Copy
ELENA Weekly Legal Update (EWLU)

24 April 2020
The EWLU will take a break and return on 8 May 2020
 

Summary


European Court of Human Rights European Union United Nations National Developments ECRE

European Court of Human Rights


T.K. and S.R. v. Russia referred to the Grand Chamber

On 15 April 2020, the referral in the case of T.K. and S.R. v Russia was accepted by the Grand Chamber of the European Court of Human Rights.

The case concerns Kyrgyz nationals belonging to the Uzbek ethnic minority who were apprehended and detained upon their arrival to Russia in 2013 and 2014 respectively before their extradition was ordered. The applicants later applied for international protection due to the risk of ill-treatment and persecution in Kyrgyzstan on the grounds of their ethnic origin.

In its Chamber judgment, the Court concluded that the applicants’ extraditions would not amount to a violation of Article 3 ECHR. The Court was satisfied by the quality and reliability of the Russian authorities’ assessment of assurances guaranteeing the protection of the applicants in their country of origin. It added that significant improvements, in terms of the general situation of violence and ethnic based risks, means that ethnic Uzbeks no longer constitute a vulnerable group facing a specific targeted risk of ill-treatment. The Court continues to indicate to the Russian Government not to extradite or otherwise involuntarily remove the applicants to Kyrgyzstan until the judgment had become final or until further order.

Back to top

Robert Spano, Judge in respect of Iceland, elected President of the European Court of Human Rights

On 20 April 2020, the European Court of Human Rights elected Judge Robert Spano (Representative of Iceland) as its new President.

Judge Spano succeeds Linos-Alexandre Sicilianos (Representative of Greece) and will officially take office on 18 May 2020.

Back to top

European Union


CJEU: Opinion of Advocate General Pikamäe on the accommodation of asylum seekers in the Röszke transit zone at the Hungarian-Serbian border and the grounds of inadmissibility for asylum applications

On 23 April 2020, Advocate General Pikamäe delivered his opinion in the joined cases C-924/19 and C-925/19 PPU concerning, inter alia, the accommodation of asylum seekers in the Röszke transit zone at the Hungarian-Serbian border and the grounds of inadmissibility for asylum applications.

The cases concern a married couple from Afghanistan and an Iranian national and his minor son who arrived in Hungary after crossing the Serbian border. Upon arrival, the Hungarian authorities designated the Röszke transit zone as their place of accommodation. Their applications for international protection were rejected as inadmissible by the Hungarian authorities on the grounds that applications submitted by persons arriving through a ‘safe transit country’ are to be rejected without an examination of their merits. Following Serbia’s refusal to readmit the applicants, Hungary ordered their removal. The Administrative and Labour Court of Szeged stayed proceedings in these cases and referred a number of questions to the CJEU.

The Advocate General first addressed the question concerning the right to an effective remedy. He noted, inter alia, that Article 13 Directive 2008/115 read in light of Article 47 of the Charter must be interpreted as imposing on Member States the obligation to provide a remedy against a return decision before a judicial body. Addressing the first question, concerning the ground of inadmissibility of a safe transit country, AG Pikamäe considered, in light of the Court’s previous rulings, that Directive 2013/32 must be interpreted as precluding Hungarian legislation which provides for a ‘safe transit country’ ground for inadmissibility.

The AG then addressed Hungary’s obligation to examine the applications for international protection. Observing, inter alia, that the applications for international protection were made in the transit zone and that the Hungarian authorities had designated a place of residence for the applicants in the transit zone, he opined that the procedure for examining applications for international protection does indeed fall within the scope of Article 43 Directive 2013/32. As such, in the event of an absence of admission or readmission by the Serbian authorities, the Hungarian authorities are obliged to examine the present applications.

On question three, the AG examined whether the accommodation of the applicants in the transit zone amounted to detention within the scope of Article 2 Directive 2013/33 in conjunction with Article 6 and 52 of the Charter. Despite the recent ruling of the European Court of Human Rights in Ilias and Ahmed, where it was held that the accommodation of applicants of international protection in the Röszke transit zone did not amount to a deprivation of liberty, AG Pikamäe observed that due to the autonomy of EU law the Court of Justice has a power to interpret provisions of the Charter independently of the ECtHR when EU law provides for a higher level of protection. He noted, inter alia, that the applicants’ situation of isolation together with the severely restricted possibility to voluntarily leave the transit zone constituted detention within the meaning of Article 2 Directive 2013/33. The AG opined that the detention of the applicants in the Röszke transit zone, which was not based on a formally adopted detention decision outlining the factual and legal grounds on which it was based, and was not preceded by an individual examination as to the possible implementation of solutions, must be classified as unlawful.  

Based on an unofficial translation by the EWLU team.

