CJEU: AG Opinion, Case C-695/15 PPU Mirza
Advocate General Kokott has given her opinion in the urgent preliminary ruling from the Debrecen Administrative and Labour Court, in Hungary. The Hungarian authorities, accepted a ‘take back’ request of a Pakistani asylum applicant from the Czech Republic pursuant to Article 18(1)c) of the Dublin III Regulation. They then rejected his second application for international protection as inadmissible and ordered his removal to Serbia, as he had previously transited through Serbia which was deemed to be a safe third country by national decree. He challenged this decision and the Debrecen Court referred a number of questions to the CJEU relating to the safe third country concept and the Dublin Regulation.
AG Kokott considers that acceptance of responsibility under Article 18(2) of the Dublin Regulation does not preclude the responsible Member State (MS) from sending the applicant to a safe third country pursuant to Article 3(3). It requires the examination to be ‘completed’ but this does not require it to be examined on the substance. Examination may also be deemed complete where the application is rejected as inadmissible in accordance with the requirements of Articles 33 and 39 of the recast Asylum Procedures Directive (rAPD). Any other interpretation would mean that the applicant in this case, who had left Hungary without authorisation, would unduly be accorded more favourable treatment, as compared to an asylum seeker that did not abscond. AG Kokott adds that Hungary is only able to reject his application as inadmissible if Serbia meets the criteria for a safe third country or European safe third country set out in Articles 38 and 39 rAPD. Regardless of its designation as such in national law, the examining court must ascertain whether these conditions are met for Serbia.
With regard to the second question, AG Kokott considers that an applicant may still be sent to a ‘safe third country’ post-transfer, even where the MS carrying out the transfer was not informed of national law or practice with regard to safe third countries. In the case at hand it was not evident that the Czech authorities had been informed that upon Hungary’s acceptance of responsibility, under national law its examination of his asylum claim could lead to his removal to Serbia without an examination of the substance. The AG concluded that this was immaterial because the lack of information by the transferring MS could not affect the lawfulness of procedures in the responsible MS, there is no obligation for a MS to inform other MSs of their application of the safe third country concept, and otherwise the applicant would enjoy more favourable status after absconding than he enjoyed prior to doing so.
Finally, the AG finds that Article 18(2) does not require an MS to continue the examination of an application for international protection at the stage it was discontinued, as its wording along with Article 28(2) rAPD allowed an MS to either continue the examination, or restart the procedure from the beginning.
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EASO: COI report on security situation in Somalia
The European Asylum Support Office has published a country of origin information report on the security situation in Somalia, which provides a general description before assessing the situation in different regions of Somalia.
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Switzerland: Federal Administrative Court suspends Dublin returns to Hungary
On 23 February 2016, the Federal Administrative Court of Switzerland decided
to suspend the transfer of asylum seekers to Hungary under the Dublin regulation, until the State Secretariat for Migration has clarified the situation for asylum seekers in Hungary.
The ELENA Weekly Legal Update would like to thank Adriana Romer, ELENA coordinator for Switzerland, for verifying this information.
UK: Court of Appeal, R (on the application of HN and SA) (Afghanistan) v. the Secretary of State for the Home Department
relates to two Afghan nationals, H.N. and S.A. who each had their asylum claims and appeals refused. They were due to be forcibly returned to Afghanistan in March 2015 but obtained an injunction from the courts to prevent this. They then made subsequent asylum claims arguing that recent evidence on the security situation in Afghanistan justified a departure from the findings in the current country guidance in AK (Article 15(c)) Afghanistan CG, 
. As such they would be at risk of indiscriminate violence if returned to their province, and internal relocation to Kabul would be unreasonable, so they should be entitled to subsidiary protection pursuant to Article 15c) of the Qualification Directive . Alternatively, they claimed that under Home Office policy they should be considered as vulnerable persons who should not be returned to Afghanistan. The Secretary of State for the Home Department decided that their claims did not amount to a subsequent application. The lawfulness of this finding was upheld on judicial review to the Upper Tribunal
. The Court of Appeal’s role in this case was limited to assessing the lawfulness of this decision.
Pending consideration of this case, a generic injunction was ordered prohibiting the forced removal of anyone who was habitually resident in ‘dangerous provinces’ of Afghanistan (anywhere except Kabul, Bamiyan and Panjshir). The Court of Appeal found that the Secretary of State for the Home Department and the Upper Tribunal had properly considered the relevant tests, the evidence on Afghanistan, and the circumstances of the applicants, and their decisions were upheld. This means that the findings in AK that the security situation in Afghanistan does not meet the Article 15(c) threshold remains valid and the general injunction may now be lifted.
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UK: Country Information and Guidance reports on Turkey
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ECRE: Memorandum to the European Council – Time to Save the Right to Asylum
On 17 and 18 March 2016 the European Council will meet once again to discuss the implementation of measures taken to address the current refugee and migration flows and the follow-up of the meeting on 7 March 2016 between EU Heads of State or Government and Turkey.
ECRE has published a Memorandum making recommendations on how to respond to refugee challenges facing Europe in a legal and ethical manner, while raising serious concerns about the EU-Turkey deal in particular.
For further information please see the ECRE Weekly Bulletin article, available here.
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EDAL: The impact of European Union law on Family Reunification in Greece
Zoi Anna Kasapi, LLM student at Queen Mary has written a blog for the EDAL journal which examines the impact of European Union law on family reunification in Greece.
She outlines the previous regime in Greece before discussing the delayed and fragmented transposition of new requirements of EU law into domestic law. This is subject to criticism on a number of accounts including the exclusion of beneficiaries of subsidiary protection, limitations to the family members eligible and bureaucratic requirements which amount to practical obstacles for family reunification in Greece. In the author’s analysis, domestic legislations and practice do not yet meet the standards necessary to respect the fundamental rights of third-country nationals as set out in the EU Charter, the ECHR and other international human rights principles.
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