ELENA Weekly Legal Update - 22 May 2015
View this email in your browser

22 May 2015



Council of Europe

ECtHR: Mukhitdinov v Russia (no. 20999/14), [Articles 3, 5§1, 5§4, 34], 21 May 2015

The applicant is an Uzbek national who had been living in Russia since 1997, acquiring Russian nationality in 2001. After the Russian Federal Migration Service determined that the applicant had obtained nationality by fraud, the applicant was made stateless due to his Uzbek nationality being forfeited after time outside of the territory. Detained by Russian authorities pending extradition following the release of an arrest warrant by Uzbek authorities on charges related to the alleged participation in religious terrorist organisations and for illegally crossing the Uzbek border, the applicant was held for 8 months, before being released. Although the applicant had been granted temporary protection after the Court had indicated interim measures to Russia, and therefore should not have been extradited or involuntarily removed from Russian territory during proceedings before the Court, the applicant’s current whereabouts are unknown, and it is claimed that he was forcibly transferred to Uzbekistan.

The applicant’s complaint alleged that his return to Uzbekistan would expose him to a real risk of treatment contrary to Article 3 ECHR (prohibition of inhuman or degrading treatment). Further, it was submitted that the detention pending extradition was excessively long, and there was no recourse to adequate review by the courts in violation of Article 5§1 (right to liberty) and Article 5§4 (right to speedy court determination of lawfulness of detention). A second complaint under Article 3 was also registered due to alleged Russian involvement in, and ineffective investigation into, his forced return. 

The Court noted that there have been numerous reports detailing the use of torture and ill-treatment techniques by law enforcement agencies, severe detention conditions, and persecution of political opposition and certain religious groups in Uzbekistan, and that no evidence had been presented to the Court that demonstrated that the Russian authorities had made efforts to evaluate the risks of the extradition. It was thus concluded that the enforcement of the extradition order exposed the applicant to ill-treatment in breach of Article 3. A subsequent violation of Article 3 was found with a related violation of Article 34 (failure to comply with interim measure) as the Court ruled that whatever the authorities' extent of involvement in the transfer, they had failed in their obligations to protect the applicant from such a transfer and conduct an effective investigation into the incident.

With the maximum period of detention awaiting extradition for ‘medium-gravity’ offences under Russian set at six months, the applicant’s detention ceased to be lawful after being detained for this period of time, and thus there had been a  violation of Article 5§1. The applicant’s attempts to raise the argument that his detention had ceased to be lawful were disregarded by Russian authorities, and the merits of this grievance were only examined 70 days after the detention had ceased to be legal. The Court found that this was manifestly inadequate, and not ‘speedy’ within the meaning of Article 5 § 4, and therefore was a violation this article.

Read the judgment of the European Court of Human Rights. 

Back to top

A.T. v Sweden (no. 78701/14): Joint written submission delivered

A joint written submission was delivered to the European Court of Human Rights in the case of A.T. v Sweden  by the AIRE Centre, Amnesty International, ILGA Europe, the International Commission of Jurists, and UKLGIG on 19 May 2015.

In this case an Iranian national had applied for asylum in Sweden, and complained under Article 2 and 3 of the European Convention on Human Rights (ECHR) that if he was expelled from Sweden to Iran he would be exposed to a real risk of being subjected to torture or ill-treatment, or being sentenced to death, because of his sexual orientation. The joint submission focuses on the obligation to ensure that the risk upon removal to be assessed to guarantee that the protection from the ECHR be practical and effective; that requiring coerced suppression of a fundamental aspect of identity is inconsistent with Article 3 ECHR (prohibition of inhuman and degrading treatment); and that the criminalisation of same-sex sexual conduct gives rise to a real risk of Article 3 ECHR prohibited treatment.  It also looks at the significance of the EU asylum acquis and the case-law of the Court of Justice of the European Union.

Back to top

European Union

Court of Justice: Case C-155/15 Karim, Reference for a preliminary ruling, 20 March 2015 

The applicant, George Malki Karim, is Syrian. He submitted in March 2014 an application for international protection in Sweden. The inspection revealed that the applicant had made a request in Slovenia in May 2013. The Swedish Migration Agency therefore called Slovenia to take back and examine the request of the applicant in accordance with Regulation 604/2013 (Dublin III Regulation). However, the applicant informed the Migration Agency that he had stayed for more than three months outside the EU in the meantime. His passport contained one entry stamp from Lebanon on 20 July 2013. Slovenia still agreed to take back the applicant, so his application in Sweden was rejected. The applicant lodged an appeal with the Migration Court in Stockholm, which rejected his appeal for the reasons stated in the case C-394/12 Abdullahi: the court noted that the procedure was correct, that the applicant’s stay outside the EU in this case was irrelevant, and that there are no other reasons for the criteria of the Dublin III Regulation not to apply.

The applicant lodged an appeal before the referring court, the Migration Court of Appeal at the Administrative Court of Appeal in Stockholm. He maintained his position that Dublin III does not apply because he left the territory of the EU for more than three months. He also appealed on humanitarian grounds, because of the deficiencies in the asylum procedure in Slovenia. The Swedish Migration Agency disputed the applicant’s view on the implementation of the Regulation and pointed out that the procedure is primarily a matter between the EU Member States.

