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ELENA Weekly Legal Update (EWLU)

5 July 2019
 

Summary


The ELENA Weekly Legal Update will take a break and be back with more updates on 19 July!
 

European Union


CJEU: Preliminary References on Family Reunification and Dublin III

The Court of Justice of the European Union (CJEU) has communicated the following two requests:

Request for a preliminary ruling from the Council of State of Belgium, B.O.L. (C-250/19) regarding family reunification for aged-out children.

  1. In order to guarantee the effectiveness of EU law and not make it impossible to enjoy the right to family reunification which, according to the applicant, is conferred on her by Article 4 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, must that provision be interpreted as meaning that the sponsor’s child is able to enjoy the right to family reunification where he becomes an adult during the court proceedings brought against the decision which refuses to grant him that right and was taken when he was still a minor?’
  2. Must Article 47 of the Charter of Fundamental Rights of the European Union and Article 18 of Directive 2003/86/EC be interpreted as precluding an action for annulment, brought against the refusal to grant a right to family reunification to a minor child, being held to be inadmissible on the ground that the child became an adult during the court proceedings, since he is deprived of the opportunity for a judgment to be given in his action against that decision and his right to an effective remedy is infringed?

Request for a preliminary ruling from the International Protection Appeals Tribunal, the Minister for Justice and Equality and the Attorney General of Ireland, MK.S. and M.H.K. (C-322/19) on the right to work for applicants appealing Dublin III transfer decisions.

  1. Where in interpreting one instrument of EU law that applies in a particular member state an instrument not applying to that member state is adopted at the same time, may regard be had to the latter instrument in interpreting the former instrument?
  2. Does Art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU apply to a person in respect of whom a transfer decision under the Dublin III Regulation, Regulation (EU) No. 604/2013, has been made?
  3.  Is a member state in implementing Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU entitled to adopt a general measure that in effect attributes to applicants liable for transfer under the Dublin III Regulation, Regulation (EU) No. 604/2013, any delays on or after the making of a transfer decision?
  4. Where an applicant leaves a member state having failed to seek international protection there and travels to another member state where he or she makes an application for international protection and becomes subject to a decision under the Dublin III Regulation, Regulation (EU) No. 604/2013, transferring him or her back to the first member state, can the consequent delay in dealing with the application for protection be attributed to the applicant for the purposes of Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU?
  5. Where an applicant is liable to transfer to another member state under the Dublin III Regulation, Regulation (EU) No. 604/2013, but that transfer is delayed due to judicial review proceedings taken by the applicant which have the consequence of suspending the transfer pursuant to a stay ordered by the court, can the consequent delay in dealing with the application for international protection be attributed to the applicant for the purposes of Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU, either generally or, in particular, where it may be determined in those proceedings that the judicial review is unfounded, manifestly or otherwise, or is an abuse of process?

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National Developments


Sweden: Migration Court of Appeal rules against exclusion of applicant from refugee status  

On 17 June, the Migration Court of Appeal in Sweden held that an asylum applicant found to be guilty of non-political crimes cannot be excluded from refugee status.

The applicant applied for asylum in September 2015 with her husband and children. She was granted a travel document and residence permit due to her connection to her children who were granted refugee status. The Migration Court held that while the applicant fulfilled the conditions to be recognised as a refugee due to persecution in Somalia, it considered that she should be excluded from protection status as there were reasons to assume she was guilty of facilitating others to perform genital mutilation on her three daughters, which it considered a serious non-political crime.

On appeal, the Migration Court of Appeal examined whether genital mutilation committed in the context of the instant case was a serious non-political crime under domestic law interpreted in light of EU law and the 1951 Geneva Convention.

The Court recalled that Sweden cannot apply the Geneva Convention in a way that deviates significantly from other countries and that it must be interpreted in line with the UNHCR Handbook for Procedures and Criteria for Determining Refugee Status and the UNHCR Guidelines on International Protection: Application of Exclusion Clauses. With reference to CJEU case law and the judicial analysis of EASO on exclusion, it held that the decision to exclude an individual from refugee status must be taken with consideration of the severity of the crime and circumstances of case.

