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ELENA Weekly Legal Update (EWLU)

13 March 2020
 

Summary


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

European Court of Human Rights


Communicated case against Belgium

Ngono v Belgium (Application No. 23057/19): On 9 March 2020, the European Court of Human Rights published the case of Ngono v Belgium, communicated in September 2019 and February 2020. The applicant suffers from diffuse hepatic angiomatosis and argues that in the event of return to Cameroon she would not have access to the necessary medical follow up appointments and adequate treatment. The applicant complains that her deportation would lead to a serious, rapid and irreversible decline in her state of health and a significant reduction to her life expectancy contrary to Article 3 ECHR. The applicant further complains under Article 13 that she did not have access to an effective remedy to challenge the decision rejecting her residence application.

Based on an unofficial translation by the EWLU team. 

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M.A v Denmark: Hearing at the Grand Chamber 18 March 2020 

The case of M.A v Denmark will be heard before the Grand Chamber of the European Court of Human Rights on 18 March 2020.

The case concerns a Syrian national who requested family reunification with his wife. The request was refused on the basis that it did not meet the legal requirements under Danish law and there were no special reasons to justify family reunification. He complains that the refusal of family reunification violated his right to private and family life and that domestic legislation discriminates against those who were granted temporary protection in cases of family reunification.

The Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber on 19 November 2019.

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European Union


CJEU: Request for a preliminary ruling on the interpretation of Directive 2004/38 

The Conseil du Contentieux des Étrangers in Belgium recently requested a preliminary ruling in case C-930/19 concerning the right of residence for non-EU nationals following the termination of a marriage or registered partnership to an EU national.

The referring Court invites the Court of Justice of the European Union to consider the following question: Does Article 13(2) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, in that it provides that divorce, annulment of marriage or termination of a registered partnership does not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where, inter alia, this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting, but only on the condition that the persons concerned show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements, whereas Article 15(3) of Directive 2003/86 of 22 September 2003 on the right to family reunification, which makes the same provision for the right of residence to continue, does not make its continuation subject to that condition?

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Council of Europe


New study on gender-based asylum claims and non-refoulement

On 10 February 2020, the Council of Europe published its new study entitled ‘Gender-based asylum claims and non-refoulement: Articles 60 and 61 of the Istanbul Convention’.

The study aims to support the implementation of Articles 60 and 61 of the Istanbul Convention by providing policy makers and border and immigration officials with practical advice, information and examples of forms of gender-based violence that may be recognized as persecution. The study also identifies how the gendered dimensions and protection needs of women seeking international protection have been largely overlooked, leaving significant gaps in protection.

The paper also discusses the additional protection of non-refoulement principle, and concludes with a summary of requirements of provisions affecting asylum seeking and refugee women. These requirements include, inter alia, the need to ensure: that gender-based violence is recognized as a form of persecution; consideration is given to an applicant’s personal circumstances; a gendered understanding is used when assessing the grounds for granting international protection status.

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Launch of the HUDOC-GREVIO database

On 3 March 2020, the Council of Europe launched the HUDOC-GREVIO database.

The Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) is the independent body responsible for monitoring the implementation of the Istanbul Convention. The database provides access to, inter alia, baseline evaluation country reports, which highlight positive initiatives and provide recommendations to improve the situation of women facing violence.

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National Developments


UK: Country guidance on risk of return to Iran in the event of conversion to Christianity

On 20 February 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment in the case of PS (Iran) v Secretary of State for the Home Department [2020] UKUT 46 (IAC) concerning the potential risk of persecution due to conversion to Christianity in the event of return to Iran. 

The applicant made an application for asylum after arriving in the UK from Iran in 2013 due to his fear of persecution for his imputed political opinion. The request was rejected. In May 2015, the applicant began attending the Coverdale Christian Church in Manchester and was later baptized. He subsequently made a new asylum claim based on his conversion to Christianity. The First Tier Tribunal found that, due to the applicant’s superficial knowledge of the religion and the haste of his baptism, that his conversion had not been genuine.

The Upper Tribunal found, inter alia, that the applicant had no prior connection with any persons of interest in Iran. It added that while the Iranian authorities would be aware of his claim for asylum due to the need for special travel documents to return to his country of origin, he would likely only be required to sign an undertaking promising that he would not undertake Christian activities. The Upper Tribunal therefore concluded that while the applicant may be placed under surveillance and questioned, he would face a negligible risk in the event of return and would not be of special interest to the authorities.

