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ELENA Weekly Legal Update (EWLU)

5 February 2016

Summary


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

European Court of Human Rights


Khlaifia and Others v. Italy referred to Grand Chamber

The case of Khlaifia and Others v. Italy has been referred to the Grand Chamber at the request of the Italian government.

The Court found that three nationals of Tunisia had been unlawfully detained upon arrival in Italy, first in a reception centre and then on board ships, where they were not provided information and had no opportunity to challenge their detention. In addition, the conditions in the reception centre amounted to inhuman and degrading treatment. Finally, the Court found that the applicants had been subject to collective expulsion, as despite being identified individually and being issued with separate repatriation decrees, their individual circumstances had not been genuinely considered prior to their return to Tunisia.

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Amadou v. Greece (no. 37991/11) [Article 3 & 5(4)], 4 February 2016

The case of Amadou v. Greece relates to a national of Gambia who entered Greece on 31 July 2010. He was arrested by border police and detained at Fylakio pending adoption of an expulsion decision. The chief of the police ordered his expulsion and detention for up to six months. The applicant challenged this decision submitting that his conditions of detention were contrary to Article 3, and that he could not be expelled as he was at risk of persecution for political reasons. This was dismissed by the police chief. He was subsequently fined and sentenced to three months’ imprisonment for illegal entry and transferred to Aspropyrgos detention centre. He made an asylum application on 22 September 2010 with the assistance of the Greek Council for Refugees and was released from detention around 2 weeks later. On 24 November 2010 he requested the Ministry of Social Support to provide him accommodation or material and financial assistance. He received no response and became homeless, with no access to food, water or toilets.  He complained that Greece had violated Article 3 ECHR with respect to his conditions of detention, and his situation of destitution upon release, and that he was unable to challenge the legality of his detention contrary to Article 5(4).

Based on its previous case law on conditions of detention at Fylakio and Aspropyrgos during the period in question, reports by various international institutions,  the Court found that the applicant had been detained in inhuman and degrading conditions contrary to Article 3 ECHR. Similarly, shortcomings in domestic law with regard to the effectiveness of judicial review of detention pending deportation violated Article 5(4).

The Court relied on M.S.S. v. Belgium and Greece where it found a violation of Article 3 in relation to an asylum seeker living in a situation of extreme poverty. In the present case, it found that given the obligations of Greece under the Reception Conditions Directive, only a diligent examination of the applicant’s asylum claim could bring his situation to an end, and his claim was still pending three years after his claim was initially filed. It therefore found that the applicant found himself in a degrading situation contrary to Article 3, which was caused by the Greek authorities.

Based on an unofficial ELENA translation. 

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European Union


CJEU:  Case C-695/15 PPU Mirza, reference for preliminary ruling by Debrecen Administrative and Labour Court (Hungary) 

On 23 December 2015,  he Debrecen Administrative and Labour Court in Hungary has referred a number of questions to the CJEU for an urgent preliminary ruling in Case C-695/15 PPU, Mirza. The case relates to a national of Pakistan who claimed asylum in Hungary in August 2015, having entered from Serbia. He then left his designated place of residence and his application was discontinued by the Hungarian authorities as he was deemed to have abandoned his application. The applicant ended up in the Czech Republic which made a ‘take back’ request to Hungary pursuant to the Dublin III Regulation, which was accepted. After being transferred he once again applied for international protection in Hungary, and was detained in the course of the asylum procedure. His application was refused as inadmissible on the basis that he had entered via Serbia which had been classified in Hungarian law as a safe third country. He lodged a request for legal remedy to the referring court to review this decision.

The Court considered it necessary to refer to the CJEU a number of questions in relation to the interpretation of the safe third country concept under the Dublin III Regulation and an unofficial English translation of the questions referred is set out below:

1) How is Article 3 (3) of Regulation (EU) No 604/2013 of the European Parliament and the Council, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (the Dublin III Regulation), to be interpreted?

a) Can Member States exercise the right to send an applicant to a safe third country only prior to determining the Member State responsible, or also after determining the Member State responsible?

b) Does the interpretation change if the Member State determines its own responsibility not when the application is initially lodged with such Member State in accordance with Article 7 (2) and Chapter III of the Dublin III Regulation, but receives the applicant from another Member State upon a request for transfer or take back in accordance with Chapters V-VI of the Dublin III Regulation?

2) If, in the interpretation of the Court of Justice of the European Union to Question 1), the right of a Member State to send an applicant to a safe third country may also be exercised after taking charge in accordance with the Dublin procedure:

Can Article 3 (3) of the Dublin III Regulation be interpreted in such a way that Member States may also exercise this right if, in the course of the Dublin procedure, the transferring member state was not informed of the exact national provisions pertaining to the exercise of that right and the national practice followed?

3) Can Article 18 (2) of the Dublin III Regulation be interpreted in such a way that, in the case of an applicant taken back pursuant to Article 18(1)c), the procedure is to be continued from the same stage as where it had been interrupted in the previous procedure?

Based on an unofficial translation. 

