ELENA Weekly Legal Update (EWLU)

07 April 2017


European Court of Human Rights European Union Council of Europe National Developments ECRE

European Court of Human Rights

Muzamba Oyaw v. Belgium (no. 23707/15) [Articles 8 and 5 § 1], 28 March 2017, 4 April 2017

On 4 April 2017, the European Court of Human Rights communicated its decision in case Muzamba Oyaw v. Belgium (no. 23707/15) by unanimously declaring the application inadmissible. The case concerned the administrative detention of a Congolese national with a view to his deportation while his partner, a Belgium national, was pregnant. The applicant had applied for asylum and submitted an application for a residence permit as the partner of a Belgian national. He was later arrested as he did not comply with several expulsion orders. First, the ECtHR found his complaint under Article 5 § 1 manifestly ill-founded since his detention was justified for the purposes of deportation, the domestic courts had adequately assessed the necessity of the detention and its duration (less than three months) had not been excessive. Second, the ECtHR also declared manifestly ill-founded his complaint under Article 8. It recognised that the detention resulted in an interference with his right to a family life, but stressed that the interference had a basis in national law, had pursued a legitimate aim and had been proportionate. In this regard, the ECtHR noted that the applicant’s family life had developed while the applicant knew about his situation before the immigration authorities, which would potentially impact the relationship with his family.

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Thimothawes v. Belgium (no. 39061/11) [Article 5 § 1], 4 April 2017

On 4 April 2017, the European Court of Human Rights delivered its judgment in case Thimothawes v. Belgium (no. 39061/11), which concerned an Egyptian asylum-seeker who was detained for five months at the Belgian border. The Court found no violation of Article 5 § 1 of the Convention. In the judgment, the Court reiterated that any measure depriving a person of his liberty has to be prescribed by law. The Court further stated that it was incumbent on the national authorities to interpret domestic law in conformity with European Union law. Save in the case of an arbitrary or manifestly unreasonable interpretation, the Court confines itself to assessing the compatibility of the effects of that interpretation with the Convention.

In the present case, the scrutiny of lawfulness conducted by the domestic courts of the detention order had taken account of the case law of the Court related to Article 5 § 1 f) of the Convention. The Court finds that as the applicant received special attention in the two closed centres where he stayed,  the issue of the applicant’s mental health was not, on its own, sufficient for a finding that his detention had been arbitrary. Finally, taking into account the facts of the case, the Court found that his period of detention had not been unreasonably long, and thus the deprivation of liberty was not disproportionate.

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

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Thuo v. Cyprus (no. 3869/07) [Article 3], 4 April 2017

On 14 March 2017, ECtHR gave its judgment in case Thuo v. Cyprus (no. 3869/07). The case concerned a Kenyan national who complained being ill-treated when deported from Cyprus to Kenya as well as about his detention conditions in Nicosia pending his deportation. He lodged complaints with the Cypriot authorities nine and eleven months after his deportation, describing in detail his allegations of ill-treatment. An official investigation was launched in July 2009, for which Mr Thuo temporarily returned to Cyprus. However, the domestic authorities concluded that he had lied about his alleged violations and accepted the immigration officers’ testimony that the use of force had been necessary. The Attorney General endorsed these findings at a later stage and no criminal or disciplinary action was ever taken against the officers.

Concerning the violation of Article 3 with regard to the alleged ill-treatment during his deportation, the Court dismissed the Cypriot inadmissibility request as, despite the domestic investigation, the applicant had not obtained acknowledgement of a breach of Article 3 nor had had any redress. The Court went to find substantial issues in the investigation, such as the lack of efforts by the investigator to organise face-to-face confrontations between the police officers and the applicant and his unwillingness to explain discrepancies between initial and later statements made by the officers in question. The ECtHR found that the national authorities gave full weight to the police officers’ account and disregarded the detailed description provided by the victim. Therefore, the Court found a violation of Article 3 in its procedural limb. As with regard to the alleged ill-treatment itself, the Court could not establish whether the applicant had been in fact subject to ill-treatment during his deportation, since the evidence put before the ECtHR was deemed insufficient and further undermined by the lack of effective investigation by Cyprus.

Finally, the ECtHR found a violation of Article 3 as regards the applicant’s conditions of detention for nearly sixteen months in Nicosia Central Prison. The ECtHR followed the general principles set by the Grand Chamber in Muršić v. Croatia and reaffirmed that when the personal space available to a detainee falls below 3 sq. meters there is a strong presumption of violation of Article 3, and it is on the respondent government to rebut this belief. Since the applicant had 2.73 sq. meters of personal space and had been detained for a long period of time in a facility designed for short stays, the Court found a violation of Article 3.

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European Union

CJEU: AG Opinion in Case C-348/16 Sacko, 6 April 2017

On 6 April 2017, Advocate General Campos Sánchez-Bordona gave his opinion in Case C-348/16 Sacko v. Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano (Italy), related to the interpretation of the recast Asylum Procedures Directive (APD) with regards to the need to afford an applicant a further opportunity to be heard before the appellate authorities when the judicial review is deemed manifestly unfounded and the administrative authorities have already conducted a full examination of the lodged application, including by means of interviewing the applicant during the first instance proceeding. The Italian government submitted that even though its domestic legislation does not explicitly foresee the possibility of a hearing before the appellate authorities, it does not prohibit the judge to hear the appellant if this is deemed necessary.

