ELENA Weekly Legal Update (EWLU)

22 January 2016


European Court of Human Rights European Union National Developments NGOs

European Court of Human Rights

M.D. and M.A. v. Belgium (no. 59689/12) [Articles 3 & 13 ECHR], 19 January 2016

The case of M.D. and M.A. v. Belgium relates to a Russian couple who lodged a first claim for asylum in Belgium in 2007. The Immigration Office considered the claim inadmissible, reasoning that a personal vendetta did not amount to a ground for asylum. The Commissioner General for Refugees and Stateless Persons upheld the refusal upon appeal finding that the applicants’ account lacked credibility. They requested a cancelation of this decision from the Conseil d’Etat but failed to attend the hearing and were then notified of an order to leave the territory.

The applicants lodged three more asylum claims. The Immigration Office refused to consider these on the basis that no new evidence or elements had been raised which showed serious indications of a well-founded fear of persecution or serious harm, since the previous asylum application. These decisions were upheld in appeals to the Council of Aliens Law Litigation under the extreme urgency procedure, with actions for annulment also being dismissed. In September 2012, the ECtHR granted interim measures preventing their deportation to Russia. The applicants alleged that they would be subject to ill-treatment contrary to Article 3 ECHR upon return to Russia.

The Court noted that the procedures followed by the Belgian asylum authorities in this case, by refusing to consider the fourth asylum claim, was consistent with domestic law. However the approach taken to the consideration of whether there were new elements was too restrictive, failing to meet the standard of careful and rigorous examination required to ensure effective protection against Article 3 harm. The evidence put forward as new material was rejected based on the fact that according to the date it could have been produced in an earlier claim, with no assessment of its relevance, authenticity or probative value. The explanations of the applicants as to why they could not provide these documents earlier were also not considered. This imposed an unreasonable burden of proof on the applicants. In the absence of a review by the national authorities of the risk incurred by the applicants, in view of the documents submitted in support of their fourth asylum application, the authorities did not have sufficient evidence to be assured that they would not be at risk of Article 3 harm if deported to Russia.  As such, failing to do so would lead to a violation of Article 3 ECHR.

Based on an unofficial ELENA translation.

Sow v. Belgium (no. 27081/13) [Articles 3, 13], 19 January 2016

The case of Sow v. Belgium relates to a national of Guinea who claimed asylum in Belgium as she had partially undergone FGM and claimed to be at risk of re-excision upon return. Her asylum claim was rejected by the Commissioner General for Refugees and Stateless Persons (CGRA) due to inconsistencies, a lack of credibility, and the failure to demonstrate a risk of being re-excised. The Council of Aliens’ Law Litigation (CALL) upheld this decision. A second asylum claim with new documents was also rejected by CGRA and CALL, and the applicant received an order to leave the territory. She lodged a third asylum application, which the CGRA refused to consider as no new elements had been submitted. Her request for suspension of the expulsion order under the procedure for extreme urgency was rejected. However the ECtHR granted an interim measure preventing her deportation.

The applicant alleged that she was at risk of harm contrary to Article 3 ECHR upon return to Guinea; and that she had no effective remedy to challenge her removal contrary to Article 13, due to the non-consideration of her third asylum claim arguing that article 3 required an ex nunc examination.

The Court dismissed the objections raised by the Belgian government as to the admissibility of the challenge on grounds of non-exhaustion of domestic remedies, as these did not have suspensive effect or were otherwise inadequate. It noted that the CGRA had subjected the first asylum application to a detailed and thorough examination. Its conclusion that the applicant was not at risk of re-excision upon return to Guinea was partially based on a report showing that this risk covered certain categories of persons to which the applicant did not belong. The ECtHR found nothing in this assessment arbitrary or manifestly unreasonable. It was immaterial that CALL had acknowledged a risk of re-excision for young women in Guinea in other cases, based on the particular individual circumstances. As such there would be no violation of Article 3 to deport the applicant to Guinea.

Turning to Article 13, the Court considered that it was legitimate for States to provide specific rules to reduce repetitive and abusive, or manifestly unfounded asylum applications. National authorities could not be required to make ex nunc examinations of each new asylum application where the alleged risk had already been subject to a rigorous and careful examination in a previous asylum claim, unless new facts were presented. In this case, the risk to the applicant of re-excision was examined in the first asylum decision, and the new documents (medical reports) submitted were probative of a fact that was not in dispute that had already been considered. The Court therefore found no violation of Article 13 ECHR.

Interim measures remain in place until the judgment becomes final.

Based on an unofficial ELENA translation. 

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H.A. v. Greece (no, 58424/11), [Article 3, 5(1), 5(4) ECHR], 21 January 2016

The case of H.A. v. Greece relates to a national of Iran who arrived in Greece in August 2010. He was arrested by police and an order was made to remove him to Turkey. This was not carried out as the Turkish authorities refused to admit him. He was detained at the Soufli detention centre pending his expulsion, initially for three days, and then extended to six months. In December, with the assistance of lawyers he challenged his detention relying on the impossibility of his expulsion and the poor conditions at the Soufli detention centre. This was rejected by the Administrative Court on the basis that he posed a risk of absconding given that he had entered the country illegally and lacked evidence to establish his identity. The argument relating to his conditions of detention was deemed inadmissible.  He requested this decision to be revoked on the basis that he could be hosted by an NGO, which was granted by the Administrative Court, and he was released after five months in detention.

