ELENA Weekly Legal Update (EWLU)

25 November 2016


The ELENA Weekly Legal Update will take a break from next week and will resume on 16 December 2016. In the meantime, keep an eye on our Facebook and Twitter for regular updates.
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European Court of Human Rights

Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) [Articles 3 and 5], 22 November 2016

On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed.
The case relates to two Somali asylum-seeking children, who applied for asylum shortly after their arrival in Malta. They were detained while awaiting their age assessment test. Even though the applicants were found to be children, they were only released from detention several months later. They submitted an application at the ECtHR complaining about the deplorable conditions of their immigration detention in violation of Article 3 ECHR. Moreover, the applicants complained that their detention had been arbitrary and unlawful in breach or Article 5(1) ECHR. Lastly, they argued that they had no effective remedy to challenge the lawfulness of their detention pursuant Article 5(4) ECHR.
In relation to Article 3 ECHR, the Court concluded that since the applicants were minors, who were detained for a period of around eight months, the cumulative effect of the conditions complained of amounted to degrading treatment in violation of Article 3 ECHR. These conditions included, inter alia, limited light and ventilation, deplorable sanitary facilities, lack of organised (entertainment) activities for minors, lack of proper counselling and educational assistance, a violent atmosphere and a lack of support mechanisms for the minors, as well as lack of information concerning their situation. 

Referring to Mahamed Jama and Moxamed Ismaaciil and Abdirahman Warsame, the Court further finds a violation of Article 5(4) ECHR as the applicants did not have an effective and speedy remedy under domestic law by which to challenge the lawfulness of their detention. In addition, the Court concludes that the applicants' detention was not in compliance with Article 5(1) ECHR. Whereas the Court observes that the detention had a sufficiently clear legal basis, the detention was deemed arbitrary because the several delays in the age assessment process raised serious doubts as to the Maltese authorities’ good faith. This situation was further exacerbated due to the lack of procedural safeguards and the failure of the authorities to ascertain that the immigration detention was a measure of last resort for which no alternative was available.

Judge Sajó and Judge Pinto De Albuquerque gave concurring opinions.

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Communicated case: A.M. v. Austria (no. 32830/15), communicated on 6 November 2016

On 6 November 2016, the European Court of Human Rights communicated the case A.M. v. Austria (no. 32830/15), which relates to the Dublin transfer of a Somali national, who was granted subsidiary protection in Italy, from Austria to Netherlands. The applicant’s wife and child live in Austria.
The applicant submitted an application to the ECtHR complaining that the rejection of his application for international protection based on the Dublin II Regulation is in violation of Article 8 ECHR. Referring to the different treatment of pre-flight spouses and post-flight spouses with regard to family reunification under the Asylum Act, the applicant further complains that he suffered discrimination on the ground of his status as a post-flight spouse in violation of Article 14 ECHR in conjunction with Article 8 ECHR.

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National Developments 

Belgium: CALL recognises Kurdish woman in Turkey who has been victim of domestic violence as a refugee

This case concerns a Turkish woman of Kurdish origin who suffered severe ill-treatment by her husband and persecution by her own family in Turkey. After she obtained a divorce from her husband, she received death threats from him and was rejected by her own family. She went to Belgium, where her application for regularisation was rejected. In 2007 she married a man in Belgium at the consulate of Turkey. She had to return to Turkey to get a visa and survived there by hiding at the home of a friend. Since the woman did not get the visa and feared ill-treatment at the hands of her first husband and her family, she returned to Belgium, where she applied for asylum in 2009. The CGRS rejected her application for asylum and the woman did not appeal against that decision.
The woman then returned to Turkey, where she was mistreated by her family as she had married a Turkish man who was not chosen by them. The woman was forced to divorce from her second husband and to marry another man that her family had chosen for her. The woman fled to Belgium and applied for asylum for the second time. The CGRS again rejected her application and again she did not appeal against this decision.
After the woman received an order to leave the country by the Belgian authorities, she applied for a medical regularization under article 9ter Aliens Act, which was refused by the Aliens Office. She then applied for asylum for the third time. She also submitted medical documents. The CGRS rejected her application on the basis that she lacked credibility. The CGRS however never inquired into the situation of Kurdish females or victims of domestic violence in Turkey. The woman appealed against that decision to the CALL.
On 27 October 2016, the CALL recognised the woman as a refugee based on her membership of a particular social group. The CALL found that, as a result of the ill-treatment she endured, she has severe psychological problems such as anxiety and concentration problems. While in Belgium, she also attempted suicide on two occasions. Moreover, the woman had scars as a result of the ill-treatment and suffers from post-traumatic stress disorder and depression, which is corroborated by medical evidence. It was also found that there was no available protection in Turkey, against neither the domestic violence nor the family coercion. Therefore, the CALL decides that the assessment of a well-founded fear of persecution should take into account her individual circumstances including psychological and physical trauma. The woman demonstrated that her fear of persecution is well-founded and persistent which makes her return to Turkey impossible.

