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ELENA Weekly Legal Update (EWLU)

31 July 2020
 

Summary


European Court of Human Rights European Union National Developments ECRE Summer School

European Court of Human Rights


Communicated cases against Russia

  • N.K. v Russia (Application No. 62812/19): The applicant is an Uzbek national residing in Russia with his family on a temporary residence permit. In 2018, the applicant and his family attempted to enter Russia after travelling to Kazakhstan. While his family were allowed to enter, he was denied re-entry and was informed that he was subject to exclusion from entering the territory and was banned for 19 years. No further explanation was given. The decision was upheld on the basis that his exclusion was in national security interests. The applicant complains that his exclusion and 19 year ban on entering the territory violated his rights under Article 8 ECHR.
     
  • Sharipov v Russia (Application No. 61658/19): The applicant’s Russian passport was seized and destroyed on the basis that he was believed not to have genuine Russian nationality. The applicant, who is a former Russian army officer and has lived in Russia since the 1990’s, complains that this interference was unnecessary and violated his right to private and family life under Article 8 ECHR.

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Pormes v The Netherlands: No violation of Article 8 ECHR following refusal to grant residence permit

On 28 July 2020, the European Court of Human Rights published its judgment in Pormes v The Netherlands (Application No. 25402/14) concerning the refusal to grant a residence permit to an Indonesian national.

The applicant, who arrived in the Netherlands in 1991 at the age of 4 years old, was raised by his aunt and uncle, both Dutch nationals, after his parents passed away. At the age of 17, he discovered that he may not have Dutch nationality because he had not taken the necessary steps to regularise his status after arriving on a tourist visa. He later made an application for a temporary residence permit, which was rejected on the basis that he posed a danger to the public following a number of convictions for assault. The decision to reject his request was upheld on the basis that the correct weight had been placed on the nature and seriousness of the offences committed. The applicant complained that the refusal of the domestic authorities to grant him a residence permit placed too much weight on his criminal record and failed to balance his family life rights, in violation of Article 8 ECHR.

The Court observed that in the context of both positive and negative obligations a State must strike a fair balance between the competing interests of an individual and of the danger posed to the community as a whole. It noted, inter alia, that while the applicant had spent most of his childhood in the Netherlands, his residence was at no point lawful as he had never obtained settled status. However, an assessment of the competing interests between the individual and the community must take into account the applicant’s specific circumstances.

There was, indeed, no doubt that after living in the Netherlands for 15 years his ties to the country were very strong, while his ties to Indonesia were weak. Nevertheless, the Court noted, inter alia, that it cannot overlook the applicant’s criminal record and repeated offences, some of which had been committed while he was an adult and aware of his precarious status. Moreover, the Court found that the domestic authorities’ decision making bodies had consistently had regard for the applicant’s Article 8 interests throughout proceedings. It therefore concluded that the decision refusing to grant a temporary residence permit did not amount to a violation of the applicant’s right to family life under Article 8 ECHR.

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M.O. v Turkey: Decision to strike case out of the list in light of guarantees by Uzbek authorities

On 30 July 2020, the European Court of Human Rights published its decision to strike the case of M.O v Turkey (Application No. 43826/19) out of the list.

The case concerns the threat of deportation of an Uzbek national, who fled to Turkey with his family due to a fear of persecution in his country of origin. He complained, inter alia, that his deportation would expose him to a risk of ill-treatment in violation of Article 3 ECHR. He subsequently obtained certain guarantees from Uzbek authorities in relation to his and his family’s safety and decided to withdraw the application.

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European Union


CJEU: Advocate General Opinion on interpretation of right to family reunification and conditions for issuing residence permit for third country nationals 

On 16 July 2020, Advocate General Richard De La Tour delivered his opinion in case C-193/19 concerning the interpretation of Article 5(2) Directive 2003/86 and the requirements for issuing or rejecting a residence permit for the purpose of family reunification.

The case concerns a Gambian national who requested a temporary residence permit to join his spouse in Sweden. Concerns regarding the formal identification of the individual were raised after he was found to have used various aliases while in Norway. The referring court therefore sought clarification on, inter alia, the requirements under EU law for third country nationals who apply for residence permits on neither humanitarian nor protection grounds. In its questions to the CJEU, the referring Court essentially asks whether EU law requires a third country national to establish their identity with certainty when they submit an application for a residence permit on neither protection nor humanitarian grounds. 

The AG began by clarifying that the referring questions also seek to ascertain to what extent a Member State may derogate from the principle that the identity of an individual must be established, and whether EU law provides for exceptions to this rule. He observed, inter alia, that proof of identity is often inherent in establishing evidence of the existence of a family relationship in cases concerning family reunification. He noted, equally, that the EU legislator does not explicitly provide for any relaxations or exceptions to the rule that an application must be accompanied by certified travel documents. However, he added that Article 5(2) 2003/86 provides no indication of the consequences in the event of an applicant's failure to do so.