The Court noted that in its case law it had already found that Greece exposed individuals at Soufli detention centre to degrading treatment contrary to Article 3 ECHR on account of the overcrowded conditions and poor hygiene, and saw no reason to depart from this finding.

In relation to the lawfulness of his detention, the Court considered that the applicant’s initial detention was justified by Article 5(1)f) and had a basis in domestic law. However, the Greek authorities had not taken any steps in the five months following Turkey’s refusal to admit the applicant to carry out the expulsion, failing to act with due diligence. This led to a violation of Article 5(1)f) ECHR.

The Court noted that at the relevant time, domestic law only allowed the Administrative Court to review the legality of detention on the basis of flight risk or danger to public order, and not the legality of the removal decision which formed the ground for detention or conditions of detention. Although Greek law had subsequently been amended, at the material time the applicant had no effective judicial remedy to challenge his detention pending expulsion, in violation of Article 5(4) ECHR.

Based on an unofficial ELENA translation. 

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European Union

European Asylum Support Office (EASO): Country of Origin Information report on security situation in Afghanistan 

EASO has published a Country of Origin Information report on the security situation in Afghanistan which updates a previous report, and provides information on elements relevant to determining eligibility for protection for Afghan asylum seekers. The report was written by EASO in conjunction with a number of national asylum and migration departments and covers events up until December 2015.

The report notes that in the second half of 2015 there was a rise in civilian abductions and unpredictable violence, including in the cities. In addition, armed insurgent groups are increasingly successful in conducting large-scale attacks on the Afghan National Security Forces and in taking and holding territory. This trend is evidenced by the Taliban taking the city of Kunduz in Spetembr 2015 which severely affected the civilian population. The report describes the security situation in each of the 34 provinces of Afghanistan and Kabul, observing that there are significant regional differences.  

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National Developments

UK: Upper Tribunal orders Secretary of State for the Home Department to admit four asylum seekers in Calais to the UK 

In a landmark decision by the Upper Tribunal on 21 January 2016, it has ordered the Secretary of State for the Home Department to admit four asylum seekers, currently residing in the ‘Jungle’ in Calais, to the UK, with a view to determining their applications under the Dublin III Regulation. The four applicants are nationals of Syria, including three unaccompanied minors and the adult dependent brother of one of them, who suffers from mental health problems. Each has a brother in the UK who has been recognised as a refugee. The Tribunal heard evidence on the trauma suffered by the applicants in Syria, as well as in Calais, due to the dire humanitarian conditions at the ‘Jungle’ camp.

The judicial review challenge was based on the argument that the applicants should have their asylum applications processed in the UK based on the family unity provisions of the Dublin III Regulation.This would require them to apply for asylum in France, and the French authorities to request the UK authorities to ‘take charge’ of their applications. However the Upper Tribunal judges accepted the argument that these provisions were not functioning as they should due to bureaucratic failings, thereby preventing the applicants from accessing the UK in a safe and legal manner. Evidence of a written claim for asylum in France would be sufficient to prove that the applicants had initially sought safety there, with no need for them to wait for the French authorities to act. The UK government must now admit the applicants to live with their siblings while their asylum claims are being assessed under the Dublin Regulation.

The ELENA Weekly Legal Update would like to thank Charlotte Kilroy for providing us with a copy of the order. Further information on this case will be shared once the full judgment is available. 

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UK: Solicitors Regulatory Authority report on quality of legal services for asylum seekers

Research published by the Solicitors Regulation Authority in the UK has found a number of barriers faced by asylum seekers in the UK to getting quality legal advice on their claims.

These are partly due to a lack of awareness of the legal process by asylum seekers and difficulties in accessing legal advice due to the system of allocation of legal aid providers. Concerns are also raised as to the competence of some solicitors, with poor quality advice being given. Action is being taken to investigate some of these allegations given the consequences for vulnerable asylum seekers requiring legal advice and support.   

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International Committee of Jurists: Intervention in M.B. v. Spain (no. 15109/15)

The ICJ has lodged written submissions to the ECtHR in the case of M.B. v. Spain, which relates to the attempted removal of a lesbian asylum applicant to Cameroon.

The ICJ argues that requiring coerced concealment of sexual orientation or identity in order to purportedly mitigate the risk of Article 3 harm upon removal is incompatible with the ECHR and would constitute arbitrary refoulement. With regard to criminalisation of consensual same-sex conduct, it argues that the existence of such laws show dispositive evidence a real risk of treatment contrary to Article 3, including in countries where they have not recently been enforced; or in the alternative raises a strong presumption of such risk which should place the burden on the State to rebut this.  

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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 Zarina Rahman (, or Julia Zelvenska (

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