ELENA Weekly Legal Update (EWLU)

24 June 2016


European Court of Human Rights

Grand Chamber Hearing in Khlaifia and Others v. Italy (16483/12)

On the 22nd of June, the ECtHR held a Grand Chamber hearing in the case of Khlaifia and Others v. Italy. On the 1st of February 2016, the case was referred to the Grand Chamber at the request of the Italian Government.

The case concerned three nationals of Tunisia who had been unlawfully detained upon arrival in Italy, and subject to collective expulsion.

ECRE and the AIRE Centre submitted a joint written intervention to the Grand Chamber on the 17th of May 2016, available here.   

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European Union

FRA: New Practical Guide on Access to Justice in European Law

On the 22nd of June, the European Union Agency for Fundamental Rights (FRA) and the Council of Europe with the Registry of the European Court of Human Right launched a practical handbook on European law relating to access to justice.

The handbook summarises the key European legal principles in the area of access to justice, focusing on civil and criminal law. It covers such issues as a fair and public hearing before an independent and impartial tribunal; legal aid; the right to be advised, defended and represented; the right to an effective remedy; length of proceedings; and other limitations on access to justice. It also examines access to justice by victims of crime; people with disabilities; prisoners and pre-trial detainees; and focuses on environmental law; and e-justice. The handbook is therefore complementary to the previously published handbook on European law relating to asylum, borders and immigration.

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National Developments

Denmark: Reassessment of Dublin Transfers to Hungary by the Danish Immigration Service 

On the 2nd of June 2016, the Danish Refugee Appeals Board, the appeal instance for Dublin transfer cases, decided that all cases concerning Dublin transfers to Hungary (around 300 cases) should be referred back to the Danish Immigration Service, the first instance for accessing Dublin cases. In short, the Appeals Board held that since October 2015 it had received substantial new information about the situation for asylum seekers in Hungary. The Danish Immigration Service should therefore reassess these cases accordingly. In October 2015, the Appeals Board had previously suspended all Dublin transfers to Hungary in order to properly investigate the reception of asylum seekers in Hungary.

The ELENA Weekly Legal Update would like to thank Dorte Smed, ELENA national coordinator for Denmark, for bringing this to our attention.

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Greece: Amendment to the Asylum Law (L 4375/2016) 

On the 16th of June, the Greek Parliament approved an amendment to its asylum law (L 4375/2016), modifying the composition of Appeals Committees and the right of asylum seekers to be heard in appeals against negative decisions.

The Appeals Committees will now consist of two judges of the Administrative Courts, appointed by the General Commissioner of the Administrative courts, and one UNHCR representative. A representative from a list compiled by the National Commission of Human Rights may take part in the Appeals Committees if UNHCR is unable to appoint a member.

In addition, the amendment has removed Article 62(1) of L 4375/2016, which allowed the appellant to request a personal hearing before the Appeals Committees at least two days before the appeal. This reinforced the general rule of examinations of appeals sur dossier, previously discussed in the AIDA report on Greece.

Based on the AIDA Article dated 16 June 2016, available here. For more information on the adoption of the Greek Law L4375/2016, please see the recently published AIDA Article.

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Netherlands: Hague District Court – Dublin Transfer Not in the Best Interest of the Minor  

In an interim judgment of 9 June 2016, the Hague District Court ruled that the State Secretary of Security and Justice failed to consider the individual circumstances of the asylum application of a child by rejecting his application based on the Dublin Regulation.

The application of an Afghan minor, who claimed asylum in the Netherlands, was rejected because the child had previously applied for asylum in Germany. The child had entered both Germany and the Netherlands accompanied by his so-called aunt and uncle. The minor later clarified that his ‘uncle’ was in fact the son of the cousin of his aunt. As several problems had arisen between the child and the family, the child was taken away from the family and placed under the guardianship of NIDOS, the organisation responsible for fulfilling the guardianship task for unaccompanied asylum seeking children.

The child claimed that his ‘aunt and uncle’ should not be considered his family. As his ‘aunt and uncle’ had in the same manner been transferred to Germany, the applicant argued that the German authorities would reunite the family notwithstanding their difficult relationship. This would clearly not be in the best interest of the child.  

The Hague District Court held that the ‘aunt and uncle’ could be considered family members per article 2 (h) of the Dublin Regulation. Nevertheless, the Court considered it sufficiently credible that the minor had been placed under the guardianship of NIDOS due to severe family problems. It would therefore be undesirable for the minor to be reunited with his ‘aunt and uncle’ when transferred to Germany. For this reason, the Hague District Court held that the Secretary for Safety and Justice had failed to consider the individual circumstances of the minor.