The Administrative Court of Appeal of Stockholm submitted the following questions to the CJEU for a preliminary ruling:

(1) Are the new provisions on effective remedies of Regulation No 604/2013, Recital 19 and Article 27(1) and (5), interpreted as meaning that an applicant must have the opportunity to challenge the criteria of Chapter III of the Regulation under which he or she may be transferred to another Member State which has agreed to receive him or her, or is an effective remedy limited in the sense that it applies only to the right to an assessment of whether there are systemic deficiencies in the asylum procedure and reception conditions in the Member State in which the applicant will be transferred (by analogy with the judgment of the Court of Justice in Case C-394/12)?

(2) If the Court considers that it should be possible to have an effective remedy against the criteria of Chapter III of the Regulation, is Article 19(2) of Regulation No 604/2013 interpreted as meaning that the Regulation should not apply if the applicant demonstrates that he or she has been living for at least three months beyond the territory of the Member States?

The original Swedish text can be found on the EDAL website here.

The ELENA Weekly Legal Update would like to thank Michael Williams and Minos Mouzourakis for providing us with a translation of this reference.

Back to top

National Developments

Belgium: Council of Aliens Law Litigation suspends Dublin Transfer to Spain

A decision by the Belgian Council of Aliens Law Litigation (CALL) on 29 April 2015 suspended the decision to transfer a Guinean national to Spain.

The applicant had lodged an asylum application in Belgium which had been refused with an order to leave the territory on the basis that Spain, under Article 13.1 of Dublin III Regulation, was competent to deal with the asylum request. The applicant subsequently lodged a request with the CALL to suspend this transfer under the ‘extremely urgent procedure’.

The applicant spent a number of months in Spain in 2014, before arriving in Belgium. In Spain, he had his fingerprints taken, and claimed that he had been discouraged by a social worker from applying for asylum there. A little later, the applicant found himself without any aid in Madrid, living on the streets. With psychological damage emanating from the aftereffects of physical trauma sustained due to ill-treatment in his country of origin, medical records suggested that the applicant was a vulnerable person. The agreement to return the applicant to Spain contained no guarantee that the applicant’s vulnerability would be taken into account in the Spanish asylum system, with there being no specific procedure existent for the identification of vulnerable persons. Merely sending the applicant’s medical certificate to the Spanish authorities would not be sufficient to guarantee this.

Further, there was no guarantee that the individual would be able to introduce a new request for international protection in Spain. Whilst the CALL noted that there were no systemic deficiencies in the Spanish asylum system, the aforementioned lack of guarantees meant that the applicant could be at risk of ill-treatment, and thus the return decision to Spain was suspended.

The ELENA Weekly Legal Update would like to thank Caroline Prudhon for notifying us of this decision.

Back to top

Belgium: Council of Aliens Law Litigation suspend transfer to Iraq

The Court of Alien Law Litigation (CALL) referred a case back to the Office of the Commissioner General for Refugees and Stateless Persons (CGRA) on 30 April 2015 after the CGRA had doubted the credibility of the applicant’s account of why he had fled Iraq, and if a well-founded fear of persecution existed. However, having been presented with new evidence in the applicant’s appeal that included an updated country of origin report on the security situation in Iraq, the CALL said that the applicant could not be returned to Iraq if it could not be guaranteed that he could return to safe regions of the country securely and legally, and not through regions where he would have a well-founded fear of persecution. 
The ELENA Weekly Legal Update would like to thank Sylvie Micholt for notifying us of this decision.



Asylum Information Database: updated AIDA report on Croatia

An updated Asylum Information Database (AIDA) report on Croatia has been published that reflects the amendment to the country’s Law on Administrative Disputes made in December 2014. This amendment introduces the possibility of a second appeal in the asylum procedure, allowing asylum seekers to appeal against a decision of the Administrative Court before the High Administrative Court. While the onward appeal has a suspensive effect, allowing applicants to remain on Croatian territory until the end of proceedings, this is expected to be amended in a forthcoming Law on International and Temporary Protection, which is to transpose the Asylum Procedures Directive and the Reception Conditions Directive into Croatian legislation. According to the report, written by the Croatian Law Centre, there has been no case or available information to date on how the appeal before the High Administrative Court is handled in practice, or on the forms of accommodation and benefits available to asylum seekers during this appeal.

The report also demonstrates that there has been a significant drop in the number of asylum applications made in Croatia, from 1,089 in 2013, to 453 in 2014, of which 54 were made by Syrian nationals 18 by Afghan, 10 by Somali, and 4 by Eritrean nationals. The recognition rate has remained at approximately 11%.

Back to top

France Terre d’Asile publish document on unaccompanied foreign children

The ECRE member organisation France Terre d’Asile released a document to provide insight into the various issues of the welcome and support of unaccompanied children in France in order to give an overview of the system in place. The paper highlights how unaccompanied minors in France may struggle to find legal representation, and thus may have no legal capacity. This can in turn lead to difficulties in accessing social protection, health care, education and a number of other rights. While obtaining precise statistics on the numbers of unaccompanied foreign minors is problematic, it is estimated that there are around 8,000 in France, with a large proportion of them being male, and aged over 15 years old.

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, 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 John Dorber (jdorber@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).

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