While genital mutilation is not a crime in Yemen, where the acts were committed, the Court held that the procedure is criminalized in almost all European countries and in many countries in the rest of the world, and can therefore be considered to be internationally recognised as a crime. In assessing the severity of the crime, the Court examined, inter alia, the long-term consequences of the act and how it is prosecuted under Swedish law. It held that the punishment in Sweden for performing genital mutilation is two to six years imprisonment. However, the Court recognised that although genital mutilation can be prosecuted in Sweden, it held that such prosecution is only permitted in crimes with a connection to Sweden. Thus, the act in question, committed when the applicant and her daughters had no connection to Sweden, would not lead to prosecution in Sweden.

The Migration Court of Appeal held that the severity of the crime could not be considered to be “serious”, and thus found that the applicant should not be excluded from refugee status.

Based on an unofficial translation by the EWLU team.

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UK: Home Office ordered to bring back returned Ugandan asylum applicant

On 24 June 2019, England and Wales High Court (Administrative Court) held that an asylum seeker who had been returned to Uganda in 2013 must be brought back to the United Kingdom to have her asylum claim heard.

The applicant was detained in the UK on 21 July 2013 on the ground that she had overstayed a visa. The following day, she applied for asylum and a decision was made to hear her claim through the 'Detained Fast Track' process. The applicant’s claim for asylum was on grounds of her sexual orientation as a lesbian and that she feared return to Uganda where she was persecuted. Her application was rejected on 6 August 2013 and the applicant appealed two days later as per the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (“the 2005 Rules”), which provided short time frames for the appeals process.

Following a 14-day adjournment, on 30 August 2013, the First-Tier Tribunal dismissed the appeal on the grounds that the asylum claim was not credible and further requests to appeal were dismissed. On 8 October 2013, the applicant’s representatives sought to submit a new application for asylum as evidence had been received from Uganda. This application was refused as it was held it was not a new claim.

The applicant remained in detention from 21 July 2013 until her removal on 12 December 2013. The removal of the applicant was delayed on several occasions due to the state of her health. On 12 December 2013, the applicant was removed to Uganda where she was at the time of hearing. 

In examining the lawfulness of the determination of the First-Tier Tribunal, the judge recognised that it had previously been found that the 2005 Rules, and the proceeding 2014 Rules, were unlawful. In the instant case, the judge recognized that the asylum claim necessarily involved obtaining evidence from external sources and that the timescales envisaged by the 2005 Rules did not provide sufficient time to enable the claimant, who was in detention, to obtain such evidence. The judge also recognized that the applicant provided evidence relatively quickly after the appeal hearing. He thus found that there had been a procedural unfairness in the process for determining the applicant’s appeal.

With regard to appropriate remedy, the judge held that the Secretary of State for the Home Department should facilitate the applicant’s return to the United Kingdom to pursue her appeal. The judge recognised that the claim regards a woman who identifies as lesbian and on the grounds of which she faces persecution in Uganda. Thus, if her claim for asylum were to be subsequently successful, she would face a real risk in the interim.  

Concerning the lawfulness of the detention, the judge held that her detention while appealing the decision in her asylum claim was unlawful due to the lack of transparency as to why she was detained and the Secretary of State’s failure to comply with the ‘Haridal Singh’ principles. Further to this, the Judge held that the Secretary of State failed to prove that it was necessary to detain the applicant if the unlawful policy had not been applied.

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France: Council of State orders Prefecture of Grande Synthe to introduce urgent measures

On 21 June, the Council of State ordered the Prefecture of Grande Synthe to introduce emergency measures for the population in distress residing on its territory, overturning a previous dismissal of the case by Lille Administrative Court.

