection and incorporate key CJEU jurisprudence;
  2. Ensure more convergence of the asylum decisions across the EU by obliging refugee status determination bodies to take into account the common analysis and guidance on country of origin provided by the European Asylum Agency;
  3. Ensure more commonalities in the duration of protection permits and integration policies;
  4. Address secondary movements of beneficiaries of international protection
  5. Further harmonise the rights of beneficiaries of international protection.
The Regulation proposal substantially changes a number of provisions of the Asylum Procedures Directive, including the exclusion from refugee status and the revocation, review and end of refugee status and subsidiary protection. The proposal also no longer allows Member States rights to grant more favourable treatment of the persons within the Scope of the Regulation. It introduces, inter alia, the mandatory use of concepts that were so far optional (e.g. internal flight alternative); the obligation to use the guidance issued by the European Asylum Agency; a new obligation for the applicant to substantiate his or her claim and cooperate with authorities. It inter alia introduces the broadened scope of family unity, reinforces the right to information, and clarifies a number of concepts under the preamble, including the concept of serious and individual threat to a civilian’s life or person by reason of indiscriminate violence. Moreover, the proposal inter alia introduces an obligation to remain in the territory of the MS responsible for examining the application and an obligation to participate in integration measures are also of concern.
Recast Reception Conditions Directive COM(2016) 468
The aim of the proposal for the recast Reception Conditions Directive is threefold:
  1. Harmonising reception conditions in the EU
  2. Reducing incentives for secondary movements
  3. Increasing applicants' self-reliance and possible integration prospects.

A number of provisions have been substantially changed, including inter alia the definition of family members, provisions on special reception needs of the applicants, guardianship, access to labour market, right to information, detention and reception conditions. The proposal requires Member States to take into account operational standards and indicators on reception conditions currently being developed by EASO and provides for contingency planning. It also introduces restrictions on the applicant’s freedom of movement.

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National Developments

UK: Court of Appeal rules on persecution based on imputed political opinion 

On 12 June 2016, the Court of Appeal ruled on the issue of persecution based on imputed political opinion in Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener).
The case concerned a Somali national, who had worked as a journalist for a radio station. He unsuccessfully applied for international protection based on the ground that as a journalist he had a well-founded fear of persecution if returned. The Upper Tribunal conversely found that the applicant would face persecution in the event of return on the basis of his political opinion. The Secretary of State appealed to the Court of Appeal.
The Court of Appeal agreed to consider two distinct issues. First, the Court considered whether the Upper Tribunal had erred in law by finding that the applicant would fear persecution based on his actual political opinion. The Court dismissed the Secretary of State’s appeal because the Upper Tribunal had in fact made a finding that the applicant’s pursuit of career in journalism involving the expression of political opinion is “at least partially driven by political conviction relating to conditions prevailing in Somalia”. 

Second, the Court agreed exceptionally to consider on an obiter dicta basis, the wider question of whether it would be reasonable for the applicant to modify his behaviour as to avoid risk of attracting an imputed political opinion by not engaging in his chosen career of journalism. The Court held that both the Qualification Directive and the Geneva Convention require the following questions to be answered:

  1. whether the applicant for refugee status faces a well-founded fear of persecution and;
  2. what the reason is for that persecution.

Hence, the same test for refugee status applies to individuals, whose protected characteristic is imputed by the actor of persecution. The Court therefore rejected the State Secretary’s argument that in some cases of imputed political opinion an applicant can be expected to modify his or her behaviour in order to avoid the imputation to him or her of the political opinion which gives rise to the identified risk of persecution

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ECRE: With Greece – ECRE and AIRE Centre report on refugee protection in Greece

ECRE and The AIRE Centre released a report on procedural challenges and recommendations for effective and sustainable support to the Greek asylum system.

The report, which follows a field visit to the country between 28 May and 6 June, emphasises the need for international organisations to be mindful of the long present efforts of Greek lawyers and NGOs in the field, and recommends that new initiatives should be targeted and sustainable. 

Persisting challenges impede access to asylum in Greece due to complexity and layers of procedure. The organisations fear that if the procedure is not streamlined, the registration simplified and the capacity of the Asylum Service expanded, effective access to asylum will continue to be obstructed. The lack of legal routes for people to move beyond Greece, a point previously raised by ECRE, is also highlighted as an area where stronger legal support and advocacy is needed in other European countries.

