ELENA Weekly Legal Update (EWLU)

8 July 2016


European Court of Human Rights

O.M. v. Hungary (no. 9912/15), [Article 5 ECHR], 5 July 2016

The Fourth Section of the European Court of Human Rights has given its ruling in the case of O.M. v. Hungary (no. 9912/15) regarding the immigration detention in Hungary of an Iranian LGBT asylum seeker.
In June 2014, O.M had arrived in Hungary, where he was apprehended and subsequently applied for asylum. On 25 June 2014, the Office of Immigration and Nationality ordered for the applicant to be detained, referring to the fact that his identity and nationality had not yet been clarified and to the risk of absconding. He was then arrested and placed in a detention facility, where he was kept for 58 days.
The Court reiterated that Article 5 ECHR protects individuals against arbitrary interference by a Member State with his or her right to liberty. Any deprivation of liberty will only be lawful when it falls within the exhaustive list of permissible grounds listed in the sub-paragraphs (a) to (f) of Article 5 § 1 ECHR. In addition, detention measures must be prescribed by law and be of a sufficient quality to protect from arbitrariness. The authorities must further carry out a proportionality and necessity analysis, which includes an analysis of alternative means of detention. In this assessment the Court considers the following points relevant: the nature of the obligation arising from the relevant legislation, including its underlying object and purpose; the person being detained and the particular circumstances leading to the detention; and the length of the detention.
In the circumstances of the applicant’s case, the Court found that Article 5 § 1 (b) ECHR could not serve as a legal basis of the immigration detention. The Court therefore unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 § 1 ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised special care the authorities should exercise when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.
ECRE submitted joint written observations in this case, with the ICJ, the AIRE Centre, and ILGA-Europe. The case was brought by the Hungarian Helsinki Committee.

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A.M. v. the Netherlands (no. 29094/09), [Articles 3, 13 ECHR], 5 July 2016

The Third Section of the European Court of Human Rights has given its ruling in the case of A.M. v. the Netherlands (no. 29094/09) concerning the removal of an asylum seeker to Afghanistan in light of the prohibition of torture and of inhuman and degrading treatment and the right to an effective remedy.   
The case relates to an Afghan national of Hazara origin, who had applied for asylum in the Netherlands. The applicant stated to fear persecution and ill-treatment in Afghanistan for his membership of the communist People’s Democratic Party of Afghanistan and for his involvement in the Revolutionary Guard and the party Hezb-e Wahdat. The Minister for Immigration and Integration rejected his asylum application based on the application of Article 1F of the 1951 Refugee Convention. The Regional Court of The Hague rejected his subsequent appeal. The applicant did not submit a further appeal with the Administrative Division of the Council of State. Instead, the applicant submitted an application to the ECtHR claiming that he would face a real risk of being subjected to treatment contrary to Article 3 ECHR, if expelled from the Netherlands to Afghanistan. He further claimed that he did not have an effective remedy on this point as safeguarded by Article 13 ECHR.
Notably, the Court rejected the argument by the government that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 ECHR. The Court observed that a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. This is however required under Article 13 taken together with Article 3 for a domestic remedy to be considered effective.
Nevertheless, the Court held that there had been no violation of Article 13 ECHR in conjunction with Article 3 ECHR. Under Article 13 ECHR, Member states are not required to set up a second level of appeal. As the appeal with the Regional Court of the Hague in asylum cases did have an automatic suspensive effect, the applicant had at his disposal an effective remedy for challenging the rejection of his asylum application. In addition, the Regional Court was empowered to rigorously examine any risks of treatment contrary to Article 3.
The Court further held that the applicant had also failed to demonstrate that there are substantial risks for believing that he would be subjected to treatment contrary to Article 3 ECHR. The Court observed that the applicant had remained in Afghanistan after the overthrow of the communist regime without encountering any problems with the Taliban. Moreover, the applicant had not been sought-after by the party Jamiat-e Islami or attracted any negative attention from any governmental or non-governmental body or any private individual in the country on account of his communist past or his activities for Hezb-e Wahdat. The Court also considered that there would not be a real risk of ill-treatment for people of Hazara origin. Lastly, there was no general situation of violence to the extent that there would be a real risk of ill-treatment for the general return of people to Afghanistan.