The Upper Tribunal also provide updated country guidance applicable to international protection claims from Iranians found to have made a genuine conversion to Christianity. It observed, inter alia, that Christians face entrenched discrimination in Iran and an increased likelihood of arrest, prosecution and imprisonment. It adds that while arrest figures are not exact, those perceived to be leaders or Christian activists face an added risk of harm. Indeed, those practicing Christianity may do so largely in the private confines of their own home in order to avoid arrest. As such, an effective ban on collective worship amounts to a severe violation of religious freedom and may amount to persecution due to the harm that must be suffered in pursuit of enjoying such a right.

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Italy: Insecurity and tension in Ivory Coast is justification for humanitarian protection 

On 4 February 2020, The Tribunal of Genoa granted humanitarian protection to an Ivorian applicant on the grounds of the current instability in his country of origin and his relevant integration into the Italian society.

The applicant left the Ivory Coast in 2014 due to a fear of persecution on the ground of his conversion to Christianity. The Court observed that, although the case did not satisfy the requirements of international protection, the applicant fled from the Ivory Coast after finding himself in a situation of severe deprivation due to the intense political and economic tensions. The conditions in the country had worsened since 2017, with an increase of sporadic violence and uncertainty around the future of the nation. In the event of return to his country of origin, the applicant would find himself in a situation of extreme vulnerability. This vulnerability should also be assessed in terms of a potential return to Libya, where the applicant stayed in substandard conditions prior to arriving in Italy.

The tribunal further noted, inter alia, that the applicant was committed to his integration in Italy: he had committed to learning Italian and attended professional training to increase his chance of finding a job. For these reasons, the Court found that the applicant's return to the Ivory Coast presented a risk and granted him humanitarian protection.

Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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Greece: Law amendment regarding the provision of material reception conditions and acquisition of citizenship by refugees

A recent Greek law (L. 4674/2020, Government Gazette – A’ 53/11.03.2020) has introduced amendments regarding the departure of recognised beneficiaries of international protection from housing facilities, as well as changes in the acquisition of citizenship by refugees.

Article 111 of the new law amends Article 114 of L. 4636/2019 (Law on International Protection) and stipulates that material reception conditions, provided in kind as well as in financial support, are terminated following the issuance of a decision granting refugee or subsidiary protection status. Beneficiaries residing in housing facilities are required to leave within 30 days following the notification of decisions recognizing their international protection status. Especially for unaccompanied minors, the aforementioned deadline starts from the age of majority. Specific arrangements for notification of the decision to the manager of the housing facility are provided, in case the beneficiary is not located. A decision of the Minister for Migration and Asylum will determine which categories of beneficiaries may benefit from continued provision of material reception conditions and an extension of departure deadlines.
 
Article 94 of the same law removes recognised refugees from the list of aliens eligible for Greek citizenship following a reduced legal residence requirement of 3 years (Article 5 of the Greek Citizenship Code). Refugees will now have to apply for naturalization as other lawfully residing migrants, that is after 7 years of legal residence.

Thank you to Stavros Papageorgopoulos, Legal Officer at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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ECRE


AIDA: Updated Country Report on Hungary

The updated AIDA report on Hungary is now available online. The updated report documents developments in asylum procedures, reception conditions, detention of asylum seekers and the content of international protection in Hungary throughout 2019.

Detention remains a frequent practice, rather than an exceptional measure in Hungary. The report notes that majority of the people seeking international protection are being held in the Röszke and Tompa transit zones. Moreover, it describes litigation on the issue, including cases brought before the ECtHR, as well as reports and statements by the UN bodies, the CoE and the EC concerning the deprivation of asylum seekers’ freedom of movement in the transit zones.

The report notes that 2019 was further characterized by a very low international protection recognition rate (rejection rate is 91.5%) and extremely lengthy asylum procedures. For those who have obtained international protection status in Hungary, the circumstances remain dire. Since in 2016 the Hungarian state has completely withdrawn integration services provided to beneficiaries of international protection, they are often left in a position of destitution. Only non-governmental and church-based organisations provide the needed services aimed at integration such as housing, assistance with finding an employment, learning Hungarian language or family reunification.

This is an edited version of an article originally featuring on the AIDA website managed by ECRE. Thank you to Petra Baeyens, senior legal officer at ECRE, for assisting with the summary. 

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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 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 (jzelvenska@ecre.org).






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