Back to top

United Nations


Report of Secretary General on implementation of resolution 2491 (2019) and trafficking in persons in the Mediterranean Sea

On 6 April 2020, the United Nations Security Council published a report of the Secretary-General on the implementation of Resolution 2491 (2019), which reaffirms, inter alia, the necessity to put an end to the ongoing proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean Sea off the coast of Libya.

The report addresses four key areas: the smuggling of migrants and trafficking in persons in the Mediterranean Sea off the coast of Libya; the inspection and seizure of vessels off the Coast of Libya; support to Libya and related efforts to combat migrant smuggling and trafficking in persons; and international efforts to combat migrant smuggling and trafficking in persons.

Moreover, the Security Council notes, inter alia, the alarming number of refugees held in detention centres as well as the prevalence of sexual and gender-based violence there. It calls on States to ensure that those identified as responsible for smuggling and human trafficking are held to account.

Back to top

National Developments 


Italy: Refugee status recognising FGM as a gender-based violence

The Tribunal to Bologna recently recognised refugee status of a woman from Sierra Leone due to gender-based persecution and discrimination, including exposure to FGM.

The applicant left Sierra Leone as a minor in order to avoid a forced marriage to an older man. She was also a victim of FGM at the age of 10. The Territorial Commission recognised her humanitarian protection due to vulnerability but excluded international protection for inconsistency.

The Tribunal later found the applicant’s story to be credible in the light both of medical documentation, and the country of origin information report, confirming that the applicant was victim of FGM and that the practice is still prevalent in Sierra Leone. The Tribunal highlighted, inter alia, that under the Chapter VII on Migration an Asylum of the Convention on preventing and combating violence against women and domestic violence, ratified by Italy in 2013, all contracting parties shall ensure that gender-based violence against women be recognised as a form of persecution.

As a result, the Tribunal recognised the applicant refugee status, considering a well-founded fear of gender-based persecution and discrimination.

Based on an unofficial translation by the EWLU team. Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary. 

Back to top

France: Compilation of 2019 Jurisprudence of French Court of Asylum 

The National Court of Asylum (CNDA) recently published a compilation of jurisprudence from the year 2019.
The compilation provides an overview of asylum related issues addressed by the CNDA and the Council of State, as a well as a thematic summary of decisions issued in 2019.

The legal issues covered in the report include a number of developments in relation to the rights of the child and women’s rights, particularly in relation to FGM, forced marriages, and human trafficking for the purpose of sexual exploitation.

The compilation also provides a summary of jurisprudence concerning the granting of refugee status in circumstances where individuals are exposed to a risk of persecution due to gender identity, as well as the CNDA’s endeavour to strengthen case law in relation to situations of indiscriminate violence as a result of armed conflict.
The report is available in French.  

Based on an unofficial translation by the EWLU team. 

Back to top

ECRE


AIDA: Updated reports on Croatia and Malta

The updated AIDA country reports on Croatia and Malta are now available online. The reports document the main developments in the area of international protection in 2019.

The AIDA report for Croatia provides an update on the situation at the Croatian border where collective expulsions and violent police practices have been documented. The border regime limits access to the territory and to the asylum procedure and puts individuals at risk of serious human rights violations, including vulnerable groups, and is particularly worrying in light of the level of violence that has been reported, involving incidents of torture, shootings, deaths of migrants in certain cases. Other developments relevant to the asylum procedure include, inter alia, the re-structuring of the determining authority, concerns regarding the length of appeal procedures, and the Constitutional Court’s ruling highlighting the importance of thoroughly examining individual circumstances in subsequent applications.

The Malta AIDA report documents the increase in sea arrivals following the ending of an informal agreement between Malta and Italy which allowed for migrants rescued in Maltese territorial waters to be disembarked in Italy. As a result of the rise in arrivals and the saturation of the reception system, the Maltese authorities in 2019 decided to detain each and every person arriving irregularly to the country under national health regulations. Such systematic detention is applicable to unaccompanied children, families and vulnerable persons and it has been implemented on the ground that there is a reasonable suspicion that new arrivals might spread contagious diseases.

The report also details how the lack of space and resources has led to overcrowded reception centres and the severe deterioration of reception conditions. It is noted that several riots took place throughout 2019 as residents complained about the extreme degradation of conditions. In addition, evictions have taken place to make space for new residents resulting in a number of asylum-seekers becoming homeless.

The updated AIDA reports for Poland, Spain, and Switzerland are also now available.  

This is an edited version of information originally appearing on AIDA, managed by ECRE.

Back to top

Facebook Facebook
Twitter Twitter
Website Website
LinkedIn LinkedIn
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).






This email was sent to <<Email Address>>
why did I get this?    unsubscribe from this list    update subscription preferences
European Council on Refugees and Exiles · 146 rue Royale · Brussels 1000 · Belgium