The Court obliged the Secretary for Safety and Justice to further investigate the individual circumstances of the minor’s transfer to Germany. In particular, it should investigate to what extent the minor would be forced to reunite with his family. 

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

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United Kingdom: UK Supreme Court - Preliminary Reference to the CJEU on the Qualification Directive

On the 22nd of June, the UK Supreme Court referred the following question to the CJEU:
“Does article 2(e), read with article 15(b), of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?” 

The case MP (Sri Lanka) v Secretary of State for the Home Department concerns a Sri Lankan national that arrived in the UK in January 2005 aged 28. The appellant claimed asylum on the ground that he had been a member of the Liberation Tigers of Tamil Eelan (LTTE), and had been detained and tortured by Sri Lankan security forces. He contended that on return he was likely to suffer similar ill-treatment. A report by a psychiatrist revealed that the applicant was suffering from a severe post-traumatic stress disorder and severe depression. Additionally, the applicant showed a high degree of suicidality. The Court of Appeal rejected his appeal on the basis that “the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of resources to deal with it in the receiving country”.

The appellant argues before the Supreme Court that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities. For this reason, the appellant’s return would cause him severe mental harm which would amount to a violation of Article 3 of the ECHR. Hence, he should in the same manner be granted subsidiary protection under the Qualification Directive. It makes no difference to his entitlement to subsidiary protection that there is no longer a risk of the ill-treatment which caused his current health status.

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United Kingdom: Age Assessment Based on Appearance Ruled Unlawful  

The UK High Court has ruled in AA v Secretary of State for the Home Department on the unlawfulness of the Home Office policy allowing to treat an unaccompanied asylum seeking child as an adult “if their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age.” In this landmark judgment, the High Court found it unlawful for the Secretary of State for the Home Department to detain children for longer than 24 hours, regardless of whether an immigration officer has reasonable grounds for suspecting that the applicant might be an adult.

The case concerned an unaccompanied Sudanese child, who applied for asylum in the UK in July 2014. The child was subsequently detained for 13 days. The detention was said to be justified because the Home Office policy allows for the detention of individuals claiming to be children but whose appearance suggest that they are over the age of 18. The child was eventually released based on an age assessment report conducted by a local authority.

The High Court held that the age of an individual should be decided “objectively as a precedent fact”. This age determination of the Sudanese boy could therefore not rely on the reasonable beliefs of an immigration officer. As a result, the detention of the child was held unlawful because the applicant was unaccompanied and under the age of 18.  

Based on the AIDA Article dated 21 June 2016, available here.

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ECRE/ELENA: Information Note on Family Reunification for Beneficiaries of International Protection in Europe

On the 20th of June, ECRE/ELENA published an Information Note on Family Reunification for Beneficiaries of International Protection in Europe presenting an overview of some of the most pertinent legal aspects of family reunification within Europe.  

The note provides an overview of the applicable legal framework for family reunification in international and EU law, detailing relevant jurisprudence from the European Court of Human Rights and the Court of Justice of the European Union, as well as highlighting useful jurisprudence in national contexts. It also includes the chapters on the status of the sponsor, the scope of family members, documentation and evidentiary requirements, the length of the family reunification procedure and how Dublin family unity cases can impact the Family Reunification Directive. It therefore provides guidance on how provisions on family reunification should be interpreted in a manner that fully complies with international law and fundamental rights.

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EDAL: Strengthening Effective Remedies for Asylum Seekers in the Dublin Procedure: from Abdullahi to Ghezelbash and Karim

Dr. Constantin Hruschka, head of the protection department at the Swiss Refugee Council and lecturer in European and European Asylum Law at the Universities of Bielefeld and Fribourg, and Seraina Nufer, ELENA Coordinator for Switzerland and lawyer at the Swiss Refugee Council, have written a blog post on strengthening legal remedies for asylum seekers in the Dublin procedure in light of the recent judgments of the CJEU, Ghezelbash and Karim.

The blog post first gives a brief summary of the facts and legal questions of the Ghezelbash and Karim judgments before moving on to an analysis of these judgments in light of the Abdullahi judgment. In this manner the contribution assesses the relevant changes related to the right to an effective remedy between the Dublin II and Dublin III Regulations. Most notably, the authors conclude with a brief outline of the practical consequence of the Ghezelbash and Karim judgments, namely that the reasoning in Abdullahi is no longer applicable and that an effective remedy under Dublin relates to all procedural rules relevant when determining responsibility and not solely where there are systemic deficiencies in the proposed receiving Member State.

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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 Isa van Krimpen (, or Julia Zelvenska (

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