The report also highlights challenges in the identification of vulnerable groups such as victims of torture and victims of trafficking.

Based on an article originally published on the AIDA website, dated 13 July 2016, available here.

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ECRE: Comments on the Commission Proposal to recast the Eurodac Regulation COM(2016)2 272

ECRE has published comments on the European Commission’s proposal to recast the Eurodac Regulation, which governs the establishment and operation of a database containing fingerprints of asylum seekers and irregular migrants. The comments raise a number of issues regarding the proposal, especially on the tension between several of the provisions and fundamental rights.

ECRE opposes the substantial expansion of the Eurodac database’s mandate foreseen in the Commission proposal, with the aim of assisting the control of irregular migration, secondary movements and the identification of irregular migrants for return purposes. In this regard, ECRE questions the premise that the collection and storage of fingerprints and facial images of irregular migrants is a necessary tool to control irregular immigration and identify migrants.

In addition, this proposal comes as part of an increasing trend of digitalisation on the EU’s home affairs agenda, which in turn raises issues of data protection and compliance with human rights law. Such concerns are analysed in the document, with ECRE finding that the current proposal amounts to unnecessary and disproportionate interference with Articles 7 and 8 of the EU Charter of Fundamental Rights, namely private and family life and the protection of personal data.

The Comments also highlight that the Commission proposal imposes a duty on Member States to create an obligation for asylum seekers and migrants to provide fingerprints and facial images, a development which has implications for human rights. Children would be strongly impacted, as the minimum age for collecting fingerprints and images for Eurodac would be lowered from 14 to 6 years. ECRE recommends that the Regulation limit fingerprinting and facial images of children to cases where this is in the best interests of the child.

Furthermore, the proposal provides a legal basis for “effective, proportionate and dissuasive” sanctions when a person refuses to give fingerprints or a facial image for Eurodac purposes. ECRE argues that the Regulation should strictly specify and circumscribe the powers of EU Member States to sanction non-compliance, by laying down exhaustive sanctions that may be applied in such situations. These should be compatible with the EU Charter of Fundamental Rights. Coercion should never be permissible for the aim of collecting fingerprints and facial images.

Based on an article originally published on the ECRE website, dated 15 July 2016, available here.  

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ECRE: Comments on the Commission Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 COM(2016)271

Earlier this week ECRE published its comments on the Commission proposal for a Regulation on the European Union Agency for Asylum (EUAA), the proposed successor to the European Asylum Support Office. ECRE’s comments concentrate mainly on the new Agency’s competences in the field of information collection and analysis on the situation of asylum, monitoring the implementation of the EU asylum acquis and country of origin information (COI). The document also analysis the Agency’s proposed role in situations where Member States face disproportionate pressure on their asylum systems, the EU’s cooperation with third countries, and the role of the Consultative Forum.

ECRE recognises that expanding the competences of the Agency in an attempt to enhance have a more harmonised CEAS is a necessary and logical evolution in the EU harmonisation process. Nevertheless, ECRE calls on the EU institutions to ensure that the activities of the EUAA also increase the quality of decision-making and establish a high level of protection across the EU.

ECRE also recommends the establishment of an Independent Expert Panel on country of origin information (COI) advising the Agency on matters of methodology and peer reviewing the Agency’s COI products. The panel would consist of academic country-specific experts, representatives of the judiciary, expert NGOs and UNHCR.

The proposal foresees the active involvement of the Agency and experts deployed by the Agency in the examination of asylum applications. It furthermore proposes the possibility of inviting third country officials to observe its operations. Given the risk of disclosing information on individual applications for international protection to alleged actors of persecution, ECRE opposes any such collaboration.  

ECRE welcomes the enhanced competences of the new Agency to monitor and assess the operation and functioning of the Common European Asylum System in practice at the national level. However, it regrets that the Commission proposal seems to suggest that such monitoring and assessment mechanism would be based predominantly on information provided by Member States without integrating relevant information from NGOs and UNHCR.

The document also recommends that there are stronger data protection safeguards given the additional competences of the Agency to process personal data of asylum seekers and refugees. Finally, ECRE calls for greater safeguards in the proposed Regulation to ensure that the new competence of the Agency to issue a common analysis on country of origin and guidance on for certain countries is in line with UNHCR eligibility guidelines.

Based on an article originally published on the ECRE website, dated 15 July 2016, available 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 Isa van Krimpen (, or Julia Zelvenska (

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