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National Developments

Belgium: CALL suspends Dublin transfer over doubts of age 

On 26 June 2016, the Council for Alien Law Litigation (CALL) suspended the expulsion of an Angolan woman because of doubts related to her age. Travelling to Belgium on a Portuguese visa, the applicant applied for asylum there in February 2016 claiming to be an unaccompanied asylum seeking child. After an examination the Belgian authorities established that she was an adult and therefore started the Dublin procedure to return her to Portugal. Portugal accepted the take back request in May 2016. She appealed against this decision submitting a birth certificate as a new element in the dossier. The transfer was postponed for 7 days and the case was submitted to the CALL for a suspension.

The CALL declared the case admissible and subsequently assessed the extreme urgency, the prima facie seriousness of the reasons for suspension and the question whether a transfer could lead irreparable harm to the applicant. The Council declared that the extreme urgency requirement was automatically fulfilled on the basis of Article 39/82 (4) of the Aliens Act because as the applicant was in detention. The prima facie seriousness of the reasons for suspension is related to the issue of whether the Angolan woman is a child. Based on the Dublin III Regulation read in conjunction with Articles 13 ECHR and 24 of the Charter, the Court found that treating a possible child as an adult was a serious enough reason to satisfy this condition. The Court based this on the fact that there will be no safeguards in place for the child to be treated as such if she is transferred to Portugal as an adult. Besides this, Portugal also did not give its consent to taking back a child, which would be in breach of Article 6 of the Dublin III Regulation. Finally the Council said that transferring the Angolan national would harm the interest of the child if it would be established that the she is indeed a child.

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

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Netherlands: the Hague District Court suspends Dublin transfer of an alleged child

On 16 June 2016, the Hague District court ruled on the subject of a Dublin transfer to France of an alleged child.
The asylum application of a Nigerian national, who claimed asylum in the Netherlands, was rejected because he had previously applied for asylum in France. In response, the asylum seeker submitted an authentic copy of his birth certificate in support of his claim that he is a child. In accordance with Article 8 (4) of the Dublin III Regulation the Netherlands should be responsible for the examination of the asylum application, if in the best interest of the child. The child should have been offered an age assessment test. However, the State Secretary held that the asylum seeker was evidently an adult, which precluded this test.
The State Secretary had based his decision solely on the statements made by the child during his first interview. The child had declared to be 16 years old, born in 2000. He had also alleged to have started school at his 4th or 5th birthday. He stayed in school for 11 years until 2011-2012. The State Secretary therefore concluded that the alleged child was actually around 18 or 19 years old, born in 1996.
The Court held that the State Secretary had insufficiently motived its decision not to offer an age assessment test. Given these considerations, the Court did not continue to examine whether the Netherlands was responsible for the examination of his asylum application in light of the best interest of the child principle. The Court obliged the State Secretary to reconsider the decision not to offer an age assessment test in light of the judgment.
Based on an unofficial translation by the ELENA Weekly Legal Update. The State Secretary of Security and Justice has appealed this decision.

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Prague Process – Handbook on Quality in Asylum Decision Making: Using Jurisprudence and Multidisciplinary Knowledge for Training Purposes 

The Prague Process has published a Handbook on the Quality in Asylum Decision Making: Using Jurisprudence and Multidisciplinary Knowledge for Training Purposes.
These guidelines aim to assist decision makers and case workers in asylum procedures by giving practical guidance on how to develop continuous training using jurisprudence and multidisciplinary knowledge for training purposes. The document does not entail detailed information regarding the overall asylum systems for the participating states.
ECRE amongst others contributed to the drafting of the handbook.

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ECRE: ECRE is recruiting a 10-month Legal Officer

ECRE is offering 10-month Legal Officer’s post starting in August 2016. The purpose of this position is to enhance capacity of ECRE’s Legal Support and Litigation Team in providing legal and litigation support to ECRE and ELENA members. The post holder will be expected to contribute to ECRE/ELENA’s legal research on specific topics relating to international protection, legal training and EDAL database.

Candidates should send a copy of their curriculum vitae (2 pages) and an application form to Julia Zelvenska ( by 22 July 2016 stating “Application Legal Officer” in the subject heading.

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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