ELENA Weekly Legal Update - 6 December 2013
View this email in your browser

6 December 2013

Welcome to the new format of the ELENA Weekly Legal Update. From now on, each update will also be available on the ECRE website.

Summary

European Court of Human Rights
European Union
United Nations
Council of Europe
National Developments
Conferences

European Court of Human Rights



Ghorbanov and Others v. Turkey (no. 28127/09) [Articles 3 and 5], 3 December 2013

The 19 applicants, 12 of whom were children at the relevant time, are members of four Muslim families who used to live in Uzbekistan and are now living in hiding in Turkey. They fled Uzbekistan in the 1990s due to state pressure on Muslims and, after spending four years in Tajikistan, Afghanistan, and Pakistan, settled in Iran in 2001 and were granted refugee status by UNHCR in early 2006. The Iranian authorities rejected the families’ request for a school to be established in the refugee camp, and threatened them with deportation to Uzbekistan. Fearing this, the families fled to Turkey in 2007. The families were recognised as refugees by UNHCR, and granted temporary residence, food rations and school places for their children.

On 12 September 2008, the applicants were allegedly invited to Turkish police headquarters to collect food rations and school stationery. However, on arrival, they were instead detained, driven to the border, and deported to Iran on the same day. The applicants re-entered Turkey irregularly the following week, only to be collected from their homes by police officers and deported to Iran for a second time on 11 October 2008. Their second deportation forced the applicants to walk for ten days in winter conditions between villages close to the Turkey-Iran border. They sought assistance from the Iranian gendarmerie, who detained the applicants for two days before returning them to Turkey.

The Turkish Ministry of the Interior’s position was that the applicants were former members of the Islamic Movement of Uzbekistan, a terrorist organisation according to the EU and the USA, and had been deported to Iran, a safe third country, in compliance with the legislation in force. The applicants complained to the ECtHR that their rights under Articles 3 (prohibition of torture and of inhuman or degrading treatment) and 5(1), (2) and (4) (rights to liberty, to be informed of the reasons for detention, and to have lawfulness of detention decided speedily by a court) had been violated.

The court noted that the applicants were recognised refugees, mostly children, and in possession of valid residence permits. Furthermore, the Turkish government had failed to answer questions and submit evidence to the court of a formal deportation order communicated to the applicants, of an admission guarantee from the Iranian authorities, and of any official record of the deportation. On this basis, the court decided that, even if the Turkish authorities regarded some of the applicants as dangerous for national security, this was an illegal and apparently premeditated deportation to Iran, a non-member state of the Council of Europe, without any legal procedure or safeguards, and therefore amounted to a violation of Article 3.

The court also found violations of Article 5(1) and (2), in view of the absence of a clearly established detention procedure and the failure to inform the applicants of any reasons for detention. Consideration of Article 5(4) was not deemed necessary. The court awarded each applicant 10,000 Euros in respect of non-pecuniary damage.

Read the judgment of the European Court of Human Rights.

Back to top
 

Sharifi v. Austria (no. 60104/08) [Article 3], 5 December 2013

The applicant is an Afghan national who, after appealing twice unsuccessfully, was transferred under the Dublin II Regulation from Austria to Greece in October 2008. He complained before the ECtHR that his transfer violated his rights under Article 3 (prohibition of degrading treatment) due to deficiencies in the Greek asylum procedure and reception conditions.

The ECtHR found no violation of Article 3. The court highlighted that 'the main issue of the present application is whether the Austrian authorities knew or should have known that the applicant’s actual expulsion to Greece on 20 October 2008 violated Article 3' [33]. The court noted that 'at the relevant time, the information available to the Austrian authorities was ample, but also partly conflicting in their recommendations and results' [34], as reflected by the December 2008 decision of the ECtHR in K.R.S. v. the United Kingdom (no. 32733/08), which confirmed a presumption that Greece was compliant with the EU asylum acquis. The court also relied on the fact that, at the relevant time, no Member State had imposed a blanket ban on transfers to Greece, and unlike Belgium in M.S.S. v. Belgium and Greece [GC] (no. 30696/09), Austria had not received any UNHCR letter unequivocally asking for transfers to be suspended to Greece. Finally, the court was satisfied by the Austrian authorities' 'sufficient reasoning' motivating their decision to transfer the applicant to Greece [37].

The ECtHR concluded as follows: 'While the Court considers it established that in autumn 2008 the Austrian authorities would have been aware of serious deficiencies in the Greek asylum procedure and the living and detention conditions for asylum-seekers, it does not find it established that, all circumstances considered, the Austrian authorities ought to have known that those deficiencies reached the Article 3 threshold' [38].