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CJEU: Advocate General  opinion, Case C-47/15 Affum v Prefet du Pas de Calais

Case C-47/15 relates to a national of Ghana, Ms Affum, who was intercepted by French police on 22 March 2013 at Coquelles, the entrance of the Channel tunnel, while transiting through French territory on a bus from Belgium to the UK. She had no identity documents except a Belgian passport with the name and photo of another person. She was detained for illegal entry pursuant to Article L. 621-2 of the Code of Entry and Residence of Foreigners and Asylum Law, but the prosecutor decided to take no further criminal proceedings against her. The Prefect of Pas-de-Calais made an Order deciding to transfer her to Belgium in accordance with a readmission agreement between France and the Benelux countries. He also ordered her administrative detention for a period of five days pending removal, which was later extended by a judge of the High Court of Lille. Upon appeal, the Court of Cassation submitted a reference for a preliminary ruling to the CJEU on the compatibility of the Return Directive with national law allowing the imposition of term of imprisonment on a third country national on the basis of illegal entry and stay.

Advocate General Szpunar found that the Return Directive applied to Ms Affum, as a person who illegally crossed the border with no right to reside in the territory of the Member State concerned. He rejected the arguments of the French authorities that it was inapplicable in relation to rules on the crossing of external borders and the movement of third country nationals between Member States, for a number of reasons. He found that the limitation from scope of the Directive in Article 2(2)a) applied only where a third country national was stopped attempting to enter the Schengen area at an external border, rather than as in this case, where Ms Affum was caught attempting to leave the Schengen area. In addition, the fact that Ms Affum was merely transiting through France did not mean that she was not staying illegally within the meaning of  Article 3(2) and Article 2(1). Article 6(3) of the Return Directive expressly provided for third country nationals to be taken back by another Member State under bilateral agreements or arrangements existing prior to the entry of force of the Directive. Thus where this option was used, the situation would still fall within the scope of the Directive, and all other relevant provisions continued to apply.

The AG also found that on a literal reading of Article 4(3) of the Schengen Borders Code, which mandates the imposition of penalties for “the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours", it was inapplicable to Ms Affum.

Having examined the CJEU case law the Advocate General considered that there were two situations in which the Directive permitted national legislation which punished illegal stay on a third country national with a term of imprisonment: (1) where the return procedure was being applied but the person continues to stay illegally without justification (Achughbabian) and (2) where a person who was returned in accordance with the Directive re-enters the territory of that Member State in breach of an entry ban  (Celaj). None of these situations was applicable to Ms Affum and therefore a third country national in her position could not be imprisoned solely on the basis of illegal stay in the territory of a Member State.

Based on an unofficial ELENA translation. A press release issued by the CJEU in English is available here.  

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EASO: Launch of COI Portal 

EASO has launched a beta version of a Country of Origin Information (COI) Portal with the aim of increasing COI transparency for all asylum practitioners and civil society. Users can search for COI from different sources in different languages, with additional features to be added throughout the year. 

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Council of Europe


GRETA: Trafficking evaluation report on Croatia

The Group of Experts on Action against Trafficking in Human Beings has issued its second evaluation report on the implementation of the CoE Anti-Trafficking Convention in Croatia. It commends the authorities for continuing to develop their legal framework for combating human trafficking and protecting victims, and welcomes new training for professionals and awareness raising activities in schools.

However, the report raises concerns with regard to the identification of victims of trafficking, particularly amongst irregular migrants, asylum seekers and unaccompanied minors given increased migration in the region. It notes that there has been an increase in the number of unaccompanied minors who disappear from reception centres for asylum seekers within days, with 75 such cases in 2014, urging the authorities to increase efforts to identify and assist child victims and trafficking. 

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National Developments


Belgium: CALL annuls Dublin III transfer to France due to inadequate assessment of effectiveness of access to healthcare for asylum seekers 

This case relates to an Algerian national who claimed asylum in Belgium on 18 May 2015. After a ‘take charge’ request, the French authorities agreed to accept responsibility for his application pursuant to Article 12(2) of the Dublin III Regulation. The Belgian authorities therefore issued a decision refusing to grant the applicant entry and issued an order for him to leave the territory.
 
The applicant challenged this, submitting a medical report which showed that he suffered from cardiac problems linked to stress, for which he was receiving medication. He argued that there were difficulties in accessing the asylum procedure with long waiting periods due to delays in registering an asylum claim in France, during which asylum seekers did not have access to minimum reception conditions. In addition, as a Dublin returnee he was not guaranteed access to health care for the first three months after transfer, as state medical aid was conditional on 3 months residence in France. Both the applicant and the Belgian authorities sought to rely on the AIDA Country Report for France dated January 2015, and a report by Nils Muižnieks dated 17 February 2015. The applicant argued that these international reports had not been properly considered by the Belgian authorities, which had given them a partial reading.
 
CALL cited sections of the AIDA report on problematic access to the asylum procedure (pages 16-17) and access to healthcare (pages 72 and 74) and the observations of Commissioner Muižnieks. It considered that the issue was more nuanced than the conclusion reached by the Belgian authorities that access to healthcare was ensured in legislation and practice for asylum seekers. The Belgian authorities had not considered it necessary to concretely examine the effectiveness of access to health care for asylum seekers in France, which meant that the decision under challenge was insufficiently motivated. It therefore annulled the decision.
 
