ELENA Weekly Legal Update - 19 June 2015
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19 June 2015



European Court of Human Rights

Grand Chamber: displaced refugees’ lack of access to property following Nagorno-Karabakh conflict 

Sargsyan v. Azerbaijan (no. 40167/06); Chiragov and Others v Armenia (no. 13216/05) [Article 1 Protocol 1, Article 9, Article 13, Article 14; 16 June 2015]

On 16 June 2015, the Grand Chamber of the ECtHR handed down two judgments relating to refugees whose complaints related to the loss of their homes and properties when they fled in 1992 due to the Armenian-Azerbaijani conflict in Nargorno-Karabakh, their inability to return, and the lack of compensation or remedy in respect of these matters. Each case was decided by a majority of 15-2, with separate dissenting opinions provided.

The case of Sargsyan v Azerbaijan related to an Armenian refugee who had fled his village in Azerbaijan. The case of Chiragov and Others v Armenia related to six Azerbaijani Kurds who fled from Azerbaijan and could not return to their homes as a result of Armenian occupation.
The applicants in both cases relied on Article 1 Protocol No. 1 (right of access to property), Article 8 (right to respect for family and private life), Article 13 (right to an effective remedy) and Article 14 (prohibition on discrimination) ECHR.

The Court found that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories, and that although Mr Sargsyan’s village of Gulistan was in disputed territory, Azerbaijan exercised effective control and therefore had jurisdiction.

As long as the applicants were unable to access their property the State had a duty to take alternative measures in order to secure their property rights in order “to strike a fair balance between the competing public and individual interests concerned”. The fact that there were ongoing peace negotiations did not absolve either government of this duty towards displaced refugees. Similarly, while Azerbaijan was justified in refusing Mr Sargsyan and other civilians access to Gulistan due to safety concerns, it was necessary for it to take alternative measures to ensure that his rights were respected.

The inability of the applicants to access their former places of residence where they had lived for the majority of lives and formed their social ties engaged Article 8. The Court found ongoing violations of Article 13 as neither government had been able to show any effective domestic legal remedy capable of providing redress in respect of the applicants’ complaints. This was particularly in view of the ongoing hostile relationship between the two countries with no prospect of a political solution thus far. For the same reasons, there were ongoing violations of Article 1, Protocol 1 and Article 8. The Court considered that no separate claim arose under Article 14 in either case.

To prevent ongoing violations, the Court suggested that each State establish a property claims mechanism, which should be easily accessible, with flexible evidentiary standards, to allow the applicants and others in their position to have their property rights restored and to obtain compensation for the loss of their enjoyment. The Court reserved its decision on Article 41 (just satisfaction), due to the exceptional nature of the cases, with further procedures to be fixed with due regard to any agreements that may be reached between the parties.

There are currently more than one thousand individual applications pending before the ECtHR from persons displaced during the Nagorno-Karabakh conflict. 

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L.O. v France (no. 4455/14) [Article 3, 18 June 2015]

This case relates to a Nigerian national who moved to France in 2010 after being told by A. that she could earn money working in France as a babysitter for his children. A. made all the administrative arrangements for her departure. Upon arrival to France, she was confined in A.’s apartment for a week and was repeatedly raped. He forced her into prostitution, explaining that she owed him 50,000 euros for her travel and accommodation costs and would have to pay 1,000 a month. She was beaten and raped by A. if she was unable to pay, and he threatened her family in Nigeria.  
In 2011, under A.’s instructions, the applicant claimed asylum on the basis of a risk of FGM and arranged marriage. Her claim was refused by the French authorities in 2013, and she was arrested, detained and notified of her obligation to leave French territory. She filed a request for review of her asylum application claiming that she was victim of a network of human trafficking and that she had been unable to reveal this in her original asylum claim due to pressure from her trafficker. Her application was rejected.
In her complaint to the ECtHR, the applicant alleged that her return to Nigeria would expose her to a real risk of treatment contrary to Article 3 ECHR (prohibition of inhuman or degrading treatment), as her trafficker had threatened to harm her and her family if she did not pay her alleged debt to him.
The Court noted that the applicant’s description of how she was led into prostitution in France, was detailed and consistent with numerous reports from reliable sources. It found that the fact that the applicant had lied to the authorities in the past, did not deprive her later statements of probative value, given that this was common for victims of prostitution. However, it was not apparent that she was still under A.’s influence, or that he was part of a human trafficking network.
It found that the Nigerian authorities were able to offer her sufficient protection to protect against any risks and provide her assistance upon return, relying on its previous finding in V.F. v France (no. 7196/10) and the more recent country reports. The Court therefore concluded that there were no serious and current grounds to believe that the applicant would be at real risk of treatment contrary to Article 3 upon return to Nigeria, and rejected her application as manifestly ill-founded, ending Rule 39 interim measures.
Read the judgement of the European Court of Human Rights here (in French only).
Based on an unofficial ELENA translation.

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European Union

CJEU: Case C-155/15 Karim, reference for a preliminary ruling – Dublin III Regulation

The questions referred by the Swedish Migration Board, which are summarised here, have now been published in English in the Official Journal of the European Union. 

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European Migration Network: ad-hoc query on asylum proceedings and returns to Somalia 

The European Migration Network has compiled responses from 17 EU countries which provide information on current national policies with regard to asylum seekers from Somalia. This covers the application of the concept of internal flight alternative, forced returns, language analysis tests and numbers of Somalian asylum applicants over the past 12 months.  