According to AG Campos Sánchez-Bordona, the “right to be heard in person”, as a species of the genus “right to a hearing”, has its place in the administrative stage of the asylum procedure. However, at the judicial stage, the applicant has the right to set out (and, to that extent, to be heard) before the court the arguments in support of his claim, a right which cannot be equated to the right to be heard in person. Therefore, a remedy should be considered effective under Article 45 APD when the applicant (normally, through his legal adviser or other counsellors) is able to set out before the judicial authority the reasons why the contested decision is unlawful and if the judge is able to assess whether that decision is well founded. In the AG’s view, the “right to be heard” by a judicial authority does not include a presumed ‘right to be interviewed’ during the judicial proceedings. However, Member States should give the courts the opportunity to hear the applicant in person if it considers it necessary in order to carry out a full examination of the factual and legal circumstances of the asylum application as required by APD.

In sum, the AG suggests the CJEU to interpret the recast APD as allowing the competent judicial authority to decide appeals brought against a rejected asylum application without the need for a further personal interview of the applicant, when (1) the appeal is manifestly unfounded and (2) the decision is adopted after carrying out a full examination of the application in points of fact and law, including information contained in the personal interview conducted at the administrative stage.

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CJEU: Request for preliminary ruling from the Dutch Council of State (the Netherlands), lodged on 29 March 2017

The Dutch Council of State has referred preliminary questions to the CJEU on 29 March 2017, asking whether it follows from the Return Directive and the Asylum Procedures Directive that a higher appeal in an asylum case before the Council of State should have automatic suspensive effect.

The following questions are submitted to the CJEU for a preliminary ruling:

1. Does it follow from Article 13 of Directive 2008/115/EC (the Return Directive), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, that  EU law compels that a remedy of higher appeal, if national law provides this in proceedings against a decision which contains a return decision under Article 3, paragraph of Directive 2008/115/EC, has automatic suspensive effect, when the third-country national states that the execution of the return decision may lead to a serious risk of a breach of the principle of non-refoulement? In other words, is it required in such a case to prevent the expulsion of the third-country national concerned during the term to appeal, or if an appeal is brought, until that appeal is decided upon, without the third-country national concerned being obliged to submit a separate request for suspension?

2. Does it follow from Article 46 of Directive 2013/32/EU (the Asylum Procedures Directive), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, that EU law compels that a remedy of higher appeal, if national law provides this in proceedings regarding the rejection of an application for international protection, has automatic suspensive effect? In other words, is it required in such a case to prevent the expulsion of the third-country national concerned during the term to appeal, or if an appeal is brought, until that appeal is decided upon, without the third-country national concerned being obliged to submit a separate request for suspension?

3. Is it still relevant for the existence of the above mentioned automatic suspensive effect whether the application for international protection, which prompted the procedures of appeal and subsequently appeal to a higher court, was rejected on one of the grounds under Article 46(6) of Directive 2013/32/EU? Or does the requirement apply to all categories of asylum decisions, as mentioned in the Directive?

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

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Council of Europe

CoE's Group of Experts on Action against Trafficking in Human Beings (GRETA), Trafficking of children: experts highlight widespread problems

In its latest annual report, GRETA has highlighted important shortcoming in a number of European countries related to the trafficking of children. Many European states have fail to detect and protect children victims of trafficking, due to gaps in the identification procedures, a failure to appoint legal guardians and the lack of appropriate and secure accommodation.

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National Developments

UK: Upper Tribunal rules against Home Office attempt to postpone hearing of Calais unaccompanied minors, 28 March 2017

On 28 March 2017, the UK Upper Tribunal (Immigration and Asylum Chamber) ruled against the Home Office’s attempt to stay the proceedings of two unaccompanied minors who are currently in Calais and have been rejected reunification with their family members in the UK without being given substantial reasons for this rejection. The Home Office attempted to stay these proceedings until a decision is taken by the Administrative Court in case Citizens UK v. SSHD (CO/5255/2016), since they all relate to alleged systematic failings over reuniting unaccompanied minors in Calais with their family members in the UK.

However, although recognising that it would be “more convenient, less expensive and more comfortable” for the Secretary of State to stay the case of AO and AM, this intention is to be clearly outweighed by the individual right of the claimants to access a court, particularly in view of their vulnerable situation as unaccompanied, isolated teenagers suffering from major psychological trauma, which calls for an urgent judicial decision.

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EDAL: Two new blog posts on the CJEU ruling in case X. and X. (humanitarian visa)

This week, EDAL has published two new blogs on the X and X humanitarian visa judgment. The first blog “Looking like a cat, walking like a cat, sounding like a cat but actually being a dog: What the X and X judgment means for the scope of the EU Charter?”, written by Amanda Taylor and Caoimhe Sheridan, deals with the question of how the judgment affects the scope of EU law and the Charter of Fundamental Rights. The second blog “The Emergence of the Entry Human Rights Principle. Looking Beyond the X.X. Case” was written by Paolo Biondi. In this blog, the author focuses on some useful guidelines as suggested by the AG in his opinion. The author concludes that, despite the final decision of the CJEU, the question of admission based on undeniable humanitarian grounds is beyond the visa regime and EU law. Instead this derives from the effective enjoyment of the rights under CFR, the ECHR and the 1951 Refugee Convention which leads inevitably to the emergence of the duty to admit, the so-called “entry human rights principle”.

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Intervention by the AIRE Centre, the Dutch Council for Refugees, ECRE and ICJ in case H.A. and Others v. Greece

The AIRE Centre, the Dutch Council for Refugees, ECRE and the ICJ have submitted a third party intervention in case H. A. and Others v. Greece (no. 19951/16), which relates to the detention of nine unaccompanied minors (aged between 15 and 18), from Syria, Iraq and Morocco in Greek police stations.

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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 Julia Zelvenska (

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

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