ELENA Weekly Legal Update (EWLU)

4 December 2015
 

Summary


European Court of Human Rights United Nations National Developments NGOs

European Court of Human Rights


Tadzhibayev v. Russia (no. 17724/2014) [Articles 3 and 13], 1 December 2015

The case of Tadzhibayev v. Russia relates to an ethnic Uzbek national of Kyrgyzstan who fled to Russia in June 2010 following violent inter-ethnic clashes in his region. He received a temporary residence permit. The Kyrgyz authorities charged him in absentia for various crimes in connection with the clashes and placed him on a list of fugitives. He was arrested and detained by Russian authorities in 2012, who subsequently granted the extradition request submitted by Kyrgyzstan.

He was released after a successful appeal against the extradition order. However, this ruling was quashed by the Supreme Court of Russia on the basis that the Kyrgz authorities had provided diplomatic guarantees that the applicant would not be subject to ill-treatment. Enforcement of the order was suspended as the Court indicated a rule 39 measure to prevent his extradition. Whilst extradition proceedings were ongoing, the applicant claimed asylum, which was rejected at first instance and upon appeal, in a final decision of July 2014.

The applicant complained that his extradition would violate Article 3 as his Uzbek ethnicity would put him at real risk of ill-treatment, particularly given that members of this group who were suspected of involvement in the June 2010 violence were systematically tortured in Kyrgyzstan. Further, these arguments were not adequately considered by the Russian authorities, in violation of Article 13.

The Court considered its previous case law on extradition to Kyrgyzstan in Makhmudzhan Ergashev v. Russia (no. 49747/11) where it found that torture and ill-treatment of ethnic Uzbeks by law-enforcement officers, with impunity, was widespread. Reports by UN bodies and NGOs on the human rights situation in Kyrgyzstan showed that this situation had not improved. It found that the applicant belonged to a particularly vulnerable group, ethnic Uzbeks, members of which were routinely subject to treatment contrary to Article 3. In addition, his claim to be at risk of ill-treatment had not been subjected to rigorous scrutiny by the Russian authorities in either his asylum or extradition proceedings. It rejected the argument of the government that diplomatic assurances provided by the Kyrgz authorities provided sufficient guarantee against the risk of the applicant being ill-treated.
It concluded that the applicant would face a real risk of treatment contrary to Article 3 if returned to Kyrgyzstan, and there was no need to consider the Article 13 complaint separately. 

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United Nations


UNHCR: International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update 4

The UNHCR’s latest update on Syria, published on 27 November 2015 supersedes its previous guidance and provides recent information on the conflict and security situation, human rights situation and humanitarian situation in Syria, of relevance in determining eligibility for refugee status. 

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UNHCR: Policy on detention monitoring 

UNHCR has issued guidance for UNHCR Offices on building and strengthening capacity to monitor places where asylum seekers, refugees and stateless persons are deprived of their liberty. This is in accordance with its supervisory responsibility within its mandate and aims at a harmonised approach. 

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National Developments


Canada: Supreme Court finds criminalisation of refugees for aiding collective flight to safety unlawful

In two related judgments by the Supreme Court, R v. Appulonappa [2015 SCC 59] and B010 v. Canada [2015 SCC 58], both decided on 27 November 2015, it found that domestic law relating to the criminalisation of asylum seekers who aided others to reach Canada by boat was unlawful.

The first case related to a group of Tamil asylum seekers from Sri Lanka who travelled to Canada irregularly via a freight ship. Four of the crew members, who also sought asylum, were charged in domestic law for the ‘organisation, inducement, aid or abetment of one or more persons coming to Canada without proper documentation’ (s.117 Immigration and Refugee Protection Act). If convicted, they faced a long period of imprisonment and disqualification from consideration as a refugee. They challenged this on the basis that it infringed the right to life, liberty and security of the person protected by the Canadian Charter of Rights and Freedoms.  

