European Union
CJEU: Judgment on the consequences of a failure to conduct a personal interview prior to an inadmissibility decision
On 16 July 2020, the Court of Justice of the European Union published its judgment in Addis C-517/17 concerning the interpretation of the Procedures Directive and the consequences of a failure to conduct a personal interview prior to an inadmissibility decision.
The applicant, an Eritrean national, was granted leave to remain in Italy until 2015 after making a successful application for asylum in 2009. In 2011, they travelled to Germany and claimed refugee status, which was rejected as inadmissible on the basis that he had entered from a safe third country. At this point, the applicant did not have a personal interview to hear the arguments in relation to the new application. The referring court suspended proceedings and referred questions to the CJEU on the interpretation of the scope of exceptions to conducting a personal interview outlined in Directives 2005/85 and 2013/32. Advocate General Hogan delivered his opinion on 19 March 2020.
The Court observed that the referring court essentially seeks to ascertain whether the Procedures Directive must be interpreted as precluding national legislation under which a failure to grant an applicant for international protection (IP) the opportunity for a personal interview before an inadmissibility decision is made does not lead to that decision being annulled. The Court noted that Article 14(1) Procedures Directive, which unequivocally sets out the obligation to give an applicant for IP an interview, also applies to decisions on admissibility. This interview is intended to, inter alia, give the applicant an opportunity to present all the factors relating to their case and state that IP has been granted by another MS. The Court further notes, in light of its previous case law, that the Procedures Directive precludes a Member State from making an inadmissibility decision on the grounds that IP has been granted by another MS where, inter alia, the living conditions in that other MS would expose them to a real risk of inhuman and degrading treatment. It added, furthermore, that the threshold of Article 4 of the Charter is reached where the indifference of MS authorities would expose the applicant to extreme material poverty.
The Court later noted that where a MS has evidence to establish the existence of a risk in another MS which has granted an applicant international protection, the authorities are required to assess, inter alia, information which is objective, reliable and specific in relation to deficiencies in that MS. Moreover, it cannot be ruled out that an applicant would be able to provide evidence of the exceptional circumstances that would expose them to a risk of inhuman and degrading treatment. A personal interview is therefore of fundamental importance in assessing an individual’s degree of vulnerability and must be conducted, inter alia, with confidentiality and with a person capable of assessing the personal and general circumstances of the applicant.
The Court also noted that it is for the referring court to determine whether the applicant was or still could be given the opportunity to be heard in compliance with fundamental guarantees. If this cannot be guaranteed, the decision must be annulled and the case remitted to the determining authorities. It therefore concluded that Articles 14 and 34 of the Procedures Directive must be interpreted as precluding national legislation under which a failure to comply with the obligation to give an applicant the opportunity of a personal interview before the adoption of a inadmissibility decision does not lead to that decision being annulled and the case being remitted to the determining authority, unless the national legislation allows the applicant to set out in person all of their arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of that directive.
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EASO: Asylum Report 2020
In June 2020, the European Asylum Support Office published its Annual Report on the Situation of Asylum in the European Union.
The report provides key developments in the field of asylum in EU Member States and EU+ States. It is intended to provide accurate information to policymakers, national asylum authorities, researchers and practitioners. The documents presents selected case law and highlights the emerging trends and effectiveness of asylum systems at a European and national level.
The report provides detailed information on, inter alia, major developments in asylum in the EU throughout 2019; an in-depth examination of specific areas of asylum in Europe, including the Dublin procedure and protection for vulnerable groups; and developments in asylum legislation at a national level.
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United Nations
Working Group on Arbitrary Detention: Holding asylum applicants in Hungarian transit zones amounts to arbitrary detention
On 5 June 2020, the Human Rights Council published the opinion adopted by the Working Group on Arbitrary Detention (WGAD) (No. 22/2020) at its 87th session on the alleged arbitrary detention of Saman Ahmed Hamad in a Hungarian transit zone.
Mr Hamad, an Iraqi national, entered Hungary in August 2017 through a transit zone. His application for asylum was rejected and he brought a number of appeals. During this time, he objected to his continued placement in the transit zone until a final decision on his application had been made. He complained, inter alia, that the the living conditions were deplorable and there was no legal basis for holding him in the transit zone. He therefore argued that his placement in the transit zone was not a simple restriction of freedom of movement, but amounted to a deprivation of liberty as a direct result of exercising his right to seek asylum.
The WGAD first observed that the alleged deprivation of liberty must be examined in light of the individual circumstances of the case while taking into account a wide range of factors including, inter alia, the free consent to remain in the transit zone, any physical limits which may have existed, and the specificities of the imposed daily regime. The WGAD noted that the CJEU provided the most up to date examination of these facts. Indeed, in its judgment, the CJEU noted, inter alia, the use of high barbed wire fences; the monitoring of movements; and that applicants would lose the possibility to obtain international protection if they chose to leave the transit zone.
Concurring with these findings, the WGAD also referred to its recent observations from its 2018 visit to Hungary, in which it indicated the prevalence of guards and surveillance of those living in the transit zone. In light of the restrictive regime, the use of physical restrictions, and high degree of isolation, the WGAD concluded that Mr Hamad was deprived of his liberty and detained for the sole reason of submitting his asylum application. Moreover, the Hungarian authorities had failed to justify why such a deprivation was reasonable, necessary, and proportionate. As such, the placement of individuals in the transit zone amounted to arbitrary detention in contravention of Articles 3, 8, 9 and 14 UDHR and Article 9 ICCPR.