In a related Article 6 challenge, the court summarily declared it inadmissible due to the established position that 'decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations' [41].

Read the judgment of the European Court of Human Rights.

Back to top

 

Upcoming Judgments of Interest, 12 December 2013

Khuroshvili v. Greece (no. 58165/10) [Articles 3 and 5] (conditions and review of immigration detention).

Latipov v. Russia (no. 77658/11) [Articles 3 and 13] (disappearance and risk of deportation to Tajikistan),

Back to top

European Union



Court of Justice: New reference in Case C-514/13, Ettayebi Bouzalmate

A reference for a preliminary ruling concerning Article 16 of the Returns Directive was published by the CJEU on 29 November 2013. It was lodged on 26 September by the Landgericht München I (Germany) and the question reads as follows:

Does it follow from Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals that a Member State is required, as a rule, to detain a person for the purposes of removal in a specialised detention facility if such facilities exist only in a part of the federal structure of the State, but not in another part in which the detention is carried out in accordance with the provisions governing the federal structure of that Member State?

This case has been joined to C-473/13 Adala Bero, which concerns a similar question.

The reference is available on the website of the Court of Justice of the European Union.

Back to top
 

Court of Justice: New reference in Case C-542/13, Mohamed M’Bodj

A reference for a preliminary ruling concerning Articles 2(e) and (f), 15, 18, 20, 28 and 29 of the Qualification Directive was published by the CJEU on 29 November 2013. It was lodged on 17 October by the Cour constitutionnelle (Belgium) and the questions read as follows:

1. Must Articles 2(e) and (f), 15, 18, 28 and 29 of Council Directive 2004/83/EC of 29 April 2004 ‘on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’ be interpreted as meaning that not only a person who has been granted, at his request, subsidiary protection status by an independent authority of the Member State must be entitled to benefit from the social welfare and health care referred to in Articles 28 and 29 of that directive, but also a foreign national who has been authorised by an administrative authority of a Member State to reside in the territory of that Member State and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment in the case where there is no appropriate treatment in his country of origin or in the country in which he resides?

2. If the answer to the first question referred for a preliminary ruling is that the two categories of persons who are there described must be capable of benefiting from the social welfare and health care referred to therein, must Articles 20(3), 28(2) and 29(2) of Directive 2004/83 be interpreted as meaning that the obligation imposed on Member States to take into account the specific situation of vulnerable persons such as disabled people implies that the latter must be granted the allowances provided for by the Law of 27 February 1987 concerning allowances for disabled people, in view of the fact that social assistance which takes account of the handicap may be granted pursuant to the Basic Law of 8 July 1976 on public social welfare centres?

The reference is available on the website of the Court of Justice of the European Union.

Back to top
 

European Commission: Communication on the work of the Task Force Mediterranean

The Task Force, set up in October 2013 to identify possible EU measures to avoid repeats of the tragedy off the coast of Lampedusa, reported a Communication to the Justice and Home Affairs Council on 5 December 2013. The task force identified five main areas of action which will be pursued actively during the coming months:

(1) Actions in cooperation with third countries, including Mobility Partnership Agreements and more dialogues on migration;
(2) Regional protection, resettlement and reinforced legal avenues to Europe, including increased funding, ‘exploring possibilities for protected entries’, and Regional Protection Programmes;
(3) Fight against trafficking, smuggling and organised crime, including strengthening Europol, reviewing EU smuggling laws, and capacity-building programmes in North Africa;
(4) Reinforced border surveillance contributing to enhancing maritime situational picture and to the protection of saving of lives of migrants in the Mediterranean, with reference to EUROSUR and European Patrols Network;
(5) Assistance and solidarity with member states dealing with high migration pressure, including 50m Euros of financial support and ‘supported processing’.

The Communication also reassures shipmasters and merchant vessels that they would not face any negative legal consequences for providing assistance to migrants in distress.

Read the full Communication, the Commission’s press release, and the JHA Council’s press release.

 

United Nations



UNHCR:  Guidelines published on International Protection claims related to military service

The UNHCR’s latest International Protection Guidelines, published on 3 December 2013, concern claims for refugee status by deserters and persons avoiding military service within the context of Article 1A(2) of the Geneva Convention and Protocol. UNHCR states that new guidelines are necessary because of considerable developments both in the practice of States and in the restrictions placed on military service by international law. These Guidelines examine the position of individuals who seek international protection to avoid recruitment by, and service in, State armed forces, as well as forced recruitment by non-State armed groups.