Therefore, in the AG’s view, it is necessary for Member States to take account of the specific reasons for a third country national’s inability to provide travel documents, as well as the fact that it cannot be ruled out that an applicant is unable to provide such proof in certain circumstances. To guarantee compliance with obligations under EU law, a Member State cannot reject an application for family reunification solely on the grounds that an applicant fails to provide travel documents without an individual examination. Indeed, this ensures respect for both the fundamental rights guaranteed by the Charter and the principle of proportionality. As such, AG Richard De La Tour opined that Article 5(2) 2003/86 must be interpreted as not precluding national legislation requiring third country nationals to provide certified copy of ID when making an application for family reunification. However, where this is not possible, an application cannot be rejected on that ground alone without an individual examination which takes into account, inter alia, the reasons for the inability to provide said documents.

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EASO: Country of origin information report on Afghanistan 

On 22 July 2020, the European Asylum Support Office published a new country of origin information report on Afghanistan entitled "criminal law, customary justice and informal dispute resolution".

The report aims to provide relevant and updated information to be used in the assessment of international protection status determination. It is the first in the series of country of origin information reports on Afghanistan due to be published between July and September 2020.

As well as providing updated information on State structure and security forces, the report addresses, inter alia, three key areas: an overview of the socio-legal structure in Afghanistan; information on the topic of land disputes as a source of conflict, and the Taliban’s involvement in resolving such conflicts; and an overview of conflicts relating to blood feuds and revenge killings.

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National Developments


Italy: Residence permit on humanitarian grounds due to COVID-19 situation in country of origin

The Court of Naples recently recognised (by Decree of 25 June 2020 No. 23602) an individual’s right to a residence permit on humanitarian protection grounds due to the health emergency situation and management of COVID-19 in the applicant’s country of origin.

The applicant, a Pakistani citizen, originating from a small village in Punjab, now lives in Italy. He speaks Italian and has had several regular employment contracts. He obtained a temporary residence permit as an asylum seeker. His applications for refugee status and subsidiary protection were rejected, considering the applicant's account of the risk of persecution on religious grounds or serious harm to be unreliable, and because it considered that there was not a situation of indiscriminate violence resulting from armed conflict. 

The Tribunal, however, assessed of its own motion the security situation resulting from the pandemic. The Court made a specific reference to the Alheto judgment, in which the CJEU specified that the expression 'ex nunc' (contained in Article 46 of Directive 2013/32 -APD) highlights the obligation of the court to carry out an assessment which takes into account, where appropriate, new factors which have arisen since the adoption of the decision under review. The Court of Naples observed that, according to reliable country of origin information reports, the Pakistani health system became increasingly commercial, resulting in the scarce availability of health services for the poor. In particular, public primary care services are poor, especially in rural areas, with only six COVID hospitals in the whole Punjab region. It also noted, inter alia, data indicating the significant number of positive tests and the large concentration of cases in the Punjab region.

Having examined the applicant's situation, the Court of First Instance concluded that return to his country of origin would place the applicant's right to health in a state of extreme vulnerability and at serious risk. However, it made clear that it is not specifically the risk to the applicant’s state of health that would justify granting on residence permit on humanitarian grounds. Rather, it indicated that there was a possibility that the applicant would not have access to appropriate care and may be excluded from care on the basis of social and economic reasons. As a result, the Court concluded that the applicant’s fundamental right to health would be seriously compromised in the event of his return. It added that the applicant’s lack of ties with his country of origin and well-documented integration in Italy, justified granting a residence permit on humanitarian protection grounds.

Many thanks to Sofia Bonatti, senior legal officer at ECRE, for assisting with this summary. Based on an unofficial translation by the EWLU team.

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ECRE


AIDA: Updated country report on Germany 

The updated AIDA country report on Germany is now available online. The report provides information on the changes and developments in relation to asylum and migration law throughout 2019.

In particular, the report highlights the main trends in 2019, including the extensive reform of German asylum and migration legislation and the high volume of family protection cases, which have increased significantly in recent years. Furthermore, the report provides an overview on asylum procedures, reception conditions, detention measures, and the content of international protection.

The updated report on Germany is the final in the series of AIDA updates. All 23 reports on the situation of asylum and legal trends throughout the year 2019 can be found on the AIDA website.

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Summer School


Skopje Summer School 2020: Refugee Rights and Migration

Applications for the ‘2020 Summer School on Refugee Rights and Migration’ are now open.

The course is organised by the Skopje Law Faculty's Refugee Law Center in collaboration with the San Remo Institute of Humanitarian Law and will focus on the challenges in times of the COVID-19 pandemic. It will be held from 24 August to 28 August 2020. The 5 day intensive course is designed to help participants gain an understanding of the challenges in relation to refugee rights and migration during the pandemic and is open for participation to all undergraduate and postgraduate students.

More information can be found in the course programme. The programme will be delivered in English in an online mode /telematics mode via morning and afternoon sessions, with a possibility of several afterhours /evening sessions.

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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 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 Julia Zelvenska (jzelvenska@ecre.org).






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