The Supreme Court of Canada considered this provision unconstitutional insofar as it permitted prosecution for (1) humanitarian aid to undocumented entrants, (2) mutual assistance amongst asylum‑seekers and (3) assistance to family members entering without required documents. It was thus overly broad, in view of its purpose to criminalise those involved in people smuggling in the context of organised crime. To this extent it should be read down and inapplicable. The ruling noted that in order for the protection given in Article 31 of the 1951 Refugee Convention to be effective, the law must recognise that people often seek refuge in groups and work together to enter a country illegally. Thus a state could not impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.

Similarly, the applicants in B010 all acted as crew members on boats transporting irregular migrants to Canada in order to seek asylum. Their asylum applications were found inadmissible pursuant to s37(1) of the Immigration and Refugee Protection Act as they were deemed to have been engaged in organised criminal people smuggling. This meant that their claims were excluded with no assessment of the merits. The court considered that s37(1) applied only to those who facilitated illegal entry of asylum‑seekers in order to obtain a financial or other material benefit in the context of transnational organized crime. It did not cover migrants that aided their own illegal entry or that of other refugees/asylum seekers in their collective flight to safety. Also excluded were acts of humanitarian and mutual aid, including between family members. The interpretation of this provision by the Canadian Immigration and Refugee Board finding the appellants to be people smugglers was not reasonable and this finding should be reconsidered.   

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UK: Country information and guidance reports on Burma and Pakistan

The UK Home Office has published country information and guidance reports relating to prison conditions and opposition to the government in Burma, and the security and humanitarian situation in Pakistan.
 
In relation to Burma, the guidance states that the situation for government opponents has improved but there are continued reports of arrests of peaceful critics. Internal protection or relocation alternatives are considered unreasonable where the person’s fear of ill-treatment or persecution is from the State. Further, illegal departure from Burma puts someone at real risk of imprisonment upon return. With regard to prison conditions, these remain poor particularly in Rakhine State, with continued allegations of torture. However in general, they are not so systematically inhuman and life-threatening to meet the threshold of Article 3, though they may do in the circumstances of individual cases.
 
The guidance on Pakistan states that simply living in an area where the Pakistani Taliban or other militant groups are active does not of itself give rise to real risk of persecution or serious harm, resulting in breach of Article 15c). Individual circumstances and risk must be considered and while internal is generally a viable option, the reasonableness of this depends on the facts of the case.

 

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NGOs


ECRE: Updated AIDA Country Reports on Greece, Hungary, Poland and the UK

Greece

The updated AIDA report on Greece documents persisting deficiencies in the asylum procedure and reception conditions. Greece, which has seen as many as 715,000 persons arrive on its territory since the beginning of 2015, still suffers from a severe lack of hosting facilities, inadequate systems for registration and the lack of a proper identification and referral mechanism for the most vulnerable.
Persons in need of protection still face considerable obstacles to accessing the asylum procedure. Without adequate access to registration, persons remain at risk of detention and deportation as irregular migrants. In most cases where detainees successfully lodge an asylum claim, they remain in detention for the processing of their application, without proper consideration of necessity, proportionality and alternatives to detention. Push backs have remained an issue of concern at the Greek-Turkish border, with a number of incidents reported in 2015 to various NGOs. Deficiencies remain in appeals procedures as well, where there are significant backlogs.

The findings of the AIDA report are of particular relevance in view of the European Commission’s intention to consider a recommendation for the reinstatement of transfers of asylum seekers to Greece under the Dublin Regulation, four years after their halt by the MSS v Belgium and Greece and NS v Secretary of State for the Home Department rulings.

Hungary

The updated AIDA report on Hungary, written by the Hungarian Helsinki Committee, documents the overhaul of the country’s asylum system through a series of legislative reforms over the summer of 2015. The new rules pose undue restrictions to accessing protection in the country and are in tension with numerous provisions of the EU asylum acquis. Hungary has adopted a list of safe countries of origin and safe third country, designating countries such as Serbia as safe and leading all applications of asylum seekers coming through Serbia – the overwhelming majority of claimants in Hungary – to be declared inadmissible. This is also applicable to persons returning to Hungary under the Dublin Regulation.