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UNCAT: Removal of complainants to the Russian Federation would not amount to violation of Article 3 CAT
On 30 July 2020, the Committee against Torture published its views in Z.K. and A.K. v Switzerland (No. 698/2015) on the removal of the complainants to Russia.
The case concerns Z.K. and her son, both of Chechen ethnicity. The first applicant’s husband was accused of belonging to the Chechen rebel movement and, as a result, their home had been subject to a number of military searches. To ascertain her husband’s whereabouts, Z.K. had also been attacked and repeatedly raped by a deputy commander of a battalion. As a result of this ongoing abuse, she fled Russia in 2013 for Switzerland, where her application for asylum was rejected. She complained that if returned to Russia, her and her son would be targeted and exposed to a real risk of torture in violation of Article 3 CAT. She further complained that the assertion that her account was not credible because she did not report the numerous rapes was unjustified and cynical, particularly as medical evidence had later been submitted.
The Committee observed that the applicant faced particular difficulties in recounting abuse as a result of trauma, stigma and shame. Indeed, referring to its General Comment No. 4, the Committee observed that a State should provide fundamental guarantees and safeguards, such as, inter alia, an examination and evaluation by a medical professional, particularly for those in vulnerable situations. Despite this, it noted the observations by the State party regarding the multiple inconsistencies and irregularities in the applicant’s claim regarding persecution and considered that the State party assessed sufficiently the complainant’s personal experiences and foreseeable risks in the event of return to Russia. Moreover, the Committee concluded that the State had complied with the above-mentioned requirement to ensure a medical examination, by enabling the complainant to undergo medical and psychological examinations and subsequent treatment.
The Committee therefore concluded that the first complainant had not discharged the burden of proof or demonstrated the existence of substantial grounds that they would be exposed to a real risk of a foreseeable, real and personal risk of torture within the meaning of Article 3 CAT.
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National Developments
Italy: Constitutional Court rules on the refusal to allow applicants of international protection to register their residence in local municipalities
On 31 July 2020, the Constitutional Court published its judgment (No. 186/2020) concerning the refusal to allow individuals waiting for a final decision on their asylum status to register their residence with the local municipality.
The judgment addresses the Constitutional legitimacy of Article 4 of Legislative Decree 18 Aug 2015 No.142, transposing Directive 2013/33, which outlines the rules for applicants of international protection to register their residence with local municipalities. The appellant seeks to ascertain, inter alia, whether the refusal to register personal data is in violation of the principle of non-discrimination between those awaiting a final decision on their status and Italian citizens and any other foreign nationals regularly resident in Italian territory.
The precariousness of the length of stay on Italian territory was cited as justification for differential treatment. However, the Court underlined, inter alia, that the presence of individuals who applied for asylum on the territory cannot be considered precarious because the average length of stay was determined to be at least one year and a half.
While there may be a need for the control and monitoring of the residence of foreign nationals on the territory, any difference in treatment between those with undefined status and other foreign nationals and Italian citizens must not be unreasonable. Indeed, by denying registration to those who have habitual residence, the Decree Law No.142 results in an unreasonable difference in treatment between individuals seeking international protection and other foreign nationals without justification. Such a difference in treatment may result in various challenges including, inter alia, the social stigma of exclusion and the impossibility to access key services. The Constitutional Court therefore concluded that depriving asylum applicants the legal recognition of their status as residents unreasonably affects their social dignity, protected under Article 3 of the Italian Constitution. It therefore declared Article 4 Decree Law 18 Aug 2015 No.142 to be constitutionally illegitimate.
Based on an unofficial translation by the EWLU team.
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UK: First Tier Tribunal erred in assessing a derivative right of residence for third country national
On 14 July 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment ([2020] UKAITUR EA041492019) determining whether the First Tier Tribunal (FTT) made an error of law in rejecting an application for a derivative residence permit.
The applicant is an Algerian national who entered the UK in November 2018 with an EEA family permit to reunite with his British citizen daughter. He later applied for a derivative residence card as a primary carer for his daughter, which was rejected by the Secretary of State and later by the FTT. The applicant argued that since arriving in the UK, he had regular contact with his daughter. Moreover, his ex-partner claimed that she would not be able to cope with parental duties alone and had urged the applicant to join her in the UK. He argued further, inter alia, that the FTT had failed to consider the totality of evidence and had incorrectly applied a Court of Appeal’s ruling stating that a derivative right of residence must be a last resort.
The Upper Tribunal (UT) first observed that the Supreme Court ruling in Patel and Shah, applying the CJEU ruling in Zambrano, which recognised the derivative right of residence to a person who relies on the relation with their British citizen child. Indeed, the Supreme Court’s ruling makes clear that a derivative right of residence is a practical test to determine a child’s compulsion to leave the UK in the event that a parent is not allowed to remain. However, this compulsion to leave arises due to an established relationship of dependency, rather than a ‘primary carer’.
The UT referred to the previous case law of the CJEU, which established that if a parent in such a position were to leave, the Court must consider, inter alia, the best interests of the child, their age, and the potential risks in the event of separation. Indeed, these factors and the decision of the Supreme Court in Petal and Shah were never considered. Moreover, there was evidence that the applicant’s ex-partner would be unable to cope alone and would likely leave the UK with him and her child. As a result, the UT concluded that the FTT materially erred in law by failing to approach the issue in light of the Supreme Court’s recent findings. The decision of the FTT is therefore set aside and the case remitted for a new hearing.
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