ELENA Weekly Legal Update (EWLU)

4 March 2016


European Union Council of Europe National Developments NGOs

European Union

CJEU: Joint Cases C-443/14 & C-444/14, Kreis Warendorf v Ibrahim Alo & Amira Osso v Region Hannover

German national law provided that subsidiary protection holders in receipt of welfare benefits would be issued residence permits subject to a condition to reside in a particular geographical area of Germany, though they were otherwise able to move freely around Germany and could temporarily stay outside this area (‘the residence condition’). The German Federal Administrative Court (FAC) requested a preliminary ruling from the CJEU on the compatibility of this with the recast Qualification Directive (rQD).  
By its first question the FAC asked whether the residence condition amounted to a restriction on freedom of movement, as guaranteed by Article 33 rQD. The CJEU noted that this term had to be interpreted consistently with the 1951 Convention and the EU Charter. Recitals 8, 9 and 39 stated the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection (BIPs), with differences in rights and benefits between refugees and subsidiary protection holders subject to necessity and objective justification. Article 33 referred to ‘beneficiaries of international protection’ with no difference envisaged. Furthermore, Article 26 of the 1951 Convention interpreted the right to freedom of movement as including not only the right to move freely in the territory of the State granting refugee Status but also the right of refugees to choose their place of residence. As such, the residence condition constituted a restriction of freedom of movement contrary to Article 33, even though the beneficiary was able to move freely within the territory of Germany, and could temporarily stay outside the designated place of residence.

In its second question the FAC asked whether the residence condition was compatible with Articles 29 and 33 rQD where the aim was to avoid a disproportionate social assistance burden on relevant institutions.

The CJEU found that Article 33 rQD in light of Article 26 of the 1951 Convention made it clear that the right to freedom of movement for BIPs must be exercised under the same conditions and restrictions as those for refugees and other legally resident third country nationals.  The national rules at issue however, applied only to subsidiary protection holders, who were under more restrictive conditions.

Article 29 rQD and Article 23 of the Convention required subsidiary protection holders to be given social assistance under the same conditions as nationals of the relevant Member State. The German rules meant that only subsidiary protection holders were required to accept a residence condition in order to be eligible for social assistance. This would only be legitimate if other groups in receipt of benefits were not in an objectively comparable situation; but irrespective of immigration status, the grant of social assistance would have an impact on the distribution of social assistance burdens. 

Therefore the CJEU found that Articles 29 and 33 rQD precluded the imposition of a residence condition to subsidiary protection holders for the purpose of appropriate distribution of social assistance burdens where the rules did not impose this measure on refugees, legally resident third country nationals or nationals. 

By its third question the FAC asked whether the residence condition was compatible with Articles 29 and 33 rQD where the objective was to facilitate integration. The CJEU found that Article 29 rQD was irrelevant in this context as German nationals were in a different situation to subsidiary protection holders with regard to the objective of facilitating the integration of third country nationals. Article 33 did not preclude a residence condition such as the one at issue, for the objective of facilitating integration if subsidiary protection holders were not in an objectively comparable situation to other legally resident third country nationals. This could be the case if the latter were only eligible for welfare benefits after a certain period of residence, by which it could be assumed that they were sufficiently integrated. It was remitted to the FAC to determine whether in the two groups were in an objectively comparable situation or not. 

Please see here for the judgment, and press release. A summary of the Advocate-General’s opinion is available here.

Back to top

Council of Europe

Commissioner for Human Rights: 4th Quarterly Activity Report 2015

Nils Muižnieks, Council of Europe Commissioner for human rights has published his 4th quarterly activity report for 2015. This summarises his work on inter alia the human rights of immigrants, asylum-seekers and refugees. These were themes of his visits to Germany, Cyprus and Hungary as well as the focus of his third party interventions at the European Court of Human Rights in ND and NT v. Spain (app nos. 8675/15 and 8697/15) and S.O. v. Austria and A.A. v. Austria (app nos. 44825/15 and 44944/15). The report also contains the Commissioner’s reflections on the ‘migration crisis’.

Back to top

Committee for the Prevention of Torture: Report on Greece

The Council of Europe Committee for the Prevention of Torture (CPT) has published its report on its ad-hoc visit to Greece in April 2015. A number of recommendations are made in relation to the situation of foreign nationals in detention.

During its visit the CPT met a 17 year old asylum seeker from Egypt who had been detained for 22 days in police custody for ‘protective reasons’ in conditions akin to solitary confinement, awaiting transfer to a juvenile shelter. It recommended that the practice of detaining unaccompanied minors in police detention should be ended. Both Amygdaleza and Petrou Ralli Special holding facilities operated like a police detention facility and were described as totally unsuitable to meet the needs of unaccompanied minor irregular migrants.

The CPT also reiterated previous recommendations that irregular migrants in detention should be accommodated in centres specifically designed for this purpose with material conditions and a regime appropriate to their legal situation, rather than a focus on a security approach with detainees treated like criminal suspects. It also raised concerns about lack of information, poor access to healthcare and inadequate hygiene at Petrou Ralli special holding facility.

Back to top

National Developments

Belgium: CALL annuls decision refusing humanitarian visa to Syrian Christians 

This case relates to a Syrian couple aged 76 and 73, living in Aleppo, who had a Belgian son, who they were dependent on for financial support. He made visa applications on their behalf at the Belgian embassy in Istanbul in June 2015, which was refused in February 2016. They lodged an application to suspend the execution of this decision before the Council of Aliens Law Litigation (CALL) under the extreme urgency procedure.

