European Court of Human Rights
F.G. v. Sweden (no. 43611/11) [Articles 2 & 3 ECHR], 23 March 2016, Grand Chamber
The Grand Chamber has given its ruling in the case of F.G. v. Sweden (no. 43611/11), in which ICJ, the AIRE Centre and ECRE jointly intervened.
The case relates to an Iranian national who claimed asylum in Sweden in 2009, based on his political activities and his conversion from Islam to Christianity shortly after arrival to Sweden. The Swedish Migration Board questioned him on his conversion but the applicant stated that he did not wish to rely on it as a ground for asylum as he considered it a private matter.
The Migration Board rejected his asylum claim finding that his political past did not put him at risk from the Iranian authorities and that he would not be at risk of persecution for privately pursuing his faith. This finding was upheld by the appeal court which gave no consideration to the applicant’s religious views. The applicant applied to stay the enforcement of his deportation order as he now sought to rely on his conversion. The Swedish authorities did not consider this to be a new circumstance and his deportation order became enforceable. However, in October 2011 the ECtHR indicated Rule 39 interim measures preventing his expulsion for the duration of the proceedings. The applicant claimed that upon removal to Iran he would be at risk the death penalty due to his conversion and/or subject to ill-treatment, contrary to Articles 2 and 3 ECHR. The ECtHR dismissed these claims by a 4-3 majority in a Chamber judgment of 16 January 2014. The case was referred to the Grand Chamber on the basis of Article 43 ECHR.
The Grand Chamber finds that generally in relation to an asylum claim based on an individual risk, as opposed to a well-known general risk, the asylum seeker must rely on and substantiate the risk. However where a State is made aware of facts that could expose an applicant to an individual risk of ill-treatment upon expulsion, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk of its own motion [para.127]. This is due to the absolute nature of the rights guaranteed by Articles 2 and 3 ECHR and the vulnerable position of asylum seekers.
With regard to his political past, the ECtHR finds that this claim was properly assessed by the Swedish authorities. There was no evidence opposing its conclusion that his activities were low level, and would not expose him to Article 2 or 3 harm upon return to Iran.
Turning to the applicant’s conversion, the ECtHR found that the authorities were aware of this and thus knew that he might belong to a group of persons at possible risk of ill-treatment in Iran. Despite this, they had erroneously never carried out a thorough examination of this risk on the basis that the applicant had not invoked it as a ground for asylum. An individual could not forego the absolute protection given by Articles 2 and 3 ECHR. The national authorities therefore had an obligation to assess all information brought to their attention of their own motion, before deciding whether the applicant could be removed to Iran [para.156]. Furthermore, additional documents had been submitted to the Grand Chamber which had not been assessed by the Swedish authorities. The ECtHR concluded that there would be a violation of Articles 2 and 3 ECHR if the applicant were removed to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his conversion.
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Council of Europe
CPT: Report on the Former Yugoslav Republic of Macedonia
The Committee on the Prevention of Torture has published a report on the Former Yugoslav Republic of Macedonia, following a visit from 7-17 October 2014.
It finds that the closed centre for the detention of irregular migrants in Skopje was seriously overcrowded, with conditions that could be described as amounting to inhuman and degrading treatment. There was poor sanitation, inadequate food, no organised recreational activities and limited access to outdoor exercise. There were also numerous, consistent and credible allegations of physical ill-treatment by security staff. Furthermore, the special accommodation needs of families, victims of trafficking and unaccompanied minors were not being met. FYROM was not fulfilling its obligations towards unaccompanied minors with regard to legal aid, social support, medical care and the right to education. The CPT also raises issues over the ineffective right to claim asylum in detention. It makes a number of recommendations to the FYROM government.
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GRETA: 5th General Report with focus on identification of victims of trafficking among asylum seekers, refugees and migrants
The Council of Europe Group of Experts on anti-trafficking (GRETA) has published a report on its activities from October 2014 to December 2015, with a thematic section focusing on the identification of victims of trafficking among asylum seekers, refugees and migrants in a number of countries. This sets out a number of recommendations as well as highlighting good practices.
The report sets out a number of failings from State Parties to comply with its positive obligation to identify victims in Article 10 of the anti-trafficking convention. GRETA has urged 36 out of 40 evaluated countries to improve the identification of child victims of trafficking who are particularly vulnerable and at risk, and their assistance and support in line with States legal obligations. The report also analyses access to asylum and the obligation of non-refoulement for victims of trafficking.
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UNHCR: Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey
UNHCR has published legal considerations on the return of asylum-seekers and refugees from Greece to Turkey under the safe third country and first country of asylum concept. This is envisaged in the EU-Turkey deal, as set out in the European Council statement and conclusions of 18 March 2016, with further information in the European Commission Factsheet. UNHCR analyses the ‘first country of asylum’ and ‘safe third country’ concepts in international and European refugee and human rights law, in particular highlighting strict substantive criteria and procedural safeguards set out in the recast Asylum Procedures Directive (rAPD).