Further amendments entering into force on 15 September 2015 introduced additional restrictions to access to protection. The amended Asylum Act now provides for a border procedure in transit zones, subject to lower procedural guarantees and in practice lasting as short as one hour in certain cases, whereby asylum claims are summarily rejected as inadmissible. Transit zones made up of containers, where asylum seekers are detained, were set up at border-crossing points on the Serbian border (Röszke, Tompa) in September 2015 and the Croatian border (Letenye, Beremend) in October 2015, when the respective borders were closed. Vulnerable applicants are exempted from the border procedure in the transit zone.

Hungary, which received over 175,000 asylum applications between January and September 2015, has reduced its reception capacity following the closure of its borders, namely by shutting down the Debrecen reception centre in October 2015.

Poland

The updated AIDA report on Poland, written by the Helsinki Foundation for Human Rights (HFHR) tracks the recent adoption of domestic legislation which transposes the recast Reception Conditions and Asylum Procedures Directives into the national setting. A significant change has come about with the introduction of a State legal aid system comprising of legal information given by the Office for Foreigners at first instance and legal aid provided by lawyers and NGOs at appeal stage.
Other amendments relate to an additional ground of inadmissibility relating to the “first country of asylum” concept, while the “safe country of origin” concept has been deleted from national legislation.
The reform has provided a legal basis for detention for cases failing under the Dublin Regulation, based on the risk of absconding of the asylum seeker. Furthermore, amended measures reduce the time limit, from 2 years to 9 months, to re-open the procedure when a person is transferred back to Poland under Dublin.

UK

The updated AIDA report on the UK, written by Asylum Aid, elaborates upon the Detention Action litigation which saw the suspension of the Detained Fast Track (DFT) System for appeals on grounds that the system was structurally unfair and unjust. A clear herald for positive change, the litigation has led to the rehearing of appeals which were previously heard in the DFT and an applicant will not be removed until the appeal has been reheard.

Notwithstanding this finding on the DFT Rules, the report details the frequent use of detention, as 11,146 persons seeking asylum had been detained between January and September 2015. The update documents that vulnerable individuals, who had experienced rape and torture, are placed in detention even though domestic policy dictates that vulnerable persons are unsuitable for detention. The disproportionate frequency of detention has been heavily criticised by an All Party Parliamentary Group inquiry, detailed in the report, which calls for decisions to detain only on the basis that it is for the shortest possible time and only to effect removal. As an ongoing outlier in comparison to other European Member States, the UK places no time limit on detention and thus the inquiry strongly advocates for a time limit of 28 days on the length of detention.

For more information, see the EDAL journal article written by Alison Harvey, ELENA national coordinator for the UK, Recent challenges to accelerated procedures involving detention in the UK, 7 August 2015.

Based on the AIDA news articles on Greece, Hungary, Poland and the UK.

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Amnesty International: report on national service in Eritrea

Amnesty International has published a report titled ‘Just Deserters: why indefinite national service in Eritrea has created a generation of refugees’ relating to indefinite conscription into National Service, which is a predominant factor in asylum applications made by Eritreans. The research was conducted in response to practice in countries such as Denmark and the UK which have increasingly rejected such applications on the claim that the situation for conscripts has recently improved to the extent that those fleeing no longer have grounds for asylum.

Amnesty International’s research found no discernible changes in the practice, which amounts to forced labour in violation of international law. It concludes that indefinite conscription into National Service in Eritrea is a human rights violation and that there exists a generalised risk of arbitrary detention, torture and other ill-treatment for any asylum seekers returned to Eritrea. 
 

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Irish Refugee Council: Practical guide on providing early legal advice to people in the asylum process

The Irish Refugee Council (IRC), has launched a manual on providing early legal advice (ELA) to persons seeking international protection. With ELA helping people in the asylum procedure to be identified and recognised at the earliest opportunity, this manual provides practical guidance to legal practitioners on how such advice can be applied.

Exploring the key stages of ELA, the manual outlines how to enable applicants to voice the full extent of their application, how to assist the applicant with considering what evidence might be appropriate to support the application, and how to assist the decision maker by providing legal submissions that outline the protection needs of the client in the context of the state’s international legal obligations.

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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 Zarina Rahman (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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