In relation to the requirement of extreme urgency, the applicants relied on the risk of violation of Articles 3 and 8 ECHR. CALL found that the poor security situation was supported by the evidence and that the applicants had also raised personal circumstances relating to their age, their religion as practising Christians who were in particular danger in Aleppo, and their lack of family support; which demonstrated a sufficiently concrete and probable special vulnerability of risk of inhuman or degrading treatment. It recalled that due to the absolute nature of Article 3 ECHR, State Parties were obliged to prevent violations even where they may be committed by other authorities. It concluded that the applicants had sufficiently justified the ‘extreme urgency’ as the ordinary suspension procedure would not effectively prevent the occurrence of the risk of grave and irreparable damage affecting Article 8 and Article 3 ECHR.

The applicants alleged that the decision was insufficiently motivated, and relied on general principles of good administration, reasonableness and proportionality. It was not contested that family life existed between the applicants and their son and that the contested decision amounted to an interference with this. The refusal decision relied on the fact that the applicants had not proven the absence of other family members who could take care of them, or demonstrated that they would be able to obtain sickness insurance and means of subsistence in Belgium. CALL found that the decision failed to take into consideration all relevant factors including the risk of Article 3 harm and that the decision was not reasonable or proportionate with regard to the gravity of the situation in Aleppo and the particular vulnerability of the applicants. 

Finally, CALL found that implementation of the decision constituted an unjustified interference with family life, likely to cause grave and irreparable harm. As such the third cumulative condition was met.

The Belgian State was ordered to take a new decision within five days of notification of the judgment.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Mieke Van den Broeck for her assistance with this summary.

Back to top

Sweden: Migration Board suspends Dublin transfers to Hungary 

On 2 March 2016, the Stockholm Administrative Court, in two judgments (one of which is available here, in Swedish), stopped the Dublin transfer of asylum seekers from Sweden to Hungary. The applicants had challenged the decision of the Migration Board to refuse their asylum claims in Sweden and transfer them to Hungary.  In view of the changes to Hungary’s asylum laws in 2015, the Court considered that asylum seekers who had entered Hungary via Serbia would be unable to obtain international protection in Hungary. This was in particular, due to accelerated asylum procedures and the designation of Serbia as a safe third country, with the accompanying risk of refoulement and treatment contrary to Article 3 ECHR. As such the Court considered that Hungary did not fulfil the presumption that an EU Member State would respect the principle of non-refoulement

Following these judgments, the Migration Board decided to suspend all Dublin transfers from Sweden to Hungary, until further notice, while stating that it did not share the Court’s assessment of the situation in Hungary. It intends to appeal the Court’s decision.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Michael Williams, ELENA national coordinator for Sweden, for his assistance with this summary. For further information on national jurisprudence in relation to Dublin transfers to Hungary, please see the ECRE/ELENA factsheet

Back to top


ECRE: Comments on EC recommendation to reinstate Dublin transfers to Greece

ECRE has published comments on the European Commission’s Recommendation on the urgent measures to be taken in view of the resumption of Dublin transfers to Greece. Transfers to Greece have been suspended since 2011, following judgments of the ECtHR in M.S.S. v Belgium and Greece and the CJEU in the joined cases of N.S. v. UK and M.E. v. Ireland .

ECRE draws on up-to-date information on the state of the Greek asylum system to express concerns about ongoing shortcomings in several areas, in particular relating to access to the asylum procedure and reception conditions. In addition concerns are raised about the Greek government’s intention to declare Turkey a “safe third country”, and to reject claims as inadmissible so as to return applicants thereto, which is liable to create real risks of refoulement. Risks of arbitrary detention in substandard conditions are also highlighted, particularly in respect of specific nationalities which have been systematically placed in pre-removal centres.

ECRE urges EU institutions and Member States to refrain from a reinstatement of transfers to Greece under the Dublin Regulation and recalls that the position of relevant monitoring bodies need be taken into account, in view of the ongoing supervision of the execution of  M.S.S. v. Belgium and Greece by the Council of Europe Committee of Ministers. ECRE also stresses that a state of affairs whereby international protection applicants are transferred out of Greece under the emergency relocation scheme (which is still implemented at very meagre rates), while others are returned to Greece under Dublin, would be highly counter-intuitive to the aim of alleviating pressure on the Greek asylum system. Quite to the contrary, it could result in placing Greek authorities under even more severe strain in view of the number of asylum seekers who are potentially returnable under the Dublin Regulation, recalling that 856,723 persons arrived by sea in the country in 2015.

Based on the AIDA news article dated 26 February 2016 available here.

Back to top

EDAL: Allocating responsibility for an asylum application through Convention rights - the potential impact of ZAT & Others

EDAL has published a journal article, by Amanda Taylor and Zarina Rahman at ECRE, on the potential impact of the recent UK Upper Tribunal decision of ZAT & Others, relating to the admission of Syrian asylum seekers to the UK from ‘the Jungle’ in Calais, due to Article 8 ECHR considerations. It analyses the tension the case raised between the Dublin III Regulation and Article 8 ECHR, before assessing the broader issues relating to Dublin and fundamental human rights. It then focuses on failings within the French asylum system, some of which were highlighted in the judgment, and have also been subject to criticism from other organisations.   

Back to top

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 (

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