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Catherine Van Cutsem for providing this judgment. Please note that an updated AIDA Country Report on France is now available, dated December 2015. 

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UK: R on the application of ZAT and others v. Secretary of State for the Home Department 

This case was a judicial review test case before the Upper Tribunal (UT) concerning seven Syrian applicants. Four were living in the unofficial camp near Calais known as ‘the Jungle’, infamous for its conditions of squalor, as recently criticised by the Lille Administrative Tribunal. Three of them were unaccompanied minors and the other was the adult dependent brother of one of them who suffered from mental health problems. The other applicants were their siblings, who had refugee status in the UK. The applicants challenged the refusal of the UK to admit the first four applicants to be reunited with their family members pending the determination of their asylum claims, which was a disproportionate interference with their Article 8 ECHR right to family life.

The UK government considered it owed no legal duty to the applicants as they had not lodged an asylum application in France, and no ‘take charge’ request had been made, as envisaged by the Dublin III Regulation. The Applicants argued that in their circumstances the operation of the Dublin Regulation was inadequate to provide the protection that the first four applicants needed and that Article 8 ECHR (and Article 7 EUCFR) gave rise to a positive obligation on the UK government to admit them, relying in particular on Tuquablo Tekle v. The Netherlands and Mayeka and Mitunga v. Belgium.

The UT considered a number of factors in its Article 8 proportionality assessment including the applicants’ ages, psychological damage, pre-existing family life, their urgent need for family reunification and the avoidance of fear, anxiety and uncertainty they would suffer if they did not achieve swift entry to the UK. It found that the first four applicants were likely subjects of ‘take charge’ requests under the Dublin Regulation due to the provisions on family unity, but that this would be ‘wholly inadequate’ in their circumstances due to administrative difficulties in accessing the asylum procedure in France which would lead to a delay of at least one year. Although strict adherence to the Dublin Regulation formed a major part of the overarching public interest of the UK in controlling its borders, overall the refusal to admit the first four applicants to the UK would disproportionately interfere with the applicants’ right to respect for family life under Article 8 ECHR. 

It thus ordered the UK government to admit the applicants into the territory with a view to determining their asylum applications, conditional on them first sending the French authorities a letter claiming asylum. In this way, it sought to reconcile the requirements of the Dublin Regulation principles whilst ensuring that the administration of the CEAS did not disproportionately interfere with the applicants’ Article 8 rights.

The applicants have now been reunited in the UK. The UT has granted permission for the Secretary of State to appeal to the Court of Appeal. 

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UK: Independent report on Asylum Casework

The Independent Chief Inspector of Borders and Immigration has published an inspection of asylum casework from March to July 2015 to examine efficiency, effectiveness, and quality of decision making by the Home Office.

He welcomed the introduction of a ‘second pair of eyes’ process for asylum claims based on membership of a particular social group (MPSG) where applicants feared persecution due to sexual orientation, and recommended that the Home Office extend this to all MPSG asylum claims. In its response to the report, the Home Office stated it would do so on a periodic rolling basis, initially for cases relating to female genital mutilation.

The report identified various failings including in relation to the screening process for asylum claims (which the Home Office had also found in its internal investigations), the lack of management of information on why Dublin removals are unsuccessful and the administration of paper files. A particular concern related to the rule 35 process, by which detained individuals are assessed by a medical professional upon raising allegations that they are a victim of torture (and should therefore not be detained). This was successful in only 15% of cases, with the process to obtain a medico-legal report as independent verification of torture also not working properly due to delays. This corroborates findings made in the Shaw review into the welfare in detention of vulnerable persons, which recommended that the Home Office immediately consider an alternative to the current rule 35 mechanism. 

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NGOs


Cordelia Foundation:  Report on access of torture survivors and traumatised asylum seekers to rights and care in detention in Hungary and Bulgaria

The Cordelia Foundation have published a report, ‘From torture to detention’ with contributions from the Hungarian Helsinki Committee, Foundation for Access to Rights and the Assistance Centre for Torture Survivors.  It describes the STRENGTH project that was implemented in Bulgaria and Hungary, which aimed to provide assistance to torture victims, facilitate their access to international protection and challenge their detention.  The report first sets out the legal framework for the detention of asylum seekers in Hungary and Bulgaria, describes research on the traumatic effect of detention, and details legal obligations with regard to the detention of torture victims or traumatised asylum seekers in international and EU law.

The research included the regular monitoring of detention centres where torture victims are held and revealed grave and systemic shortcomings in both States, some of which are in contradiction with their obligations under EU law. It found that there was a lack of systemic identification mechanisms which led to the inappropriate detention of vulnerable people with ineffective legal safeguards. A number of factors contributed to re-traumatisation in detention, such as a lack of information and lack of training for detention centre staff. There was also a lack of specialised medical, psychological and psychosocial care in both states. 

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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 (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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