The Guidelines address the definition of key terms, provide an overview of international legal developments relating to military service, examine the refugee determination criteria as they apply to claims involving military service, and consider procedural and evidentiary issues. The Guidelines focus on the interpretation of the “inclusion” components of the refugee definition, rather than on exclusion considerations.

Read the Guidelines on the Refworld website.

Back to top
 

Council of Europe



Committee of Ministers: Decision on execution of M.S.S. case calls on Belgium and Greece to provide more information

The Committee discussed the implementation of M.S.S. v. Belgium and Greece [GC] (no. 30696/09) during their meeting this week and issued a decision on 5 December 2013 calling on both governments to provide more information. From Belgium, the Committee seeks information on the remedy for a stay of execution under the extremely urgent procedure. As to Greece, the Committee notes with satisfaction that the recently established new Asylum service, Appeals Committee, and First Reception Centres have started operating. The Committee’s Secretariat will make an assessment of new information on the asylum procedure provided by Greece in November 2013, and Greece is requested to provide more information concerning their asylum procedure, conditions of detention and the living conditions of asylum seekers.

The Committee will next consider asylum procedure and conditions of detention in June 2014, and resume attention to living conditions of asylum seekers in Greece in December 2014.

Read the decision of the Committee of Ministers of the Council of Europe.

Back to top
 

National Developments



Switzerland: Restrictions reinstated on non-core relatives in Syria to join family in Switzerland

On 29 November 2013, the Swiss Federal Council announced a re-application of former restrictions on family reunification rights for Syrians residing in Switzerland. From 4 September to 29 November 2013, the Swiss government extended the family reunification rights of Syrians residing lawfully in Switzerland to cover non-core relatives in the region. As a result, siblings, grandparents, parents, children over the age of 18 and grandchildren residing in Syria or neighbouring countries were treated the same as spouses and children, and were therefore able to obtain a visa to travel to Switzerland and a temporary residence permit. Civil registry documents and valid passports were not required, there was no need to show that the person granted temporary protection would leave Switzerland after the expiration of the visa, it was not necessary to show a personal, immediate danger, and financial means were not examined.

However, last week the Swiss government brought the policy to an end, arguing that most of the legitimate visa applications by family members in an immediate emergency have already made use of the facilitation, thereby making further facilitation no longer necessary. Furthermore, the authorities state that in recent weeks Swiss embassies have been faced with a very high number of applications, which has led to waiting times lasting months.

For all pending applications, the visa facilitation is still available but under stricter conditions. Pending applicants will have a duty to leave Switzerland after 90 days (unless they apply successfully for further protection), and their family member in Switzerland will need to demonstrate sufficient financial means. From December 2013 onwards, only core family members can apply for reunification with family regularly residing in Switzerland. Non-core family members without pending applications will need to apply for a humanitarian visa, which requires a real and concrete danger to life or physical integrity and an absence of any other country in which refuge can be sought.

Read the announcement (French, German and Italian only) of the Swiss Federal Council. This information is also available in the ECRE/ELENA Information Note on Syrians seeking protection in Europe, published in November 2013.

The Weekly Legal Update would like to thank Muriel Trummer, the Swiss ELENA coordinator, for providing ECRE with information concerning this development.

Back to top

 

Conferences



European Database of Asylum Law: Conference entitled ‘Reflections on the Current Application of the EU Asylum Acquis’ now open for registration

The conference, organised by the Irish Centre for European Law and the Irish Refugee Council, will take place on 17-18 January 2014 at the Hilton Charlemont Hotel in Dublin, Ireland.

The European Database of Asylum Law is a key legal tool complementing the numerous endeavours seeking to strengthen the development of harmonized standards of protection within the Common European Asylum System. As the fruits of the second phase of the CEAS begin to be implemented, the EDAL Conference provides a space to critically and constructively reflect on the reality of the achievements of the CEAS to date and to consider the potential for greater levels of protection and harmonisation in the future. The Conference will be of interest to decision-makers, practitioners, academics and NGO representatives from across Europe and participants will benefit from ample opportunity to compare and contrast the current application of EU measures across Member States.

The European Database of Asylum Law is a project funded by the European Commission and is coordinated by the Irish Refugee Council in partnership with the European Council for Refugees and Exiles and the Hungarian Helsinki Committee.

The EDAL website contains more information on speakers and topics, and on how to book a place.

Please kindly advertise this conference through your networks.

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 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 Matthew Fraser (mfraser@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).



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