In assessing the current situation for asylum applicants and migrants in Grande Synthe, the Court recognised that under Article L 521-2 of the Code of Administrative Justice, when a serious and manifestly unlawful infringement of a fundamental freedom occurs, measures must be taken to eliminate the effects of such an infringement.

The Council ordered the Prefecture of the Nord to set up, within eight days of notification of the ordinance, information points in and around the gymnasium of the Espace jeunes du Moulin. This information must be translated into the main languages of the population concerned to inform them of their rights as applicants for asylum, unaccompanied minors or beneficiaries of emergency accommodation. In addition, the Council ordered the Prefecture to install, within the same time frame, a sufficient number of water points, shower cubicles, and toilets near the gymnasium. 

The Prefecture was given eight days to introduce these measures, and would face a fine of 150 euros per day if such measures were not introduced by that date.

Based on an unofficial translation by the EWLU.

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Italy: Preliminary Judge of the Court of Agrigento clears Sea Watch 3 Captain of Charges  

On 30 June 2019, the Preliminary Judge of the Court of Agrigento cleared the Captain of the search and rescue vessel Sea Watch 3, Carola Rackete, of all charges brought against her.  

The applicant submitted that on 12 June 2019, Sea Watch 3 responded to a boat in distress off the coast of Libya and rescued 53 people. They stated that this rescue was carried out in compliance with the obligation to provide assistance to persons at sea in a situation of danger under Article 98 of the UN Convention on the Law of the Sea (UNCLOS). As per a recent report from the Commissioner for Human Rights of the Council of Europe, the European Commission, and recent case law in Italy, Libya cannot be considered a safe port. The applicants submitted that Tunisia was also not considered safe given that, inter alia, Tunisia is not party to the 1951 Geneva Convention and the necessary conditions of assistance and provision of basic needs, which are required to be defined as a ‘safe port’, are not met. The applicant therefore requested to disembark in Lampedusa, Italy. This request was refused by Italian authorities.  After two days in Italian territorial waters, the applicant decided to enter the port of Lampedusa. While entering the port, the ship collided with boats of the Italian authorities. The applicant was subsequently charged with the use of force against Italian warships.

The preliminary judge held that the actions of the applicant were in conformity with the law. The judge recalled that under Article 18 of UNCLOS, the state of the territorial waters in which the boat is located must authorize passage to a ship to provide assistance and, that under Article 10 of Legislative Decree 286/98, the captain and national authorities, without distinction, are required to provide relief and assistance to those arriving irregularly in the territory or following a rescue operation.  

Regarding the charge of aggression towards warships, the judge first held that as the Italian ships were in the territorial waters of Italy within the port of Lampedusa, they could not be considered “warships”. Moreover, the judge held that the actions of the applicant were justified, pursuant to Article 51 of the Criminal Code, in order to fulfil her obligations to those rescued at sea, which apply from the moment of rescue until they disembark in a safe port. The judge cleared the Captain of Sea Watch 3 of all charges brought against her.

Based on an unofficial translation by the EWLU.

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NGOs


Hungarian Helsinki Committee: One year on from amendments to asylum system

The Hungarian Helsinki Committee (HHC) has published an information update on the impact of legislative changes introduced in Hungary one year ago.

As a result of amendments of 1 July 2018 to the Fundamental Law and the Asylum Act, which introduced, inter alia, inadmissibility grounds and the safe third country concept, the update details how these amendments significantly hindered access to the asylum procedure. Other amendments were also made to the Criminal Code and the Police Act, through which those providing assistance to asylum applicants could be punished with up to one-year imprisonment.

The HHC details how it is only aware of 3 positive decisions on asylum applications since 1 July 2018, with all other applications lodged deemed to be inadmissible. The update describes de facto detention in centre where there is a lack of access to food and healthcare, as well as  "streamlined" refoulement to countries of origin. The latest reform, as detailed by the update, is that the Immigration and Asylum Office has been closed as of 1 July 2019, and all asylum applications are now to be lodged with the National General Directorate for Alien Policing.

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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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