It considers that in the absence of a definition of the meaning of ‘sufficient protection’ in Article 35(b) rAPD and the widely divergent approaches to the application of this among Member States, the appropriate course of action would be for a national Greek court to make a reference to the CJEU. It also finds that clarification is needed over whether Syrian asylum seekers returned from Greece to Turkey will be able to reavail themselves of temporary protection. In relation to the safe third country concept in Article 38(1) rAPD UNCHR notes that Greece must set out specific rules in national law, to comply with Article 38(2), and is unable to apply the safe third country concept prior to putting in place these rules. It is crucially important that the person concerned will receive protection in accordance with the 1951 Convention and 1967 Protocol (Article 38(1)e) rAPD) which means that Turkey must allow non-European nationals or stateless persons to have access to all rights conferred by the 1951 Convention. In the absence of a clear understanding of this provision, the appropriate course of action would be for a national court to submit a request for a preliminary ruling to the CJEU on the interpretation of Article 38(1)e) rAPD.
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Belgium: CALL overturns revocation of refugee status
This case relates to a national of Guinea who claimed asylum in Belgium in January 2012 based on a fear of persecution relating to the political activities of her husband, as well as on the basis of the fear that her daughter would be subjected to FGM by members of her husband’s family in Guinea. In January 2013, the Commissioner General for Refugees and Stateless Persons (CGRS) recognised her as a refugee, solely on the basis of the latter reason.
Her husband subsequently arrived in Belgium and claimed asylum. The applicant was also interviewed. The CGRS found a number of inconsistencies and contradictions between the account of the applicant and that of her husband in relation to events immediately prior to the applicant’s arrival in Belgium, namely his occupation, the date of his arrest and the circumstances of his detention. Her husband also stated that they would be able to protect their daughter upon return to Guinea. The CGRS considered that these contradictions indicated that she had attempted to deceive them, which also called into question her fear relating to risk of FGM for her daughter. It therefore decided to revoke her refugee status. She challenged this decision before the Court.
The Court noted that given the gravity of the consequences of revoking refugee status, provisions on this should be interpreted strictly. In this context, the inconsistencies relating to the applicant’s husband’s political problems were not directly linked to the risk of FGM of the applicant’s daughter. It found that the husband’s statements were inconsistent, which indeed led to him being refused protection in Belgium, and it could not be ruled out that he came to Belgium in order to sabotage the applicant’s status and to take his daughter to Guinea.
The Court concluded that the CGRS had not sufficiently established that the applicant had been fraudulent with regard to her personal situation and her inability to protect her daughter from FGM on return to Guinea. It therefore overturned the revocation decision, maintaining refugee status.
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Franz Geleyn for providing this judgment and his assistance with the summary.
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UK: Country Information and Guidance reports on Iran
The UK Home Office has published a country information and guidance report on human rights defenders in Iran. It considers that those who are likely to or have come to the adverse attention of the authorities are likely to face ill-treatment and persecution, with state protection and internal flight alternative not available.
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ECRE and ICJ: Fifth submission on the implementation of the M.S.S. Judgment
On 24 March, the ICJ and ECRE presented a joint submission to the Council of Europe Committee of Ministers on the situation of asylum and reception systems in Greece, in view of its upcoming consideration of the implementation of the ECtHR judgment in M.S.S. v. Belgium and Greece. The execution of the judgment is still under consideration by the department for the execution of judgments, and previous submissions are available here, including previous submissions by the ICJ and ECRE.
The submission focuses on ongoing obstacles to accessing the asylum procedure and the likely application of the ‘safe third country’ concept to Turkey, the state of Greece’s reception system, and updated information on the lawfulness and conditions of immigration detention in Greece, including in relation to the ‘hotspots’.
For further information on the asylum system in Greece, please see the AIDA country report, up to date as of 30 September 2015.
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ECRE: AIDA Country Report on Serbia
AIDA has published its first country report on Serbia, written by the Belgrade Centre for Human Rights. The report details the workings of the Serbian asylum system, set out by the Law on Asylum of 2007 and relevant legislation. While legislation is deemed to be generally in line with international standards, its poor implementation accounts for deficiencies in the procedure and treatment of asylum seekers.
Throughout the summer, there was a significant rise in the number of persons “expressing the intention to seek asylum” in Serbia. This status requires prospective applicants to report to one of the five Asylum Centres in the country within 72 hours, to register and submit their asylum application. Out of 577,995 intentions to seek asylum expressed in 2015, only 583 resulted in submitted applications. However, in September 2015, Serbia introduced a special legal status for persons transiting through the country with the intention of travelling on to other countries, who were issued with “certificates for migrants coming from countries where their lives are in danger”. This measure has visibly led to a decrease in the number of persons expressing the intention to seek asylum in Serbia, as only 475 such intentions were expressed in the course of January 2016.
Serbia has offered limited protection to those fleeing persecution or serious harm so far. Since the establishment of the Asylum Office in 2008, only 48 persons have been granted international protection; 30 of those were recognised in 2015. International protection has been granted mainly to Syrian, Libyan and Ukrainian nationals. The report also mentions barriers to access to the protection, including denial of access to the procedure for asylum seekers returned from Hungary.
Based on the AIDA news article dated 18 March 2016, available here.
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