Based on an unofficial translation by the ELENA Weekly Legal Update. The ELENA Weekly Legal Update is grateful to Benoit Dhondt.

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EDAL blog: The Use of Country of Origin Information by the European Court of Human Rights in the Assessment of a Real Risk of a Violation of the Prohibition of Torture, Inhuman and Degrading Treatment

Femke Vogelaar, PhD Student (abroad) at the Vrije Universiteit Amsterdam, has written a blog which assesses the use of Country of Origin information (COI) by the European Court of Human Rights in the assessment of a real risk of a violation of the prohibition of torture, inhuman and degrading treatment.
The navigation and use of COI by the European Court of Human Rights has been, up until now, a relatively unexplored area. This blog, however, examines in depth how the ECtHR has established a specific framework on the use of COI in its own case law, namely the collection, assessment, and determination of COI. Whilst this framework has been created by the Court itself it rarely abides by it, leading to a COI methodology which is porous and contradictory and a judgment which determines the fate of the individual as well as State practice elsewhere.

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A big thank you to Isa van Krimpen

ECRE/ELENA would like to express our appreciation to Isa van Krimpen for her invaluable contribution to the ELENA Weekly Legal update and the work of ECRE and ELENA over the past six months. Isa has contributed her energy and time in order to make the EWLU interesting, up to date (and full of Dutch judgments). Her excellent legal research and drafting skills were instrumental in ensuring the efficiency and high quality of ECRE/ELENA legal research and support. Isa will be greatly missed and we wish her the best of luck in her future endeavours, and hope that she continues her engagement with the ELENA network.

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ENS publishes report on protecting stateless persons from arbitrary detention in Bulgaria

The European Network on Statelessness (ENS) has published a report: “Protecting Stateless Persons from Arbitrary Detention in Bulgaria”. The report identifies the following key areas of concern with regard to the detention of stateless persons in Bulgaria: identification and determination procedures; decision to detain and procedural guarantees; the relationship between actions for removal and the length of detention; alternatives to detention; vulnerable groups; conditions of detention and conditions of release and re-detention.
ESN therefore calls on Bulgaria to establish a statelessness determination procedure. “In order to prevent arbitrary and protracted detention, it is critical that the Bulgarian authorities systematically identify whether a person is stateless before making a decision to detain, and linked to this, that officials make a realistic assessment about the prospects of removal. In practice, this requires Bulgaria to have in place a dedicated statelessness determination procedure, crucially one which is accessible to everyone on the territory - including to detainees and others without lawful residence."

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Redial Electronic Journal on Judicial Interaction and the EU Return Policy Second Edition: Articles 12 to 14 of the Return Directive (2008/115)

The Migration Policy Centre based at the European University Institute in Florence, Italy has published their Electronic Journal on Judicial Interaction and the EU Return Policy. The Journal offers an overview of the European and national landmark cases on Articles 12-14 of the Return Directive and highlights the outcome of judicial interactions in securing procedural safeguards and human rights during return proceedings.

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ECRE is recruiting a Legal Assistant

ECRE is offering a legal internship starting in January for 11 months. The purpose of this position is to assist ECRE’s Legal Support and Litigation Team with legal research on specific topics relating to international protection, contributing to the EDAL database and activities of the ELENA network.
Candidates should send a copy of their curriculum vitae (2 pages) and an application form to Julia Zelvenska ( before 11 December 2016 stating “Application Legal Assistant” in the subject heading. The documents should be sent in PDF or Word formats, with the name of the applicant in the title of each document sent. Please do not attach any reference or recommendation letters.
Regrettably, due to the large number of applications we usually receive, it is not possible to write to you should you not be short-listed for an interview. If you have not heard from us within 20 days after the closing date, please assume that your application has not been successful on this occasion.

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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

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