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National Developments

Belgium: Council of State ruling on medical age assessments 

This case relates to a Congolese national who claimed asylum in Belgium in November 2014, giving her date of birth as 5 May 1998. The Belgian authorities opened her case as an unaccompanied asylum-seeking minor (UAM), but because it doubted her claimed age due to her physical appearance, they requested her to undergo medical examinations.

These gave differing results: a dental exam indicated that she was 20.6 but had a margin of error of 1.51 years; the x-ray of her wrist and hand indicated that she was 17 with a 2.5 year margin of error and a clavicle x-ray showed that she was 20 with a margin of error of 2.1 years. On the basis of these results, the Aliens Office considered her to be older than 18 and terminated her care by the Guardianship Service on 13 January 2015.

The applicant urgently challenged this decision, as it meant that she was not assisted by a guardian at administrative procedures which would cause her severe prejudice with regard to the asylum process, as well as causing irremediable damage with regard to her education, and negatively affecting her access to accommodation and social assistance.

She relied on article 7(3) of the Belgian law on UAMs, which states that in case of doubt, the lowest possible age should be considered, submitting that this was applicable as the use of x-rays to determine age was inherently unreliable. The Belgian government relied on the fact that the author of the medical report had not expressed any doubt in coming to the final conclusion that the applicant was over 18 so article 7(3) did not apply.

The Council of State considered that the tests gave contradictory results and did not exclude the possibility that the applicant was younger than 18. The Belgian authorities had to justify the legality of their actions, and could not demonstrate the absence of doubt in the medical results. It therefore found a violation of article 7(3) and annulled the decision of 13 January 2015.

 The ELENA Weekly Legal Update would like to thank Franz Geleyn for sharing this judgment, which is not yet final. 

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Netherlands: Raad van State – latest rulings on post-Tarakhel individual guarantees prior to removal to Italy 

The Raad van State (Dutch Council of State) in two separate rulings dated 9 June 2015 and 15 June 2015 has allowed the appeals of asylum seeking families with minor children, who complained that transfer to Italy would be contrary to Article 3 ECHR, as no assurances had been received from the Italian authorities that they would be granted adequate reception facilities and kept together. The contested decisions in these cases pre-date the ECtHR’s Tarakhel judgment and as such, no individual guarantees were given before the Dutch authorities decided to transfer the applicants to Italy.

The rulings follow the guidance set out in the Raad van State’s ruling of 20 May 2015, which considered the judgment in Tarakhel and stated that provided that the following conditions are met prior to transfer to Italy, there would be no violation of Article 3: 
  • The Dutch authorities receive a letter from the Italian authorities mentioning the asylum seeker and her children, stating that they will be granted adequate reception and be kept together
  • The Dutch authorities give the Italian authorities 15 days’ notice of the date of transfer
  • The Italian authorities then communicate the specific place of accommodation for the individuals concerned
  • No transfer to Italy can take place until this information has been obtained.
The ELENA Weekly Legal Update would like to thank Sadhia Rafi for providing us with information about these judgments 

UK: High Court finds appeals procedures on the ‘Detained Fast Track’ unlawful 

On 12 June 2015, the High Court ruled that  the UK’s procedural rules for appeals on the Detained Fast Track were ultra vires as they did not allow justice to be done.
The First-Tier Tribunal Procedural Rules provide for an accelerated appeals procedure for asylum seekers whose claims have been rejected by the Home Office, who are detained in designated centres throughout the consideration of their appeal. The current Rules came into force on 20 October 2014 following consultations by the Tribunal Procedure Committee which acknowledged concerns, endorsed by all of the consultees except the Home Office, that the Rules created injustice as appellants would not have a reasonable opportunity to prepare and present their appeals.

In the course of argument, lawyers for NGO Detention Action which brought the challenge, listed the tasks which a representative generally has to complete within the 7 working days between a refusal decision and the substantive appeal hearing [23], and gave examples of how this had unfairly affected applicants. Judge Nicol accepted that these difficulties were real, rather than just theoretical or illusory [59].

He found that the Rules incorporated ‘structural unfairness’ due to the ‘serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the respondent to the appeal’[61].The disadvantage is heightened by the fact that the appellant will necessarily be detained.

There was no analogous situation in other litigation contexts where one party to an appeal was allowed to put the other at such disadvantage without sufficient judicial supervision [78-81]. The unfairness is not cured by the power of a judge to adjourn a case or take it out of the Fast Track due to the limitations on these powers, and the fact that the onus is on the appellant to demonstrate these matters within the same 7 working days as preparing for the substantive appeal [63].

In conclusion, the Court found that the Fast Track appeal Rules do not secure that justice is done or that the tribunal system is fair, and as such there was no legal authority to make them or allow them to continue. They did not meet the irreducible minimum of due process, bearing in mind the appropriate degree of fairness that asylum appeals require.

Despite this finding, Judge Nicol put a stay on his order quashing the Rules to allow the government to appeal against his judgment. Detention Action is appealing the order refusing the stay to prevent Fast Track appeals taking place under an unlawful procedure.  

Further analysis of the decision can be found on the Free Movement immigration law blog by UK barrister Colin Yeo. The judgment comes after other recent legal challenges to aspects of the Detained Fast Track system, reported on in the Weekly Legal Update here and here

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FGM country profile report: Senegal  

28 Too Many has published a new country profile on Female Genital Mutilation (FGM) in Senegal, which reports that an estimated 25.7% of girls and women aged 14-59 have undergone FGM. 

Asylos: June asylum research update

Asylos, which produces free research notes at the request of lawyers representing asylum seekers through a European network of volunteers, has released its research update for June.
Subscribe  to Asylos’ monthly newsletter to receive news about new research notes. 

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